Many countries have refused to repatriate ISIS fighters to face justice at home, leaving Kurdish authorities to find a solution.
After months of deadlock, the Kurdish government will begin trials of foreign ISIS members, a Syrian Kurdish official said after a meeting with the Finnish government.
Non-Syrians jailed in the Kurdish-led Autonomous Administration of North and East Syria, also known as Rojava, will be tried from next month – with or without the help of their home countries, said Abdulkarim Omar, co-chairman of the authority’s foreign relations committee.
The announcement follows a meeting between a delegation from the Syrian Kurdish committee and the Finnish Ministry for Foreign Affairs at the end of January in Finland’s capital Helsinki.
Mr Omar stated in a video posted on Facebook last week that the administration had asked for help from Finland to establish the special court.
The countries with ISIS members on trial would have to support the administration with establishing the courts, he said.
“It requires an international solution… this was the basis of our relationship with the international coalition against ISIS and we have to solve it together,” Mr Omar said.
“These ISIS members must be tried, and the international community must assist us with this, continuing this relationship.”
Finland has expressed its support for the creation of a special court in north-east Syria for trying foreigners. Since the fall of the last ISIS-controlled area in Syria last year, most governments have refused to repatriate their nationals who joined the militant group and now languish in prison camps.
The announcement comes after repeated calls from the Syrian Kurdish administration for governments to take back citizens who travelled to join ISIS, or for the UN to set up an international court in north-east Syria.
About 1,000 male foreign ISIS members have been held in overcrowded prisons in north-east Syria since ISIS’ last stronghold in Baghouz was captured in March by the US-led coalition and its allies, the Syrian Democratic Forces.
The SDF, the Kurdish-Arab militia that led ground battles against the group, has said it cannot continue to secure ISIS prisoners without assistance. The force says its ability to protect the prison camps was severely damaged after US President Donald Trump withdrew American troops from Syria and approved a Turkish invasion in October.
A further 9,500 foreign children and 4,000 ISIS-affiliated foreign women are being held in camps, including in Al Hol, where poor conditions are fuelling the spread of rampant extremism.
Several breakouts at the end of last year have contributed to concerns about the security of detainees in the camp. But the proposed trials will not include the Al Hol population.
The administration is also calling on international lawyers and observers to help them with court procedures.
International human rights lawyer Clive Stafford Smith told The National that while foreign governments have acted in a “reprehensible way” so far, international lawyers would be pleased to help the Syrian Kurdish administration hold fair trials.
“What we cannot have … is a long term Guantanamo-on-the-Euphrates where prisoners are held indefinitely without charges or trial… we have to have some structure to allow due process of law.”
He said there was no restriction on any government entity, including the Syrian Kurdish administration, which is not a recognised state, setting up a legal system to try war crimes, as long as it complies with international standards.
“There is no need for the home country [of ISIS members] to agree to the system, any more than the Germans had to agree to the Nuremberg Tribunals after World War 2,” Mr Smith said.
“From what I know of them, the north-east Syrian authorities are likely to insist on procedures that are much better than exist in many of the 53 countries the prisoners come from… [such as] places like Kazakhstan.”
The administration has already tried 6,000 local ISIS members using a version of Syrian government law updated to remove the death penalty and enshrine the right to freedom of expression and opinion.
The law criminalises any act “aiming to spread panic, terror and chaos or to disrupt public security,” supporting a terrorist organisation, firearms attacks, bombings, abduction and the formation of unlicensed militias.
Sentences could range from one year for small-scale work under ISIS to life imprisonment for those who have committed crimes against humanity, the Rojava Information Centre said. Front-line fighters could receive up to 20 years, while someone coerced into working as a rubbish collector or a school driver, for example, would be eligible for a much shorter sentence.
The Kurdish-run courts say they try to encourage re-education and de-radicalisation in the long term, rather than the heavy-handed retribution documented in Iraqi terrorism courts, which have been criticised for flawed proceedings against ISIS suspects.
Currently, the People’s Court of North and East Syria does not meet international standards – there are no defence lawyers and appeals cannot be filed – though international experts are expected to help rectify this.
Letta Taylor, Human Rights Watch’s crisis and conflict programme senior researcher, said countries with nationals on trial should monitor proceedings closely to ensure they comply with human rights law.
“This means, among other key issues, that the trials must be presided over by judges and that the defendants must have adequate access to counsel and have the right to appeal,” Ms Taylor said.
“It means that even before charges are [handed down], detainees are brought before a judge to give them the opportunity to challenge their detention.”
If the foreign men affiliated with ISIS face trial in north-east Syria, Mr Smith expects that some would be acquitted in fair proceedings or receive a sentence they have already served since their detention began.
“[This] means they would be eligible to be deported back to their countries of origin,” he said.
While foreign governments have refused to take back ISIS members to face trial in their home countries, the reaction to accepting them after they have been tried, acquitted or served a sentence in north-east Syria remains to be seen.
Once deported, they will not face trial in their home countries after serving time in Syria due to the ‘double jeopardy defence’, which prevents a person from being tried on the same charges twice.
The administration has stated that trials would begin in March, though it’s uncertain whether courts will be ready by then.
Finnish Foreign Minister Pekka Haavisto has reportedly promised to pass on the decision by the administration and urge support from other European Union member countries.