At the height of its power, the Islamic State controlled a population of 12 million and a territory more or less the scale of Great Britain. Last week, the very last vestiges of the jihadist organization had been scrubbed from northern Syria, its previously ambitious and violent men searching haggard and defeated as they sat in dusty rows out of doors of Baghuz. The Syrian Democratic Forces, a predominantly Kurdish defense force subsidized by using the international Coalition towards ISIS, declared military victory on March 23 after the months-long “Cizirê Storm” offensive to free up the terminal fragment of the caliphate.
Though that is in no way the final stop of ISIS, the significance of the liberation of Baghuz should now not be underestimated. The importance of the victory became possibly pleasant, exemplified using pictures of female infantrymen throwing the black jihadist flag to the ground and raising in its location the flag of the YPJ, the Women’s Defense Units of the SDF. The symbolism of such a second, in opposition to the backdrop of ISIS’s brutal sexual enslavement of Yazidi women and weaponization of rape as a device of battle, became lost on no person.
Sexual slavery is most effective indeed one of several common crimes ISIS is accused of committing, among them the genocide of Yazidi and Christian minorities and different barbaric acts amounting to conflict crimes and crimes against humanity. The primary objective of the anti-ISIS Coalition ought to now be handing over justice to the victims of ISIS crimes, a challenging assignment that ought to account for both political realities and country responsibilities below international human rights regulation. The pursuit of justice for ISIS crimes is undeniably global trouble: consistent with the co-chair of the Syrian Democratic Council. As a minimum of 57,000 people in SDF detention camps, more significant than 12,000 are ‘foreigners’ from 48 unique international locations.
Refusal to repatriate underneath worldwide human rights law
Aside from a few limited efforts to go back to kids below the age of 10, states had been reluctant to repatriate their detained ISIS nationals. Most have left their citizens to be transferred from SDF to Iraqi custody, with some countries, maximum substantially the UK, stripping citizenship with a purpose to formally abdicate responsibility for repatriation and prosecutorial efforts.
Current repatriation guidelines increase several issues underneath international law. Citizenship revocation, for instance, is in a critical battle with Article 15 of the Universal Declaration of Human Rights, which protects a man or woman’s right to a nationality and prohibits arbitrary deprivation of citizenship.
Stripping an individual of sole instead of twin citizenship similarly violates the provisions of the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention at the Reduction of Statelessness, both binding international law on state events.
Citizenship revocation violates the presumption of innocence precept and the right to a fair trial, punishing people without virtually trying and convicting them of any crime in a court docket of law and depriving them of the ability to mount a defense. Moreover, denationalization regulations can’t be justified on the grounds of safety policy. There is no evidence that citizenship deprivation deters, reduces, or halts terrorist threats to the country’s great safety or prevents the targeted person from committing terrorist acts.
On the contrary, citizenship deprivation leaves intelligence and policing governments less able to display and surveil former ISIS members. Second, by refusing to repatriate their nationals, state events to human rights conventions like the European Convention on Human Rights (ECHR) or the International Covenant on Civil and Political Rights (ICCPR) are doubtlessly in breach of their criminal obligation to uphold legitimate trial rights and due technique guarantees.
According to several worldwide human rights organizations and monitoring bodies, terrorism trials carried out in Iraqi courts violate due process and fair trial requirements as required below both the Constitution of Iraq and international regulation. Fair trial worries are especially acute in the case of foreigners; as a senior researcher at Human Rights Watch found after attending several dozen terrorism trials in Iraq: “The presumption is because you are foreign, and also you were in ISIS territory, there is no want to provide more evidence.”
Third, state parties to the ECHR and the ICCPR are obligated to uphold the right to life, which precludes the usage of the loss of life penalty, and the proper to be unfastened from torture or cruel, inhuman, or degrading treatment or punishment. Reliance on the Iraqi judicial device can breach each provision: the Iraqi government was credibly accused of torturing ISIS detainees. Iraq is the fourth most common consumer of the death penalty globally. The latter trouble arose briefly last 12 months while the U.K. Became widely criticized for forsaking its ordinary “dying penalty guarantee” in the case of ISIS Britons, and is in all likelihood to rise once more as Iraq has just begun court docket lawsuits in opposition to 13 ISIS members of French nationality, who may also face the loss of life penalty if convicted.
While states have the handiest restrained capability to shield the rights of nationals arrested abroad, as exemplified by the current cases of Otto Warmbier in North Korea or Matthew Hedges in the United Arab Emirates, the cutting-edge situation differs from the norm in a single mainly important element.
Despite its partnership with the International Coalition, the SDF is a non-state armed force without any officially diagnosed “criminal authority,” which increases severe questions about the legality of SDF arrests of foreign ISIS participants and their subsequent transfer to Iraqi custody. While it can be usual for nationals to be rendered to the care of different states, it’s miles not likely that abdicating responsibility to a non-kingdom actor is a felony underneath common law.
Overall, the criminal absurdity of the modern-day state of affairs is aptly illustrated by way of the reality that states are avoided with the aid of the principle of non-refoulment from returning non-citizens to countries wherein they may face torture or the loss of life penalty, but in the meanwhile seem content material to go away their citizens at risk of the identical.
National prosecutions or a worldwide criminal tribunal?
Repatriating ISIS individuals to prosecute them in countrywide jurisdictions is equally complicated from a safety policy viewpoint as non-repatriation is beneath extensive human rights regulation. Prosecutors in national authorities face widespread evidentiary demanding situations, unable to compel witnesses or gather any full-size proof in Iraq and Syria, which in turn results in convictions for lesser terror-related offenses, mild sentences, and worryingly early releases.