By Zana al-Ali
RAQQA, Syria (North Press) – The issue of the Islamic State (ISIS) militants in Northeast Syria raises significant questions about their future and the international community’s response. Convicting and trying these individuals has become an urgent concern, yet the efforts to conduct trials have encountered numerous obstacles and challenges.
A lawyer from Raqqa, northern Syria, argues that the International Criminal Court (ICC) lacks jurisdiction over the trial of ISIS militants in Syria due to several challenges and obstacles, the most significant is that Syria is not a party to the Rome Statute.
The Rome Statute of the ICC, signed by 108 countries in 1998, does not include Syria and Iraq among its signatories. As a result, the court does not possess the authority to intervene in cases on Syrian soil.
The ICC can exercise automatic jurisdiction over crimes committed within the territories of any state parties to the Rome Statute or crimes committed by individuals belonging to any state parties.
ISIS lost its final stronghold in Syria in March 2019. The Syrian Democratic Forces (SDF), with the support of the U.S.-led Global Coalition defeated the group after fierce battles in the town of Baghouz in the eastern countryside of Deir ez-Zor, eastern Syria, bringing an end to ISIS’ self-proclaimed caliphate.
After Baghouz, thousands of ISIS fighters were transferred to prisons and detention centers, while their families were transferred to Hawl and Roj camps in AANES-run areas.
The issue of ISIS family members constitutes an ongoing challenge for the internationally unrecognized AANES, which repeatedly demands concerned countries to repatriate their nationals.
The AANES continues to call on the international community to support establishing rehabilitation centers and help in tackling the security situation in the facilities were ISIS foreign nationals are held.
Despite many calls, the majority of countries, including those participating in the coalition, refuse to repatriate their nationals.
According to Awas Ali, a lawyer from Raqqa, the ICC has expressed its inability to try ISIS militants in Syria due to Syria and Iraq not being signatories of the Rome Statute. Consequently, Syria is not considered a state party to the Rome Statute.
Not a state party
Ali told North Press that the trial of these militants should fall under the jurisdiction of the ICC since their crimes are considered international in nature.
The ICC exercise jurisdiction over cases through three methods: firstly, when the prosecutor initiates a lawsuit within the court itself; secondly, when a case is referred by the United Nations Security Council based on a recommendation from the General Assembly of the United Nations; and thirdly, when a State that is a member of the General Assembly of the ICC submits a case.
He highlights the challenges and difficulties that face the Autonomous Administration of North and East Syria (AANES) in trying 60,000 individuals from 60 countries, including the location of the court, the appointment of judges, and securing their protection. Furthermore, he raised concerns about the ability of the AANES to secure prisons and facilitate the transportation of the most dangerous prisoners in the world during court proceedings.
Challenges
Ali emphasizes that proving the criminal culpability of these individuals poses a significant challenge for the AANES, under the legal principle that every person accused of any crime is considered innocent until proven guilty.
He adds the establishment of their culpability necessitates strong witnesses, evidence, or irrebuttable presumption. Additionally, he expresses concern about the AANES’s ability to provide witnesses and whether they will be willing to testify in court.
Furthermore, Ali further emphasizes that these individuals have the right to legal representation, and the court is obligated to appoint lawyers for them as they have no financial resources. It raises the question of whether the AANES will be able to bear the expenses of the lawyers.
The lawyer emphasizes the dilemma of trying foreign individuals, whether acquitted or served their sentence.
“Where can they go as their home countries have revoked their citizenship?” Ali said, adding the AANES cannot grant them citizenship.
Consequently, the prosecution of these individuals requires international efforts because they have committed international crimes and must be tried under international law, he added.
Ali explains that the Syrian government can submit a request to the United Nations General Assembly for the prosecution of these individuals. The request is then referred to the Security Council, where it undergoes voting and requires approval. If approved, the case is referred to the International Criminal Court.
Ali concludes that the Syrian government prefers trying these individuals in its military courts, driven by political reasons. Even if the government agrees to submit a request under international pressure, the potential Russian veto in the Security Council is likely to impede approval.