QAMISHLI, Syria (North Press) – It has been nearly two decades since a tribunal was established to try genocidaires. The UN-endorsed Extraordinary Chambers in the Courts of Cambodia, which was formed in 2006, indicted nine people, most of them octogenarians, over the Khmer Rouge genocide of the late 1970s. On June 10, the Autonomous Administration of North and East Syria (AANES) announced it would begin trying several thousand foreign members of the Islamic State (ISIS), a group accused of perpetrating a genocide against the Yazidi religious community of Iraq in 2014. Rather than continuing to wait for international help to establish a tribunal, the autonomous region says it will go at it alone.
A statement released on the AANES website explains that it will begin “open, fair and transparent trials, in accordance with international and local terrorism laws.” The move, which according to one Western diplomat quoted by Reuters was “a surprise”, is due to the “failure of the international community to respond to the appeals of the Autonomous Administration to repatriate their citizens belonging to ISIS,” the statement added.
After the fall of Baghouz, the last sliver of ISIS’ so-called caliphate which once spanned across large swathes of Syria and Iraq, in 2019, the AANES had to contend with nearly 100,000 ISIS suspects and their families. Today, that number is still as high as 67,000. Around 13,000 of these are neither Syrian nor Iraqi citizens.
“This situation cannot continue in this way,” the AANES said, “as the failure to bring these criminals to court and effect justice is contrary to international law. Should they remain in this situation, they will continue to pose a security threat.”
ISIS suspects held in pre-trial detention have so far staged several break-out attempts. The most severe was carried out in late January 2022, when ISIS cells attacked the al-Sinaa prison compound in the city of Hasakah, which held several thousand male ISIS suspects, and briefly took control of the south of the city. 121 security forces were killed as they reined in the escapees over a bloody, ten-day battle.
The AANES invited the Global Coalition, the UN and foreign NGOs to engage in the trials, as well as for the media to attend and monitor the proceedings. The Administration has spent the past five years lobbying the international community to repatriate their citizens and help it establish an international tribunal in northeast Syria. The statement cautions that the decision to unilaterally try foreign nationals “does not imply the AANES’ reversal of its view on the need to establish an international tribunal or a court of an international character specific to the issue of ISIS.”
12 thousand angry men
The number of male detainees being held in pre-trial detention as well as those already tried ranges from nearly 12,000 (according to the Syrian Observatory for Human Rights, a country monitor) to 15,000 (according to Khaled Barjas Ali, a member of the AANES Justice Council). Between 2,000 and 3,000 of these are neither Iraqis nor Syrians. Hawl and Roj camps hold an additional 52,323 detainees, of which just over 10,000 are so-called third-country nationals. A majority, however, are minors.
At least 60 countries are represented among this group. The AANES has consistently urged governments to repatriate their citizens. Besides being a security concern, holding such a large amount of terror suspects is an economic burden on the Administration. The minimum running cost of Hawl, a camp holding 49,831 ISIS-linked individuals, is $200 million annually, according to one count. The 2022 al-Sinaa prison break-out was partly due to a refusal by the US government to provide funding for proper detention facilities in northeast Syria, forcing the AANES to hold around 4,000 ISIS fighters in a converted school building.
A confirmed 2,774 third-country nationals have been returned to their countries from camps and prisons in northeast Syria, according to the Rojava Information Center (RIC), a local monitor. Nevertheless, the numbers are skewed. Five countries – Russia, Kazakhstan, Uzbekistan, Tajikistan and Kyrgyzstan – make up two-thirds of all repatriations. Many countries, especially those in Europe and the Middle East, are dragging their feet. Since 2020, third-country repatriations have decreased to a trickle: an average of 380 every year. Additionally, most of these returns have been of minors (70 percent) and women (23 percent). North Press could only confirm the repatriation of 74 foreign men from northeast Syria since 2018.
The devils’ advocates
Almost as long as it began pushing back ISIS, the AANES has worked on establishing a robust counter-terrorism legislation and a judicial system to go with it. Two courts – the so-called People’s Defense Courts – were established under the AANES Justice Council in order to try terrorism offences. One is located in Qamishli, the other in Kobani. According to Sipan Ahmad (name changed), a judge in the Qamishli branch interviewed by RIC, they have tried over 8,000 Syrians since 2014. ISIS members are thought to be only a fraction of that figure, however, as the People’s Defense Courts also prosecute Turkish-backed militiamen, al-Nusra Front members, as well as spies for Turkey, the Kurdistan Regional Government in Iraq, and the government in Damascus.
A landmark counter-terrorism law was first passed in 2014 (the 20-2014 Law) and tweaked throughout the years, including as a result of input from visiting international legal experts. For example, in 2021, the AANES General Council passed amendments to the law that added an appeals process to anti-terror trials, following international feedback. According to the 20-2014 Law, membership in ISIS can land the accused 1-2 years in prison; participating in war 5-10 years; giving execution orders 20 to life; rape 15-20; human trafficking 10-20; fighting against the Syrian Democratic Forces (SDF) 10-20; and murder 15 to life. Capital punishment has been abolished under the AANES system. The Anti-Terror laws have yet to address the crime of genocide, though according to Ahmed, it is being worked on.
After a roughly six-month-long investigation, northeast Syria’s Internal Security Forces (Asayish) had terrorism cases to a special prosecution, which conducts its own investigation into the accused. Evidence-gathering is not as difficult as one may think, Ahmad said. “[ISIS members] consider their actions legitimate and they are proud of them, they usually film them,” he explained. Individual trials can take anywhere from three months to a year and include multiple sessions, as well as an appeal process (around 60 percent of the cases are appealed). This compares favorably with the infamous “ten-minute trials” against ISIS members in Iraq, many of which ended in execution.
Nevertheless, ISIS suspects’ access to lawyers is still limited. The right exists on paper, but it is rarely made use of. Ahmad said that this was because lawyers themselves do not want to defend ISIS members. A right to a public defender has been introduced, but anecdotal evidence suggests it is very rarely accessible to terror suspects. Badran Chiya Kurd, a senior AANES official, told Reuters on June 11, that foreign ISIS suspects would have the right to hire a lawyer out of pocket, but did not say that courts would appoint one for them.
The People’s Defense Courts are still small. In 2021, the Qamishli branch employed 14 judges, 8 prosecutors, and three other staff. All judges have to complete a law degree, as well as an additional six-month course at a special academy. Every case is presided over by a panel of three judges, of which at least one has to be a woman. “We have a lot of work,” Ahmad added, “it can be exhausting.”
Statistics on the court’s work are sparse, but a 2020 survey found that 10 percent of terror suspects were found innocent and released, 10 percent were given maximum sentences, and the remainder was given sentences of varying lengths. Many former ISIS members have also been released after visiting voluntary de-radicalization programs.
Try, try again
The June 10 announcement is far from the first initiative launched by the AANES to establish a tribunal to prosecute ISIS. Merely two days after the fall of Baghouz, on March 25, 2019, the Administration had already established a commission to deal with foreign detainees, held a press conference in Ain Issa calling for an international tribunal, proposed a common committee with the US-led Global Coalition to discuss evidence-gathering and prisons, and put forward a plan for an international congress on the topic. According to Abdulkarim Omar, former Co-chair of the AANES Foreign Relations Department, the plan for an international tribunal to try ISIS members was born out of the lack of commitment by governments to repatriate their citizens. Yet these plans, too, received a lukewarm reception internationally and were thus shelved.
“The AANES put forward many proposals and initiatives that were shared with the international community, but they did not have clear positions in this regard,” Khaled Ibrahim, an official at the AANES Foreign Relations Department, told North Press on Sunday. “Therefore, in order to achieve societal justice for the victims who were subjected to terrible crimes by this group, public trials must be held.”
The trials will take place against “everyone” involved in terrorist acts, which could amount to “thousands” of people, Ibrahim said. However, the AANES has no plans to prosecute foreign women being held in camps. “We consider these women and their children victims of this absurd and dirty war,” he explained. This could significantly reduce the number of ISIS members tried. Women and children at Roj and Hawl camp make up about 10,000 of the estimated 13,000 foreigners. AANES’ anti-terror courts have generally shied away from prosecuting Syrian women, too. Less than 1 percent of those tried at the People’s Defense Courts are women, Ahmad said. Nevertheless, evidence of women’s involvement in ISIS is growing. Hawl Camp, which is populated largely by women and minors, sees dozens of murders every year. Many of these are committed or ordered by the so-called ‘Baghouziat’ – mostly foreign women who stayed loyal to ISIS until the very end.
Foreign ISIS members will be prosecuted under the existing anti-terrorism legislation and tried by the People’s Defense Courts. “Certainly, these trials will be directed against foreigners against whom there is compelling evidence and proof that they have committed crimes,” Ibrahim told North Press. “As for those for whom there is no evidence of having committed crimes, their situation can be discussed in special deliberations with the international community and the countries concerned.”
Nevertheless, the AANES is still placing an “emphasis on establishing a special international tribunal for these terrorist members, who, as international criminals, committed crimes against societies, most of which amounted to war crimes and crimes against humanity.” While the nature of the crimes, including the genocide committed against Yazidis in Iraq, provides enough legal justification for them to be prosecuted in Syria, existing legislation does not yet address crimes of this caliber.
The costs for these trials, much like the existing People’s Defense Courts, will be shouldered by the AANES, “regardless of the amount,” Ibrahim noted. No cost estimates have been made available. A 2019 Iraqi proposal to try foreign ISIS fighters asked for $2 million per suspect per year. This is certainly money the AANES does not have. But that is not stopping them. “The trials will begin in the coming days,” Ibrahim added.
Is all of this legal?
What a tribunal to hold ISIS accountable would look like has been the matter of some debate. Universal jurisdiction has been employed in some cases to try a few low-ranking ISIS members who reached Europe’s shores. But such a piecemeal approach is hardly a viable solution. UN-sponsored tribunals trying genocidaires and war criminals in Rwanda and Yugoslavia targeted a few dozen high-ranking officials. Such models are ill-suited for northeast Syria, where ISIS members number in the tens of thousands, but its top rank is either dead or in hiding. The Iraqi and Syrian governments have so far failed to present a convincing case for their ability to judge ISIS suspects humanly, whether unilaterally or as part of an internationally-backed hybrid court. A number of commentators have also pointed out that any UN-led effort is likely to be vetoed by Russia and China.
On the other hand, some legal experts say that the military victory of the Coalition – an 85-nation alliance – over ISIS in itself provides enough justification to establish an international tribunal. According to French lawyer Dominique Inchauspé, a legal basis to try ISIS already exists under UN Res. 2170 and 2249, allowing the Coalition to establish a tribunal by an internal agreement, similar to the Nuremberg Trials (1945-6). Such a tribunal does not exist, not because it violates international humanitarian law, but due to a lack of political will.
The AANES’ jurisdiction over ISIS’ crimes is straightforward. Many of the worst violations were committed in northeast Syria. The severity of the crimes and the presence of ISIS cells across the world means that members of the group as such can be tried as hostis humani generis (‘enemies of mankind’), which under customary international humanitarian law allows any country to prosecute them.
The fact that the AANES is an unrecognized, sub-national entity is also not the handicap it may appear to be. According to the Netherlands-based International Centre for Counter-Terrorism (ICCT), a think tank, international humanitarian law “does not explicitly authorize [the AANES] to establish courts, but does regulate and provide certain minimum judicial guarantees that need to be met, without having a basis in national law.” Article 3 of the Geneva Convention and Article 6 of the Additional Protocol II prohibit parties to a conflict from “passing sentences and carrying out executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” They do stipulate that courts should be independent. However, they do not refer to the need that courts be “established by law.” The ICCT thus finds that a local tribunal would not be in violation of customary international humanitarian law, so long as it is free from interference, such as from northeast Syria’s military structures or political cadres.
Verdict
The AANES will need international help to carry out this mammoth endeavor. Without it, northeast Syria’s anti-terror courts will quickly be overwhelmed and the Administration’s budget depleted. This would lead either to a stoppage or a miscarriage of justice. International oversight would also ensure that the AANES remains committed to existing international law-based legislation. Additionally, these trials are likely to rile up existing ISIS cells, increasing the risk of further violence. Already, international NGOs operating in northeast Syria are bracing for an uptick in ISIS attacks. The international community, especially the US-led Coalition, should provide all the aid it can. Not just because it is in their interest, but because it is their duty, too.
Nevertheless, if done right, the trials against ISIS members in northeast Syria could become a milestone of international humanitarian law. Their breadth, their non-state organizers, and the context they will be held in makes the announced trials unlike any other mayor post-war tribunal. They are also likely to bring peace of mind to many in a region that has been ravaged by violence in the past decade. “It’s the people of this land who have suffered at [ISIS’] hands, whose children have been killed,” Ahmad told RIC in 2021. “All these people are here, and they should have the right to see the perpetrators held accountable here.”