Citizenship, Family Law, and the Repatriation of Islamic State Affiliates in MENA

ABSTRACT

Since the fall of Islamic State’s so-called caliphate in March 2019, the United States and other international actors have repeatedly urged states to repatriate their citizens. Analyses of this issue too often focus on citizens of Western countries despite the fact that they constitute only a small fraction of the group’s members and affiliates. Focusing on Middle East and North African (MENA) countries, we contend that citizenship law and family law play a central role in determining an individual’s prospects for repatriation by forming the basis of a state’s articulation of who belongs to the nation and who the state is responsible for. We identify important sub-regional patterns that shape the repatriation of Islamic State affiliates through the differential treatment of women in MENA citizenship and nationality law and family law. In addition, we find that the distinction between custodian and guardian in MENA family law provides a useful basis for the related challenge of reintegrating female-headed family units as well as orphaned children.

KEYWORDS:

• Islamic State
• repatriation
• Middle East
• Islamic law
• gender
• nationality
• citizenship
• family law
• reintegration

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. Joana Cook and Gina Vale, “From Daesh to ‘Diaspora’ II: The Challenges Posed by Women and Minors After the Fall of the Caliphate,” CTC Sentinel (July 2019): 30–45.

2. United Nations, “Syria: UN Experts Urge 57 States to Repatriate Women and Children from Squalid Camps,” https://www.ohchr.org/en/press-releases/2021/02/syria-un-experts-urge-57-states-repatriate-women-and-children-squalid-camps (accessed February 8, 2021); “US Asks Countries to Repatriate Jihadists from Syria,” France 24, February 4, 2019, https://www.france24.com/en/20190204-syria-usa-countries-repatriate-jihadists-sdf-trump-islamic-state-group-isis-turkey; Mo Abbas, “Trump Warns U.S. Allies to Take Back Captured ISIS Fighters,” NBC News, August 3, 2019, https://www.nbcnews.com/news/world/trump-warns-u-s-allies-take-back-captured-isis-fighters-n1038736.

3. Saeed Bagheri and Alison Bisset, “International Legal Issues Arising from Repatriation of the Children of Islamic State,” Journal of Conflict & Security Law (2022), https://doi.org/10.1093/jcsl/krac013; Council of Europe, Committee on Social Affairs, Health and Sustainable Development, “International Obligations Concerning the Repatriation of Children from War and Conflict Zones,” http://www.assembly.coe.int/LifeRay/SOC/Pdf/TextesProvisoires/2020/20200128-RepatriationChildren-EN.pdf (accessed January 29, 2020).

4. The term “affiliates” is used here to describe individuals whose membership in the group is contested or ambiguous. It is inclusive of all legal minors (under the age of 18). See, for example, Jaclyn Diaz, “No Country will Take Them,” NPR, March 26, 2021; Azra Rashid, “Canadian Women Who Joined ISIS Should be Repatriated, Investigated, and Rehabilitated,” The Conversation, March 3, 2021; Anne Speckhard, “Can Case of Samantha Elhassani be a Positive Example for Repatriation of Other ISIS Wives?” Homeland Security Today, November 16, 2020.

5. UN News, “UN Launches Initiative to Support Returnees Trapped in Syria Camps,” https://news.un.org/en/story/2021/09/1101652 (accessed September 29, 2021).

6. Ibid.

7. Joumanah El-Matrah and Kamalle Dabboussy, “Guilty When Innocent: Australian Government’s Resistance to Bringing Home Wives and Children of Islamic State Fighters,” Social Sciences 10, no. 6 (2021): 202, https://doi.org/10.3390/socsci10060202.

8. Mark Memmott, “Almost One Year After Bin Laden’s Death, Pakistan Deports His Family,” NPR, https://www.theguardian.com/world/2011/jun/22/osama-bin-laden-wife-leave-pakistan-yemen (Accessed April 27, 2021).

9. France has supported trials for its citizens in local courts in spite of human rights concerns. The United States, in contrast, maintains that foreign terrorist fighters should face prosecution in their home countries and that all children should be considered victims. The Netherlands and Sweden have called for an international court to prosecute Islamic State members. The United Kingdom and Australia have employed denationalization (also known as expatriation) which strips dual nationals of their citizenship, foisting the responsibility for their repatriation onto another country.

10. Cook and Vale, “From Daesh to ‘Diaspora’ II,” 35.

11. Christopher Boucek, “Saudi Arabia’s ‘Soft’ Counterterrorism Strategy: Prevention, Rehabilitation, and Aftercare,” Carnegie Endowment for International Peace, September 2008; Lila Hassan, “Repatriating ISIS Fighters is Key to Stemming Radicalization,” PBS Frontline, April 6, 2021.

12. Saud Al-Sharafat, “How Jordan Can Deal with Jordanian ISIS Fighters Still in Syria,” Washington Institute, August 9, 2019.

13. Hassan, “Repatriating ISIS Fighters.”

14. Haroro J. Ingram, Julie Coleman, Austin C. Doctor, and Devorah Margolin, “The Repatriation and Reintegration Dilemma: How States Manage the Return of Foreign Terrorist Fighters and Their Families,” Journal for Deradicalization 31, (Summer 2022): 119–63.

15. See R. Charli Carpenter, “Innocent Women and Children”: Gender, Norms and the Protection of Civilians (London: Routledge, 2016); Jessica Davis, “The Future of the Islamic State’s Women: Assessing Their Potential Threat,” ICCT Policy Brief (The Hague: International Centre for Counter-Terrorism, June 2020), https://www.jstor.org/stable/resrep25260; Izabela Steflja and Jessica Trisko Darden, Women as War Criminals: Gender, Agency, and Justice (Stanford: Stanford University Press, 2020).

16. Makhtabi argues that the concept of “enfranchised minorhood” reflects the confined position of adult women as legal minors under the trusteeship of male kin in family law, criminal law, and nationality law. Rania Maktabi, “Enfranchised Minors: Women as People in the Middle East After the 2011 Arab Uprisings,” Laws 6, no. 4 (2017): 1–25.

17. No definite figures are available, but estimates suggest that the number of Islamic State-affiliated individuals killed exceeds 100,000 individuals. Christopher Woody, “US Special Operations Command Chief Claims ‘60,000 to 70,000’ ISIS Fighters have been Killed,” Business Insider, July 24, 2017; Kyle Rempfer, “Low Aim or Intel Failure? ISIS’ last Stand Shows the Difficulty in Estimating Enemy Manpower,” Military Times, March 27, 2019.

18. Gina Vale, “Women in Islamic State: From Caliphate to Camps,” International Centre for Counter-Terrorism, October 7, 2019.

19. Hamoon Khelghat-Doost, “Women of the Caliphate: The Mechanism for Women’s Incorporation into the Islamic State (IS),” Perspectives on Terrorism 11, no. 1 (2017): 17–25.

20. Ariel Ahram, “Sexual Violence and the Making of ISIS,” Survival 57, no. 3 (2015): 57–78; Ariel Ahram, “Sexual Violence, Competitive State Building, and Islamic State in Iraq and Syria,” Journal of Intervention and Statebuilding 13, no. 2 (2019): 180–196.

21. Bidisha Biswas and Shirin Deylami, “Radicalizing Female Empowerment: Gender, Agency, and Effective Appeals in Islamic State Propaganda,” Small Wars & Insurgencies 30, no. 6–7 (2019): 1193–1213; Leah Windsor, “The Language of Radicalization: Female Internet Recruitment to Participation in ISIS Activities,” Terrorism and Political Violence 32, no. 3 (2020): 506–538; Nava Nuraniyah, “Not Just Brainwashed: Understanding the Radicalization of Indonesian Female Supporters of the Islamic State,” Terrorism and Political Violence 30, no. 6 (2018): 890–910; Olivier Arvisals and Mathieu Guidere, “Education in Conflict: How Islamic State Established Its Curriculum,” Journal of Curriculum Studies 52, no. 4 (2020): 498–515.

22. Devorah Margolin, “The Changing Roles of Women in Violent Islamist Groups,” Perspectives on the Future of Women, Gender, & Violent Extremism (2019): 40–49.

23. See translation by Aymenn Jawad al-Tamini published in Haroro J. Ingram, Craig Whiteside, and Charlie Winter, The ISIS Reader: Milestone Texts of the Islamic State Movement (Oxford: Oxford University Press, 2020), 199–214.

24. Ingram et al., The ISIS Reader, 203.

25. Ibid., 206–207.

26. Bloom and Horgan, Small Arms: Children and Terrorism (Ithaca, NY: Cornell University Press, 2019).

27. For more details on the experience of children living under ISIS rule, see Liesbeth van der Heide and Audrey Alexander, “Homecoming: Considerations for Rehabilitating and Reintegrating Islamic State-Affiliated Minors,” Combating Terrorism Center, 2020.

28. Ingram et al., The ISIS Reader, 208–209.

29. Bloom and Horgan, Small Arms.

30. Burak Kadercan, “Territorial Logic of the Islamic State: An Interdisciplinary Approach,” Territory, Politics, Governance 9, no. 1 (2021): 94–110; Ali Nehme Hamdan, “Breaker of Barriers? Notes on the Geopolitics of the Islamic State in Iraq and Sham,” Geopolitics 21, no. 3 (2016): 605–627.

31. Amie Ferris-Rotman, “Forgiven by her Native Chechnya a Woman is Returned from Islamic State,” The Washington Post, July 1, 2018.

32. Meredith Colias-Pete, “Former Elkhart Woman Accused of Supporting ISIS Sentenced to 6.5 Years,” Chicago Tribune, November 9, 2020.

33. “Shamima Begum: ‘We Should Live in Holland’ says IS Husband,” BBC News, March 3, 2019.

34. Adrian Shtuni, “Ethnic Albanian Foreign Fighters in Iraq and Syria,” CTC Sentinel 8, no. 4 (2015): 11–14; Joanna Paraszczuk, “IS Boosts Russian-Language Propaganda Efforts,” Radio Free Europe/Radio Liberty, https://www.rferl.org/a/is-boosts-russian-language-propagangda-efforts/27112518.html (accessed July 6, 2015).

35. Anne Speckhard, “American-Born Hoda Muthana Tells All about Joining ISIS and Escaping the Caliphate,” Homeland Security Today, April 23, 2019.

36. “Just Terror,” Dabiq, Issue 12, November 2015.

37. Bethan McKernan et al., “How Women of ISIS in Syrian Camps Are Marrying Their Way to Freedom,” The Guardian, July 2, 2021.

38. Ibid.

39. For instance, Britain did not allow women to convey their nationality to children born outside of the United Kingdom until the 1981 British Nationality Act. Zahra Albarazi, “Regional Report on Citizenship: The Middle East and North Africa,” European University Institute, 2017.

40. Laura van Waas, “The Situation of Stateless Persons in the Middle East and North Africa,” UNHCR, October 2021.

41. Rania Maktabi, “Patriarchal Nationality Laws and Female Citizenship in the Middle East,” 321.

42. Deniz Kanidyoti, “The Politics of Gender and the Conundrums of Citizenship,” 55.

43. Ann Elizabeth Mayer, “Reform of Personal Status Laws in North Africa: A Problem of Islamic or Mediterranean Laws?” Middle East Journal 49, no. 3 (1995): 432.

44. Angelina Theodorou, “27 Countries Limit a Woman’s Ability to Pass Citizenship to Her Children,” Pew Research Center, August 5, 2014.

45. This study excludes Iran, Israel, and the Palestinian Territories. Iran and Israel are excluded because they were not a source of Islamic State members. The Palestinian Territories are excluded because of the complex legal status of Palestinians throughout the region.

46. Appendix A and Appendix B present the specific articles referring to the acquisition of nationality by birth and by marriage that form the underlying data for Table 1.

47. “Background Note on Gender Equality, Nationality Laws and Statelessness,” UNHCR, March 5, 2021. The unification of North and South Yemen in 1990, led to Yemen’s acceptance of South Yemen’s treaty obligations, making Yemen a state party to Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The UN General Assembly adopted CEDAW in 1979 and it entered into force as an international treaty in 1981. See also “Equal Citizens, Thriving Families, Stronger Societies: Realizing Gender-Equal Nationality Rights in the Middle East-North Africa region,” UNHCR, April 5, 2018.

48. Abdullah Omar Yassen, “Report on Citizenship Law: Iraq,” European University Institute, (2021).

49. For instance, many of these countries do not allow Palestinians to acquire citizenship, claiming their desire to preserve Palestinians’ right of return. Albarazi, “Regional Report on Citizenship,” 5.

50. Sudan excludes recognition of dual citizenship with South Sudan.

51. Makhtabi, “Enfranchised Minors,” 18.

52. Albarazi, “Regional Report on Citizenship,” 20.

53. For more on Islamic schools of jurisprudence, see Nicholas Heer and Farhat Jacob Ziadeh, Islamic Law and Jurisprudence (University of Washington Press, 1990).

54. Rania Makhtabi, “Gender, Family Law and Citizenship in Syria,” Citizenship Studies 14, no. 5 (2010): 557–72.

55. Mudasra Sabreen, “Custody in Islamic Law: A Law Based on Presumptions,” Islamic Studies 56, no. 3–4 (2017): 226.

56. Op cite in Kandiyoti, “The Politics of Gender and the Conundrums of Citizenship,” 57.

57. Lynn Welchman, “Gulf Women and the Codification of Family Law,” International Survey of Family Law, (2010): 10; Diana AlGhurair, “Family Law in the United Arab Emirates: Overview,” Thomson Reuters Practical Law, (2020).

58. Lynn Welchman, Women and Muslim Family Laws in Arab States (Amsterdam: Amsterdam University Press, 2017), 133.

59. The waiting period after a divorce is three months, and after the death of a spouse it is four months and ten days.

60. Muhammad Al-Mudarrisi, The Laws of Islam, (2016): 435.

61. Anne Speckhard and Molly Ellenberg, “ISIS in Their Own Words: Recruitment History, Motivations for Joining, Travel, Experiences in ISIS, and Disillusionment Over Time,” Journal of Strategic Security, 13, no. 1 (2020): 105–107.

62. Welchman, Women and Muslim family laws in Arab states, 133.

63. Ibid.

64. Karen Rotabi, Nicole Bromfield, Justin Lee, and Taghreed Abu Sarhan, “The Care of Orphaned and Vulnerable Children in Islam,” Journal of Human Rights and Social Work 2, (2017): 16.

65. Rotabi et al., “The Care of Orphaned and Vulnerable Children in Islam,” 17.

66. Aayesha Rafiq, “Child Custody in Classical Islamic Law and Laws of Contemporary Muslim World,” International Journal of Humanities and Social Sciences 4, no. 5 (2014): 210.

67. Rafiq, “Child Custody in Classical Islamic Law and Laws of Contemporary Muslim World,” 137.

68. Women can maintain custody of their children if they remarry a man who is biologically related to the children, such as a paternal uncle. Iraq is a notable exception to this general pattern—women do not lose custody if they remarry. As a result of the Iran-Iraq War, Iraq passed a law in 1986 that allows widows to maintain custody and was later extended in 1987 to include divorcees. See Welchman, Women and Muslim family laws in Arab states, 139.

69. Human Rights Watch, “Everyone Must Confess,” 2019.

70. Ibid.

71. “US Court to Rule in Rare Saudi Child Custody Case,” BBC News, June 18, 2021.

72. “US Court to Rule in Rare Saudi Child Custody Case.”

73. Jonathan Benthall, “The Care of Orphans in the Lslamic Tradition, Vulnerable Children, and Child Sponsorship Programs,” Journal of Muslim Philanthropy & Civil Society 3, no. 1 (2020): 4.

74. Sabreen, “Custody in Islamic Law,” 232.

75. Ibid.

76. Camile Oliveira and Erin Baines, “Children ‘Born of War’: A Role for Fathers?” International Affairs 96, no. 2 (March 2020): 439–455.

77. “In Syria, an Orphanage Cares for Children Born to Yazidi Mothers Enslaved by ISIS,” NPR, June 6, 2019.

78. “Roadmap on Treatment of Children Associated with Terrorist and Extremist Groups,” UNODC, 2021.

79. Albarazi, “Regional Report on Citizenship,” 2.

80. Maktabi, “Patriarchal Nationality Laws,” 324

81. Khoury and Qursha, “Regional Overview,” 38.

82. Omar Karasapan and Sajjad Shah, “Forced Displacement and Child Marriage: A Growing Challenge in MENA,” Brookings, June 19, 2019.

83. Valerie M. Hudson and Hilary Matfess, “In Plain Sight: The Neglected Linkage between Brideprice and Violent Conflict,” International Security 42, no. 1 (2017): 12–13.

84. Arwa Youssef, “UAE’s Double-Standard on Citizenship Rights,” Human Rights Watch, February 5, 2021, https://www.hrw.org/news/2021/02/05/uaes-double-standard-citizenship-rights.

Additional information

Funding

This research was supported by William & Mary’s Global Research Institute.

Notes on contributors

Jessica Trisko Darden

Jessica Trisko Darden is an Assistant Professor of Political Science at Virginia Commonwealth University, a Non-Resident Fellow at George Washington University’s Program on Extremism and a Research Affiliate at William & Mary’s Global Research Institute, where she directs the Security and Foreign Policy Initiative. Dr. Trisko Darden is co-author of Insurgent Women: Female Combatants in Civil Wars (Georgetown University Press, 2019) and Women as War Criminals: Gender, Agency, and Justice (Stanford University Press, 2020).

Duenya Hassan

Duenya Hassan is an independent researcher and a former Research Manager at William & Mary’s Global Research Institute.