Professor Joost Jongerden: “Political considerations prevent concrete steps to support ISIS trials”
On 10 June, after years of appeals to the international community, the Autonomous Administration of North and East Syria (AANES) announced that foreign ISIS members would be tried in northeastern Syria. Following years of uncertainty regarding the repatriation of thousands of foreign ISIS criminals or the establishment of an international tribunal, the autonomous administration is currently preparing for trials in the region.
The lack of clarity from international authorities on the prolonged process of prosecuting foreign ISIS militants has led us to consult Prof. Dr. Joost Jongerden on this issue. Joost Jongerden is an Associate Professor in the Rural Sociology Group at the University of Wageningen in the Netherlands. Jongerden, whose work takes place at the intersection of rural sociology, political sciences and historical sociology, has worked on forced migration, rural development and political and violent conflict in the Kurdistan region. The Dutch sociologist and anthropologist provided Target Platform with some revealing insights into the Dutch government’s involvement and the international community’s stance on the ISIS trials.
Although the Autonomous Administration has begun preparations for tribunals to try foreign IS members in northeastern Syria, the absence of an official announcement from any state regarding these trials indicates a certain degree of indifference. What initiatives has the Dutch government taken in this context?
The government of the Netherlands has released documents regarding the prosecution, trial and detention of foreign ISIS members, referred to as Foreign Terrorist Fighters (FTF). It appears that a tweet from the Rojava Information Center in February 2020, announcing that the autonomous administration would proceed with the prosecution and trial of suspected FTF suspects, led to immediate action. The announcement prompted internal consultations with other European countries on the sidelines of the Organization for Security and Co-operation in Europe/United Nations (OSCE/UN) meeting in Vienna. The documents also indicate that the Netherlands contacted the Syrian Democratic Council (SDC) office in the Benelux. So there is certainly no indifference and there is even an alert response, it seems. Yet overall, there is significant reluctance in cooperating with the SDC and providing support for the prosecution, trial, and detention of FTF’s in Rojava.
You state that the Netherlands is not indifferent, but rather reluctant. Can you elaborate on that?
Over the past few years, there have been regular discussions within Dutch state institutions about the prosecution of Foreign Terrorist Fighters (FTF). These discussions involved senior officials of the Ministry of Foreign Affairs of the Netherlands, as well as various policy directorates, including the Directorate for North Africa and the Middle East (DAM), the Directorate of Legal Affairs (DJZ) responsible for European and international legal matters, as well as advising on international law, the Directorate for Europe (DEU) responsible for coordinating an integrated foreign policy with EU member states, the Directorate of Consular Affairs and Visa Policy (DCV) responsible for consular services to Dutch nationals abroad (including detainees), and the National Coordinator for Counterterrorism and Security (NCTC), along with the embassies in Baghdad and Ankara. The discussions cover various topics such as the scale of the problem of prosecuting and trying ISIS members, what court should be made responsible for the prosecution, where it should take place, the political landscape, international legal issues, and relatedly how support for the prosecution and trial of FTFs in Northeast Syria relates to international law.
The Netherlands is a member of an EU group, referred to as the Core 8, which includes Germany, Finland, Sweden, Denmark, France, Belgium, and the United Kingdom. In this group, the Netherlands claims to be a driving force in discussing the prosecution and trial of ISIS criminals. Additionally, the Netherlands has participated in at least one meeting organized by international NGOs on the challenges and possibilities of the prosecution of foreign ISIS terrorists in Northeast Syria, had multiple contacts with the SDC on this matter, and sought advice from experts and a national committee on international law.
What were the results of these consultations and meetings?
The Netherlands has explored various options for the prosecution and trial of the foreign terrorists, including prosecution by the International Criminal Court (ICC), but also various special and hybrid options such as prosecution by an ad hoc UN tribunal, prosecution by a variant of the Special Court for Sierra Leone (a so-called hybrid tribunal), prosecution by the Rwanda variant, prosecution by a Nurnberg variant, prosecution by a Lockerbie variant, and national prosecution in Iraq and Syria. The hybrid and special courts are considered time consuming and costly, and the ICC is not equipped for high volumes of cases. Moreover, it is thought that special courts are only possible on the basis of a UN Security Council resolution, and the idea is that such a resolution will be vetoed. The released documents indicate that within Europe the Netherlands advocates for the prosecution of foreign terrorist fighters in the region, specifically national prosecution in Iraq and Syria. However, two complications arise in this regard.
What are those complications?
Firstly, no progress is made in discussions with the Iraqi government about the prosecution of foreign terrorist fighters held in Rojava. A practical problem is the transfer of former ISIS members from detention centers in Rojava to Iraq, and a more fundamental issue is the death penalty, which is present in Iraq’s legal system. Secondly, the Netherlands does not have diplomatic relations with Syria and does not wish to restore these relations. As a result of the lack of progress about prosecution, trial and detention in Iraq and the absence of a relationship with Syria, the option of support to the autonomous administration for the prosecution, trial and detention of foreign terrorists currently in custody in Rojava was considered. This has been seriously studied by the Netherlands and discussed multiple times with European partners.
Have there been any discussions with the Autonomous Administration specifically concerning this option?
The Netherlands has been in contact with the SDC regarding prosecution and detention in Rojava. The Netherlands and the Syrian Democratic Forces (SDF) share the view that suspects should be prosecuted in the region where the crimes were committed, yet the Netherlands also believe that an exception could be made for high-profile members of ISIS. These persons could be brought before the International Criminal Court. The Netherlands consider it a positive aspect that there’s no death penalty in Rojava, unlike Iraq. Documents indicate that Syrian FTF convicts receive relatively lenient sentences, with an emphasis on reintegration and rehabilitation. Therefore, there is no revenge-justice.
What was the outcome of the discussions between the Dutch officials and the Syrian Democratic Council?
In conversations with the Self-Administration of North and East Syria (AANES), it becomes apparent that there is a lack of capacity in the autonomous administration due to a shortage of well-trained prosecutors, judges, and lawyers. The detention capacity is also insufficient to securely hold the convicted individuals. There were concerns about the influence of ISIS in the al-Hol camp, and the SDC had presented plans to separate radical and non-radical prisoners. Documents from the Dutch Ministry of Foreign Affairs indicate that SDC had requested assistance to address the issues related to prosecution, trial, and detention. Yet the Netherlands exercised great reluctance and restraint when it came to supporting the prosecution, trial, and detention in Northeast Syria. The government’s concern is whether support for SDC – a non-state actor – in establishing a tribunal in Northeast Syria is in conflict with the principle of non-intervention. This principle holds that states should not interfere in other states’ political affairs; in this case, supporting SDC in the process could be seen as an intervention in Syria’s internal affairs. Though an issue with many strings attached, the Netherlands explores the possibility of prosecution, trial and detention in Rojava. It is also in this context that the Netherlands reached out to the Syrian Kurdish representation in Europe.
Have there been any concrete developments in the aftermath of those negotiations?
In August 2020, the Dutch government commissioned an advisory commission on international law to give advice about the legal constraints of giving multilateral support to a local tribunal without the consent of Syria and the legitimacy of such a tribunal. It also asks for advice and seeks for a legal opinion of international experts. The commission indicates that certain forms of support may not necessarily violate the principle of non-intervention. Different legal experts seem to disagree about the legitimacy of such a court. The advice and opinions make clear that the issue is complex.
Looking back at deliberations, advice and opinions it is clear that the option is kept open to support the prosecution, trial and detention of foreign ISIS members in Northeastern Syria and to work together on this with SDC and the Autonomous Administration. However, this apparently did not lead to concrete steps.
Considering the preparations to try foreign ISIS detainees in northeastern Syria, why are there still no tangible steps being taken?
Destabilization of the region as a result of the partial withdrawal of the United States from Northeast Syria and Turkey’s military interventions may have contributed to this. Although advices and opinions of experts show that support for the prosecution, trial, and detention of FTFs in Rojava is not impossible within the framework of international law, yet there are two major political barriers to making such a decision. Firstly, documents from the Ministry of Foreign Affairs indicate that the relationship with Turkey is an obstacle to the option of supporting the SDF and conducting trials in Northeast Syria. Secondly, the instability, partly caused by the withdrawal of the United States and the military occupation of Turkey, is a reason for caution.
How can we interpret the reluctance to try the very same criminals while talking about the vital importance of war against ISIS? What can you say about this paradox?
Of course, I do not know what other countries declared, but the Netherlands operated in an international context in concert with about seven other European countries. It is likely that international law questions, instability in the region and Turkey’s objections to co-operation with the autonomous administration led to the option of local trials with the support of the international community not getting off the ground. The international law objections could be met. Cooperation with a non-state actor is not necessarily a no-go, and the principle of non-intervention is not absolute. However, it is probably political considerations that have prevented any concrete steps towards multilateral support for local justice. Yet this is not the end of the discussion. First, trials of Syrian suspects, which are mostly aimed at integration and rehabilitation, already involve the tribes or communities from which the suspects come. This can help strengthen the legitimacy of the autonomous administration and justice system there. Second, and relatedly, in a contribution on this subject, Ardian Shajkovci, a security analyst, considers that “the fact that many governments remain impervious to the idea of repatriation of their FTF nationals, could also be interpreted as an implied state consent in allowing the SDF lawmaking role”. So, by trying the FTFs and applying international law, the Autonomous Administration and the SDC can become a de-facto actor in international law.