At the beginning, women returning to Germany who had been involved in the terrorist organization "Islamic State" (IS) were only rarely tried and convicted for their involvement and role in supporting IS, but now trials are becoming a much more regular occurrence. The German judiciary is considered a pioneer within Europe in this respect. But what role do these women play within the IS system, why are they rarely referred to as war criminals in public discourse and which aspects should be considered more closely in future? We discuss these and other issues with Prof. Dr. Christoph Safferling, LL.M, Chair of Criminal Law, Criminal Procedure and International Law at FAU, and Jana Trapp, LL.M, legal trainee at the Kammergericht (court of appeal) in Berlin and a doctoral candidate at FAU.
Prof. Safferling, several women returning from IS have faced trial and prosecution at German courts in recent years. In public discourse, however, they are only rarely referred to as war criminals. Why is that?
Christoph Safferling: It is true that several different terms are used to refer to these women. From a legal point of view, one possible reason may be that due to the novelty of the phenomenon, in particular the cross-border aspect of leaving and re-entering the country, it was not clear at first what the focus of the accusations would be under criminal law. There are also a number of other disciplines that deal with this group of people, with the terms chosen to refer to them emphasizing either the cross-border aspect ("returnee" or "repatriate"), the organization itself ("IS returnee") or geographical features ("returnee from Syria").
The term "war criminal" places greater emphasis on the aspect of international criminal law. The charges against these women focus to a considerable extent on the accusation under international criminal law of having committed war crimes. However, since the Nuremberg trials the term "war criminal" tends to be understood in a more general sense and also covers genocide and crimes against humanity. Furthermore, the organization "Islamic State" that the women are accused of having been involved in is a terrorist organization whose purpose and actions are aimed at committing war crimes.
Ms. Trapp, what role do women play in the crimes committed by IS?
Jana Trapp: Women recruited to the organization from the West predominantly act to stabilize the system. While in the vast majority of cases, male IS members enter into armed combat and represent the textbook case of a jihadist within the context of criminal prosecution, in most instances women take on roles revolving around housekeeping, childcare and recruiting other women. Although there are a few women who assume a more public role, for example by becoming involved in women's squadrons or by writing blog articles glorifying war, no German women have as yet emerged as active fighters or strategic minds behind the fighting.
Women are deliberately encouraged to stay within certain areas of life and act in a certain manner in accordance with IS ideology, which potentially ensures continued compliance with ideological rules of conduct and secures the long-term survival of the system.
How do you view the way the German legal system treats women returning to Germany who have been involved with IS?
Jana Trapp: The way the German criminal justice system treats women returning from IS can be split into three phases:
The first phase was dominated by the criminal prosecution of male IS members. In January 2014, the Federal Justice Ministry reacted to the activities of IS by granting authorization for members of IS to be prosecuted under criminal law. At this time, women and their IS-related crimes were very rarely the focus of accusations or judgments. Between 2014 and 2019, only two women stood trial, both of whose trials focused on emigration issues.
The second phase began with the prosecution of Jennifer W. in 2018, after the Federal Prosecutor General publicly declared the intention to prosecute anyone assuming a supporting role for IS. This was the starting point for further charges being brought against returning female IS supporters. Within a period of two years, roughly 20 female IS supporters who had returned to Germany were put on trial and prosecuted.
The beginning of the third phase is marked by the first of several major repatriation campaigns launched by the federal German government in October 2021. Several German women and their children were taken from prison camps and repatriated to Germany. Most of the women were taken directly into custody as legal proceedings had already been started against them.
Although very few cases were brought against women when IS-motivated crimes committed abroad were first dealt with under criminal law, the German criminal justice system can now be seen as something of a "pioneer", especially compared to other European countries. That is reflected not only in the number of cases brought to court and the number of prosecutions, but also predominantly in the application and interpretation of the criminal offenses the women are regularly accused of.
Mr. Safferling, which aspects tend to have been neglected to date in the public eye and in research?
Christoph Safferling: In view of public discourse, in which traditional stereotypes concerning the background and motivation for the women's decision to leave the country or join IS prevail, I would certainly welcome more research into criminology, rehabilitation and reintegration. Paired with an exploration of historical continuities, in other words women and macro-criminality throughout German history, this could lead to a more multi-faceted picture of women who commit politically motivated crimes.
In the medium term, this would lead to a better, more rounded understanding of the women and their motivation and improved procedures, for example with respect to criminal prosecution and the penal system. In the long term, such findings could encourage the variable of "gender" to be taken into account in a sensible manner from the outset when investigating new crime phenomena and the development of ideas for a suitable approach from an early stage.
