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Chamu Kuppuswamy: Senior lecturer and interdisciplinary researcher, School of Law, University of Hertfordshire
The genocide verdict brought recently by a German court against an Iraqi member of Islamic State for crimes including the murder of a five-year-old Yazidi girl is a landmark decision which will clear the way for similar prosecutions. That this verdict was even possible was thanks to a detailed (and remarkably speedy) report in 2016 which established that violence against the Yazidi community in northwest Iraq had amounted to genocide.
Taha al-Jumailly was sentenced to life imprisonment after the court heard that the jihadist enslaved the five-year-old in 2015, chaining her up and leaving her to die of thirst.
The concept of international crimes is relatively new, stemming from the 1998 Statute of the International Criminal Court (Rome Statute). These are understood as “the most serious crimes of concern to the international community as a whole”. At the top of this list is the crime of genocide. This is defined, in Article 6 of the Rome Statute of the International Criminal Court, as: “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
The development of international criminal law is deeply rooted in the atrocities committed during the second world war in Europe and Asia, brought to light at the Nuremberg and Tokyo war crimes tribunals. These two pioneering tribunals established the individual criminal responsibility of heads of state and military leaders for gross violations of human rights. This was rapidly endorsed by the 1946 resolution of the United Nations General Assembly, and followed by the Genocide Convention in 1948.
The significance of these developments is that international law seldom holds individuals responsible for violating it. It has only done so previously in instances of piracy and slave-trading. Without this structural tool of individual responsibility for a heinous crime, it would not be possible to bring perpetrators to justice and deter such behaviour in the future.
Genocide has come to be known as the “crime of crimes”, but it is also the most difficult to prove because it does not only require intent, but specific intent to destroy an identifiable group of people.
Establishing genocide as a crime
The guilty verdict against al-Jumailly was only possible because of the work done prior to the case which established the occurrence of genocide in relation to the crime committed by this individual: the Independent International Commission of Inquiry reported to the Human Rights Council in 2016 that genocide was being carried out against the Yazidi community by the so-called Islamic State of Iraq and Syria (IS).
In its 40-page report it established that IS had sought to destroy the Yazidis. It had done this through killings, sexual slavery, enslavement, torture and inhuman and degrading treatment and forcible transfer causing serious bodily and mental harm. All of these are prohibited acts under the Rome Statute.
In April 2020, al-Jumailly was charged with crimes under the German Code of Crimes against international law, which implemented the Rome Statute into German criminal law, for his act of buying a Yazidi woman and her child from an IS fighter and subsequently providing them with insufficient food and prohibiting them from practising their religion. The child later died from being tied to a window and left unprotected in a temperature of 50°C as a punishment for bed-wetting.
Rare cases of justice
Iraq is not party to the Rome Statute – and therefore the International Criminal Court (ICC) has no jurisdiction over these crimes. Cases must be held in a domestic court of a country that is signatory to the Rome Statute or recognises a special provision in international law, known as universal jurisdiction, through its customary law.
Ordinarily, German courts would not have had jurisdiction in this case as the accused was a foreign national and the crime took place outside Germany (in Iraq). But because Germany recognises universal jurisdiction, its court was able to hear the case.
In practice, few countries have ever exercised this jurisdiction. Previous examples include the arrest in London on an international warrant of the late Chilean dictator Augusto Pinochet for crimes committed during his regime from 1973 to 1990. Others prosecuted have included individuals in Guatemala and Spain.
But it is important that states do this – since international crimes do not get prosecuted enough and are often only prosecuted as offences in national criminal law. For example in March 2020, an Iraqi court sentenced Mohammed Rashid Sahab, also a former IS militant, to death for “repeatedly raping a Yazidi woman whom he held captive” and had forced to marry him. There was no mention of genocide, however.
While it is possible for the UN Security Council to refer cases to the ICC, geopolitics has all-too-often intervened to prevent unity among the permanent members of the Security Council. This has effectively meant that this route to prosecution of international crimes is closed. So, given the extremely sensitive and highly political nature of prosecution of international crimes, the German court has taken an important step by assuming universal jurisdiction in this case.
The opinions expressed in this publication are those of the writer(s). They do not purport to reflect the opinions or views of Fanack or its Board of Editors.