Why it’s time to repatriate IS foreign fighters

As the clock ticks down on the repatriation of Islamic State (IS) foreign fighters from Syria, a recent development has added a new sense of urgency to the situation. On June 11, the Autonomous Administration of North and East Syria (AANES), the de facto authority in northeast Syria, announced its intention to prosecute approximately 2,000 IS foreign fighters — i.e., those who are not Syrian or Iraqi — in an effort to deliver justice to the victims of the terrorist organization. However, the lack of international recognition for the AANES and its courts renders these trials illegitimate, further complicating future international legal efforts to prosecute these combatants.

The AANES’ legal system, lacking the necessary independence, experience, and integrity to tackle such a complex task, presents significant challenges when it comes to achieving justice for both IS victims and fighters. Furthermore, accepting the rulings of the AANES justice system could pose reputational risks for the international community and, in the long run, create a potential security threat in the form of an IS resurgence.

Since the terrorist organization’s territorial defeat in March 2019, the military wing of the AANES, the Syrian Democratic Forces (SDF), has detained more than 10,000 IS fighters in makeshift prisons throughout northeast Syria. In addition, approximately 50,000 individuals — predominantly women and children with perceived IS affiliations — reside in the Roj and al-Hol detention camps, the latter of which U.N. Secretary-General António Guterres has described as “the worst camp that exists in today's world.”

The AANES has constantly urged the international community to repatriate its nationals. Several countries, including Sweden, the Netherlands, Russia, Tajikistan, Canada, France, and Germany, have repatriated their female citizens and children. However, only a handful, such as the U.S., Kazakhstan, Uzbekistan, Kyrgyzstan, and Russia, have made similar efforts to take responsibility for their male nationals. Shockingly, since 2019, only 4% of the male fighters have been repatriated.

The AANES previously proposed establishing an international tribunal to address this issue in March 2019 and again in February 2020. While initially supported by some European nations, primarily Sweden and the Netherlands, their inability to convince international counterparts and concerns over potential domestic backlash likely resulted in the shelving of the proposal. In the absence of an international court that has jurisdiction over IS crimes, and with Syria and Iraq falling outside the International Criminal Court's purview, international judicial intervention appears unlikely. This has culminated in the AANES’ latest attempt to exert pressure and take matters into its own hands.

The challenge of legitimacy

Since its establishment in 2013, the AANES has actively pursued any kind of international recognition. Even though the SDF is considered the “lead partner” in Syria for the U.S.-led global military coalition against IS, the international community has largely refrained from legitimizing the governance apparatus that sits beside it. While a few governments, primarily in Europe, have permitted the AANES to open representative offices, further recognition appears unlikely at present.

For NATO countries, such an endorsement would exacerbate tensions with Turkey, a critical ally. Ankara views the People's Defense Units (YPG), which dominate the SDF ranks, as an extension of the Kurdistan Workers’ Party (PKK), an internationally designated terrorist group that has waged a long-standing insurgency against the Turkish state. Moreover, the AANES' consistent calls for a federal system, which would offer it a degree of autonomy from Damascus, also seem like a distant goal as that would necessitate the Syrian regime's consent. The latter, along with its allies (Russia, Iran, and China), firmly rejects such proposals, which are in direct opposition to their objective of reinstating Bashar al-Assad's control over all of Syria.

Given that a court's legitimacy generally arises from the internationally recognized government that established it, any verdicts rendered by an AANES tribunal could be perceived as illegitimate by the international community. This could have significant implications for future legal proceedings. In an interview with the author, Professor Mark Klamberg, an expert in international law at Stockholm University, said, “It is conceivable that politicians in other countries, including those in government positions, will applaud such verdicts. However, I do not foresee a scenario where domestic courts and state agencies in any country will consider these verdicts to be legally binding and enforceable in their jurisdictions, given that the AANES is not formally recognized as a state.”

This suggests that any IS foreign fighter prosecuted, convicted, and subsequently sentenced within the AANES jurisdiction might still face legal charges in their own countries, assuming there is sufficient evidence against them. Even the transfer of these combatants to serve AANES-issued sentences in their home countries could prove problematic. “As I see it, countries like Sweden would need to conduct a new trial before a Swedish court before a person can be incarcerated in a Swedish prison,” Professor Klamberg said. This may well be the case for most of the international community.

However, there are those who view the AANES' decision to move forward with these trials with a degree of skepticism, interpreting it as a pressure tactic. Charles Lister, director of the Syria Program at the Middle East Institute, tweeted on June 16, “It's just another attempt to coerce the international community to repatriate its nationals.” This sentiment becomes particularly significant considering the timing of the AANES’ announcement, coming just two days after a meeting held by the Foreign Ministers of the Global Coalition to Defeat ISIS in Saudi Arabia. The coalition pledged $600 million toward stabilization efforts in areas liberated from IS control in Iraq and Syria. While it focused on “ensuring that Daesh/ISIS terrorists detained in Syria are housed securely and humanely,” no commitment was made to support any international legal efforts to prosecute IS foreign fighters. This lack of commitment might have furthered the frustration of the AANES and the SDF with the international community's inaction, prompting their decision to pursue justice in their own way.

Fair trial?

Another issue raising concerns over the AANES' intention to prosecute IS foreign fighters lies with its justice system, which lacks the requisite integrity, independence, and experience needed to conduct fair trials. The AANES' legal system is regulated by the Council of Social Justice, serving as the highest judicial authority and overseeing the “People’s Protection Courts” or the “Terrorism Courts,” which handle IS-related cases. While no exhaustive evaluation of their judicial operations is available, some reports indicate that these courts are under the control of PKK cadres, with the power to alter, rescind, or suppress court decisions entirely. Additionally, many staff members lack formal legal education, with some not even holding a high school diploma.

The AANES has offered assurances that IS foreign fighters will be subjected to “public, fair, and transparent trials in accordance with international and local terrorism laws, thereby preserving victims' rights.” However, evidence from past prosecutions of local fighters contradicts this assurance. A 2020 report from Chatham House indicates that the “Terrorism Courts” neither allowed IS members to engage defense attorneys nor granted them the right to challenge court rulings. Furthermore, the courts prohibited victims from lodging complaints with the authorities or submitting evidence against IS members. Even when offenders were brought to justice, their victims remained uninformed about the convictions and associated charges.

The report further criticizes the AANES' justice system as “deeply flawed” in its “piecemeal approach.” This is due to the system’s primary focus on cases related to IS, neglecting other crimes such as rape, theft, and torture. Furthermore, the current mechanisms fail to adequately pinpoint individual accountability for specific offenses, or their involvement in war crimes and crimes against humanity perpetrated by IS. Advocates for justice should know that such a system, riddled with shortcomings, will fail to offer a fair examination of alleged crimes or an eventual resolution that satisfies all parties.

Looking ahead

The international community, particularly Western countries, now find themselves in a delicate situation. Ignoring the dubious legitimacy and integrity of the AANES' courts could pose a reputational risk, potentially leading to accusations of “outsourcing” justice to an unrecognized entity. However, actively supporting these courts also presents its own issues. As Professor Klamberg highlights, “If Western countries provide assistance, funds, training, or other resources to these courts, they might face legal liability in their domestic courts, due to the perceived shortcomings of the AANES justice system.”

This situation is further complicated by two key factors: the inhumane conditions and lack of rehabilitation programs in the makeshift prisons that host IS fighters, which increase the likelihood of further radicalization, and the poor security of these prisons, which heightens the risk of inmate escape. Although a suspected IS plot to attack al-Sina prison in al-Hasakah was thwarted by the SDF and the U.S.-led international coalition in November 2021, the group carried out a successful assault on the same prison two months later, reportedly freeing hundreds of its fighters and replenishing its depleted manpower. Given the fragile security situation in northeast Syria, similar scenarios should not be ruled out in the near future.

The most viable short- and long-term solution appears to be the repatriation of these combatants, ensuring prosecution in their home countries. Although this is challenging due to difficulties in proving involvement in terrorist activity, cooperation between the AANES and national justice systems could facilitate the process, enabling fair trials and mitigating future legal implications for the detainees.

Orwa Ajjoub is a senior analyst at COAR Global focusing on Syria and jihadism. He was previously an affiliated researcher at the Center for Middle Eastern Studies in Lund University, where his work focused on the ideological aspect of jihadi-Salafi groups and the internal dynamics of jihadi groups in Syria. 

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