When Women Commit War Crimes
Editor’s Note: This is an excerpt from a policy roundtable “How Gender Affects Conflict and Security” from our sister publication, the Texas National Security Review. Be sure to check out the full roundtable.
Women war criminals go unnoticed because their participation in exceptional wartime violence challenges deeply held assumptions about war and about women. Despite their participation in conflicts around the world, women have historically been enshrined as innocent civilians in both policy and the popular imagination. This tendency has been reinforced by the passage of United Nations Security Council Resolution 1325, which states that women and children are the vast majority of those adversely affected by armed conflict. By grouping women with children — boys and girls under the age of 18 who are generally protected from prosecution for war-related crimes under international law — such statements, though undoubtedly true, neglect the fact that women have played key roles in perpetrating war crimes and crimes against humanity. Evidence of women’s war crimes can be seen in the Holocaust, the wars in former Yugoslavia, and the Rwandan genocide, as well as more recent episodes of heinous violence connected to the Islamic State of Iraq and the Levant (ISIL). Few of these women have been brought to justice.
Recognizing this persistent blind spot can inform domestic and international legal responses to the pressing challenge posed by the Islamic State. Thousands of women joined ISIL and contributed to terrorism and war crimes, including genocide and ethnic cleansing. In the past, postwar international tribunals either failed to take women seriously as war criminals or ignored the ways in which their gender affected their culpability vis-a-vis other perpetrators. Similarly, current efforts to address the crimes of female ISIL members have swung wildly from labeling all women as “victims” of ISIL to sentencing female members to death simply for joining a terrorist group. This article contextualizes these challenges within the precedents established by previous war crimes prosecutions. We conclude that post-conflict justice efforts should acknowledge the multiple ways that women can support and engage in war crimes while also creating mechanisms to assess each individual’s relative culpability — regardless of gender — and pursue prosecutions accordingly.
Women and War Crimes Tribunals
The International Military Tribunal at Nuremberg (1945 to 1946) set a precedent of reduced accountability for women by determining that clerks, secretaries, and other similar staff in the Nazi government were not threats to postwar German society. Women, who were concentrated in such low-level positions, were assumed not to be a risk even though one-third of German women were actively engaged in the Nazi party. As a result, relatively few Nazi women were ever prosecuted for war crimes even though roughly 500,000 women participated in the Nazi occupation of Eastern Europe. In the first decade after the war — the high point of Nazi war crimes prosecutions — only 26 women were sentenced to death in Germany and Austria. Defendants in West German trials included Hilde Wernicke and Helene Wieczorek, who were sentenced to death for poisoning mentally disabled patients as nurses in the Nazi euthanasia program. Many more were acquitted of similar crimes.
War crimes investigations continue, but the recent progress seen in holding former Nazi women accountable highlights the risk of pursuing justice too late. Erna Wallisch, listed by the Simon Wiesenthal Center as the seventh most important at-large Nazi war criminal, was discovered living in a comfortable apartment in Vienna in 2007. She died before an investigation into her crimes at the Majdanek death camp was completed. In 2015, 260,000 counts of accessory to murder were brought against a 91-year-old German woman for her role in the Auschwitz-Birkenau death camp as a telegraph operator. The gender of these alleged perpetrators enabled them to live their entire lives without being held accountable for their crimes.
More recent war crimes tribunals fared only slightly better in holding women war criminals to account. Biljana Plavšić, former co-president of Republika Srpska (one of the two constituent parts of Bosnia and Herzegovina), was the only woman prosecuted for war crimes by the International Criminal Tribunal for the former Yugoslavia between 1993 and 2017. As a member of the Supreme Command of the Armed Forces of Republika Srpska, Plavšić worked alongside co-president Radovan Karadžić and army commander Ratko Mladić in directing the murder of approximately 50,000 Bosnian Muslims and Croats. Plavšić was indicted by the tribunal on nine counts, including: genocide; complicity to commit genocide; persecution on political, racial, and religious grounds; extermination; deportation; inhumane acts; wilful killing; murder as a crime against humanity; and murder as a violation of the laws of war.
Before her trial began in 2002, Plavšić agreed to plead guilty to one count of persecution on political, racial, and religious grounds for the ethnic cleansing of non-Serbs. During the trial, Plavšić’s legal team presented her as a contrite, matronly figure who was excluded from many of the high-level decisions made by her male peers. Despite her status as co-president, the court accepted that Plavšić “was not in the very first rank of the leadership” of Republika Srpska and its armed forces. The tribunal sentenced Plavšić to 11 years in a Swedish prison. She was released for good behavior after serving two-thirds of her sentence.
The International Criminal Tribunal for Rwanda (1994 to 2015) also had a single female defendant: Pauline Nyiramasuhuko, Rwanda’s former minister of family and women’s development. During the Rwandan genocide, Nyiramasuhuko played a central role in the regime’s extermination plan by directing the Interahamwe militia in Butare province and managing a roadblock with the assistance of her son, Arsène Shalom Ntahobali. Using a loud speaker to incite killings of Tutsi men and the rape and murder of Tutsi women, Nyiramasuhuko traveled throughout Butare to ensure that local government offices were abiding with the government’s genocidal plan. After her arrest in Kenya, she was prosecuted in a group trial with five male co-defendants.
Like Plavšić, Nyiramasuhuko’s legal team portrayed her as a pious woman, a caring mother, and a defender of Rwanda’s women and families. However, the court did not accept her lawyers’ attempt to distance Nyiramasuhuko from the other government officials held responsible for the genocide. As a result, Nyiramasuhuko is thus far the only woman convicted by an international tribunal for genocide and for rape as a crime against humanity. She received a life sentence, which was later reduced to 47 years, and is currently in prison in Senegal.
These cases reflect an international consensus that women war criminals are worth holding to account only when: 1) They are high-ranking government officials, and 2) they have directed others to commit war crimes and/or crimes against humanity. This consensus, based largely on the Nuremberg trials, excludes accountability for the thousands of lower-ranking women who have perpetrated war crimes. Instead, domestic courts are left with the responsibility of investigating and prosecuting these perpetrators, often with far fewer resources and in a highly politicized and highly gendered postwar environment.
Lower-ranking female perpetrators are often spared from facing justice for their crimes because they are perceived as victims of patriarchal political ideologies and practices. For example, Nazism in Germany constrained women’s identities to the private sphere: A woman’s role was birthing and raising racially pure children. Traditionalist ideals also guided the political ideologies of Serb nationalism and Hutu extremism in the 1990s. The chauvinistic nature of Serb nationalism reduced women’s roles to “mothers of the nation.” Similarly, the Hutu Ten Commandments, which provided the ideological foundation for the Rwandan genocide, held up Hutu women as ideal wives and mothers. It extolled Hutu women to be vigilant and ensure that their husbands, brothers, and sons avoid all relations with Tutsi women. As a result of such ideologies, female perpetrators in highly gendered societies often have complex identities as victims, victimizers, and occasionally both. However, having to navigate through these distinctions and assess degrees of relative culpability should not preclude courts from pursuing justice on behalf of victims.
Women in the Islamic State: Victims and Victimizers
The challenge of identifying and prosecuting lower-ranking women war criminals is especially relevant when considering women’s extensive participation in ISIL. By June 2018, at least 13,500 foreign women and children from at least 51 countries were living in ISIL-held territory in Syria and Iraq. These women and their Syrian and Iraqi counterparts contributed to the Islamic State’s financing, recruiting, and online propaganda. As was the case in Nazi-occupied Europe, women in ISIL were permitted (and sometimes required) to work as nurses, doctors, teachers, and bureaucratic administrators in ISIL-occupied areas. Some policed other women on behalf of ISIL and committed acts of violence as part of the Islamic State’s religious police or ḥisbah. Emerging evidence, including women’s own narratives about their time in ISIL, suggests that some women were directly involved in the group’s crimes against humanity, including the use of torture and the persecution and enslavement of members of Iraq’s Yazidi minority group.
Similar to Nazism in interwar Germany, Serb nationalism in the 1990s, and Hutu extremist ideology during the genocide in Rwanda, ISIL expected women to express their ideological commitment to the group through traditional gendered social roles. Some women answered the call to populate the caliphate: Joana Cook and Gina Vale contend that up to 60 percent of the foreign national minors associated with ISIL were born in Iraq and Syria. Women played an essential role in the upbringing of “Cubs of the Caliphate,” male children trained as fighters and suicide bombers and who featured heavily in the group’s propaganda. As Vale notes, “an [ISIL] pamphlet, entitled ‘Sister’s Role in Jihad,’ advise[d] mothers to read bedtime stories of fighters and martyrs; to encourage target practice through archery and play with toy guns; and to educate them in the correct targets for violence.”
Assessing the agency of women in ISIL and their roles in the group’s violence has proved difficult. Women in ISIL can be seen as victims of the group’s patriarchal structure, which places its female members in the role of subservient women upholding traditional gendered family roles. English-language reporting often frames these women as manipulated, controlled, or otherwise lacking choices. In many stories, young women in ISIL are characterized as seduced, preyed upon, and held against their will. Hoda Muthana, who in November 2014 traveled from Alabama to join ISIL at the age of 20, described herself as “brainwashed” and “young and ignorant” following her surrender to Kurdish forces four years later. However, such narratives erase women’s agency in joining ISIL and their ideological commitment to the group. Furthermore, these depictions contrast starkly with women’s own accounts of their reasons for joining ISIL and their public ideological statements. One analysis of the social media activity of 17 Western female Islamic State recruits found that while women were driven by a gendered religious ideology to join the group, feelings of isolation and disaffection — also experienced by foreign male recruits — were at play.
Despite its patriarchal structure, ISIL itself did not deny women agency or devalue their ideological commitment. As ISIL’s hold on territory collapsed, a number of reports suggested that women were taking up arms, though the actual participation of women in armed combat on behalf of the Islamic State remains disputed. Even after the caliphate’s collapse, many women remain committed to ISIL’s ideology, as demonstrated in a July 2019 video where women and children briefly raised ISIL’s black flag in a Kurdish-run camp in Syria. Female ISIL detainees in Syria have leveled death threats against women who have disavowed ISIL and committed acts of violence including stabbing camp guards and murdering an Azerbaijani teenager and a pregnant Indonesian woman. These actions suggest that some female ISIL members stand ready to use violence in defense of the group and its ideology.
In some instances, women in ISIL were both direct victims of violence and perpetrators. The case of Samantha Elhassani, a white American woman from Indiana, illustrates the difficulty of assigning women to a single category. Raised as a Jehovah’s Witness, Elhassani asserts that she never adhered to ISIL’s ideology even though she traveled to Syria with her husband and children to join the group. Instead, she argues that her husband manipulated her and that she lived under the constant threat of violence by him and ISIL enforcers. Media reports on Elhassani reflect her narrative, referring to her as “An American Mom Who Lives Under ISIS Rule” and “The American Woman Forced to Join ISIS.” However, Elhassani allowed her eldest son to be trained in firearms, used in ISIL propaganda videos threatening President Donald Trump, and armed with a suicide belt. Elhassani and her husband also purchased Iraqi Yazidi children as slaves, and she has admitted to preparing the two girls to be raped by her husband.
After surrendering to Kurdish forces in Syria following the death of her husband in late 2017, Elhassani was indicted by an Indiana grand jury for “conspiring with, and aiding and abetting, her husband and brother-in-law to provide material support for [the Islamic State].” Elhassani initially pleaded “not guilty” and her lawyers argued that she was a victim of “domestic violence and patriarchal abuse.” By positioning herself as a victim, Elhassani attempted to divert attention away from her role as a victimizer. In advance of her January 2020 trial, she pleaded guilty to a single count of financing terrorism and remains in prison while awaiting sentencing. The potential direct victimization of Elhassani by her husband is different from her indirect victimization by ISIL’s highly gendered ideology. Courts dealing with ISIL-related crimes need to weigh these different types of victimhood experienced by some female perpetrators.
Pursuing Justice After ISIL
The diversity of women’s experiences in ISIL and the sheer number of countries that ISIL members originated from greatly complicates the pursuit of justice. The international community remains divided over how to best address ISIL’s crimes as most countries pursue a mix of three options: 1) trials in local (Iraqi or Syrian) courts, 2) repatriation and prosecution in domestic courts, and/or 3) advocacy for an international justice process. The approach adopted by a particular country is influenced by its proximity to the conflict, the resources at its disposal, and perceived threats to its national security.
The countries that suffered the most from ISIL took swift action against the group’s female members. In Iraq, courts sentenced more than 40 foreign women to death and dozens more to life in prison with little to no legal or consular representation in May 2018. Under Iraqi law, individuals who support a terrorist organization can be sentenced to death even if they did not personally commit acts of terrorism or murder. Some women received death sentences for illegally crossing the Iraqi border because, as a judge noted, “they didn’t come for tourism.” Human Rights Watch criticized Iraq’s approach for ignoring women’s individual circumstances and producing “unjust outcomes.”
Germany, which claims universal jurisdiction for genocide, war crimes, and crimes against humanity and can therefore prosecute crimes committed beyond its borders, has taken a prominent role in prosecuting women in ISIL. A 32-year-old convert to Islam, identified according to German law only as Sabine S., was sentenced to five years in prison in July 2019 for membership in a foreign terrorist organization. While a member of ISIL, she received weapons training and ran two propaganda blogs intended to recruit new members. In April 2019, the trial of a 27-year-old German woman identified as Jennifer W. began in Munich. She faces charges of war crimes, murder, and membership in a foreign terrorist organization, with a maximum potential sentence of life in prison. Jennifer W. had been deported by Turkish authorities to Germany after spending almost a year and a half as an ISIL member. While planning her return to Syria, she admitted to an undercover German security services agent that she was part of ISIL’s ḥisbah in the Iraqi cities of Fallujah and Mosul and took part in armed patrols. Jennifer W.’s murder charge stems from her role in the death of a 5-year-old enslaved Yazidi girl purchased by her and her husband in 2015. Her Iraqi husband was also extradited from Greece to Germany to face related charges.
As these examples show, domestic prosecutions can face a range of challenges. While some countries are able to pursue prosecutions based on an individual’s membership in ISIL, some were slow in listing ISIL as a foreign terrorist organization or banning their nationals from traveling to ISIL-held territory, making prosecution for early ISIL adherents more difficult than for latecomers. Domestic justice systems may also have ingrained gender disparities. In the United States, there has been a notable gender gap in terrorism sentencing: Audrey Alexander and Rebecca Turkington report that the average period of incarceration for women sentenced for ISIL-related crimes is 5.8 years, while the average period for men is 13.8 years.
Denationalization or expatriation has emerged as an alternative to domestic prosecution for some countries. The United Kingdom and Australia are attempting to quickly strip dual nationals of their citizenship, foisting the responsibility for their prosecution onto another country. Shamima Begum, who left east London as a 15-year-old in February 2015 to join ISIL, was stripped of her U.K. citizenship in March 2019 on the basis that she has a right to claim Bangladeshi citizenship through her parents. Zehra Duman, who was born in Australia, was stripped of her Australian citizenship because she acted in the service of a declared terrorist organization. Duman has since been sentenced to three years in prison in Turkey, where she also holds citizenship, for serving as a social media propagandist and recruiting for ISIL. In a case still before U.S. federal court, Hoda Muthana’s U.S. passport was revoked in 2016 based on her father’s status as a Yemeni diplomat to the United Nations at the time of her birth. Critics have condemned denationalization as a racist policy as it can only be applied to citizens who are the children of immigrants or immigrants themselves. It also typically draws in countries with fewer diplomatic and judicial resources to deal with the problem of repatriating and prosecuting ISIL members.
Partly in response to these concerns, some states — including the Netherlands and Sweden — have called for an international court to address the crimes of ISIL. An international justice process would have several benefits including: 1) ensuring that the process meets international legal requirements and obligations; 2) placing ISIL detainees in the custody of an internationally recognized entity; 3) avoiding the one-size-fits-all sentencing approach demonstrated in Iraq; and 4) working around the ongoing conflict in Syria. It would also put a spotlight on ISIL’s victims. However, the justice an international tribunal could offer ISIL’s victims would be removed from their daily lives and local contexts. It would also be constrained by questions of legitimacy and politicization that plague international legal bodies. Given the International Criminal Court’s decision in April 2015 that it lacked both territorial and personal jurisdiction to open preliminary investigations into ISIL’s crimes, this approach would require the creation of an entirely new international tribunal. Any tribunal that is convened is likely to replicate the problems of past tribunals, including ignoring the contributions of women to the group’s crimes.
The limited history of war crimes prosecutions of women suggests that women will continue to fall through the cracks in the current patchwork legal system for addressing ISIL’s crimes. While prosecuting women for membership in ISIL or for financing terrorism may be expedient, this approach does not address the full range of crimes that female ISIL members participated in — including slavery and torture — some of which can be prosecuted as war crimes under universal jurisdiction. Countries with the ability to pursue war crimes prosecutions under universal jurisdiction — as is the case in many countries that fielded ISIL members including Australia, Austria, Belgium, Canada, Denmark, France, Germany, the Netherlands, and the United Kingdom — have the moral and legal responsibility to consider prosecuting women who commit war crimes alongside men.
The current approach to ISIL prosecutions also fails to grapple with the reality that women’s culpability may differ from men’s because of the highly gendered context in which the crimes took place. A more systematic approach to the documentation of women’s involvement in the group, the collection of evidence, and the full extent of the group’s war crimes and crimes against humanity is needed. Women’s roles in perpetrating horrendous crimes should not be dismissed as they have been in the past.
Jessica Trisko Darden is assistant professor at American University’s School of International Service and non-resident fellow at George Washington University’s Program on Extremism. She was previously a Jeane Kirkpatrick fellow at the American Enterprise Institute and a visiting scholar with Yale University’s Program on Order, Conflict, and Violence. Prof. Trisko Darden is the author of Aiding and Abetting: U.S. Foreign Assistance and State Violence (Stanford, CA: Stanford University Press, 2020) and coauthor of Insurgent Women: Female Combatants in Civil Wars (Washington, DC: Georgetown University Press, 2019).
Izabela Steflja is a professor of practice in political science at Tulane University. Prof. Steflja was previously the Simons postdoctoral fellow in dialogue on international law and human security at Simon Fraser University, and a predoctoral fellow in international development at the London School of Economics and Political Science. She has conducted extensive fieldwork in East and Central Africa and the Balkans and published in peer-reviewed journals including Third World Quarterly, Nationalities Papers: The Journal of Nationalism and Ethnicity, and Human Rights Review.
Note: This essay is adapted from the authors’ book, Women as War Criminals: Gender, Agency, and Justice (Stanford, CA: Stanford University Press, 2020).