Amr Jomaa joins JiC for this post on the possible means to prosecute Islamic State fighters for international crimes. Amr a Project Officer for the MENA division at the Centre for Humanitarian Dialogue, specializing in international human rights and transitional justice issues.

Iraqi special forces conduct identity checks in search Daesh fighters in Mosul, Iraq, in 2017 (Photo: Reuters)

Achieving accountability for crimes committed by ISIL fighters and their accomplices seems like an arduous task. Many believe that the seven thousand detained individuals, nationals of 81 different countries, are not deserving of a trial. Those who do believe in due process seem bewildered on how best to attain justice. To date, the preferred solution has been to kick the can down the road and leave suspected fighters and those authorities detaining them to their fate. The solution seems limited, if not outright dangerous. Absent realistic and legally sound solutions, ISIL fighters might be gradually released from the Syrian Democratic Forces (SDF) prisons and participate in the resurgence of the Caliphate, a development recently noted by the Pentagon.

On 3 June 2019, the Swedish Ministry of Foreign Affairs convened a meeting to discuss matters of accountability for crimes committed in Syria and Iraq. Even though the meeting was inconclusive, the Swedish proposal to create a hybrid tribunal, a court that mixes both national and international elements – such as applicable law – to prosecute fighters has definite merits: it would allow a unified, streamlined process to investigate crimes committed by ISIL. Doing something is a necessity given US-backed forces holding the fighters warned they lack resources to prosecute and detain suspects indefinitely. However, there are still many obstacles impeding the creation of the court.

Determining the geographical location of the tribunal, which would directly affect the applicable laws and the nationality of the judges sitting on the bench, remains among the most significant point of contention. The tribunal should be hosted in Syria or Iraq, parts of which were previously considered territories of the so-called Caliphate. Domestic law, political interests, and questionable human rights practices might nonetheless get in the way of creating the court.

As Article 22 of the Iraqi Criminal Code proscribes the death penalty for “political crimes”, Article 21 excludes terrorist offences from this category, to allow indicted terrorists to receive the death penalty. The consensus among donor states is in rhetorical opposition to the death penalty as recently stated by French Minister of Foreign Affairs Jean-Yves le Drian who confirmed that France opposes the death penalty “in all places and at all times”. Additionally, compliance with due process of law in Iraqi courts in cases relating to ISIL fighters is questionable. Zeid Raad al-Hussain, at the time UN High Commissioner for Human Rights “expressed serious concerns at the creation of a committee tasked with making recommendations to accelerate implementation of death sentences in Iraq”.

Moreover, many donor states that would be instrumental in the creation of a hybrid court do not recognize the Syrian Government as the legitimate representative of the Syrian people.  Notwithstanding the significant allegations of violation of human rights in Syrian Government courts and prisons, which would preclude the creation of a hybrid court in government held-areas. France recognized the Syrian National Council “as the legitimate interlocutor” on 21 November 2011. Likewise, the United Kingdom’s Foreign Secretary William Hague declared that the “Assad Regime […] lost its legitimacy in the eyes of the wider world”. Absent recognition, states are unlikely to allow for any form of cooperation with the Syrian Government as long as it is under current president Bashar al-Assad. The creation of a hybrid tribunal requires, as a sine qua noncondition, at least some association with the host-state. Furthermore, legal systems in both Iraq and Syria are ill-prepared to host a hybrid court as both central governments remain hostile to the idea of accountability, even more so when it is internationalized.

The recently issued Dakar guidelineshighlight the need for personalizing the hybrid court to the conflict that gave rise to the contentious crimes. To do so, a hybrid tribunal would need to absorb the political sensitivities of both Iraq and Syria, a discouraging task. For example, a difficulty would arise if the Syrian Kurdish “Autonomous Administration” was to host the court. States hostile to Kurdish autonomy such as Turkey, a NATO member, could read the establishment of the court in northeast Syria as a step towards recognition by donor states of Kurdish independence. If it loses the territory it controls, for example, it would greatly hinder the functioning of the court, which needs to operate in a relatively stable environment.

Alternatively, neighbouring states could host the tribunal, as were the extraordinary African Chambers in Dakar, which indicted Chadian dictator Hissen Habré. Lebanon could accommodate the court, even though public opinion is sceptical towards international justice due to what it believes are shortcomings or biases of the Special Tribunal for Lebanon. Turkey could also be a prospective host if the Syrian Kurdish “Autonomous Administration” agrees to deliver detained fighters to Turkish authorities, which is unlikely due to Turkish – Kurdish tensions. Jordan, a member state of the International Criminal Court (ICC), could, in theory, be an ideal host as its domestic laws are in line with the Rome Statute of the ICC.

An institution created to navigate political sensitivities and technical complications could absorb these concerns. In 2015, the Prosecutor of the ICC stated that “the jurisdictional basis for opening a preliminary examination into [the] situation is too narrow at this stage”, referring to the crimes committed by ISIL. In case of failure of the international community to create the necessary political traction for the hybrid court, the ICC should not dither in opening a preliminary investigation where it can, based on personal jurisdiction. Many criticize the international legal framework for failing to provide a modicum of accountability for crimes committed during the Syrian conflict, and this is a timely opportunity to do so. Undoubtedly, the mandate of the court will be restricted by not including any alleged crimes committed by other conflict actors. Prosecution of some ISIL fighters should not supplant efforts to prosecute other authors of crimes committed during the Syrian war. Nevertheless, some justice is better than no justice – “catch as catch can”.

The benefits of an ICC examination are three-fold. First, it would allow victims to benefit from the assistance of the trust fund for victims. Second, it would provide much-needed expansion of the scope of focus of the ICC to crimes committed outside of Africa, especially after the ICC judges rejected the prosecutor’s request to open an investigation in Afghanistan. Third, either it could encourage states to provide necessary political traction for the creation of a hybrid court, or to try their nationals themselves based on domestic criminal law, which sanctions crimes committed by citizens abroad. Prosecution by any court that respects international human rights standards and due process of law will inject iota of justice in a region perpetually plagued by injustice.

The reluctance of some states to prosecute their nationals either through domestic or international avenues is astonishing. If the international legal framework is to flourish and if human rights norms are to be enforced, prominent lawmakers should at least practice what they preach.

** The views expressed in this article are those of Amr Jomaa and do not necessarily represent those of the Centre for Humanitarian Dialogue.