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 II

[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 II of a two-part post.]

This change of course in prosecutorial strategy followed after the Federal Supreme Court of Germany denied issuing arrest warrants for membership in or support of a terrorist organization against female returnees, who ‘as wives of ISIL fighters’ solely took care of the home and family life without being engaged in any activities of the organization. The German national Sibel H. had traveled to Syria with her husband Ali S. in 2013. After he was killed, she returned to Germany. She moved back to Iraq with her second husband, Deniz B. They received an allowance of approx. 100$ and an apartment in an area controlled by ISIL. She looked after their child and he worked as a nurse in an ISIL-hospital. During the battles to expel ISIL from Northern Iraq, the couple was arrested and detained in Erbil. H.’s toddler son was able to leave Iraq with his grandfather in early 2018, after DNA probes proved their kinship. She gave birth to another child while detained in Iraq and returned to Germany in April 2018. Her husband remains in Iraqi detention. Sibel H. and her two children are now under the care of social workers and counseling services. Denying her arrest warrant, the judges clarified that members of ISIL are only those that support the aims of the organization from within, and did not “just” participate in daily life by looking after their families and potentially pursuing an ordinary occupation. Interestingly, Sibel H., lived in the same area occupied by ISIL as Mine K. and Peter Frank, the Head of the Office of Federal Public Prosecutor, remarked that investigations against Sibel H. have no yet been concluded, suggesting that another arrest warrant may be sought from the Federal Supreme Court in the future on the basis of Section 9 (1) CCAIL.

A third case is the one of Fatima M., the first female ISIL returnee who arrived in Germany after having served her one-year prison sentence in Iraq, was not arrested upon her arrival at Frankfurt airport at the beginning of February 2019. Yet, and similarly to Mine K., she is being investigated for membership in a terrorist organization as well as the war crime of pillage. In 2015, she moved with her family to a small Christian city close to Mosul, where she was provided with a house, which formerly belonged to Iraqi citizens and was taken by ISIL.

The contrasting approaches taken by the German Federal Public Prosecutor towards female and male ISIL returnees leaves us wondering about their disproportionality: Certain women are accused of a war crime because they lived in a house allocated to them (and their family) and are thus, following the prosecutor’s line of argument, strengthening the territorial claim of the terrorist organization? Why are their husbands and other male (foreign) fighters not charged with the same war crime but terrorism instead, albeit they must have lived in (and likely participated in the capturing of) the seized houses as well? Without intending to undermine the role(s) of women within ISIL, prosecutorial responses should not manifest in war crimes charges against female returnees disproportionate to the terrorism charges faced by male (foreign) fighters.

Particularly, such a strategy crucially lacks an informed gender analysis of ISIL. While it is true to say that women’s roles in ISIL have been significantly underestimated, one needs to bear in mind the extent to which women were subjected to the strict patriarchal system which ISIL operated. This is not to describe women who travelled to ISIL territory as having no agency of their own and merely following their husbands’ ideology. Rather, because of their agency they made the conscious decision of moving to ISIL controlled territory. Yet, once there, ISIL’s ideology foresaw one of three roles for women:

• “Guardians of the Khilafah and its Ideology”: It is women’s role to raise the future fighters of the caliphate, by playing an intermediary function between the Caliphate and the children (future fighters). Their role is confined to domestic sphere and taking care of their husband and children.
• “Operational Responsibilities”: Women contribute services to ISIL as members of female police brigades, fundraisers for ISIL, and active recruiters (propaganda blogs, Dabiq columns), working in tax collection, media operations, healthcare or education. Generally, ISIL operated a “gendered” administration, in order to avoid the mixing of unrelated men and women.
• “Participants in Violence”: The loss of territory and male fighters meant that women began to also fulfill more critical roles, for example in female combat training camps or as female suicide bombers. From what is known about the allegations and facts of Mine K.’s case and those of the other women, nothing indicates that her role extended beyond that of a house wife or that she was in a position to exercise control or influence over her living arrangements significant enough to meet the mens rea requirements of (Section 9 (1) CCAIL) showing her intention to appropriate the building.

It is out of the question that all individuals involved in the commission of international crimes by ISIL should be held to account, regardless of their gender. However, the prosecutorial strategy presented above is essentially gender-blind, disregards the consequences of heavily patriarchal structures and reproduces the Western-promoted depiction of ISIL as a terrorist organization. While certain acts committed by ISIL members certainly fall within the realm of terrorism, a range of others ought to be investigated as what they also could be: international crimes. Individual criminal responsibility of women within ISIL needs to be assessed based on a detailed analysis of their roles, knowledge and actions, which are heavily (pre-) determined by ISIL’s ideology and understanding of gender, which is in flux since October 2017.

The current prosecutorial strategy of the Office of the German Federal Public Prosecutor sidelines the creation of a comprehensive judicial record of international crimes committed by ISIL, an accurate understanding of the individuals and structures involved in the commission of those crimes and thus cannot contribute to a historical understanding of the non-state actor. One the one hand, the progressive approach of the Federal Public Prosecutor in the form of two structural investigations based on the principle of universal jurisdiction into international crimes committed in Syria and Iraq as well as their fruitful results should be applauded. One the other hand, criticism needs to be exercised when, as in the case of male ISIL returnees, potential international crimes are not investigated as such but as terrorism crimes or, as in the case of female ISIL returnees, when charges of international crimes are being applied disproportionately to their actual involvement and only after terrorism charges were not upheld for the purpose of arrest warrants. Moreover, the Federal Public Prosecutor should not allow for the alleged perpetrator’s affiliation to guide its choice of legal framework. Rather, the choice of legal framework ought to derive from a comprehensive assessment of the facts of the crimes allegedly committed. In the interest of not co-opting universal jurisdiction, lacking resources to thoroughly investigate or evidence to prove international crimes, should not be mitigated by resorting to terrorism or disproportionate charges. Most notably, such an approach undeniably runs the risk of doing a disservice to the survivors and those otherwise affected by ISIL’s crimes, who demand accountability for the crimes committed against them.