The Syrian Civil War represents one of the most complex battlespaces in the history of modern warfare. Since the war began in 2013, the Syrian landscape has been pocked with regular Syrian forces, Russian military advisors, American special operations forces, rebel groups opposed to Bashar al-Assad, non-state groups in support of al-Assad, Islamist militias, Syrian Kurdish militias, terrorist organizations, and opportunist criminal enterprises. At one point, media reported an estimated 1,000 armed opposition groups, and most have divergent agendas.
Notwithstanding the killing this weekend of ISIS leader Abu Bakr al-Baghdadi in a U.S. military operation, those complexities are compounded by the increasing urgency of finding solutions to ensure accountability for individuals who might be responsible for war crimes and other atrocities and who have been detained by the Kurdish-led Syrian Democratic Forces. The recent focus on the untenable humanitarian and operational situation at the al-Hawl (Al Hol) refugee facility, along with the Turkish invasion into northern Syria, has brought those questions to the fore.
As with other armed conflicts, finding competent jurisdictions with the requisite resources to resolve atrocity crimes, particularly those committed by ISIS in Syria, is difficult. An examination of available jurisdictions and the feasibility of using each of them reveals what is clearly the best option to ensure accountability.
Jurisdiction represents the official power to make legal decisions and judgments, usually from a system of law courts. Building criminal cases against war criminals during or shortly after armed conflict is difficult to begin with, as criminal intelligence and law enforcement activities historically take a back seat to operational intelligence and military operations. Northeastern Syria represents even greater challenges due to the number of nationalities represented in the population of detained foreign fighters, lack of an effective international criminal accountability mechanism, disparate enforcement of extraterritorial jurisdiction laws of third countries, lack of effective documentation methods, a just-barely functioning court system in the self-administered region of Rojava in northeastern Syria that is running at maximum capacity, and a Syrian court system that knows no due process. All of that is exacerbated by the reticence of third countries such as the United Kingdom and France to repatriate their citizens so that they can be held accountable with better judicial resources and stronger guarantees of due process.
Often, initial information during armed conflict about potential violations of international atrocities law — covering war crimes, genocide, and crimes against humanity — comes from observations and documentation from media and human rights organizations. Such information is rarely evidence quality and is stored away with the hope that one day, far into the future, some competent tribunal will take on a criminal case.
This practice fails to recognize that there are sometimes criminal jurisdictions immediately available to prosecute these crimes, or related crimes, under the domestic laws of those states where the violations occurred, or those states whose citizens have participated in the commission of crimes.
Criminal jurisdiction requires official legal authority over a person due to his or her nationality, or jurisdiction over an offense committed within the sovereign territory by a person of any nationality. There is also universal jurisdiction, allowing states to prosecute certain international crimes regardless of where they have been committed or by whom. However, some states have chosen not to exercise universal jurisdiction. For example, the United Kingdom has chosen not to repatriate British nationals Alexanda Kotey and El Shafee Elsheikh, two of the so-called “Beatles”, and instead chose to strip them of their citizenship.
In northeastern Syria, there are multiple potential criminal jurisdictions available right now that could remove detained belligerents from seemingly indefinite pre-trial or security detention in sub-standard facilities, and subject them instead to due process where governments can achieve final accountability. However, prosecution in some of these jurisdictions is more feasible than others.
The government of Syria has primary jurisdiction over offenses committed by ISIS for two reasons. First, the criminal activity committed by members of ISIS occurred on Syrian soil in violation of Syrian domestic law. Syria is a civil law system that has functioning criminal courts and well-educated lawyers. On paper, Syrian criminal law appears very similar to other civil law systems.
That said, despite having a written criminal code, Syrian criminal justice is not known for its guarantees of due process, but rather its pre-trial torture and post-trial mass executions after trials lasting several minutes. The disparity comes from non-legal forces that have authority greater than the law itself, namely a corrupt dictator with absolute power who is above his own laws.
Despite being an available jurisdiction, justice in the Syrian system, without due process and the protection of the rights of an accused, is not the type of accountability that would be palatable to the international community.
The Rojava Option
When stability in Syria first dissolved in 2012, the inhabitants of northeastern Syria attempted a level of democratic self-governance without the acquiescence of the Syrian government. The Autonomous Administration of North and East Syria (NES), or Rojava as it is known in Syria, has been the de facto government in that region since 2012. Rojava has a constitution and a legal system that notably features a ban on the death penalty, female judges, a ban on extradition to death penalty countries like Iraq, and creative restorative justice. The courts have already tried thousands of Syrian ISIS suspects.
On the surface, this progressive-leaning system should be ripe for international support. Although it is successfully convicting thousands of ISIS members, it remains rudimentary in a number of respects. For example, it lacks forensic, fingerprinting, and DNA capability. This means defendants are convicted for violations of terrorism laws that are easy to prove (laws against the state) instead of more substantive crimes like rape, murder, and slavery (laws against people) that require more evidence than just membership in a terrorist organization. Further, trial and conviction for international crimes that capture the full extent of ISIS brutality, like war crimes and genocide, are impractical within that system.
Unfortunately, several practical hurdles also stand in the way of international support of the nascent Rojavian justice system. Rojavian jurists are accused by the government of Syria of setting up and creating an illegal judiciary. Judges and staff face arrest warrants from Syria, lack passports, and are frequently subjected to death threats. Additionally, international engagement with the Rojavian courts is difficult since Rojava is not recognized as independent by any state and can only conduct limited foreign relations as a result. This makes governmental programming very difficult, if not impossible.
Rojavian authorities have asked the international community to set up an international war crimes tribunal based in Rojava, but there are significant obstacles to such a concept. First, the recent invasion of Syria by Turkish forces threatens to de-stabilize the region even further, raising the question to what extent the Rojavian government will be able to maintain any effective control over the area. Second, the creation of an international court in Rojava, against the wishes of the government of Syria, would violate Syrian sovereignty and would likely require the approval of the United Nations Security Council. Russia, China, and very likely even the United States would not approve such a measure. Finally, many states maintain a concern about the connection between Rojavian authorities and the Kurdistan Workers’ Party (PKK) in Turkey that the United States and others consider to be a terrorist organization.
The International Criminal Court, often lauded by human rights activists and victims of atrocities as the tribunal of choice, lacks jurisdiction to try ISIS members in Syria for the simple fact that Syria is not a party to the Rome Statute (nor were its crimes at issue here committed within a jurisdiction that is a party). This has not precluded other initiatives for international tribunals. Sweden has long supported the idea of an international tribunal to try ISIS members to fill the capability and jurisdiction challenges in Syria and Iraq.
An international tribunal has several advantages. First, such a tribunal can usually try criminal defendants for crimes under customary international law, like war crimes, capturing the full extent of a defendant’s criminality. Second, international tribunals ordinarily recruit some of the world’s best jurists. Third, international tribunals are neutral compared with those of an interested nation-state.
Of course, there are practical issues hindering the effectiveness of all international tribunals. The first, and most chronic problem, is that their creation tends to move at a glacial pace, often resulting in stale accounts of facts and evidence tainted by time and battlefield mishandling. Second, the primary witnesses to atrocity crimes are often displaced persons who have no known address and are difficult to find when their testimony is needed at later dates. Third, because of a lack of capacity, international tribunals usually only focus on the most senior defendants, leaving more junior actors to be subjected to some other form of justice, or escape it entirely. Although senior members of terrorist organizations may be most responsible, often some of the more junior members carried out the most monstrous criminal acts.
Iraq’s Terrorism Courts
The terrorism courts of Iraq are certainly available to try ISIS members for crimes against Iraq. In the past, the Iraqi courts have focused on defendants captured in Iraq, or Iraqi citizens captured in Syria, like the case of ISIS member Umm Sayyaf. Sayyaf was the wife of senior ISIS member Abu Sayyaf. She was captured by American special operations forces in 2015. As an Iraqi citizen, she was handed over to Iraq by the United States. Interestingly, she was tried in Erbil, the capitol of the semi-autonomous Iraqi Kurdistan Region, which has a de facto moratorium on the death penalty. Sayyaf was convicted of being a member of ISIS and sentenced to death by the Iraqi Kurdish terrorism court, although there is little chance of the sentence actually being carried out at this time.
Sayyaf has also been indicted by the U.S. Department of Justice under American laws. The United States has an extraterritorial jurisdiction statute that allows the prosecution of non-U.S. citizens for acts of terrorism that result in the death of an American citizen, in this case American aid worker Kayla Mueller.
Iraq has tried non-Iraqi members of ISIS captured in Syria, like the French ISIS member Mustapha Merzoughi, under Iraqi laws since ISIS is a transnational threat to the security of Iraq. Merzoughi is being tried in Iraqi courts because France refused to take him back. Whether Iraq will continue this practice or it is an aberration remains to be seen, considering the Iraqi Foreign Minister’s statement this month that it is Iraqi policy to bring only Iraqi members of ISIS back to the country for trial.
Competent jurisdiction aside, the Iraqi criminal justice system is not well-respected by the international community: the trials are notoriously short, with little opportunity to confront accusers and cross-examine witnesses, and sentences are severe, often resulting in the death penalty. The exception is the Iraqi Kurdistan Region, which has a de facto moratorium on the death penalty.
Repatriation Remains the Best Option – and a Long Shot
At least for third-country-national members of ISIS, the greatest chance of criminal accountability is for those states to repatriate their citizens and subject them to the judicial process at home. Most states have extraterritorial jurisdiction laws that allow them to have jurisdiction over serious crimes committed by their citizens worldwide. The United States has urged, with varying success, that other countries, especially in Europe, take their thousands of detained citizens back.
Many European states have refused to take their fighters back, citing an inability to prove cases against suspects and a lack of resources to place returning jihadists under constant surveillance. The United States has warned that a failure to repatriate these individuals could result in them simply going free.
Regardless of which countries try which members of ISIS, the international community needs to begin taking more decisive action if it is serious about bringing members of ISIS to justice. Without effective prosecutions, there is a danger of ISIS members going free.
Or worse, ISIS members with no prospect of criminal trial may be subjected to a more “political” disposition in Syria: extrajudicial killing. Using a tactic against ISIS that the group has used so brutally against its victims risks compounding the injustices of these conflicts and extending the cycles of violence.