A 19-year-old who was 15 when she left East London to travel to ISIS in Syria made headlines last week, as she pleaded via a newspaper interview to return to the United Kingdom. The case illustrates the dilemmas countries face in repatriating citizens who traveled to ISIS at its height. It also raises questions surrounding the connection between trafficking and terrorism, including whether ISIS child recruits themselves were trafficked.

The United Nations Security Council has considered the relationship between trafficking and terrorism and other transnational criminal activities in recent years, adopting a presidential statement in 2015 and two resolutions on the topic — resolution 2331 in 2016 and 2388 in 2017. Earlier this month, the Security Council’s Counter-Terrorism Committee Executive Directorate (CTED) released a report exploring the linkages between human trafficking and terrorism. The analysis focused on trafficking as a means to raise funds for terrorist purposes.

With the increasing emphasis on this trafficking-terrorism nexus, a number of legal and policy issues should be considered. They include — but are not limited to — how trafficking is used to support terrorism; how to assist victims in these contexts; how to determine whether recruits might also have been trafficked; how to handle punishment when an alleged terrorism perpetrator is also a victim of trafficking; and how counter-terrorism tactics might backfire to ensnare more victims in trafficking.

Trafficking for terrorism purposes 

Various U.N. Security Council actions have considered how terrorists benefit from transnational organized crime (e.g., resolutions 2195 (2014), 2253 (2015), 2322 (2016), 2347 (2017) and 2368 (2017)). On at least three occasions, the Council has specifically examined the relationship of trafficking and sexual violence in armed conflict with terrorism and other transnational criminal activities (presidential statement (2015), resolutions 2331 (2016) and 2388 (2017)). And in resolution 2242 in 2015, the Council explored how acts of sexual and gender-based violence are part of the strategic objectives and ideology of certain terrorist groups.

Taken as a whole, these resolutions tend to emphasize that terrorist groups use human trafficking as a driver for recruitment (e.g., using female trafficking victims to attract and retain fighters); to increase financial flows; and to strengthen influence, including by controlling or destroying communities involved in or affected by the trafficking.

Repeated examples indicate the use of trafficking to benefit terrorist groups. They include reports of trafficking of organs by ISIS and affiliated armed groups for financing; Boko Haram’s use of child beggars for fundraising; forced marriages in Timbuktu, Mali by Ansar Dine and Al Qaeda in the Islamic Maghreb; forced marriages of females abducted by Boko Haram involving sexual exploitation; kidnapping of Eritrean migrants in Libya by ISIL for sexual exploitation, including in forced marriage; and trafficking of Yazidi women and girls by ISIS for sexual exploitation and slavery.

Yet a policy framework that tackles trafficking solely in relation to armed conflict and terrorism nonetheless has risks. It can minimize attention to trafficking outside of the terrorism and conflict contexts, as well reduce understanding of how victims’ experiences in conflict or extremism relate to their experiences in times of peace (see more here). I have explained elsewhere how the post-9/11 trafficking-terrorism nexus can securitize anti-trafficking efforts by prioritizing law enforcement responses (e.g., tightened border security, greater sharing of financial intelligence) over human rights. It also tends toward a focus on sex trafficking against foreign women and girls in moments of extreme crisis over other forms of trafficking and victims (e.g., labor trafficking, domestic trafficking, trafficking of men and boys). 

Assistance for victims of trafficking connected to terrorism 

Characterizing certain activities by terrorist groups as “trafficking” does have the potential for positive consequences for victims. It reinforces that, under international human rights and anti-trafficking law, they are entitled to a remedy, including protection and assistance, regardless of whether perpetrators ultimately are identified or prosecuted or the perpetrators are family.

This shift can help overcome gaps in the current level of assistance given to victims, as well as in its rationale. There can be a tendency to treat assistance to victims, such as Yazidi female victims of ISIS, as charity when it is instead legally required even if action on prosecuting the perpetrators themselves is stalled.

Current levels of assistance to victims of trafficking by terrorists presently fall far short of the full remedy for victims under international law, which includes compensation and measures aimed at the full social inclusion of victims. The latter is particularly important given the stigma and backlash faced by victims—and often their children, also—of trafficking and other abuses by terrorist groups. 

Classifying individuals linked to terrorist groups as trafficked persons 

One of the most complicated aspects of exploring the human trafficking and terrorism nexus is understanding when persons linked to terrorist groups might themselves be trafficked.

Take the case of individuals, male or female, who have traveled to ISIS. Each individual has very different circumstances for why and how they traveled to the caliphate and their experiences while there, as well as varying motivations for potentially wanting to return to home countries. Governments need to examine this whole timeline, because under the U.N. Trafficking Protocol, trafficking can occur through an exploitative process or when an exploitative situation results or is maintained without a preceding exploitative process.

Depending on the facts, for example, there might be an exploitative process if individuals from Central Asia were falsely promised jobs that then led to involuntary recruitment or if women who traveled to Syria were genuinely deceived about conditions in the caliphate. And because trafficking can occur due to changed circumstances, if women linked to ISIS originally agreed to a marriage that instead became “domestic servitude or sexual slavery” this might change voluntary travel to the caliphate to an involuntary stay.

The issue of ISIS child recruits under 18 poses particular legal questions. Under the U.N. Trafficking Protocol, child trafficking occurs if there is an “act” (e.g., recruitment or transportation) with the specific intent or “purpose” to exploit. Unlike trafficking of adults, it is not required to show “means,” such as actual deception or “grooming,” because a child cannot give informed consent to their own exploitation even if they understood what was happening.

The case of Shamima Begum, who traveled to ISIS in 2015 at the age of 15 and who is now seeking to return to the United Kingdom is illustrative. For authorities, whether Begum was trafficked to ISIS turns on whether, as a child, she was subjected to some act, such as recruitment or transport, the purpose of which was her exploitation. This assessment does not hinge on her reported lack of remorse, the security threat she might pose, or even the sensational details of how she was “groomed” before travel, although the latter might shed light on the purpose for which she was recruited and transported.

Under domestic, regional, and international anti-trafficking law, these questions are incredibly complicated, requiring governments to identify victims on a case-by-case basis, avoiding reductive gender and age stereotypes. Yet a hands-off approach to citizens abroad and a blanket policy of non-repatriation—including because of a lack of consular presence in Syria—makes this difficult, if not impossible, to assess. And governments that do not have a system in place to identify whether trafficking occurred are prima facie in violation of States’ obligations under international law, including human rights and anti-trafficking regimes.

How trafficking affects punishment of those affiliated with terror groups 

When it comes to prosecuting alleged crimes of terrorism, including those of foreign fighters and others affiliated with ISIS, investigating whether the case is one of human trafficking is consequential. In particular, the principle of non-punishment would apply, meaning that trafficking victims should not be detained, charged, or prosecuted for activities that are a direct consequence of their having been trafficked. Indeed, the U.N. Security Council has explicitly noted that trafficking victims should be “treated as victims of crime and in line with domestic legislation, not penalized or stigmatized for their involvement in any unlawful activities.”

While the outer limits and the mechanics of the non-punishment principle will vary under different domestic laws, the determination of whether someone is a trafficking victim will be mitigating. It could mean, in some instances, the difference between whether someone is fully prosecuted or reintegrated into their communities.

And in cases of reintegration, the acknowledgement that the person is a victim as well as a perpetrator can help in designing and implementing a more effective plan for their rehabilitation and recovery. The dual role of victim and perpetrator is particularly complex and produces a unique stigma and backlash in the person’s community. The challenges of reintegrating child soldiers can be a useful analogy. 

The ramifications of sanctions when trafficking provides minimal revenue

Research has shown that, as CTED notes, “human trafficking does not represent a key source of revenue for terrorist groups.” The Financial Action Task Force (FATF) found the same in its 2018 analysis of financial flows from trafficking. So, what does that mean for efforts at the U.N. Security Council to strengthen counter-terrorism financing sanctions based on the assumption that the terrorism-trafficking nexus is stronger than evidence now shows?

The Security Council has regularly called for stiffer counter-terrorism financing measures (e.g., resolutions 2199 (2014), 2253 (2015), 2331 (2016), 2368 (2017)), as does the new CTED report. But these exhortations can miss the mark, at best. At worst, they risk giving more teeth to an architecture that our research at Duke Law’s International Human Rights Clinic, with the Hague-based Women Peacemakers Program, shows actually undermines women’s rights and women’s organizations, including because it is misused by governments to crack down on civil society. 

Backfire: Counter-terrorism steps can actually contribute to trafficking 

Unless carefully analyzed, claims about the connection between trafficking and terrorism and actions taken with the intent of breaking the cycle can actually backfire. For example, CTED’s report instructively assesses how conflict such as the one that has displaced millions of Syrians and restrictions on legal migration actually make more people vulnerable to exploitation, including trafficking. But in some cases, those contributing factors are a direct result of measures to counter terrorism, and these security measures can also make it harder to address the suffering of victims.

For example, increased border controls in the name of national security encourage riskier and clandestine movement that can increase vulnerability to trafficking. And our research, including some of the same cited earlier, has found that rules designed to stem financing for terrorism have actually made states and donors risk-averse to supporting victims of terrorism, including trafficking victims.

What’s next?

Trafficking and terrorism are clearly linked. But the connection needs to be considered cautiously and in the context of the robust international, regional, and domestic legal regimes already in place to combat trafficking and secure human rights. Such an analysis produces fundamental policy and legal questions that need to be addressed urgently. These include:

How can victims of trafficking in the context of terrorism be assisted most effectively?

How does the definition of trafficking apply, on a case-by-case basis, to assess whether someone is a perpetrator and/or a victim and to determine how they should be treated subsequently?

What steps can authorities take to reduce the use of trafficking to finance terrorism without imposing counter-terrorism regimes that undermine women’s rights?

And finally, how can authorities avoid counter-terrorism measures that may inadvertently worsen the conditions that lead to trafficking, and instead take actions that constructively address trafficking?

IMAGE: Women and children who fled the Islamic State (IS) group’s embattled holdout of Baghouz on Feb. 14, 2019, wait in the back of a truck in the eastern Syrian province of Deir Ezzor. Kurdish-led forces were closing in on the small town, where IS fighters and their relatives were hunkered down, and met famished and disheveled people turning themselves in. (Photo FADEL SENNA/AFP/Getty Images)