In legal limbo: EU returnees in the post-ISIS era

The Kurdish-led Syrian Democratic Forces (SDF) have been steadily capturing territory formerly held by Islamic State in northern and eastern Syria, and in doing so they have taken custody of thousands of ISIS foreign fighters and supporters. For months now these people have languished in SDF prisons or detention camps while their captors and countries of origin argue about what to do with them. But the impending reduction of US forces in Syria and final collapse of the self-proclaimed ISIS caliphate mean that European Union member states can no longer ignore the question of how to deal with these captives.

 Leaving ISIS fighters and supporters in the hands of the SDF is looking less and less like a viable option

SDF officials say they are holding 800-1,000 fighters and up to 4,000 women and children from former ISIS territory. Hundreds of these are European citizens, above all from France, the United Kingdom, and Germany. The European approach to their fate so far has been guided by a simple principle: trying to keep them as far as possible from Europe. Behind this determination lies the peculiar hybrid nature of the foreign fighters and their supporters. In Syria they are the foot soldiers and camp followers of a hostile force whom the SDF deems it reasonable to detain or intern for security reasons, at least while fighting continues. But in Europe they would at best be criminal suspects, who could only be locked up following conviction in a trial that met all the rules of due process.

Putting ISIS fighters and supporters on trial in Europe would not be straightforward. Even for those who are thought to be linked to terrorist acts, this could be hard to prove in court, given the difficulty of conducting investigations in a conflict zone or finding evidence amid the chaos of contemporary Syria that would be legally admissible. Even if convicted, they would threaten to radicalise others in prison. And in the case of many who travelled to Syria to be part of the ISIS experiment without directly taking part in any combat or violent activity, doing so may not have been illegal at the time they set out. Yet security officials believe that most ISIS followers remain committed to the group’s ideology and would pose a security threat if they came home. This raises the prospect of lengthy, expensive surveillance operations on a widespread scale – no wonder European governments are keen to keep these people well away.

But leaving them in the hands of the SDF is looking less and less like a viable option. The slated US departure from Syria has weakened the SDF’s position; the burden of guarding ISIS fighters is becoming increasingly taxing to it, and there are fears that it may not be able to prevent them from escaping. As part of the process of scaling down its forces, the United States has been trying to persuade countries to take back their own nationals: hence Donald Trump’s recent tweet in which he demanded that European countries deal with their own citizens.

Moreover, after the last parcel of ISIS territory is taken, which is expected to happen in a matter of days, it will become increasingly anomalous to continue to hold ISIS fighters and supporters without trial. Some European officials have called for the SDF to prosecute foreign fighters and ISIS followers in the region, as Iraq is doing with the people it has captured. But the SDF has so far declined to do this. Even apart from the security challenge of keeping prisoners safely, the prospect is shrouded in legal uncertainty: since the SDF do not belong to a state, it is unclear whether they have the legal capacity to undertake criminal trials.

In the case of ISIS women, some European states have tried to extricate themselves from their predicament by saying they have no responsibility to help people who abandoned their country to return home – even if they cannot refuse them admission if they manage to obtain passports and reach their home country. The UK has gone even further in the case of Shamima Begum, the 19-year-old with a newborn baby whose case has been highlighted by the British press, by instituting proceedings to remove her citizenship. It is probably best, though, to see this as a political stunt, given the apparent weakness of the government’s legal case. It is only with respect to the children who were taken to Syria or who were born there that European countries appear to recognise a humanitarian obligation, and several of them have begun processes to bring at least some of them back.

It is hard to have much sympathy for ISIS fighters or supporters – especially given that some women have been alleged to be implicated in actions such as the supervision of Yazidi women captives. The European attempt to avoid dealing with their citizens who joined ISIS is problematic not so much on humanitarian grounds but as an avoidance of international responsibility. It is not a good look for EU member states to leave the SDF, which has already borne the brunt of the fight against ISIS, to deal with this problem with only limited financial support.

European countries were highly critical of the US detention camp at Guantanamo Bay, which one senior British judge described as a “legal black hole”. But now, albeit in a different way, they seem all too eager for their own citizens to remain indefinitely in legal limbo. Indeed, some US officials have begun hinting that Guantanamo could provide a possible solution for the problem of ISIS foreign fighters. This remains unlikely to happen. But is it too much to imagine that the suggestion is intended as a deliberate trolling of European governments, whose high-mindedness in the case of the US detention regime contrasts awkwardly with their current evasive position?