"We don't want them back, prosecute them yourselves": What’s the fate of ISIS foreign fighters?

In a remarkable and unexpected development, the Autonomous Administration (AANES), the civilian wing of the US-backed Syrian Democratic Forces (SDF) in northeast Syria, announced its intention to begin public trials for 10,000 detained foreign militants belonging to the Islamic State (ISIS) organization, in accordance with international and domestic terrorism laws.

In a statement released on the sixth of June, the Autonomous Administration said that it has "decided to begin prosecuting foreign militants in accordance with local and international terrorism laws, while safeguarding the rights of the plaintiffs of the victims and their families," calling on the United Nations, international human rights organizations, and local organizations to engage in a positive manner and provide support during all stages of the trials. It also emphasized that the failure to bring these individuals to justice is contrary to international laws and agreements and that their continued presence increases risks within the current security situation.

According to the administration's statement, it has repeatedly appealed to the international community to fulfill its responsibilities in finding solutions for the issue of ISIS detainees that they have been holding since the defeat of the organization in the town of Baghuz, its last stronghold in eastern countryside of Deir ez-Zor in 2019. More than ten thousand fighters from the organization were arrested and are now held in detention centers, in addition to tens of thousands of their family members, mostly children and women, who are currently residing in camps in northeast Syria.

This step by the Autonomous Administration comes in light of the countries' failure to respond to repatriating their citizens from the administration's prisons and ignoring the administration's previous demands to allow their return and prosecution, as these countries have only repatriated a limited number of women and children.

Counterterrorism Law

Khaled Ibrahim, a member of the Administrative Body in the Foreign Relations Department of the Autonomous Administration, indicates that since its establishment, the Autonomous Administration has issued a package of civil, criminal, commercial, and other laws to regulate public affairs in the administration's areas. Among them is Counterterrorism Law No. 7 of 2021, which is in line with international human rights laws.

The SDF has announced its intention to publicly try 10,000 foreign detainees belonging to ISIS on terrorism charges. Why now?

While speaking with Raseef22, he adds that "the judicial system will prosecute anyone against whom solid or compelling evidence of crimes committed within the organization is proven under the Counterterrorism Law, and the trial will be limited to male fighters, without including women and children in the camps, as they are considered victims."

Although the Counterterrorism Law, which the Autonomous Administration will rely on in conducting the trials, and which was approved by the Administration's General Council in November 2021, consists of 20 articles that define terrorism and determine punishments, it does not include provisions allowing foreigners to be tried before its judicial authorities. This is considered one of the obstacles facing this step, in addition to the need for international support, recognition, and sponsorship in terms of providing technical and legal support and international judges. Furthermore, only the Syrian government has jurisdiction over such types of trials, according to legal experts.

Ibrahim confirms that the Autonomous Administration acknowledges the magnitude of the challenges, the sensitivity of the file, and its complexities within the available self-capabilities, and all of this will be taken into account. He warns that "the decision of the administration has no relation to the Damascus government, as the Syrian Democratic Forces are the ones who fought this regime and sacrificed over 15,000 martyrs and more than 25,000 wounded."

Will the trials succeed?

According to Almoutassim al-Kilani, an expert in international criminal law and legal researcher at the Legal Center for Middle Eastern Studies, "The regions of northeast Syria are experiencing a major crisis with the presence of fighters from more than 60 countries who refuse to take them back and are abandon their responsibilities towards them, despite their involvement in war crimes and crimes against humanity in Syria. However, the question is not about the existence of the Terrorism Law of the people's courts, in which the administration attempted to comply with international humanitarian law, international human rights law, and all international conventions. The question is about the administration's ability to enforce it, which poses the biggest challenge, given its need for a judicial infrastructure that includes trustworthy judges and lawyers, secure facilities, tight security, and a judicial structure that can accommodate this huge number."

Therefore, al-Kilani says while speaking with Raseef22 that "the administration's goal is to create pressure on the international community to compel countries to take action and repatriate their citizens who hold their nationality and try them on their territories, especially since this is not the first time the administration has expressed its desire to try foreigners in its areas of control."

The administration first proposed the idea of establishing a special international court in March 2020 to try the organization's members held in its prisons, whose countries refuse to allow their return and trial. This idea was met with American rejection at the time, in addition to the debate about the legitimacy of a court operating separately from the official government in Damascus.

Al-Kilani encourages "the establishment of a special international court in northeast Syria and northwest Syria to investigate the crimes of ISIS fighters and to try them in Syria, or to seek their return to their countries and their trial there." However, he speaks of two obstacles to that: first, if such a court is established in northeast and northwest Syria, its jurisdiction would extend to crimes committed by the Syrian regime and other militias; second, states evading of their responsibilities towards their citizens and attempting to get rid of them while encouraging their trial in Syria and Iraq.

"The administration's goal is to create pressure on the international community to push countries to repatriate their citizens and try them on their territories. This isn't the first time it has expressed its desire to try foreigners in its areas of control"

Repatriation and escaping punishment

There doesn't seem to be a plan by the international coalition to resolve the issue of foreign fighters. However, the local trials of detainees by the Autonomous Administration, if they have already begun in eastern Euphrates, may turn into a solution in the eyes of the coalition, especially since European courts may not be able to prosecute fighters due to lack of evidence on the battlefield or failure to prove their criminal acts during their presence in Syria or Iraq, or because they have already served their sentences.

With the existence of guarantees for fair trials in Europe and uncertainty about the results of the Autonomous Administration's investigations, how they'd be conducted, the evidence in their possession, and their legal value, it is easy to anticipate that the European judiciary would take any evidence that meets the necessary criteria for fair trials, which may lead to the perpetrators escaping punishment.

Al-Kilani points out that "there are many European jihadist fighters who have returned to their countries, and so far they are under surveillance by the authorities there, but they have not been tried for several reasons, including the fact that these countries do not have the capacity to conduct field investigations inside Syrian territory to prove that these individuals have committed war crimes and crimes against humanity, especially since many of those who returned to Europe had allegedly only worked in logistical activities and other non-combatant activities."

Reopening the file

Since the fall of ISIS in 2019, there has been a continuous appeal from some countries and human rights organizations to repatriate their citizens from the detention camps in northeastern Syria due to the deteriorating conditions there. The latest of these calls came in conjunction with the decision of the Autonomous Administration, as both Saudi Arabia and the United States called for the repatriation of foreign ISIS fighters and their relatives to their home countries. The United States also pledged $148 million to support the coalition and its legitimate partners, referring to the Syrian Democratic Forces (SDF), during a ministerial meeting held in Riyadh for the international coalition to defeat ISIS. The meeting, hosted by Saudi Arabia and the United States, aimed to raise $601 million for the stabilization fund.

Human Rights Watch reiterated its demands to the Canadian authorities in May of last year to repatriate its citizens, including women and children, and to investigate adult ISIS members. Prior to that, the French authorities also demanded the repatriation of French detainees held arbitrarily in the region under life-threatening conditions.

It appears that the Autonomous Administration seeks to draw attention to itself as a necessary player in the Syrian equation, especially in light of rapidly evolving events, including the normalization process with the Assad regime on one hand, and the Syrian opposition meetings and the creation of new political entities for it on the other hand. Additionally, the issue of foreign fighters has become a concern for the Autonomous Administration after some prisons witnessed riots. The Ghweiran prison in the countryside of al-Hasakah, which is full of ISIS detainees, came under a large-scale attack in January 2022. The SDF forces were unable to end the attack until the intervention of the international coalition.

Tarek Khairaky, the deputy head of the independent Kurdistan Freedom Movement, who was a member of the Kurdish National Council under the umbrella of the Syrian Opposition Coalition, says that "the Autonomous Administration uses the card of foreign fighters to pressure countries to recognize its political authorities or to gain financial gains." He explains that from time to time, they release many dangerous ISIS members without trials, through tribal or personal mediation or by paying large sums of money, ignoring the danger they pose as sleeper cells of the organization upon their return.

It appears that the Autonomous Administration seeks to draw attention to itself as a key player in the Syrian equation, especially in light of rapidly evolving events, including normalization with the Assad regime, and Syrian opposition meetings

He further emphasizes that under these circumstances, it is not possible to try foreign or Syrian militants within the region in light of the failure to settle the situation in Syria, the absence of official recognition of the Autonomous Administration, and the absence of competent judicial authorities. These individuals can only be tried in independent Syrian national courts with the support of international trial committees, far from the courts of the Assad regime and the Autonomous Administration. This is because the courts of both parties are not competent, impartial, and do not respect the standards and conventions of human rights regarding the rights of prisoners and detainees.

The Independent International Commission of Inquiry published a report in September of the previous year, pointing out that "more than 10,000 suspected former Da’esh fighters and other individuals allegedly affiliated with the group that have remained detained in north-eastern Syria, for the most part incommunicado,"without adequate healthcare and without legal recourse. This includes around 1,000 who were detained as minors, even though some of them have reached the age of 18 since then. The report indicated that some of these foreign detainees have no external contact with their families or lawyers except for messages sent by humanitarian workers, which are sporadic at best.