US-backed Kurdish forces this weekend declared victory over Islamic State, but for the victims of the extremists, there was no celebration, only anxiety, as the international community appeared poised to leave them with hoards of hardened ideologues in their midst.
Tens of thousands of Islamic State (ISIS) members have poured out of the group’s last stronghold in northeastern Syria in recent weeks. They hail from Uzbekistan and Tajikistan, Belgium, France and Turkey, Bosnia and Saudi Arabia.
The women adherents and their children have been corralled in camps, sometimes along with members of minority groups enslaved by their caliphate. The men have been taken into custody by the Kurdish-led Syrian Democratic Forces at the nearby Omar petroleum field.
In a video filmed by France 24, the foreign women sound annoyed and flustered and they ask or demand to be repatriated to their home countries. Fully covered in black, they offer scarce remorse or apology for the damage their project wrought on the region and its inhabitants.
Numerous governments have, meanwhile, shunned any responsibility for the actions of their citizens, preferring to revoke their nationalities regardless of the non-existence of a second nationality and leaving them in the custody of local authorities, whose ability to maintain control of the region is tenuous at best, and of the UNHCR, which has been overwhelmed by the needs.
The Trump administration, which has revoked at least one American nationality, is nevertheless calling on other governments to take back their citizens while threatening to otherwise release jihadists.
The United States is asking Britain, France, Germany and other European allies to take back over 800 ISIS fighters that we captured in Syria and put them on trial. The Caliphate is ready to fall. The alternative is not a good one in that we will be forced to release them……..
— Donald J. Trump (@realDonaldTrump) February 17, 2019
The Syrian Democratic Forces have, meanwhile, warned of their limited capacity to deal with the massive amount of prisoners. “We do not have the legitimacy to convict them and lack logistical support to hold them for a long time,” SDF spokesman Kino Gabriel told Kurdistan 24 in a December 2018 interview.
Some detainees have already managed to escape by paying large bribes, a UN aid worker working in the camps in northeastern Syria told Asia Times on condition of anonymity.
For Ahmed Khudida Burjus of Yazda, an organization that advocates for the Yazidi victims of Islamic State, the lack of a plan is a travesty: “When we speak to survivors who faced these heinous crimes, they say: ‘Where is the International Criminal Court? When will they act?‘
“Survivors like Nadia Murad who lost dozens of family members, got raped by dozens of people, and subjected to physical and psychological abuse, have waited years to get one trial for ISIS members,” he said.
It was five years ago, in the summer of 2014, that ISIS militants overran the Yazidi heartland in northwestern Iraq, slaughtering thousands of men and taking the women and children into captivity. Women and girls were forced to become sex slaves, while young boys were forced into military training camps and indoctrinated with the group’s extremist doctrine.
The Sunni jihadists also targeted minority Shiite Turkmen and Shabaks, as well as Assyrian Christians, in what Amnesty International said amounted to a systematic campaign of ethnic cleansing.
Yazidi advocates now fear the window of opportunity for prosecuting the group’s most diehard members – for the moment in one location – may be slipping away.
“We have been asking the international community to create an ad hoc court in that area of Al-Hol and take some experts,” said Burjus. “You have thousands of survivors willing to testify, hundreds of mass graves covering the surface of the earth, and a large amount of information about ISIS.”
Seeking genocide recognition
Yazda’s public faces – Nadia Murad and the prolific human rights lawyer Amal Clooney – have for years lobbied for the creation of an international mechanism to prepare for this day.
In 2017, the United Nations Security Council voted to create UNITAD, an investigative unit tasked with compiling evidence of war crimes, crimes against humanity and genocide committed by Islamic State members in Iraq, where trials should eventually take place.
A separate UN resolution created the International, Impartial and Independent Mechanism, tasked with investigating and helping to prosecute individuals responsible for war crimes in Syria since the outbreak of hostilities there in 2011. The IIIM is particularly important for the ability of governments to share information for potential prosecution.
While these mechanisms could form the building blocks of successful prosecutions, it is unclear how many governments are willing to put in the time and resources into securing war crimes convictions or proving genocide.
Burjus is meanwhile concerned about the Iraqi judicial system as a destination for trials. “They put some people on trial, but the sad thing is they just kill most of them and punish them according to Article 4 terrorism, but not according to genocide or war crimes. This is important to us.”
Simon Minks, a Dutch public prosecutor with a record of prosecuting high profile international war crimes, says this objective is no simple or quick matter.
“There are legal limitations to come up with war crimes charges, and then we have the difficulty to find evidence and take into consideration the rights of the defense. It would probably be easy to find a witness in the refugee camps. But if you come up with this witness, of course the defense must have the right to challenge that, and ask some questions as well, and then it will be a hell of a job to find this witness again, apart from the safety and well being issues (of the witness). This could take years,” said Minks.
To prove a war crime, a prosecutor must prove the existence of a nexus, or that the crime was linked to the war – a far more challenging undertaking than convicting an individual for membership in a terrorist organization.
Governments are also concerned about the time and resources required.
“There is still a discussion going on whether a tribunal or the ICC could be a serious option … (but) I’m very much afraid that when they come to a political solution, which is also very important, that justice will not be the first thing they are thinking about, but maybe the second thing, or even lower,” said Minks.
Yazda says that while there have been a number of arrest warrants against Islamic State members in Europe, the perpetrators have not been forced to reckon with their victims.
To the knowledge of Burjus, “until now, there is not one trial where survivors can go and testify.” An international legal source told Asia Times on condition of anonymity that he was “surprised and disappointed” that there has been no major case to date related to Syria or Iraq in which a court has charged the suspect with war crimes.
For SDF authorities in northeastern Syria, foreign Islamic State suspects may be a card to play, but they are also a massive burden.
“I think they will separate the foreigners and take them to Roj camp in Hassakeh (province). And after that, the SDF administration will try to make connections with governments that have people in this camp to take them back. This is what happened with some of the Chechens and some of the Uzbek people in 2018.” Morocco this month repatriated eight of its suspected fighters.
When it comes to the local fighters, the SDF has previously negotiated with Arab tribes for the release of their members, entrusting them to the tribal leadership. It is unclear how many have been handed over, but Burjus believes the number to be in the thousands.
Yazda warns that without urgent measures, whether ad hoc trials or a special tribunal similar to the famous Nuremberg trials of the Nazis, those who perpetrated war crimes could be let off the hook.
“Why do criminals like Shamima (Begum) get the platform to even speak? Why don’t they put her directly in prison and then bring her to court?” Burjus asks. “There should be public trials for these people around the world so that people get the message.”
The justice advocate says Western perceptions of victory are misplaced and concerning.
“I’m traveling in Europe and they say, ‘That’s it, ISIS is defeated.’ But where are the hundreds of thousands of people who were believing in the ISIS message?
“They are still on the land, and their ideology has not changed.”