The question of what to do with the thousands of foreign Isis fighters, wives and children currently detained in north-eastern Syria has been dominated by two narratives. The first, louder, calls for draconian punishment – let them be hung by Iraqi kangaroo courts, or left to rot in Syrian prisons.
The liberal left has responded with vague calls for repatriation, rehabilitation and even amnesty, most of which have been rapidly shot down, as when Emmanuel Macron’s government quietly shelved a vilified proposal to repatriate Isis men, women and children.
But there is a third proposal too: the one put forward by the Kurdish-led autonomous region of north-eastern Syria more commonly known as Rojava, which led the gruelling campaign to defeat Isis as a military force and lost 11,000 of their young men and women in the process. Rojava is calling for an international tribunal in north-eastern Syria, to hold Isis prisoners accountable on the soil where their crimes were committed.
The legal and practical obstacles to the establishment of such a tribunal remain enormous. But a new dossier compiled by Rojava Information Center – a research team on the ground in north-eastern Syria -gives a step-by-step picture of the potential road to an international tribunal.
New figures in the report reveal that following Isis’ military defeat by the Syrian Democratic Forces (SDF), there are more than 11,000 former Isis fighters held in north-eastern Syria, including 1000 foreigners; over 13,000 Isis-linked foreign women and children, the large majority held in the cramped, febrile Al-Hawl camp; and over 60,000 Syrian and Iraqi Isis-linked individuals.
The richest and most powerful nations have taken the hardest line. The UK has stripped citizenship from its own Isis-linked nationals, and Germany may do the same. Other nations demand their detained nationals present themselves at an embassy and seek support – impossible given the lack of political recognition for north-eastern Syria.
Limited repatriations have occurred. Nations like Kazakhstan have brought back hundreds of men, women and children. Others, like Malaysia, organise psychological assessments and rehabilitation programmes for returning Isis members, alongside jail sentences where appropriate.
But since March, EU states have brought back just 36 orphaned children. Particularly as regards the detained fighters, there is virtually no movement whatsoever.
The RIC report reveals that less than 3% of around 14,500 Isis-linked foreign nationals held in north-eastern Syria have been repatriated since Isis’ defeat. Clearly, repatriation will only ever be a limited solution. Foreign powers are buckling to pressure from electorates who see repatriation as the easy option for Isis members, and in any case refuse to negotiate directly with the Autonomous Administration in north-eastern Syria.
A number of alternatives have been advanced. The International Criminal Court (ICC) is the de facto forum for bringing war criminals to justice, but the ICC gets the power to try cases from the UN Security Council. Russia has been vetoing all attempts to investigate crimes in Syria via the ICC in order to protect the Assad regime.
The currently-favoured international option is a court set up in partnership with the internationally-recognised Iraqi government. Iraq has demanded $10bn up front, then $1bn annually, to try foreign fighters in SDF custody.
But the processing of Isis suspects in Iraq’s criminal justice system has been met with widespread condemnation. Death sentences have been handed down following 10-minute trials without access to a lawyer, based on confessions extracted by torture.
Iraq insists the international community will not be able to veto the death penalty; in north-eastern Syria, the death penalty was outlawed following the establishment of autonomy, and its justice system focuses on education and rehabilitation with a maximum 20-year sentence. Iraq has also said they would ban international aid organisations from their detention centres, while north-eastern Syria has invited international observers to monitor and improve its own system.
The proposed tribunal in north-eastern Syria would benefit from the experience of previous ad-hoc tribunals in Yugoslavia and Rwanda, building on their successes – and learning from their mistakes.
Just like in the ICC, an international tribunal in north-eastern Syria would only have the scope to hold commanders and key players to account. However, unlike the situation in Iraq – or in Rwanda, where the tribunal was accompanied by traditional ‘gacaca’ courts which were open to corruption and failed to observe the rule of law – there is a young but functioning judicial system in north-eastern Syria, which has heard the cases of over 7000 local Isis fighters to date. Additional funding, training and support for this system could complement the international tribunal.
Abdulkareem Omar, co-chair for External Relations in the Autonomous Administration, has stressed their intention to implement “long term rehabilitation and education processes for women and children” to complement any tribunal for fighters. These programmes are already in place in newly-liberated regions, with women’s houses opening in Isis’ final stronghold at Deir-ez-Zor and women’s de-radicalisation and empowerment programmes underway in refugee camps and newly-liberated regions like Raqqa.
This wider infrastructure of support is exactly what was missing in the former Yugoslavia, where there was never the public or institutional support for the tribunal far away in the Hague. Holding a tribunal here in north-eastern Syria would enable both up-close accountability and direct access to evidence and witnesses, particularly the women and Yazidis who suffered the most under Isis. This direct, local access to justice is the most compelling argument for the establishment of a court in north-eastern Syria.
The RIC report identifies three major barriers to the establishment of the international tribunal. First, the proposed tribunal would be limited in scope to targeting Isis, potentially repeating the errors of previous international justice mechanisms. Secondly, the region lacks the finances and infrastructure to carry out any such mass judicial enterprise – SDF fighters’ wages have been cut just to tackle the humanitarian crisis at Hol camp. And third, there is the Russian Security Council veto.
In a keynote speech at an international conference on Isis held on 6 and 7 July in north-eastern Syria, top French lawyer Bernard Inchauspe revealed he has found one way forward – previous UNSC resolutions which grant international powers the authority to try Isis, without needing to go through the Council again.
Inchauspe has, perhaps, the legal solution – but the political will to realise this is another question. Until now, the world has relied on north-eastern Syria as its most trusted and effective military partner in the fight against Isis, but refused to meet its parallel demands for political recognition.
Political recognition would stabilise the political situation in north-eastern Syria, reducing security concerns around the long-term detention of foreign fighters here given the constant threat of Turkish invasion, jihadist insurgency and aggression from the Assad Regime. It would also break the Regime and Turkish imposed embargo which has left Isis detainees held in such poor humanitarian conditions.
Recognition of north-eastern Syria, in tandem with the establishment of an international court, would bypass the Russian veto and enable Isis to be brought to justice.
Any tribunal will necessarily be imperfect and limited in scope – though the door remains open for later action against the Syrian regime and its state backers, should the political situation change. Even if incomplete, a tribunal for Isis would bring reconciliation and closure to local communities who suffered under Isis.
Support and political recognition for north-eastern Syria and the establishment of a successful international justice mechanism for Isis go hand in hand. With international support on the financial, legal and political levels, the justice and reconciliation efforts already underway in Rojava can be complemented by an effective international tribunal for Isis. Without such support, the conditions in the region mean that Isis will necessarily rise again.
Dani Ellis is a photographer and journalist based at the Rojava Information Center, a volunteer-run news and media agency in north-eastern Syria. You can read the RIC’s new report ‘Bringing ISIS to justice’ here.