The war with the Islamic State may be winding down in Syria and Iraq, but the battle over how to bring its detained fighters to justice is only just beginning. Some 2,000 male foreign fighters, including 800 Europeans, are believed to be held in Kurdish Syria, trapped in a legal limbo, since the war ended in March. The United States believes they should be returned to their countries of origin and stand trial, but most European countries are proving resistant to that idea. On a continent plagued by ISIS terrorist attacks, the main obstacle to repatriation may be hostile public opinion. Politicians, wary of being blamed for any subsequent attacks, have opted to keep their nationals away, including the families of alleged terrorists.
Indeed, critics say European governments are in effect creating their own “Guantanamos” in the overcrowded prisons and detention camps being run by the U.S.-backed Syrian Defense Forces across northeastern Syria.
The problem has already been debated for several years, with European powers holding various meetings across the world in a bid to advance the matter. But they are still a long way from finding a solution. “We talk, we talk, but we are nowhere,” a source in a European Foreign Ministry tells Haaretz. “We are completely in the dark.”
There have been various suggested solutions to the dilemma. In May, for instance, the Swedish government started lobbying for the creation of an international tribunal, possibly based in Iraq, to prosecute ISIS fighters for war crimes. Mikael Damberg, the country’s interior minister, suggested that it could be modeled on the international courts established to prosecute perpetrators of the genocides in Rwanda and the former Yugoslavia. Others have called for a Nuremberg-like tribunal, referring to the German city in which Allied powers brought Nazi war criminals to justice after the end of World War II.
Interviews conducted with dozens of political figures, senior officials, military sources, lawyers, judges, experts, jihadists, victims and human rights defenders in the Middle East and Europe highlight the major challenges that need to be overcome before foreign ISIS fighters can be brought to justice, and how far European countries are from truly tackling this question. Some sources requested anonymity to freely discuss such a sensitive topic.
In early July, in the middle of wheat fields blackened by fires that burned all summer long, about 100 local Kurdish officials, lawyers and international experts gathered in a holiday resort near the city of Amuda for a conference to promote the establishment of an international tribunal in the de facto autonomous Kurdish region of Rojava. Dozens of men in black, armed to the teeth, jealously guarded all entrances to the site.
“When you see the harm they have done, and considering this is where the caliphate was defeated, it is normal to ask that they be judged here. We have a desire for revenge,” Suaad Murad Khalef, a 21-year-old Yazidi survivor invited to speak at the conference, tells Haaretz. She was kidnapped on August 3, 2014, from the ancestral Yazidi homeland of Sinjar, northern Iraq, on the first day of the genocide against her ethnoreligious community. Like hundreds of other women, she was then sold as a sex slave, repeatedly being traded from one jihadist to another.
In the Kurds’ view, this international tribunal would lend a powerful voice to the victims of ISIS by putting them at the center of the judicial process and offering them reparations. It would also ensure that their region would benefit from long-lasting international support now the war is over.
For the time being, Syrian ISIS members are the only ones standing trial in Rojava. In Iraq, meanwhile, only charges related to terrorist acts are being heard. Sex crimes, such as those committed against the Yazidi women, are not considered, while crimes against humanity or genocide do not exist in Iraqi law.
Yet for more than two years, the Syrian Kurds who spearheaded the fight against ISIS (as part of the U.S.-led coalition) insisted that foreign jihadists languishing in their prisons be sent back to their home countries. Only a handful of nations, including Russia, responded positively to such a request, though, and a deafening European silence further irritated the Kurds, who called on the countries to take responsibility for their citizens’ actions.
But the Syrian Kurds have since changed tack and are now insisting that these individuals be tried in Rojava. However, European countries like the United Kingdom, France and Belgium see the Kurdish offer as neither practically feasible nor particularly desirable.
Indeed, most experts and officials Haaretz talked to see the chances of an international court being established in Rojava as slim. In Europe, supporting such a project is seen as a political risk. Turkey, a historical ally of the Western powers within NATO, sees the Syrian Kurds’ YPG militia — the backbone of the Syrian Democratic Forces — and its political affiliate to be subgroups of the PKK, a Kurdish-armed group that Ankara considers terrorist in nature.
The Syrian regime is another issue. Despite their dreams of emancipation, the Kurds maintained constant contact with Damascus throughout the war, and President Bashar Assad always promised he would regain control of the entire territory. Europe’s leaders worry that by leaving their detained nationals there for too long, they will, one way or another, end up in enemy hands.