Duty to Repatriate: The Case of Foreign Combatants in Kurdish Prisons

I. Introduction

Source: The Washington Post

Source: The Washington Post

The Kurdish militias in Northern Syria have taken hundreds of foreign detainees over the course of their recent offensive against the Islamic State in Iraq and the Levant (ISIL).[1]  The Kurdish position is that their home countries should repatriate them, but few countries have consented to do so.[2] The situation of the detainees falls within the minimal protections provided by Common Article 3 of the Geneva Conventions for conflicts that are not of an international character.[3]  Many of the countries with citizens detained by the Kurds are signatories to Protocol II of the Geneva Conventions which sought to further clarify detention for non-international conflicts, however the protocol specifies no previsions for repatriation at the conclusion of hostilities other than to note the captors have an obligation to ensure the safety of the detained upon release.[4]  Between 2007 and 2012, representatives from twenty four countries and several multinational organizations made a considerable effort to reach consensus on applicable international legal regimes in modern conflict and to agree on principles, rules, and standards for treatment of detainees.[5]  This effort culminated in the release of The Copenhagen Process Principle and Guidelines on Detention; however, this framework is inadequate to address what ought to happen to non-state enemy detainees who are being held by a non-state actor like the Kurds.[6] The detainees pose a unique legal challenge for all parties involved.  It is a situation that is largely without precedent and it has no clear solutions.  This article will explore the options and obligations of the international community in bringing these individuals to justice.

II, Background

The Yekîneyên Parastina Gel (YPG), or People’s Protection Units are a Kurdish militia in Northern Syria. They have been key partners to the United States in the war against ISIL in Syria.  From the onset of the U.S. intervention at the Seige of Kobani in 2015, the YPG have proven to be a capable ground force and reliable partner.  The YPG have attracted support from the U.S., French, and British militaries.[7],[8] This has generated substantial tension within NATO as Turkey claims that the YPG is a terrorist group and subordinate to the Kurdistan Workers Party (PKK).[9]

On November 6th, the YPG announced their operation to isolate the ISIL’s de facto capital of Raqqa, Syria.[10]  By June 6th, 2017, the YPG had successfully seized Tabqah City the strategic Tabqah Dam, and they had encircled Raqqa City.[11]  By October 20th, the city had fallen.[12]  Over the course of the operations, the YPG imprisoned dozens of ISIL combatants on a daily basis.[13]  The United States intelligence community estimated that as many as 40,000 foreign recruits traveled to Iraq and Syria to join ISIL.  Facing military defeat, many of these foreign fighters attempted to exit the crumbling caliphate the same way they arrived, by crossing the Turkish border.  A large number of these individuals were detained by the YPG as the attempted to cross Kurdish lines north of the Euphrates.

As of July of 2018, the YPG held 593 men from forty seven different countries in detention facilities in Northern Syria.[14]  Roughly eighty were from Europe, with ten to fifteen from France and Germany.[15]  These individuals present a unique problem for the Kurds as they attempt to negotiate their status in a future unified Syria.  The detainees are a major logistical challenge and a resource drain on a minimally equipped militia.  The detainees pose a major security risk. Additionally, historically detention facilities tend to further radicalize extremist inmates,[16]  which poses a major strategic liability.  Turkey has gone to great lengths to portray the YPG as human rights abusers.  The longer these detainees are held, the more likely outside observers are to agree.

III. Options for the Kurds

A. Transfer, Expulsion, or Repatriation

Following the surprise announcement of a full United States withdrawal, the Kurds have hinted that their most likely course of action will be a transfer to the Syrian regime.  This option is not palatable given the Assad regime’s history of grave human rights abuses.[17]  The Kurds are aware the poor optics this option would create with their western benefactors; however, the impending U.S. troop withdrawal leaves them with few options.  One option is to expel the detainees across the border into Turkey.  This is not a viable option because it is quite possible the Kurds would end up meeting these individuals again on the battlefield as members of Turkish support militias, which are in direct conflict with the YPG in Afrin Canton.  Given their lack of both resources and options, the Kurds have requested that the detainees’ home nations repatriate their citizens.  Thus far, few countries have honored their request.

IV. Options for International Community

A. International Criminal Court (ICC)

The crimes perpetrated by the ISIL, namely torture, genocide, use of child soldiers, and sexual slavery, fall squarely within the subject matter jurisdiction of the International Criminal Court (ICC).[18] The international community is unable to try their crimes in the ICC because the court lacks territorial jurisdiction of both Iraq and Syria, neither of whom are signatories to the Rome Accord.[19]  It is possible for the U.N. Security Council to designate the conflict within the ICC’s jurisdiction but the court has interpreted referrals of “situations” within the context of the Rome Statute as pertaining to specific conflicts, not specific organizations.[20]  For example, the ICC rejected an organization-based designation and favored territorial jurisdiction over all actors in Uganda when Uganda referred their conflict with the Lord’s Resistance Army to the ICC in 2002.[21]  This means Russia would likely veto any effort to refer the conflict to ICC jurisdiction since it would expose Russia’s ally, Bashar al-Assad, to ICC prosecution.

B. Independent Criminal Tribunals

Another option to bring these individuals to justice is for the U.N. Security Council to establish a tribunal with specific jurisdiction over ISIL fighters.  There is precedent for this, such as the International Criminal Tribunal for Former Yugoslavia, Special Tribunal for Lebanon, and the International Criminal Tribunal for Rwanda.[22]  This option is the most appealing from an ideological standpoint given the chaos that reigns in Syria; however, from a logistical standpoint these tribunals have been extremely costly, have never tried people on the scale that this situation would necessitate, and have not yielded a particularly high conviction rate.[23]  This option may also be counter-productive in countering ISIL’s strategic narrative, since it would likely be perceived as granting victor’s justice and would functionally immunize Bashar al-Assad and his military from prosecution.

V. Options for Detainees’ Home Nations

The detainees’ home nations also have poor options to deal with the detainees.  They can elect to repatriate their citizens or leave them in the indefinite detention of the Kurds.  Repatriating their citizens gives rise to two basic courses of action.  Either the individuals can be tried in the court system of the receiving country, or the home nations can attempt to de-radicalize and reintegrate the individuals.  Both options come with substantial risks.

A. Trial in the Criminal Justice System

The evidence gathered by the Kurds is unlikely to meet the standards of a modern court system.  A few higher profile detainees have video evidence of their criminality through ISIL propaganda, but they are exceptions to the rule.[24]  Witness testimony and electronic records provide hope for prosecution but successful prosecution is by no means normally a sure bet.  The United States is an outlier in this regard.  The Department of Justice has extensively prepared for ISIL fighters to return to U.S. custody by meticulously tracking individuals known to have traveled to Syria to support ISIL.  Known terrorists have prosecutable cases developed so that in the event they return to U.S. custody, the Department of Justice (DOJ) will be able to try them in a civilian court.[25]  This model is resource intensive but could be viable for other nations, particularly those with a military or intelligence presence in Syria.

This approach is not without its challenges.  The United States encountered this reality when the U.S. military accepted custody of an American citizen who was previously unknown to the DOJ and who had been detained by the YPG. Ultimately the DOJ decided they lacked sufficient evidence to secure a conviction in a U.S. court.  Rather than return him to the U.S. and risk release, the DOJ and DOD planned to release him back into the Syrian desert (from whence he came) with his personal effects.[26],[27]  It is unclear what this individual’s ultimate fate was, but the possibility of this novel outcome illustrates the dearth of good options nations have to bring these individuals to justice.

B. Reintegration

The other option the detainees’ home nations have is to repatriate their citizens and attempt to deradicalize and reintegrate them.  NATO countries have experimented with this option with varying degrees of success.[28]  While Europe is likely more amendable to this solution than the United States, these programs can offend a sense of justice given the magnitude of ISIL’s crimes and risk provoking counterproductive xenophobic rhetoric.  Given the magnitude of ISIL’s crimes, few want to see these individuals return to society.  Since the bulk of ISIL-aligned terrorists conducting operations outside of Iraq and Syria are citizens of the nations in which they conduct attacks, there is a perception that this option carries substantial security risks.

VI. The Case for Repatriation

The most expedient option for these countries is to reject the YPG overtures to return their citizens and leave them in YPG custody.  Thus far, the detainees’ home nations have largely elected to minimize the risk these individuals pose to society by leaving them in Syria.[29]  The of legal obligation to repatriate these individuals allows these nations to argue that they are not culpable in their citizens’ treatment or detention.  Governments are insulated from the level scrutiny they would face if they detained these individuals without due process on their own soil.  Ultimately rejecting the YPG’s request to repatriate these individuals is shortsighted.  Leaving these detainees to the shifting winds of the civil war in Syria will be viewed as a betrayal of Western ideals.  The decision not to repatriate the detainees has ramifications far beyond overburdening a reliably ally in the fight against the Islamic State.  Most importantly, this course of action will reinforce the ISIL narrative that western powers are rife with hypocrisy, and that Muslims do not enjoy equal protection or status in within civil society.[30]  While ISIL has brought some elements of statehood into its brand of Islamic militancy, it is still grounded in the idea that faith transcends the Westphalian concept of state sovereignty.[31]  Deliberately excluding ISIL adherents from the traditional conception of the state validates the ideological foundations upon which ISIL was founded.  Conversely, returning the detainees to their home jurisdiction for criminal prosecution demonstrates to radicalized individuals that despite their beliefs and their best efforts, they do not and cannot exist outside political and social norms.  

VII. The Way Forward

The long-term solution is for the international community to adopt a law of armed conflict that recognizes the modern realities of non-state actors and intrastate conflicts.  Unfortunately, this is unlikely to come to pass in the foreseeable future.  Russia, Iran, and the United States have all extensively exploited gaps left by the current laws of armed conflict within the Syrian Civil War through the use of non-state proxies.  Russia’s use of proxy forces in both Ukraine and Syria, and their use of information operations targeting U.S. elections would likely push the United States in favor of supporting a more comprehensive approach to the law of war which encompasses non-state actors, state sponsor of proxies, and other unconventional means of warfare.  Developing and implementing such a framework with broad international adoption is unlikely while the conflicts continue in Ukraine, Yemen, and Syria.

In the near-term, the home nations of these detainees have a moral obligation to repatriate their citizens.  Leaving these individuals to the Kurds places an unreasonable burden on a reliable partner and validates key aspects of ISIL’s messaging.  Nations can hide behind the reality that they have no legal obligation to repatriate these detainees, but the fact that indefinite detention is legally outsourced makes it no less objectionable.

The United States, having experienced the strategic blowback from its history of extrajudicial detention, is one of the few countries that views foreign detainees as a pressing concern.  The federal government is faced with poor options to cope with the foreign detainees absent home nations that are willing to repatriate them.  There were indications the Department of Defense attempted to negotiate a transfer of the bulk of the detainees to Iraqi custody.[32]  The Shia-aligned Iraqi government has it’s own substantial image problems among Sunni Arabs due to their history of torture, extrajudicial killings, and force displacement of Sunni enclaves.[33]  This course of action is not much better than leaving the detainees with the Kurds given the government of Iraq’s history of human rights abuses, but transferring custody to a nation-state actor is a small step towards legitimacy and it leaves the door open for extradition proceedings for the detained individuals.  Ultimately, given the timetable for U.S. withdrawal, the Kurds will likely transfer the detainees to the Assad regime and be forced to cede their relative moral high ground in their treatment of detained individuals over the course of the conflict.

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David Young is a 1L at the DU Sturm College of Law and a DJILP Staff Editor

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[1] Charlie Savage, Fighters Fill Syrian Jails, Nations Fear They’ll Come Home, N.Y. Times, July 18, 2018, at A1.

[2] Id.

[3] Geneva Convention Relative to the Treatment of Prisoners of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.

[4] Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609.

[5] Thomas Winkler, Copenhagen Process and the Copenhagen Process Principles and Guidelines on the Handling of Detainees in International Military Operations: Challenges, Criticism and the Way Ahead, 5 J. Int’l Human. Legal Stud. 258, 288 (2014).

[6] Id.

[7] Commons Select Committee on Foreign Affairs, Kurdish Aspirations and the Interests of the U.K. (Feb. 9, 2018), https://publications.parliament.uk/pa/cm201719/cmselect/cmfaff/518/51808.htm.

[8] John Irish & Marine Pennetier, France’s Macron vows support for Northern Syrians, Kurdish militia, Reuters (Mar. 29, 2018), https://www.reuters.com/article/us-mideast-crisis-syria-france/frances-macron-vows-support-for-northern-syrians-kurdish-militia-idUSKBN1H52V1.

[9] John Irish, Turkey or Kurdish YPG militia? Pick a side, Turkish minister tells France, Reuters (Apr. 5, 2018), https://www.reuters.com/article/us-turkey-france-syria/turkey-or-kurdish-ypg-militia-pick-a-side-turkish-minister-tells-france-idUSKCN1HC29Q.

[10] Rodi Said, U.S.-backed Syrian alliance declares attack on Islamic State in Raqqa, Reuters (Nov. 6, 2016), https://www.reuters.com/article/us-mideast-crisis-syria-raqqa-idUSKBN1310GX.

[11] Ellen Francis, U.S.-backed Syria militias say Tabqa, dam captured from Islamic State, Reuters (May 10, 2017), https://www.reuters.com/article/us-mideast-crisis-syria-tabqa-idUSKBN1862E4.

[12] Tom Perry, Raqqa to be part of ‘federal Syria’, U.S.-backed militia says, Reuters (Oct. 20, 2017), https://www.reuters.com/article/us-mideast-crisis-syria-raqqa/raqqa-to-be-part-of-federal-syria-u-s-backed-militia-says-idUSKBN1CP16T.

[13] Savage, supra note 1.

[14] Id.

[15] Id.

[16] Eric Schmidt, Defeated in Syria, ISIS Fighters Held in Camps Pose Security Risks, N.Y. Times, Jan. 24, 2018 at A1.

[17] See Tamara Qiblawi & Gul Tuysuz, Syria reveals fate of people thrown into ‘slaughterhouse’ jails, CNN (Aug. 30, 2018), https://www.cnn.com/2018/08/30/middleeast/syria-prisons-death-notices-intl/index.html.

[18] Int’l Crim. Ct. [ICC], Understanding the International Criminal Court, at 13, https://www.icc-cpi.int/iccdocs/pids/publications/uicceng.pdf.

[19] Int’l Crim. Ct. [ICC], States Party to the Rome Statute, https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.

[20] ICC supra note 18, at 4.

[21] Situation in Uganda, ICC-02/04, Jurisdiction, (July, 2004).

[22] ICC supra note 18, at 3.

[23] Stephen Schemenauer, Using the Rule of Law to Combat the Islamic State 11, (U.S. Army War College, 2016).

[24] See Adam Goldman & Eric Schmitt, Last 2 of ISIS’ Infamous British Fighters Are Captured by Syrian Kurds, N.Y. Times, Feb. 8, 2018, at A8.

[25] Greg Myre, Americans In ISIS: Some 300 Tried To Join, 12 Have Returned To U.S., NPR (Feb. 5, 2018), https://www.npr.org/sections/parallels/2018/02/05/583407221/americans-in-isis-some-300-tried-to-join-12-have-returned-to-u-s.

[26] Lisa Rose, The US wants to leave this American in Syria with $4,210 and no passport, CNN (June 22, 2018), https://www.cnn.com/2018/06/22/politics/john-doe-syria-isis-passport/index.html.

[27] Resp’t’s Notice Pursuant to the Ct.’s Jan. 23, 2018 Order, Doe v. Mattis, No. 17-cv-2069 (D.D.C. Apr. 17, 2018).

[28] Int’l Centere for Counter-Terrorism – The Hague, Radicalisation, De-Radicalisation, Counter-Radicalisation: A Conceptual Discussion and Literature Review (Mar. 2013), https://www.icct.nl/download/file/ICCT-Schmid-Radicalisation-De-Radicalisation-Counter-Radicalisation-March-2013.pdf.

[29] Savage supra note 1.

[30] Faisal Devji, A life on the surface, Hurst (Sep. 21, 2015), https://www.hurstpublishers.com/a-life-on-the-surface/.

[31] Faisal Devji, ISIS: Haunted by Sovereignty, Spiked Review (Dec. 2015), http://www.spiked-online.com/spiked-review/article/isis-haunted-by-sovereignty/17680#.W4sK65MzrBJ.

[32] Courtney Cube et al., Trump admin may send captured ISIS fighters to Iraq prison, Guantanamo, NBC (Aug. 30, 2018), https://www.nbcnews.com/storyline/isis-terror/trump-admin-may-send-captured-isis-fighters-iraq-prison-guantanamo-n905066.

[33] U.S. State Dep’t, Iraq 2017 Human Rights Report (2017), https://www.state.gov/documents/organization/277487.pdf.

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