ISIS as a Joint Criminal Enterprise Part II: The Role of Women

[Merlina Herbach holds an LLM in International Law from the University of Edinburgh, has worked at the International Nuremberg Principles Academy and is currently a Legal Fellow with the Syria Justice and Accountability Centre (SJAC); Roger Lu Phillips is the Legal Director of SJAC, a former Legal Officer at the ECCC and ICTR and Adjunct Lecturer of International Criminal Law at the Catholic University of America.]

Al Hol Camp – Female ISIS Affiliates and Genocide of the Yazidis

In addition to the thousands of ISIS fighters in SDF detention, there are tens of thousands of women and children of ISIS fighters detained in camps such as Al Hol in Northeast Syria. While many women are themselves victims of ISIS, the role of women in ISIS’ efforts to establish a Caliphate must not be underestimated. While there are reports of women directly participating in hostilities [pp.4f.] or committing attacks in the name of ISIS, the role of most women within ISIS is often limited to maintaining a household. In doing so, they still play a vital role in occupying estates on behalf of ISIS, supervising Yazidi slaves, and ensuring their husbands are fit to fight. In short: female ISIS affiliates ensure the smooth running of ISIS. Material support for terrorism charges remain a possibility for women who have supported ISIS in a variety of ways. For example, courts in Germany and Norway have convicted women for maintaining an ISIS fighter’s household as members of the terrorist organization, and a US court found an ISIS spouse guilty of supporting the terrorist organization – although they were not held accountable for their participation in the specific acts or torture committed by ISIS.

Holding women accountable for their participation in ISIS’ (criminal) efforts to establish a Caliphate would be an important step towards justice. It would acknowledge the important role women play in carrying out and assisting in certain crimes, in particular related to the genocide against the Yazidis. Yazidi women and girls were held and trafficked as slaves by ISIS members, but wives of ISIS fighters were the ones supervising them while their husbands were out, participating in hostilities. ISIS spouses also often lived on estates taken from Yazidi owners or other civilian population who were forced to leave their homes because of ISIS. However, war crimes against property, and enslavement in relation to the Yazidi genocide are hardly addressed in domestic proceedings against foreign fighters, as can be seen from recent statistics. Despite stressing the crucial role of female ISIS supporters in Syria, prosecutors charge human trafficking of Yazidis as crimes against humanity rather than acknowledging the genocidal context in which these acts were performed. Holding ISIS affiliates accountable under the JCE II doctrine would therefore close a currently existing impunity gap.

With regard to the genocide of Yazidis, some might criticize that a JCE would considerably lower the mens rea element, namely the genocidal intent. For the doctrine of JCE is applicable to genocide under customary law, as the ICTY Appeals Chamber has found. However, when applying JCE for genocide, one must not confuse the mens rea of genocide and the mental element of a JCE. Both might be proven by similar evidence, as they can be inferred from the context in which the crimes were committed and other crimes [para. 47] directed against the same group.

Given a correct distinction between the two mental elements and the required standard of proof for genocide is upheld, the concern for ‘watering down’ [p. 204] the required mens rea for genocide is attenuated. The doctrine of JCE is consequently an appropriate mode of liability to capture the collective context in which genocide is committed as part of a plan shared by different actors. Since there are to date relatively few charges of genocide relating to Syria and Iraq [pp.91-95] in domestic proceedings, JCE could serve as a legitimate mode of liability to hold more (including female) ISIS affiliates accountable for their participation in the genocide committed against the Yazidis.

Common Objections to JCE

Beyond the above criticism, critics of JCE consider the approach to be an ‘all-in-one’ mode of liability preferably used by prosecutors to connect as many people as possible to a variety of crimes. They argue that the evidentiary threshold for criminal accountability of non-direct perpetrators is significantly lowered. While this might indeed be the case in relation to JCE III, as discussed above, the evidentiary hurdles [para. 430] for accountability of perpetrators under JCE II remain high. First, prosecutors must prove that a plurality of persons who shared a common plan organized themselves in military or administrative organizational units. Second, an individual’s knowledge of the system of ill-treatment must be proven. Although this knowledge can be drawn from a suspect’s position or continued presence [fn. 686] at the place where crimes were committed, the suspect’s intent to further the common purpose must also be proven beyond a reasonable doubt. International jurisprudence further held that, in cases of JCE II, the suspect’s contribution to the common purpose must have been significant, at least with regard to the crimes charged [para. 303]. This is particularly crucial when a suspect did not hold an official position within the system of ill-treatment, as for example wives of ISIS fighters. When arguing that ISIS’ territory qualifies as one big organizational unit, prosecutors must also establish beyond a reasonable doubt that the place of residence of an ISIS affiliate was part of ISIS’ territory at the time the charged crimes were committed.

Critics also argue that since the doctrine of JCE is a form of commission, people with different degrees of involvement in crimes are thrown in one pot [pp. 173-175] and all considered perpetrators of atrocity crimes despite their different contributions. However, this criticism does not acknowledge that an individual’s contribution is considered on a case-by-case basis which has a direct impact on sentencing. In addition, not every participant of a JCE can be held accountable for all crimes committed in furtherance of the JCE’s common purpose. Rather, a suspect can only be held accountable for crimes to which s/he contributed. The doctrine of JCE is consequently not a legal construct designed to hold as many affiliates of a group as possible accountable for all of the group’s crimes.

Application of JCE in Domestic Proceedings

The doctrine of JCE is a mode of liability derived from domestic principles [para. 224] that captures the unique context [paras 30-32] in which international crimes are committed. It combines the basic principle of individual criminal responsibility under international criminal law and the fact that international crimes are committed to fulfil certain goals of a bigger group of people. The JCE doctrine is regularly applied by ad hoc tribunals and hybrid courts. It is therefore a legitimate mode of liability at a pooled jurisdiction tribunal or hybrid court for ISIS.

The doctrine’s domestic roots further make it a suitable mode of liability in national legislations, in both civil and common law traditions. Although it is based on domestic modes of liability [pp.28-30] for group crimes and there is no precise equivalent in any national legislation, the doctrine is at its core a form of commission which is broadly codified in national penal codes. Furthermore, including modes of liability derived from international criminal law into domestic law is not uncommon. For example, when criminalizing core international crimes domestically, countries like Sweden [sections 13, 14, 15], Switzerland [art.264k], and Germany [section 4] also incorporate superior responsibility as a mode of liability for international crimes. Although these laws are based on the Rome Statute of the ICC which does not provide for JCE [paras 328,29,38,40], the customary status of JCE [pp. 14-30] and its (partial) codification in the statutes of the ICTY [art.7(1)] and ICTR [art.6(1)] underline its importance in capturing the context in which international crimes are committed. Allowing national courts to apply JCE for international crimes would bridge existing impunity gaps, particularly in countries that have not incorporated legislation criminalizing membership in a foreign terrorist organization. It bears emphasis that even countries that have criminalized membership in a terrorist organization and follow a ‘cumulative approach’ [@3:08:05] to prosecuting terrorism and atrocity crimes, have so far neither covered the full range of atrocity crimes, such as genocide, nor all types of perpetrators of these atrocity crimes, in particular female ISIS affiliates.

Forward Application of JCE

Considerations about categorizing ISIS as a JCE can further contribute to discussions on the establishment of a special court for ISIS fighters or the establishment of a pooled jurisdiction tribunal. JCE as a mode of liability could be incorporated in the statues of either court. It would also allow domestic authorities to prosecute ISIS fighters and female ISIS affiliates for their participation in crimes committed by ISIS. Knowing that states have tools at hand to convict individuals for their contribution to crimes committed by ISIS and to undertake de-radicalization and re-integration measures, could help to motivate states to repatriate their citizens currently in detention in Northeast Syria.

Thinking about ways to hold ISIS affiliates accountable under international criminal law can also relive discussions about how to adequately acknowledge the suffering of ISIS’ victims. Domestic trials of foreign fighters to date merely acknowledge the individual suffering of single victims in specific instances. The JCE doctrine can be a means of acknowledging the suffering of larger victim groups. Incorporating JCE into an international tribunal or domestic legislation, would therefore also serve the interests of transitional justice for Syrians. Applying the doctrine of JCE to the genocide against the Yazidis would provide a new avenue and encouragement for charging ISIS members with counts of genocide and eventually hold all responsible individuals accountable.

Most importantly, the charging of individual members of ISIS for crimes committed as part of a joint criminal enterprise will recognize the full range of criminality and more accurately recognize participation in these crimes, allowing for just penalties and comprehensive accountability.