29 Oct What About the Parents of Child Soldiers? Passive Complicity and the Ayada K. Case
[William Fortin is a PhD researcher at Tilburg University.]
On 5 June 2026, a woman from the Dutch town of Naaldwijk, Ayada K., was sentenced to 7 years’ imprisonment by the District Court in The Hague for the following offences:
- participating in a terrorist organization;
- carrying out preparatory acts to commit terrorist offences;
- putting her minor son in a helpless condition and leaving him in such a state, resulting in his death;
- illegally withdrawing her two minor children from the custody of their father; and finally
- aiding and abetting in the war crime of recruiting her son by the Islamic State (IS) as a child soldier.
The Court’s decision (English version here) regarding the defendant’s personal responsibility as an accomplice in the non-coercive recruitment of a child under the age of fifteen into an armed group represents the first-ever conviction in the Netherlands for this specific offence. Interestingly, it also represents the first conviction by a Dutch court for complicity (aiding and abetting) through omission regarding a core international crime charge. This represents a combination rarely seen in Europe: another example of a mother found guilty of this offence by omission, albeit not as an aider and abettor, would be the Lina Laina Isaq case in Sweden. The present text focuses on the use of complicity by omission, also known as passive complicity, in the Ayada K. case. It introduces the legal duty requirement and causal threshold articulated in Dutch criminal law and explores what this can tell us about the outer limits of criminal conduct and which de minimis conduct triggers criminal liability in domestic prosecutions of international crimes.
Facts of the Case
Ayada K. traveled to Syria in 2014 with her then 13-year-old son and 14-year-old daughter, where she married an IS fighter upon arrival. In the following years, her minor daughter was married twice to men affiliated with IS, and both the defendant and her daughter ended up giving birth to a child each. In 2015, the defendant’s son, age fourteen, attended a religious camp run by IS and an IS military training camp. In January 2016, he joined IS military police in Raqqa while he was still under fifteen, receiving a firearm and a monthly allowance for his work (of which the defendant also benefited). He eventually turned fifteen during his assignment and was transferred in April 2017 to a combat unit. He died in June 2017 during air strikes. The defendant, her daughter, and their children ended up in the infamous Al Hol camp in 2018 before being transferred to the Al Roj camp. They ultimately travelled to the Netherlands in 2024; the defendant being arrested upon her return.
In its assessment of the defendant’s involvement in the enlistment of her son as a child soldier, the District Court first looked at whether such an offence took place in the first place. According to the Court, the attendance of the IS camps by the son and his assignment to the military police of IS for the period leading up to his fifteenth birthday satisfied the requirements articulated in Article 6(3)(f) of the 2003 International Crimes Act. Consequently, the recruitment of the defendant’s son by IS represented the war crime of conscripting or enlisting a child under the age of fifteen years into an armed group. With the illegal recruitment of the son established, the District Court had to determine whether the defendant could be held liable as an accessory to the crime. Her participation would ultimately arise from her failure to intervene as a mother and prevent her son from being recruited by IS while she had the legal duty to do so. The District Court therefore found her to be an accessory rather than a principal perpetrator, differentiating the case from the Lina Laina Isaq case (Sweden), in which the defendant was found to be a co-perpetrator, and German cases, in which the mothers’ conduct made them responsible as perpetrators for their sons’ recruitment rather than aiders and abettors(see Stefanie A. and Carla-Josephine S. cases; see also Talmon and Allen for an analysis of the latter case).
What is Passive Complicity in Dutch Criminal Law?
Aiding and abetting by omission is recognized as a form of accessorial liability in both international criminal law (ICL) and in different national legal systems. In the Netherlands, pursuant to Article 48 Dutch Criminal Code (DCC), one can be held liable as an aider and abettor if he or she assists during the commission of the crime or provides the opportunity, means or information necessary to commit the offence. Assistance or support must be intentionally provided, and the accomplice must have knowledge of the essential elements of the offence being carried out by the perpetrator(s). The accomplice can contribute to the crime of the principal offender through an act or omission. In cases of omission, Dutch courts recognize that inaction can create an opportunity for a crime to be committed, resulting in what is known as passieve medeplichtigheid (passive complicity). However, passive complicity in Dutch law is conditional upon the aider having a legal duty, or rechtsplicht in Dutch.
How the Court Looked at Passive Complicity in Ayada K.
In the case of Ayada K., the District Court found that the defendant had a legal duty to act as the mother of the recruited child, thus satisfying the first requirement of passive complicity. It could then proceed with the assessment of the accused’s responsibility. While the District Court acknowledged that the circumstances leading to the defendant’s son attending the IS training camp remained unclear, it found that the defendant, through her conduct, created a situation in which it became possible for IS to recruit her son and accepted the significant chance that such a risk would materialize. She, indeed, travelled with her then thirteen-year-old son to IS-held territory, where young boys were known to be used as child soldiers by the Jihadist armed group. Furthermore, she did not prevent the participation of her son in the IS camps at age fourteen, nor did she intervene to stop his assignment to the military police or put a stop to his involvement in this organization. In view of these elements, the Court found her liable as an accomplice in the non-coercive recruitment of her son by IS for the period starting with his participation in the IS camps until his fifteenth birthday.
What is a Legal Duty/Rechtsplicht?
It is interesting to look at how the Dutch court approached the legal duty requirement. What constitutes a legal duty (rechtsplicht) in the Netherlands is not limited to duties explicitly articulated in criminal law provisions. According to this case law, a legal duty does not have to be enshrined in a legal provision to be binding and may even arise from norms/standards generally accepted in society. Furthermore, such a duty may arise from the circumstances (see Gerechtshof Arnhem-Leeuwarden, 28 February 2025, ECLI:NL:GHARL:2025:1156), such as the accomplice’s previous conduct having left the victim in a defenseless state (see the Honden Peter case; also Hullu and Van Kempen, at VII.5.2). In the case of Ayada K., her duty to act as the mother of the child had a clear legal basis, including Article 1:247 of the Dutch Civil Code, which stipulates, among other things, that a parent has the duty to care for their minor child. This is similar to the Stockholm District Court’s reasoning in Lina Laina Isaq case in which the Court stated that, under Swedish law, guardianship comes with a special duty to protect the concerned child and that failure to do so may expose the guardian to criminal liability.
Causation Threshold
The decision of the District Court in Ayada K. does not thoroughly address the issue of causation. While it found that the defendant’s actions, including her decision to travel to Syria, created a situation in which it became possible for IS to recruit her son, it does not substantially elaborate on the concrete effect of her “inaction” on the commission of the offence. It is important to note that Dutch criminal law has a low causation threshold when it comes to complicity. It does not even require the aider and abettor’s conduct to be an “adequate causal contribution” or to have a decisive or substantial impact on the commission of the crime. While the minimal causal contribution required remains vague in the case law, it is established jurisprudence that the accomplice’s conduct simply needs to have a certain degree of “effectiveness”, with the aid furthering or facilitating the commission of the crime (see Sluiter and Yau, at 309).
In comparison, the ad hoc tribunals (ICTY and ICTR) found that the aider and abettor’s conduct must have a substantial effect on the commission of the crime. This is also true for complicity by omission, which requires that the likelihood of the offence materializing would have been substantially diminished if the defendant had discharged their duty (see Ventura, at 189). For its part, the ICC seems to have ultimately rejected the substantial effect requirement in its reading of aiding and abetting as articulated in Article 25(3)(c) of the Rome Statute (RS) (see 2016 Ongwen (para 43) and Al Mahdi (para 26) decisions on the confirmation of charges, its Bemba et al. trial judgment (para 93) and appeal judgment (para 1327), and more recently in its decision on the confirmation of charges against Duterte (para 48)). The recent case law indicates that Article 25(3)(c) RS does not require a specific impact threshold.
Passive Liability: A Building Block of the Outer Limits of Liability
The decision of the District Court in Ayada K. allows us to paint a clearer picture of the outer limits of criminal liability for those involved in mass atrocities, both in the Netherlands and in the broader international criminal justice context. With its broad understanding of what constitutes a legal duty and its low causal threshold, aiding and abetting by omission under Dutch criminal law can cover the passive conduct of individuals located on the margins of large criminal enterprises, such as the mother of a child soldier. Until now, the Dutch core international crimes case law regarding accessorial liability was limited.
Other cases in which defendants were convicted as aiders and abettors of core crimes concerned businessmen whose contributions were of a completely different scale (Guus K. and Frans Van A.) and a member of an armed group who was found liable through compound liability because of his active participation in the arrest of a victim that led to the victim’s torture (Mustafa A.). It is more common to see marginal actors being prosecuted for inchoate crimes or membership/terrorism offences, with some of them being also prosecuted for core crimes such as pillaging and the war crime of outrage against personal dignity. These Dutch cases do not involve complicity (aiding and abetting) by omission.
Consequently, a case in which an individual’s relatively passive conduct facilitated another’s criminal acts is therefore of great value in understanding which de minimis conduct triggers someone’s criminal liability in the domestic prosecution of core international crimes in the Netherlands. Considering the scarcity of such cases in other European jurisdictions and growing interconnectivity between domestic and international jurisdictions, this case’s relevance goes beyond the Dutch borders.
It nevertheless raises questions regarding how the courts would approach the attribution of liability in similar cases involving parents of victims. So far, some are being prosecuted by the Dutch authorities using regular offences, such as putting their children in a helpless state. Those charges are sometimes brought alongside core crimes and terrorism charges in cases involving female defendants who traveled to a conflict zone with their children.
What if passive complicity in relation to core crimes becomes more commonly used in these cases? How would the District Court approach a case similar to Ayada K. involving a defendant who is not a Dutch national and who did not voluntarily traveled to the conflict zone with their children, but is instead a Syrian national whose family came under the control of IS as a result of IS’s expansion campaign? Or what about a parent who did not prevent the forced marriage of their child to a member of an armed group in a context where such practice is culturally accepted? Those cases might one day reach Dutch courts and again expand the circle of those deserving of punishment despite their more passive involvement in mass atrocities, while challenging our current approach to passive complicity.