For the article in Arabic click here.
Fight for Humanity publishes a report to summarize the main discussions at a meeting hold in Geneva on 23 May 2019 about the possible legal solutions for members of the Islamic States detained in North-East Syria.
The meeting, co-organized by the NGO Fight for Humanity and the Geneva Academy of International Humanitarian Law and Human Rights, gathered more than 50 legal experts, representatives of States, international organizations, NGOs, and from North-East Syria.
Based on the meeting report and despite divergences among participants, Fight for Humanity has formulated ten recommendations:
1- Include the victims’ associations in any legal process. A dialogue with the victims’ associations is necessary. The first objective of a legal process is to get reparation for the victims, and they should have their word to say on what is acceptable/desirable to them.
2- Put emphasis on “war crimes” rather than “terrorism” crimes. At the time of judging the detainees all legal experts agreed it would be easier to rely on international humanitarian law (IHL) to judge the detainees rather than anti-terrorism laws. IHL has an international basis that can apply to all detainees while anti-terrorism laws are different for each country.
3- Coordinate with the different stakeholders. This issue involves 70 different States and their different ministries (Ministries of Interior, Justice, Foreign Affairs), the Self-administration in North East Syria, international institutions, human rights organizations and legal experts. A coordination is necessary to avoid a fragmentated approach with differences in the treatment/judgment of detainees.
4- Combine solutions. Although there is a need for coordination, there is no “one-size-fits-all”. During the meeting, several options were discussed. In the first option, the detainees would stay under the control of the NES/SDF which might judge them. The second option implies the establishment of an international tribunal under the sponsorship of the United Nations or of several countries. The third option is the repatriation of the detainees to their countries of origin or the transfer to a third State.
5- Ensure fair trials. Whatever the justice option is, it is essential that the international community, if it does not want to create another generation of jihadist fighters, ensures that the families of the currently detained fighters from ISIS have no reasons to criticize how trials are conducted or how their spouses/parents/relatives are treated in detention.
6- Avoid creating a perception of “victor’s justice”. A selective justice, for example a justice that would only prosecute ISIS members would create this perception unless steps are taken to mitigate this impression. Many parties have been involved in the Syrian/Iraqi conflict and have been accused of committing violations. An incomplete justice could be very damaging for the system of international justice and would jeopardize the stability of the region on the long term.
7- Include the situation of all detainees in the discussions. Although different solutions might be found for different kind of detainees, the principle of non-discrimination should be applied: all detainees should be included in the discussions whatever their age, gender, or nationality.
8- Treat children with special care. At the meeting, the NES/SDF stated that over 50 children below 18 are detained in special centers. They were associated with the Islamic State and some of them were trained or used for combats. They should be treated differently from all the other detainees and receive special care.
9- Take responsibility. The international community has a duty to support solutions to this issue, they cannot let the NES/SDF – a non-State entity – take the entire responsibility to maintain in detention or judge these detainees. The NES/SDF has limited resources and does not have the logistic and legal capacity to judge so many international and national detainees.
10- Act quickly: The situation involves many legal, logistic and political challenges and all the actors involved does not seem to agree on a common solution. However, there are urgent humanitarian and human rights concerns that can’t wait – radicalization of the detainees, their families and their communities is ongoing, putting the stability of the region at risk.
More than 2'000 foreigners from 70 different countries, 3'000 Syrians and a similar number of Iraqis - men, women, children - are reported to be detained by the Self-Administration in North East Syria (NES) and the Syrian Democratic Forces (SDF). The NES/SDF has called for the support of the international community to judge them after many of their countries of origin decided to not to repatriate them.