Original article by Matteo Russo, EER, December 9th, 2019
While the Islamic State lost its supreme leader Abu Bakr al-Baghdadi and is on the verge of renovating the chain of command, the international community is now confronted with a complex issue: how to address the crimes committed by ISIS with the long-term goal of furthering a local political transition. It also has to contend with the repercussions of a Turkish offensive against Kurdish forces into northeast Syria. Apart from being severely criticized for several reasons with important geopolitical consequences, the assault has opened up dangerous new scenarios. Immediately after Turkish shelling, at least 750 people close to Islamic State fled the displacement camp in Ain Issa. At the time, a senior official of the camp, Jelal Ayaf warned that “sleeper cells” had emerged during the riots which represent a serious danger of future attacks in Syria and abroad. Furthermore, Turkey started to send some “foreign terrorist fighters” back home, alarming European countries.
Balance of Powers
In this context, two main exigencies are converging towards the same point: firstly, the urgency to secure all access points to Europe from the infiltration of fighters or potential terrorists, also taking into consideration deals with Turkey; secondly, the necessity to bring the perpetrators of heinous crimes to justice. Regarding the first issue, it is worth noting that, notwithstanding the Turkish threat of sending 3.6 million Syrians to Europe, UN investigator Carla Del Ponte firmly condemned the Turkish invasion, labeling it as a war crime. Turkey is the principal gate to Europe and it is the pivot of a delicate geopolitical balance, therefore, its requests cannot simply be ignored. At the same time, following the deal between Turkey, Russia and Syria and the withdrawal of US troops from northeast Syria, a serious and unanimous international political will on jurisdictional alternatives would be difficult to achieve. Moreover, the hostility of permanent members of the Security Council towards the International Criminal Court, combined with all the implications that those powers have within the conflict, exclude the possibility of addressing those crimes before the court for the time being.
An Intricate Legal Puzzle
Despite the legal impasse concerning the qualification of foreign terrorist fighters, especially concerning the Security Council Resolution 2178/2014 and its consequent latitude given to states to implement the operative elements, the main political actors agreed on prosecuting the crimes that have been committed by ISIS members. Several solutions have been contemplated but none seem completely satisfying. Criminal prosecution in northern Syria and Iraq could be pursued in a forum loci delicti, in the ICC, in international or hybrid tribunals, or suspects could be deported to third-party countries. Each of these options offers advantages and shortcomings.
In respect to prosecution in Iraq and northern Syria, it should be noted that Iraq already sentenced thousands of combatants to death, with significant prejudice to the fairness of trials and the participation of victims. For instance, as it has been highlighted by several reports, around eleven French citizens have been transferred to Iraq to be prosecuted under the state’s counter-terrorism laws, without any sort of judicial guarantees. Furthermore, since France, as well as other Western countries, has ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, the choice to abandon its citizens has important consequences. Additionally, if the involvement of France in the transfer of ISIS suspects from Syria to Iraq could be demonstrated, this would constitute a grave breach of international law. However, it is worth emphasizing that there are no obligations upon states to intervene in the case of human rights violations. Nonetheless, inaction in these cases would have moral and ethical consequences and would constitute a significant step backwards in the strengthening of human rights.
The Fate of Foreign Terrorist Fighters
Regarding the situation in Syria, the AANES Foreign Affairs Bureau documented the presence of about 11,000 former ISIS members, as well as 72,000 women and children under the control of the Autonomous Administration of Syria. Despite the difficulties in dealing with the post-conflict situation in the area, international human rights organizations recognized the fulfillment of basic human rights. Contextually, the United Nation Council Resolution 2379/2017 established an investigative team called UNITAD tasked with collecting any kind of evidence of atrocities committed by ISIS towards the Yazidi minority in Iraq, for crimes committed in Mosul and for the “Speicher Massacre”. As UNITAD’s mandate aims at supporting the Iraqi government by providing technical assistance, one could argue that the evidence provided by UNITAD could eventually lead to the application of capital punishment. Another aspect that might be subject to criticism is the attempt to build a selective justice mechanism tailored only to ISIS crimes, while discarding the numerous atrocities committed by the Syrian regime, thus amplifying the stigmatization towards certain types of individuals and hampering the recovery process.
It is estimated that around 14,500 foreign ISIS suspects and relatives, including fighters, women, and children, are in custody in the northeast of Syria, waiting to be repatriated. Due to this fact, the issue of repatriation has been widely discussed by the international community, registering discordant positions from the involved countries. Although the Syrian Democratic Forces repeatedly expressed the urgency to face the crisis in the Hol Camp, the call for help has mainly gone unanswered.
Countries like Morocco, Malaysia, Kosovo and Sudan spoke out in favor of repatriating all of their citizens, regardless of their status. States like the US and Canada underlined the importance of the repatriation of combatants in order to prosecute them in their country. One of the options contemplated by US officials is sending the foreign fighters to the military prison at Guantanamo Bay, widely known for its gross human rights violations.
Whether the hypotheses of repatriations would be desirable must be considered case by case, evaluating the concrete situation, while ensuring the observation of human rights standards. Indeed, the so-called “Feindstrafrecht theory”, known as the “criminal law of the enemy” and based on the restriction of fundamental rights of suspects, should be universally condemned as an inherent contradiction.
Other countries such as France, Netherlands, Sweden, Belgium, Australia, and Finland expressed the willingness to only repatriate women and children, though under particular legal and factual circumstances. Meanwhile, the United Kingdom is strongly opposed the repatriation of any ISIS affiliates, threatening to strip them of their citizenship, even though orphan children have been recently rescued from Syria by the UK government. Although Germany was, in principle, reluctant to repatriate adults from Syria, a recent court order ruled that a German mother and her children are to be transferred back to Germany, after they left the country in 2016 to support ISIS. This judgment could constitute an important judicial precedent.
Reluctance Towards Repatriation
The reasons behind the negative stances of countries towards repatriation are manifold and mostly connected to political considerations and objective judicial constraints. First and foremost, some countries have complained about both the insufficiency of evidence about suspects and the lack of necessary judicial cooperation from third parties. Considering the fragmentation of the conflict and the multitude of actors involved, this reluctance has a clear foundation. Secondly, on political grounds, repatriations could be perceived as a sort of “safe-conduct” for individuals, who voluntary decided to join ISIS, with an influential effect on the public opinion. Nowadays, governments tend to adopt simplistic measures to indulge the vox populi, with the rhetorical purpose of offering social protection and thus increasing consensus.
International Judicial Solutions
As previously mentioned, it is unlikely that ISIS crimes will be brought before the International Criminal Court. Syria is not a party to the Rome Statute and thus a Security Council Resolution would be necessary to bring the Syrian conflict before the court. Since investigations into Syria would encompass investigations into the systematic human rights violations committed by the Assad Regime, Russia and China will use their veto powers to prevent this from happening. Even if individuals from member states of the International Criminal Court would be prosecuted for crimes that they have committed in relation to the war in Syria, the court could only deal with genocide, war crimes, and crimes against humanity, typically committed by high-ranking members, and not by simple soldiers and affiliates suspected of having taken part in a terrorist organization.
Therefore, a more suitable solution could be to establish an ad hoc tribunal within northern Syria or Iraq, following the model of the ICTY and ICTR. The advantages of such an approach would be intensive cooperation with domestic courts; the geographical proximity to the crimes; and accordingly, easier involvement of victims and witnesses in the proceedings. If such a consensus would be reached at the international level through either a Security Council resolution or via the General Assembly of the European Union, this could be an important step forward in dealing with those crimes.
Undoubtedly, the challenges are many, and there must be a clear international political will to impartially and transversely address all legal issues under discussion. However, at this stage, this goal seems far from being reached, unfortunately.
 Cfr. Rojava Information Center, Bringing Isis to Justice, towards an International Tribunal In North East-Syria, March 2019; Impunity Watch, Isis-only Tribunal: selective, politicised justice will do more harm than good, October 2019; European Council on Foreign Relations, Beyond good and evil: Why Europe should bring ISIS foreign fighters home, October 2019.
 Jakobs G., Burgerstrafrecht und Feindstrafrecht, in Foundations and Limits of Criminal Law and Criminal Procedure, Taipei, 2003.