Caught in the crossfire: responsibilities for ISIS members detained in North East Syria following Turkey’s Operation Peace Spring – Part I

About the author(s):

Alessandra Spadaro is an Assistant Professor of Public International Law at Utrecht University. She obtained her PhD in international law from the Graduate Institute of International and Development Studies in 2021, with a thesis on detention by armed groups. She specializes in and has published on international humanitarian law, international human rights law, international criminal law, and their intersection.

This two-part post addresses the responsibility of various actors with respect to the ISIS members held in detention in North East Syria in light of the new Turkish invasion. Starting with an overview of recent facts, the first post outlines the obligations of Turkish and Kurdish forces with respect to the detainees. The second post will deal with the obligations of the states of origin of the detained ISIS members who are neither Syrian nor Iraqi nationals.

After announcing the withdrawal of US troops from North East Syria on 6 October 2019, President Trump tweeted that “Turkey, Europe, Syria, Iran, Iraq, Russia and the Kurds will now have to figure the situation out, and what they want to do with the captured ISIS fighters in their “neighborhood.”” In a later tweet, he added that Turkey, Europe and others must “watch over” the captured ISIS fighters and their families. In this first post, I will explain whether President Trump’s declarations have any basis in international law, by specifically addressing what responsibility Turkish and Kurdish forces have towards the alleged ISIS members detained by the SDF following the withdrawal of US troops and the Turkish invasion of North East Syria. In the second part of the post, I will then deal with the responsibility of states other than Syria and Iraq for their citizens who are among the detainees in the SDF’s custody.

Recent events relating to the Turkish offensive

Before getting into the core of the matter, it is useful to first summarize the relevant facts of the case, since the situation has rapidly evolved in the span of a few days.

On 9 October 2019, Turkey launched an offensive against the SDF, which are militarily led by the Kurdish People’s Protection Units (YPG) and Women’s Protection Units (YPJ), and which Turkey considers terrorists and inseparable from the separatists of the Kurdistan Workers’ Party (PKK), which it has been fighting for decades. Turkey’s operation, ironically named “Peace Spring”, had the proclaimed aim of establishing a 30-kilometer-wide “safe zone” along the Turkish-Syrian border where Syrian refugees who had fled to Turkey could be resettled after clearing it of “terrorist” groups. Taking advantage of the operation, as it was foreseeable, hundreds of ISIS members have already managed to escape from Kurdish custody and might now rejoin the ranks of ISIS with a potentially devastating regional and international security impact.

Source: Institute for the Study of War

Following the Turkish incursion, the SDF reached an agreement with the Syrian government, which had harshly criticized the Turkish invasion, allowing governmental armed forces to return to North East Syria where the Kurds have established a Self-Administration, in order to help the SDF fight Turkish and Turkish-backed forces.

On 17 October, Turkey and the US agreed to a 120-hour ceasefire. Pursuant to the agreement, the US would facilitate the YPG’s withdrawal from the designated safe zone. The two countries also agreed that they would “coordinate on detention facilities” for ISIS members and internally displaced persons, as appropriate. A few days later, Turkey also reached a memorandum of understanding with Russia, based on which the two parties agreed to preserve the status quo established by Operation Peace Spring and to collaborate towards the removal of the YPG from the “safe zone” with the help of Syrian border guards.

Although Russia has been fighting alongside the Syrian government at the latter’s invitation, Syria is not a party to the memorandum of understanding. Therefore, such agreement cannot be interpreted as implying the Syrian government’s acquiescence to the presence of Turkish forces in North East Syria. On the contrary, Syrian President Al-Assad aims at regaining control of the whole country, including Idlib – which is controlled by Turkish-backed rebel groups. He was even reported to have called Erdogan a “thief” for “stealing” Syrian territory.

Classification of the armed conflict(s) and legal protection for detainees

It is thus correct to identify Turkey as a party to non-international armed conflicts (NIACs) against ISIS and the YPG/SDF in Syria, as well a party to a parallel international armed conflict (IAC) against Syria, whose territory it has been partially occupying since 2016. Given that the presence of Turkish forces in Syria remains unconsented-to by the Syrian government, and that the aim of Operation Peace Spring is explicitly that of establishing a “safe zone” controlled by Turkish forces, it can be concluded that Turkey is now occupying other parts of the Syrian territory, either directly or through proxy forces (see here and here).

According to the Pictet Commentary to Article 6 of the Fourth Geneva Convention (GCIV), “[t]here is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation” (at 60). The Commentary puts forward a theory for the functional beginning of application of the law of occupation based on which at least some of GCIV’s provisions apply immediately to any relations between the invading troops and the civilians they meet, who are to be considered protected persons as soon as they find themselves in the hands of a party to the conflict or occupying power of which they are not nationals (ibid.). The Commentary identifies the Convention’s provisions on penal prosecutions (Article 64 GCIV ff.) as being susceptible to be applied already in the invasion phase (at 61). Arguably, Article 78 GCIV, which regulates the internment of protected persons by the occupying power for imperative reasons of security, could also be applied during the invasion (see here at 1079-1086 and 1413).

Because of the parallel existence of an IAC between Turkey and Syria (potentially triggering the full or functional application of the law of occupation) and of a NIAC between Turkey and ISIS, the detained ISIS members might be considered as falling at the same time under both the IAC and the NIAC legal frameworks vis-à-vis Turkey. On the one hand, the NIAC between Turkey and ISIS started before the latest invasion and occupation of Syria by Turkey. On the other hand, Turkey is only coming into contact with the ISIS members detained by the SDF because it has invaded and occupied Syria, albeit in the course of another parallel NIAC with the SDF. I would thus argue that there is a stronger “nexus” to the occupation, and thus that the law of IAC, rather than the law of NIAC, applies to the relationship between the Turkish forces and the detained ISIS members with which they come into contact following the invasion of Syria. It should also be kept in mind that the law of IAC is more detailed than the law of NIAC when it comes to internment and prosecution, and that no equivalent of the law of occupation can be found in the NIAC regime. The prevalence of the IAC regime in this case thus also seems preferable from a protection perspective.

Turkey’s responsibilities towards detainees

Based on the functional beginning of occupation theory, Turkey would become responsible for the internment and prosecution of ISIS fighters and their family members currently detained in North East Syria. As soon as Turkish or Turkish-backed forces come into contact with the detainees by taking control of some of the detention sites, and even if such contact occurs during the invasion phase and prior to the establishment of occupation proper, they are to be considered as protected persons under GCIV, in so far as they find themselves in the hands of a party to the conflict of which they are not nationals (Article 4 GCIV). This would be true of both ISIS fighters and their family members. In fact, ISIS members would surely not be entitled to protection as prisoners of war (POW) under the Third Geneva Convention (GCIII). At the same time, there is no gap in the protection offered by GCIII and GCIV, and thus individuals that do not qualify as POWs but meet the requirements of Article 4 GCIV would be protected under GCIV (see here at para. 271). In areas in which Turkish control has solidified so as to undoubtedly create a state of occupation, Turkey is a fortiori responsible for the implementation of all obligations incumbent as a matter of customary and treaty law on the occupying power under the international law of belligerent occupation, such as the duty to “to restore, and ensure, as far as possible, public order and safety” in the occupied territory, including by legislating appropriately and carrying out penal prosecutions in accordance with applicable IHL rules, as well as by preventing jailbreaks that would jeopardize the security of the local population.

In practice, it appears that the Turkish-backed Free Syrian Army (FSA) have been freeing ISIS members previously held by the SDF, although Turkey contests these allegations and claims that the Kurdish forces themselves set them free to create chaos as Turkish forces advance. Other reports indicate that Turkey has been struggling with prosecuting alleged ISIS members already in its custody in Turkish territory, and it is thus unlikely that they would be able (not to mention, willing) to properly address the crimes allegedly committed by (some of the) ISIS members detained in Syria.

In any event, Turkey has obligations under IHL also towards detained ISIS members that are not in its hands, but that are nonetheless affected by its military operations against the Kurdish forces. In fact, as fighting has been nearing some of the detention centers and camps in which alleged ISIS fighters and their family members have been kept by the SDF, Turkey (which is not a party to the Additional Protocols to the Geneva Conventions) shall comply at all times with applicable rules of customary IHL on the conduct of hostilities, and specifically with the principles of distinction, proportionality and precaution. In the framework of the conduct of hostilities, in fact, it is not only prohibited to attack civilians, but also to attack persons who are hors de combat and thus no longer participating in hostilities, as is the case for detained ISIS members.

SDF’s obligations towards detainees

On the other hand, under IHL, the SDF also have obligations towards the persons it detains. Specifically, detention centers must be removed from the combat zone and the SDF must take all feasible precautions to protect the civilian population under their control against the effects of attacks. Conversely, the SDF have no obligation to continue detaining even the most dangerous ISIS fighters. I would go as far as arguing that in fact there is an obligation to end unlawful detentions, and that this would include instances when the detaining authority can no longer comply with its obligation to treat detainees humanely. Because humane treatment includes providing humane conditions of detention, the SDF might thus have to release the detainees due to the radical worsening of the conditions of detention caused by overcrowding, which is reportedly a consequence of the need to remove them from the border zone where intense fighting is occurring. Indeed, knowing that they would not be able to hold this large number of detainees for much longer, and not wanting to prosecute non-Syrian nationals in their ad hoc terrorism courts, the Kurds had been asking for months that the countries of origin of the foreign ISIS members in their custody repatriate them, or alternatively that they collaborate towards the establishment of an international tribunal to prosecute them. Their calls have so far remained unheeded. As part of their deal with the Syrian government, the Kurds may agree to transfer some of the detainees to the governmental forces. As I previously discussed, such a transfer would most likely violate the principle of non-refoulement given the grim record of the Syrian government with respect to the treatment of detainees.

Conclusion to Part I

In conclusion, while both the Turkish forces and the SDF have responsibilities under international law towards the ISIS members detained in North East Syria, they are not the only actors that do so. The second part of this post will analyze the responsibilities of the countries of origin of the so-called “foreign fighters” and their families.

(Visited 340 times, 1 visits today)

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: