The fall of the self-styled Islamic State (ISIS) has raised the vexed question of how to deal with individuals (residents or nationals) of States who travelled abroad to fight with ISIS, many of whom are now imprisoned where they once fought. While the fight against ISIS was fought collectively in the name of the international community, the onerous obligation of dealing with foreign fighters rests on individual States alone. The unwillingness of States to take an official position on the question of the returnees reflects the anxiety prevailing within governments about their citizens who travelled to fight – yet continued government inaction risks exacerbating the situation, leading to worsening human rights violations and even greater national security risks.

Despite its peculiar geopolitical and insurgency history, security vulnerability, and targeted propaganda from ISIS, India did not see a strong wave of radicalization associated with the rise of ISIS in 2013-2017. According to the Ministry of Home Affairs (MHA), as of 2019, 155 Indian citizens who joined or sympathized with ISIS and its global fight have been arrested by the National Investigative Agency (NIA), significantly fewer than from Europe and Africa, especially taking into account India’s large population. However, much like many Western States, India now stands at the crossroads of deciding its future course of action with regard to those of its citizens who did travel to fight.

A recent news report by The Hindu chronicles a paradigmatic case. The report informs us of four Indian women detained in Kabul’s Pul-e-Charkhi prison along with their young children since December 2019. These women travelled to Nangarhar in 2016 with their husbands to join the Islamic State-Khorasan Province (ISKP). They belonged to the group of 21 individuals who left India for Afghanistan in 2016 to join ISKP. The unofficial response of India so far suggests that the government is not open to repatriating these citizens on the account of their alleged continued radicalization and the potential threat to its security and sovereignty.

States have undertaken various measures in response to the growing reality of foreign fighters, such as travel bans, revocation of nationality, detention, and criminal prosecutions. The validity of such actions within national and international law remains unclear and continues to be challenged before national and supranational courts. But India, so far, has not crystalized its position on foreign fighters.

India’s Legal Framework

Foreign-terrorist fighters (FTFs) are nationals of one State who travel abroad to fight alongside a non‑State armed group in the territory of another State. U.N. Security Council Resolution 2178 defines FTFs as “individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict.” If such an individual is accompanied by their family members (e.g., their partner or children), then they are brought within the umbrella of “foreign fighters and their families.”

In general, States’ hesitancy to repatriate stems from the lack of an adequate legal framework to prosecute FTFs, the difficulty in collecting evidence and proving guilt beyond reasonable doubt, and the potential spiraling effect of extremism within society upon the release or acquittal of accused FTFs. Some States also lack the legal architecture to effectuate a transfer of their citizens when they are held by non-State groups, as is the case for many detained ISIS fighters, because there are no applicable extradition treaties.

Unlike the thousands of alleged ISIS foreign fighters and their families held by non-state armed groups, namely the Syrian Democratic Forces (SDF), the alleged Indian FTFs and their families are within the authority of the Afghan government. Thus, the recently concluded bilateral extradition treaty between Indian and Afghanistan could be put to use to extradite detainees to India. The Security Council resolution on FTFs, which is binding on all States under Chapter VII of the United Nations Charter, affirms the principle of aut dedere aut judicarei.e., either extradite or prosecute. Per Article 10 of the extradition treaty, to effectuate extradition, the Indian government must make a formal request for extradition to the Afghan government, after which India can elect to prosecute the FTFs and their spouses domestically if needed. As Afghan authorities have already expressed interest in sending detained Indian foreign fighters back to their home country, the ball remains in India’s court. Alternatively, India could request that Afghanistan prosecute Indian nationals in Afghan municipal courts.

Building on the mutual duty upon India and Afghanistan to assist under Article 19 of the extradition treaty, the success of prosecuting the FTFs depends on the ‘battlefield evidence’ provided by Afghan authorities as well as the intelligence and the evidence gathered by Indian agencies in their investigation. In addition to the extradition treaty, the SAARC Convention on Mutual Assistance in Criminal Matters allows both governments to cooperate and assist each other in investigation and prosecution.

India has not passed any law concerning the status, criminalization, or prosecution of foreign fighters as such. The treatment of FTFs therefore falls within the existing counterterrorism legal framework. The Unlawful Activities (Prevention) Act of 1967 (UAPA) gave effect to dozens of Security Council Chapter VII Resolutions on terrorism and criminalizes membership, financing, recruitment, and harboring of terrorists/terror organizations. Section 16 of the Act, which defines a “terrorist act,” includes within its ambit acts committed by Indians abroad that “strike terror” in any foreign country. Similarly, the Indian Penal Code (IPC) applies extraterritorially and allows investigations to be conducted outside India for crimes committed by Indians abroad. However, any such prosecution of FTFs under the UAPA requires a prior approval by the Central Government – under the Code, no Court can take cognizance of the mentioned offences under the UAPA without seeking permission of the government based on an independent review of the evidence collected during the investigation.

India has banned ISIS and all its manifestations, including ISKP, under the UAPA and has initiated prosecutions against a few Indians accused of being FTFs who attempted to return to India. One case being tried by the special NIA court is that of Areeb Majeed, who was arrested in 2014 on his return to India from Syria and Iraq. He is accused of joining ISIS by traveling to Syria and Iraq, committing terrorist acts therein, and returning to India with the intent to conduct attacks in the future. He was charged under Section 125 (Waging war against any Asiatic Power in alliance with the Government of India) of the IPC and Sections 16 (Punishment for the terrorist act), 18 (Punishment for conspiracy), and 20 (Punishment for being a member of terrorist gang or organization) of the UAPA. In 2019, the NIA court granted Majeed pretrial bail, affirming the right to a speedy and fair trial on account of his continued detention for six years and the slow pace of the prosecution case. In February 2021, the order was upheld by the Bombay High Court.

The Citizenship Question

The difficulty of collecting and analyzing evidence, as well as the challenges of pursuing appropriate charges, generates one set of hurdles to repatriate Indians detained in Afghanistan. Another obstacle – which impacts not only suspected FTFs but their families too – is the loss of identity documents such as passports. It seems that at least one child was born in Afghanistan in ISIS-held territory of Indian parentage, thus entitling the child to Indian citizenship by descent, but because the child was born under ISIS control, they are without any identity or travel documents.

In other cases, FTFs with Indian citizenship may have lost or destroyed their passports or had them invalidated by Indian authorities. Under the Indian Passports Act, 1967, the passport authorities can revoke and impound a passport if “in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public.” However, mere non-documentation does not affect or change citizenship status.

Issues related to documentation present a particular challenge for India. While many countries like the United Kingdom and the Netherlands have stripped FTFs of their nationalities, these moves have not rendered the FTFs stateless because in these instances, the FTF possessed dual citizenship. However, it is not the case in India. The Constitution of India only recognizes single citizenship – if an Indian citizen voluntarily acquires foreign citizenship, then their Indian citizenship is automatically terminated. As a result, any attempt by the Indian state to revoke FTFs’ citizenship would render the individual stateless, a move that might contravene international norms on the prevention of statelessness (though India is not a party to the 1961 Convention on the Reduction of Statelessness). In addition, domestic law restricts the revocation of citizenship to only those who have acquired nationality through naturalization or registration, and only when the government can show that the person’s presence would be contrary to the public good and “that the citizen has shown [themself] by act or speech to be disloyal or disaffected towards the Constitution of India…” These factors signal the legal complexities facing the Indian government and perhaps help to explain why India has so far dodged the issue by leaving its citizens detained in Afghanistan.

However, India’s reluctance to readmit its nationals detained in Afghan prisons results in a de facto travel ban, contradicting the demands of the 2017 Security Council Resolution 2396 which instructed States to facilitate rehabilitation and reintegration of FTFs and their family members. This Resolution rightfully notes that families in particular in prisons could be victims themselves and must be treated as such. In recognition of this fact and of human rights obligations under the Convention on the Rights of the Child, some States, including the United States, France, and Sweden, have repatriated citizen children of foreign fighters. So far, however, India has not followed suit, despite having ratified the treaty. It is past time for India to consider, at the very least, the requests made by the grandparents and relatives of these children and make efforts to bring them back.

The absence of any formal policy decision by the Indian government concerning repatriation leaves its citizens detained abroad in a state of flux. Indian FTFs and their families remain in overcrowded Afghan jails without adequate food, water, or sanitary and medical services. Given the continued attacks on civilians and Afghan authorities by members of ISKP, the potential risk to these individuals’ security, and increased radicalization, calls for repatriation of Indian nationals on humanitarian grounds. India’s continued failure to do so constitutes an abandonment of its nationals and an outsourcing of justice to less powerful States that are already grappling with ISIS attacks and threats. The Indian government must comprehensively re-examine its counterterrorism measures – and set up adequate legal and policy frameworks to deal with FTFs and their families – instead of trying to build “fortress India.”

IMAGE: On November 17, 2019, alleged members of the Islamic State (ISIS) group stand alongside their weapons, following their surrender to Afghanistan’s government in Jalalabad, capital of Nangarhar Province. (Photo by NOORULLAH SHIRZADA/AFP via Getty Images)