The Risks of Repatriating—Or Not—ISIS Foreign Fighters from the West

Islamic state fighters and their families walk as they surrendered in the village of Baghouz, Deir Al Zor province, Syria March 12, 2019. Photo Credit: REUTERS/Rodi Said.

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By: Emily Burchfield, Columnist

With ISIS declared territorially defeated in Syria,[i] the U.S. and Europe must focus on what to do with captured foreign fighters. President Trump urged European nations to “take back over 800” European nationals who fought for ISIS and were captured in Syria by the Syrian Democratic Forces (SDF) and put them on trial, or else the United States would be forced to influence the SDF to release them.[ii] Most European leaders dismissed Trump’s demand,[iii] and the U.S. itself signaled reticence to repatriate ISIS members.[iv] Rather than eliminating the global terrorist threat, the U.S. and Europe’s reticence to repatriate ISIS members places a disproportionate burden on an already fragile but important partner of the United States and Europe, Iraq. It also condemns Iraq to a poor human rights record and implicates the West in an ethical quagmire.

Several legal and moral challenges make it difficult for the U.S. and Europe to repatriate ISIS members. For instance, it is difficult to distinguish who fought for ISIS and who was a ‘bystander’, and there is little evidence of ISIS fighters’ crimes in Syria that would be admissible in Western courts. Then there is the dilemma of assigning guilt. The Nuremberg trials set a precedent for indicting individuals for participation in state-sponsored conspiracies involving crimes against humanity, but whether or not these precedents could apply to members of violent non-state groups is unclear. Would one member of ISIS who worked as a truck driver or accountant be held as liable for the group’s crimes as one who beheaded its victims? Revisiting questions of collective guilt could have implications for legal reform and widening societal rifts.

Putting hundreds of ISIS members on trial also poses risks associated with convictions and imprisonments. Convictions leading to imprisonment could cause prisons to increasingly act as a breeding ground for radicalism, as documented in France and Belgium.[v] Imprisonment could also prove politically costly amongst publics whose tax dollars would be spent keeping terrorists alive. This in turn may force some states to reconsider instituting the death penalty, which could pose challenges to European solidarity. On the other hand, the release of suspected ISIS members poses the security risk of future terror attacks. To avoid the risks associated with repatriated fighters, many leaders have labeled their own citizens with ties to ISIS ‘enemies’ of the state,[vi] allowing states in some cases to strip fighters of their citizenship.[vii]

Faced with such unsavory outcomes, it is no wonder that Western leaders refuse repatriation altogether and opt to make ISIS fighters from their countries someone else’s problem. Currently the burden rests with the SDF. But the partial U.S. military withdrawal from Syria changes this equation, and the SDF now faces two options: release the suspected ISIS fighters, or transfer them just across the border to Iraq, where security forces have more capacity and support. SDF officials last month brokered agreements with Iraqi military officials to transfer 502 Iraqi and foreign fighters to Iraq, and has since handed over the first 280.[viii]

This scenario poses massive political and legal dilemmas for the Iraqi government. These fighters were not caught in Iraq, and many are not Iraqi. They are no more wanted in Iraq than in Europe. Iraqi leaders have said they would put foreign fighters suspected of launching attacks on Iraq on trial,[ix] but as many of the fighters in question were active in Syria, it will be difficult to ascribe blame. Not only is there no legal basis to hold and try them in Iraq, doing so would pose challenges for Baghdad. First, there is the cost of hosting and feeding these captives, when Iraqi public funds are desperately needed elsewhere. Then, there is the political toll of dealing with the scrutiny of international human rights organizations. Iraq’s law prohibits holding prisoners without trial, but that leaves the options of releasing them or putting them on trial on tenuous grounds, which could lead to the execution of hundreds of both innocent and guilty individuals. In this outcome, US and European leaders would find their security problem solved without having to tarnish their own records.

However, since the U.S. and European condition their aid to Iraq on Baghdad’s meeting certain standards in respect to human rights, it seems unfair to depend on Iraq’s abuse in dealing with foreign ISIS fighters. Already Iraq has sentenced two Belgian ISIS fighters to death, and rights groups have swiftly condemned the proceedings. But Belgium, whose Foreign Ministry claimed it had “no power” to intervene, should be held accountable as well.[x] Similarly, states who elect to send their citizens to be tried and potentially executed in the United States, as Britain recently elected to do,[xi] should recognize the hypocrisy in this solution.

Some European leaders have supported the SDF’s proposal for an international tribunal in Iraq or Syria.[xii] The US decision to leave some 200 troops on the ground in northeast Syria could help deter any reactionary violence produced by spoilers in response to such an initiative. However, this alternative poses legal and practical challenges. While prosecutions for international crimes can be more impactful when held within the society where the crimes were committed, doing so requires political will and strong capacity in the legal system—neither of which exist in Syria or Iraq.[xiii] There is also the problem of where the convicted would go after trials in Syria or Iraq; imprisonment in Syria especially is another form of death sentence.[xiv] An international tribunal would require extensive negotiation and broad support—both political and financial—to succeed.

The repatriation problem is one with significant security implications. The risks posed by release and radicalization in prisons are not the only ones to consider; there is also the risk that the West’s abnegation of moral responsibility and blind eye to abuses of ISIS suspects in Iraq could lend legitimacy to ISIS’s rhetoric and inspire further attacks on U.S. and European soil. Western countries should approach the repatriation problem as part of the broader problem of radicalization. Avoidance and buck-passing will ultimately overburden a fragile partner in Iraq, will permit human rights abuses and violations of international law, and will likely contribute to the push factors for extremism.