The plight of women and children detained in camps in northeast Syria since the collapse of the self-styled Islamic State’s “caliphate” has received significant attention, and some are finally being brought back to their home countries after unconscionable years-long delays by multiple countries, including Western States. By contrast, the fate of more than 10,000 boys and men deemed “associated” with the group (also known as ISIL/ISIS/Daesh), including approximately 2,150 third-country nationals, has been mostly ignored by governments and international organizations, with the exception of independent United Nations human rights experts’ offices. But recent judicial decisions are beginning to break a logjam in which countries that claim to abide by the rule of law must reckon with the consequences of not returning men, including the denial of due process to the accused and justice to their victims.

The recent earthquake that devastated parts of southern Turkey and northwest Syria thankfully caused few casualties and only limited infrastructure damage in northeast Syria, so this should not hinder Western efforts to address the human rights crisis of the detainees. But the disaster has increased the humanitarian needs of populations and the challenges of humanitarian access across northern Syria. So it is especially crucial for the States of the detainees’ origins to assist the de facto authorities in northeastern Syria by removing the burden of detention to allow them to focus on providing the needed humanitarian relief.

Thousands of men and boys captured between 2017 and 2019 have been held indefinitely by the Syrian Democratic Forces, backed by what is now known as the Global Coalition Against Daesh. The detainees are confined in more than 15 makeshift detention centers, mostly converted schools and hospitals, throughout northeast Syria. The men and boys are held in overcrowded cells (in some cases more than 30 in cells built for six individuals), and they lack food, drinkable water, and medical care. They are most often portrayed as dangerous “terrorist fighters” and “jihadis” who deserve to be treated as “sub-humans,” certainly not considered as worthy of repatriation to their countries of citizenship, notably because of an alleged risk they would pose there.

But none of these men have ever been brought before a judge to determine whether they are rightfully and lawfully detained, and there is no law that would legally underpin their detention. Some were children at the time of their detention. Most have never been charged with any specific offense, and there is no prospect of a trial in the region (more on that later). Furthermore, access to them – which had always been extremely limited – has ground to a halt since a January 2022 attack on an established prison in Al-Hasakeh allegedly by ISIL in an apparent attempt to free some of the detainees. The prison held 5,000 individuals at the time, including 700 children. Reports suggested that 300 people were thought to have been killed in the several days of fighting that ensued, and 100 boys are presumed dead or injured from this attack.

Instead of finding legally sound solutions to their entrenched and protracted arbitrary deprivation of liberty in inhumane conditions, including repatriations to their countries of origin for those who should receive a fair trial for offenses committed, the practice of arbitrary detention is becoming entrenched. Though the SDF has appealed to other countries to repatriate their citizens, the Global Coalition Against Daesh, (made up of the United States, multiple European States such as the United Kingdom individually, the European Union, and a number of African and Arab States) has been supporting these indefinite detentions through direct security assistance, including the building of a new high-security prisons in the region, a clear sign that their repatriation is not likely to happen anytime soon. Few policymakers in the countries of origin openly acknowledge that many men have already returned to their home countries, having left the conflict zones before the fall of Baghuz in 2018, which marked the end of ISIS control over territories in Syria. It is also worth noting that, while many States have stressed the dangers posed by repatriation of these individuals, studies consistently show that the recidivism rate for terrorist offenders is very low.

Judicial Decisions Begin to Move the Ball

Against this backdrop, however, judicial decisions are beginning to shift the scenario. Canada’s Federal Court decision of Jan. 20, for example, requires Canadian authorities to assist in the repatriation of four Canadian men held by the Syrian Defense Forces as de facto authority in northeast Syria. It is a landmark decision, with its focus on the legal obligations of States to their male detainees. By tackling the situation of the men from a rights-based perspective and reinstating them as rights-holders under the Canadian Constitution, the court clearly departs from seeing them solely as security risks.

In that highly significant case, led by a campaign known as “Bring Our Loved Ones Home” (BOLOH), the lawyers for four men languishing in prisons in Al-Hasakeh province had repeatedly made requests for repatriation to the Canadian authorities since February 2021. In every instance, the government failed to respond. Based on article 6(1) of the Canadian Charter of Rights and Freedoms, enshrining the right of all Canadians to enter, remain in, and leave Canada, the judge concretely decided that, given the willingness of the Kurdish authorities to repatriate foreign nationals to their countries of origin if certain formal requirements are met, the Canadian authorities must, as soon as reasonably possible, make formal requests to the authorities in northeast Syria to allow the voluntary repatriation of the men. The court found that the Canadian government had an obligation to provide them with passports or emergency travel documents, and to appoint someone to accept their handover from the Kurdish authorities. The judge noted that the “foundational right” to enter Canada is a right that allows “few, if any, limitations.” Implementing this right in his view required positive implementation measures. Not doing so would be to interpret the right “in an unreal world.”

Notably, the decision contains a damning criticism of Canada’s policy drawn up in February 2021 (“Government of Canada Policy Framework to Evaluate the Provision of Extraordinary Assistance”) that set out “threshold criteria” that applicants for repatriation had to meet before Canadian authorities would advance repatriation efforts. The decision criticizes not only the secrecy surrounding the policy — even the applicants and the lawyers were not informed about it for nine months — but also its deliberate intention to exclude the possibility of repatriation for men, unless there is “credible information indicating that the individual’s situation has significantly changed since the adoption of the Policy Framework.” The court’s decision suggests the policy is unacceptable from a rights perspective, an important assessment because it is likely that many other States have very similar policies used to stall repatriations.

In examining Canada’s international obligations, the judge relied heavily on a communication sent to Canada by one of us (Fionnuala), the U.N. Special Rapporteur on the promotion and protection of human rights while countering terrorism, concerning the case of Jack Letts (one of the four men whose situation is addressed by the ruling).  The mandate has also addressed the feasibility of trials in the course of proceedings. Quoting much of the Special Rapporteur’s findings verbatim, the judge highlights the position that “the urgent voluntary repatriation of all citizens is the only international law compliant response to the complex and precarious human rights, humanitarian and security situation faced by those detained in inhumane conditions in overcrowded prisons or other detention centers in North-east Syria, with limited food and medical care, putting detainees lives at increased risk.”

Progress on Women and Children Detained in Camps

This ruling comes at a time of other long-awaited practical and judicial movement as well regarding repatriation from the camps in northeast Syria, at least regarding the women and children. From a judicial perspective, a number of decisions have condemned States for their failure to assist their nationals in the camps. These include an important decision rendered by the European Court of Human Rights against France in September 2022 that reintroduced human rights protection, rule of law, and procedural fairness in the decision-making processes regarding the repatriation of women and children. Another significant decision came from the U.N. Committee Against Torture; it found France in violation of the Convention Against Torture for failing to take effective measures to protect its nationals in the camps. Two other decisions, from the Committee on the Rights of the Child in 2022, found France and Finland in violation of the Convention on the Rights of the Child.

In practical terms, and possibly as a result of these decisions, a number of countries have brought their nationals home. Just since October 2022, there have been 17 repatriations to Australia, 3 to Barbados, 102 to France, 12 to Germany, 40 to the Netherlands, 38 to Russia, 2 to the U.K., 13 to Spain, and just over 2,000 to Iraq. These figures show the determination of the Kurdish authorities to support and enable repatriations, as well as the sheer practical feasibility of such movements, contrary to national arguments pertaining to lack of access and risks posed by these operations. Even Canada, initially very reluctant to repatriate anyone other than a 5-year old orphan, repatriated four individuals at the end of 2022, including two women. Canada, pressed by litigation, just agreed to repatriate a further 21 women and children, as acknowledged in the ruling.

The Canadian court decision is particularly significant because it is an important step towards closing the immense accountability and rights vacuum that currently defines the camps and detention centers in northeast Syria. If implemented, it will be an immense opportunity for Canada to lead in addressing not just terrorist offences, but the extremely serious core crimes that have been committed in the region and finally bring true justice to the victims. Implementation of this decision would ensure that the men have access to fair trials that comply with international human rights law. None of this can be meaningfully undertaken in the region; it must occur in the home countries of these citizens.

The individuals subject to these potential judicial proceedings are being detained by the SDF, a non-State actor that is not a legally recognized entity that could conduct such trials for serious violations of international law consistent with required due process standards. Absent a highly improbable fundamental change in international law, States will not be designating non-state armed groups as suitable legal or political entities to undertake legally binding proceedings for their nationals.

Thus far, courts in northeast Syria have tried only Syrian nationals, and those trials have not complied with fair-trial standards under international human rights treaties or under Common Article 3 of the Four Geneva Conventions. There is a severe lack of resources including judicial, technical, and legal capacity, as well as infrastructure to support the processing of foreign nationals for trials in the northern Syrian Arab Republic.

The geopolitical instability of the region also is a factor, including attacks by non-State armed groups also designated as terrorist organizations (such as the above-referenced attack against the prison in Al-Hasakeh in January 2022, which led to the death or disappearance of 100 boys). That and the resulting numerous counterterrorism operations by the SDF and its security partners make any augmentation and amelioration of trial proceedings highly unlikely in any foreseeable future. Similarly, the possibility of a form of “international,” “hybrid,” or “regional” court, can at best be described as political rhetoric or wishful thinking.

Credible, fair trials are imperative, of course, not only to provide justice for the accused, but also for the victims of terrorism. In the States of origin, when evidence is available, governments must meet their obligations by going beyond trials for returnees on terrorist offenses such as membership in proscribed groups or travel to join them. Some may need to be tried for core international offenses, including for acts of genocide and crimes against humanity or perpetration of killings, torture, serious deprivation of liberty, rape, sexual assault, and hostage-taking. Certainly in an ideal world, justice would be delivered close to where the offenses and crimes were committed, but for the reasons outlined above, there is no effective possibility of this, and so the failure to repatriate and apply the criminal justice system to the full sells short the victims of terrorism and abrogates the responsibility of the States whose nationals have committed these violations.

Failure to properly pursue these terrorism cases also abrogates a fundamental tenet of the Coalition to Defeat Daesh — the promise of “never again” — by failing to hold those who committed grievous crimes responsible for them.  A failure to repatriate maintains the entirely unacceptable status quo that no justice is delivered – not to the victims of serious core crimes, not to victims of terrorism, and not to the men who will continue to languish in abhorrent conditions. The solution clearly lies in the hands of States of origin of these alleged perpetrators. The question is whether these States will live up to their obligations to deliver and support justice all their citizens.

IMAGE: A member of the Syrian Democratic Forces (SDF) stands guard in a prison where men suspected to be affiliated with the Islamic State (IS) group are jailed in northeast Syria in the city of Hasakeh on October 26, 2019. Kurdish sources said at the time that around 12,000 IS fighters including Syrians, Iraqis as well as foreigners from 54 countries were being held in Kurdish-run prisons in northern Syria. (Photo by FADEL SENNA/AFP via Getty Images)