When the deranged fantasy of a caliphate was at its peak, thousands of men and women traveled to Syria and Iraq to join ISIS.
By October 2015, an estimated 30,000 people from 100 countries were part of the fight, linked to ISIS or other militant groups.
In 2018, around 30% of the foreign fighters had returned back home (the number most likely higher now). In addition, ISIS-members from the region have fled, and some are now on European soil.
So far, many of these fighters have been tried in national courts, solely on terrorism charges. That does not capture the scope of atrocities these fighters have engaged in, and it doesn’t reflect the fact that ISIS is not only a terrorist organisation, but a party to the conflict in Syria and Iraq.
Therefore, European prosecutors are increasingly seeking to charge the fighters with core international crimes, such as war crimes, genocide, torture, and crimes against humanity – in addition to the terrorism charges.
That’s the conclusion of the report ‘Cumulative prosecution of foreign terrorist fighters for core international crimes and terrorism-related offences’, which is presented today (23rd of May) by Eurojust and the Genocide Network on the occasion of the 5th EU Day against Impunity. You can watch the full presentation at Eurojust’s youtube-channel.
The cumulative charging ensures that the perpetrators are actually, for the world to see, punished for what they’ve done to the individual victims of their crimes. And it leads to higher sentencing, securing justice for the victims.
Since 2016, there have only been two verdicts in cases against foreign fighters where the defendant was also charged with a core international crime (war crimes in both instances).
Now, we have around 20 cases (either ongoing or verdict delivered) in Germany, The Netherlands, France, Hungary and Finland.
Posing as a war criminal
But of course you can’t just charge someone with a war crime. You need to prove it, and it can be difficult to establish the involvement of individual ISIS-members in known instances of violence. Witnesses, surviving victims and crime sites may be out of reach. One of the tools the European prosecutors have when they build up their cases is paradoxically given to them by ISIS-members themselves.
Many photos and videos of ISIS-fighters posing next to dead bodies have been found on social media. In several cases, the bodies show clear signs of mutilation. The prosecutors argue that posing and smiling next to a mutilated body is to commit outrage upon the personal dignity of the deceased, and that’s a war crime.
Last year, Dutch-born ISIS-fighter Oussama Achraf Akhlafa was found guilty of exactly that war crime, after investigators found a Facebook-picture of him posing next to a crucified man.
The special investigators found a video of the murder, which confirmed that it was committed by ISIS, but that Oussama had not been directly involved in the murder or mutilation of the body. He was sentenced to 6.5 years of prison for being a member of a terrorist organisation and 2.5 years for the war crime, a total of 9 years. The case is on appeal.
Genocide against the Yazidis
In Germany we are seeing some big ‘firsts’. The first trial against Syrian regime officials charged with torture, murder, and rape has begun, as well as the first trial against an alleged ISIS-member charged with genocide against the Yazidis.
The defendant is Taha Al-J (an Iraqi citizen extradited from Greece). According to the indictment, as a member of ISIS, he bought a Yazidi woman and her five year old daughter in 2015. He forced them to ‘keep house’ and live under strict Islamic rules. He beat them, and denied them sufficient amounts of food and water. When the little girl wet her bed, he punished her by tying her to bars of a window in the hot sun, on a day where the temperature reached 50 degrees Celsius, and she died.
The prosecutors are arguing that Taha Al-J, in doing so, took part in ISIS’ systematic effort to obliterate the Yazidi-community in northern Iraq. It has already been established by several entities, and recognized by the UN, that ISIS is the perpetrator of genocide (mass killings, kidnappings, sexual slavery, rape, human trafficking, forced conversion) against the Yazidis.
Now, it’s up to the prosecutors to prove that Taha Al-J personally bought into this effort and intently, through his actions against the Yazidi mother and her daughter, took part in it.
Apart from the murder of the girl and genocide against the Yazidi community, he is also charged with being a member of a terrorist group, crimes against humanity, war crimes, and human trafficking.
His spouse (who is German-born) has been on trial since April last year. She is also charged with the murder of the young girl, being a member of ISIS, and war crimes. If found guilty, they face life in prison. Both cases are excellent examples of why cumulative charging is essential when trying to encompass the full criminal scope of individual perpetrators.
It may take longer for prosecutors to prepare cases with cumulative charges, but the time will be well-spent if it leads to redress for the victims and the possibility to put the bad guys behind bars for longer.
Sources: German prosecutor Ms Nicole Vogelenzang, head of the Genocide Network Secretariat at Eurojust Mr Matevz Pezdirc, Eurojust, Trial International, International Crime Database, Just Security.