The Challenge of Foreign Assistance for Anti-ISIS Detention Operations

New York Times reporter Charlie Savage last week gave readers a fascinating look inside the makeshift detention facilities where the Kurdish-led Syrian Democratic Forces (SDF) are holding more than one thousand alleged ISIS members, from nearly 50 countries. This follows a recent piece in the Times by Ben Hubbard reporting how Kurdish authorities are detaining more than 2,000 foreign women and children at camps in northern Syria.

Hubbard wrote that the Kurdish authorities in charge of the women and children have received little help. The SDF also reported working with “limited resources.” At the same time, however, the United States is reportedly helping train SDF prison guards, although it is unclear from the reporting what exactly this training includes. The United States has also helped the SDF improve their prison infrastructure to prevent detainees from escaping, as they did last fall. Overall, Savage’s piece gave a relatively rosy portrayal of life at the prison. Despite a request, Savage was not able to hear accounts from prisoners, so it is hard to know where things actually stand.*

Both articles make it clear that these situations pose numerous political, logistical, and legal challenges. How long will the SDF or Kurdish authorities hold these people? Do they have the capacity to hold these people for prolonged periods of time in humane conditions? How will they determine who should be released, interned, or tried? The fact that many of the detainees are nationals of counties that are reluctant to accept them back only exacerbates these challenges.

It is impossible to come up with a one-size-fits-all solution to the 3,000-plus people that the SDF and Kurdish authorities are holding. Also, it appears that this problem isn’t going anywhere fast.

Most importantly, the SDF and Kurdish authorities must be in a position to carry out detentions in humane and sustainable conditions over an extensive length of time. This cannot be done without advice and assistance from foreign states and other international organizations. Some might claim that such an investment will only exacerbate the complex problem, as if to say, “if you build it they will come.”  But whether the detention sites are sustainable or not, fighting forces will capture and detain people.

There is no doubt that properly resourcing these detention facilities for the long-term can be a heavy lift. Ever-evolving factors such as a fluctuating detainee population, nearby hostilities, deteriorating infrastructure, and other anticipated resource shortages are all urgent challenges that must be addressed. Proper resourcing also requires the proper training of those who are responsible for overseeing the detainees. A failure to address detention problems now is a recipe for inhumane and unsafe conditions that fly in the face of international law and an effective detention policy.

In the meantime, it is necessary for the detaining authorities to adhere to international legal norms, which has the added benefit of appealing to outside assistance. Among other things, this means that they must place this diverse population of individuals into various categories, while also looking into their individual situations. While debates exist as to whether international law authorizes non-state armed groups to detainee people in the first place, international humanitarian law (IHL)—also known as the law of armed conflict—definitively prohibits non-state armed groups from conducting arbitrary detention. This means that such groups are barred from detaining a person without criminal charge unless that person poses an exceptional conflict-related security threat. This rule also means that detaining authorities need to know who they are detaining, and for what reason. (This piece doesn’t address the issue of SDF-run trials. In any event, the SDF are reportedly not putting non-Syrians in their custody on trial.)

Kurdish authorities appear to recognize that there are limits on who they can and cannot detain. In January, the New York Times’ Eric Schmitt reported, “Kurdish authorities were sorting out which detainees were actual combatants and which were local civilians pressed by the Islamic State into administrative or medical jobs, and could be safely released.” But determining who can be held, and for what reasons, often isn’t easy. The New York Times also reported a local official saying that for the women in the camps it was “hard to determine what roles they may have performed.” As for the SDF detainees, officials told the New York Times that most of them “helped fight.” The accuracy of that general assessment of course rests heavily on how well each detainee was individually assessed.

If the SDF and Kurdish authorities can find fair and accurate ways to sort out who they are detaining and for what reasons, it likely means they can successfully reduce the number of people they are holding, while moving toward a variety of next-steps for dealing with those they aren’t releasing.

With such a high number of foreign nationals being detained, this is where home countries could step in. As a matter of immediate attention, states need to make it clear that it would be unacceptable for its nationals to end up at Guantanamo Bay. This should be immediately scrapped from the menu of transfer options. Some states may also feel compelled to block transfers, or obtain assurances against the use of the death penalty, if their nationals are scheduled for transfer to non-abolitionist states.

For more on that issue, there is a developing story from The Guardian about two men in SDF custody who the United States may want to prosecute in federal courts while seeking the death penalty. The two men were British citizens until the U.K. stripped them of their citizenship. The United Kingdom, which has sought such assurances in the past, is not however doing so from the United States for these two men. The United States suspects the two men of being involved in the killing of two British aid workers, as well as three U.S. citizens: journalists James Foley and Steven Sotloff, and U.S. aid worker Peter Henning.

Additionally, the SDF and Kurdish authorities, and any states working with those authorities, must also refuse to participate in efforts to send people to places where they face a real risk of serious human rights abuses or IHL violations, such as torture or flagrantly unfair trials. The Wall Street Journal is reporting that the United States has already assisted in returning two dozen suspected fighters back to their home countries, but Washington is not publicly disclosing the names of those countries. For that reason, we do not know what human rights risks these people might face upon return. The United States said it is monitoring the transfer agreements to ensure that they will be securely detained and treated humanely. As I’ve explained elsewhere, however, the effectiveness of these agreements, often referred to as “diplomatic assurance,” need to be treated with extreme skepticism.

States are especially reluctant to take people back due to fears that the returning detainees will “radicalize” other prisoners or members of society. This is, dare I say, a distracting fear. First, people need to be assessed on an individualized basis rather than be subjected to collective assumptions and attitudes that are one-small step removed from a presumption of guilt. Second, states are legally justified in having concerns with anyone who advocates “national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” But this is not the same thing as “radicalization,” which is a concept that remains undefined and overly broad, yet is often injected with discriminatory religious and cultural stereotypes about who performs “radicalization,” who can be “radicalized,” and what constitute indicators of “radicalization.”

For states that are thinking about taking back their nationals, they will likely have to enter into a legally complex terrain, such as sorting out how they can lawfully take custody of someone from a non-state entity and transport that person across an international border.

There may also be insufficient evidence to charge someone under a state’s domestic criminal justice system—whether for war crimes or for terrorism-related crimes. This could make states shy away from accepting detainees. Take the case of “John Doe” for example—an America currently held in U.S. military custody in Iraq for his alleged links with ISIS, but who the Justice Department did not bring charges against due to a lack of evidence. To that end, it will be important for states to resist the impulse to inseparably link criminal prosecution with the issue of who gets to return home. Doing so might in many cases bring this conversation to an unfortunate halt.

While a growing number of Security Council resolutions and regional rules, such as the EU Directive on combatting terrorism, demand from states that they criminalize a wide array of terrorism-related acts, this has led to several negative consequences. This top-down approach is, as UN human rights and counterterrorism expert Fionnuala Ní Aoláin puts it, “deeply intrusive upon national sovereignty” and dissuades states from seeking potentially more appropriate non-punitive ways to deal with the issue of people returning home.

Another consequence of such resolutions and regional rules is that they risk encouraging states to blindly, and eagerly, turn to their criminal justice system to solve a problem that it may not be fit to address. In doing so, states have expanded the scope of what constitutes a terrorist-related act with the aim of allowing them to prosecute people they are convinced did something criminally wrong, but for whom they don’t have enough evidence against. A clear example: Australia’s “declared areas offense” that criminalizes, with only very limited exceptions, the act of going to an ISIS-controlled territory without needing specific proof of any wrongdoing. In other instances, states are using administrative procedures, which have lower evidentiary standards and often shift the burden of proof on its head, to perform an end-run around the criminal justice system altogether.

To hem in these negative consequences, it is important for prosecutors to use their prosecutorial discretion when they identify instances when their domestic anti-terrorism laws (along with measures like placing someone in a high-security penal institution) may not be the best tool to use against certain individuals such as persons suffering from mental disabilities, those forced to take part in non-violent ISIS activities, or those coerced into traveling to ISIS-controlled territories who may have had no role in criminal activity. Government leaders and policymakers should publicly support such measured decisions.

Unfortunately, feverish public and political pressure favors prosecutions as ends in themselves, regardless of an individual’s circumstances. This can push law enforcement away from using their discretionary powers. It can also stifle attempts by policymakers and lawmakers to look for and support alternative policy solutions. This pressure is likely only to increase in states that decide to take people back from the SDF or Kurdish authorities. We can also reasonably expect more misdirected calls for “fixing” criminal justice systems when evidence is scant. While accountability is paramount for the serious crimes that ISIS members have perpetrated, history shows that we also need to resist and discourage these particular tendencies.

 

*It is interesting, and somewhat surprising, that an America military official, and not an SDF official, was the one who denied that New York Times’ request. Such power of denial indicates some level of U.S. control or authority at the detention site that appears at odds with a quote from Lt. Gen. Paul E. Funk II, the leader of coalition forces fighting in Iraq and Syria, who said: “Our job is not detaining people — we’re not doing it.”

  

About the Author(s)

Jonathan Horowitz

Legal Officer - National Security and Counterterrorism Program at the Open Society Justice Initiative Follow him on Twitter (@J_T_Horowitz).