August 2014 saw an estimated total of 3,100 members of the Yazidi population of Mount Sinjar killed and 6,800 members captured by members of the Islamic State of Iraq and Syria (also referred to as ‘ISIS’, ‘ISIL’ or ‘Da’esh’). Those captured were then tortured, sold as sex slaves, and/or forced to convert to Islam at the pain of death. In 2016, the Independent International Commission of Inquiry on the Syrian Arab Republic (‘IICISAR’) unequivocally declared that ‘ISIS has committed, and continues to commit, the crime of genocide, as well as multiple crimes against humanity and war crimes, against the Yazidis.’

Despite a general acceptance of the fact that ISIS has perpetrated international crimes against the Yazidis, prosecuting those responsible for such atrocities has not been straightforward. Six years on, however, the universal jurisdiction avenue is offering some hope for accountability.

Universal jurisdiction

Universal jurisdiction is most widely exercised for the prosecution of the most serious international crimes, such as genocide, crimes against humanity, and war crimes. It enables the prosecution of crimes which are not linked in any way to the prosecuting State. Article VI of the Genocide Convention specifies that genocide ‘shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.’ However, legal commentators have consistently argued that customary international law recognises the universality of jurisdiction for genocide, even if there is no State practice to support this contention. Moreover, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda have both acknowledged that universal jurisdiction exists for core international crimes, including the crime of genocide.

The past decade has seen an expansion of universal jurisdiction cases worldwide. Numerous Special War Crimes Units have been established throughout Europe to prosecute international crimes and/or terrorism offences, including cases involving ISIS. A 2019 study found that since 2014 there have been no less than 53 ISIS-affiliated prosecutions and no less than 14 convictions in jurisdictions around the world. A good number of these prosecutions are still ongoing. The crimes in these cases vary between terrorism, recruitment for a terrorist organisation, financing a terrorist organisation, membership in a terrorist organisation, crimes against humanity and war crimes, to name a few.

The Al J. Trial in Frankfurt

24 April 2020 marked a ground-breaking turning point in the search for accountability for the Yazidi genocide. The first universal jurisdiction trial ever to address the crimes committed against the Yazidi community and to include the crime of genocide as one of the charges commenced in Frankfurt am Main.

The case concerns an Iraqi ISIS member (Al J.) who is charged with murder and human trafficking under the German Criminal Code. He is also accused of having committed the following grave crimes under the Code of Crimes Against International Law which implements the Rome Statute into German criminal law: the genocidal acts of killing, causing serious bodily or mental harm, and inflicting on the group conditions of life calculated to bring about their physical destruction in whole or in part; killing, trafficking or enslavement, torture, and deprivation of liberty as crimes against humanity; and the war crimes of killing and torture of persons.

According to the indictment, Al J. had purchased a Yazidi woman and her 5-year-old daughter, enslaved them at an ISIS base in Syria in 2015 and forced them to convert to Islam, with the intention to destroy the Yazidi religion in accordance with ISIS’ ideology. The regular abuse and punishment inflicted on the child allegedly caused the 5-year-old girl’s death. In order to prove that the crime of genocide has been committed in this case, the German prosecutors must first prove that the child was in fact killed, and then prove that this killing was done with the intent to destroy the religious group that she belonged to.

Justice at last for the Yazidis?

One of the main challenges of such a universal jurisdiction trial lies in the collection and preservation of field evidence, specifically from Sinjar where the Yazidi genocide was predominantly committed. However, while direct evidence is generally granted a higher probative value, circumstantial evidence has also been accepted by international courts (see Bemba, para. 239). In cases where it is difficult to access the affected geographical area, aerial imagery has been relied upon as evidence (see Tolimir, Blagojevic & Jokic, and Popovic).

Notwithstanding the potential evidentiary challenges, the Al J. trial represents a remarkable commitment to international justice and a golden opportunity for the German regional courts to set a good example for other domestic and regional legal systems to hold accountable those responsible for the atrocities committed against the Yazidis.

That said, however, one major shortcoming can be observed. The indictment could have made reference to the gendered harm of genocidal acts against the Yazidis, such as sexual slavery or the fact that it was predominantly females that were enslaved as domestic workers. Indeed, sexual violence against Yazidi women and girls is an integral component of the commission of genocide of the Yazidi community. For this reason, it is even more important that the German court extends the charges to include persecution on intersecting religious and gender grounds so as to adequately acknowledge the gendered harm experienced by the Yazidi community as part of the genocidal campaign launched by ISIS. This would serve as a valuable model for future universal jurisdiction Yazidi Genocide trials.