There is a lack of the recognition of gender-specific harm of international crimes committed by ISIL.
Alexandra Lily Kather is legal advisor, legal researcher and investigator in the field of international criminal justice. Her work aims to embody an intersectional approach to investigation or research design as well as in her work with affected persons, communities and partners.
She studied European law, international law and international criminal law at the University of Groningen (Netherlands) and previously worked at the British Institute of International and Comparative Law as well as at the International Law Programme at Chatham House. After a legal traineeship at the European Center for Constitutional and Human Rights (ECCHR) in summer 2016, she has worked as a legal advisor and now consultant in the International Crimes and Accountability program with a particular focus to advance accountability for sexual and gender-based crimes. From January 2021 she will be a Visiting Fellow at the Unit for Global Justice at Goldsmiths University London and the Center for Fundamental Rights at Hertie School of Governance Berlin conducting a research project on intersectionality as a method to enhance international criminal investigations and prosecutions.
Interview conducted by Sarah Michot
The indictment includes charges of, inter alia, 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 (Section 6 (1), No. 1-3 CCAIL). In addition, Taha A.J has been indicted with the crimes against humanity of killing, enslavement, torture, and deprivation of liberty (Section 7 (1), No. 1, 3, 5 and 9 CCAIL); and the war crimes of killing and torture of persons (Section 8 (1), No. 1 and 3 CCAIL). Thus far and until this day, these are the charges against the accused.
1. What are first observations that can be shared about the first trial worldwide addressing the crime of genocide committed against the Yazidi?
These are the charges against the accused for his role and involvement in crimes committed against the Yazidi. The case is remarkable in many ways: Firstly, it shows that the arms of justice can be long, and that the international justice project can work and that a universal jurisdiction model which seldom materialises, can do so: investigation, arrest warrant, arrest, extradition, trial. Secondly, it is the first time the genocidal intent of a suspect involved as a member of ISIL in the commission of international crimes against the Yazidi is being examined; not only the accused but also his wife is on trial concerning her own involvement, particularly in the enslavement and treatment of the mother and girl, the latter of which was killed in the home of the couple.
Yet, I’d like to draw on some concerns – regarding this case and others. We know from the Taha A. indictment that: “The purchase as well as the subsequent enslavement by the accused took place with the intention of destroying the Yezidis, their religion and culture in accordance with the aims of ISIL.” Although the international crimes of the slave trade and slavery (in the form of both forced labour and sexual slavery) constitute an integral part in the way the genocide and crimes against humanity have been committed against Yazidi females, it remains unclear to what extent the criminal conduct of the slave trade has been included in the investigations and how the slave trade has been legally characterized in the charges. It will be up to lawyers representing affected survivors, experts and civil society groups to continuously highlight the need to focus on the slave trade aspect in the cases already on trial now and others going forward in the future. I refer here to the work of Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum, in particular their article entitled “Missing in Action: The International Crime of the Slave Trade.”
Besides, thus far, there is an absence of cases addressing sexual violence, more specifically, sexual slavery of Yazidi females, women and girls, by ISIL.
Further, there is a lack of the recognition of gender-specific harm of international crimes committed by ISIL. It is indisputable that Yazidi males and females – were separated and international crimes committed against them on grounds and in relation to their religion, ethnicity and gender – in a discriminatory fashion. For example, it was predominantly if not exclusively females subjected to the slave trade and slavery by ISIL. A reflection that enslavement has been committed as a form of gender-based persecution as crime against humanity is crucially missing in charges the case.
Lastly, the recognition of gender-specific harm of international crimes is met by what could be regarded as a gendered and therefore inconsistent prosecution practice or strategy. It is only female (not male) ISIL members who end up being charged with the war crime against property and other rights for living in houses taken from local (Iraqi) civilians by ISIL – whereas males living in very same houses have not been charged with that war crime. Interestingly, it is only females that were charged with crimes they committed against their own children. For example, Carla-Josephine S., indicted 9 October 2019, at the Higher Regional Court of Düsseldorf was charged with war crimes against persons, specifically the integration of a child under 15 years of age into an armed group in connection with a non-international armed conflict. Similarly, Omaima A.’s indictment includes the charges of violation of the duty of care and education (171) under the German Criminal Code.
Most recently, the repatriation of three women and 12 children from Northern Syria to Germany indicates a new level of cooperation between the authorities of Germany and the Kurdish Regional Government (KRG). One of the three women was arrested immediately upon arrival at Frankfurt airport on 20 December 2020 and despite having been a minor, namely 15 years of age when she joined ISIL six years ago, is now being suspected of membership of a terrorist organisation abroad, violating the Weapons Act and aiding and abetting enslavement as a crime against humanity. A repetition of such repatriations, with strong ties to and benefitting the international criminal investigation efforts by the Office of the German Federal Prosecutor, are to be expected in the future.
2. You’ve already mentioned that the commission of international crimes by ISIL against the Yazidi is gendered. For example, Yazidi women and girls have been relocated to Germany as part of special quota programs. Can you tell us more about that and how it affected the ongoing investigations?
From the beginning, there was a general recognition on the German State level that Yazidi women and girls have been particularly affected through the separation from Yazidi men and boys and as a result of the enslavement, sexual slavery and domestic servitude, that followed. A special quota program was put in place by the State of Baden-Württemberg, which was replicated in several other German states. Over one thousand Yazidi women and children were relocated to Germany in the context of this protection program, including medical and psychosocial support next to the relocation. A rather reasonable number of female survivors who were relocated to Germany through the program testified as witnesses in ongoing investigation proceedings. While there certainly were some improvements from the side of the authorities, such as all-female investigator and interpreter teams, some there is still a remarkable room for improvement. What we are now seeing in the first trial addressing the crime of genocide is that the gender-specific harm of the international crimes committed is not at all reflected in the way the crimes are being charged. So, for example, the crime of enslavement, which has a very clear gender-specific element to it, because it was predominantly, if not exclusively, women and girls that were enslaved for both domestic servitude but also sexual slavery, is not accumulatively being charged as the crime of persecution on the grounds of gender and religion.
Alexander Schwarz and I elaborated on this point in a contribution for Just Security. We comment that on the one hand, there is a recognition that Yazidi women and girls have been subjected to different international crimes than men and boys. Yet, when it comes to the legal characterization of such criminal conducted, this is not being acknowledged, which we argue is quite a detrimental aspect that needs to be considered and, of course, legally challenged by the legal teams representing the affected survivors, which has been done in one instance. 
3. My research has shown that the social construction of perpetrators, victims, and saviors may marginalize rather than empower the affected and that the Yazidis appear to focus to a greater extent on truth-telling, local reconciliation, and individual healing but the international community has largely been focused on institutional punitive justice. What is your opinion on the debate around Retributive or restorative forms of justice?
That’s definitely a line of thought I’ve been grappling with for some time now as well. While I do not have a concluding or definitive answer, my response would be that history has shown us that criminal justice in and by itself is not necessarily working extremely effectively. One of humanity’s biggest challenges for the future is to explore accountability that is not fundamentally built on the idea of incarceration. Moreover, I think criminal justice efforts needs to be driven by accountability demands from the affected survivors and communities at large, prosecutorial strategies ought to be survivor-informed. In addition, criminal justice efforts ought to be complemented by alternative justice efforts that are focused on restoration and healing and are in a position to offer a much larger space of engagement for those affected by international crimes and grave human rights violations.
The design of legal strategies needs to emerge and be built upon continuous exchange with a diverse group of partners and representatives from affected communities. In order to be effective and for accountability efforts to resonate with survivors and respective communities, legal strategies cannot be imposed. Instead, legal strategies need to be aligned as far as possible with the accountability demands arising from the affected communities.
There has indeed been a lot of discussions around local justice concerning the Yazidi. Organizations, such as the Free Yezidi Foundation, are involved not only in incredible support programs locally but are also increasingly involved in on-going justice and documentation efforts.
Concerning Germany, it is important to note that there is a large diaspora since the 1960s. To some extent there’s a local element for the communities and survivors in Germany and beyond. Yazidi are not merely and only survivors of a genocide that started in 2014. There has been an ongoing form of discrimination of religious minorities in the region for decades.
Certainly, universal jurisdiction proceedings are by no means ideal and come with quite a number of limitations – first and foremost to the detriment of survivors and affected communities. These range from translation, context-specific understanding of criminal conduct or customs, to participation possibilities during trials. Hand in hand with such limitations goes the recognition that ideally the place where these cases should be brought on trial is, of course, locally, where the crimes are being committed. For a variety of reasons this is not possible at the moment. Universal jurisdiction remains the third-best avenue but for now, it is the only avenue that exists.
One cannot underline enough the necessity of European investigators and prosecutors involved in accountability efforts to effectively reach out and be in regular contact with survivors, survivor groups and Yazidi organizations, to ensure that their prosecutorial strategy is in line with how the community essentially experienced the crimes committed and to build a pool of experts that can also be consulted as structural witnesses for investigation and prosecution purposes. There is such a wealth of information and analysis out there which doesn’t make its way to the desk of prosecuting authorities although it could immensely enrich their work.
4. In which way do you think, do accountability efforts contribute to a real feeling of justice for the victims, considering that many are traumatized, impoverished, despondent, and often illiterate?
The trials are being conducted in German indeed and there is an entire community that would be interested in the on-going developments. I think the key point here is that the German justice system thus far does not signal its understanding of the historical dimensions of such trials and their content. There is no interpretation in the public gallery of the courts, no official publication or summary of the trial days, no audio recordings. Consequently, it is up to civil society actors to organize trial monitoring and then find out ways how to communicate what has happened in the courtroom to the broader communities. The organization I am consulting for, ECCHR, has been taking up this role in relation to the first trial worldwide addressing international crimes committed by Syrian intelligence agencies. Amnesty International Germany, more specifically its thematic coordination group on international criminal law, has been monitoring the trial against Taha A. although the judge became increasingly irritated by the trial monitoring to the point where the publication of trial monitoring reports was no longer granted – without a legal basis. There is a lot that needs to be critically evaluated and (possibly legally) challenged in that regard.
5. What outcome of the trial do you expect for the victims? How do you work on expectation management?
A remarkable part my work is to effectively communicate the level of uncertainty around such accountability efforts – both in terms of outcome and timing. Initially, litigation is aiming for a first access to justice (institutions) for affected survivors rather than concrete outcomes such as arrest warrants or trials of high-level suspects, which remain the exception (although we can witness a revitalization of universal jurisdiction in recent years). These are the parameters in which collaboration between survivors, activists, human rights defenders, journalists and lawyers are taking place.
I have heard survivors talking about the fact that trough their role as testifying witnesses, respect or dignity that has been taken away from them by what has happened, the crimes committed against them, has been returned to some extent by authorities believing and listening to their accounts. Such are the very first steps in what will undoubtedly by a long path of justice – a word that means something different to almost every human on this planet and rightly so.
To be remembered as well is that there are immediate successes or goals on the way to a full-fledged criminal trial. For example, the initials collection, consolidation and analysis of information about crimes as evidence. A purpose that is being embraced by national prosecuting authorities in form of so-called structural investigation proceedings. Mechanisms such as the IIIM, UNITAD or the IIMM reflect the importance of such efforts. Collected information and prepared case files may become relevant in a particular jurisdiction in the future.
From what I’ve heard, it certainly means a lot to the Yazidi community that an accused has been indicted for the crime of genocide. I’m in awe of the persistency and tireless work of various Yazidi organizations involved in local support programs as well as documentation efforts. The same goes for other civil society organizations support the demands and needs of other religious minorities that have been subjected to international crimes as well. I think it means a lot to the Yazidi community to see someone on the bench now, being accused of the crime of genocide. It has a very different meaning than any State or the EU declaring that it was genocide. This is really the first time that a court of law will look at the crime of genocide, the acts that have been committed with genocidal intent, against the Yazidis in addition to crimes against humanity. We will see where it goes but this could be, and hopefully means the beginning of the end for the thus far uninterrupted impunity.
She gave this interview in her capacity as an international criminal justice expert and her views do not necessarily reflect those of the European Center for Constitutional and Human Rights (ECCHR).
 Alexandra Lily Kather and Alexander Schwarz, First Yazidi Genocide Trial Commences in Germany, Just Security, April 23, 2020, https://www.justsecurity.org/69833/first-yazidi-genocide-trial-commences-in- germany/?fbclid=IwAR3w4Twq17VTrbPeCI6KkovQL1f0XRT7siktW5TuaS6OreQD3DKTmuxSk_Y