July 1, 2019
IntelBrief: The Dilemma of Repatriation
.Months after the territorial defeat of the so-called Islamic State (IS), many European countries continues to avoid the responsibility of taking back their citizens who joined IS. Experts estimate that close to 800 European militants are being held in overcrowded and squalid detention camps throughout northeast Syria by the Syrian Democratic Forces (SDF) without charge. Women who joined IS willingly or at the behest of their husbands, as well as children, are also being held without charge, with recent reports of children dying of malnutrition and hypothermia in the camps. At the Human Rights Council in Geneva on June 23, United Nations Human Rights Chief Michele Bachelet underscored the need for countries to prosecute their fighters or let them go; she further warned that families cannot be held indefinitely in these conditions.
The SDF does not have the sovereign authority to prosecute detainees in the camps, nor are Kurdish militias trained as prison wardens. Since European countries are overwhelmingly refusing to take their citizens back, the SDF has been left with little choice but to transfer them to Iraq, where observers say they face flawed trials and draconian penalties. But governments want it both ways: while France and several other European countries condemned Iraq’s death penalty sentencing, they still consider Iraq’s judicial processes fair, despite much international criticism to the contrary. Europe’s continued reluctance to take back its nationals and arrange fair trials for them is contradictory to European human rights values. Moreover, the current situation exacerbates a grievance and revenge narrative, which will only serve to perpetuate the cycle of radicalization and extremism fueling the next phase of the fight against IS.
The lack of political will in Europe to take back citizens stems from a number of issues, including public backlash, fear of future terrorist attacks, and difficulties in convicting nationals for crimes committed abroad. Because many European nations demand rigorous legal requirements of their own justice systems, obtaining and effectively utilizing battlefield evidence from abroad make it difficult to prosecute. Even if convictions were secured, sentences in Europe tend to be shorter for terrorist-related crimes; typically two to five years in length. While some of these concerns are indeed valid, countries have a legal responsibility to repatriate their citizens under international law and should find practical ways to ensure that justice is served. Several UNSC resolutions, including 2396 on returning foreign terrorist fighters, acknowledges the difficulties and provides guidance through the Madrid Principles Addenda on prosecuting, rehabilitating and reintegrating fighters. Ensuring fighters are afforded a fair trial at home and suspected terrorists who have not committed any crimes are properly rehabilitated and reintegrated are worthy of investment. Otherwise, returnees and their families will again be marginalized, which could lead to continued support for violent ideologies after settling back in their home countries or elsewhere.
As a potential solution to Europe’s challenge, Sweden convened European allies in Stockholm on June 3 to outline a proposal for an international tribunal to investigate and prosecute IS fighters for their crimes. Swedish officials say the tribunal—preferably based in Iraq—would be modeled on international or hybrid tribunals, such as those created to address the genocides in Rwanda and Yugoslavia, or the Special Court for Sierra Leone to prosecute crimes following its civil war. The Dutch are expected to raise the tribunal proposal to the United Nations in the fall. An international court is a self-serving way for European countries to keep suspected IS members from returning home. Setting up such mechanisms are complicated, costly, and bureaucratic, which could weaken their ability to deliver justice. Further, a tribunal in Iraq is an undue burden on a war-torn country seeking to rebuild itself following the collapse of IS. Just as Europe was a significant leader in defeating IS on the battlefield, so too must it be a leader in taking back its fighters and ensuring the cycle of radicalization and extremism brought forth by IS does not reemerge.
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