IS-linked women are facing a raft of criminal charges. A legal expert explains the laws at play

After multiple attempts to leave Syria, four ISIS-linked women (often referred to as “ISIS brides”) and nine children have arrived back in Australia.

The government has long promised that if these women, who are Australian citizens and have Australia passports, came back, they would face criminal prosecution.

Now the Australian Federal Police has done just that. Two women who landed in Melbourne on Thursday were arrested and charged with crimes against humanity, including slave-related offences.

A third woman, who landed in Sydney, was arrested and charged with joining Islamic State (IS) and remaining in a declared conflict zone.

These prosecutions wade into uncharted legal territory in Australia. No one has been charged with international slavery offences before, and only one other person has been tried for the conflict zone offence.

Read more: Albanese is prioritising politics over the responsible handling of ISIS families, setting a dangerous precedent

Who are these women?

Police have pressed charges against three women.

In Victoria, a 53-year-old, reportedly named Kawsar Abbas, and a 31-year-old woman, reported as Zeinab Ahmed, have been charged. Police allege Abbas went to Syria with her husband and children in 2014. Ahemd allegedly went to Syria with her family in the same year.

Police say the women were detained by Kurdish forces in March 2019 and held with other family members in the Al Roj Internally Displaced Persons camp.

In New South Wales, police say a 32-year-old woman, named by media as Janai Safar, went to Syria in 2015 to join her husband, who’d already left Australia to join IS.

The women were arrested as part of Operation Kurrajong, which police say has been underway since 2015.

What are the charges?

Abbas has been charged with multiple slavery offences under the federal criminal code, including enslavement, possessing a slave, using a slave and engaging in slave trading. These all constitute crimes against humanity.

Police allege she was complicit in purchasing a female slave for US$10,000 (about A$13,800) and “knowingly kept the woman in the home”.

Ahmed was charged with enslavement and using a slave.

Each individual charge has a maximum prison sentence of 25 years. These are among the harshest criminal penalties in Australian law.

Media reporting has since revealed the police have interviewed a Yazidi woman who says she was the slave of the two women charged. She told the ABC she’s willing to testify in legal proceedings.

Safar was charged with entering, or remaining in, declared areas and being a member of a terrorist organisation. Both offences carry a maximum penalty of up to 10 years’ imprisonment.

No Australian has ever been charged with these slavery offences internationally.

A NSW woman, Mariam Raad, was charged with remaining in a declared area in 2023. She pleaded guilty and was discharged with conditions, therefore avoiding time in jail.

Will they get bail?

All three women are set to face court today. Either today or in future court appearances, they may choose to apply for bail.

In assessing how likely the women are to be bailed, it’s worth considering the current proceedings against former soldier Ben Roberts-Smith, who’s been charged with six counts of the war crime of murder.

He received bail with a long list of conditions, including surrendering his passport and reporting to police regularly.

Read more: ‘Exceptional circumstances’: why was Ben Roberts-Smith granted bail?

While the recently returned women are not facing murder charges, their situations share some similarities. Both include crimes allegedly committed overseas and both are historical offences.

If the Roberts-Smith bail decision is any guide, the women will likely be granted bail. The judge would take into account that the women returned to Australia voluntarily (in the face of all but guaranteed arrest on arrival).

A judge would also be unlikely to consider the women as “flight risks” (someone who’d probably try to leave Australia). Even if that was a concern, it could be overcome by giving up their passports, as Roberts-Smith has done.

A long road ahead

If the women plead not guilty to their respective charges, the matters will proceed to trial. But don’t expect these trials to happen anytime soon.

Prosecuting crimes that allegedly happened many thousands of kilometres away, and some years ago, is a challenging task.

In 2023, Oliver Schulz became the first Australian soldier to be charged with war crimes. But the resulting trial isn’t going ahead until 2027.

This is because of the complexity of gathering international evidence. The prosecutors in that case will need a lot of time to cooperate with global authorities to get the evidence they need, to organise witnesses and to navigate any language or cultural barriers. The defence team will need to do the same.

The legal teams for the IS-linked women face similar challenges, slowing down the process.

That said, it appears the police investigations are well-advanced, including discussions with potential witnesses. There will also be significant political and public pressure to get it sorted.

But given the lack of legal precedent in this space, authorities will probably want to be extremely methodical and thorough to boost their chances of securing convictions. That means time, and likely lots of it.