Europe’s Plan for an International Tribunal to Try ISIS Fighters Is About Geography, Not Justice

Faisal Al Yafai

AFP Photo: John Thys

The caliphate may be gone, but the problem of the foot-soldiers of the caliphate 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 calling up witnesses, many of whom are in other countries. An international  tribunal modeled on the one that prosecuted the genocide in the former Yugoslavia, could systematically sift evidence, summon 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. An EU parliament report last year estimated 30 percent 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.

But 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 as possible far from Europe’s door, while abdicating responsibility for their own criminal citizens.

Where the tribunal does have merit is 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 ISIS 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 travelling 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 travelling abroad to join a terrorist organization was sufficiently clear in defining 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 and yet 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. That could ensure that out of the ISIS saga comes 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 – and other countries that sent significant numbers of fighters also contribute – 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.

Faisal Al Yafai is currently writing a book on the Middle East and is a frequent commentator on international TV news networks. He has worked for news outlets such as The Guardian and the BBC, and reported on the Middle East, Eastern Europe, Asia and Africa.