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Justice options  What should be done with foreigners who joined Islamic State?

A US-backed Syrian Democratic Forces (SDF) fighter watches illumination rounds light up Baghouz, Syria, in March, 2019

A US-backed Syrian Democratic Forces (SDF) fighter watches illumination rounds light up Baghouz, Syria, the last pocket of Islamic State militants, in March, 2019

(Copyright 2019 The Associated Press. All Rights Reserved.)

Switzerland is one of the many countries facing difficult choices in dealing with their citizens linked to the Islamic State. These are some of the options on the table, and the challenges involved. 

US-backed Kurdish-led forces are currently holding tens of thousands of people linked to Islamic State in northern Syria after capturing the last IS stronghold in March. Rights groups are concerned about due process and prison conditions for IS detainees both in Syria and in neighbouring Iraq.

The detainees are mostly Syrians and Iraqis but also include some 2,000 foreigners from more than 70 countries, as well as women and children being held in a separate camp that UN High Commissioner for Human Rights Michelle Bachelet described as “deeply sub-standard”. There are currently a dozen adults with links to Switzerland in northern Syria, and the United Nations this week called for fair trials for Islamic State captives and for countries to take responsibility for their nationals. 

“Accountability, with fair trials, protects societies from future radicalisation and violence,” Bachelet saidexternal link on Monday. “Betrayals of justice, following flawed trials – which may include unlawful and inhumane detention, and capital punishment – can only serve the narrative of grievance and revenge.”

Swiss Jihadist speaks out ‘If I can’t return to Switzerland, I'd prefer a bullet in the head’

In northeast Syria, Swiss public television (RTS) interviewed a Swiss jihadist who has been detained by the Kurds since January 2018. 

 How can justice be served?  

One possibility is to have IS members tried by the local justice system set up by the Kurdish self-administration in northeast Syria, says Marco Sassoliexternal link, director of the Geneva Academy of International Humanitarian Law and Human Rights. 

Another possibility is that the foreign fighters are sent back to their home countries. 

The third possibility is to establish a kind of international tribunal, Sassoli told swissinfo.ch. 

They could also be transferred to Iraq and judged there, which has already happened in some cases.

The Geneva Academy recently co-organised a conference on the issue with the NGO Fight for Humanity, which produced a report and recommendationsexternal link. But none of the options are simple. 

Could foreign fighters be repatriated?

With the notable exception of countries such as the US and Russia, most Western governments – and their electorates – are not keen on the idea of repatriating these “combatants”. Some countries, including Britain, have stripped former IS members of their nationality. 

Switzerland has said it will not actively repatriate its nationals, and Justice Minister Karin Keller-Sutter has said she would prefer to see them tried where they are in Syria or Iraq, for security reasons. 

Sassoli thinks the security fear is irrational. 

“They are more dangerous in Syria than in a Swiss prison,” he says, because in Switzerland it is harder to escape and the political situation is stable, whereas the Kurdish area is a potential target for Syria and Turkey. He thinks repatriating nationals could be a good option if Western countries want to do “something special for their nationals”, but this option would have the disadvantage of being much further from the witnesses and the evidence. 

“Active repatriation may only be examined for minors,” Swiss Foreign Ministry Spokesman Pierre-Alain Eltschinger told swissinfo.ch. “In this regard, the best interest of the child is decisive.”

What about an international tribunal?

The Swiss government has raised the possibility of helping to set up an international tribunal and says it supports creating such a court. It participated in a preliminary meeting on this in Stockholm earlier this month with eleven European Union countries, but Eltschinger said that “no decisions were taken”. 

“Such a court would have to provide for the guarantees inherent to the rule of law, be appropriately organised, impartial and enjoy broad international support among Switzerland's partners,” the foreign ministry spokesman said via e-mail.

He also cited disadvantages to support for such a court, including its complexity and the fact that such an operation is very expensive. In addition, he said, evidence may be difficult to access because it depends on cooperation with multiple states.

“Depending on the court’s location, there is a risk of a lack of independence and political influence,” Eltschinger said.

Could it be a UN tribunal? And where would the court be based?

Sassoli says a UN court is not going to happen, and a tribunal in a European country is also unlikely because of security concerns. He thinks another possibility for a treaty-based international or mixed tribunal would be in Iraq, because Iraq would agree to it, unlike Syria.

A Syria-based court “would be quite revolutionary,” says Sassoli, “because it would mean establishing a tribunal on the territory of a state which does not consent”.

Iraq is already holding trials of IS members, including some foreign ones. But there are concerns, particularly regarding the death penalty which exists in Iraq (and not on Kurdish territory). For example, 11 French nationalsexternal link have been sentenced to death in Iraq for belonging to IS. But it is likely that Iraq would agree to a mixed tribunal according to international standards and no death penalty in exchange for significant Western help with expertise and infrastructure.

What crimes would the suspects be tried for?

Another issue is what kind of statute an international tribunal would have. For Switzerland and other European countries, simply belonging to IS is a crime, but Sassoli says that for credibility an international court should try suspects for war crimes. And in terms of international standards, it should also try everyone involved in the conflict on an equal basis, i.e. not just foreign fighters and not just IS.

“Everyone – the Syrians, the Iraqis, the foreigners – has the same right to judicial guarantees and if they committed war crimes they must be prosecuted.”

Who has a right to try IS suspects?

The Kurdish authorities are appealing for international support to conduct trials under their own justice system and have repeatedly stressed that they lack the resources to secure and care for such a high number of dangerous detainees. Kurdish representative Khaled Issa, who participated in the Geneva conference, told Swiss news agency Keystone-SDA that the Kurds’ self-administration had a right to try IS suspects because “they were arrested on our territory, they committed their crimes on our territory and the victims are our families and infrastructure”.

But helping the Kurdish authorities to improve their justice system and prisons would constitute a kind of recognition for them, which is delicate.

“From the point of view of Syria, but especially of Turkey, these are terrorists and rebels,” says Sassoli. “Establishing a criminal tribunal is not like establishing a health clinic. In the public's perception, this is something done by states.”

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