Holding Women Accountable: Prosecuting Female Returnees in Germany.

• Author: Koller, Sofia

This article examines the criminal justice approach to prosecuting women who left Germany during the last 10 years to join terrorist organizations in Syria and Iraq, including the Islamic State, and returned. In 2018, the German Federal Court of Justice (BGH) ruled that presence in Islamic State territory alone was not enough to constitute membership in a terrorist organization, complicating criminal prosecution of female returnees in Germany. In response, German prosecutors have been using both national and international law to charge and convict female returnees for carrying weapons or looting, which in turn supports their argument that women have indeed been members or supporters of a terrorist organization. This has helped them hold female returnees to Germany responsible for their crimes. Of the more than 80 German adult female returnees, 22 have been charged as of December 2021. A total of 20 have been convicted of, for example, membership in or support of a terrorist organization, weapons violations, war crimes against property, and/or crimes against humanity, with the average sentence for female returnees of three years and 10 months.

Three years and 10 months. (a) This is the average sentence that convicted women who traveled to Syria and Iraq to join jihadi organizations such as the Islamic State between 2011 and 2021 and returned (hereafter referred to as female returnees), have received in Germany as of December 2021. Since the military defeat of the Islamic State in Syria and Iraq, the German judiciary has been confronted with an increased number of foreign fighters (b) returning from the conflict zone. So far, authorities have had more experience dealing with male returning foreign terrorist fighters (FTFs). (1) However, while at least 13 percent of all foreigners who joined the Islamic State were female, there is less experience with prosecution of female returnees. (2) Women were often perceived as passive victims who were lured into joining a terrorist organization by men, as less ideological and less dangerous. (3) With more information on the actual role of women within the Islamic State coming to light, this understanding is slowly changing. (4) Jennifer W. is a case in point. On October 25, 2021, she was sentenced to 10 years in prison for membership in a foreign terrorist organization, aiding and abetting murder by omission, and crimes against humanity with fatal consequences. After joining the Islamic State in summer 2014, she did nothing to prevent the death of a Yazidi "slave" girl who her husband hanged on a fence as punishment. (5)

This article examines the criminal justice approach to prosecuting women such as Jennifer W. who left Germany between around 2011 and 2021 to join terrorist organizations in Syria and Iraq, including the Islamic State, and returned. Dealing with female returnees poses new challenges for practitioners in law enforcement, prosecution, prison, and probation as well as rehabilitation. A focus on the convictions of female returnees sheds light on the criminal justice approach to female terrorists in Germany and how it has developed in recent years.

Before embarking on this research, the authors hypothesized that the prosecution of female returnees in Germany was still based on a rather limited understanding of the roles of women in extremism and terrorism: If they were only considered naive "jihadi brides" without real agency within a terrorist organization such as the Islamic State, then this would be reflected in a lack of prosecution and conviction for terrorism offenses. (6) But this article makes clear this assumption was incorrect by presenting new data on German female returnees who have been charged and convicted for terrorism-related crimes. It uses open-source material such as official press releases from the Chief Public Prosecutor's Offices and news articles to provide insight into the publicly available information on the defendants, such as age, nationality, and charges as well as details of the conviction and the prison sentence.

After a short overview of the German foreign fighter phenomenon and existing research, this article introduces the existing German criminal justice framework to returning foreign fighters in general. It then outlines takeaways from the criminal proceedings against 22 German female returnees as of December 2021. In the final section, some preliminary conclusions are drawn and future research needs outlined. An appendix at the end of the article provides details about each of the 22 cases.

When Foreign Fighters Return

According to the German government, more than 1,150 persons have left Germany to join jihadi organizations, mostly the Islamic State in Syria and Iraq, since 2011. (7) Around 25 percent of those who are known to have departed Germany have since lost their lives, and many are still missing. (8) In Kurdish-managed camps in northeastern Syria, roughly 30 men and 22 women who previously resided in Germany and around 150 children (c) are still said to be detained with thousands of other (former) Islamic State affiliates; nine German foreign recruits, six of them women, are said to be currently imprisoned in Iraq. (9) Thirty-seven percent of the original travelers are estimated to have returned to Germany. The German government states that as of January 2021, they have information on 148 individuals who have at least temporarily joined the Islamic State and returned to Germany but the relevant statement does not differentiate between men and women. (10) Based on an informal conversation between the authors and a representative of the German government in December 2021, there are more than 80 adult female returnees who have returned to Germany from the conflict zone in Syria and Iraq. Some women returned voluntarily quite early on, others in the last months of the caliphate. In addition, the German government has repatriated several women and children, most recently in October 2021. (11) This is also a consequence of several court decisions obligating the government to locate and repatriate certain German minors and their mothers. Extensive research has been done on the (European) foreign fighters who have joined terrorist organizations such as the Islamic State and those that have returned. (12) Regarding Germany, researchers from the Bremen police have, for example, contributed an assessment of policies on returnees, (13) and researchers at the International Centre for Counter-Terrorism have touched upon various issues such as the deprivation of nationality as a tool to deal with FTFs. (14) In addition, the German Federal Criminal Police Office has conducted an extensive study on the profiles of German foreign fighters and is currently preparing one on returnees. (15) Returnees present various challenges for their home countries, especially from a security perspective: While some are disillusioned, others might still adhere to extremist ideology and pose a security risk. Men and boys have often received military training and have combat experience, but women are also known to have handled weapons. (16)

As evidence is not always available or cannot be used in court, charging and convicting returnees is challenging. Those who are not convicted but are deemed potentially dangerous have to be monitored by security agencies, which is very resource intensive. Not all returnees are open to engage in deradicalization and disengagement programs. In addition, if convicted, they still pose a threat in prison because they can potentially radicalize other inmates. So far, Germany, like other European countries, has had little experience in dealing with this specific group of potentially radicalized female inmates. (17)

Regarding women and girls traveling to the caliphate, most of the research so far has looked into their background, radicalization process, or motivation to depart as well as role within the Islamic State. (18) German court records are far from easily accessible, and therefore, there is no equivalent to the tracking data provided by George Washington University's Program on Extremism, which tracks individual U.S. cases of Islamic State-related offenses since 2014. (19) Even less research has been published on Germany's returning female foreign fighters. (20)

In addition, there are few analyses of the prosecution of returning foreign fighters outside specialist journals, with one example of a non-specialist journal article being an article on gender stereotypes in trials of female returnees in Germany. (21) One reason might be strict German data protection laws that make complete access to judicial court files quite challenging. The exact number of female foreign recruits and returnees is not publicly available. To the authors' knowledge, there is also no public overview of charged and convicted female returnees in Germany so far, which demonstrates the relevance of the findings presented in this article.

The Criminal Justice Framework

In some European countries, such as Belgium and France, FTFs can be tried in absentia. (22) This means that a person can be charged and convicted for a crime while not being present in court. The person would have to serve their sentence upon return. Germany has another approach to the prosecution of both male and female foreign fighters, however, as convictions in absentia are not allowed.

There are two main offenses that are relevant for the criminal prosecution of all returnees: "membership in a foreign terrorist organization" according to [section][section] 129a, 129b of the German criminal code (Strafgesetzbuch or StGB) and "preparation of a serious act of violent subversion" according to [section] 89a StGB. Relevant in the context of FTFs are also [section] 22a of the "War Weapons Control Act" (KrWaffKontrG) as well as several violations of international law (VStGB), for example, "crimes against humanity" ([section] 7), "war crimes against people" ([section]...