Women and children evacuated from the Islamic State (ISIS) group's embattled holdout of Baghouz arrive at a screening area held by the US-backed Kurdish-led Syrian Democratic Forces (SDF), in the eastern Syrian province of Deir Ezzor, on March 6, 2019. Photo: AFP / Delil Souleiman

Denmark has decided to repatriate some Islamic State (ISIS) supporters from camps in Syria. As a result of the decision, three Danish women and their 14 children will return to Denmark, where it is expected that the mothers will be tried for terrorism.

Meanwhile, the state has removed citizenship from three women who are dual citizens. Their children are allowed to return, but only without their mothers. Additionally, at least one male Danish foreign fighter is still imprisoned in Syria, and there is no movement to repatriate him or other unidentified Danish citizens at this time.

The Danish government seems to have prioritized security and politics over legal norms in making these decisions – which sets a worrying precedent at a time when many nations around the world are struggling to decide what to do about the people who went to fight for ISIS.

Unwanted citizens

It is estimated that more than 6,000 Europeans and 40,000 foreign fighters from other nations swelled the ranks of ISIS during its heyday. It is now more than two years after the last ISIS stronghold fell, yet camps in Syria still hold nearly 70,000 ISIS family members, about half of them children. Hundreds of these prisoners are European citizens, although many of them are not recognized or acknowledged by their governments.

For years, European governments have equivocated over what to do with ISIS adherents and their children. Some governments, such as Russia, Kazakhstan and the US, have repatriated some of their citizens and called for other countries to do the same.

But most European countries have declined to repatriate or even identify their citizens. The result has been a total impasse. Male fighters continue to live in overcrowded prison cells and women and children mark time in unsanitary and dangerous tent cities.

Many European countries, Denmark included, have sought to revoke citizenship in a bid to wash their hands of their countrymen. In 2019, Denmark passed a law allowing the government to revoke citizenship for terror acts without seeking permission from the courts. It has applied this law retroactively. This is how three of the six Danish women identified in the camps were stripped of their citizenship while the three others will be repatriated.

Only citizens with dual citizenship can lose their Danish citizenship because international law forbids states from making their citizens stateless. What this means in practice is that three white ethnic Danes will be repatriated with their children, while three non-white Danes will not be.

Risk assessment over law

The decision to repatriate these Danish citizens represents a significant policy shift. At first, Denmark refused to take even Danish children out of camps, then it proposed to receive Danish children without their parents, and now it proposes to receive Danish children and some of their mothers, but no fathers.

The government attributes this shift to a changing understanding of the security situation. The overcrowded, unsanitary prison camps in Syria are plagued by organized violence, both from ISIS affiliates within the camps and ISIS recruiters outside the camps.

In December 2020, video testimony from a 12-year-old Danish boy inside one of the camps went viral. In the video, the boy describes how he hides in the toilet when ISIS security services come through the camps recruiting.

It is certainly true that attempts to radicalize children who have a legal right to move freely in Europe are a security threat. These children are obvious targets for ISIS recruiters hopeful of mounting attacks on European soil. What is less clear is that this could be understood to represent a changed situation.

In fact, a 2019 Danish security services report determined that children in the camps posed a greater security threat if they remained there than if they were repatriated. This finding was reiterated in further reports from the same organization in following years. However, Denmark’s ruling party initially suppressed these reports and did not share them with supporting parties or the Danish parliament.

The disregard for legal process has been overt. In fact, Prime Minister Mette Frederiksen has explicitly dismissed the relevance of law or other forms of expertise on the question of repatriation.

In response to a journalist’s question about the rights of those imprisoned in Syria, Frederiksen remarked: “We must take care, even though of course we’ve relied on expertise to manage the pandemic, that we don’t allow experts to decide all that we do as a country. This is of course a political decision about people who are, in my eyes, traitors.”

Frederiksen’s dismissal of expertise in favor of politics signals only more problems to come, both for the ISIS adherents that it leaves behind to an uncertain fate and those it repatriates.

It remains unclear what will happen to the Danish women who are repatriated from Syria. It seems likely that they will be criminally processed, but what will that look like, and how will that impact their children? Experts were recently asked to advise a government task force on these questions, but were only given 64 hours to make their submissions.

Criminal law has an important role to play in addressing ISIS adherents’ crimes, but so far Denmark and many other countries have been shying away from letting it do its work.

Criminal trials in home-country courts would guarantee ISIS adherents the fundamental rights that are critical to all of us. These include the right to meet and defend the charges openly, as well as the right to – if convicted – serve the punishment and then re-enter society.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Kerstin Bree Carlson

Kerstin Bree Carlson is associate professor of international law at Roskilde University in Denmark.