An aerial picture shows mourners gathering around coffins wrapped with the Iraqi flag during a mass funeral for Yazidi victims of the Islamic State (IS) group - 10/08/2021
Seven years from a genocide that killed an estimated 10,000 Yazidi people in northern Iraq, European countries are grappling with how to prosecute those responsible for some of the worst atrocities of the 21st century.
In early August 2014 in Sinjar province, members of the so-called Islamic State (ISIS) terrorist group began murdering men who refused to convert to Islam and leaving their bodies in unmarked mass graves, according to the United Nations.
"Thousands were killed pursuant to this ultimatum, either executed en masse, shot as they fled, or dying from exposure on Mount Sinjar as they tried to escape," said Karim Asad Ahmad Khan, head of a UN team probing ISIS crimes.
"Thousands more were enslaved, with women and children abducted from their families and subjected to the most brutal abuses, including serial rape and other forms of unendurable sexual violence. For many, this abuse lasted years, often leading to death."
An estimated 7,000 Yazidi women and girls, some as young as nine, were enslaved and forcibly transferred to locations in Iraq and eastern Syria. Held in sexual slavery, survivors reported being repeatedly sold, gifted, or passed around among ISIS fighters. Young Yazidi boys, meanwhile, were forced to join ISIS as child soldiers.
Why bringing people to justice has been difficult
Despite clear evidence of ISIS’s role in these atrocities, prosecuting those responsible has not been straightforward. No international or regional court has been established and former ISIS members responsible for crimes against Yazidis remain detained in Iraq and Kurdish-controlled Syria in conditions that have been criticised by human rights NGOs.
As Syria remains war-torn and largely under the control of Bashir Al-Assad, there is little likelihood of justice being delivered through courts there. While Iraqi courts have prosecuted thousands of former ISIS militants, it has been predominantly based on membership of the terrorist group rather than the specific crimes committed against the Yazidis.
“The legal process in Iraq is not transparent. Survivors don't even know if it's happening, and they're not involved,” says Abid Shamdeen, the director of Nadia’s Initiative, the NGO founded by the Nobel prize winner Nadia Murad that advocates for survivors of sexual violence.
“There were also many European and US nationals who participated to a certain degree in the attacks against the Yazidi people,” notes Shamdeen, “and there are no ways that the Iraqi courts will be able to prosecute them.”
How much were Europeans involved in the genocide?
It has been well-documented that many European nationals travelled from Europe to join ISIS, while other ISIS members were able to obtain refuge after the collapse of the so-called caliphate.
To date, proceedings in France, Germany, Latvia, and the Netherlands have been issued against ISIS or other extremist militants on terrorism charges.
Germany has been leading the way in prosecuting ISIS members for specific crimes committed against Yazidis.
More than 1,200 German citizens are estimated to have joined ISIS, including ‘Sarah O.’ who travelled from Germany to Syria in 2013 to join the terror group. In Syria, she married ‘Ismail S’, another German national who remains wanted by authorities in Germany.
Over a two-year period from 2015-2017, the couple bought and enslaved seven Yazidi women and girls. The Yazidis were abused by the couple and one 14-year-old girl died while in captivity.
In June 2021, a German court convicted Sarah O. of membership in a foreign terrorist organisation i.e. ISIS, assault, deprivation of liberty, aiding and abetting rape, enslavement and religious and gender-based persecution as crimes against humanity.
The importance of religious and gender-based persecution charges
The conviction for religious and gender-based persecution is “crucial as Yazidis are often perceived as one homogenous group in these cases,” said Alexandra Lily Kather, an international criminal justice consultant and visiting fellow at Goldsmiths, University of London.
“The communities were separated by ISIS according to age and to gender and according to the subgroups different crimes were committed: the men and elderly women were shot; the young women and girls were subject to sexual enslavement but also domestic servitude, and Yazidi boys were also enslaved and forcibly conscripted to ISIS.”
However, so far, most prosecutions of ISIS militants have focused on their membership of ISIS, rather than specific war crimes.
“It is a much more complex case to prove that a person committed a criminal act than to prove that the person was a member of an organisation,” said Nerma Jelacic, the director for external relations at the Commission for International Justice and Accountability (CJIA). The international NGO gathers evidence in conflict zones for prosecutions in domestic and international criminal courts.
“It is crucial that the severity and context of criminal conduct and involvement of the suspects is reflected in the crimes investigated and prosecuted,” said Kather.
“In the context of crimes committed against the Yazidi by ISIS, these should be genocide, crimes against humanity and war crimes, alongside terrorism charges, because ultimately such trials will contribute to the historical record and be a reference for survivors in their call for reparations and redress."
“Each survivor deserves to see their abuser held accountable and their suffering acknowledged in a court of law,” said Nadia Murad in a statement following the conviction of Omaima A. for aiding and abetting crimes against humanity in the Higher Regional Court of Hamburg on 26 July 2021.
The German woman was found to have assisted the enslavement of two Yazidi women who were kidnapped from Sinjar.
Legal and political reasons drive Germany’s involvement in ISIS prosecutions
Germany has led the way in the prosecution of ISIS crimes for several reasons.
The German federal prosecutor and federal police force have specialised units for investigating and prosecuting war crimes. There was also political support for the Yazidi community at a regional level as reports of ISIS atrocities emerged in 2014. In March 2015, the state of Baden Württemberg began a relocation program for vulnerable women and girls in Northern Iraq. In a relatively short amount of time, there were over 1,000 Yazidi women and girls living there.
“A lot of survivors were in close proximity to the German prosecutor’s office, which was able to interview over a hundred survivors and record their testimony,” says Kather.
The country is also one of the few countries which has true universal jurisdiction to prosecute international crimes including genocide, torture, war crimes, crimes against humanity and enforced disappearances. Due to the gravity of the crimes, the German Code of Crimes against International Law allows German authorities to investigate and prosecute cases where neither the victim nor the perpetrator is German and where the crime was committed outside of Germany.
In the Taha Al-J case which is ongoing in the Higher Regional Court of Frankfurt, the German authorities were also able to issue an international arrest warrant and request the extradition of an Iraqi national from Greece based on the evidence they had gathered as part of their case against his wife, ‘Jennifer W,’ who is a German national.
“This essential extradition and the following trial are a testament to the long arm of universal jurisdiction and how it can cut across political interests,” says Kather.
Collecting and gathering evidence
A key challenge for universal jurisdiction trials lies in the collection and preservation of field evidence, specifically from Sinjar in Iraq where the Yazidi genocide was predominantly committed.
Since 2016, the CJIA has been providing evidence that it gathered in Iraq and Syria to EU states, as well as other democratic states who don’t use the death penalty, for the prosecution of members of ISIS and the Syrian regime in national courts.
Gathering evidence of the crimes committed against Yazidis, particularly against the women, has been challenging. Jelacic says that it was difficult to find victims who could provide testimony in a courtroom, as many had been repeatedly interviewed by journalists and NGOs. CJIA does not take statements from victims who have already spoken to the media.
“We don't want to re-traumatise them by asking them to retell their story, but we also want to protect their testimony,” says Jelacic. “Every time the person tells their story, small differences will start creeping in. Then, when they are in the courtroom, the defence will highlight them - you don't want to put a survivor through that.”
The need for a comprehensive framework
While European prosecutions of ISIS members have provided justice to a few survivors and set a precedent for future cases, the cases ultimately involve a tiny fraction of the victims and perpetrators involved in ISIS atrocities.
“There is no comprehensive framework for combining all these cases together and having a system to track them and ensure that the survivors are involved,” says Shamdeen.
In Jelacic’s view, it’s unlikely that an international tribunal will be constituted to specifically focus on ISIS crimes. “I don't see the political will to have a dedicated body to deal with these crimes,” she says.
And while Germany has been proactive regarding the prosecution of ISIS crimes, other European countries have taken a decidedly different approach.
France has permitted its citizens who joined ISIS and who have been detained in Iraq and Syria to be tried in Iraqi courts, despite international NGOs criticising the courts’ lack of procedural safeguards and use of the death penalty.
The UK, rather than repatriate and initiate a prosecution domestically of a woman who joined ISIS as a teenager, stripped her of her UK citizenship.
“The nationality principle under international law is clear that states should investigate and prosecute their nationals who are involved in international crimes abroad,” says Kather. This principle recognises that a country can prosecute nationals for their actions and conduct outside of the country.
Across the EU, states have been slow to repatriate nationals who joined ISIS.
“There is a responsibility for EU states to come up with a coherent strategy under international law, rather than drop their responsibility or outsource their responsibility by withdrawing the citizenship of nationals,” said Kather.
The legal consultant emphasises that states also need to look beyond criminal prosecution and consider “how people can be reintroduced to society and what were the root causes that led the person to join ISIS.”
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