The mother of all legal and moral dilemmas

Most Australian women who travelled to Syria as part of the failed Islamic State project will eventually return. Others won’t. Some were killed in airstrikes, one allegedly died from medical complications, while others whose Australian citizenship was ceased may never return, unless it is to face trial.

Their situation doesn’t elicit much sympathy in Australia, given they travelled thousands of kilometres to join an organisation willing to kill and subjugate others based on their religious identity, and to conduct attacks against their own country. As unsympathetic as they are, they nevertheless need to be brought back to this country. The Coalition government was content to leave them in their camps in northern Syria – it wasn’t a pressing policy issue for the Coalition. To be fair, close partners such as Canada and the UK adopted a similar policy. With a change of government, however, a new approach may be taken.

In contrast to the men, who were all trained to be fighters but whose technical skills could be used by Islamic State, women’s roles in Islamic State were quite circumscribed. They were expected to marry, produce children, look after their households, indoctrinate their children and encourage their husbands to be resolute in carrying out jihad. Some actively recruited other women and/or spread pro-Islamic State propaganda. Others fulfilled internal policing roles to ensure women observed Islamic social mores.

The “Islamic State” could not be sustained without the roles performed by women any more than it could be created without the actions undertaken by the men. There are, however, obvious challenges in gathering evidence and applying laws to a situation that courts have not had to address before – women travelling to a conflict zone to support the creation of a violent, intolerant religious proto-state. Some men who returned have been charged with foreign incursion offences, requiring the person to have entered the country with the intent to engage in hostile activity (or to recruit others to do so) – a lower legal bar for governments to clear given the way in which men were employed by Islamic State.

Other countries have prosecuted Islamic State women for a range of offences. In Germany, women have been found guilty of participating in a foreign terrorist organisation, crimes against humanity (for holding Yazidi women as slaves), breaching duty of care for taking their children to a conflict zone, exercising power over a weapon of war (weapons, grenades, suicide belts that were held in their home) and war crimes for appropriating the property in which they lived.

A Swedish court found Lina Ishaq guilty of a war crime for failing to prevent her son from being used as a child soldier by Islamic State. In the US two returnees pleaded guilty to conspiring to provide material support to a foreign terrorist organisation and financing terrorism respectively. The only female returnee convicted to date in the UK was found guilty of encouraging acts of terrorism and membership of Islamic State.

The key to the repatriation of the Australian women is the gathering of sufficient admissible evidence that allows arrest warrants to be issued for all of them prior to their return. Failure to do this may well allow some returnees to walk free on return to Australia, posing a security risk that will need addressing. Exactly what the women who return will be charged with depends on the government and available evidence. A start point for most prosecutions will likely be the “declared area” offence for intentionally entering Raqqa or Mosul (Islamic State’s Syrian and Iraqi “capitals”) during the relevant period.

On return to Australia the women will be charged, remanded in custody and their children taken into care until the legal processes have finished. This has been the norm in overseas jurisdictions and is essential for the successful deradicalisation of the children and integration (or reintegration) into a secular, liberal society. After their sentences are complete the women will almost certainly be subject to a court-imposed control order.

For returnees without arrest warrants issued against them, authorities will need to decide whether they should, or could, obtain a control order to reduce the security risk posed by these women. Control orders have proven an effective tool to date in monitoring the actions of terrorism offenders. Of 14 terrorism-related control orders issued, nine have been breached, which indicates not only a proclivity for terrorism offenders to ignore state-imposed orders, but also the instrument’s effectiveness in alerting authorities to an individual’s willingness to reject state authority.

Female Islamic State supporters can be just as problematic as men. Two women have been issued control orders to date, one of whom breached its conditions and was sentenced to 16 months in jail (another control order was imposed after this sentence). And Momena Shoma, the Bangladeshi woman sentenced to 42 years in prison for a terrorist attack in Melbourne, attacked a Canadian inmate while in jail and received a further six-year sentence.

Of course, some women will argue they were unwilling participants and profer narratives in which they were coerced into entering Syria, were oblivious of where they were going until the last minute and that they tried to escape. We should be very careful about accepting the truthfulness of such claims. Tareena Shakil, the UK woman charged with joining Islamic State in Syria, tearfully claimed in a police interview she had been duped into travelling to Syria by a Turkish man she met on holiday. The evidence exposed this falsehood and the judge at sentencing noted she had told “lie after lie”.

An American woman, Samantha Sally, claimed to media that her husband forced her to enter Syria by threatening she would never see one of her children again. On return to the US she pleaded guilty to terrorism financing, and it was clear she knew her husband was joining Islamic State and willingly aided and abetted his venture. A Swedish court did not accept Lina Ishaq’s claim that she was tricked by her husband into entering Syria, while German courts have also been highly sceptical of women’s claims to have been ignorant of the nature of Islamic State in Syria. This scepticism extends to claims about thwarted escape attempts, either because their claims didn’t fit the other evidence presented at trial, or because the timing of the attempt appeared to be about self-preservation in the face of military defeat rather than renunciation of a radical Islamist ideology.

Eventually the women of Islamic State to whom Australia has obligations will return. Whether they return with or without their children’s fathers remains to be seen, but because they have responsibility for the children under their care (or in a few cases were minors themselves when taken to Syria by their parents) the greater imperative is to return them so the children can commence the deradicalisation process as quickly as possible.

The actions of these women have placed their children in danger and have stunted their children’s academic and emotional growth. The women should face the full force of the law on return, just as the children should be given the opportunity, denied to them by their parents’ actions, to develop normally.