The Islamic State is on the verge of total defeat. As a result, many of the remaining foreign fighters who travelled to the caliphate are coming out of the woodwork. One of those is Shamima Begum, a former student from the United Kingdom who at the age of 15 travelled along with two other friends to join ISIS in 2015. Now, after four years in the caliphate and currently in Kurdish custody, where she just gave birth to another child, Begum is asking to return back to the UK. Those foreign fighters from Western countries who have been captured, such as Begum, are now arguing that they should be subject to those same Western laws and systems they so forcefully denounced and fought against.   

Begum is a perfect illustration of the complexities involved in repatriated foreign fighters, especially Western women foreign fighters, and having them tried in their home countries.  

Those who have been captured from Western countries, such as Begum, are now arguing that they should be subject to those same Western laws and systems they so forcefully denounced and fought against.

While moral and legal obligations may dictate that their country of citizenship should be responsible for bringing foreign fighters such as Begum to justice, the reality is that many of these individuals also pose a serious security threat to their home societies and it remains difficult to prosecute and convict them in Western courts.

Collecting evidence in a war zone to successfully prosecute someone for committing a terrorist offence, or even to have aided or abetted terrorism, is incredibly difficult. Whatever untainted information and evidence obtained on foreign fighters is likely to be through domestic or foreign intelligence agencies and there are restrictions on the disclosure of that information in an open court.

Begum is a UK citizen and unlike Australia, the UK does not yet have a foreign incursions offence, therefore, she cannot be tried for that crime. She also cannot be stripped of her British citizenship under UK law because she is not a dual citizen.  Prosecuting her under the Treason Act is impractical as the law is woefully outdated. 

Many foreign fighters from Western countries are well aware of these limitations. It seems as if everyone who was caught in the last square half kilometre of the caliphate was either a cook, driver, or jihadi bride. Begum makes the same claim. As she told a Skynews interviewer, “I was just a housewife for the entire four years – stayed at home, took care of my husband, took care of my kids.” Yet, in arguing her case, it is also notable how she frames her situation. She says (emphasis added):

They don’t have any evidence against me doing anything dangerous… they don’t have any proof that I did anything dangerous. 

She does not directly state that she did not do these things, only that they have no prosecutable evidence. 

If Begum was successfully convicted, the case of Tareena Shakil, the first British female ISIS supporter to be convicted, serves as an illustration of the limited sentence she would likely receive. Shakil was only sentenced to six years, two years for posting messages encouraging terrorism online and four years for being an ISIS member. Additionally, the ability of foreign fighters such as Begum to radicalise other prisoners is a major concern.

And yet, if Begum was not successfully convicted in court on terrorism charges, the authorities would have to asses that she remains some sort of security risk. The resources required to keep surveillance on her and others like her would be substantial and costly. Even if she was mandated to undergo a deradicalisation program upon her return, the efficacy of such programs is nascent at best. When asked in an interview whether she could be rehabilitated, Begum herself admitted, “It would be really hard because of everything I’ve been through now.”

Female foreign fighters from ISIS pose a particular challenge because the positive security bias afforded women. Women, particularly mothers, are viewed as inherently less threatening. There is a tendency to label foreign women and girls who travelled to Syria and Iraq as mere “jihadi brides” and therefore not responsible for their actions. 

Begum’s family lawyer has argued that she should be treated as a “victim of grooming in the ISIS context.” But according to Begum herself, she says:

I don't regret it because it's changed me as a person. It's made me stronger, tougher… I did have a good time there, it's just that at the end things got harder and I couldn't take it anymore.

While it’s difficult to know for certain Begum’s exact situation, committed jihadi or grooming victim, we do know that many of the foreign women who joined ISIS were not duped or coerced. Rather they sought to join the caliphate and supported violent jihad through their own agency. 

The role of female jihadists such as Begum has traditionally been underestimated. As in many other ways, ISIS has changed the rule book when it comes to women and jihad. Even though ISIS is a strictly patriarchal and violently puritanical group that committed many well-documented atrocities against women, they nevertheless expanded the role of women in jihad in a myriad of ways. While other jihadist organisations such as Al Qaeda still placed restrictions on women’s participation in jihad, ISIS became the first terrorist organisation to officially declare that it was, in fact, obligatory for women to take up arms for the sake of jihad. Since the founding of ISIS, more women have been involved in planning, supporting, and perpetrating jihadist terrorist plots than in any other time.

Yet our gendered perspective and assumptions of women, particularly Muslim women, and violence still overwhelmingly leads us to portray women such as Begum solely as victims rather than agents. Female-perpetrated violence or their support of violence is still viewed as personal, not political. As a result, foreign-fighter women have received shorter sentences than men and have received more pardons.

Not only do our Western laws need to adapt to adequately address the foreign fighters coming out of ISIS territory but our societal perspectives of gender need to be re-examined as well if we are to correctly assess the threat that women such as Begum and others pose.