Turkey recently begun campaigns of sending ISIS detainees back to their home countries. A total of eight individuals with links to ISIS were sent back, including a German and a U.S. citizen.[i] Europe is currently bracing for new waves of repatriation of ISIS members previously held in Turkey following their capture. Suleyman Solu, Turkey’s interior minister, has stated that Turkey would not act as “a hotel for foreign Daesh/ISIS terrorists,” and that Turkey would begin the process of repatriating them to their respective countries of origin. Western countries continue to deliberate what do with suspected European ISIS supporters in the face of Turkey’s repatriation campaigns,[ii] with some expressing initial impulses of distrust and others hitching their wagon to this very divisive issue or eager to awaken a moment of general enthusiasm. For instance, Berlin has tried to reassure the public that the returnees do not pose a security threat. Armin Schuster, interior policy spokesman for Angela Merkel’s Christian Democratic Union (CDU), has recently stated that the German returnees were not “serious cases.”[iii] He also warned against what he called the “media-fueled hysteria.” In addition, the overall discourse and the complexity of refugee debate continues to make headlines in Europe, as evidenced in the recent case of Finland, namely sanctioned for violating the European Convention of Human Rights in the case of an asylum seeker killed in Iraq. [iv]
It is true that many Europeans, including Germans, came to Syria in the throes of a bloody civil war in Syria. Others came with a clear expectation to live under ISIS and its promised strict interpretation of Islam. The potential threat posed by such individuals upon return, however, should be determined by competent law enforcement and legal authorities – namely their explicit or tacit support for ISIS.[v] Governments are likely to deal with a diverse, and not homogeneous, group of ISIS supporters or members upon return; therefore, it is imperative for them to engage on a case-by-case assessment to determine individual responsibility for crimes committed while in Iraq or Syria or continued commitment to violence. For instance, categories of returnees may potentially include those responsible for terrorist attacks, those fully dedicated to ISIS ideology but not necessarily violent, those who at some point stopped believing ISIS but had no potential or means to escape or defect, ISIS wives, and so on.
Successful prosecutions may be difficult to secure, especially when it comes to lack of evidence or obstacles associated with admissibility of [certain] evidence in the court of law. Despite difficulties and apparent obstacles, governments have and continue to institute a number of measures to facilitate successful prosecutions and convictions of suspected returnees from the conflict zones in Iraq and Syria. For instance, EU-level efforts are being undertaken to facilitate information sharing on ongoing investigations, prosecutions, and convictions of ISIS militants.[vi] Designed to facilitate cooperation among governments and national prosecutors and to coordinate judicial investigations, such efforts serve to secure prosecutions and convictions in those instances when national governments fail to gather sufficient evidence against suspects.
Victim testimony, testimony of other ISIS followers and fellow fighters, digital footprint (e.g. social media presence), evidence gathered in the battlefield (e.g. ISIS-issued documents), domestic contacts, intercepts, etc., could all be used to secure successful prosecutions. Furthermore, governments need to be more creative and forward-thinking in the application of their counterterrorism laws, as the failure to incorporate important (and only, in some cases) evidence might hinder successful prosecutions, as is the case in Germany where there are restrictions on the use of social media posts as court admissible evidence or the use of intercepts in the case of the UK.[vii] Some governments fear to rely on evidence passed on by the Syrian Democratic Forces (SDF), or their overall utility in the way of ensuring admissibility as evidence in domestic courts. Others are skeptical that the returnees will seek dismissal of all charges brought against them, as they were being held by and/or transferred by the SDF, a non-state armed group. While challenging, from a legal standpoint, these are all issues that could be easily worked out.
With recent Turkish operations in NE Syria, repatriation of ISIS fighters and their family members remains the most feasible alternative,[viii] and this is true for several reasons. First, efforts to collect evidence on the ground are likely to remain challenging. Second, the SDF does not possess the technical capacity to keep the ISIS detainees long-term, as demonstrated through the recent escape of a number of ISIS detainees in NE Syria,[ix] not that leaving EU or other foreigners under permanent Iraqi or the SDF custody was a sustainable policy option.[x] Furthermore, the prospect of creating an international tribunal in northeast Syria or Iraq to try ISIS suspects has been pushed to the back burner, or abandoned altogether, as it is difficult to operationalize and implement. Moreover, the ongoing discourse over potential transfer of EU citizens to Iraq continues to face criticism, including raising questions over EU governments’ responsibilities under the European Court of Human Rights (ECHR) and the Convention Against Torture. Therefore, repatriation and domestic trials remain the most viable alternative to successful prosecutions and delivery of justice at home.[xi]
Many EU and other governments have also shown a resolve and determination to either restrict or monitor the activities of ISIS returnees or ISIS-affiliated suspects. It is far more sensible and feasible to continue to engage in such activities than simply prevent ISIS suspects and their family members from returning to their home countries. The latter runs the risk of fanning the flames of terrorism elsewhere. By advocating trials and imprisonment of their citizens in Syria, Iraq, or elsewhere in the Middle East, governments not only renege on their responsibilities to repatriate their citizens but may also miss out on the opportunity to expose ISIS crimes at home. On a positive note, European governments have already instituted a number of rehabilitation and disengagement programs to deal with convicts both while in prison and upon their release.[xii] What remains to be done is to continue to reassess and reevaluate the effectiveness of such programs in the long run. The issue of ISIS returnees represents a legitimate security concern, although politics and politically induced hysteria should not stand in the way of patriation. Repatriation of ISIS fighters and their family members is key to ensure justice, keep our citizens safe, and curb the appeal of violent extremism and terrorism in the long run.