About the author(s):
This post has been written by Nicolas Sion, Head of Development, Fight for Humanity with input by Anki Sj?berg, Co-Director and Founder, Fight for Humanity.
On 23 May 2019, more than 50 people, legal experts, representatives of States and international organizations, as well as representatives from North-East Syria met in Geneva to examine possible legal solutions for members of the Islamic State detained by the Syrian Democratic Forces in North-East Syria. The meeting was co-organized by the NGO Fight for Humanity and the Geneva Academy of International Humanitarian Law and Human Rights. Fight for Humanity is a non-governmental organization that works to convince armed actors, notably armed non-State actors, about the need to respect people’s rights in the areas of their control or influence.
More than 2,000 foreigners from 70 different countries, 3,000 Syrians and a similar number of Iraqis – men, women, children with alleged links to ISIS – are reported to be detained by the Self-Administration in North East Syria (NES) and the Syrian Democratic Forces (SDF). The NES/SDF has called for the support of the international community to prosecute these individuals after many of their countries of origin decided to not to repatriate them.
During the meeting, participants discussed three main options that could eventually be mixed. In the first option, these detainees would stay under the control of the SDF. The SDF might prosecute them or keep them without trial or even release them. The second option implies the establishment of an international tribunal under the sponsorship of the United Nations or of several countries. However, several States are reluctant and point to the many existing legal and logistical obstacles involve in this option. The third option is the repatriation of the detainees to their countries of origin or their transfer to a third State.
Based on the meeting report and despite divergences among participants, Fight for Humanity has formulated ten recommendations for the international community which can be summarised here:
1- Include the victims’ associations in any legal process. A dialogue with the victims’ associations is necessary. The first objective of a legal process is to get reparation for the victims, and they should have their word to say regarding what is acceptable/desirable to them.
2- Put emphasis on “war crimes” rather than “terrorism” crimes. At the time of judging the detainees all legal experts agreed it would be easier to rely on international humanitarian law (IHL) to judge the detainees rather than anti-terrorism laws. IHL has an international basis that can apply to all detainees while anti-terrorism laws are different for each country.
3- Coordinate with the different stakeholders. This issue involves 70 different States and their different ministries (Ministries of Interior, Justice, Foreign Affairs), the Self-administration in North East Syria, international institutions, human rights organizations and legal experts. Coordination is necessary to avoid a fragmentated approach with differences in the treatment/judgment of detainees.
4- Combine solutions. There is no “one-size-fits-all” solution, but solutions would need to be combined. During the meeting, several options were discussed. In the first option, the detainees would stay under the control of the NES/SDF which might judge them. The second option implies the establishment of an international tribunal under the sponsorship of the United Nations or of several countries or the prosecution by foreign national courts based on universal jurisdiction. The third option is the repatriation of the detainees to their countries of origin or the transfer to a third State. As different options are combined, there is a need for coordination amongst the various actors to avoid a scattered approach.
5- Ensure fair trials. Whatever the justice option is, it is essential that the international community, if it does not want to create another generation of jihadist fighters, ensures that the families of the currently detained fighters from ISIS have no reasons to criticize how trials are conducted or how their spouses/parents/relatives are treated in detention.
6- Avoid creating a perception of “victor’s justice”. A selective justice, for example a justice that would only prosecute ISIS members would create this perception unless steps are taken to mitigate this impression. Many parties have been involved in the Syrian/Iraqi conflict and have been accused of committing violations. An incomplete justice could be very damaging for the system of international justice and would jeopardize the stability of the region on the long term.
7- Include the situation of all detainees in the discussions. Although different solutions might be found for different kind of detainees due to the legal and political circumstances, the principle of non-discrimination should be applied: the situation of all detainees should be addressed in the discussions whatever their age, gender, or nationality, avoiding an exclusive focus for example on the European detainees.
8- Treat children with special care. At the meeting, the NES/SDF stated that over 50 children below 18 are detained in special centers. They were associated with the Islamic State and some of them were trained or used for combats. These children should be treated differently from all the other detainees and receive special care.
9- Take responsibility. The international community has a duty to support solutions to this issue, they cannot let the NES/SDF – a non-State entity – take the entire responsibility to maintain in detention or judge these detainees. The NES/SDF has limited resources and does not have the logistic and legal capacity to judge so many international and national detainees.
10– Act quickly: The situation involves many legal, logistic and political challenges and all the actors involved do not seem to agree on a common solution. However, there are urgent humanitarian and human rights concerns that can’t wait – radicalization of the detainees, their families and their communities is ongoing, putting the stability of the region at risk.
To read the full report of the meeting, click here.