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Several weeks ago, the Kurdish-dominated Autonomous Administration of North and East Syria (NES or Rojava) has announced that it will hold trials for Islamic State fighters from more than 50 States – including the UK, The Netherlands and France – after repeated calls for repatriation by their home countries had failed. Whereas the question of non-repatriation (and the related practice of stripping individuals of their nationality for this matter) raises several human rights law problems, including under Article 12(4) ICCPR, this post will focus on identifying some possible consequences of the failure of States to prosecute their nationals and have them tried by an armed group. In particular, it considers whether a State’s obligation to prosecute perpetrators of war crimes and terrorist offences can be discharged by the NES and if so, whether such a trial could trigger the human rights obligations of the defendants’ home State under the ECHR and ICCPR.
Non-Repatriation and the Obligation to Prosecute War Crimes
Several European officials, including the French Foreign Minister, have stated on record that they want foreign fighters to be tried locally (that is, in those areas where they are currently detained) not only by the Kurdish authorities, but also by the Syrian Democratic Forces (SDF). This ‘outsourcing of justice’ to an armed group is not only politically questionable but also legally problematic. From an IHL perspective, customary law requires States to investigate and prosecute war crimes committed by their nationals, irrespective of whether they are committed in international or non-international armed conflicts. This duty is further enhanced by the international legal framework on global terrorism established by SC Resolutions 2396 and 1373 which obliges States to ensure that perpetrators of terrorist acts are ‘brought to justice’ and to implement ‘prosecution strategies’ in accordance with international law (see also this post by F. Capone). Whereas States can discharge these obligations by extraditing nationals to third States, it is unlikely that having foreign fighters tried by armed groups is a valid alternative (The GCs, for example, only accept extradition to ‘other High Contracting Parties’, see Arts 49 GC/I, GC/II, 129 GC/III and 146 GC/IV). In addition, even if a trial is undertaken by a third party, IHL makes clear that the requirement to prosecute war criminals cannot be used to deprive the accused of their right to a fair trial (e.g. Arts 49 GC/I, GC/II, 129 GC/III and 146 GC/IV provide that ‘in all circumstances, the accused persons shall benefit by safeguards of proper trial and defence’). This concern applies to the ongoing denial of fair trials by Iraqi State authorities in charge of trying Islamic State fighters, as well as trials by armed groups in general.
Judicial Guarantees and Courts of Non-State Armed Groups
In recent years, commentators have convincingly demonstrated that while armed groups are not generally precluded from setting up their own courts under IHL and IHRL (provided the latter applies to them), in practice they often fail to provide the necessary fair trial guarantees (in particular those enshrined in CA3(d), Art. 6 AP/II, and Art. 75 AP/I and their customary law equivalents). On the surface, the NES court system seems highly sophisticated for an armed group operating in a conflict area. The NES has a constitution and a legal system that notably features a ban on the death penalty and on extradition to death penalty countries like Iraq, as well as the inclusion of female judges and creative restorative justice (consider e.g. this post by Matthew Krause). However, reports have raised doubts as to whether the Rojava courts are sufficiently independent and impartial and criticised the lack of sufficiently trained lawyers and prosecutors. This post will not make any assessment on whether these trials are indeed inadequate under IHL and IHRL. Instead, it will focus on the consequences that follow if they are. In particular, potential human rights obligations incumbent on the home States of these foreign fighters, notably the right to a fair trial under Article 6 ECHR and Article 14 ICCPR, will be analysed.
Generally speaking, a State’s obligation to secure the human rights of individuals within its jurisdiction includes a due diligence obligation to prevent the commission of human rights violations by armed groups. It appears that the European States concerned would have the power to repatriate and try their nationals in accordance with international law (as shown above, international law might even require them to do so). The important question, however, is whether European foreign fighters detained in Syria fall under the jurisdiction of their respective home State for the purpose of Article 1 ECHR. Since these States do not exercise territorial control (an accepted link for the trigger of jurisdiction under the Convention, see Loizidou v Turkey), the only option left would be to resort to a ‘personal model’ of jurisdiction developed by the ECtHR in Al-Skeini(in partial rejection of its own findings in Bankovic). However, this modelallows for jurisdiction under Article 1 ECHR only if state agents exercise some form of ‘physical control’ while the State also exercises some ‘public powers’ in the territory in question. The French Human Rights Commission (CNCDH) has taken the position that French foreign fighters detained in Northern Syria are under France’s jurisdiction for the purpose of Article 1 of the ECHR because the fact that they have been prevented from returning to France is the consequence of a deliberate decision by the French authorities and not of the Kurdish forces. In addition, the Commission has emphasised the close relationship between France and the SDF due to the military and diplomatic partnership against the Islamic State. However, this approach is unlikely to satisfy the Al-Skeini criteria outlined above and amounts to the argument that a State must be considered as having jurisdiction over an individual whenever it has any control over the fate of that individual (See also Antonios Tzanakopoulos’ post here). Whereas this concept is normatively appealing, it is unlikely to trigger jurisdiction under the ECtHRs current jurisprudence.
Jurisdiction under the ICCPR
If the ECtHR confirms its restrictive position on the scope of the ECHR’s extraterritorial jurisdiction, recourse could be made to other IHRL regimes, in particular to the ICCPR and its Optional Protocol, to which many of the home States are also bound. The UN Human Rights Committee (HRC) has interpreted Article 2 ICCPR as requiring States to ‘secure the rights under the Covenant for all persons in their territory and all persons under their control’ (General Comment No. 31, para 12). In defining ‘control’, the HRC has taken a broader view than the ECtHR and has recognized the extraterritorial reach of the Covenant over nationals abroad where a State party has control ‘over the facts and events giving rise to human rights violations’ (e.g. Sophie Vidal Martins v Uruguay, paras 7-9). In a more recent case (Mohammad Munaf v. Romania, para 14.2), the HRC found that ‘a State party may be responsible for extra-territorial violations of the Covenant, if it is a link in the causal chain that would make possible violations in another jurisdiction’. Applying this reasoning would allow foreign fighters to come under the jurisdiction of the ICCPR as their (potentially flawed) trial by the NES is the direct consequence of their home State’s refusal to repatriate and try them. It is also worth mentioning that in the context of the right to food, water or health, the Committee on Economic, Social and Cultural Rights (CESCR) has held that States have to give due attention to these rights when they broker international agreements (General Comment No. 12, para 36; General Comment No. 14, para 39; General Comment No. 15, para 35). It appears that France has entered into agreements with the NES regarding the detention and potential trial of French nationals and it is plausible to argue that this principle also applies to civil and political rights and agreements concluded with armed groups. However, even if resort to the HRC might be more promising from a jurisdictional point of view, its recommendations (‘Views’) remain non-binding and domestic political backlash might prevent States from implementing them.
Even if jurisdiction is triggered under the respective treaty, it has to be noted that both Art. 6 ECHR and Art. 14 ICCPR are subject to derogation regimes (Art. 15 ECHR, Art. 4 ICCPR). It is still disputed whether extraterritorial derogation is permitted but it can be argued that upholding the right to a fair trial requires the repatriation of terrorist fighters which in turn poses a threat to their home State’s national security. However, the HRC has described the requirement of a competent, independent and impartial court enshrined in Article 14(1) as an ‘absolute right that is not subject to derogations’ (General Comment No. 32, para 19). In addition, any derogation must be consistent with a State’s other obligations under international law, which include the fair trial obligations under IHL which are largely coterminous with Article 14 ICCPR (See Art 6 AP/II and Customary Law), most notably the requirement of an independent and impartial court. In addition, there is growing authority to suggest that fundamental principles of fair trial today form part of jus cogens (General Comment No. 29, para 11; Kadi v Council and Commission, para 290; ILC report on peremptory norms of general international law, para 123). Therefore, irrespective of whether the preconditions for derogation are met, it is unlikely that the affected States could escape their (positive) obligations under the right to a fair trial.
State Complicity in Armed Groups’ Trials
If jurisdiction under the ECHR or ICCPR cannot be established, State complicity in the internationally wrongful act of the armed group (that is, the passing of sentences without a regularly constituted court affording all the necessary judicial guarantees under IHL and the violation of fair trial rights under IHRL, if the latter applies to the group) could be invoked as a fall-back position to invoking the breach of a primary rule of these Conventions by the respective State. Under Article 16 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) a State which aids or assists another State in the commission of an internationally wrongful act is internationally responsible. It has been argued that a similar rule for the complicity of States in wrongful acts of non-State actors is currently developing. When armed groups become the bearer of international obligations, a State’s responsibility for participating in the violation of those obligations in terms of complicity could be invoked. Indeed, in the context of genocide the ICJ did not hesitate to apply the principles of Article 16 to armed groups by analogy (See Bosnia Genocide case, para 420). However, even if State complicity for acts of an armed group were to be accepted and invoked, victims would still lack a proper forum to bring a related claim (but consider the suggestions made here).
In conclusion, there exists a strong legal case against the outsourcing of criminal proceedings to armed groups and for the repatriation and prosecution of foreign fighters by their home States. These States are under a legal obligation to prosecute their nationals for war crimes and terrorist acts, to implement positive obligations with regard to their citizens’ rights under the ICCPR and (potentially) ECHR, and might be held complicit in fair trial violations of the NES and other armed groups. However, due to the restricted extraterritorial jurisdiction of the ECHR in cases that do not involve territorial or physical control by the States in question, individuals subjected to armed group courts will struggle to find an appropriate legal forum to enforce these obligations and secure their rights under the Convention.