An image grab from propaganda video released by ISIS shows fighters with the trademark Jihadists flag. Photo: AFP
ISIS fighters with the trademark Jihadists flag. Photo: AFP

The caliphate may be gone, but the problem of its foot-soldiers endures. Locked in Iraqi and Syrian jails, these hardened fighters come from dozens of countries around the world, none of which wants them back. What is to be done about them?

The Swedish government has a new proposal. Ahead of a summit in Stockholm next month, the country’s interior minister, Mikael Damberg, has been touring European capitals to sell a plan that would see an international tribunal set up to prosecute ISIS fighters for war crimes. The tribunal would be based in Iraq.

On the face of it, an Iraq-based international tribunal could provide a way to assess the mountains of evidence against ISIS in a systematic way. So far, prosecutions of those who committed crimes in ISIS territory have taken place in Iraq, where many of the fighters are held, or in their home countries for those who returned. But in both cases, there is a limit to how much evidence these national courts can gain access to and how far they can go in summoning witnesses, many of whom are in other countries. A tribunal, then, modeled on the one that prosecuted the genocide in the former Yugoslavia, could systematically sift evidence, call witnesses and piece together what happened across several years.

And yet there is a legitimate suspicion that Europe’s chief aim in creating a Middle East-based tribunal is not to seek justice, but to keep their own criminal citizens as far from home as possible. In other words, for all the gloss of impartial morality placed upon it, an international tribunal is more about geography than it is about justice.

It is hardly a secret that the countries of Europe – like most others – don’t want their ISIS-sympathizing citizens back. Precise numbers are difficult to come by, but of the tens of thousands of fighters from dozens of countries who went to join ISIS, at least 4,000 were citizens of European Union countries. A European Parliament report last year estimated that 30% of those had already returned. In EU capitals, these former fighters are viewed with great suspicion, as citizens who may indoctrinate others or stage attacks.

In EU capitals, these former fighters are viewed with great suspicion, as citizens who may indoctrinate others or stage attacks. Yet keeping them in prisons in Syria or Iraq is no solution

Yet keeping them in prisons in Syria or Iraq is no solution. These are foreigners who went to wage war predominantly against Syrian and Iraqi citizens, and imposing the costs of imprisoning them on those already harried countries is grossly unfair. The Swedish plan appears designed to keep as many of them away from Europe’s door as possible, while abdicating responsibility for their own criminal citizens.

But there is merit in treating the discrete issue of the citizens of various countries going to fight in the Middle East as a collective problem. Step back and the brief, brutal “caliphate” of Islamic State throws up a bewildering series of complex legal and political issues. First, the decision by tens of thousands of fighters to leave their home countries and travel to Iraq and Syria to wage war is politically fraught. Once it became apparent that thousands were traveling to Syria via Turkey, why did intelligence agencies only occasionally stop them or warn other countries?

The EU currently is grappling with this particularly thorny issue, debating whether a 2017 directive that criminalized traveling abroad to join a terrorist organization sufficiently defined proscribed groups, and how that directive might apply to those passing through EU countries on their way to places outside the EU (for example, Turkey or Syria). That is only one current political debate but it hints at the scale of the issue. A tribunal could examine these issues across national borders.

Then there are transnational legal questions. Any tribunal would be able to examine some of the complex cases that arose from the confluence of the Syrian civil war, the rise of ISIS and the refugee crisis. To take one example: Under whose jurisdiction might a Syrian who fought in Iraq and then sought asylum in Sweden be prosecuted?

It may well be that out of any tribunal new legal instruments will be created or new political obligations determined, as happened with the doctrine of the Responsibility to Protect. This global political commitment, endorsed by every member of the United Nations, came into being in 2005 to prevent genocide, war crimes, ethnic cleansing and crimes against humanity. It could now enable something positive for international law.

There is certainly an argument for a joined-up, transnational investigation of the crimes of ISIS. But it has to be done in a way that ensures Iraq and Syria do not bear a disproportionate burden. As long as the costs are shared, with fair contributions from other countries that sent significant numbers of fighters, and countries agree to repatriate their own citizens once the trials are concluded, a tribunal could be an innovative response to a complex conflict.

But it must not be a way for European governments to avoid their responsibilities. Seeking answers across borders should not be an excuse for Europeans to keep their criminal citizens away from others of their own.

This article was provided to Asia Times by Syndication Bureau, which holds copyright.

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