Genocide
Crimes against humanity
War crimes
The defendant had been in Raqqa, Syria and was active there as the head of the IS office for Ruqya, a religious practice of exorcising spirits to heal suffering. In June 2015, the defendant bought Witness A, who belongs to the Yazidi religious group, and her five-year-old daughter, Witness B, as slaves in Syria. They had been captured by members of IS during the attack on the Sinjar area in the summer of 2014.
The Defendant took Witness A and Witness B to Falluja in Iraq, where he forced them to stay for several weeks in the house he shared with Witness C. There, A and B were subject to the instructions of the defendant, who completely ruled over their lives, forbade them to leave the property, and chastised them on a daily basis in order to discipline them and keep them compliant, so that they lived in constant fear of him.
Under the living conditions dictated by the defendant, Witness A and B suffered both physically and psychologically to a great extent. One day, the defendant asked Witness A to stand barefoot on the stone floor of the courtyard surrounding the house in the sun in order to punish and discipline her again. Daytime temperatures in Falluja at that time ranged from 38.1 to 51 degrees in the shade. At the defendant's behest, Witness A went back into the house after a while and, as instructed, turned her attention back to the cleaning work on the first floor of the house. Meanwhile, the defendant was angry because the child had urinated on a mattress due to illness. In order to punish and discipline B as well, the defendant tied the five-year-old child to the outer grating of the living room window. B was exposed to direct sunlight and could not move. When he went back the child was found dead due to a heat stroke.
The defendant's wife, Witness C, was a defendant in another proceeding. She was convicted and sentenced to 10 years in prison for crimes against humanity in relation to the facts mentioned above.
Iraq
Syrian Arab RepublicOberlandesgericht
The defendant is a member of one of the largest family tribes in Iraq, the "F tribe", and grew up in his parents' household, initially in Falluja, together with his two brothers and three sisters. The defendant's father is also Iraqi. Under Saddam Hussein's regime, he was in prison for ten months as a political prisoner. The defendant's mother is of Kurdish descent and illiterate. She took care of the family's household. The defendant's upbringing was characterized by violence, which was normal in his social environment. He learned how to handle weapons as a child.
In Falluja, the defendant initially attended elementary school, followed by secondary school. After U.S. forces invaded Iraq in 2003, his family fled with him to Baghdad to escape the war. After about six months, they fled on to Damascus, Syria, where his family stayed with him for about four and a half years and he continued his schooling. Before the outbreak of the civil war in Syria in 2011, he moved back with his family to Falluja in Iraq. There, he continued to attend school, attained a middle school diploma, and eventually finished school after the 11th grade. In the course of the civil war in Iraq he participated in demonstrations.
He is the father of a child, born in 2016 in the Federal Republic of Germany, who is the result of his union with witness C, which was concluded according to the Islamic rite. He has had no contact with his child for four years.
Genocide
Section 6 – Genocide
(1) Whoever with the intent of destroying as such, in whole or in part, a national, racial, religious or ethnic group
1. Kills a member of the group,
2. causes serious bodily or mental harm to a member of the group, especially of the kind referred to in section 226 of the Criminal Code,
…
Shall be punished with imprisonment for life.
…
The defendant was guilty of genocide pursuant to Section 6 (1) No. 2 of the Criminal Code in that, with the intention of destroying the Yazidi religious group as such, in whole or in part, he inflicted serious physical and psychological damage on Witness A and her daughter B as members of the group.
Crimes against humanity – Enslavement and trafficking in human beings
Section 7 – Crimes against humanity
(1) Whoever, as part of a widespread or systemic attack directed against any civilian population,
…
3. traffics in persons, particularly in women or children, or whoever enslaves a person in another way and in doing so arrogates to himself a right of ownership over that person,
…
Shall be punished, in the cases referred to under numbers 1 and 2, with imprisonment for life, in the cases referred to under numbers 3 to 7, with imprisonment for not less than five years, and, in the cases referred to under numbers 8 to 10, with imprisonment for not less than three years.
…
(3) Where the perpetrator causes the death of a person through an offence pursuant to subsection (1), numbers 3 to 10, the punishment shall be imprisonment for life or for not less than ten years in cases under subsection (1), numbers 3 to 7, and imprisonment for not less than five years in cases under subsection (1), numbers 8 to 10.
With respect to Witness A and her daughter B, the defendant intentionally committed the single offense of enslaving both of them by assuming a right of ownership over them and of trafficking them within the meaning of Section 7 (1) no. 3 of the Criminal Code.
Crimes against humanity - Torture
Section 7 – Crimes against humanity
(1) Whoever, as part of a widespread or systemic attack directed against any civilian population,
…
5. tortures a person in his or her custody or otherwise under his or her control by causing that person substantial physical or mental harm or suffering where such harm or suffering does not arise only from sanctions that are compatible with international law,
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Shall be punished, in the cases referred to under numbers 1 and 2, with imprisonment for life, in the cases referred to under numbers 3 to 7, with imprisonment for not less than five years, and, in the cases referred to under numbers 8 to 10, with imprisonment for not less than three years.
…
(3) Where the perpetrator causes the death of a person through an offence pursuant to subsection (1), numbers 3 to 10, the punishment shall be imprisonment for life or for not less than ten years in cases under subsection (1), numbers 3 to 7, and imprisonment for not less than five years in cases under subsection (1), numbers 8 to 10.
The defendant intentionally tortured Witness A and her daughter B, whom he had in his custody and who were under his control, by causing them both considerable physical and mental suffering and by causing considerable physical damage to B and considerable mental damage to Witness A, which were not merely the consequence of sanctions permissible under international law.
Crimes against humanity – Infliction of severe physical or mental harm
Section 7 – Crimes against humanity
(1) Whoever, as part of a widespread or systemic attack directed against any civilian population,
…
8. causes another person severe physical or mental harm, especially of the kind referred to in section 226 of the Criminal Code,
…
Shall be punished, in the cases referred to under numbers 1 and 2, with imprisonment for life, in the cases referred to under numbers 3 to 7, with imprisonment for not less than five years, and, in the cases referred to under numbers 8 to 10, with imprisonment for not less than three years.
…
(3) Where the perpetrator causes the death of a person through an offence pursuant to subsection (1), numbers 3 to 10, the punishment shall be imprisonment for life or for not less than ten years in cases under subsection (1), numbers 3 to 7, and imprisonment for not less than five years in cases under subsection (1), numbers 8 to 10.
The defendant intentionally caused serious physical damage to B and intentionally caused serious psychological damage to witness A.
Crimes against humanity – Severe deprivation of physical liberty
Section 7 – Crimes against humanity
(1) Whoever, as part of a widespread or systemic attack directed against any civilian population,
…
9. severely deprives, in contravention of a general rule of international law, a person of his or her physical liberty, or
…
Shall be punished, in the cases referred to under numbers 1 and 2, with imprisonment for life, in the cases referred to under numbers 3 to 7, with imprisonment for not less than five years, and, in the cases referred to under numbers 8 to 10, with imprisonment for not less than three years.
…
(3) Where the perpetrator causes the death of a person through an offence pursuant to subsection (1), numbers 3 to 10, the punishment shall be imprisonment for life or for not less than ten years in cases under subsection (1), numbers 3 to 7, and imprisonment for not less than five years in cases under subsection (1), numbers 8 to 10.
With regard to Witness A and her daughter B, the accused also intentionally severely deprived them of their physical freedom in violation of a general rule of international law.
War crimes - Torture
Section 8 – War crimes against persons
(1) Whoever in connected with an international armed conflict or with a conflict not of an international character.
…
3. treats a person who is to be protected under international humanitarian law cruelly or inhumanly by causing him or her substantial physical or mental harm or suffering, especially by torturing or mutilating that person.
The defendant intentionally treated the witness A and her daughter in a cruel and inhumane manner by inflicting substantial physical and mental suffering or substantial physical and mental damage.
War crimes – Aiding and abetting deportation/forcible transfer
Section 8 – War crimes against persons
(1) Whoever in connected with an international armed conflict or with a conflict not of an international character.
…
6. deports or forcibly transfers, by expulsion or other coercive acts, a person who is to be protected under international humanitarian law and lawfully present in an area to another State or another area in contravention of a general rule of international law
By transferring Witness A and her daughter B from Syria to Iraq, the defendant further committed aiding and abetting a war crime against persons.
Witness A claimed compensation from the defendant for her own non-material damages suffered as a result of the defendant's treatment and as a result of her daughter B's death.
This case presents several interesting issues.
In this landmark trial, Iraqi national Taha A.-J. was convicted of genocide, crimes against humanity and war crimes following his enslavement and abuse of Yazidis in Fallujah, Iraq. This represents the first conviction of an ISIS member for genocide anywhere in the world. The Court further found that the defendant intentionally committed the single offense of enslavement and trafficking of the victims as per Section 7 (1) no. 3 of the Criminal Code entitled “Crimes against Humanity”.
Additionally, in this case, the German courts applied the principle of universal jurisdiction, which allows states to claim jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the nationality of the accused or of his country of residence. In this case, the crime was not committed on German territory, and neither the defendant, nor the victims were German nationals. Germany applied Article 1 of the Code of Crimes against International Law (Völkerstrafgesetzbuch) which provides that “This Act shall apply to all criminal offences against international law designated under this Act, to offences pursuant to sections 6 to 12 even when the offence was committed abroad and bears no relation to Germany. For offences pursuant to section 13 that were committed abroad, this Act shall apply independently of the law of the place where the act was committed if the perpetrator is German or if the offence is directed against the Federal Republic of Germany.”
Finally, this case involves the use of electronic evidence, including history of Facebook Messenger messages and recordings of oral conversations with a tablet.