SDC cannot release ISIS militants without trial
“Simply freeing the militants …leaving the long-suffering people of Syria to continue to face the threat of these organizations is inhumane, and legally and morally irresponsible.”
The following article was initially published by the Syrian Democratic Times.
Following the official end of ISIS, the north Syria region of Rojava faced a new, unprecedented problem in the form of thousands of captured ISIS militants and their families — including children.
In the wake of the death of ISIS, the Syrian Democratic Forces (SDF) made repeated international calls for the repatriation of international ISIS members. Repeated calls for the international community to provide funding, legal aid, and expertise and support for addressing the post-ISIS stage have remained unanswered.
The United Nations (UN) High Commissioner for Human Rights Michelle Bachelet recently stated that the Islamic State captives “must be tried or freed.”
The trouble is that the captured ISIS militants number over 50,000. The solution is only easy in rhetoric.
The SDF and the People’s Protection Units (YPG) and Women’s Protection Units (YPJ) forces have been lauded for their humane treatment of the captured ISIS terrorists. Their strong moral and ethical adherence to international law — in regards to humane treatment of prisoners of war — set them apart in the violent fight against a terrorist organization known for its brazen disregard for human rights.
Now, in the wake of the international silence and inaction in addressing the captured ISIS terrorists, the UN has made a politically illiterate and ineffective statement. It can only be assumed that the UN is criticizing the SDF for their lack of resources and capacity in expediently addressing the captured ISIS militants.
While neighboring countries’ leadership, such as the Iraqi government, have resorted to putting all captured ISIS members and their wives on trial — and promptly executing many of them — the SDF have shown restraint by not implementing a similar process, despite what some may say is the popularity of such an option.
Alarmingly, the international community has failed to repatriate the children of foreign ISIS militants, leaving them in a stateless limbo. According to some figures, there are over 29,000 children of foreign ISIS militants in Syria, with about 20,000 from Iraq. The tragedy is that many of the mothers of these children appear loudly and proudly unrepentant for the crimes caused by their husbands and their own willing participation and material support, which continues to foment anti-ISIS repatriation. Their children continue to suffer as a result.
The UN is making such a call for a speedy trial or release of captured ISIS militants because they are viewing history from the lens of the colossal failure of the 2003 invasion of Iraq. The 2003 disastrous de-Ba’athification policy implemented by the Coalition Provisional Authority, the provisional government of Iraq, is the main reference point here. The de-ba’athification involved the removal of all former official card-carrying members of Saddam’s Ba’athist party, numbering in hundreds of thousands. This policy effectively removed many seasoned civil servants and created a government and power vacuum widely cited in the subsequent deterioration of security and sectarian conflict — and eventually, the rise of ISIS itself.
Yet there are clear distinctions between the cases of 2003 Iraq and 2019 Syria. On the one hand, the Ba’athists were all Iraqi citizens largely from the Sunni-Arab sect. The de-Ba’athification, therefore, further cemented Iraq’s existing ethno-religious cleavages. The upper echelon of the party should have been subject to legal repercussions for the important and necessary process of post-conflict justice and rehabilitation for the traumatized people of Iraq. The average card-carrying member of the party, however, should have been carefully recycled back into the governing institutional machinery in order to avoid radicalization.
By contrast, many of the captured ISIS militants are non-Syrian citizens, not only from the West but across the Middle East and Africa. While the militants — the tools of the ideology that formed into ISIS as a physical organization — are currently in captivity, the sources of support for the ideology remain.
Another important distinction lies in the fact that many of the lower echelon Ba’athist party members were official card-carrying members as a result of the threats of persecution — or the allure of economic benefits provided as members of the ruling party. Many were willing to be re-integrated back into society and live peacefully within their communities. This specific group only became radicalized following the US and interim government’s arbitrary and lengthy imprisonment without trial, in which they came into contact with radicalized elements. ISIS founder Abu Baghdadi is a clear example of this case.
In contrast, the militants of ISIS are fully radicalized and are at the end of the radicalization spectrum. They cannot possibly be further radicalized, though they can be rehabilitated with appropriate measures and expertise.
The ISIS citizens of Syria, if released, face a country still at war. Any of the released ISIS militants can easily find a jihadist organization to re-integrate into. Various Salafist factions and groups allied with al-Qaida — such as Al-Nusra Front, Jabhat Fateh al-Sham or Hay’at Tahrir al-Sham — continue to openly operate in Syria.
Aside from these organizations, reports claim that Turkey has actively recruited ex-ISIS members into its Free Syrian Army (FSA) groups as part of Turkey’s ongoing terrorism inflicted on the people of northern Syria, especially the Kurds in occupied Afrin. Needless to say, there are plenty of options available for released ISIS militants to re-organize.
While the prosecution and trial of ISIS militants are being fine-tuned in places like Nineveh’s counterterrorism court in Tal Kayf, north of Mosul, there is still much legal limbo and uncertainty about the appropriate treatment of these captives.
With the refusal of United Kingdom courts to repatriate their ISIS militants, such as in the infamous case of British citizen El Shafee Elsheikh and Shemima Bugan, the situation has become even more complicated. This leaves the full response to addressing this serious problem solely on the shoulders of the already over-stretched SDF.
The European Union (EU) governments have widely avoided international obligations largely because of the legally unprecedented nature of the problem reminiscent of the de-Ba’athification and the capture of Saddam Hussein and his subsequent trial and execution. Aside from the difficulty of proving crimes committed in war-torn Syria, the issue of imprisoning the ISIS militants and the threat of radicalizing fellow prisoners remains. Further, there are many fears of fuelling talks of Islamophobia, and remaining global discomfort resulting from the Abu Gharib and Guantanamo Bay fallouts.
Certainly legal problems persist. However, simply freeing the militants when there are a myriad of options towards jihadist groups in Syria, leaving the long-suffering people of Syria to continue to face the threat of these organizations, is inhumane, and legally and morally irresponsible.
At the same time, keeping these militants in camps where security can be lax or challenged is also extremely dangerous and should be a short-term measure. For this reason, international funds and support is urgent. This will facilitate the creation of secure prison facilities that will allow the prisoners to be treated humanely, and will comply with international law. The SDF, having faced a lengthy war with ISIS — in which more than 10,000 fighters were lost — and having been the main actors responsible for ending ISIS, having lost over 10,000 fighters in this war, while facing an increasingly aggressive Turkey and its invasion of Afrin with jihadists, have difficulty funding the necessary construction and courts. They also lack the legal expertise required to do so. International funding and support is essential in this process.
The legal options should involve rehabilitation, imprisonment, and repatriation. This process requires international responsibility from the states involved but also from international organizations such as the United Nations, European Union, and the International Criminal Court. Likewise, this is a lengthy process that will require international legal, counterterrorism and security experts.
Easy solutions such as simply releasing the militants back into society should be avoided at all costs. Such solutions are dangerous, ill-informed, and lack awareness of the dangerous security and political terrain of Syria. Moreover, once again, it would leave the long-suffering people of Syria alone on the frontlines to face the removal and elimination of the ISIS threat.