ISIS and Sexual Terrorism: Scope, Challenges and the (Mis)Use of the Label 

Dr. Christophe Paulussen 27 Jan 2021
 

Attacking Sinjar [in northern Iraq] and taking girls to use as sex slaves wasn’t a spontaneous decision made on the battlefield by a greedy soldier. Islamic State planned it all: how they would come into our homes, what made a girl more or less valuable, which militants deserved a sabaya [sex slave] as incentive and which should pay. They even discussed sabaya in their glossy propaganda magazine, Dabiq, in an attempt to draw new recruits. But Isis is not as original as its members think it is. Rape has been used throughout history as a weapon of war. I never thought I would have something in common with women in Rwanda – before all this, I didn’t know that a country called Rwanda existed – and now I am linked to them in the worst possible way, as a victim of a war crime that is so hard to talk about that no one in the world was prosecuted for committing it until just 16 years before Isis came to Sinjar.

These words come from 2018 Nobel Peace Prize winner Nadia Murad, who frames the use of sexual violence in conflict from a historical perspective to illustrate the connections between terrorism, conflict-related sexual violence (CRSV) and human trafficking. Indeed, rape and other forms of sexual violence in conflict have been taking place around the world for ages. But despite the high occurrence of sexual violence in conflict and its enormous potential to destroy individual lives, communities, and societies, these crimes historically were not explicitly criminalised and its perpetrators have largely escaped prosecution. It took until the 1990s for the international criminal tribunals’ statutes to label and/or prosecute CRSV as international crimes, such as war crimes, crimes against humanity and genocide. An example is the monumental 1998 Akayesu judgment from the International Criminal Tribunal for Rwanda (ICTR), in which the judges found that rape and sexual violence can also constitute genocide. Even though Akayesu was convicted for genocide and crimes against humanity, and not for war crimes, this is probably the judgement that Nadia Murad refers to. Although international and national prosecutions of CRSV have increased since, the number of prosecutions is still shockingly low and does not account for those cases in which CRSV and trafficking in human beings are used to commit terrorism (sexual terrorism).

In this perspective, the concept of sexual terrorism will be briefly explained, before turning to ISIS’ use of this tactic. After that, legislative and prosecutorial challenges at the national level will be discussed, including the (dis)advantages of using the sexual terrorism label, before offering a few final remarks on the way forward.

Sexual Terrorism

Although the concept of sexual terrorism has been used in the past, it has recently received increased attention due to the activities of terrorist organisations such as not only ISIS, but also Al-Shabaab and Boko Haram. When these terrorist groups use CRSV and human trafficking as a tactic of terrorism, one could speak of sexual terrorism. The nexus between these forms of criminality has been gradually recognised, including at the international level. For example, in UN Security Council Resolution 2331 of 20 December 2016, the Council expressed its deep concern that:

acts of sexual and gender-based violence, including when associated to human trafficking, are known to be part of the strategic objectives and ideology of certain terrorist groups, used as a tactic of terrorism and an instrument to increase their finances and their power through recruitment and the destruction of communities.

ISIS’ Sexual Terrorism

As very clearly explained by Nadia Murad, ISIS, just like Al-Shabaab and Boko Haram, has been involved in what could be called sexual terrorism, which has also has been recognised by the international community. In UN Security Council Resolution 2253 of 17 December 2015, the Council condemned in the strongest terms abductions of women and children, including by ISIS, and expressed outrage at their exploitation and abuse, including sexual violence and enslavement. In the already-mentioned Resolution 2331, the Council moreover explicitly referred to Nadia Murad’s group, the Yezidis.

The use of sexual violence and human trafficking by ISIS has manifested itself in different ways, the most visible aspect being (especially female) sexual enslavement. Indeed, thousands of women and girls, particularly Christians and Yezidis, have been abducted by ISIS, after which the women were placed in brothels or sold as sex slaves on the market. Such practices, – instructed by ISIS (it published guidelines in December 2014 on how to capture, forcibly hold, and sexually abuse female slaves, and even had a Department of Slaves) and approved by its courts – constituted a revenue source for this terrorist organisation. Furthermore, as noted by Ahram, “[p]assing abducted women from man to man [also] demonstrate[d] the abject humiliation of a conquered community” – and was justified by ISIS “as permissible conduct towards non-believers who refuse to accede to Islam.” Hence, and as also explained in an earlier ICCT perspective by Nadia Al-Dayel and Andrew Mumford, sexual terrorism by ISIS was extremely widespread, organised and institutionalised. It has been used, among other things, to further its ideology, to crush and terrorise opposing communities, to recruit new fighters (and to keep those recruited inside the organisation), and to increase the organisation’s financial resources.

Legislative and Prosecutorial Challenges at the National Level

It goes without saying how important it is that the perpetrators of sexual terrorism are brought to justice, but the question is: how to do so? In this perspective, the focus will be on prosecutions at the national level, in Syria and mainly Iraq, where obviously most of the crimes have been committed. It is clear that in this context, considerable work still needs to be done, also because government officials may lack a general understanding of the crimes (and for example arrest people for prostitution, even if these may be trafficking victims) or worse: be complicit in them. In the US Trafficking in Human Beings Report 2019, it is noted that in Syria and Iraq, some, but not many, human traffickers have been convicted, albeit neither clearly members of ISIS, nor explicitly linked to sexual violence. In his latest report on CRSV of June 2020, the UN Secretary-General stated in the case of Iraq that “there are still no indictments for sexual violence committed by ISIL.” Indeed, members of ISIS are usually only convicted for terrorism offences (and then often only involving charges not specifying certain acts, but rather the mere membership of or affiliation with the terrorist organisation). According to Human Rights Watch, “a defendant [even] admitted during his trial at the Nineveh counterterrorism court that he had held four women as sex slaves, raping a different one each night. But the judge only convicted him for ISIS membership.” There is only one Iraqi case known to the author of an ISIS-affiliated defendant, who in March 2020 faced charges of, among other things, rape and abduction of Yazidi women. This case – of Mohammed Rashid Sahab, also known as Abu Humam, who in the end received the death sentence – is analysed in greater detail in this contribution by Gina Vale in the recently published special issue on ‘The Nexus between Terrorism, Human Trafficking and Conflict-Related Sexual Violence’, of the Journal of Human Trafficking, Enslavement and Conflict-Related Sexual Violence.

Relevant in this context is of course also the legislative framework in place. Focusing on Iraq, all prosecutions of ISIS fighters basically take place under Iraq’s broad anti-terrorism law of 2005, with a focus on membership charges. This means that the actual crimes are not investigated, that there is no differentiation between, for example, a leader and a cook, and hence no establishment of an accurate judicial record. However, to the prosecutorial authorities, this is not really problematic, as also these broader charges, if they lead to convictions, engender very high sentences (life imprisonment or death) and so there is no incentive for prosecutors, who have little time and resources, to delve into technically more complicated investigations. It should be said, this is not only the case for Iraq – also in the West, the main focus of prosecutors has been on membership charges.

In Iraq, sexual acts may be prosecuted under the national penal code, but provisions are quite outdated (and in any case not used against ISIS members). An example is the definition of rape. Article 393, paragraph 1 of the (1969) Iraqi Penal Code states: “Any person who has sexual intercourse with a female without her consent or commits buggery with any person without their consent is punishable by a term of imprisonment not exceeding 15 years.” What is problematic about this definition is that it contains gendered language, clearly assuming male perpetrators and female victims. Also, the law’s focus on a victim’s “consent” does not recognise the inherent coerciveness of conflict environments. As explained in the Global Justice Center’s March 2018 report ‘Iraq’s Criminal Laws Preclude Justice For Women And Girls’: in ISIS’ captivity or under their rule, “women and girls had limited autonomy, including no choice over where they were taken, to whom they were sold, or how they were treated, and had no ability to decide the conditions in which they engaged in sexual activity.”

As regards human trafficking provisions, these include the sale and exploitation of people, among other things through prostitution, sexual abuse and enslavement. However, it seems that these have also not been used against ISIS members.

Finally, serious international crimes such as crimes against humanity, war crimes, or genocide are not criminalised under Iraqi law.

(Dis)advantages of Using the Sexual Terrorism Label

Due to the inadequacy of the existing laws in providing justice to victims of sexual terrorism, the argument has been made to amend the different terrorism legislation to explicitly categorise CRSV and human trafficking as a form of terrorism, i.e. as the crime of sexual terrorism. This argument was made while fully recognising that any expansion of terrorism legislation can have a huge negative impact on individuals and should hence be addressed with caution. This is also why, at the same time, it was stressed that legislators must ensure that any expansion of terrorism definitions are in line with the model definition as suggested by the first Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism Martin Scheinin, including compliance with international law. Hence, there are advantages and disadvantages to the sexual terrorism label, as was also discussed during a webinar co-organised by the T.M.C. Asser Instituut and IMPACT: Center against Human Trafficking and Sexual Violence in Conflict.

On the one hand, the label of sexual terrorism will give recognition to sexual terrorism in its own right as behaviour unacceptable to society (fair labelling). This focus on the actual crimes rather than on vague charges such as membership of a terrorist organisation will do more justice to the victims. It will also put the nexus between these three interrelated forms of criminality in the spotlight. If there is more awareness about how a specific nexus works, then it will also be easier to come up with tailored responses and achieve accountability, in an area characterised by widespread impunity. In addition, if victims of this conduct are viewed as terrorism victims, they may also receive more support on that basis, including access to justice. Finally, the terrorism label may lead to additional resources to tackle the problem.

On the other hand, the terrorism label will strengthen the already (and correctly) criticised expanding counter-terrorism framework, which is often characterised by exceptional and broad powers for the authorities and fewer rights for the suspects – as was very clearly explained by Lauren Aarons during the above mentioned webinar, in an article and blogpost, in which she warned that “engaging counterterrorism measures to address sexual violence committed by so-called terrorist groups will almost certainly come at a heavy cost to human rights more widely, including women’s rights.”

Conclusion

It is clear that the discussion on the (mis)use of (the) sexual terrorism (label) will continue and that this perspective constitutes yet another step in that context. While the concerns and disadvantages are fully supported and underlined here again, it is also difficult to accept that it would not be possible to prosecute for what has actually happened, namely committing CRSV and human trafficking as a form of terrorism. Indeed, what is the real problem here: is it the sexual terrorism label, or the fact that states often do not abide by international law when engaging in counter-terrorism measures? This brings us to a point that was supported by the webinar’s participants across the board, namely that national capacity building is essential. As argued before, this would, for example, entail training authorities on recognising the different forms of criminality and their correlation. Moreover, interdepartmental cooperation between counter-terrorism specialists, officers fighting human trafficking and sexual violence experts must be encouraged.

While underlining the importance of such capacity building, the latter will often not be enough. As explained by Ahram, “[u]ltimately, […] the roots of ISIS’s campaign of sexual violence come from the same neo-patriarchal origins as their regime antagonists”, which entails that “victims of sexual assault – females and males alike – are frequently so stigmatised that they cannot return to their home communities.”

The topic of sexual terrorism will continue to be discussed, and that discussion is good to raise more awareness about the nexus between terrorism, CRSV and human trafficking with victims, policy makers and scholars alike. At the same time, it is very important to keep a critical attitude to any (new) counter-terrorism measures, and to focus on trying to solve exactly what is in fact the underlying problem – namely that states, in their counter-terrorism measures, often do not comply with international law. National technical assistance, including ensuring that national legislation is in conformity with international law, is therefore very important in this context, but in the long run removing stigmas and generating mentality shifts in society more generally may be required as well.

*The author would like to thank Dr. Anne-Marie de Brouwer and Dr. Eefje de Volder for useful feedback to an earlier version of this perspective.

 

About the author:

Dr. Christophe Paulussen is a senior researcher at the T.M.C. Asser Instituut, coordinator of its research strand ‘Human Dignity and Human Security in International and European Law’ and research fellow at the International Centre for Counter-Terrorism – The Hague since 2011. He is also, among other things, editor-in-chief of the journal ‘Security and Human Rights’ and member of the editorial board of the ‘Journal of Human Trafficking, Enslavement and Conflict-Related Sexual Violence’.

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