It is increasingly likely that two ISIS fighters, involved in the killing of several Americans, will be brought to trial in a courtroom in Virginia. The development comes as Attorney General William Barr sent a letter to the United Kingdom home secretary assuring her that the United States would not seek or enforce the death penalty in their case. Even though this only concerns two of the 10,000 former ISIS fighters still being held in prisons in northeast Syria, how the U.S. deals with this case has significant implications for broader justice and accountability for ISIS crimes.
The so-called ISIS “Beatles” were four British nationals responsible for the detention of foreign ISIS captives, including American journalists James Foley and Steven Sotloff and American aid workers Peter Kassig and Kayla Mueller. One of the Beatles, Mohammed Emwazi (aka Jihadi John), appeared on video beheading numerous victims. He’s believed to have been killed in a U.S. drone strike in 2016. A second Beatle, Aine Davis, is serving a 7 ½-year prison sentence in Turkey. Reports are conflicting as to whether a fifth man arrested in Spain in April, British-Egyptian rapper Abdel Majed Abdel Bary, was another “Beatles” member. Abdel Bary’s father was convicted in the 1998 twin bombings of US embassies in Kenya and Tanzania.
The two remaining Beatles, El Shafee Elsheikh and Alexanda Kotey, were arrested by the Syrian Democratic Forces (SDF), a partner of the U.S., and held in SDF detention facilities that receive U.S. support. In October 2019, President Donald Trump’s ordered withdrawal of U.S. forces from Syria created a crisis, with over 100 ISIS fighters escaping and fears that thousands more would follow. In the chaos, the U.S. tried and failed to transfer five dozen high-value ISIS detainees out of the country. It did, however, succeed in transferring Elsheikh and Kotey to Iraq which Trump announced by tweet. The U.K. stripped the two men of citizenship, but the government retains a crucial role in whether the men will be brought to trial in the U.S. or instead be handed over to Iraqi authorities for prosecution, and likely, execution.
Transfer to the U.S.
The U.S. has long urged that ISIS foreign fighters, estimated to be 2,000 of the 10,000 detainees in SDF custody, be repatriated to their home countries in Europe and the Middle East. Human rights advocates agree. Fionnuala Ní Aoláin, the special rapporteur on counter-terrorism and human rights, has urged repatriation and said that trials adhering to due process standards, are “the only effective and legally sound means available to ensure that the obligations set out in prior Security Council resolutions are realized.” This places a higher burden on European states, as far fewer U.S. citizens traveled to Syria to join ISIS. Still, if the U.S. follows through on a civilian trial of Elsheikh and Kotey consistent with due process, it would be adhering to its own rhetoric and serve to encourage other States to follow suit.
That said obstacles remain to the transfer of Elsheikh and Kotey. Elsheikh’s mother filed suit in the U.K., arguing the sharing of evidence between the U.K. and the U.S. pursuant to mutual legal assistance was unlawful. Early this year, the U.K. Supreme Court agreed, holding that the U.K. Foreign Office was required by the Data Protection Act of 2018 to seek assurances that the death penalty would not be exercised by the U.S. if the information was shared. This does not prevent the physical transfer of the accused, because both men are already in U.S. military custody, but it would prevent the use of certain (invaluable) evidence. Attorney General Sessions told his U.K. contemporary that “he could not see how the U.S. could do that [a civilian trial] without the U.K. evidence.” Although many witness statements were already shared by the U.K. (see Judgement at para. 61), the ruling prevents any further assistance (such as continued access to witnesses or additional evidence). In addition, a U.S. court could exclude evidence (such as the statements) that the U.K. Supreme Court deemed was illegally transferred by reference to the principle of judicial comity.
Faced with these unattractive possibilities, and calls from the victim’s families for the men to be tried in the U.S. Attorney General Barr has assured U.K. authorities that the U.S. will not seek the death penalty in the case. Barr’s letter also came with a warning: If the U.K. fails to send the evidence requested by October 15, the accused will be transferred to Iraqi custody. Iraqi trials have been criticized by human rights groups for a lack of due process, amounting in some cases to summary executions without any due process protections. It is, therefore, unlikely that Elsheikh and Kotey would receive a fair trial in Iraq, depriving victims’ families of the opportunity to get a full reckoning of their crimes.
The U.S. Justice Department’s ability to mount a successful prosecution will not only depend upon the sharing of evidence by the U.K., but will also hinge upon the admissibility of evidence obtained during their detention. In an interview conducted by the Washington Post, Elsheikh made allusion to the fact that he may have been mistreated in detention, noting that he had subjected those in ISIS jails to some mistreatment but, “Nothing different to what people experience – I am going to be blunt here and probably just deal with it later – […] from U.S. allies.”
Statements made by Elsheikh and Kotey could become important evidence in their trial. During the same interviews, both men disclosed significant details about their own conduct, including knowledge of torture, the fact of James Foley’s death, conversations with Kayla Mueller, and participation in the ransoming of hostages. In addition, both men were likely interrogated by the SDF, U.S. military, intelligence operatives, as well as criminal investigators. But only statements made in accordance with the Fifth Amendment to the U.S. Constitution will be admissible in a U.S. court. This means that statements taken under duress, pursuant to mistreatment or without proper warnings pursuant to Miranda would be inadmissible.
National security concerns may also prevent certain information from being disclosed and/or introduced against the accused at trial. The Classified Information Procedures Act (18a USC § 1 et seq.) governs the disclosure of classified information to defendants in a criminal trial. In some cases, it may require that a defense attorney obtain a security clearance to receive evidentiary disclosure or deprive a defendant of access to evidence against them. As such, it may create tension with the Accused’s Sixth Amendment right of confrontation as well as the right to a public trial. This could lead to the exclusion of evidence, thereby weakening the prosecutor’s case. As the Justice Department and U.S. Attorneys assess the strength of the case, they will need to consider a number of additional issues.
Based on publicly available information, Elsheikh and Kotey could be charged with a number of criminal violations, including War crimes (18 U.S.C. § 2441), Hostage taking (18 U.S.C. § 1203), Murder (18 U.S.C. § 2332), Trafficking (18 U.S.C. § 1595); Torture (18 U.S.C. § 2340A); conspiracy under RICO (18.U.S.C. § 1962(d)), or terrorism-related offenses, such as Material Support for Terrorism (18 U.S.C. § 2339A, 18 U.S.C. § 2339B, 18 U.S.C. § 2339C); or Receiving military training for Terrorism (18 U.S.C. § 2339D).
War crimes v. Terrorism charges
Prosecutors will have to decide whether to inaugurate the U.S. War Crimes Act or instead rely on terrorism-related charges. The Genocide Network is a European group of State representatives responsible for the prosecution of atrocity crimes to which the U.S. has observer status. At their last meeting in November 2019, the Genocide Network concluded that
States mainly approach the issue of foreign fighters from a counter-terrorism perspective. However, to ensure criminal responsibility of perpetrators and to deliver justice to victims, investigation and prosecution of all crimes committed by foreign fighters, members of ISIS and other terrorist groups during the armed conflict in Iraq and Syria are essential. Suspects charged with terrorism are often also involved in other criminal offences, such as slavery, rape, torture and murder as core international crimes. Interaction between different sets of law is therefore required on national level to lead to a more effective charging of suspects.
As previously noted by Beth Van Schaack (here, here, and here), the case against Elsheikh and Kotey provides a good opportunity to bring the War Crimes Act into use. This would more comprehensively encompass the wrongdoing of the accused and bolster the available sentences.
The alternative would be to bring only terrorism-related charges, which might be easier to prove but are imprecise and do not fully encompass the conduct alleged to be perpetrated by the ISIS Beatles.
U.S. v. Other victims
The four men who made up the “Beatles” were specifically responsible for the detention and ransoming of foreign detainees. Kotey acknowledges his role in the ransoming of at least four French detainees, three Spanish, one British national and one Dane, as well as several Americans – although the U.K. judgement references 27 beheadings attributable to the accused. The above-noted criminal statutes grant jurisdiction for extra-territorial crimes in limited circumstances, either where the perpetrator or victim is a U.S. national, or where the perpetrator is present in the U.S. It is not clear that Elsheikh and Kotey may be charged with the deaths of victims who are not U.S. citizens, which would leave these victims’ families without redress for their losses. Even if not charged, however, it might be possible for U.S. prosecutors to introduce evidence relevant to other murders pursuant to FRE 404(b) to show the modus operandi of the accused. Although no convictions could enter, it would at least air these grievances in court and help to support a conviction for other crimes.
In his interview with the Washington Post, Kotey asserted that he had no choice but to follow the orders of his commander in ISIS, as he would have been beheaded if he did not comply. This defense of duress is commonly raised in trials for international crimes. It was asserted by an ISIS mechanic in Canada, and may be an issue in a trial in Germany of two former Syrian government officials. But, it is more likely to be a mitigating factor in sentencing than to negate criminal responsibility.
Mohammed Emwazi (aka Jihadi John), who was recorded on video beheading Foley, was later killed by a U.S. drone, which may contravene domestic and international law. Elsheihk and Kotey could point to Emwazi’s killing as a way to distract from the charges against them. This type of tu quoque defense seeks to delegitimize the prosecution by showing the hypocrisy of the power that has brought the defendant to trial. It could serve to embarrass the U.S. during the trial, but would not be relevant to the criminal responsibility of Elsheihk and Kotey.
The U.S. is doing the right thing by seeking to try Elsheikh and Kotey in a U.S. district court. It fulfills the promise of due process and gives the victims’ families the opportunity for justice and closure. Other states should be encouraged to repatriate their own nationals who left to join ISIS, as well as foreign fighters who have committed crimes against their citizens.
But this will not resolve the imminent national security and human rights problem festering in SDF jails in northeast Syria. Of the estimated 10,000 to 11,000 ISIS fighters in these underfunded, under-resourced jails, only 2,000 are foreign fighters. The international community still has not identified a solution as to how to deal with the 8,000+ Syrian and Iraqi fighters who were members of ISIS. No international tribunal would be equipped to deal with this number of detainees. Plus, executions of former ISIS fighters after inadequate trials in Iraq will only serve as a recruiting tool for ISIS.
Meanwhile, the SDF is preparing to try thousands of fighters in Syria and is seeking international assistance. Although the SDF is not equipped with trained judges and lawyers, no one has stepped forward to provide assistance. There is a real danger that such trials will not comply with due process and repeat the errors of the Iraqi trials or worse. Furthermore, there are an estimated 70,000 women and children of ISIS fighters living in the al-Hol camp, many of whom now disavow ISIS and others who may have criminal responsibility. A durable solution must start with the repatriation of foreign fighters in SDF jails, as well as the foreign women and children in al-Hol. If the international community fails to take responsibility for foreign fighters, a resurgence of ISIS will be in the making.
Syrian and Iraqi victims of ISIS deserve more. While it is encouraging to see U.S. officials heeding the calls of victims’ families, such as Diane Foley, for fair trials in civilian courts as opposed to at Guantanamo Bay, this highlights the need for victims’ voices to be amplified in other efforts to bring ISIS fighters to justice, including in Syria and Iraq. Thousands of Syrians do not know the fate of their loved ones. Trials of ISIS fighters are a significant opportunity to bring the truth to light. As U.S. prosecutors contemplate the case against Elsheikh and Kotey, they should ask former ISIS fighters where the dead are buried to allow families to put them to rest. They should also utilize all of the statutes at their disposal, including the War Crimes Act, to ensure there is comprehensive justice for ISIS’s victims.