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From Caliphate to International Criminal Tribunal? ISIS detainees raise complicated questions under international law

Genevieve Zingg

At the height of its power, Islamic State controlled a population of 12 million and a territory roughly the size of Great Britain. Last week, the final vestiges of the jihadist group were scrubbed from northern Syria, its previously bold and violent men looking haggard and defeated as they sat in dusty rows outside of Baghuz. The Syrian Democratic Forces, a predominantly Kurdish militia backed by the international Coalition against ISIS, declared military victory on March 23 after the months-long “Cizirê Storm” offensive to liberate the last fragment of the caliphate.

Though this is by no means the definitive end of ISIS, the significance of the liberation of Baghuz should not be underestimated. The importance of the victory was perhaps best exemplified by photographs of female soldiers throwing the black jihadist flag to the ground and raising in its place the flag of the YPJ, the Women’s Defense Units of the SDF. The symbolism of such a moment, against the backdrop of ISIS’s brutal sexual enslavement of Yazidi women and weaponization of rape as a tool of war, was lost on no one.

Sexual slavery is only one of several international crimes ISIS is accused of committing, among them the genocide of Yazidi and Christian minorities and other barbaric acts amounting to war crimes and crimes against humanity. The foremost objective of the anti-ISIS Coalition must now be delivering justice to the victims of ISIS crimes, a challenging task that must account for both political realities and state obligations under international human rights law. The pursuit of justice for ISIS crimes is an undeniably international issue: according to the co-chair of the Syrian Democratic Council, of the at least 57,000 people in SDF detention camps, more than 12,000 are ‘foreigners’ from 48 different countries.

Refusal to repatriate under international human rights law

Aside from some limited efforts to return children under the age of 10, states have been reluctant to repatriate their detained ISIS nationals. Most have left their nationals to be transferred from SDF to Iraqi custody, with some states, most notably the United Kingdom, stripping citizenship in order to formally abdicate responsibility for repatriation and prosecutorial efforts.

Current repatriation policies raise several issues under international law. Citizenship revocation, for example, is in serious conflict with Article 15 of the Universal Declaration of Human Rights, which protects an individual’s right to a nationality and prohibits arbitrary deprivation of nationality.

Stripping an individual of sole rather than dual citizenship further violates the provisions of the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, both of which are binding international law on states parties.

Citizenship revocation violates the presumption of innocence principle and the right to a fair trial, punishing individuals without actually trying and convicting them of any crime in a court of law and depriving them the ability to mount a defence. Moreover, denationalization policies cannot be justified on the grounds of security policy: there is no evidence that citizenship deprivation deters, reduces, or halts terrorist threats to national security or prevents the targeted individual from committing future terrorist acts.

On the contrary, citizenship deprivation leaves intelligence and policing authorities less able to monitor and surveil former ISIS members.

Second, by refusing to repatriate their nationals, states parties to human rights conventions like the European Convention on Human Rights (ECHR) or the International Covenant on Civil and Political Rights (ICCPR) are potentially in breach of their legal obligation to uphold fair trial rights and due process guarantees.

According to several international human rights groups and monitoring bodies, terrorism trials conducted in Iraqi courts are in violation of due process and fair trial standards as required under both the Constitution of Iraq and international law.

Fair trial concerns are particularly acute in the case of foreigners; as a senior researcher at Human Rights Watch observed after attending several dozen terrorism trials in Iraq: “The presumption is because you are foreign, and you were in ISIS territory, there is no need to provide more evidence.”

Third, states parties to the ECHR and the ICCPR are obligated to uphold the right to life, which precludes the use of the death penalty, and the right to be free from torture or cruel, inhuman, or degrading treatment or punishment.

Reliance on the Iraqi judicial system has the potential to breach both provisions: the Iraqi authorities have been credibly accused of torturing ISIS detainees and Iraq is the fourth most frequent user of the death penalty worldwide. The latter issue arose briefly last year when the U.K. was widely criticized for abandoning its usual “death penalty assurance” in the case of two ISIS Britons, and is likely to arise again as Iraq has just begun court proceedings against 13 ISIS members of French nationality, who may face the death penalty if convicted.

While states have only limited ability to protect the rights of nationals arrested abroad, as exemplified by the recent cases of Otto Warmbier in North Korea or Matthew Hedges in the United Arab Emirates, the current situation differs from the norm in one particularly critical aspect.

Despite its partnership with the international Coalition, the SDF is a non-state militia without any formally recognized “legal authority,” which raises serious questions as to the legality of SDF arrests of foreign ISIS members and their subsequent transfer to Iraqi custody. While it may be typical for nationals to be rendered to the custody of other states, it is unlikely that abdicating responsibility to a non-state actor is legal under international law.

Overall, the legal absurdity of the current situation is aptly illustrated by the fact that states are prevented by the principle of non-refoulement from returning non-citizens to countries where they may face torture or the death penalty, yet at the moment seem content to leave their own citizens at risk of the same.

National prosecutions or an international criminal tribunal?

Repatriating ISIS members in order to prosecute them in national jurisdictions, however, is equally problematic from a security policy viewpoint as non-repatriation is under international human rights law. Prosecutors in national jurisdictions face significant evidentiary challenges, unable to compel witnesses or gather any substantial evidence in Iraq and Syria, which in turn leads to convictions for lesser terror-related offences, light sentences, and worryingly early releases.

Last week, the SDF called for the creation of an international criminal tribunal to prosecute ISIS members, stressing that fighters should be tried where their crimes occurred. While Syrian cooperation is unrealistic, Iraq may be willing to allow an ICT on its territory: Iraqi President Barham Salih has already said that Iraq should not be burdened with prosecuting all ISIS fighters alone and appears to welcome increased international involvement with prosecutorial efforts. To date, the international Coalition has provided military aid to the SDF but has done nothing to help develop the local judiciary in either Rojava or Iraq.

The ICT proposal has been backed by Sweden, while the U.S, France, and Germany have pointed to political, legal, and logistical difficulties. However, the repatriation process involves similarly complex and difficult issues, yet has few of the important benefits an ICT would offer.

Establishing an ICT could address both the aforementioned human rights concerns and the security and justice-related issues posed by national prosecutions. An ICT would allow international prosecutors far greater access to evidence and witnesses, facilitate cross-border intelligence and information-sharing, thus strengthening the likelihood of convictions, and could resolve sentencing discrepancies and inconsistencies. In effect, an international tribunal would allow prosecutors to try ISIS members not as divorced individuals, but as actors in organization with one another, their crimes systematic rather than isolated.

Perhaps the most critical benefit of an ICT on Iraqi territory, however, would be the opportunity for increased victim participation and inclusion.

Nadia Murad, the powerful and outspoken advocate for Yazidi women, recently penned an essay asking why “ISIS brides” have garnered more sympathy than those they participated in killing and enslaving, and further lamented that very little has been done to deliver justice to Yazidi women.

The current system is indeed completely failing ISIS victims: according to HRW, virtually none of the trials of ISIS members in Iraqi courts have specifically addressed crimes committed against Yazidis, sites of ISIS crimes are not being investigated, and authorities are failing to preserve dozens of mass graves.

Dispersing ISIS members to national jurisdictions would largely deny victims the ability to testify, while simultaneously depriving prosecutors the ability to secure convictions that sufficiently reflect the seriousness of the crimes committed. An ICT would allow victims of ISIS crimes to have their day in court, increasingly understood as a key element of successful transitional justice processes.


Genevieve Zingg is a freelance journalist and security analyst with a regional focus on the Middle East and North Africa.

She holds an MA from Columbia University, where she specialized in international human rights law in the context of armed conflict, national security, and counterterrorism. She is currently based in London.

Follow her on Twitter @GenZingg.


All views and opinions expressed in this article are those of the author, and do not necessarily reflect the opinions or positions of The Defense Post.

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