Prosecuting IS returnees in Germany takes the law's longest arm

Taha A.-J.*, an Iraqi man believed to have belonged to Islamic State (IS), has been standing trial in Frankfurt since late April on charges of genocide, war crimes and crimes against humanity. At the centre of his trial is the death of a 5-year-old girl belonging to the Yazidi minority group.

The charges are based on statements by his wife, Jennifer W.*, a staunch IS supporter who lived with him in the Iraqi city of Fallujah. In 2018, she told a police informant that during her first stay in IS territory in 2015 she saw Taha A.-J. punish the girl, purchased as a slave, for wetting the bed. Jennifer W. alleged that he had chained the girl to a window in the scorching sun, where she died an agonising death.

Jennifer W. has been on trial herself since April 2019, as she did nothing to save the girl. In that case, the girl's mother – also a slave in the same household – testified that she was forced to watch her daughter die.

Unprecedented case

Taha A.-J. was arrested in Greece in May 2019 under a German arrest warrant and was transferred to Germany in October. His ongoing trial – the first against a former IS militant to deal with the IS genocide of the Yazidi – has attracted international attention.

Genocide is the most serious crime under international criminal law. But according to Alexander Schwarz, a Leipzig-based lawyer who specialises in the area, "the difficulty lies in proving that the individual perpetrators were actually determined to destroy an entire ethnic group."

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Schwarz admitted that Taha A.-J.'s trial is unprecedented. "For the first time, the Federal Public Prosecutor's Office is pursuing a purely international offence," he said, pointing out that the alleged act was not committed in Germany, that neither perpetrators nor victims are German citizens, and that the accused wasn't even on German territory at the time of his arrest.

International criminal law is becoming an increasingly important part of the work done by the Federal Public Prosecutor's Office. When the trial of the 35-year-old IS returnee Omaima A.* began in Hamburg on 4 May, charges against her also included crimes against humanity. Omaima A., the widow of IS jihadist Denis Cuspert, who was killed in Syria in 2018, is also said to have kept a 13-year-old Yazidi girl as a slave.

After Omaima A. returned from the Syrian war zone in 2016, she lived a peaceful life in her hometown of Hamburg for three years. It wasn't until investigative journalist Jenan Moussa, reporting for Arab television network Al-Aan TV, uncovered the necessary evidence against her that charges could be filed.With thousands of photos and videos found on the phone Omaima A. used while living in Syria, Moussa was able to retrace her life in IS territory in great detail, eventually producing a documentary about the German IS supporter.

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Not just housewives and mothers?

The photos shown in the documentary – introduced as evidence at Omaima A.'s trial – show her alone and with children, posing with an AK-47 assault rifle and other weapons. Moussa's work also uncovered chat conversations with several men.

These documents show that the perception of female IS supporters as passive, easily influenced victims needs to be reconsidered, said Schwarz, the lawyer from Leipzig. "Numerous returnees – female IS fighters – were armed, with automatic weapons, AK-47 rifles or pistols," he said.

Many women also worked for the so-called morality police, controlling how other women dressed, behaved and lived under IS rule. According to Schwarz, the practice of keeping slaves was "an act that can be attributed to the female fighters, and was even predominantly practiced by them."

In order to issue an arrest warrant and charges, Germany's top judges have said that evidence of explicit support for IS, or proof that a person directly fought for the militant group, is necessary. Without this proof, suspects could go unpunished. It's exactly for this reason that many IS returnees have repeatedly claimed they were only responsible for taking care of the household and the children, and that they had no knowledge of reported atrocities.

Slave ownership has featured in other cases against IS returnees, including that of Sarah O.*. Details of her trial, which has been ongoing since October, have been kept from the public, as she was said to have been a minor when she allegedly committed the crimes she's been charged with. According to investigators, the now 21-year-old decided to move to IS territory in Syria at the age of 15.

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In addition to slave ownership, Sarah O. has also been accused of having lived with her husband and children in apartments assigned to them by IS forces. That may sound harmless. Legally, however, this is considered a form of looting: if IS assigned jihadists to live in an apartment, that meant the previous residents must have been expelled or killed. This is defined as looting, or pillaging – and is thus a violation of Article 8 of the Rome Statute of the International Criminal Court.

Targeting female jihadists

This interpretation of the law was first used in the trial against Sabine S.* in 2019. She was sentenced to five years in prison for war crimes, mainly for taking possession of two apartments. Since last year, Germany's federal prosecutors have accused IS returnees of eight violations of the Rome Statute, with the looting charge particularly being used to prosecute female jihadists.

Lawyer Serkan Alkan, however, has been critical of the court's reliance on this charge. Alkan has represented several IS supporters in German courts, and repeated the objection that women had no say under IS rule. "The idea that you could stand there, as a woman, and say, 'No, I will not take this house because it's a violation of international criminal law' – that's a rather utopian perspective," he said.

But federal prosecutors have been successful with this approach. Sibel H.*, from Aschaffenburg near Frankfurt, twice made the journey to IS territory, the first time in 2013. She returned to Germany the following year after her husband was killed, only to remarry an IS supporter and head back to the Middle East, where they had two children before she was captured. In spring 2018, she was transferred from a Kurdish prison in northern Iraq to Germany, where she was eventually arrested and charged with the looting offence under international criminal law. On 9 April, 2020, she was sentenced to three years in prison in Munich, where she is taking part in a re-integration programme.

Over the past five years, 122 IS supporters have returned to Germany from Syria or Iraq, according to government figures reported in late 2019. Of those returnees, 53 have been classified as a "potential threat", and 18 are considered "relevant persons", that is supporters or even leading figures within IS. Relying on international criminal law, Germany aims to make these people responsible for their actions.

Matthias von Hein

© Deutsche Welle 2020

*Editor's note: DW follows the German press code, which stresses the importance of protecting the privacy of suspected criminals or victims and urges us to refrain from revealing full names in such cases.