Will the Islamic State have its own Nuremberg?

Hundreds of European nationals who joined the terrorist group are currently being held in Iraq and Syria, as their home countries do not wish them to return. Within this context of legal limbo, Syrian Kurds are pushing for the creation of an international tribunal in their region. Some European powers, however, do not approve the project and would rather see their nationals transferred to Iraq where they would then be judged. Agnès Callamard, UN Special Rapporteur on extrajudicial executions, believes that Paris could be involved in such transfers.

A man suspected of belonging to the Islamic State is searched by a member of the Kurdish Democratic Forces, February 22, 2019. AFP

In the Roj (“sun” in Kurdish) camp, located at the foot of a small hill in Syria, moving shadows and dark silhouettes stand out between the white tents beyond the barbed wire fence. There live some of the last survivors of the fallen caliphate. Women and children that once were part of the Islamic State, 550 families altogether, locals and foreigners, who are today detained by Syrian Kurds. Some of these women are clients of Nabil Boudi, a lawyer who came all the way from Paris to represent them. It is the first time a French lawyer has traveled to Syria to try to defend French citizens who were members the terrorist group. “It was a long trip that started in Iraq. To finally get to Roj is quite satisfying. The rule is a lawyer must always meet his clients”, he explains at the entrance of the camp.

Although he was invited in to talk to the camp’s authorities, Nabil Boudi was not allowed to meet with his clients. He continues to look for them among the women in black crowded nearby. While he is meeting with the camp manager, a woman tries to approach him but is firmly pushed back by the guards. The lawyer later found out that she was one of his clients.

So why defend the indefensible? He smiles, slightly annoyed. “Our line of work is a free one, we do not have to justify who we choose as clients. If some are not happy that we are defending terrorists, then I suggest the following: let the Parliament pass a law that will forbid lawyers for terrorists. That should end the discussion once and for all”.

Boudi has been unable to contact or meet some of his clients and has no idea what might happen to them. Around 2 000 foreign fighters, among which 800 are Europeans - not including thousands of foreign wives and children - are said to have been trapped in a judicial limbo in North East Syria since last March, when Baghouz, the last bit of territory that was still under IS control was liberated and the war against the group officially declared over.

The United States believes foreign fighters should be sent back to their country of origin to be tried. Italy has recently done so, but most European countries are much more reluctant to accept the return of their citizens, as they do not wish to anger their public opinion. Regularly hit by terrorist attacks, many European countries are entirely opposed to those fighters, even their children, returning “home”. Most of these countries also fear not having solid enough proof in order to punish them as they would wish. Some critics even say that Europe is creating its own “Guantanamo” in the overpopulated prisons and camps of Rojava, the Syrian Kurdistan.

Secret transfers

L’Orient-Le Jour has managed to interview dozens of political figures, representatives, military sources, lawyers, judges, experts, analysts, jihadists and their relatives, victims, and human rights activists in Syria, Iraq, France, Belgium and the United Kingdom. These interviews show just how long a road there is to tread before IS’s foreign fighters are brought to justice and see the inside of a courtroom, and how European countries are too divided and are far from ready to answer this question.

To this day, Syrian Kurds do not even have the sovereignty that would allow them to judge these fighters. But certain Western powers have found a loophole that allows them to solve this problem: have those foreign fighters secretly transferred from Rojava to Iraq. In January, 12 French nationals, and a French-Tunisian national, until then detained in Syrian Kurdistan, woke up in Bagdad. All but one French national were sentenced to death.

Is France directly involved in this matter? L’Orient-Le Jour was able to listen to recordings of phone conversations between a number of French jihadists who were transferred and their relatives, which seem to support this theory. “The Kurds got us into Iraq and at the border there were French people. We heard them talk”, says one of those who were transferred, and is today awaiting his execution in an Iraqi prison.

According to Hicham al-Hachemi, an Iraqi expert on terrorism, Paris was closely involved in the transfer. “France organized everything, and the US smuggled the prisoners from Syrian Kurdistan to Erbil” in northern Iraq, he says. “They might have been interrogated in Erbil and Suleymaniye. Then Iraqi and French intelligence oversaw the move to Bagdad”.

Are French and American governments practicing “extradition” in Iraq? This may be illegal. “If France is indeed involved in transferring its nationals to Iraq, where the judiciary system is severely flawed and torture is common, and if it doesn’t make sure its nationals [will] have a fair trial in Iraq, then these transfers are illegal and France should be held accountable”, says Belkis Wille, a Human Rights Watch researcher in Iraq. The organization believes that in at least five cases, American forces transported foreigners - mainly from Australia, Lebanon and Gaza - from Syria to Iraq, in addition to the French nationals previously mentioned. If these transfers were to be proven illegal, the countries involved could be charged, mostly by the European Court of Human Rights, based in Strasbourg, according to several sources in Brussels.

The French ministry of foreign affairs has not answered our countless interview requests, by mail and phone.

After the French nationals were sentenced to death in Bagdad, France stated in May that, it had taken “necessary measures” to express its opposition to the death penalty to Iraqi authorities. Around the same time, Paris, who denied playing any role in transferring French jihadists to Iraq, talked about an agreement with the Syrian Democratic Forces (SDF), and indicated that an international “judiciary mechanism” was being considered, inspired by those applied in Kosovo or in post-conflict African countries.

“There was no justice, the truth is hidden”

The United Nations has also taken an interest in the matter. In early August, Agnès Callamard, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, sent an official letter to French President Emmanuel Macron, she tells L’Orient-Le Jour. In it, she asked for an explanation regarding the possible involvement of the French government in these transfers, which she considers contrary to international law.

“Where is the process of justice, of truth? There was no justice, the truth is hidden”, claims Agnès Callamard, who we met in a park near Oxford University where she teaches law. “What I seek is a policy that would bring justice to IS victims, whether they are in Iraq, Syria or France. These are international crimes, they need an answer of that scale. If we really must have an example, it should be Nuremberg (...) These “backstage” transfers that might have been orchestrated by France or Syrian Kurds or the US are the antithesis of justice”.

A few days ago, the French Ministry of Foreign Affairs issued a statement in which it commented on Mrs Callamard’s letter, calling it “pure speculation”. “France has a steady position regarding adult French nationals, both men and women, who joined the IS to fight abroad: they must be tried close to where they committed their crimes”, they added.

An international tribunal in Syrian Kurdistan?

Back to Syria. A meeting is set at sundown at the outskirts of the Syrian town of Qamishli. A Kurdish anti-terrorism judge agrees to speak to us while sipping on hot tea. Her office building is empty. “We didn’t want the French jihadists to be transferred to a country that applies the death penalty. France and the international coalition organized it and made sure it happened”, she says, asking us to maintain her anonymity for security reasons. “As for us, we wish the trial of the men and women who are here, who are of 52 different nationalities, could take place here,'” she adds.

Early July, around one hundred local officials, lawyers and international experts gathered in north-eastern Syria for an international forum organized by the Kurds, the meeting surrounded by wheat fields darkened by the fires that raged all summer. Their goal: the creation of an international tribunal for foreign fighters in their autonomous region. Dozens of men in black, heavily armed, guard the entrances to the meeting place, a leisure center converted into a conference room. “We really want an international tribunal to be set in Syrian Kurdistan. The crimes were committed here. The victims, the criminals, the testimonies and evidence are all here”, says Berivan Khaled, a political figure.

For the Kurds, an international court, in their region, would give the victims of Daesh’s abuses a voice, placing them at the center of a judiciary process and allowing them to be compensated. Until now, in Rojava, only the Syrian members of the IS have been tried, and in Iraq, only the crimes related to terrorist acts are being punished. Sexual crimes, such as those committed against Yazidi women, are not taken into consideration, and crimes such as genocide or crimes against humanity do not exist in Iraqi law.

“Considering the evil they have done, and the fact the ‘caliphate’ was defeated here, it is natural for them to be tried here. We want revenge”, says Suaad Murad Khalef, a 21 year-old Yazidi survivor, who was invited to the conference. The young woman was kidnapped on August 3rd 2017 in the Sinjar region, home of the Yazidis in northern Iraq, on the first day the genocide against her community started. Like hundreds of other women, she was sold at a market as a sex slave. “As a victim, I want to see those trials. It is our chance to ask for justice and shed light on what happened to us.”

“The issue is not technical, it’s political”

Officially, the Kurds are asking for a similar judiciary mechanism in their region - a type currently unrecognized by the rest of the world - to place the victims at the center of the legal process. Unofficially, they really want international support for their cause and they want to see it move forward.

But the odds of such a tribunal happening in Rojava are slim. Only the UN Security Council can call on the International Criminal Court (ICC). In May 2014, Russia and China blocked a resolution that would have allowed the ICC to try war crimes committed by all parties in the Syrian war. Any new attempt would inevitably be blocked by a veto from Moscow, an ally of Syrian President Bashar al-Assad’s regime. Moreover, neither Syria nor Iraq are signatories of the ICC’s Rome Statute. Besides, the ICC is perceived as ineffective: too slow, too costly, and more apt to judge the leadership than the mass of low ranking soldiers crammed in Syrian and Iraqi jails.

“A good precedent would be the Nuremberg tribunal the Allies set in place in 1945, as well as the Tokyo tribunal created for the Japanese military. Later on, there was Rwanda. All of this is a matter of political will. Here, the UN Security Council could ask for an international tribunal whenever it wants, but it would probably be vetoed”, says French jurist Dominique Inchauspé. According to him, however, there is another way: using an already existing resolution, resolution 2170, which was unanimously adopted on August 15th 2014, and which calls on all members to “bring to justice, in accordance with applicable international law, IS foreign terrorist fighters". “So if tomorrow the coalition - that Russia and China are not part of - decides to use this resolution to create an ad hoc international jurisdiction in Syria, it could. The mechanisms are there. So nobody can tell us it’s impossible. The issue is not technical, it’s political”, the lawyer says.

And for good reason: in Europe, supporting the creation of such a tribunal in Rojava would be a great political risk. A historical ally of the Western powers and NATO, Turkey sees the Syrian Kurds of the YPG (the backbone of Syrian Democratic Forces, the coalition of Arabic-Kurdish fighters the West supported against the IS) as a branch of the PKK, a Kurdish armed group that Ankara considers to be terrorists. And lately, Recep Tayyip Erdogan has threatened on more than one occasion to launch a new military campaign against Kurdish positions in Syria. Another issue is the Syrian regime. Despite their fantasies of emancipation, the Kurds kept in contact with Damascus all through the war, and Bashar al-Assad has always promised he would regain control of the whole country. Europe fears leaving their nationals in Syria, where they could somehow end up in enemy hands.

In this chaos, and while the US is withdrawing from the country, few Europeans wish to take a risk and leave foreign jihadists in Rojava, especially as there have been many escape attempts in the past few months. “Moreover, if we cooperate with the Kurds in creating an international tribunal [that would confirm their sovereignty], then we would be actively participating in dismantling a sovereign state. And that is a problem for many states”, according to a European source familiar with these issues. In London, Paris, or Berlin, the Kurdish project is considered neither realistic nor wise. It is even joked, in circles of power in Brussels, that the “easiest thing to do would be releasing the prisoners and eliminating them with drones”.

Journalists Stéphane Kenech, Massoud Hamid and Meethak al-Khatib also contributed to this investigation.

(This article was originally published in French in L'Orient-Le Jour on the 13th of August)

In the Roj (“sun” in Kurdish) camp, located at the foot of a small hill in Syria, moving shadows and dark silhouettes stand out between the white tents beyond the barbed wire fence. There live some of the last survivors of the fallen caliphate. Women and children that once were part of the Islamic State, 550 families altogether, locals and foreigners, who are today detained by Syrian Kurds....

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