Recently, reports on the case of the IS returnee Jennifer W. have again been circulating in the media:
After the Federal Public Prosecutor’s Office successfully appealed against the first judgement of the Munich Higher Regional Court (sentence of 10 years imprisonment) of 25.10.2021 (OLG München, judgement of 25.10.2021 – Az. 8 St 9/18) was successfully appealed and the Federal Supreme Court largely overturned the verdict in the sentence and referred the case back (decision of 09.03.2023 – 3 StR 246/22), the defendant was now sentenced to fourteen years’ imprisonment in a verdict of the Munich Higher Regional Court of 29.08.2023.
The Federal Supreme Court found that the Higher Regional Court had failed to recognise that the violation of several criminal laws by one offence generally had an aggravating effect on the punishment. Furthermore, it was considered questionable that the OLG had disregarded the inhuman motives and aims of the accused, which were apparent according to the findings of the verdict.
Jennifer W., originally from Lohne in Lower Saxony, joined the IS in 2014 and travelled to Syria at the end of August of the same year. In June 2015, she married Taha Al J., who was also later indicted, with whom she moved to Iraq shortly afterwards and held two Yazidi women, mother and daughter, in captivity there as “house slaves”. The two had been “bought” by Taha Al J. in Syria shortly before.
At the beginning of August 2015, Taha Al J. tied the five-year-old girl to an outside grille of a window in the courtyard of his house. The child could not support herself with her feet, so she was hanging from the grille and was exposed to direct sunlight and intense heat for a long time without protection.
As a result, the girl died. Jennifer W. did not intervene during the event, although she recognised the danger to the child’s life.
On the same day or shortly afterwards, Jennifer W. held a gun to the head of the mother who was grieving for her daughter and threatened to kill her if she did not stop crying.
The Munich Higher Regional Court based its assessment of criminal liability, inter alia, on international criminal law and convicted Jennifer W. inter alia of two crimes against humanity by enslavement (in one case resulting in death) and of aiding and abetting by omission to attempt the crime against humanity by killing and the war crime against persons by killing.
Why can persons be prosecuted in a German court for crimes they committed abroad? And why is the conviction in this context based on international criminal law?
According to sections 3 and 9 of the Criminal Code, the following applies: German criminal law applies to acts whose action and/or success take place in Germany (so-called territoriality principle).
The following norms define certain exceptions in which provisions of the StGB apply due to special circumstances even if the place of commission is not in the Federal Republic. However, there is no mention of the applicability of international criminal law.
The answer can be found in the International Criminal Code itself, more precisely in the so-called principle of international law, which finds its expression in section 1 of the International Criminal Code: The International Criminal Code applies even if the corresponding acts are committed abroad and have no connection to Germany.
This means that even if Jennifer W. was not a German citizen, she could have been charged before a German court for the acts she committed in Iraq.
The background to the German International Criminal Code is the implementation of the requirements of the so-called Rome Statute – an international treaty from 2002 that has since been ratified by 123 states.
The need to be able to prosecute crimes of a certain magnitude internationally and individually, even without a domestic connection, was first taken into account in treaty form in the context of the Nuremberg Trials in 1945/46; since then, international criminal law has continued to develop.
Thus, among other things, the crimes in connection with the Yugoslav wars and the genocide in Rwanda could be prosecuted internationally.
The value of such treaties under international law and their manifestations in national law is once again demonstrated in the case of Jennifer W., both on the level of the rule of law and on the individual level:
On the one hand, it succeeds in consistently foreshadowing the numerous crimes committed by the IS against the Yazidi minority in Iraq, regardless of the location or nationality of those involved.
On the other hand, for the mother of the murdered girl, who was able to appear as a joint plaintiff in the trial in Munich, there is at least a certain possibility through the criminal trial to give expression to her suffering and to come to terms with what she has experienced to a certain extent.