The Kurdish-led Autonomous Administration of North and East Syria (NES) seems to be determined to establish a special tribunal based in north-east Syria to put the suspects of the so-called Islamic State group (ISIS) on trial after its failed attempts to pressure States to take back detained foreign fighters and ISIS supporters and despite the challenges, the NES might face in setting up a fair impartial tribunal.

The Social Justice Council of the Syrian Kurdish-led NES is establishing a special tribunal to prosecute foreign ISIS members, whose home countries refuse to allow their repatriation and prosecute them, councilmember and lawyer Faisal Sabri told Al-Monitor on 25 March

Sabri said that the council will set up public trials for them in accordance with international laws and human rights covenants and charters.

Sabri pointed out that this step was taken after the European countries refused to respond to the request of the Kurdish-led NES, forming an international court on Syrian soil and sending international judges to try ISIS detainees.

Sabri continued that the date for the commencement of the public trials has been scheduled yet, adding that the Kurdish-led NES called on Eu and Arab countries to accept the return of their nationals including ISIS children, orphans, wives settling in al-Hol IDP camp because “they have been imposing a threat in the camp, which has turned into a hotbed of terrorism.”

On 23 February, Fener al-kait, co-head of the NES’s foreign affairs, also called on the international community to provide support and legal advice for the trial of 12,000 ISIS fighters, including 3,000 foreigners of 50 different nationalities.

Several European and Western countries refuse to take back their own citizens—who spent years fighting alongside the ISIS group—from the detention centers of the NES and to take the foreign families of ISIS members held at the camp of the Kurdish-led NES for fear that they may present a significant security risk to them in the long term.

The uncertain fate of the former ISIS foreign fighters and their supporters held in the Kurdish prisons generates an extensive controversy amid lack of providing any solutions to the issue.

Countries support and others obstruct the creation of the special tribunal to try foreign ISIS members

Zozan Alloush, coordinator of the Kurdish humanitarian affairs in “the Syrian Democratic Council” in north-eastern Syria, highlighted that the biggest challenge to the formation of this particular tribunal—despite the existence of many domestic and international challenges—is the global position and the mechanism of the countries concerned to deal with the file of the ISIS members as a whole; on the one hand, they refuse to bring their own ISIS members back home, on the other hand, they reject to conduct any trials against them.

Alloush, who was contacted by Enab Baladi via email, stressed that even though several states refused to create a special tribunal to try ISIS members, many other countries expressed their willingness and readiness to support the tribunal, indicating that they will gain international public opinion.

Regarding the reason for announcing the establishment of the court at this time, Alloush clarified that the creation of the tribunal to prosecute ISIS members is not a new one, but it has been underway since US President, Donald Trump announced the defeat of ISIS on the ground; many meetings and encounters were held inside and outside Syria.

Alloush called upon the international community to deal with the file of ISIS members captured in the detention centers of the Kurdish-led NES and the formation of the special court for their trials very seriously, given their considerable security threats and complications.

The pros of setting up a special tribunal on Syrian soil

Alloush clarified that setting up public trials to prosecute ISIS fighters in Syria, not in their own countries, has numerous advantages, especially the forensic shreds of evidence that exist on Syrian soil in addition to the availability of witnesses and affected groups; mainly the Syrian people.

Alloush considered that conducting these trials would constitute a form of justice for the families of the victims and those affected, and although nothing will compensate for the losses that occurred, seeing the criminal while he is being tried for what he committed is generally relieving, as expressed by Alloush.

Regarding the guarantees that the trials will be fair, Alloush indicated that the NES proposed a partnership project for many international bodies, to be involved in the trial phase of the tribunal’s work, and to take the role of oversight.

Alloush emphasized that the NES will hold public and announced trials and that the NES will ensure compliance with international standards in terms of transparency and other matters.

Fair trial standards

The director of the local human rights organization Justice for Life, Jalal al-Hamad, spoke to Enab Baladi about the conditions that must be available in this court to ensure fair trials.

Al-Hamad emphasized that the right to a fair trial is set in the “International Bill of Human Rights” in particular, and in the “Universal Declaration of Human Rights” and “the International Covenant on Civil and Political Rights.”

He indicated that the judicial authority supervising these trials must be independent, that the judge can do his jobs without any pressure, and that he has no preconceived opinion in any case brought before him.

Al-Hamad added that the court should be independent and subject to no authority other than the law that should be clear, and that the detainees should be able to know all their rights, and that the confessions shall not be obtained through torture. In addition, the detainees shall enjoy the right to defense, consulting with an attorney and the defense authority, and discussing all evidence and testimonies of witnesses in full during the trial. The detainees shall also appeal against first-degree judgments, and the accused is entitled to the presumption of innocence until proven guilty, as well as all detainees shall be equal before the court and law.

Judicial reform

The director of the Syrians for Truth and Justice organization, Bassam al-Ahmad, considered that “ensuring that these trials are fair, transparent, impartial and independent is what constitutes the biggest challenges facing “the NES,” He continued”as we are not talking about a years-old legal structure but rather about regions emerging from war and from the control of the so-called Islamic States” expressing doubts about the ability of the current judicial structure to provide these trials.

Al-Ahmad, in an interview with Enab Baladi, indicated that it is essential to reform the judiciary and reconstruct it transparently before starting the trials against foreign fighters and ISIS supporters so that the judiciary meets international standards for fair trials, as there is an extensive range of rights, procedures, and standards that must be available in these courts.

Learning lessons from past experiences

On these standards and procedures for the creation of a special tribunal to try ISIS foreign fighters, the director of the “Justice for Life” organization expressed his fear; he sees that “the Social Justice Council has no freedom to make decisions and issue its rulings, but that there is domination by military and security authorities on it; besides, the judges who work in the courts of the NES do not have the ability to make judgments, as well as these judgments, do not have executive power.”

For his part, the director of the “Syrians for Truth and Justice” organization expressed his hope that the trials would take place if this special tribunal was set up in a neutral and fair manner, and on the basis that the NES learned from the Iraqi experience in the field of trying the ISIS elements and redressed the criticisms leveled against it.

The Iraqi court was repeatedly criticized by the international human rights organizations that questioned the impartiality and independence of its trials to prosecute foreign ISIS members. The organizations also feared that the court would carry out executions, which they were carried out mainly later.

Al-Ahmad, in this context, al-Ahmad stressed the importance of recalling the trails of the ousted Iraqi President, Saddam Hussein, and the pillars of his regime, which were described as political in one way or another, and were not characterized by the required transparency, and not all the standards for fair trials are met, but part of it.