Shifted Burdens: The U.S. as Detainer of Last Resort

A transatlantic rift over the fate of approximately 800 ISIS foreign fighters in Syrian Democratic Forces (SDF) custody has spilled on to front pages in recent weeks. Following President Donald Trump’s suggestion that these captured fighters might be transferred to U.S. custody and detained at Guantanamo Bay (GTMO) – a suggestion rightly greeted skeptically by the U.S. State and Defense departments – the president reversed course. Instead, he challenged European countries to accept responsibility for their nationals in SDF custody lest they be set free in the wake of U.S. forces’ expected withdrawal from Syria. Unfortunately, and unsurprisingly, President Trump’s challenge has been met coolly by European countries like France, Germany, and the United Kingdom. While European countries prevaricate over the future of their nationals in SDF custody, President Trump continues to suggest that some of them may end up in U.S. custody at GTMO.

But the United States should not accommodate recalcitrant partner countries’ desire to burden shift. In light of the United States’ experience detaining foreign fighters since September 11, 2001 it is clear that the United States should not become the detainer of last resort by accepting custody of foreign fighters in SDF custody.

European countries’ disinterest in repatriating nationals who traveled to Syria to join ISIS is understandable. Once removed from the armed conflict context, they may still represent a security threat that could evade domestic law-enforcement frameworks either because their conduct prior to capture may not be criminal under their home nation’s laws or because their governments lack usable evidence of their criminality. Moreover, their governments may feel ill-equipped to address any residual threat they may pose outside of the criminal law system. But, by refusing to take responsibility for their nationals, European countries appear to have adopted a policy of shifting security burdens to the international community. That approach is reminiscent of the apparent policy of some North African countries that, in the early days of the Syrian civil war by failing to stem the flow of their nationals to Syria, seemed to prefer to export domestic security threats, possibly in the hope that those threats would be neutralized through battlefield activities.

That such a policy choice is being made by the home states of detained foreign fighters shines a light on the failure of the international community to develop a comprehensive legal regime that adequately addresses the security concerns of detaining powers in non-international armed conflicts (NIACs) when they seek to repatriate captured foreign fighters. Under international humanitarian law (IHL), detaining powers have an obligation to release detained fighters following the cessation of active hostilities, but uncertainty remains as to whether those fighters’ home states are under an obligation to repatriate their nationals under IHL or international human rights law (IHRL). Complicating matters further, states have a separate legal obligation to uphold the principle of non-refoulement – that is, the requirement not to repatriate detained individuals to states where they are likely to face torture, or other forms of cruel, inhuman, or degrading treatment.

As a result, before the cessation of active hostilities, the international security burden posed by foreign fighters may be shifted, forcing the detaining power into the unenviable position of choosing between continuing to detain a foreign fighter, releasing the detained foreign fighter without repatriating them, or repatriating them in the absence of satisfactory security guarantees. Following the cessation of active hostilities, the international security burden posed by foreign fighters may be shifted by forcing the detaining power to undertake significant diplomatic efforts to find another suitable disposition, such as resettlement (which would be required in cases where there is a credible fear of torture or cruel treatment in the detainee’s home country) or, where possible, prosecution in a third country.

Even when detained foreign fighters’ home countries are willing to take back their nationals, there remain a large set of questions for the detaining power and the home country to address prior to a repatriation. Based on the United States’ experience since September 11, 2001, the questions attending foreign fighter repatriation include:

  • When and how will the detainee be repatriated? On a practical level, what travel or identity documents may be needed, or what flight approvals obtained to effectuate a repatriation?
  • What security measures will the repatriating government impose, if any, to ensure the repatriated detainee does not threaten the detaining power in the future? Must any security measures be imposed by the repatriating government to satisfy the detaining government’s domestic regulations, and would those measures be compatible with the receiving government’s own domestic or international legal obligations? What security measures does the detaining power merely desire?
  • What provision will the repatriating government make for the health and well-being of the repatriated detainee?
  • Will the repatriating government provide for the detainee’s rehabilitation?
  • What if any maintenance support will the detaining power make to the repatriated detainee or his home government if it is unable to provide resources for reintegration?
  • What, if any, information about or access to the repatriated detainee will the repatriating government provide to the detaining power following transfer?
  • What if any ongoing access to the repatriated detainee will the International Committee of the Red Cross enjoy?
  • Will the repatriating government prosecute the repatriated detainee, and will the detaining power assist the home government in locating admissible evidence as may be needed in a criminal prosecution?
  • What measures, including diplomatic assurances, will the repatriating government put in place to ensure that the repatriated detainee will not suffer torture or cruel, inhuman, or degrading treatment following transfer?

These questions must be addressed anew not only for each nationality represented among the detainee population but, often, each time a detainee transferred. Notably, most of the foregoing questions tend not to arise in the context of international armed conflicts for a variety of reasons, including the existing regulation of parole, prisoner exchanges, and the fact that individuals who are citizens of states not party to the hostilities (i.e., foreign fighters) are much less likely to be involved let alone detained.

Moreover, in recent practice, detained foreign fighter repatriation in NIACs has been subject to the political whims of at least two separate polities — the detaining power’s and the repatriating government’s. The disparate effects of U.S. domestic politics on foreign fighter detention is most acutely visible in the scrutiny applied to GTMO detainee transfers before and after January 2009, as well as in contrasting post-January 2009 transfers with contemporaneous repatriation of individuals detained at the Parwan Detention Facility at Bagram in Afghanistan. Whereas President George W. Bush enjoyed bipartisan support for his transfer of 532 detainees from GTMO, that support evaporated during President Barack Obama’s administration despite the dramatic reduction in the so-called rate of reengagement of foreign fighters transferred during his time in office.

After 2009, Congress also intervened to restrict GTMO detainee transfers and required the intelligence community to publicly report on reengagement of released GTMO detainees. In addition, each post-2009 transfer was subject to numerous news reports. As such, GTMO detainee transfers frequently generated requests for Congressional briefings. In contrast, repatriations from Parwan in Afghanistan passed generally without remark and with little legislative interference.

These were not merely theoretical differences. Instead, even as the detainee population at GTMO became increasingly dominated by Yemeni nationals, many of whom were approved for transfer, no Yemeni nationals were repatriated from GTMO to Yemen after 2010. Notwithstanding the effective bar on repatriation of Yemeni nationals from GTMO, two Yemeni nationals who were detained by U.S. forces in Bagram were transferred to Yemen in August 2014. Thus, similarly situated foreign fighters in U.S. custody were subject to different policy frameworks and different political calculations resulting entirely from the location of their detention. These differences would be less likely to arise if detention and disposition of foreign fighters in non-international armed conflicts were subject to more comprehensive international regulation.

To make matters more difficult, such transfers are often subject to sui generis negotiations: each time the United States negotiated with a new foreign partner — and, often, each time it negotiated over a particular repatriation or repatriations with a partner country that already repatriated its nationals — the United States was forced to confront the foregoing questions and political whims of its domestic stakeholders anew.

Unfortunately, over the last 17 years, the United States has garnered substantial experience with the challenges associated with repatriating foreign fighters detained in the course of a NIAC.  Most of the fighters the United States captured in Afghanistan (or elsewhere) and transferred to GTMO were foreign fighters, they were neither U.S. nationals nor nationals of the states in which they were captured. Likewise, the United States captured and detained numerous non-Afghan foreign fighters at facilities in Afghanistan. In both contexts, the United States faced significant costs and difficulty when it sought to transfer individuals out of U.S. custody. The United States even established an office in the Department of State and appointed a Special Envoy specifically to negotiate detainee transfers from GTMO.

This considerable experience, however, does not translate into an ability to make the significant practical and political problems associated with the capture of foreign fighters go away, as evidenced by the fact that GTMO remains open with 40 men still detained there.

Whether the foreign fighters in SDF custody are repatriated to their European homes, the United States should refuse to accommodate those countries’ desire to burden shift. Otherwise, the United States is simply buying trouble, becoming the detainer of last resort.

The views expressed do not reflect the views of the Department of Defense, the United States Government, or any agency or instrumentality thereof.

Image: Nawaf, a 22-year-old Bahraini suspected of ISIS collaboration and detained by the Kurdish People’s Protection Units (YPG) after being caught by U.S.-backed Kurdish and Arab fighters, gives an interview at a house near a police station in Rumaylan in Syria’s northeastern Hasakeh province on February 13, 2018. (Photo by DELIL SOULEIMAN/AFP/Getty Images)

 

About the Author(s)

Benjamin R. Farley

Trial Attorney and Law-of-War Counsel at the U.S. Department of Defense, Military Commissions Defense Organization, previously Senior Adviser to the Special Envoy for Guantanamo Closure at the U.S. Department of State from 2013 – 2017 Follow him on Twitter (@br_farley).