Over the past years, Germany has successfully secured verdicts and conducted trials related to core international crimes committed in Syria and Iraq as well as in Rwanda and Gambia. The prosecution of crimes against humanity has been central to these efforts. German courts convicted members of the regime of Bashar al-Assad as well as foreign terrorist fighters, male and female, most of them cumulatively, for membership in a terrorist organization and crimes against humanity.
Focusing on the atrocities members of ISIS committed—for example, against the Yazidis—police, prosecutors, and judges faced many challenges. Questions that had to be answered were:
- How to prove the widespread and systematic attack of ISIS against Yazidis?
- How to identify perpetrators – especially those who could be tried in Germany?
- How to cooperate effectively with a wide variety of stakeholders?
- How to prove intention of individual male or female ISIS members who committed acts of murder, torture, rape, and enslavement against Yazidis.
These questions had to be raised at every step of the way – at the beginning of building a criminal case, during the preliminary investigation against individual suspects, as well as at the trial proceedings.
Looking at the contextual elements – the widespread and systematic attack – we established the grounds for suspicion of core international crimes by witness testimony of many Yazidi witnesses in Germany who were able to name and describe higher-ranking ISIS fighters who were involved in the initial attack on the Sinjar region of Iraq in August 2014 and who were involved in the initiation of the slave trade with Yazidi women and girls. However, we faced the problem that it would be a huge challenge to bring cases to court as it was so difficult to build a case against individuals with a link to Germany.
The first trials for ISIS-crimes against Yazidis started in 2019 and 2020 against three female ISIS members. In the course of the investigation into the terrorist crimes of these three returnees, the cooperation with several NGOs, especially YAZDA, brought to light that Yazidi slaves were held captive in their households. So, we cumulatively charged these women with the crime against humanity of murder, enslavement, torture, and aiding and abetting rape.
At the time of the trials, we had established the facts for the contextual elements by collecting many witness statements of Yazidis, police reports, ISIS documents, and NGO and expert witness reports. The question was: how was the evidence going to be introduced into the court proceedings?
According to German procedural law everything of relevance for the assessment of someone’s guilt has to be part of the court hearings. As the witness statements of more than 100 Yazidi witnesses built the foundation of our general findings, we were aware that German courts might think it necessary to have many Yazidi witnesses testify about the atrocities they endured, even if they were not directly affected by the acts of the defendants. This was something we didn’t want to happen as it would have caused a lot of stress for many witnesses and the risk of re-traumatization. Ultimately, proof of ISIS’ destructive agenda toward the Yazidi religion was found through other evidence. For example, the court heard statements from police officers who carried out numerous interviews with Yazidi witnesses about the killings during the initial attack on the Sinjar region as well as the established slave trade and the cruel treatment of women and girls. Furthermore, we presented police reports about documented ISIS attacks on Yazidi villages and cultural heritage. Expert witnesses also testified on the Yazidi religion and culture and on ISIS’ structure, the terrorist attacks and crimes it committed, and the group’s propaganda and aim to establish a global caliphate.
Having established the facts for the contextual element, German courts had to examine the evidence for the individual crimes committed by the defendants. Proving this was the most important part – and the heaviest task – and it rested on the shoulders of Yazidi witnesses who had to give evidence about the incredibly cruel treatment by their enslavers.
There were challenges to questioning Yazidi witnesses in court. First of all, there was the challenging situation for the witnesses: In Germany, it is not sufficient to resort to the protocol of the interviews taken during the preliminary investigation. So, in general, witnesses have to go through the painful process of testifying in court again. They are entitled to legal representation, but still the courtroom clearly is a difficult environment to speak about the most terrible events in their lives: They have to speak in the presence of the defendant, the defense counsels, the judges, the prosecutors, and, in most cases, the public, representatives of NGOs, and journalists.
Another challenge can be the lack of specialization of German courts. During the preliminary investigation a lot of specialists are involved in the process, like police officers from war crimes units, prosecutors, and experts. German courts, on the other hand, do not only deal with core international crime cases. They also try cases of Islamic extremists, right-wing and left-wing terrorism, espionage, and weapons proliferation.
When it came to inter-cultural competence, it proved to be very helpful that some of the court chambers in Germany took the time to become familiar with the specifics of the Yazidi cases. Before the Yazidi witnesses were heard, experts explained the religious and cultural background of the Yazidis. It led to the conclusion that exact details of age and time or perceptions in chronological order are atypical and cannot always be expected from Yazidi witnesses. Instead, classifications of time are typically linked to historical events and sensations. These explanations gave the judges the opportunity to adjust their way of questioning the witnesses.
Interpretation was another issue of the criminal proceedings. It was not always easy to find interpreters who speak the “Shingali-Kurmanji” dialect of the Yazidis of Sinjar, a dialect mixing Kurdish Kurmanji with Arabic.
In the end, Yazidi witnesses proved to be survivors in the courtroom as well. One of the witnesses testified in five different cases before Higher Regional Courts, contributing to five convictions. With great patience and resilience, they managed and tolerated endless interrogations by all parties. In every case, judges concluded that the Yazidi witness statements were reliable, credible, and authentic and courts based their convictions on their testimony.
More than 20 years of investigations have demonstrated that crimes against humanity can be effectively prosecuted under the provisions of Section 7 of the German Code of Crimes Against International Law. However, every conflict is unique and every investigation inevitably starts with huge problems. Solving these problems requires clear rules, creativity, and sometimes a lot of patience. Above all, international cooperation is indispensable. I cannot think of any aspect of prosecuting crimes against humanity where it has not been of significant importance to cooperate with international partners. International cooperation is a quintessential element at every step of the way toward holding perpetrators accountable for crimes against humanity. An international convention on prevention and punishment of crimes against humanity would be a visible step toward accountability.
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Great Job Stephanie Egerer-Uhrig & the Team @ Just Security Source link for sharing this story.
