Details haven’t emerged yet about the plan of the Kurds in Northeast Syria to prosecute in local courts the foreign ISIS-fighters they are holding captive. Besides judicial questions, it raises political dilemmas. What are the Kurds really after? Trials, or recognition of their autonomy?
Next month, it will be a year since the last bulwark of ISIS in Syria, the town of Baghouz, was taken by the Syrian Democratic Forces (SDF) in cooperation with the international coalition. The jihadist group is not yet defeated but no longer holds territory. Ever since, the Kurds have kept in captivity hundreds of foreign men who fought to the bitter end for the caliphate. Among these prisoners are dozens of Europeans.
Bringing these men to court is a judicial and political minefield. The Kurds would prefer the foreigners to face a judge in their home countries. Many European countries are not seriously deliberating that: they consider it too big of a risk to allow these men, suspected of involvement in terrorism, into Europe again. An international tribunal also seems unviable: too expensive, too slow, too complicated. Next option: local trials, as Abdulkarim Omar, the co-chair of the bureau for external relations of the autonomous region of Northeast Syria, suggested early this month.
‘It’s a good possibility’, said Harmen van der Wilt, professor of international law at the University of Amsterdam. ‘After all, that’s where law and order were violated.’ But some judicial issues have to be sorted out. They are mainly connected to the fact that the autonomous region that the Kurds have been building since 2012 is not a recognized nation-state but is, in judicial speak, a ‘non-state actor’. The risk is that a verdict and sentence served in that territory will not be internationally recognized, which can lead to a new prosecution elsewhere.
‘You will have to agree on a treaty’, Van der Wilt said, ‘but that is difficult with a non-state actor.’ The internationally recognized principle that nobody can be judged twice for the same crime can also be added to the criminal law books of the countries of origin of the ISIS fighters, he added: ‘but then again the question is: with whom are you agreeing on this?’
It is not exactly clear what the authorities in Northeast Syria expect from European countries. Rather vaguely, Omar declared: ‘These countries must assist us logistically in deciding which laws are applicable and setting up the courts. We will do this in cooperation.’
The Rojava Information Centre, the communication bureau of the region, said that Omar has announced the plans prematurely. For the trials to start early March isn’t realistic in the first place, the Centre said. It is likely that there will be an official announcement later in March.
A crucial question is which laws the courts will work with, explained Katharine Fortin, lecturer specializing in international law and non-state actors at Utrecht University in the Netherlands: ‘It’s not unusual for armed non-state groups to have courts. According to international rules, the verdicts of such courts can only be binding when the courts are independent and impartial, and if ‘judicial guarantees’ are met. This concerns for example the right of a defendant to prepare for the trial and the presumption of innocence.’
An important factor is also which law will be applicable, something mentioned by the Kurdish authorities as well. After all, crime doesn’t exist without law: even an ISIS-fighter can only be prosecuted for crimes that were explicitly punishable at the moment they were committed. This is often a problem in the judicial systems of non-state actors, which in general don’t abide by the legal systems in the countries in which they are active. This is different, however, with the Kurds in NortheastSyria, who always emphasize that they have no intention of breaking away from Syria: in principle, Syrian law is used.
The Rojava Information Centre remarked: ‘Local ISIS-fighters are tried according to Syrian law, which is among the best in the region. It has been modified by us, though, to bring it more in line with international human rights standards. The death penalty was abolished as soon as we declared autonomy [in 2012] and there is freedom of expression and opinion. We are now working on updating and expanding these laws.’
Dutch lawyer André Seebregts visited the autonomous region in July last year. He represents several Dutch fighters who are in Kurdish jails and called it ‘unthinkable’ that local trials could start on short notice. At least, that is, if the trials are to be carried out honestly and with the intention of being internationally recognized. Seebregts: ‘I witnessed trials that didn’t last longer than fifteen minutes, with files of three, four pages. There are no judges who make decisions about pre-trial detentions. These were cases against local fighters, of course, but it does give some indication about how ready they are.”
The list of questions Seebregts has is close to endless. Would he be able to represent his clients there? Will there be an opportunity to file investigation requests, like witness hearings and DNA-tests? Who are the judges, and how independent are they?
Also, don’t disregard the developments in the still raging Syrian war. The autonomous region may have been functioning since 2012, but the situation is anything but stable. In October last year, Turkey occupied part of the area. The Kurds asked and got assistance from the Syrian army to defend the border with Turkey and stop the Turkish advance. For now, successfully, but Assad has made it no secret that he intends to bring the whole of Syria under his control again. Voluminous reports by human rights organisations and the UN have made clear what his police and secret service have in store for prisoners: interrogations and torture to death.
A more favourable scenario will for sure cause headaches for European authorities. How are they going to keep an eye on their citizens once they have served their time and are being released in autonomous Northeast-Syria? The simple answer is: not at all. Which is an argument in favour of trials in the fighters’ home countries, the option that is, naturally, preferred by lawyer Seebregts. But that’s politically unviable. Most countries even refuse to repatriate the women and children who are locked up in deplorable circumstances in Kurdish camps, let alone the men who allegedly committed serious crimes and may be waiting for the opportunity to add some more to their tally in Europe.
However, the Kurds are partly to blame as well. They insist that foreign citizens be personally picked up by representatives of the fighters’ countries of origin. Practically speaking, that is not necessary. The Kurds can easily accompany the foreign ISIS-members to the border with the Kurdistan Region in Iraq, from where they can be accompanied to the consulates of European states in the Kurdish capital of Erbil, which can provide them with identity papers and plane tickets back home.
That the Kurds refuse to do that is (also) politics. Look at what happened when several countries did travel to the region, like the Netherlands did last year to pick up to orphaned Dutch toddlers. The Kurdish authorities had the transfer photographed by their own photographers, after which the images of official handshakes were put on social media and widely shared. It contributes to the stature of their administration.
And that’s one of the goals of the Kurds. If you ask anybody there what they need most from the international community, the answer is: recognition. The ultimate form of that would be secured in a new Syrian constitution. The problem is that because of Turkish pressure the Kurdish administration has no place at the table in any negotiations about the future of Syria.
There are direct talks, though, between the autonomous administration and the Syrian government in Damascus. They concern assorted issues, ranging from getting public services functioning to cooperation on a military level, but a real deal cannot be reached because Assad is in no way prepared to acknowledge the autonomous government and its armed entity.
That’s why the Kurds try to get recognition from the international community, in any shape possible. An international tribunal on their territory would be a dream option, but it’s clear by now that there are too many judicial, logistical and political traps for that to be realized within a reasonable amount of time – if at all. Local courts, with judicially solid agreements with states and rooted in legal systems elsewhere in the world, are a good alternative.
Although it is, as mentioned, unclear exactly what kind of help the Kurdish authorities are looking for, it seems logical that at some point representatives of European countries would have to travel to Northeast-Syria to share expertise or to monitor the trials. The Netherlands for one won’t be willing to do that, lawyers Seebregts reckons: “If you are there anyway, you might as well take the defendants back home. The argument that the Netherlands uses now is that it’s not safe for official Dutch representatives to go there, and that argument is of course no longer valid if you do travel to support the judicial process.”
Not to mention the rage it would provoke from Turkish President Erdogan if European countries decided to grant any kind of recognition of Kurdish autonomy. Rage to which Europe would traditionally bow.
The wish of the Kurdish authorities to put the foreign ISIS fighters on trial is sincere. Judicially, it can be arranged, international law seems to give enough space for it. But it needs political will as well, and it looks like there will be a lack of that on the European side. Leading to the same outcome once again: sooner or later these fighters will be released, with nobody to keep an eye on them.