“ISIS Brides” and State Failure to Screen for Human Trafficking in Violation of International Law and Transnational Anti-Trafficking Regimes

[Caroline Fish is an attorney admitted to practice in New York State and Licensed Master of Social Work, who has worked on issues of gender-based violence since 2009 and written on legal issues related to human trafficking.]

The story of Shamima Begum, who was 15 when she was groomed and recruited by ISIS fighters, captures popular attention today, but States have been struggling to develop a strategy for handling the return of ISIS-affiliated women and children for several years. A year ago, these cases were first highlighted in the United Kingdom (“UK”) when authorities arrested a young mother with her small son for attempting to return from living in ISIS-controlled territory in Syria.

Before that, in 2017, German authorities fought to stop Iraqi authorities from executing a 16-year-old ISIS recruit who was “groomed online,” joined the terrorist organization, and then imprisoned in Iraq (the effort to prevent the death penalty worked, and in February 2019, she was sentenced to 6 years imprisonment in Iraq). In December 2017, the United Nations Security Council (“UNSC”) adopted Security Resolution 2396 on national security concerns and appropriate responses to ISIS returnees, including the need for a “special focus” on procedures for returning women and children and “assisting women and children associated with foreign terrorist fighters who may be victims of terrorism.” Today, many ISIS-affiliated women and children are still being held in refugee camps, army camps, and prisons.

Yet, the State policies and practices that predominate in response to ISIS returnees have failed to appropriately screen for human trafficking and, without such screening, may be excessively punitive. Without recognition of the link between human trafficking and terrorism and appropriate assessment of returnees, States’ risk being in violation of their obligations under international law. Thus, an imminent question is how States should assess whether an ISIS returnee is a victim of human trafficking in compliance with their international legal obligations.

            State Responses to ISIS Returnees

When it comes to Muslim women and girls recruited by ISIS, national responses are predominantly punitive, and there is little official discussion of how to appropriately screen and assess returnees for human trafficking. Indeed, policies dealing with women and children returning from ISIS-controlled territory are generally, and notoriously, irregular (one report called them “incoherent”). Responsive measures include security restrictions (i.e., tags, curfews), surveillance, passport revocations, limitations of social benefits, citizenship revocation, and criminal prosecution. Arrest is fairly routine. Rehabilitative solutions can be contentious.

Naturally, and as might be expected in the face of a dangerous group like ISIS, State officials are worried about those returnees who “remain committed” to ISIS and its goals. While sympathetic, grief and regret can be manipulative tactics to gain entrance to a State where the former ISIS member can then continue to sow the violent ideology or even launch attacks. Yet, in prioritizing only that fear, the predominant discourse entirely avoids screening for trafficking victimization and identifying rehabilitation needs.

The Soufan Center, a non-profit that examines global security issues, advocated for blanket, punitive policies in a 2017 report, stating, “[W]omen who have joined IS must be assumed to have known what they were doing, and be treated accordingly . . . Though some women may have been tricked or coerced . . . into traveling to Syria, most will have gone there willingly.” Similarly, a report for the European Commission, which made a number of recommendations for European member states, suggested that any characterization of female ISIS returnees as “victims” should be proactively avoided, as it “deprives women of their agency.” The United States (U.S.) Institute for Peace also spoke out against recognition of the victimization of women at the hands of ISIS by stating, “International efforts to counter violent extremism will miss the mark if the work is based on assumptions that women are . . . duped or victimized.”

Even where States do seek to assess and reintegrate returnees, such proposals face backlash. For example, when Prime Minister Justin Trudeau first proposed a plan to assess and reintegrate ISIS returnees, his Public Safety Minister Ralph Goodale voiced his doubts that any ISIS returnees should be directed toward services, advising governments instead to focus on “‘prosecuting wherever and whenever you can.’” Conservative Leader Andrew Scheer condemned Trudeau for his unwarranted focus “on the rights of ISIS terrorists” and demanded that he take the “security of Canadians seriously.” A conservative parliamentarian, Blake Richards, wrote an opinion piece, in which he argued that the government’s proposal to reintegrate ISIS returnees was abhorrent, and the government should focus, instead, on helping “victims of ISIS.” A columnist recently wrote critically that Trudeau was weaving a “welcome mat” for ISIS returnees.

In the UK, a public official stated that women who joined ISIS should be left in refugee camps in the Middle East because they “need to be responsible for what they did.” The then-international development minister, Rory Stewart, told the British Broadcasting Corporation that “the only way of dealing with [returnees] will be, in almost every case, to kill them.’” More recently, Sajid Javid, the home secretary, stated that returnees “should be ready to be questioned, investigated and potentially prosecuted.” In France, the defense minister, Florence Parly, told French radio that young children of ISIS recruits would be helped, but not their mothers. In the Netherlands, after a Dutch woman, who was abused and brought to Syria with her violent husband, escaped and was arrested in the Netherlands, the Public Prosecutor asserted, “I do not know any stories of people who could show with good justification that they were victims.” In the United States, officials merely sent letters to attempted returnees announcing their automatic “denaturalization.” In all of these policy discussions, the assumption is that policies that screen for victimization or attempt to assist ISIS returnees are unnecessary or, at least, ineffective.

Far from providing a “special focus” on identifying victims, States tend to justify not assisting returnees, under the presumption that when women or girls join ISIS, there are no victims; there are only terrorists.

            State Obligations to Victims of Human Trafficking

Treating returnees, in a blanket manner, as potential terrorists without screening for human trafficking risks placing States in prima facie violation of their obligations under international law, particularly the international anti-trafficking regime and human rights law.

States should work to identify victims and assist them, as ISIS’s recruitment and exploitation of women and girls constitutes human trafficking and fits the international legal definition of the crime in at least some instances. The international legal definition of human trafficking, adopted in many domestic jurisdictions, indicates that trafficking is to be understood to encompass situations that involve agency on the part of the victim. It frames the crime of trafficking in terms of “vulnerabilities,” rather than consent, and recognizes that trafficking can still occur “where an individual consents to be smuggled across a border or is willingly recruited to join a particular group.” Under this definition, a person’s own “agency” cannot be used as a justification for failing to adopt policies that screen for and address trafficking victimization. Further, the definition of trafficking states that any person under 18 is a presumptive victim in a situation where she was recruited, transported, transferred, harbored, or received for the purposes of exploitation.

At the very least, under the previously discussed exhortations of the UNSC, States have been called upon to “develop appropriate legal safeguards to ensure that prosecution, rehabilitation and reintegration strategies developed are in full compliance with their international law obligations” in the context of ISIS returnees.

Under the current international anti-human trafficking regime and human rights obligations, States are obliged to appropriately identify and protect victims. Under Article 9 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, State parties must establish policies and programs to “protect victims of trafficking in persons, especially women and children, from revictimization.” Notably, this obligation includes the principle of the “non-criminalization of trafficking victims,” which entails recognition of the fact that some victims are “‘imperfect’ victims.” Even where victims may have unsavory affiliations or have potentially committed crimes in conjunction with their trafficking, this legal standard directs States to identify victims in all cases and not abdicate the responsibility to thoroughly assess whether victims should be directed only toward rehabilitative avenues, rather than punitive ones. Relatedly, Article 8 of the same protocol states that in cases where residents were trafficked abroad, States must “facilitate and accept, with due regard for the safety of that person, the return of that person without undue or unreasonable delay.” Stripping a victim of citizenship would be in direct violation of this obligation for all 173 State parties that have signed onto this protocol.

Additionally, under case law of the European Court of Human Rights, States’ obligations toward human trafficking victims include investigating situations of potential trafficking, identifying victims, and facilitating such victims’ access to services and rehabilitation.

            Considerations for Returnee Victims

Women and girls trafficked by ISIS are far from ideal victims. They have responded to the appeals of one of the world’s most hated and violent terrorist entities and made their way into ISIS-controlled territory on the romantic or idealistic impression that they could participate in the construction of a pure Muslim state. Hate and fear toward such actors is politically sanctioned, as evidenced by vocal animus by world leaders. Although they may have experienced exploitation, their experience, which includes agency, seems to render them unworthy of the recognition of any possible victimhood at the hands of State actors.

State actors are often not willing to confer victim status on a person who is presumptively terrorist, enemy, and foreign. If anything, they are likely to see her as blameworthy, as someone who chooses to associate with a violent, pathological group and ideology. Faced with stereotypes and presumptions of guilt, ISIS’s trafficking victims are also less likely to cooperate with interrogation tactics that question and pick apart her experiences; she may be unlikely to frame her experiences as one of victimization and may avoid discussion of her experiences altogether, contributing to the ongoing denial by state actors of any victimization she may have suffered.

To engage and appropriately screen for trafficking victimization, States should adopt trauma-informed tactics and tools and avoid the starting ground of punishment. Under international guidance and best practices, these practices include trauma-informed interviewing tactics. In the context of preparing trafficking victims to testify, the United Nations Office on Drugs and Crime released a guidebook that discusses, among other tips, that trauma may make a victim forgetful, inconsistent, aggressive, unpredictable, angry, withdraw, or reticent; as such, in conducting interviews or other assessments, interviewers should do so in a comfortable location (i.e. not in a jail cell), take breaks, build trust, and ask appropriate questions.

The United Nations Office on Drugs and Crime’ Toolkit to Combat Trafficking includes a checklist to facilitate victim identification that provides examples of appropriate questions to identify victims, such as, “Does the victim allege deception or violence on recruitment?”; “Does the victim allege exploitation or violence at the place of reception?”; “Was the victim involved in illegal activities at the place of reception?” and “Were other victims involved in the same recruitment, transport and exploitation?” Further, questions should be tailored to seek to differentiate the experiences of women and girls who decided to join ISIS and instead found themselves trapped in situations of exploitation from those who were recruited but who embrace ISIS’s regime and ideology.

In adopting effective and routine screening measures for trafficking in the case of ISIS returnees, States can begin to move beyond narrow conceptualizations of ISIS’s victims and include those who were induced to join the group and subsequently exploited. In doing so, States can ensure that they are in compliance with their international legal obligations under existing anti-trafficking and international human rights law.