Enab Baladi’s investigation team.

Nainar Khalifa, Taym al-Hadj, Hibaa Shehadeh and Mohammed Hummos

 

“The Kurds opened the doors and asked us to leave the camp and then fled,” this is how two French women from ISIS families, who escaped from Ayn Issa refugee camp in Raqqa countryside, summarized the events that took place on Sunday 13 October when they suddenly found themselves outside the camp.

On that day, eight women holding French nationality, along with 25 of their children, were able to escape receiving help from civilians in the vicinity. The next day, Le Parisien newspaper managed to speak to the two women.

In their interview with the newspaper, the two fugitives complained about the position of the French government, and the authorities’ refusal to take them back and get them out of the camp, which was run by the Autonomous Administration of North and East Syria (NES). This has prompted France to send delegations to Iraq to discuss the prisoners’ fate, without reaching results on the fate of the women yet.

Following the Kurdish forces’ escape from the camp, the Autonomous Administration attributed the reason for these women’s flight to the withdrawal of camp guards from the area to be sent to the border to confront the offensive launched by the Turkish forces and the Syrian National Army (SNA). It also  stated that ISIS members managed to escape due to Turkey’s shelling, backed by the SNA.

The Autonomous Administration’s story was put into question by the US, as President Donald Trump said on October 14 that “Kurdish fighters in northern Syria may have actually released ISIS fighters to get us to intervene.”

Turkey, which has been engaged in a military operation in the area since 9 October, against the Syrian Democratic Forces (SDF), has vowed to prevent ISIS fighters from leaving north-eastern Syria. The Turkish president has offered to cooperate with home countries and international organizations to rehabilitate families held in Syrian camps.

Despite the fact that each party has tried to avoid handling the file of ISIS prisoners and their families in the north of Syria, the events which took place recently has brought the file into sharp relief. In this investigation, Enab Baladi tackles the file of ISIS prisoners in north-eastern Syria, their fate following the Turkish military operation, and international consensus on the future of the region.

The Prisoners

A thorny file involving all parties in the Syrian conflict

As soon as Turkey began its so-called Peace Spring military operation in the eastern Euphrates region of Syria, on 9 October, the SDF began to raise the international community’s concerns about ISIS prisoners held in several detention camps in north-eastern Syria, by making several statements warning the world that they may flee.

Thousands of ISIS fighters have been held in SDF prisons since they captured the city of Raqqa and areas of Deir ez-Zor countryside, where the terrorist organization had been deployed before 2017. Meanwhile, the Autonomous Administration in northern and eastern Syria allocated camps for families of ISIS prisoners of different nationalities.

Since the beginning of the Turkish military operation, the SDF focused its efforts on European countries rather than the US, as it considered that the latter had given the green light to Ankara to enter to the east of the Euphrates with the SNA.

As fighting intensified in different areas in north-eastern Syria, the SDF announced that approximately 800 members of ISIS fighters’ families had fled the Ayn Issa camp in Raqqa countryside.

SDF took advantage of the ISIS prisoners’ file by releasing such information. This opened the door to a blame game between local, regional and international parties with regard to responsibility for the prisoners.  At the same time, the context of the battle and the Turkish-US consensus forced some European countries to move to reclaim their nationals after they had previously refused their return.

Turkish pledges

The SDF accuses Washington of giving Turkey the green light to start Operation Peace Spring in the eastern Euphrates region.

On the ISIS question, US President Donald Trump tweeted on October 7: “Turkey, Europe, Syria, Iran, Iraq, Russia and the Kurds will now have to figure the situation out, and what they want to do with the captured ISIS fighters in their ‘neighborhood’.”

“Turkey will now be responsible for all ISIS fighters in the region who have been detained there over the past two years,” Washington declared.

In a statement published on October 12, the Turkish Foreign Ministry expressed its readiness to work with international organizations and countries, to which foreign ISIS fighters belong, in order to rehabilitate the fighters’ wives and children who are not involved in crimes.

The Turkish Foreign Ministry clarified the mechanism that Ankara could follow in dealing with the ISIS prisoners. The ministry indicated: “At this stage, we will keep ISIS fighters and their families, who will be held by Turkey inside the liberated areas in Syria,” according to Enab Baladi’s translation of the statement; stressing that the final solution regarding the file of ISIS fighters in Syria is to return them with their families to their countries of origin, where they will be tried and rehabilitated.

Pressure card

Rami al-Khalifa, a professor of political philosophy at the University of Paris, believes that the file of ISIS prisoners has shifted from the US, onto a new track. The main players in this file will be the Syrian regime, which seeks to take control of areas in the east of the Euphrates at the expense of the SDF, and the Turkish authorities, which is involved in a war in that region.

Regarding the mechanism by which Turkey could deal with the ISIS prisoners, in case the Western countries accept that Ankara receives them, al-Khalifa considered that Turkey will try to benefit from the ISIS file. However, he pointed out that Turkey will not be able to conduct trials for ISIS fighters as in Iraq.

Al-Khalifa pointed out that it is likely that European countries will accept Russia’s interference in the file of ISIS prisoners, with the prior knowledge that Moscow will also use those prisoners as a pressure card against the West.

European movement

On 17 October, the United States and Turkey reached an agreement to withdraw the SDF forces from the area where Turkey wishes to impose its influence (32 kilometers south of the Turkish-Syrian border in north-eastern Syria). This has led to a shift in the stubborn position of some EU member states regarding the return of their ISIS nationals and their families.

One day after the agreement, Belgium moved to evacuate its nationals from the detention camps in north-eastern Syria through the safe zone that Turkey is building along the border.

The Guardian reported on Friday 18 October that Belgian officials told the families of the ISIS detainees that they would try to take advantage of a ceasefire under the Turkish-US agreement to recover Belgian citizens affiliated to the terrorist organization.

According to the newspaper, other European countries, including France and Germany, tried to take advantage of the ceasefire, to recuperate ISIS fighters’ children and women, paving the way to other countries, such as Britain, to take similar moves.

The children

Unknown fate awaiting international consensus 

Thousands of ISIS families and children live in camps lacking  health and social care. The children have no identity papers, as their parents’ countries refuse to recognize them or even receive them.

Some small initiatives have been put forward by some foreign governments to bring back their nationals, involved with ISIS, and their families or even to bring the children of fighters back, opening a wide debate about the fate of those children and their families.

Up to the time of writing, only a few countries, which have a number of its nationals affiliated to ISIS along with their families, including Uzbekistan, Kazakhstan, the United States, Russia, Belgium, France and the Netherlands, have been prepared to repatriate them.

“Most vulnerable in the world”

Al-Hol camp in the countryside of al-Hasakah is home to the largest bloc of ISIS fighters’ families. There are about 4,000 women and 8,000 children from around 50 countries in the world, according to Kamal Akef, the spokesperson of the External Relations Office in the Autonomous Administration which used to run the camp.

According to Akef, the number of children and women who have so far been handed over to their countries is about 500, meaning that they constitute only 2 percent of the total number of those who are under the Autonomous Administration’s custody. Most of these are orphans, under the age of ten.

The United Nations children’s fund (UNICEF) has classified the children of foreign fighters in Syria as among the most vulnerable children in the world. UNICEF called for treating these children primarily as victims, not as perpetrators or criminals, and demanded every child’s interest to be taken into account while making any decision, including repatriation in accordance with international legal standards.

Regarding the procedures for handing over children from the al-Hol camp, Akef said that communication is done through the governments of the countries that want to formally repatriate the children. Akef explained that the process is only implemented when the concerned parties officially sign an agreement. He added that, based on the agreements made by these governments with the Autonomous Administration External Relations Office, the necessary coordination is carried out regarding the repatriation of certain humanitarian cases, including women proven not involved in the hostilities and with no evidence or conviction held against them, and orphans under the age of ten.

Ethical minefield

In his interview with Enab Baladi, the Director of Justice for Life (JFL), Jalal al-Hamad, asserted that keeping these children inside the camps the evasion of responsibility by origin countries by stripping them of their nationality will greatly affect these children and transform them into a real source of danger in the future. Al-Hamad called for adopting a realistic approach to dealing with this complex file, in a way that respects international law, on the one hand, and the privacy and rights of those children, on the other.

In principle, a child may not be separated from his or her parents, in particular his or her mother, in the first months or years of life since they are in dire need of care. Thus, if the child is separated from his family, in case the concerned states repatriate the children without their mothers, this will have a significant impact on them, according to al-Hamad.

However, while preserving the rights of children and making sure to treat them in a humane way, it is necessary in these cases to keep them away from the places in which they grew up and witnessed instances of violence and extremism, and to place them in safe spaces in order to allow them to grow up in a healthy environment.

Al-Hamad explained that in many cases, the mothers of these children, who belong to ISIS, are accused of committing, inciting and participating in crimes, and therefore must be punished according to the laws of their countries of origin. This will lead to further difficulties for the children.

The director of the JFL stressed the need to provide psychological support and dialogue with these children and their mothers, in an attempt to contain the large amount of violence that they have grown up to internalize in war zones, which necessitates their removal from the camps where they are located.

The families

Between jails and camps in northeastern Syria

During its battles to expel ISIS, the Autonomous Administration allocated temporary detention centers, including schools, old government buildings and prisons belonging to the Syrian regime, for thousands of ISIS fighters and their families, along with thousands of displaced persons from areas controlled by the terrorist organization.

The SDF maintained the confidentiality of its prisons and only announced the adoption of “humanitarian standards” in its centers and camps, pointing to the heavy burden imposed by large numbers of detainees, estimated between 10,000 to 12,000, including about 2,000 foreign prisoners from 50 different countries and 4,000 Iraqi prisoner.

The ISIS fighters’ families were deposited in ten camps, under deteriorating humanitarian conditions, provoking criticism by several human rights and humanitarian bodies.

Prisons

According to the New York Times, citing US officials, the US military has provided about 1.6 million USD over the past year to help increase the security of seven prisons where ISIS fighters are held, the locations of which have not been determined.

The Washington Post reported that there are 20 prisons scattered across the northeast of Syria, 15 percent of which are in the safe zone that Turkey and the US have agreed to set up at the Syrian border.

Some of the centers allocated to detain the fighters were old schools with fortified walls in order to increase security, such as the facilities set up in Ayn al-Arab and Ayn Issa in 2017, which US lawmakers visited in mid-2018 to oversee the detention conditions.

The New York Times reported that American Special Operations Forces used to visit the prisons multiple times a week to offer expertise about how to secure them and train the guards.

The Hasakah Central Prison is the most prominent detention center containing ISIS prisoners, housing 1,000 detainess. The United States provided 750,000 USD for its renovation. It is a three-story detention center, expanded in five directions, with 39-bed cells, each three stacked on top of each other. Its walls were painted white after they were black, and surveillance cameras were installed.

The New York Times cited Adnan Ali, a warden at the prison, in July 2018, saying that he did not want Hasakah to become a “school for terrorists,” so he prevented the detainees from getting certain religious materials and collective praying was banned.

He added that he would treat prisoners as “people,” unlike what happens in regime and ISIS prisons. He would also allow them to wear ordinary clothes and have access to television and books. In addition, the families of Syrian prisoners could visit them.

However, a visit by American TV channel CBS to a SDF-run prison in September showed a different picture of what these facilities actually looks like. The channel showed overcrowded prisoners wearing orange uniforms in cells that did not include any means for comfort, in an unspecified facility, which the channel said included 5,000 prisoners.

Camps

The camps, which include tens of thousands of families displaced from ISIS-controlled areas, were not in a better condition but their needs were more evident as more than 30 humanitarian and relief organizations are involved in them.

According to The New York Times, there were about ten camps, most notable of which is al-Hol camp, along with Ayn Issa camp, located in south of Tell Abyad. The latter was taken over by Turkish forces and National Army factions during their advance on 13 October, causing the escape of 785 of the camp’s estimated 13,000 residents (according to the UN’s REACH initiative).

The camp was opened on November 11, 2016, by the SDF to receive IDPs from the areas of Raqqa during the “Euphrates Anger” operation against ISIS.

Located in the far north-east of Syria, al-Roj refugee camp was set up in 2015 to receive refugees fleeing the battles against ISIS in Iraq, with a population of 1,700, according to a survey conducted by the REACH initiative in May.

Al-Hol

Located 60 kilometers away from the Turkish border east of al-Hasakah, the camp was established in the mid-1990s to house five thousand Iraqi refugees. It was then reopened in mid-April 2016 by the Autonomous Administration.

By the end of 2018, the camp had no more than 10,000 people. However, this number doubled several times to reach 73,000 people at its peak. This happened during the four months of the last battle between ISIS forces and the SDF, to take control over the village of al-Baghuz, ISIS’s last strongholds in Syria.

The camp was initially set up to accommodate only 41,000 refugees, causing “huge pressure” on the 35 humanitarian organizations working in it and creating “appalling” and “inhumane” conditions, according to the testimony of UN High Commissioner Paulo Pinheiro, who conducted an investigation about the camp at the beginning of September. However, other UN organizations pointed out that the camp’s conditions were gradually improving.

The camp is guarded by 400 of the Kurdish security forces (Asayîş), according to the head of the SDF, General Mazloum Kobane, in an interview with the The Washington Post on October 4.

More than 11,000 foreign women and children are being held in the “annex” of al-Hol camp, in “appalling” conditions, including “overflowing latrines, sewage trickling into tattered tents, and residents drinking wash water from tanks containing worms,” according to ​​Human Rights Watch. Moreover, according to aid groups and camp managers, children at the camp are dying from acute diarrhea and flu-like diseases. According to a UN report issued on September 11, regarding the conditions of al-Hol, at least 390 children died in the camp, due to malnutrition or lack of access to necessary healthcare.

The Autonomous Administration’s calls have thus far fallen on deaf ears in origin countries, to repatriate their citizens, as only 2,640 people have been repatriated since June, according to OCHA statistics. These include more than 1,230 Syrians and 1,400 women and children from non-European countries.

The law

Different scenarios on how to try ISIS fighters in Syria

Everyone agrees on the necessity of bringing ISIS fighters to justice on charges of belonging to the extremist group and committing crimes against humanity. There are, however, numerous scenarios for these trials, which are supposed to be conducted in accordance with international law and be fair and credible.

In this context, calls are made for the creation of a special international tribunal to try ISIS members, similar to the Nuremberg Tribunal, which was established after the World War II to try Nazi war criminals. Others called for transferring the file to the International Criminal Court.

In contrast, some demanded that local courts in the countries from which ISIS members come, or in Syria, take the mission of trying these members. This raises questions about these countries’ willingness to repatriate and try them, the authority that will conduct these trials on Syrian territories amid the multiplicity of the dominant parties, and the availability of the necessary infrastructure, security services and legal expertise for these trials.

These trials are expected to lead to justice for the victims, taking into account their active participation in the preparation of the judicial record of crimes, leaving no room for loose trials in which all members of the group, regardless of their participation and violations, are equal. This will contribute to success of accountability and community reconciliation efforts and pave the way for the reintegration of ISIS members into the communities in which they will live in the future.

What is the international law’s stand regarding the trial of ISIS fighters? And what are the available options and the applicable scenarios under the current circumstances and developments on the ground?

War prisoners

A well-informed human rights activist and international law expert on the issue of ISIS prisoners pointed out that under international humanitarian law, ISIS prisoners are classified as war prisoners, which stipulates some protection for them and imposes duties on the parties controlling the areas where they are located.

The activist, who who spoke to Enab Baladi on condition of anonymity, said that the Turkish-led military operation in the north-east of Syria, where ISIS prisoners are held, adds further legal complications regarding the accountability of ISIS fighters, as questions are being raised about the Turkish government’s responsibility in this regard, and what it might do in case these prisoners managed to escape, in addition to the US’s responsibility in this file.

Local courts

The activist pointed to the responsibility of the origin countries to prosecute their citizens. However, many of these countries are generally rejecting to repatriate their ISIS citizens and threatening to withdraw their nationality.

The problem of repatriating foreign ISIS nationals is a thorny issue in Western countries, which are justifying their reluctance by security concerns and the difficulty of determining what their citizens committed during their stay in Syria.

The Turkish military operation has raised fears of ISIS prisoners’ escape, or the reactivation of its dormant cells. Several European countries have expressed serious concern over the fate of foreign fighters, while France and other countries are considering the possibility of transferring them to Iraq for trial.

With the change of the map of control in the areas where ISIS prisoners are held, new problems arise. Namely, the Syrian regime’s control over some of these areas within the framework of an agreement with the Autonomous Administration. This means, according to the activist, that the regime will possibly take the responsibility of ISIS prisoners in those areas. This option generates legal problems similar to those already in trials in Iraq under the Terrorism Act because of a similar law in Syria.

One of the problems is the implementation of the death penalty. This leads to the exclusion of any cooperation or coordination with the regime by other countries, which reject the death penalty and which have nationals among the ISIS prisoners.

Autonomous Administration courts

Regarding the option of conducting these trials in a court inside Syria, the director of the Syrian Legal Development Program (SLDP), Ibrahim Olabi, believes that this possibility is legally questionable, as there is some ambiguity regarding the establishment of courts by armed factions such as the YPG. This would raise questions about the legitimacy of such a court if it is not convened by the government or is not established in an “official” manner, amid the absence of a clear interpretation of the word “official” in the law.

Olabi drew attention to a new precedent for a court in Sweden that has approved the right to establish courts by armed factions, however the matter remains unclear.

The courts that belong to the government of the Syrian regime are recognized as legal to a great extent, according to Olabi, as well as the jurisdiction of the courts of the fighters’ countries of origin, in case they wish to try them. Olabi further explained that this depends on the existence of an agreement between Syria and European countries to extradite wanted persons or criminals, which is limited or absent, and even where it exists, it is currently suspended.

The international mechanism

In addition to the aforementioned scenarios, accountability can also be possible through the International, Impartial and Independent Mechanism (IIIM), which has the competence to collect and preserve evidence and prepare files on serious crimes committed in Syria, including violations committed by ISIS fighters.

The IIIM was created to assist in the investigation and prosecution of persons responsible for the most serious crimes under a resolution of the United Nations General Assembly in December 2016, bypassing the impasse in the Security Council, which makes it a unique accountability mechanism.

The mechanism collects and preserves evidences of violations in Syria, in the hope that they will be used in an appropriate court. It has a team of investigators, lawyers, information and evidence management staff and analysts.

International courts

With regard to international trials of ISIS prisoners, the human rights activist explained that the International Criminal Court does not have jurisdiction to try these prisoners, but it may have the jurisdiction of to investigate them.

The activist pointed out that there are calls for the formation of an international tribunal to try ISIS fighters, similar to the Nuremberg Tribunal that tried the Nazis. In this case, the court would only have mandate to to try ISIS prisoners suspected of committing the most serious crimes that are classified as “war crimes,” “crimes against humanity” and “genocide.”

The main problem in this scenario is related to obtaining evidence and the difficulty of proving the involvement of the suspects, which is one of the reasons why European countries cannot prosecute the perpetrators in their own countries.

International Criminal Court

The court is the first international independent judicial body. It was established in 2002 under the Rome Statute, signed in 1998, as the first court capable of trying individuals accused of war crimes, crimes against humanity and genocide around the world.

The number of signatories to the law establishing the court reached 121 countries in 2012. The court is facing sharp criticism from major countries of the world, including the USA, Russia, China and India, which refused to sign the Rome Statute or later withdrew from it.

Jurisdiction nightmare

The director of the SLDP ruled out the possibility of trying ISIS prisoners in international courts at present, since there is no special international tribunal for ISIS members, and the having no jurisdiction over the matter.

Olabi stressed that some parties are making an attempt to convince the prosecutor of the ICC to prosecute persons belonging to ISIS whose nationalities belong to the signatories of the Rome Statute of the court, as the latter has no power unless the concerned country is a signatory to the statute. However, the court refused to decide on the matter, considering it highly selective, and that its mandate is limited to the prosecution of major criminals.

He also pointed out that according to international law, there is no authority of a given court over another court, as each one has its specific jurisdiction, whether local courts in Syria, courts in ISIS fighters’ countries of origins, or international courts. Consequently, options of local or in-country of origin trials are the most feasible for the time being.