European prosecutors are toughening charges against women linked to ISIS when they are returned to Europe as evidence emerges of the extent of their suspected involvement with the group.
The charges are a steep change in how courts are handling female returnees after a period when victims feared the trials did little more than pitch the women into the spotlight. By elevating the charges to crimes against humanity and war crimes, instead of simply being an ISIS member, the prosecutors are being applauded for delivering a stronger sense of justice to victims.
“International crimes are the most serious crimes and do more justice to the victims than a status crime such as membership of a terrorist organisation,” said Tanya Mehra, senior research fellow and programme lead at the international centre for counter-terrorism, a think-tank in The Hague.
Core international crimes include war crimes, crimes against humanity and genocide.
The ISIS women file is one of the most difficult challenges posed to European legal systems since the group's near-eradication in 2019. Judges have taken into consideration that many of the women had spent jail time in inhumane conditions in Kurdish militia detention camps in Syria.
Prosecutors are faced with having to determine the seriousness of these women's crimes even as they grapple with challenges in gathering evidence. Unlike men, women were mostly confined to their homes and did not appear in propaganda videos or with uncovered faces on social media.
Two opposing narratives are commonly heard in courtrooms. While defendants' lawyers often present these women as being subjugated to violent husbands, some experts and victims believe that by supporting the men in the household – and sometimes also in the ISIS security apparatus – they contributed to strengthening the group's grip on the region and its ability to terrorise western countries with a string of suicide attacks in 2015 and 2016.
The reality probably lies somewhere in between, says Sofia Koller, a senior research analyst at the Counter Extremism Project, a non-profit organisation in New York.
"It would be wrong to say they were all naive, but also wrong to say they all knew exactly what they were doing," she told The National.
The case of Hasna A
The case of Hasna A, 32, a Dutch woman who was recently repatriated from a Kurdish camp in northern Syria, illustrates this shift in European courts.
She is the first Dutch citizen to be charged with enslavement of a Yazidi woman – a crime against humanity. The Netherlands is the second country in Europe after Germany to try one of its citizens for such a crime.
Atrocities committed by ISIS against the Yazidis, a religious minority living in Syria and Iraq, were among the worst in its aggressive territorial expansion in the region.
Starting in 2014, ISIS captured, raped and enslaved thousands of Yazidi women, who were traded between households. The UN has said that ISIS committed genocide against the Yazidis.
It was men who bought the Yazidi women and repeatedly raped them, but their wives are under scrutiny for allegedly abetting such behaviour within the household.
Hasna A was at first charged only with joining a terrorist group, but Dutch prosecutors added the slavery charges, which constitute a crime against humanity, shortly before her trial began in February.
She could face life in prison, although experts believe this is unlikely to be enforced.
“It is plausible that women who have travelled to ISIS-controlled territory are on average less likely to have committed violent crimes than men," said Tarik Gherbaoui, a researcher in international law at the T.M.C. Asser Instituut, a research institute in The Hague.
"But enslavement of Yazidi women is one of those instances where it is possible to prosecute them for more tailored and more serious offences than participation in a terrorist group."
At Hasna A's second pretrial hearing last week, her lawyer, who has rejected the slavery accusations, described her as naive and as having travelled to Syria with the “wrong expectations”.
She did not attend the hearing.
Her lawyer, Hendrik de Boer, said that more details of her experience in Syria would be given in later hearings, but highlighted that there was less evidence against his client for slavery charges than for terrorism charges.
Public prosecutor Mirjam Blom told The National that the court "believes there is at least some evidence" for slavery.
“She [Hasna A] is in custody for it. We still have to do the interviews. That’s an important aspect for the witness.”
Ms Blom was referring to the Yazidi woman testifying in Hasna A’s trial. The woman has asked to remain anonymous and does not live in The Netherlands.
“The Yazidi community experienced horrible experiences in 2014 and in following years,” Ms Blom said. “As western countries, it’s very important to use our national jurisdiction to bring these perpetrators to court.”
Wahhab Hassoo, co-director of NL Helpt Yezidis, a Dutch organisation that supports Yazidis, told The National that Hasna A’s trial was a “big deal”.
“We are proud and happy of the efforts of the Dutch government,” he said.
Mr Hassoo, who attended the two pretrial hearings, said he did not believe Hasna A's lawyer’s arguments claiming that she was forced to marry an ISIS fighter when she arrived in Syria.
“Nobody believes these stories about these women being young and manipulated,” he said.
Mr Hassoo criticised what he perceives as European bias towards Muslim cultures in which it is alleged that women have little social power.
“Terrorism is terrorism. Man or woman, there should be no difference,” he said.
“These people were living in Europe and suddenly decided to go to Syria and Iraq and kill Syrians and Iraqis," he added. "They’re not naive or innocent.”
Repatriations for justice
Hasna A is one of 12 Dutch women repatriated from Kurdish camps in northern Syria in November. All women who wished to return to The Netherlands – 18 of them – have done so and those who remain refuse to return.
Doctors without Borders in November described living conditions in those camps as "effectively a mass outdoor prison". Two Egyptian girls were found dead in a sewage ditch in Al Hol camp in late 2022.
UN reports allege that radicalised women harass other inhabitants of the camps and some experts worry that they are breeding a new generation of terrorists.
According to Ms Mehra, about 100 Dutch citizens currently live in the region, including one quarter of women with their children in Kurdish camps. The remaining are found mostly in the north-west rebel-held Syrian region of Idlib. About one third of the 300 Dutch citizens who joined ISIS in Syria and Iraq were women.
For Europe, their repatriation is a relatively new phenomenon.
Like other countries such as France and Germany, the Netherlands had initially been reluctant to bring back these women and their children.
Politicians were wary of being blamed by the public should returnees commit terrorist attacks in The Netherlands, Mr Gherbaoui said.
But The Hague changed its approach to repatriations after a series of court judgments stated that Holland would lose the right to prosecute them if they were not returned to their home country.
Dutch security services assessed that the risk of repatriation was lower than the risk associated with leaving them in Syria where they might disappear off the radar, re-join ISIS, or participate in future attacks on European soil.
This view is shared by many prosecutors, lawyers and academics, according to Mr Gherbaoui.
In April, five Dutch women repatriated in early 2022 were each sentenced to about three years in prison.
The court took into consideration other issues such as mental health, Ms Mehra said.
“Most of the women sentenced in April suffered from post-traumatic stress syndrome, depression and psychological problems or were mentally impaired,” she said.
Germany's trials
German prosecutors have only more recently started to explore the role of women in crimes against Yazidis, Ms Koller said.
Unlike in The Netherlands and in France, German prosecutors cannot prove affiliation to a terrorist organisation by merely stating that these women were present in ISIS-controlled territory, according to Ms Koller.
That is why prosecutors would charge them with crimes that would prove their affiliation to ISIS, such as taking care of the household so that the husband could fight, recruitment, fundraising, or working in the group's administration or security services.
“This strategy has been working very well," Ms Koller told The National.
"Prosecutors have since started to push for other charges such as war crimes, crimes against humanity and against the Yazidi community."
In neighbouring France, which had the highest number of female departures to Syria in Europe at about 500, there has so far been no sentences for enslaving Yazidis, although a handful of investigations recently started. Experts believe that this is because it is easier for French prosecutors to charge ISIS returnees with a charge that can be translated as “association of terrorist wrongdoers” for which defendants can be sentenced to more than 10 years in prison.
Prison sentences for ISIS members in France are already the longest in Europe.
“Why make it complicated when collecting proof for war crimes is difficult?” Ms Koller said.
Marc Hecker, director of research at the French Institute for International Relations, said that out of dozens of court cases that he has recently studied involving ISIS female returnees, only one was convicted for being a member of the hisba, or ISIS’s religious police.
“Unlike men, who appeared in photos and videos holding weapons or engaged in fighting, we have less evidence about women's everyday life in Syria and their concrete involvement in support of ISIS,” he told The National.
Mr Hecker said that he had heard of cases of judges asking female returnees questions about their household chores in Syria, but received no answer.
“They were faced with silence. Silence entails a lack of evidence,” he said.
Another reason that French prosecutors might be reluctant to press charges for international crimes is that defendants would then be judged by a popular jury and not professional judges. “That makes it more complicated,” Mr Hecker said.
French intelligence services did not start questioning female returnees about enslavement until 2022 because they were perceived as less involved in the ISIS terrorism campaign, said French writer Celine Martelet, co-author of a book on women who joined ISIS.
Lack of remorse
So far, these women have shown little regret vis-a-vis the Yazidis.
The most common emotion expressed was jealousy towards Yazidi women who were used by their husbands as sexual slaves, Ms Martelet said.
Ms Martelet said that a female detainee suspected of enslaving a Yazidi woman recently confided in one of her sources and told them that her husband regularly raped a 16-year-old Yazidi girl who lived in her home for a month.
The woman said she was happy to have a slave to help her with household chores because she was pregnant at the time, according to Ms Martelet.
"She expressed no remorse," Ms Martelet said.
Ms Koller, who has attended several hearings in Germany, also said that she observed defendants frequently expressing jealousy and a lack of understanding of the meaning of genocide.
Unlike in The Netherlands, witnesses nearly always testify publicly in German and French courts.
“In one case in court, a Yazidi woman gave a horrifying account. Then the defendant said something like: I’m sorry I called you a slave girl. But I didn’t really hear her say: I’m sorry about what happened to you and your people and how I contributed to that," Ms Koller said.
Ms Koller said that prison employees who support women in their rehabilitation process have told her that they have rejected ISIS ideology yet also are not completely assuming responsibility for crimes committed by the group and its followers.
"This [slavery] was a war crime, and they contributed to it. They could have acted differently towards that person.”
These women's testimonies will increasingly be in the spotlight as trials continue.
