Almost six years have passed since the genocide against the Yazidis, an ethno-religious minority group in Northern Iraq, and one of the first trials against a female ISIS returnee accused of crimes against humanity recently commenced in Hamburg. While some European countries, such as France, have given up on their nationals who joined the so-called Islamic State by letting them face the death penalty in Iraq, Germany is standing by their citizens and taking steps to prosecute them domestically. As the Hamburg judges move forward with the case against Omaima A., they will have to determine whether she is guilty of charges including keeping a 13-year-old Yazidi girl as a slave.
The Case of Omaima A.
On May 4, the trial against the 35-year-old German and Tunisian citizen, Omaima A., began in the Higher Regional Court (Oberlandsgericht) in Hamburg. She is facing multiple charges related to her participation in ISIS.
In January 2015, Omaima traveled from Germany via Turkey to Syria with her three children. Her apparent aim was to join her then-husband, an ISIS fighter, in Raqqa under the rule of the would-be Islamic State Caliphate. After arriving in Raqqa she was initially housed in an ISIS women’s shelter before her husband, Nadar, arranged housing for them together.
From that point onward, Omaima brought up their three children in accordance with ISIS ideology and participated in ISIS activities. Her household also included an enslaved 13-year-old Yazidi girl, as allowed by ISIS ideology. While she did not join Nadar on the battlefield, Omaima still possessed a Kalashnikov AK 47 assault rifle.
Nadar was killed in an air strike on Kobane only a few months after Omaima and the children arrived in Syria. Following this, she received a condolence payment of $1,000 and a further $310 for child support from ISIS. Omaima then married another ISIS fighter, Denis Cuspert, who was a German national and high-profile ISIS propagandist. Following a series of disputes with her new husband, and desiring to give birth to her fourth child back in Germany, Omaima left ISIS territory at the beginning of September 2016 and returned to her previous life in Hamburg. She was working as an event planner and translator when she was arrested in 2019.
It is unclear whether Omaima lost her phone in Syria or deliberately left it behind. Regardless, a Lebanese reporter got hold of her phone — complete with 36 GB of data, pictures, and videos — and drew attention to the case, which prompted official investigation. Phone data show her children playing with guns and grenades, Omaima using a Kalashnikov AK 47, and even celebrating Osama bin Laden’s birthday over a cake depicting his picture and the two U.S. towers. Omaima was arrested on September 9, 2019, and has been in custody ever since.
Given that her phone holds so much data it could be a mine of evidence against other ISIS returnees and defectors.
The Indictment and Universal Jurisdiction Over International Crimes in Germany
Omaima’s case is particularly significant because she is one of the first female ISIS returnees to face charges of crimes against humanity in Germany, or elsewhere for that matter. In particular, she has been indicted for enslaving a 13-year-old Yazidi girl as a crime against humanity under the German Code of Crimes Against International Law (CCAIL) (section 7(1)(3)).
She is also facing an interesting mix of other charges, including violating the War Weapons Control Act for possessing an illegal weapon (section 22a(1)(6)). Under the German Criminal Code, she is accused of: joining a foreign terrorist organization (sections 129a(1)(1), 129b(1) sentences 1 and 2); violating the duty of care she owes to her children (section 171); human trafficking of a minor under the age of 14 for the purpose of labor exploitation (sections 232(3)(1), 232(3)(2), 233(1)(1), 233(3)); and depriving a person of liberty (section 239(1)).
Omaima’s case is one of the universal jurisdiction prosecutions currently underway in Germany. (Just Security has discussed the German universal jurisdiction cases in other articles.) Here, the CCAIL provides a framework for exercising universal jurisdiction, expressing the harm to the international community caused by such crimes and requiring no nexus to Germany. Questions of her nationality, her physical presence in Germany, where the alleged crimes took place, who they affected, and so on, accordingly are important only for prosecutorial discretion. At the same time, Germany has jurisdiction over her other alleged crimes, which took place in Syria and do require a connection to Germany to be tried there, because she is a German citizen.
Although Omaima’s charges mark a benchmark success for international justice, the auditorium of the main hearing room allowed only six places to protect against infection risks of COVID-19 while the judges stood behind proxy glass during the hearing.
Challenges Posed by ISIS Returnees
Up to 41,490 international citizens from 80 countries are thought to have joined ISIS in Iraq and Syria between April 2013 and June 2018. Among them are 5,904 nationals from Western Europe, but the countries to which they return are handling their cases in assorted ways. In particular, responses by the U.K. and members of the EU toward women, children, and other ISIS fighters who have returned to their country of origin varies depending on a range of policies, ethical obligations toward their citizens, accountability for justice, dissemination of information at the EU level, and the individual’s former or present engagement with ISIS.
ISIS returnees not only pose potential threats when they arrive in Western countries, but also present an unexpected challenge to law enforcement officials. A 2018 evaluation by the European Parliament on the “Return of Foreign Fighters to EU Soil” articulated many dimensions of this challenge, which remain hotly debated in various policy circles. These include: the prosecution and trial of European departees to Syria and Iraq; the sharing of information between European member states and third countries on these departees; and the need to develop evidentiary standards for battlefield evidence. As a result, member states will continue to deal with returnees on a case-by-case basis, while promoting information sharing and the provision of mutual legal assistance among states.
Moreover, ISIS members have fluid and constantly changing personal information in the ambiguity of war, particularly when they slide back to their countries of origin with different names. To address this, governments will need more guidance and robust information sharing.
Women and children returning from ISIS present even further challenges. With children in particular, balancing human rights and national security concerns when making decisions about returnee children is delicate. They cannot consent from a legal perspective, but judges still consider how radicalized each child is to determine what type and duration of rehabilitation is necessary for that child.
The question of what to do with women is even more vexing. First, women often claim they were forced by their husbands to follow them to Syria and Iraq, essentially negating their consent or involvement. As such, additional evidence is needed to determine whether they actively engaged with ISIS and, if so, what the type and scope of their engagement was. Women’s roles in ISIS have changed as the group has evolved. Initially, women were constrained to domestic functions — supporting their militant husbands and raising children to carry on the organization’s vision. However, as the so-called caliphate has been collapsing in recent years, women have been called to arms. For example, ISIS released a video in 2018 showing women fighting alongside men in Iraq and Syria. Second, evidence shows women to be key influencers in their networks, often with family and friends. So, it’s likely that women play a key role in recruiting other foreign fighters; however, establishing such evidence is difficult.
Responses to ISIS Returnees by Current and Former EU Members
In the case of the U.K., all returnees are interviewed by the security service to establish a holistic report on their involvement in the conflict, other relevant experiences, and risks they might pose. If there is no evidence, or insufficient evidence, that an individual has committed an offense, they are placed into a deradicalization program, which can include intensive mentoring and support from psychologists to ensure stable reintegration. Children who have been indoctrinated with ISIS ideology receive intensive care and continue to be monitored after rehabilitation. If there is evidence of an offense, or if the individual is deemed to potentially pose a threat, the government will prevent them from returning to U.K. society, including by revoking their British citizenship, as in the case of Shamima Begum, and the two Beatles. Such tactics could theoretically be used against children as well as adults, but, like other EU members, the U.K. makes determinations on a case-by-case basis and has repatriated some children with U.K. citizenship, including orphans, unaccompanied minors, and children who were left stranded when their parents were denaturalized.
By contrast, France seems to prefer that its citizens be prosecuted in the region “provided that individuals are afforded a fair trial,” according to a European Parliament report. However, in a shocking revelation, the Wall Street Journal reported that France allegedly enlisted the help of Iraqi units to ensure that French nationals fighting in the country do not escape Iraq or Syria. The apparent aim of this effort was to prevent these individuals from posing a threat upon their return in France. By doing so, it allowed French nationals to be prosecuted in the region which, in most cases, involves the application by Iraqi judges of the Iraqi Anti-Terrorism Law No. (13) for the year 2005, and potentially the death penalty if proven guilty. In May 2019, an Iraqi court sentenced 7 French citizens who joined ISIS to death by hanging after prosecuting them under the anti-terrorism law. The French Foreign Ministry said in a statement that “France respects the Iraqi authorities’ sovereignty,” but added that “France is opposed, on principle, to the death penalty, anytime and anywhere.”
In the EU, Germany has one of the highest numbers of persons who travelled to Syria or Iraq. Since December 2017, all ISIS returnees to Germany have been subjected to criminal investigation. Before that, women, like Omaima, and children were exempted unless evidence of criminal activity was brought forward.
The more cases there are of ISIS returnees being prosecuted, the larger the established empirical evidence-base will be. This year, for example, German courts have dominated international news with their commitment and tenacity for justice. It is undoubtedly difficult to prove cases related to faraway abuse. Yet the cases of Taha Al J., who is charged with genocide and crimes against humanity, Sabine S. last year who was sentenced to prison for membership in ISIS, and now Omaima, among other cases, show that there is some hope for long-awaited justice.