Published: 01 June 2019 Author: Stefan Talmon
On 9 April 2019 the first-ever war crimes trial against a member of the “Islamic State” started before the Higher Regional Court of Munich. The Federal Prosecutor alleges that Jennifer Wenisch, a German national, joined the decision-making and command structure of the foreign terrorist organization Islamic State (“IS”) in Iraq in September 2014. From June to September 2015, she patrolled parks in IS-occupied Fallujah and Mossul as a member of the IS morality police, enforcing rules of conduct and dress code for women. In order to intimidate she carried a Kalashnikov assault rifle, a pistol and an explosives vest. For her services she received a monthly salary from the Islamic State of some US$70 to 100. According to the indictment, it was during the summer of 2015 that the accused and her husband “bought a five-year old [Yazidi] girl out of a group of prisoners of war and subsequently kept the child in their household as a slave.” After the girl fell ill and wet her mattress, the husband of the accused chained her up outside as punishment and let the child die an agonizing death of thirst in scorching heat. The accused allowed her husband to do so and did nothing to save the girl.
Jennifer Wenisch was indicted, inter alia, for cruelly killing a person out of base motives as member of a foreign terrorist organization, and thereby committing a war crime under section 8 (1) of the German Code of Crimes against International Law (“CCAIL”). The provision reads as follows:
“Whoever in connection with an international armed conflict or with an armed conflict not of an international character
1. kills a person who is to be protected under international humanitarian law […] shall be punished, in the cases referred to under number 1, with imprisonment for life […].”
Section 8 (6) of the CCAIL defines “persons who are to be protected under international humanitarian law.” The provision distinguishes between international armed conflicts and armed conflicts not of an international character. The fight against the Islamic State in Iraq is to be considered as an armed conflict not of an international character. Consequently, the persons qualifying for protection under international humanitarian law include “persons taking no active part in the hostilities who are in the power of the adverse party.” The five-year old victim of the crime belonged to the Yazidi minority in Iraq which had been especially targeted by the Islamic State in a genocidal campaign in the summer of 2014. As such, she qualified as a person protected under international humanitarian law.
The trial was adjourned soon after it began. When it was resumed on 29 April 2019 the Court indicated that the acts in question may also qualify as crimes against humanity. The hearings are initially scheduled until 30 September 2019.
Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from 20 Essex Street, London. He is the editor of GPIL.
Prof. Dr. Stefan Talmon LL.M. M.A