Peace Consulting

Germany: Frankfurt Court Finds a Former Islamic State Member Guilty of Genocide for Crimes Committed Against the Yazidi Minority Based Upon Universal Jurisdiction

By <b><br>Dr Marta Katz-Turi</b>

Dr Marta Katz-Turi

Frankfurt’s Higher Regional Court sentenced a former Islamic State member, Mr. Taha Al-Jumailly, to life imprisonment for the killing of a 5-year-old Yazidi girl, marking the first conviction for committing genocide against the Yazidi religious community by a former Da’esh/ISIL member. The verdict was delivered on December 9, 2021, following a 19-month trial in Frankfurt, Germany.

Mr. Taha Al-Jumailly, 29, an Iraqi citizen, was found guilty of genocide and war crimes resulting in death, at the court in Frankfurt. He was ordered to pay the child’s mother $57,000 in damages. He was indicted based upon universal jurisdiction as the crimes were not committed in Germany. Mr. Al-Jumailly was arrested in Greece based upon a European arrest warrant against him and then transferred to Germany to face trial. His 30-year-old German wife, Ms. Jennifer Wenisch, was sentenced last month in Munich, in a separate trial, to 10 years imprisonment for crimes against humanity.

According to the indictment, Mr. Al-Jumailly joined the Islamic State sometime before March 2013. He and his wife were accused by prosecutors of purchasing the child, Reda, and her mother as “slaves” when they lived in the Islamic State-occupied Iraqi city of Fallujah in 2015. Both Reda and her mother were subjected to violent beatings and other abuse by Al-Jumailly.

This conviction marks a significant moment in global efforts to deliver accountability for international crimes committed by Da’esh/ISIL, and in particular for achieving justice for the victims and survivors of the horrific acts that were carried out against the Yazidi community. For the first time in a judicial judgment, we see these crimes called what they were: genocide. Victims have already waited so long but this provides hope of what can be achieved.


What was the charge against Mr. Al-Jumailly that resulted in the conviction of the crime of genocide by a German court?

The child’s mother, who was represented by London-based rights advocate, Mrs. Amal Clooney, gave evidence in both trials. She described how Al-Jumailly tied her daughter to a window grill outside the home as punishment, where she then died of thirst in temperatures that reached 124 degrees Fahrenheit.

The landmark ruling gives a small glimpse of accountability in relation to the Islamic State’s attempts to wipe out and enslave Iraq’s Yazidis, after the group took over vast swaths of the country in 2014. As the militants swept through villages around the Yazidi ancestral home of Mount Sinjar in northern Iraq, they slaughtered men and dumped them in mass graves, and rounded up women and children to be bought and sold as slaves.

In May 2021, the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) said it had found clear and convicting evidence that the Islamic State had committed genocide against the Yazidi minority. In fact, UNITAD has recently concluded a structural investigation into crimes against the Yazidi community in Sinjar, with its initial findings presented to the Security Council in May 2021. These confirmed that the Team had found clear and convincing evidence that the crimes committed against the Yazidis constituted genocide, as was also reflected in today’s judgment. It is interesting to note that the Head of UNITAD is currently Mr. Christian Ritscher, a German federal prosecutor, who, in his previous function, acted as the German Prosecutor in Germany responsible for the genocide case before the Frankfurt Court. The previous head of UNITAD was Mr. Karim Ahmad Khan, from 2017 to 2021, who was recently appointed as The Prosecutor of the International Criminal Court at The Hague.

Furthermore, UNITAD provided further support to German prosecutors in this case by engaging with witnesses in Iraq and was able to help confirm that documentation purportedly indicating the deceased Yazidi girl had survived were fraudulent. This was decisive information in the case before the court.


What happened to the Yazidis under ISIS in Iraq?

Da’esh/ISIL once controlled 88,000 square km of territory stretching from eastern Iraq to western Syria and brutally ruled almost eight million people. In August 2014, ISIL militants swept through Iraq’s northwestern Sinjar region, which is the homeland of the Yazidi religious community.

In numerous Yazidi villages, the populations were rounded up. Men and boys over the age of 14 were separated from the women and girls. The men were then led away and shot, while the women were abducted. Some of the Yazidi girls and women, who later escaped from captivity, described being openly sold and handed over as “gifts” to Da’esh/ISIL members. They were violently and regularly raped, often by different men, and over a prolonged period. Da’esh/ISIL is believed to have killed more than 3,000 Yazidis and captured 6,000 others.

According to United Nations estimates, 7000 Yazidi women and children were enslaved and sold by Da’esh/ISIL, and many remain missing.


What is the background of the case? How were the Yazidi child and her mother captured in Iraq?

The victim’s mother, who is now in a witness protection program in Germany, was from the northern Iraqi village of Kocho, near the foot of Mount Sinjar, once home to around 1,700 Yazidis. She was captured with her daughter by the militants in the summer of 2014, according to court documents.

After being bought by the defendant, the mother and child were held for several weeks in the house in Fallujah. The accused forced them to participate in prayers and renamed the child “Rania.” The defendant punished them on various occasions and sometimes without a specific reason — and in particular used corporal punishment. At one point, Al-Jumailly “loaned” Reda to a male acquaintance overnight, court documents said.

Court documents said that after Mr. Al-Jumailly left Iraq for Syria in 2018 he had been in touch with another Islamic State member about manufacturing explosives. He left Turkey for Greece in 2018, where he was arrested the following year, before being extradited to Germany.


How does universal jurisdiction work in Germany?

The prosecution used the principle of universal jurisdiction, which allows for the prosecution of crimes committed overseas, out of German territory, when charges are deemed sufficiently grave. Germany has become a hub for such prosecutions, with more than a million refugees, who arrived during 2015, bringing witnesses, victims, and perpetrators to the country. The verdict is subject to appeal. In addition to Al-Jumailly and Wenisch, German courts have convicted three other former Islamic State members of aiding and abetting crimes against humanity against Yazidis.

In this case, there is an important legal characteristic. The Iraqi man was not even on German soil when he was arrested, and he is not a German citizen, nor was the crime committed on German territory. The German federal prosecutor had him arrested in Greece and extradited to Germany.

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