The Repatriation of Foreign Fighters and Their Families: Options, Obligations, Morality and Long-Term ThinkingTanya Mehra LL.M, Dr. Christophe Paulussen 6 Mar 2019
As Islamic State (IS) loses control of its so-called Caliphate, the question on what to do with foreign fighters and their families has become more pertinent. The announcement of the US withdrawal from Syria in December, as well as Trump’s tweets mid-February that the US would release 800 fighters captured in Syria if its allies would not take them back, has led to even more urgency. The recent situation of Shamima Begum gave a face to the numbers.
The exact scope of those numbers, however, remains unclear. In a recent interview, Syrian Democratic Forces (SDF) spokesperson Kino Gabriel stated that Trump’s number of 800 concerned old information and that he estimated they were holding about 1500 fighters and more than 3000 family members in Syria. However, Human Rights Watch indicated that 1000 women and 2000 children were detained in Iraq, Syria and Libya combined. In Iraq, some 1000 foreign fighters are reportedly being held in detention. It is not known how many of the women were actively part of IS and enabling its atrocities, or ‘merely’ the wives of IS fighters. Most of the young children were born in the so-called Caliphate and are under the age of six years, with reports indicating that up to 75% of the Dutch and Belgian children currently in the region were born in Iraq and Syria.
In this Perspective we will discuss the issue of the (possible) repatriation of foreign fighters and their families, especially from Syria, addressing several options, and taking into account legal, moral and (long-term) security perspectives.
1. Leaving them there in the hope that they are prosecuted locally
The first option would be to do nothing and leave foreign fighters and their families in the situation they are in now, the thought being: they joined IS out of free will and should now face the consequences, including possible prosecution by the local authorities. Several countries, like France, have indicated that foreign fighters should indeed be tried where they have committed their crimes. However, it remains to be seen whether everyone now being detained in Syria and Iraq left at their own volition. This will especially be the case for the younger and more impressionable persons, in particular the children and undoubtedly for those who were born there.
Moreover, local prosecutions are very problematic. In an earlier Perspective, the possibilities but especially the challenges of prosecuting foreign fighters by the national courts in Syria and Iraq were already highlighted. The lack of transparency in proceedings, the use of the death penalty, limited to no access to defence counsel in Iraqi courts, the collapse of a properly functioning judiciary and the extensive practice of torture in Syria all indicate that foreign fighters and their families would not receive a fair trial, if they receive a trial at all. Prosecution of foreign fighters by the Kurds is also not a desirable option. The Kurds are not a recognised government and moreover, they are generally neither willing nor able to prosecute foreign fighters.
Against this background, and while realising it is the sovereign right of each territorial state to prosecute suspects for crimes committed on their territory, and while also realising that local prosecutions may be easier in terms of access to evidence and witnesses and more preferable for victims, Western countries that (claim to) uphold the rule of law should do their utmost to ensure that their citizens are tried fairly, which is usually not the case in the local courts. While investments in capacity building to increase the fairness of the local legal systems is to be welcomed, these will probably come too late for the people now in detention.
Another downside to local prosecutions is that fighters may not be sufficiently and thoroughly investigated and prosecuted. This could lead to their subsequent release, resulting in (possibly still dangerous) persons disappearing off the radar, as has happened recently with Shabazz Suleman. Additionally, people who are not prosecuted at all remain in a legal limbo, becoming extremely vulnerable to further radicalisation in the detention camps.
2. Leaving them there in the hope that they are prosecuted by an international ‘IS’ tribunal
Calls to establish an international tribunal under Chapter VII of the UN Charter to try IS fighters have also been made. It goes too far to delve into this in great detail, but here we would like to briefly mention a few major challenges, namely political difficulties to get support from all the Security Council members to create such a tribunal in the first place, legal complexities to determine mandate and the applicable law in order for it to become operational, and the general obstacles related to (a lack of) time, resources and cooperation. Furthermore a Tribunal that will only try IS fighters will be perceived as victor’s justice and not as impartial international justice. Indeed, several NGOs, like Human Rights Watch, have investigated and reported that not only IS members have committed terrorist crimes or other (including war) crimes, but also many of the other armed (oppositions) groups like Jaysh al-Islam, Hay’at Tahrir al-Sham, the Assad regime, the Iraqi forces, and the US-backed SDF
3. Actively preventing them to return home
Whereas the previous options of “leaving them there in the hope that things will sort out themselves” are characterised by a certain laissez-faire attitude, this stance involves a conscious effort from the side of the home country to actively prevent its (former) citizens from returning. Several States have stripped their citizens of their nationality, such as Neil Prakash from Australia, in an effort to block their entry back home. This measure is not only in violation of international law, it is also inefficient and even counter-productive as a counter-terrorism measure. Other countries will not revoke citizenship but use technical arguments to contest the existence of the initial citizenship. For example, although President Trump stated that European countries should take back their citizens, a few days later the United States indicated that Houda Muthana would not be allowed to return the United States because she was never entitled to US nationality in the first place.
The flipside of the coin is denying citizenship to children that are born in the Caliphate. In many cases the fathers have been killed and in some instances the whereabouts of both parents are unknown. Many European countries are reluctant to automatically recognise that these children are citizens of their country. This means it may be necessary to establish citizenship through a DNA test once the children reach the proper authorities (see the next option). It is highly likely that the costs for such a DNA test will be borne by the respective family. Other countries like the UK, Germany, and Belgium have already used DNA tests that were often paid by families to establish citizenship.
Now that Yago Riedijk, a Dutch foreign fighter who has been convicted in absentia, announced in the media that he would like to return home with his wife Shamima Begum, the discussion regarding the nationality of their child will undoubtedly be a topic of discussion in the coming days and weeks.
4. Not proactively repatriating them
Besides actively preventing the return of their citizens, there are also governments indicating there is in principle a right to return, but that this right does not mean that the government will then also proactively repatriate their citizens, as countries are free to determine the scope of their own national consular assistance. This is for example the stance of Norway. The Netherlands’ government has also indicated that these citizens will need to approach a Dutch diplomatic representation in the region themselves, after which a return under the supervision of the Royal Netherlands Marechaussee can take place. In our view, this option is comparable to showing a detainee the key to his or her cell – after all, most of the people we are talking about are detained and cannot leave their detention facilities – and then telling the person he or she is entitled to this key, but keeping it out of grasp. Moreover, it increases the chance that the effects of option 1 will materialise, which should be avoided. In this context, it should be mentioned that some countries adopt a more tailored approach than the categorical ‘no’ of the Netherlands, especially when it comes to children. Nonetheless, in some countries, courts are now starting to order the government to bring back particular individuals, including children.
In short: in our view, all four options mentioned above do not solve the problem, but stall or export the problem to other countries, where foreign fighters may be unfairly tried, tortured, executed, left in a legal limbo and at risk to radicalise further, escape justice, or disappear from the radar.
5. Actively repatriating and prosecuting them back home
The fifth option is active repatriation of the foreign fighters and their families, followed by possible prosecution. In our view, this is the only correct and viable option from both a legal, moral, and (long-term) security perspective.
In addition to the applicable international counter-terrorism conventions, several binding UN Security Council Resolutions – most notably 2178 (2014) and 2396 (2017) – impose a legal obligation on States to bring terrorists to justice and to develop and implement appropriate prosecution, rehabilitation and reintegration strategies for returning foreign terrorist fighters. Furthermore, the International Committee of the Red Cross has indicated that “States must investigate war crimes allegedly committed by their nationals”. This international legal obligation applies to both international and non-international armed conflicts.
Moreover, according to article 3 of the Convention on the Rights of the Child (CRC), States “undertake to ensure the child such protection and care as is necessary for his or her well-being” and the best interests of the child shall be a primary consideration. Other provisions of the CRC are also relevant, such as the rights to education and health that are not (sufficiently) being provided in the detention camps. Furthermore, the CRC requires States to protect children from all forms of physical and mental abuse and that States should promote both the physical and psychological recovery and reintegration as a result of any form of neglect, abuse, torture or armed conflict. All of this strongly suggests that States must repatriate and take care of the children rather than leaving them in the misery of the camps. Furthermore, the Vienna Convention on Consular Relations of 1963 stipulates more generally that States should provide assistance to their citizens, in particular safeguarding the interests of minors.
In a recent court case in Belgium the judge decided that this obligation also has to be upheld by Belgian diplomatic and consular services. The court ordered that Belgium should do everything in its powers to bring back six children and their mothers from detention camps in Syria. The judge ruled that the interest of the child should be upheld by all Belgian authorities, this includes the Belgian diplomatic and consular services. According to the Code of Consular Affairs Belgian citizens are entitled to consular assistance when they find themselves in extreme circumstances. The fact that the mothers have travelled to a war-torn country means that they may no longer be entitled to consular assistance but this does not mean the children should be denied assistance. However, recently the Court of Appeal in Brussels ruled that Belgium has no obligation to bring back the children and their mothers. This was not because the court refuted the reasoning of the lower court, but because another court already ruled on an identical request filed by the mothers.
Regardless, to date, only a hand full of countries have been actively repatriating foreign fighters and/or their families. So far Russia has flown back 27 children and Kazakhstan is actively repatriating its foreign fighters and families.
In addition to legal obligations, there are also moral obligations to repatriate and prosecute, namely to actually try to solve the problem, and to ensure that the dignity of IS’ victims is respected, by investigating what has happened. Moreover, from a moral standpoint, can we ‘dump’ the problematic products of our own society with other (less resourced) countries, including with the SDF forces who have already paid an extremely heavy toll in the fight against IS? The term foreign fighters perpetuates the notion that foreign fighters are not part of our society, but nothing can be further away from the truth. These foreign fighters are foreigners in Iraq and Syria, but they are our own citizens. As former Dutch Minister of Foreign Affairs Bert Koenders once said:
We keep referring to these people as foreign terrorist fighters. The uncomfortable truth is that they are not foreign at all. They may be foreigners in the countries where they are going to. But in reality they are our compatriots, our acquaintances, the classmates of our kids, the guys and girls we see in our supermarkets. They are part of our societies. Perhaps the only thing that’s foreign to us is their mentality.
Moreover, repatriation and prosecution is the best option from a (long-term) security perspective. Of course, it is not possible to guarantee 100% security and returnees may be implicated in attacks upon return, as has happened in Indonesia, but from a long-term security perspective a controlled return of foreign fighters and their families is more desirable than having foreign fighters released, escape prison and justice, join another terrorist group, fuel yet another conflict, or return unseen years later.
It goes without saying that foreign fighters and their family members should be carefully assessed in terms of risk to national security, to determine what kinds of tailored interventions would be appropriate. Prosecution is merely one of the many options available. In some cases it might be more appropriate to impose administrative measures on family members and monitor them closely. Rehabilitation and reintegration are going to be vital for returning family members, in particular children. Indeed, children are in the first place victims. The challenges dealing with children are unique, but valuable lessons can be learnt from dealing with child soldiers or with children from national socialist/fascist parties after the Second World War.
Various politicians have said that foreign fighters and their families in the camps are ticking time bombs and that it is going to be very difficult to prosecute them. Now, it may be true – as explained above – that some of the returning foreign fighters might pose a risk to national security but this certainly does not apply to all, as history shows us. A comprehensive risk assessment needs to be made before such sweeping statements are made. Moreover, the fact that prosecution may be difficult does not mean that foreign fighters and their families should not be repatriated.
Luckily, in the last couple of weeks, several European countries are reconsidering their policy towards foreign fighters and their families from former IS territory. The Netherlands, forced by court decisions, indicated to reconsider the repatriation of some individuals in specific cases. France would consider taking back their foreign fighters, including women and children on a case-by-case basis. Belgium announced earlier this year to repatriate children under the age of 10 years. However, even if the decision is made that repatriation is in order, several practical and diplomatic challenges need to be overcome. First of all, the security situation on the ground has to be taken into consideration and States will need to ensure the safety of their consular staff and that of the foreign fighters and/or family members. States may also have to enter into diplomatic negotiations with different authorities, ranging from the Syrian regime with which many countries have broken diplomatic ties, to the Kurds that are formally not recognised as a legitimate government. Finally, transit of these persons needs to be negotiated either through Iraq or Turkey, which can be tricky.
Furthermore, not all the countries might have the ability and resources to monitor returning foreign fighters and their families, especially if the sheer number is overwhelming. Developing and improving comprehensive prosecution, rehabilitation and reintegration strategies takes time and perhaps this is the biggest challenge, as solutions need to be found now.
It is true that prosecuting returning foreign fighters is challenging and has resulted in relatively short sentences in Europe, but this only underscores the need to strengthen international cooperation, help prosecutors build a solid case based on strong and admissible evidence and have a well-informed debate on the appropriate length of sentencing. As explained earlier, often foreign fighters are being prosecuted for membership of a terrorist organisation or preparatory crimes rather than for the actual crimes they have committed whilst being in Syria and Iraq. One of the reasons for this is that prosecutors face difficulties in obtaining evidence because they are unable to travel to war-torn areas. Neither can they rely on international cooperation with Syria and Iraq to collect evidence.
Battlefield evidence, also referred to as military evidence, is one if the options that could help prosecutors to build a solid case provided that it is obtained in full respect of the rule law and that the chain of custody is preserved. Although information collected on the battlefield by the military is not yet widely being used as evidence, some successful examples can already be identified. In the Netherlands, United Kingdom and the United States courts have relied on battlefield evidence to successfully prosecute terrorists. Mohamad Jamal Khweis was sentenced to 20 years prison for joining IS partly on the basis of an IS intake form recovered by the US military. Some States might need to amend their laws to provide the military with a mandate to collect information on the battlefield or to allow battlefield evidence as evidence in a court of law.
Last week Spain adopted a new counter-terrorism strategy that clearly acknowledges the evidentiary challenges and therefore proposes to develop mechanisms to allow information from the battlefield, such as documents, fingerprints from IEDs or mobile phones, to be used as evidence in court. To assist countries, UN CTED and ICCT are currently developing guidelines on this, but also the GCTF has adopted recommendations in September 2018 on collecting, using and sharing different types of evidence to prosecute terrorists. These recommendations, developed in cooperation with ICCT, tackle some of the challenges prosecutors face in collecting and using electronic and forensic evidence, but also how intelligence can be converted into evidence in a human rights compliant manner.
To conclude, despite the security risks, as well as the prosecutorial and reintegration challenges involved, in our view States have legal and moral obligations to take back their own citizens that are currently in Syria and Iraq. Moreover, it is our assessment that this will still be the safest option from a (long term) security perspective for all countries involved. However, we acknowledge it is definitely not the easiest or cheapest option and many challenges remain. The associated uncertainties and costs of bringing persons back, including the political cost of conveying an unpopular message, might prevent governments to go down this path. But sometimes, politicians need to be brave enough to do what is needed, despite the obstacles and to prevent worse. Not only with regard to the societies and lives that have been affected by the actions of foreign fighters and their families, but also in their commitment to principles that cannot be ignored out of convenience. If all countries are willing to take their fair ‘share’ of the problem by taking responsibility for their own citizens, we are already half-way there.
About the Authors
Tanya Mehra LL.M is a Senior Project Leader at the International Centre for Counter-Terrorism – The Hague. Her main areas of interests are international (criminal) law and rule of law approaches in countering terrorism, with a special focus on accountability of terrorism-related crimes, human rights implications of countering terrorism laws and the foreign terrorist fighter phenomenon.
Dr. Christophe Paulussen is a Research Fellow at ICCT, a senior researcher at the T.M.C. Asser Instituut and coordinator of its research strand ‘Human Dignity and Human Security in International and European Law’, and coordinator of the inter-faculty research platform ‘International Humanitarian and Criminal Law Platform’.