For more than a year, European powers have dallied over the question of what to do with the tens of thousands of Islamic State (IS) fighters and adherents captured following the fall of the so-called caliphate in Syria and Iraq.
Now the US decision to withdraw troops and Turkey’s subsequent invasion of northern Syria on October 9 means the West has lost the luxury of inaction.
Since IS’s territorial defeat in March 2019, camps housing “IS families” and other displaced persons have swollen far in excess of their capacity. In Syria, the largest camp, Al-Hawl, exceeds 70,000 people.
The Turkish offensive has drawn the resources of the Kurdish-led Syrian Democratic Forces away from guarding the camps. Predictably, detainees have been escaping. On October 14, more than 700 IS adherents (men, women, and children, although reportedly no fighters) escaped the Ain Issa camp in Syria. The US had attempted to move 60 “high value” IS prisoners before its troops withdrew, but failed. Expect more escapes, including of IS fighters, in the days and weeks to come.
Prior to the Turkish invasion, European nations had been wringing their hands, but doing little else, regarding the problem of foreign and other citizens in detention in Syria and Iraq. It’s estimated that 40,000 foreign fighters, including 6,000 western Europeans, travelled to Syria and Iraq to join the group.
The two options most hotly debated regarding European citizens were repatriation and trials on site, where the detainees are being held. What to do with Iraqi and Syrian citizens was to be left to Iraq and Syria.
Of the two options, repatriation of nationals is the right choice. European countries, however, have equivocated. Europe does not want these citizens, understood as traitorous at best, dangerous at worst. The notion of danger includes even very small children, who some argue should be understood as “radicalised” or “cubs of the caliphate,” irreparably marked by the violence and indoctrination they have experienced.
This narrative has taken precedence over the reports regarding the inhumane conditions in the camps in Syria: overflowing sewage leaking into tents, worms in the water, extreme weather conditions resulting in death, particularly for babies and young children. The case of Shamima Begum, who left the UK as a 15-year-old to join IS and whose citizenship was later revoked by the British government, is a stark example of this. Her baby died a few weeks after he was born in the al-Roj camp in March 2019.
Britain is not alone: Most European countries refuse to repatriate citizens picked up in Syria and Iraq, or even, in fact, to count or identify them. Only a few exceptional repatriation instances exist, including a handful of French and Dutch orphans and a large mixed group of people including children to Germany. Kosovo and Kazakstan have been open to repatriation and Turkey and Russia have taken some orphans. In June, the Kurds released 800 detainees back to their families in Syria.
Repatriated IS fighters and adherents would stand trial in their home countries under domestic criminal law.
A second option, trials on site for IS adherents regardless of citizenship, was gaining momentum prior to the Turkish invasion, with several countries promoting the idea of an international tribunal. The idea of constructing an ad hoc tribunal in the region promised to solve the detainee impasse for Western countries and the SDF.
But there are several problems with such an option. First, because the SDF is not an official government but rather provisionally in charge of territory in Syria, an ad hoc court with international support could not be set up in the Kurdish area of northern Syria. This leaves Iraq as the likely site. Constructing such an international tribunal in Iraq for IS adherents was the topic of a meeting held between Britain, France, Germany and three other countries in Copenhagen on October 11. On the table is a hybrid structure, involving both international and Iraqi judges.
But an ad hoc tribunal in Iraq would need to contend with Iraqi law, which allows the death penalty, as well as the deeply problematic Iraqi trials already underway of IS affiliates. For the past several years, the Iraqi government has been subjecting IS fighters and affiliates to what can only be called sham trials. Trials average ten minutes, and many defendants will not have met their defence attorney – who is paid $25 per case – before the trial.
Punishment for IS affiliation includes life in prison when judges are lenient, but can also bring death by hanging. Iraqi courts have issued hundreds of death sentences, including against foreign nationals, although it’s not clear if any have yet been carried out.
What kind of justice?
Internationally financed courts will not hand out death sentences – even life imprisonment is a sentence rarely pronounced by international or hybrid criminal courts. Gross violations of procedural rights are also unpalatable for Western-run institutions. But the numbers of detainees in prison prior to the Turkish offensive as well as the dearth of information regarding what crimes they have committed beyond affiliation with IS mean that rights-respecting court processes will take huge resources and could be inconclusive.
Any just tribunal would release most of the convicted prisoners within, at most, a few years if jail terms are to conform to widely accepted humanitarian standards. This would simply defer by a few years the question of what in fact should be done with IS affiliates – where should they live and where do they belong?
In early 2019, the Kurds set up trials for IS adherents in Kurdish-administered areas of Iraq and Syria, as an antidote to flawed Iraqi justice. Defence counsel was provided and sentences were capped at 20 years: rehabilitation, not revenge, was the goal, one judge told a journalist for NPR. This promising development may be one more casualty of the changed circumstances on the ground.
The first, still best, option – repatriation of foreign nationals – is arguably a quickly closing window. Even then, questions would remain about what should happen to Iraqi and Syrian nationals, and what role the West should play in resolving their situation. But European powers must avoid taking the third option they’d been exercising by default – doing nothing, and waiting for circumstances to change.
(Kerstin Carlson is Associate Professor International Law, University of Southern Denmark)
(This article was originally published on The Conversation. Read the original article)
(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)