War crimes charges brought for seizure of property in non-international armed conflict

Published: 11 July 2019  Author: Rosie Good  DOI: 10.17176/20220113-162945-0

On 3 April 2019, an indictment was brought against German national Mine K. before the State Security Senate of the Higher Regional Court of Düsseldorf. The Federal Prosecutor alleges that Mine K. joined the foreign terrorist organisation Islamic State (“IS”) through a video-call marriage to an IS fighter in January 2015. Subsequently, she travelled with her young son and new husband to Mosul, Iraq, where her husband earned about 250 USD a month as an IS fighter. In August 2015, they moved to the city of Tal Afar in Iraq. The city and surrounding area had already been conquered and occupied by the Islamic State in June 2014. The terrorist organization placed houses in the city under their administration after their rightful inhabitants had fled or been driven out by IS fighters. The family of the accused received one of these houses for use. They moved willingly into the house in order to consolidate the territorial claim of the organization, and to make recapture by opposing military forces more difficult.

The accused was indicted, inter alia, for being a member of a foreign terrorist organisation and for committing a “war crime against property” by appropriating, to a considerable extent, property of the opposing party to an armed conflict without this being required by the necessities of the armed conflict. The indictment was based on section 9(1) of the German Code of Crimes against International Law (“CCAIL”), which reads as follows:

“Whoever in connection with an international armed conflict or with an armed conflict not of an international character pillages or, unless this is imperatively demanded by the necessities of the armed conflict, otherwise extensively destroys, appropriates or seizes property of the adverse party contrary to international law, such property being in the power of the perpetrator’s party, shall be punished with imprisonment from one to ten years.”

The provision is to give effect to the protection of private property during armed conflict. It generally mirrors Article 8(2)(a)(iv), (b)(xiii), (b)(xvi), (e)(v) and (e)(xii) of the Rome Statute of the International Criminal Court.

The provision is equally applicable to international armed conflicts and armed conflicts not of an international character, such as the fight against the Islamic State in Iraq. The property in question belonged to a Shiite family which had been driven from their home by the mainly Sunni IS fighters. As such the family’s home qualifies as “property of the adverse party.”

The accused was taken into custody on 17 October 2018 upon attempt to re-enter Germany. The trial is scheduled to start before the Higher Regional Court of Düssseldorf on 12 August 2019 and is expected to last until 29 October 2019 (Case No. III-2 StS 2/19).