Suspected terrorists arrested by the SDF on July 16, 2019. The SDF said they were planning attacks in Raqqa on Eid al-Adha. (SDF photo)

Arguments for and Against Trying European Foreign Terrorist Fighters in Syria

The Syrian Democratic Forces (SDF) recently announced that the foreign terrorist fighters (FTFs) under their custody will soon stand trial in Syria. [i] According to the SDF officials, FTFs from the United Kingdom will be the first to face such trials, perhaps starting as early as this spring. [ii] The decision came in the midst of failed negotiations between the Kurdish authorities in Northeast Syria and many foreign governments to facilitate the repatriation of FTFs and their families currently under SDF custody.[iii] Some experts have even suggested a possible deal between the SDF and Bashar al-Assad’s regime on the question of FTF trials and prosecutions. “The SDF could make a deal with the Syrian government to try the ISIS members for killing Syrians, just as the SDF has done by turning them over to the Iraqi government, which will try them for killing Iraqis,” Josh Landis, director of the Center for Middle East Studies at the University of Oklahoma, told VOA.[iv]

In many cases, state responses in dealing with FTF repatriation continue to be explained through the lens of potential political backlash in the event of repatriation as well as challenges and dilemmas both in balancing the engagement with the SDF and managing the perceptions resulting from dealing with a non-state armed group such as the SDF. While the prospect of potential FTF trial by the SDF may come as a surprise to some, the practice of administration of justice on the part of non-state armed groups is not a new phenomenon. For instance, the Taliban enacted its own Code of Conduct that contained rules outlining the group’s treatment of prisoners, spies, and war spoils, among others.[v] Sri Lanka’s Tamil Tigers carved their own judicial system to adjudicate civil and other matters.[vi] The Frente Farabundo Marti para la Liberacion Nacional (FMNL)[vii] and Revolutionary United Front of Sierra Leone (RUF)[viii] also convened courts. Armed opposition groups in Syria have created judicial councils to deliver their own version of justice. [ix]

In addressing what appears to be an urgent domestic and foreign policy challenge, the question of how to bridge the existing divide between mostly European governments and the SDF on the question of FTF repatriation and prosecution remains a daunting task. The arguments in favor of indefinite detention of FTFs under SDF custody seem to have run out, with both the international community and the SDF continuing to sketch their own framework for [im]permissibility of trials and the placement of such trials on a more legally established footing.

The most prevalent arguments for the trial of FTFs under SDF custody:

  • Justified when states are unwilling to repatriate their own citizens for trials and prosecution purposes
  • Justified in the absence of any alternative (e.g. court or forum) offered by the international community
  • Justified in the absence of the SDF (Rojava) good relationship with a third state that could allow for possible trials and prosecutions
  • Justified if the SDF-administered court is left as the only forum that seeks to prosecute terrorism and other violations of international humanitarian law
  • Justified when possibility of trial under the Assad regime becomes impractical and unrealistic for political and other reasons
  • Lack of willingness to transfer FTFs (e.g. for having committed crimes against the Kurds and on Syrian soil)

 The most prevalent arguments against the trial of FTFs under SDF custody:

  • Jurisdictional constraints
  • Lack of basic judicial system that could ensure a free trial, namely adequate defense or appeal
  • Lack of political legitimacy, acting as a deterrent in the way of providing foreign technical and legal assistance and advice in the event trials took place
  • Detention and prison facilities unsustainable even in the event of successful prosecutions
  • Capacity to only sustain judicial standards enshrined in international humanitarian law, and not judicial processes, due to lack of judicial capacity
  • Concerns raised with regards to military command handling the judicial proceedings and responsibilities
  • Difficulties in attributing independent and impartial judicial bodies (e.g. body in charge of conducting judicial processes and activities). For instance, tribunals are likely to include members of the military who fought against FTFs, which could affect objective impartiality[x]
  • In the event of an acquittal, or release after serving prison time, the returnees are still likely to be prosecuted upon return to their home countries

In the absence of international recognition, the SDF is likely to continue to seek legitimacy among the local communities first and foremost, based on its current governance efforts and short-term governance initiatives. In tandem with international recognition, the group also continues to seek opportunities for the enforcement of international law. In other words, the group has already become a subject of international law by pursuing opportunities to enforce rights, norms, obligations, etc., stipulated by international laws. This was also evident in how the SDF has pursued a number of international obligations that govern the law of armed conflict, specifically as it relates to humanitarian relief and conduct of hostilities.[xi]

The recent threats of, or actual, trials of the FTFs may be perceived as a direct response to international law and mechanisms that stand in the way of the SDF’s prerogative to deal with security threats on its soil. One could also argue that the SDF might also pursue such a policy to achieve legal recognition and further enhance its legitimacy and, by extension, its claim to power. However, the fact that many governments remain impervious to the idea of repatriation could also be interpreted as an implied state consent in allowing the SDF a lawmaking role. Framed in legal jargon, what is often referred to as “delegated lawmaking power”[xii] could in fact be applied in the case of the SDF to suggest implied state consent to delegate the SDF a discreet law-making role and power in dealing with FTF detainees under their custody.

 

Endnotes
[i] Middle East Eye. (2020). “ Syrian Kurds to put suspected Islamic State foreign fighters on trial,” available at https://www.middleeasteye.net/news/sdf-hold-trials-suspected-foreign-fighters-syria
[ii] Hall, R. (2020). “ British ‘ISIS members’ to be put on trial in Syria as Kurds plan special court for foreign fighters,” Independent, available at https://www.independent.co.uk/news/world/middle-east/isis-british-prisoners-trial-syria-sdf-terrorism-a9321921.html
[iii] Ibid.
[iv] Kajjo, S. (2020). “ Syrian Kurds seek other means of trying ISIS militants,” VOA, available at   https://www.voanews.com/extremism-watch/syrian-kurds-seek-other-means-trying-militants
[v] Aljazeera. (2009). “Taliban issues code of conduct, “available at https://www.aljazeera.com/news/asia/2009/07/20097278348124813.html; See ICRC also, available at https://www.icrc.org/en/doc/assets/files/review/2011/irrc-881-munir-annex.pdf
[vi] Sullivan, T. (2003). “ Tamils exact their own brand of justice,” Los Angeles Times, available at https://www.latimes.com/archives/la-xpm-2003-nov-02-adfg-tjustice2-story.html
[vii] See, for instance, “ The legitimacy of our methods of struggle,” available at  https://books.google.com/books?id=W_ObHAAACAAJ&dq=inauthor:%22Frente+Farabundo+Mart%C3%AD+para+la+Liberaci%C3%B3n+Nacional.+Secretariat+for+the+Promotion+and+Protection+of+Human+Rights%22&hl=en&newbks=1&newbks_redir=0&sa=X&ved=2ahUKEwi2vO__2MznAhUulnIEHUvRBLUQ6AEwAHoECAAQAQ
[viii] Roth, K. (2000). “ International justice: The tragedy of Sierra Leone,” HRW, available at https://www.hrw.org/news/2000/08/02/international-injustice-tragedy-sierra-leone
[ix] Human Rights Watch. (2015). “ He didn’t have to die,” available at https://www.hrw.org/report/2015/03/22/he-didnt-have-die/indiscriminate-attacks-opposition-groups-syria
[x] Heffes, E. (2018). “ Administration of justice by armed groups: Some legal and practical concerns,” Humanitarian Law & Policy, available at https://blogs.icrc.org/law-and-policy/2018/11/22/administration-of-justice-armed-groups-some-legal-practical-concerns/
[xi] Geneva Call. (2017). “ Syria: first training session on the law of armed conflict for the Syrian Democratic Forces near Raqqa,” available at https://www.genevacall.org/syria-first-training-law-armed-conflict-syrian-democratic-forces-near-raqqa/
[xii] Roberts, A., & Sivakumaran, S. (2012). Lawmaking by nonstate actors: Engaging armed groups in the creation of international humanitarian law,” 37 (4), Yale Journal of International Law, available at https://pdfs.semanticscholar.org/eb26/2be4fc134262ae075ae5a25b320f5f1d48c1.pdf
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Ardian Shajkovci, Ph.D., is a counter-terrorism researcher, lecturer and security analyst, with field research experience in the Middle East (Iraq, Syria, and Jordan), Western Europe, the Balkans, Kenya, and Central Asia. He is co-founder and director of recently initiated American Counterterrorism Targeting and Resilience Institute (ACTRI), a U.S.-based research center predominantly focused on the domestic aspects of terrorism-related threats. Past positions include Research Director and Senior Research Fellow at the International Center for the Study of Violent Extremism (ICSVE) and positions and consultancies with domestic and international organizations. Homeland security, disengagement from terrorism, violent extremist and terrorist group media communication strategy and information security, messaging and counter-messaging, and the strengthening of resilience to violent extremism and terrorism through application of the rule of law represent some of the areas of research interest. Ardian obtained his PhD. in Public Policy and Administration, with a focus on Homeland Security Policy, from Walden University. He obtained his M.A. in Public Policy and Administration, from Northwestern University, and a B.A. in International Relations and Diplomacy from Dominican University.

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