By Katya Pollock (PO’21)
In March 2019, the U.S.-backed Syrian Democratic Forces announced that they had secured the last ISIS stronghold in Syria, the small town of Baghouz at the eastern border of the country. In the nearly five years since ISIS’s leader, Abu Bakr al-Baghdadi, first declared the creation of an Islamic caliphate, the group has controlled a territory as large as Great Britain and has subjected 7.7 million Syrian and Iraqi civilians to its brutal rule in accordance with ultra-conservative interpretations of Sharia law. The group has also conducted or inspired at least 140 terrorist attacks in 29 countries in efforts to establish a worldwide Islamic caliphate.
ISIS’s global reach has been facilitated by the group’s remarkable ability to recruit foreign fighters through Internet-based propaganda. According to an academic study by the International Center for the Study of Radicalisation, an estimated 41,490 international citizens – including men, women, and children – are currently affiliated with the terrorist organization. Approximately 2,000 of these foreign ISIS fighters and their families are now detained in prisons and refugee camps in Northeast Syria by the Syrian Democratic Forces (SDF) and in Iraq by the Iraqi government. The SDF have repeatedly requested that foreign governments retrieve their citizens so that they can be tried by their respective countries’ judicial systems, while the Iraqi government’s brutal prosecution of suspected ISIS fighters has raised questions of human rights abuse. The United States, Russia, Sweden, and France have agreed to repatriate some or all of their citizens and, in February, President Trump urged U.S. allies over Twitter to accept ISIS fighters, warning that the fighters might otherwise be able to evade justice. Amidst political opposition from constituents and concerns over a lack of access to judicial evidence, however, the United Kingdom, Germany, Canada, and other countries have refused to repatriate their citizens who fought with ISIS. The decision, I argue, is in violation of the countries’ legal and moral obligations and only exacerbates long-term security risk from ISIS.
Existing international law, both formal and customary, suggests an obligation of states to proactively repatriate citizens who have engaged in terrorist activity in foreign countries. Binding UN Security Council Resolutions 2178 (passed in 2014) and 2396 (passed in 2017) legally obligate states to “develop and implement prosecution, rehabilitation and reintegration strategies for returning foreign terrorist fighters.” Rule 158 of the International Committee of the Red Cross, a customary humanitarian international law, requires states to investigate war crimes allegedly committed by their nationals, and, if appropriate, prosecute the suspects of such crimes. While customary international laws are based on established international practices rather than written conventions or treaties, they nevertheless hold weight in decisions made by international courts. Countries which have refused to repatriate their citizens suspected of terrorist activities thus do so against their legal commitments, both formal and customary, to the international community.
From a moral perspective, states have an obligation to the Iraqi government, the SDF, and ISIS fighters themselves to make proactive efforts at repatriation. Firstly, there appears to be an injustice in burdening the Iraqi government and SDF, both under-resourced and engaged in critical stabilization efforts, with the prosecution and imprisonment of fighters from foreign countries who could create further unrest in the region. As Abdalaziz Alhamza, co-founder of Syrian citizen journalist group Raqqa is Being Slaughtered Silently, wrote recently in the New York Times, “Why should the Syrians, who suffered the terrible violence inflicted by these American and European Islamic members, have to deal and live with them?”
Secondly, states have a moral obligation to prevent the violation of their citizens’ rights to a fair trial wherever possible. Reports from Iraq have detailed forced confessions, torture, and capital punishment of suspected ISIS supporters, who are convicted at an alarming rate of 98 percent in Iraqi courts. The UK, Canada, and Germany each guarantee their citizens the right to a fair trial, freedom from torture, and freedom from capital punishment. Where it is possible to do so, these governments have a moral obligation to their citizens to prevent violations of their rights by international governments.
Officials in the UK, Canada, and Europe have expressed aversion to repatriating foreign fighters on the basis of domestic security. Home Secretary of the UK, Sajid Javid, said of ISIS fighters with UK citizenship: “My message is clear – if you have supported terrorist organizations abroad I will not hesitate to prevent your return.” In February 2019, Javid stripped pregnant ISIS recruit Shamima Begum of her British citizenship in a decision which critics said violated international law and reflected political, rather than security, motives. In Canada, officials have raised the problem of gathering enough judicial evidence to prosecute returning fighters. Public Safety Minister Ralph Goodale told Canadian reporters, “The issue is in part working with our allies to make sure that we are collecting the maximum amount of useable evidence that can be practically available and usable in the justice system to lay charges.”
The decision to not proactively repatriate foreign fighters, however, generates greater long-term security risk for the U.S. and its allies. It is true that the prosecution of terrorists who have committed crimes abroad presents significant evidentiary challenges, particularly in countries like the UK and France which lack strong legal frameworks to deal with cases of international terrorism by their citizens. Leaving foreign fighters to prosecution by unstable governments, however, only leaves open the possibility for ISIS fighters to reconstitute themselves and perpetrate further attacks.
There is no doubt that political opposition and a lack of judicial evidence pose challenges to countries whose citizens are suspected of fighting for ISIS. The appropriate response, however, is not to eschew responsibility by illegally stripping fighters of their citizenship or refusing fighters’ rights to consular assistance. Instead, these countries should act quickly in strengthening existing laws for the prosecution of international terrorism and work proactively to repatriate citizens suspected of such crimes. Only then will foreign ISIS fighters be properly brought to justice.
