Following the announcement by the Kurdish-led Autonomous Administration of North and East Syria (AANES) that it plans to begin putting some of the estimated 2000 foreign ISIS fighters in its care on trial, Medya News convened an expert panel to ask whether the proposal could work and what role international powers could or should play if the AANES goes ahead with the proposal.
Attendees heard from Human Rights Watch (HRW) Associate Crisis and Conflict Director Letta Tayler, former International Coalition to Defeat ISIS spokesperson and Newlines Institute Senior Non-Resident Fellow Myles Caggins III, and Democratic Union Party (PYD) Co-Chair Saleh Muslim, a leading Syrian Kurdish politician.
In comments echoed by other panellists, Tayler described the AANES proposal as currently representing ‘the only offer on the table.’ Emphasising that the international rights watch dog HRW did not take any formal position on the question of a juridical solution to the ISIS detainees, she called for the US-led Coalition to Defeat ISIS and detainees’ country of origin to assist AANES in meeting the priority need for due process for ISIS detainees.
It was possible the US would begin to fund ISIS detention centres in either Syria or Iraq as a partial solution to the crisis, Caggins added, while also laying out proposals for ISIS prisoners to be tried on the basis of criminal charges by Syrian or international judges.
Opening the discussion, Muslim reminded listeners that the AANES’ military wing, the Syrian Democratic Forces (SDF), led the defeat of ISIS on the ground as the key local partners of the US-led International Coalition to Defeat ISIS. Since then, the SDF and associated security forces have been holding third-country national ISIS fighters from around the world, with the current population estimated at around 2000 individuals, alongside around 10,000 Syrian and Iraqi ISIS fighters.
Addressing the urgent need for a justice mechanism to respond to the urgent security threat, and the legal and humanitarian burden posed by these ISIS detainees, Tayler said that “the AANES proposal is the only offer on the table … in my view it is because most of these detainees’ countries of origin, as well as the US-led Coalition against ISIS, have been largely content to ignore the illegality of this massive detention crisis, with global ramifications, with the fates not only of ISIS suspects but also their children in the balance – children who never chose to live under ISIS and who make up the majority of the detainees.”
“Our position is that all detainees held as ISIS suspects and family members in northeast Syria should have meaningful access to due process, and promptly, to contest the necessity and legality of their detention. Our concern is more about how the trials are conducted than where. In an ideal world, trials are held within the jurisdiction of the crime committed. But northeast Syria is a complex war zone, meaning that trials could be risky for judges, prosecutors, defence lawyers, and the detainees themselves, and the AANES is not a state, which could potentially complicate legal challenges to convictions.”
Caggins added that potential trials could and should be conducted according to high legal standards, likewise calling for cooperation from international and regional bodies. “Something needs to be done. These tribunals, as proposed by AANES are something. The tribunals can be done in a way that’s consistent with international law, where accused ISIS terrorists would have the right to counsel, not be forced to make any incriminating statements, and any statements gained by torture would be inadmissible. The judges would be regular judges previously sworn into Syrian courts, or international judges for a hybrid tribunal,” he said.
This could be made easier by trying ISIS on the basis of conventional crimes committed as private individuals, rather than as members of a formal army subject to distinct international law, Caggins suggested. “ISIS members should be treated as people who committed crimes – a criminal gang, committing ‘common’ crimes like murders, rape, terrorism,” he said. Asked what steps might be expected from the Coalition or the US toward resolving the crisis, he said there was “a big question about building a proper detention centre for ISIS… I predict we’ll see that the US will lean toward making a decision to fund detention camps in Syria, sooner rather than later.”
The panel also looked at the significant obstacles facing any potential legal process for ISIS detainees in the region. Tayler summarised these significant obstacles: “What of the rights of women and children, the vast majority of detainees, to contest their detention? Where will those convicted serve their prison terms? Will they be sent back to the same squalid prisons that already fall short of minimum international detention standards? And what of the innocent? Will their countries take them home?”
AANES officials have not yet given an official date for the start of trials for foreign fighters, but indicated that they plan to release more information in the near future.