Co-Opting Universal Jurisdiction? A Gendered Critique of the Prosecutorial Strategy of the German Federal Public Prosecutor in Response to the Return of Female ISIL Members: Part I

[Alexandra Lily Kather is a Legal Advisor at ECCHR’s International Crimes and Accountability Program. Anne Schroeter is a Legal Advisor at ECCHR’s International Crimes and Accountability Program. This post represents the personal views of the authors and does not necessarily reflect the views of the European Center for Constitutional and Human Rights. This is Part I of a two-part post.]

With ISIL’s territorial control collapsing, domestic authorities across Europe are failing to develop coordinated responses to European nationals who had joined the ranks of ISIL and are now returning or held in detention facilities in Iraq and Syria. The lack of a coherent and appropriate policy, one reflective with respect to the gender dimensions of the response to returning fighters, is especially pressing when it comes women and children. Four per cent of all recorded returnees from Iraq and Syria are women and these women constitute only five per cent of women who travelled to the conflict zones, meaning the majority are not returning.

In Northeast Syria alone, the Autonomous Administration is holding 790 foreign ISIL fighters, 584 women and over 1248 children from 46 different countries. In response to repeated appeals by the Syrian Democratic Forces (SDF), several European states have expressed their inability to exercise consular assistance for their nationals detained by the non-state actor, thus essentially refusing extradition and abrogating their responsibility. For example, Germany no longer operates an embassy or consulate in Syria and has expressed its support of local prosecutions of its nationals in Iraqi courts. Similarly, the United Kingdom takes the position “since it does not have diplomatic staff in Syria British consular assistance is very limited”. Other countries such as Russia and the US have repatriated detainees to their home countries to go on trial or join rehabilitation programs. In the meantime, Canada is putting a national strategy in place which foresees the police and prosecutors to prepare charges and peace bonds against detainees now held by SDF.

The United Nations Commission of Inquiry on Syria concluded in June 2016 that ISIL has been committing genocide, crimes against humanity and war crimes against Yazidis. Despite the existence of a progressive legal framework to recognize, prevent and punish genocide, the genocidal crimes, including how their commission was gendered, were not followed by adequate political and legal consequences. The Office of the German Federal Public Prosecutor has been conducting a structural investigation into international crimes committed by non-state armed groups in Syria and Iraq, including ISIL, since 2014. Since then two arrest warrants against high-level suspects for their alleged involvement in the genocide of Yazidis in Iraq have been issued by the German Federal Supreme Court upon application of the Federal Public Prosecutor.

German authorities are now increasingly confronted with the return of both female and male German nationals or residents, who had joined ISIL. Efforts to investigate and prosecute former ISIL fighters and members – who are now in Germany – for their involvement in crimes are therefore inevitable. Accordingly, several former male ISIL fighters have been charged and convicted by the German Federal Public Prosecutor (see Human Rights Watch, These are the crimes we are fleeing; TRIAL International, Make way for justice #4; EJIL: Talk!, Justice for Syria? Opportunities and Limitations of Universal Jurisdiction Trials in Germany): A small minority with war crimes (Section 8 (1) 1 and 3 CCAIL) and the large majority within the framework of domestic counter-terrorism laws (§ 129 a (1) 1, § 129b (1) 1 German Criminal Code).

However, as recent headlines demonstrated, it is not just male returnees that require a response from European states: Women and children are fleeing the ever-shrinking ISIL enclave towards Eastern Syria. Many women wish to return to their country of nationality. The case of Shamima Begum, a UK citizen, who joined ISIL as a teenager, has garnered particular attention. ISIL is, as Priyamvada Gopal writes, “a patriarchal death cult in whose care, needless to say, she was likely subjected to significant amounts of ideological control despite exercising an obstinate child’s will in joining them”. For the past weeks, debates by politicians, academics, lawyers, human rights professionals and others circled around the question in which forum she could be held accountable and whether she should be allowed to return at all. Currently, it is being discussed, whether her citizenship may be revoked – a decision which would render her stateless, violate international human rights law and promote a racialized notion of citizenship as a privilege to be earned rather than a right. Article 12 (4) of the International Covenant on Civil and Political Rights (ICCPR), which the UK has ratified, prohibits states from arbitrarily depriving their nationals of the right to enter their own country. Besides, as a Schabas points out, the United Nations Human Rights Committee clarifies in its General Comments on Article 12 that while “there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable”, a “State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country.” Similarly, Germany’s Ministers of Justice and Interior are negotiating changes to current legislation, which would in the future allow for the deprivation of citizenship of dual citizens if they participated in hostilities by a terrorist organization abroad.

Approximately 50 women of German nationality, who previously traveled to the region to join ISIL (as wives of fighters or together with their husbands) are still in the region and may one day return to Germany. In accordance with United Nations Security Council (UNSC) Resolution 2396 of December 2017, Germany is enhancing its efforts to prosecute women, who may have supported, facilitated or perpetrated terrorist acts, and are now returning from conflict zones. A number of female returnees are currently under investigation, on trial or have been convicted for their involvement with ISIL by the Federal Public Prosecutor (e.g. Sabine S. and Karolina R. on terrorism charges, and Jennifer W. on both terrorism and war crime charges of murder regarding the death of a Yazidi girl).

Yet, two worrying tendencies can be observed when taking a closer look at the prosecutorial strategy of the Federal Public Prosecutor: First, as a result of participation in administration, security services and even military operations, male former (foreign) fighters are predominantly charged with membership in and/or support of a terrorist organization (§ 129 a (1) 1, § 129b (1) 1 German Criminal Code). German counter-terrorism legislation requires alleged members to support the goals of the terrorist organization from within rather than from outside. Elements of terrorism charges are easier to prove than those of domesticated international criminal law and therefore come with a higher likelihood of conviction. Resorting to terrorism charges for reasons of prosecutorial convenience and disregarding international crimes charges from the get-go, runs the risk of legally misrepresenting the potential involvement in international crimes of such fighters. The Office of the German Federal Public Prosecutor, which is exclusively mandated to investigate and prosecute both terrorism and international crimes, needs to exercise due diligence regarding their prosecutorial choices in the interest of not allowing terrorism to co-op potential universal jurisdiction cases.

Second, the Federal Public Prosecutor began to pursue a far-fetched strategy when it comes to the women of ISIL: Recently, the Office started to pursue charges of war crime of pillage against women who have returned from ISIL. On 17 October 2018, a woman named Mine K., a German national, alleged member of ISIL married to an ISIL fighter, was arrested. She has been charged, in addition to membership in a terrorist organization (§ 129 a (1) 1, § 129b (1) 1 German Criminal Code), with the war crime of “extensively appropriating or seizing property of the adverse party contrary to international law without it having been imperatively demanded by the necessities of the armed conflict” (Section 9 (1) CCAIL) for living in a house that had been allocated to her and her family by ISIL in August 2015. It is further argued that she “willingly” moved into the property “in order to consolidate the territorial claim of the organization and aggravate the recapturing of the territory by the opposed conflict party.” In its argumentation the Federal Public Prosecutor refers to the judgments rendered in Krupp and Flick by the United States Military Tribunal at Nuremberg, addressing the individual criminal responsibility of those who, among a series of other international crimes, were found guilty of the war crime of plundering for essentially having benefitted from Wehrmacht-plundered property by operating factories thereon. From a legal point of view it will be interesting to see whether the analogy to the present case drawn by the Federal Public Prosecutor will be upheld and how the German judiciary will examine the question of whether the crime of pillaging has been committed when a suspect and affiliate of a conflict party takes over the house of an opponent for their own use, while said house had been captured by another member of the same conflict party as the suspect.

To elaborate, the Federal Public Prosecutor alleges that Mine K. engaged in the act of appropriation herself, although Tal Afar was taken by ISIL already in August 2014 – a year before she and her family were allocated to live there. Furthermore, unquestionably the mens rea requirement of the intent to appropriate (“Zueignungsabsicht”) – that she moved into the house willingly in order to further the territorial claim of the organization and aggravate the recapturing of the territory – will be difficult to prove.