Islamic State, Women, and Their Role as Perpetrators in International Criminal Law
In June 2023, the Koblenz Higher Regional Court handed down one of the most significant sentences to female Islamic State (ISIS) returnees. The verdict against Nadine K. included charges for her membership in a foreign terrorist organization, sexual enslavement as a crime against humanity, aiding and abetting genocide, crimes against humanity and the war crime of sexual violence.
This case reflects a development in the German court practice addressing the atrocities of the Syrian conflict. Although conducted in a more gender-sensitive and gender-specific manner, the investigation and prosecution of sexualized and gender-based violence against Yezidi women lacks a sufficiently systematic and nuanced dimension. At the same time, a gender-sensitive prosecution requires the disconnection of gender stereotypes when assessing the role of female ISIS affiliates as perpetrators. A more nuanced, gender-sensitive perception of their role may certainly lead to an increase in prosecutions against them for international crimes. Along this process, it is however important to consider the newly arising issues that are inherent to and caused by the underlying terrorism context.
Women in International Criminal Law – Traditionally Invisible, both as Victims and Perpetrators
Alongside 1413 male war crimes defendants, the War Crimes Statistics registers 16 female defendants. One might assume that so far women have barely committed international crimes. Whether this is true or grounded in the traditional invisibility of women in armed conflicts cannot be determined. Nonetheless, their traditional invisibility is most likely the reason why to this day capturing their specific vulnerabilities in war is still work in progress. It took decades to consider sexualized violence as a weapon of war. Only in 2022 the International Criminal Court historically elevated the importance of reproductive rights in armed conflict (Ongwen, Trial Judgment, paras. 2717, 2722; Appeals Judgment, paras. 1052); gender-based persecution is also given greater consideration. In Germany, claims for the better recognition of sexualized and reproductive violence by the German Code of Crimes against International Law (CCAIL) have just been incorporated in a draft bill by the German government.
Initially, crimes of ISIS female returnees have not been investigated and prosecuted under international criminal law. This reveals that their role as perpetrators of international crimes has been overlooked, although tackling it would serve the combat against gender stereotypes. Characterized by the paternalistic and traditionalist perception as insignificant, almost invisible bystanders, they are deprived of their agency. Disregarding the role of women role in ISIS may have been based on its characterization as an Islamic-jihadist organization. Unlike Marxist-oriented groups that seek to reform the state’s traditional social order including the liberalized role of women and live by these norms, Islamic-jihadist groups adhere to traditional, gender-hierarchical and gender-discriminatory ideas (Robison/Crenshaw, p. 2013; Wood/Thomas, pp. 34). However, this primarily concerns the combatant role and fails to consider the complexities of ISIS and its female members. Ironically, the education of children was decisive for the survival of ISIS since unlike other groups, it focused on continuity and longevity (Bloom/Horgan, p. 50). It is now clear that the role of women is not limited to housewifery and child-rearing in the sense of traditional IS ideology, but that they acted inside and outside ISIS territory by recruiting other women, disseminating propaganda, fundraising, and arranging marriages. Over the years, they also took on militant and moral policing roles and therefore, had a central role from the outset (Margolin/Winter, pp. 23.). This, in principle, justifies their increased prosecution.
The Development of German Judicial Practice
The investigation and prosecution of the crimes committed by ISIS by the German judiciary was not gender-sensitive from the outset both in terms of the victims and the perpetrators. Initially, in the investigations and convictions of crimes against female Yezidis who were persecuted by ISIS on the basis of their religion and gender and held captive as domestic and sex slaves, the judiciary and courts neglected the sexual violence and the discriminatory enslavement practices based on their gender that amount to gender-based persecution (Studzinsky/Kather, pp. 905). This has rightfully been criticized (here; here). More recent judgments of ISIS female returnees indicate a more gender-sensitive court practice; the different dimensions in which Yezidi women and girls are affected are considered more distinctively. In doing so, the perpetrator role of ISIS female returnees in international criminal law receives attention. While at first nearly all convictions of ISIS female returnees focused on the membership or support in a foreign terrorist organization, in 2019, Sabine S. was convicted of looting (war crimes against property) for inhabiting the homes of displaced or fled citizens for the first time. Several such convictions followed (here, here and here). Jennifer W. received a ten-year prison sentence for, among other things, the crime against humanity of enslavement, which was considered groundbreaking, although the court failed to consider its sexualized component. Equally groundbreaking was Sarah O.’s conviction. She was sentenced to several years’ imprisonment for gender-based persecution as well as for aiding and abetting rape as a crime against humanity. Jalda A. was found guilty of aiding and abetting genocide in 2022. While the sentence against Nadine K. captures the sexualized component of the enslavement of Yezidi women and girls, it does not grasp its gendered component, even though the fact that Yezidi women and girls had been enslaved because of their gender had already been adjudicated in the case of Sarah O. However, in the case of Nadine K., the judge emphasized her role as an agent: she had abused the young Yezidi woman as a slave in her own interest and enabled the rapes by her husband. As an intelligent and self-determined woman who had willingly joined ISIS, she would have been able and obliged to prevent the acts of violence.
Despite the remaining lack of a systematic approach, a development towards a gender-sensitive approach in the investigation and prosecution procedures of female ISIS returnees becomes visible. At the same time, female ISIS returnees are rightfully no longer prosecuted solely for terrorism offenses, but more frequently for crimes under international law. In some cases, female ISIS returnees have prevented Yezidi women and girls from fleeing, have acted physically violent themselves, and have enabled and supported their husband’s sexualized and gender-based violence. Therefore, the women’s conduct does not only constitute passive acts or mere membership or support of ISIS.
Perpetration as the Result of a Gender-Sensitive Role Assessment?
It remains however questionable whether the prosecution of female ISIS returnees under international criminal law, which is in principle positively received, can be accredited to the increased gender sensitivity and the will to overcome gender stereotypes, or whether it may at least partly be implicated in another aspect.
The investigation and prosecution of female ISIS returnees for crimes under international law reached a pivotal moment when the German Federal Court of Justice ruled that the mere presence in the war zone was not sufficient to meet the requirements for a membership or support in a foreign terrorist organization. By prosecuting their acts as looting, however, their responsibility under international criminal law was picked on – since they resided in the apartments at least. It should be noted that this legal appraisal was not motivated by the will to better protect the victims’ property under international criminal law since male ISIS-members were not prosecuted for the same conduct (Studzinsky/Kather, p. 907). Additionally, women are still predominantly assigned the gender-stereotypical role of the housewife and mother: A number of convictions were handed down for violations of the duty of care (§ 171 German Criminal Code (GCC)) and the child theft (§ 235 GCC) which were not limited to children taken from Germany. Only women have so far been convicted of the war crime of recruiting and using child soldiers, although ISIS recruited and used children including Yezidi boys systematically (Epik, pp. 35) and, unlike other armed groups, publicly (Mahmood, p. 9). It is thus a central crime committed by ISIS, regardless of the perpetrators’ gender.
These findings permit drawing the following conclusion: The change in the German court practice regarding the international criminal responsibility of female ISIS returnees also results from the group’s classification as ‘terrorist’. Because the Federal Court of Justice complicated the conviction of female ISIS returnees for membership and support in a terrorist organization, the prosecution of crimes based on the CCAIL provided a distinct venue for ascertaining their criminal responsibility. Thus, this development is not solely grounded in a gender-sensitive understanding of women and their role as perpetrators in international criminal law.
Without questioning the importance and obligation to prosecute the conduct by female ISIS returnees under international criminal law, the fact that their role as perpetrators has predominantly been recognized in the context of terrorism reveals that new problems are arising that must be taken into consideration.
Simplifications, Generalizations, and Reversed Narratives
The international duty to criminalize ‘terrorist’ acts gave rise to human rights and international humanitarian law violations in numerous contexts. Meanwhile, criminalization is often accepted by society and states because of the special nature of ‘terrorist’ acts: after all, one’s own state is a potential target. This punitive approach is equally imposed on vulnerable groups, such as women and children in armed conflicts. The dominant narrative of a generalized and simplified victim bears the risk to transform into an equally generalized and simplified ‘monster narrative’ that demonizes the perpetrators and disregards an adequate and differentiated assessment of their roles. This impedes a case-by-case analysis. A closer look at the treatment of children reveals the double standard that is applied to vulnerable groups as soon as they are considered affiliates of terrorism (Capone, p. 185). While the typical child soldier is regarded primarily as a victim that should not be held criminally responsible (Grossman, p. 323), this barely applies to child soldiers associated with terrorism. The victim narrative shifts to a monster narrative (Drumbl, p. 8; Denov, pp. 6), they are considered radicalized, ticking time bombs and a security threat. Detention and punishment have increased massively, worldwide. The case of the former British ISIS supporter Shamima Begum illustrates this polarization well. For some, she was seen as a groomed victim, yet, the majority considered her a security risk resulting in the revocation of her British citizenship. German courts also prosecute ISIS child soldiers regardless of their forced recruitment experiences, age and status, even though the Children’s Rights Committee stated that they should be treated primarily as victims (General Comment No. 24, para. 100). On a positive note, in the case against Cebrail Ö. the court recognized his dual role as victim and perpetrator and only convicted him for crimes committed as an adolescent.
The roles and motivations of women in ISIS are extremely complex and diverse. They range from convinced perpetrators to forced participants. Simplifications and generalizations based on a false victim narrative are as harmful as opposite generalizations and hasty assumptions. Despite the need for the appropriate prosecution of criminal conduct by ISIS female returnees under international criminal law, where applicable the young age at the time of departure must be considered. In some cases, they were as young as 15 which qualifies as child soldiers and therefore primarily as victims under human rights law. A case-by-case analysis further requires considering the grooming methods that ISIS used for recruitment, especially among younger people. It applied methods that are typically used by pedophile perpetrators (Bloom/Horgan, pp. 74). Not all ISIS affiliates have necessarily internalized the ideology. Driving factors for joining terrorist groups are often not hatred against others but love for the family, pressure, coercion, the fact that their closest family members hold this ideology, and the search for a sense of community and identity. This could be seen in the case of Jalda A. who fled war and violence by the Taliban as a traumatized child and had a brother who was active in Islamist circles. However, the court stressed that even if not a Salafist herself, she had other options and was thus responsible for her actions.
As important as the recognition of female ISIS returnees’ responsibility for international crimes is, their participation must also be understood in light of larger contextual factors such as sexism, misogyny, patriarchal structures, as well as gender and social injustices.
Perpetuating, Not Combating Gender Stereotypes
Additionally, women associated with terrorism tend to be sensationalized. They must be crazier and more psychopathic than their male counterparts. As a consequence, they are demonized. Ultimately, this demonization stems from the gender stereotype of the ‘soft’, passive, caring victim, whereby their affiliation with ‘terrorist’ groups or activities seems less likely (Bloom, p. 4). Focusing on women as perpetrators in the context of terrorism therefore even bears the risk of perpetuating instead of combating gender stereotypes (Margolin/Winter, p. 9).
A gender-sensitive strategy for the prosecution of crimes under international law that also relies on women as perpetrators aligns with human rights law and is essential to dismantle gender stereotypes. Simultaneously, it is equally important to consider the risks inherent to acts committed in a terrorism context, especially bearing the increasing trend of cumulative charging in Germany in mind. It is crucial to adopt a case-by-case analysis that is cognizant of mitigating circumstances and not driven by demonization and stigmatization attached to the terrorism context which is obscuring the complex realities of every individual case. Particularly in times of increasing misogyny, islamophobia and racism, it is of utmost importance to raise awareness for the issues related to terrorism.