14 years imprisonment for IS returnee Jennifer W. — The importance of the principle of world law

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.