THE YAZIDI GENOCIDE AND THE ISLAMIC STATE BY GERMAN COURTS: the transnationality and the judgments Taha Al-. J. e Jennifer W.
Marcela Bittencourt Brey[1]
Abstract
Purpose/Context. This article analyzes aspects of transnationality, the application of the principle of universal jurisdiction in favor of security and global peace, by the German Courts. Through the analysis of two convictions of members of the Islamic State, the Iraqi Taha Al.-J., and the German Jennifer W. The study proposes the reflection of the different approaches and dosimetry of the punishments imposed. The seriousness of the actions that took place in Iraq and Syria from 03.08.2014, period of the beginning of the Yazidi genocide, were recognized by the European Parliament (2016/2529 RSP) and by the United Nations (A/HRC/32/CRP.2). The crimes were recognized as international, war crimes, genocide, and crimes against humanity.
Methodology/Approach. This article made use of the inductive methodology, based on documental, doctrinal, resolutions and jurisprudential collection. The investigation intended to confirm that despite the seriousness of the crimes committed by the Islamic State and due to the absence of a trial by an International Court, Germany acted at the local level as a way of repudiating them.
Results/Findings. One of the effects of globalization was the facilitation of the cross-border flow of citizens of the most diverse nationalities between European countries. Thus, the international community, despite seeing the free movement of fighters from the most varied countries, European, Asian and others, also invested in creating mechanisms and providing practical efficiency, therefore making international cooperation viable. This was necessary to facilitate investigations, the flow of information, anticipate executions of terrorist attacks, carry out seizures and arrests, and conduct trials. The extradition request of Iraqi Taha Al-J. was requested by the German government from Greece. The reasoning of the sentences the principle of universal jurisdiction and the extraterritoriality of the German criminal law, since its penal code expressly provides that the crimes of genocide, war crimes and crimes against humanity are considered international crimes.
Discussion/Conclusions/Contributions. The study will reflect the violent actions of the Islamic State, directed at the Yazidi ethnic minority, as well as the repercussions on the international context. The need for global security and peace sparks debate within the international community, which has been urged through the European Parliament and the United Nations Organizations to act in the face of serious human rights violations. Transnationality and the application of the principle of universal jurisdiction may have been allied in the convictions of Taha Al.-J. and Jennifer W.
Keywords: transnationality – yazidi genocide – human rights – principle of universal jurisdiction – islamic state
- Introduction
Acts of gender violence, extremism, religious fundamentalism and hate speech were considered part of the scenario marked by the crimes committed by the Islamic State in Iraq and Syria, as of August 3, 2014.[2]
The global security crisis may have been triggered by the crimes of the Islamic State. It also contributed to the displacement of many people. Voluntarily, a portion felt fascinated with the professed ideology. The invitation to join the caliphate, an archetype of a homogeneous Islamic community, which reflected values of equality and peace, was well liked by proselyte.
Thus, people of the most diverse nationalities, abandoned their lives, their goods and joined the caliphate. For this portion, the religious and ideological discourse of the Islamic State should naturally be imposed on others, as they believed that this procedure – that went beyond the limits of a religious lifestyle – it was necessary to transform this community into society.
The death penalty was applied to those who refused forced conversion to the religion of Islam. As a result, countless people left their possessions, their lives and fled. Consequently, the emergence of a global humanitarian crisis that has been spreading and getting worse until today. Currently, the world has about 100 million displaced people. The war in Russia and Ukraine also contributed to this critical context.[3]
As such, since the climax of the Islamic State, the number of people migrating around the world due to violence, various forms of persecution and other emergencies has increased in two years, from 70.8 million people to 79.5 million. In the Report published on 06/19/2019, by the UN Refugee Agency (UNHCR), an increase of 2.3 million was already pointed out compared to 2017, approaching the populations of countries such as Thailand and Turkey.[4]
Furthermore, the effects of the COVID-19 pandemic, in the 2020s, also afflicted the Yazidi minority. If they were already vulnerable due to the genocide suffered, it is opportune to point out that a portion of this minority still lives in refugee camps, where they suffer from the deprivation of basic human rights, such as health, employment, and housing (BREY, 2022a, pp. 425-439). One of the voices that have acted in the international community, in favor of the accountability of the members, the reparation of the Yazidi victims and the safe return of the Yazidis to their homes, is the human rights activist and former sex slave, Nadia Murad. She is currently a Goodwill Ambassador for the UN Office on Drugs and Crime (UNODC), for the dignity of survivors of human trafficking (BREY, 2022b, pp. 227-244).
In this context, the present work proposes, through the general objective, to analyze the influence of transnationality[5] in the application of the principle of universal jurisdiction, based on the judgments of Taha Al.-J. and Jennifer W. As a specific objective, the study summarizes the results achieved, which were carried out through a brief analysis of the previously mentioned judgments, by the Higher Regional Courts of Frankfurt and Munich.
- Methodology
This study made use of the inductive methodology, that was developed from the procedural analysis in resolutions and reports issued by the European Parliament (2016/2529 RSP)[6], by United Nations Organizations (A/HRC/32/CRP.2)[7] and other documents from European Union agencies such as EUROJUST[8], non-governmental organizations, doctrinal and jurisprudential collections. However, the jurisprudential analysis focused on limiting the study based on the Yazidi genocide and the convictions of Taha Al.-J. and Jennifer W. It should be noted that the German courts did not focus only on Taha and Jennifer (BREY, 2023, pp. 41-52). Currently, other convictions have been handed down in the same sense, such as the fighter Jalda A., which occurred on July 27, 2022, thus recognizing, in her conviction, the practice of Yazidi genocide (BREY, 2023, pp. 47).
- Results
In order to eradicate and combat international crimes, such as crimes against humanity, war crimes, terrorism, human trafficking and genocide, German courts have upheld the principle of universal jurisdiction.
With the invasion of territory by the Islamic State in parts of Iraq and Syria, Europe was feeling the effects of migration. At the same time, it was necessary to take repressive, coordinated, and intelligent measures to maintain global security with other states and organizations. It was essential not only to make use of the protectionist rhetoric of Human Rights, but to put them into effect, so that the states needed a more articulated action to stop the actions of the radical group.
With a view to implementing and structuring cooperation in international criminal justice between European authorities, EUROJUST’s performance stands out – agency of the European Union. It was created with the aim of combating serious cross-border crimes.
- Discussion
The convictions by the German courts of Taha Al.-J. and Jennifer W. encourage reflection on the application of the extraterritoriality of German criminal law and the need to combat human rights violations regardless of the nationality of the victim or the accused. Except for Jennifer W., all those involved are not German citizens, be they victims or the convict himself.
Taha Al.-J. is Iraqi and is married to the German Jennifer W. Both joined the radical Islamic group and traveled to Syria. Investigations found that in 2015, Taha Al.-J., along with his wife, bought and held captive the mother and her five-year-old daughter, both Yazidis. One day the Yazidi child urinated on the mattress and, as punishment, was chained outside the house under the scorching sun. The child died. The mother managed to escape and sought help from non-governmental organizations. (BREY, 2023, pp. 41-52)
For Taha’s arrest to take place, international cooperation between European authorities was necessary. At the same time, Syria also needed support for the radical group to lose strength in parts of its territory. However, with a focus on cooperation between European states, Taha was arrested for in Greece and later extradited to Germany. He was the first member of the Islamic State to be convicted of committing Yazidi genocide. The decision was considered a milestone and of great value to the ethnic minority (BREY, 2023, pp. 41-52).
The Higher Regional Court of Frankfurt, on November 30, 2021, sentenced Taha Al.-J. It considered that because he was in the leadership position in the family, because he had supremacy, power, family control and because he carried out the crime – have chained the child – it would justify the penalty imposed: life imprisonment for acknowledging genocide through the death of a Yazidi girl. The conviction also included human trafficking, war crimes, as well as civil reparations to the deceased girl’s mother in the amount of 50,000 euros. Such crimes are considered international under German law. (BREY, 2023, pp. 41-52).
In turn, the conviction of Jennifer W., German, by the Superior Regional Court of Munich, on October 25, 2021, the prison sentence for 10 years, was considered mild by the prosecution. She was convicted of having associated with the radical Islamic group, for crimes of human trafficking, false imprisonment, but her responsibility was recognized in a limited way in the participation in the murder of the child. The Court considered that its actions, in the sphere of influence and decision-making, would be limited, given the territorial context under analysis. The crimes were committed in Fallujah, Iraq. In this way, Jennifer W. benefited from the application of a smaller penalty, for being in a country where female autonomy is mitigated, or, in most cases, curtailed. The prosecution appealed the decision. (BREY, 2023, pp. 41-52).
German law considers crimes of human trafficking and criminal offenses recognized by an international treaty to which it has adhered to be international crimes. The provision is express and considers that such crimes need to be punished by German legislation, even if they occurred abroad.[9]
- Conclusions
Although the judgment on the Yazidi genocide was not conducted by an International Court – due to the lack of ratification of the Rome Statute by Iraq and Syria (BREY, 2022b, pp. 232-236) –, it is concluded that the judicial decisions produced by the German courts, investigated in this brief reflection, are heterogeneous. It should be noted that other countries tend to refer to the principle of universal jurisdiction.[10]
However, despite this jurisprudential heterogeneity, the judgments of Taha Al.-J. and Jennifer W. focus on the intersection of the institutes of extraterritoriality of criminal law, international cooperation, transnationality, the flexibilization of the concept of state sovereignty and a new threshold for the protection of the human person.
- Bibliography
ACNUR BRASIL. Retrospectiva 2022: o ano em que o mundo atingiu a marca de 100 milhões de pessoas forçadas a se deslocar. December 20, 2022. Available at: <https://curt.link/g19uxH>. Access at: April 03, 2023.
BREY. Marcela B. Yazidis e Covid-19: (re) colocando a fragilidade no centro da reflexão. In: VEIGA, Fábio da S.; ALVES, Rodrigo V. S.; FONSECA, Maria H. Diálogos dos Direitos Humanos, Porto. Instituto Iberoamericano de Estudos Jurídicos, 2022a, pp. 425-439. Available at: < https://iberojur.com/product/dialogos-direitos-humanos/>. Access at: April 03, 2023.
BREY. Marcela B. Nadia Murad e o Estado Islâmico: o princípio da jurisdição universal e seu influxo no caráter unitário do Direito Internacional contemporâneo. PRUDENTE, Eunice A.; MARTORELLI, Adriana N.; TORRES, Vivian G. Gênero, Etnia e Sexualidade: políticas públicas e judiciárias, Vol. 2, São Paulo: LiberArs, 2022b, pp. 227-244.
BREY. Marcela B. Transnacionalidade e Direitos Humanos: Reflexões acerca da aplicação do princípio da jurisdição universal à luz dos julgamentos de Taha Al.-J e Jennifer W. In: BUJOSA VADELL, L.M. (dir.); VEIGA, F.S.; PIERDONÁ, Z.L (coords.), Retos del horizonte jurídico Iberoamericano, Vol. I, Porto/Salamanca: Instituto Iberoamericano de Estudos Jurídicos e Universidad de Salamanca, 2023, pp. 41-52. Available at: <https://iberojur.com/product/retosdelhorizonte-juridico-iberoamericano/>. Access at: April 03, 2023.
EDWARDS, Adrian. Deslocamento forçado quebra recorde em 2019. ACNUR. Germany. June 18, 2020. Available at: <https://www.acnur.org/portugues/2020/06/18/deslocamento-forcado-quebra-recorde-em-2019/>. Access at: April 03, 2023.
EUROJUST. Supporting judicial authorities in the fight Against Core International Crimes. Available at: <https://www.eurojust.europa.eu/sites/default/files/2020-05/2020-05_Core-International-Crimes-Factsheet_EN.pdf>. Access at: April 03, 2023.
EUROPEAN PARLIAMENT. Resolution 2016/2529, February 04, 2016. Available at: https://www.europarl.europa.eu/doceo/document/TA-8-2016-0051_EN.pdf>. Access at: May 18, 2020.
GERMANY, Criminal Code. English version. Available at: <https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p0067>. Access at: April 03, 2023.
GUIMARÃES, Isaac S. Globalização, Transnacionalidade e um novo marco conceitual de soberania política. In: Revista Cej. Brasília, n.60, p. 45-54, maio/ago. 2013. Available at: <https://www.corteidh.or.cr/tablas/r32299.pdf>. Access at: August 04, 2022.
OBERLANDESGERICHT MÜNCHEN. Pressemitteilung 30. Strafverfahren gegen Jennifer W. wegen Verdachts der mitgliedschaftlichen Beteiligung an einer terroristischen Vereinigung im Ausland u.a. Munique. October 25, 2021. Available at: <https://www.justiz.bayern.de/gerichte-und-behoerden/oberlandesgerichte/muenchen/presse/2021/30.php>. Access at: October 30, 2021.
OCHAB, Ewelina U. Germany Conducts Its First Genocide Trial of a Daesh Fighter. Forbes. October 24, 2019. Available at: <https://www.forbes.com/sites/ewelinaochab/2019/10/24/germany-conducts-its-first-genocide-trial-of-a-daesh-fighter/#6dc81ffe6cd2>. Access at: October 21, 2019.
OCHAB, Ewelina U. How One Yazidi Woman Helped to Secure The Second Genocide Conviction of a Daesh Member. August 02, 2022. Available at: <https://www.forbes.com/sites/ewelinaochab/2022/08/02/how-one-yazidi-woman-helped-to-secure-the-second-genocide-conviction-of-a-daesh-member/?sh=2ff3e3ea5d5d>. Access at: August 05, 2022.
ORDENTLICHE GERICHTSBARKEIT HESSEN. FRANKFURT. Pressemitteilungen. Higher Regional Court Frankfurt /Main sentences Taha Al-J. to lifelong imprisonment for genocide and other criminal offences. November 30, 2021. Available at: <https://ordentliche-gerichtsbarkeit.hessen.de/pressemitteilungen/higher-regional-court-frankfurtmain-sentences-taha-al-j-to-lifelong-imprisonment>. Access at: November 30, 2021.
SPIEGEL. Urteil gegen Jennifer W.: Sie fühlte sich beim IS zu Hause. Spiegel. October 25, 2021. Available at: <https://www.spiegel.de/panorama/justiz/muenchen-richter-verurteilt-jennifer-w-sie-fuehlte-sich-beim-is-zu-hause-a-70b4d9db-028c-4526-9981-39fb80340e6e>. Access at: August 03, 2022.
TRIAL INTERNATIONAL. [s.l.] Universal Jurisdiction Annual Review 2022. Available at: <https://trialinternational.org/wp-content/uploads/2022/03/TRIAL_International_UJAR-2022.pdf>. Access at: April 03, 2023.
UNITED NATIONS. HUMAN RIGHTS COUNCIL. They came to destroy: ISIS Crimes Against the Yazidis. June 15, 2016. Available at: <http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/A_HRC_32_CRP.2_en.pdf>. Access at: October 21, 2019.
UNITED NATIONS. OCHA Services. Germany/Iraq: World’s first judgment on crime of genocide against the Yazidis. United Nations. November 30, 2021. Available at: <https://reliefweb.int/report/iraq/germanyiraq-world-s-first-judgment-crime-genocide-against-yazidis>. Access at: August 03, 2022.
[1] Master’s in Human Rights from the Faculty of Law of the University of São Paulo – USP – Brazil. Researcher at the Jean Monnet Chair at the Federal University of Uberlandia. Attorney. https://orcid.org/0000-0002-5867-6965, ID Lattes: 5492134261028151, E-mail: marcelabbrey@gmail.com
[2] Date that recalls the terrorist attacks on the northern region of Iraq, Sinjar, near the province of Nineveh. The place of the criminal acts was home the Yazidi people, a religious ethnic minority, persecuted by the radical Islamic group. However, only in 2016, the European Parliament, as well as the United Nations, recognized the practice of the crime of genocide. It suggests using to read the referred documents mentioned in the methodology of this study.
[3] Available at: < https://curt.link/g19uxH>. Access at: 03 April 2023.
[4] Available at: <https://www.acnur.org/portugues/2020/06/18/deslocamento-forcado-quebra-recorde-em-2019/>. Access at: 03 April 2023.
[5] The adoption of transnationality, as an alternative to the new reorganization of states in the international community, making part of their sovereignty more flexible in favor of a new political realignment to face complex issues and crimes, can be the reading key for the present study. See Globalization, transnationality, and a new conceptual framework of political sovereignty, where the study addresses the conceptual tension of state sovereignty in the face of the phenomena of globalization and transnationalization. Available at: < https://www.corteidh.or.cr/tablas/r32299.pdf>. Access at: 04 August 2022.
[6] Available at: <https://www.europarl.europa.eu/doceo/document/TA-8-2016-0051_EN.pdf>. Access at: 03 April 2023.
[7] Available at: <https://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/CoISyria/A_HRC_32_CRP.2_en.pdf>. Access at: 03 April 2023.
[8] See pp. 07. Available at: <https://www.eurojust.europa.eu/sites/default/files/2020-05/2020-05_Core-International-Crimes-Factsheet_EN.pdf>. Access at: 03 April 2023.
[9] See section 6, items 4 and 9, and section 232 from German Criminal Code. Available at: <https://www.gesetze-im-internet.de/englisch_stgb/>. Access at: 03 April 2023.
[10] For more depth on countries that have upheld the principle of universal jurisdiction in dealing with crimes against humanity see the document produced by the non-governmental organization Trial Universal – Jurisdiction Annual Review 2022. Available at: https://trialinternational.org/wp-content/uploads/2022/03/TRIAL_International_UJAR-2022.pdf. Access at: 03 April 2023.
