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Caught in the crossfire: responsibilities for ISIS members detained in North East Syria following Turkey’s Operation Peace Spring – Part II

November 5, 2019

Having examined the responsibilities of the Turkish forces and SDF towards the detainees in northern Syria (see Part I here), I am now going to analyse the responsibilities of the States of origin towards the ISIS members specifically. The thousands of ISIS members held in detention centers and camps by the SDF come from around 50 countries: many are Europeans, but the majority come from Muslim countries such as Egypt, Tunisia and Yemen. In a previous post I analysed the practical challenges for the detaining armed groups, discussing four different options at their disposal: transfer, release, continued detention and trial.

Current situation regarding States of origin

With some exceptions, such as Iraq, Russia and the United States, who have accepted to have their nationals transferred to them by the SDF, most countries have been reluctant to repatriate their nationals detained in North East Syria, claiming that it would be difficult to convict them, given the difficulties of collecting evidence for crimes committed abroad, and that setting them free would consequently be problematic for their national security. Things seem to have slowly started to change following Turkey’s Operation Peace Spring , but the SDF are likely unable to continue guarding the detention centers and camps for much longer and the detainees might soon escape or be released.

Source: The New York Times

Obligations of States of origin under counter-terrorism legal framework and IHL

As I had already explained, from the legal point of view, release of the detained ISIS members might be a valid solution for the SDF – as well as potentially inevitable following the Turkish offensive. Such solution may nonetheless be problematic for states.

In the context of counterterrorism, in fact, the UN Security Council (UNSC) acting under Chapter VII has adopted a number of resolutions which require UN member states to ensure that any person who participated in the financing, planning, preparation or perpetration of terrorist acts or in support of terrorist acts be brought to justice (e.g. UNSC Res. 2178 (2014), para. 6; UNSC Res. 2396 (2017), paras. 17-20). Because of the importance of passive nationality-based criminal jurisdiction, refusing to have their citizens who joined ISIS transferred to them for prosecution (and rehabilitation) purposes might arguably amount to a breach of the obligations of UN member states imposed by the UNSC, especially when such refusal would result in them being freed and able to commit further terrorist acts and radicalize other individuals. Under IHL, states also have an obligation to prosecute their nationals for war crimes committed in both international and non-international armed conflict. Moreover, as highlighted in the latest ICRC Challenges Report, states need to take into account the specific humanitarian concerns and needs of children associated with foreign fighters as well as female foreign fighters and female family members (pp. 51-52).

Legality of revocation of citizenship

In order to prevent their return once and for all, certain countries have gone as far as to revoke the citizenship of some of their nationals who had travelled to Syria to join ISIS.  Under international law, states have a duty to readmit their nationals to their territory (see here at pp. 35-36). This obligation can hardly be read as being as broad as to encompass a duty for states to actively seek the repatriation of their nationals abroad, although this is hardly satisfactory and contrary views have been expressed. On the other hand, deprivation of citizenship is unlawful under international law in certain cases but might be justified in others. Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) prohibits the arbitrary deprivation of one’s right to enter their own country. This provision has been interpreted by the Human Rights Committee as including the prohibition for states parties to strip an individual of nationality so as to “arbitrarily prevent this person from returning to his or her own country” (General Comment no. 27, para. 21). Moreover, under Article 8(1) of the Convention on the Reduction in Statelessness (CRS), states parties are prohibited from depriving a person of nationality if such deprivation makes the person stateless. Deprivation of citizenship leading to statelessness is exceptionally possible when a person has committed acts ‘seriously prejudicial to the vital interests of the State’, but only if the state’s national law provided this as a ground of deprivation of nationality at the moment of accession to the treaty and a declaration was made to this effect (Article 8(3)(a)(ii) CRS).

Article 4 of the European Convention on Nationality (ECN) similarly establishes that everyone has the right of nationality, that statelessness shall be avoided, and that no one shall be arbitrarily deprived of their nationality. At the same time, Article 7(1)(d) ECN also allows deprivation of citizenship for ‘conduct seriously prejudicial to the vital interests of the State Party’. In the context of the fight against terrorism, deprivation of nationality for crimes against national security or in the public interest has been provided for by the legislation of a number of states (see here, para. 13). In so far as terrorist acts are indeed prejudicial to the vital interests of a state, these instances might seem to fall squarely within the two clauses described above (see here at 202), unless they are considered as having been aimed solely at “arbitrarily” preventing the person from returning to their own country.

Conclusions

More importantly, whether legitimate or not, the decisions to revoke the citizenship of some of the individuals held by the SDF do in practice hinder their transfer to their countries of origin, further jeopardizing their fate. When put against the background of international peace and security and of the states’ obligations with respect to counterterrorism, it appears clear that by ignoring their citizens detained in North East Syria states are in fact evading their responsibilities stemming from UNSC resolutions enacted under Chapter VII and under IHL.

It is especially telling that, while states refuse to recognize any form of detention by armed groups as lawful under international law, they have largely left the SDF alone in dealing not only with a large detainee population, but most importantly with dangerous individuals that if suddenly set free would most likely rejoin the ranks of ISIS and alter or reverse the successes made towards its territorial eradication. In conclusion, states have legal, political, and moral responsibilities towards the ISIS members detained in North East Syria. It is time for them to find a viable solution to this situation, rather than hoping that the problem will simply disappear by ignoring it, and relying on the Kurds to do more than their share for international security while fighting to protect their territory. For international peace and security’s sake – if not for human rights’ sake – states should repatriate their nationals held in North East Syria, prosecute them if necessary, but most importantly rehabilitate and reintegrate them.

Caught in the crossfire: responsibilities for ISIS members detained in North East Syria following Turkey’s Operation Peace Spring – Part I

November 4, 2019

Alessandra Spadaro is a Ph.D. Candidate at the Graduate Institute of International and Development Studies and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights. Her doctoral research studies how international law regulates various instances of deprivation of liberty by armed groups. Twitter: @ale_spd

This two-part post addresses the responsibility of various actors with respect to the ISIS members held in detention in North East Syria in light of the new Turkish invasion. Starting with an overview of recent facts, the first post outlines the obligations of Turkish and Kurdish forces with respect to the detainees. The second post will deal with the obligations of the states of origin of the detained ISIS members who are neither Syrian nor Iraqi nationals.

After announcing the withdrawal of US troops from North East Syria on 6 October 2019, President Trump tweeted that “Turkey, Europe, Syria, Iran, Iraq, Russia and the Kurds will now have to figure the situation out, and what they want to do with the captured ISIS fighters in their “neighborhood.”” In a later tweet, he added that Turkey, Europe and others must “watch over” the captured ISIS fighters and their families. In this first post, I will explain whether President Trump’s declarations have any basis in international law, by specifically addressing what responsibility Turkish and Kurdish forces have towards the alleged ISIS members detained by the SDF following the withdrawal of US troops and the Turkish invasion of North East Syria. In the second part of the post, I will then deal with the responsibility of states other than Syria and Iraq for their citizens who are among the detainees in the SDF’s custody.

Recent events relating to the Turkish offensive

Before getting into the core of the matter, it is useful to first summarize the relevant facts of the case, since the situation has rapidly evolved in the span of a few days.

On 9 October 2019, Turkey launched an offensive against the SDF, which are militarily led by the Kurdish People’s Protection Units (YPG) and Women’s Protection Units (YPJ), and which Turkey considers terrorists and inseparable from the separatists of the Kurdistan Workers’ Party (PKK), which it has been fighting for decades. Turkey’s operation, ironically named “Peace Spring”, had the proclaimed aim of establishing a 30-kilometer-wide “safe zone” along the Turkish-Syrian border where Syrian refugees who had fled to Turkey could be resettled after clearing it of “terrorist” groups. Taking advantage of the operation, as it was foreseeable, hundreds of ISIS members have already managed to escape from Kurdish custody and might now rejoin the ranks of ISIS with a potentially devastating regional and international security impact.

Source: Institute for the Study of War

Following the Turkish incursion, the SDF reached an agreement with the Syrian government, which had harshly criticized the Turkish invasion, allowing governmental armed forces to return to North East Syria where the Kurds have established a Self-Administration, in order to help the SDF fight Turkish and Turkish-backed forces.

On 17 October, Turkey and the US agreed to a 120-hour ceasefire. Pursuant to the agreement, the US would facilitate the YPG’s withdrawal from the designated safe zone. The two countries also agreed that they would “coordinate on detention facilities” for ISIS members and internally displaced persons, as appropriate. A few days later, Turkey also reached a memorandum of understanding with Russia, based on which the two parties agreed to preserve the status quo established by Operation Peace Spring and to collaborate towards the removal of the YPG from the “safe zone” with the help of Syrian border guards.

Although Russia has been fighting alongside the Syrian government at the latter’s invitation, Syria is not a party to the memorandum of understanding. Therefore, such agreement cannot be interpreted as implying the Syrian government’s acquiescence to the presence of Turkish forces in North East Syria. On the contrary, Syrian President Al-Assad aims at regaining control of the whole country, including Idlib – which is controlled by Turkish-backed rebel groups. He was even reported to have called Erdogan a “thief” for “stealing” Syrian territory.

Classification of the armed conflict(s) and legal protection for detainees

It is thus correct to identify Turkey as a party to non-international armed conflicts (NIACs) against ISIS and the YPG/SDF in Syria, as well a party to a parallel international armed conflict (IAC) against Syria, whose territory it has been partially occupying since 2016. Given that the presence of Turkish forces in Syria remains unconsented-to by the Syrian government, and that the aim of Operation Peace Spring is explicitly that of establishing a “safe zone” controlled by Turkish forces, it can be concluded that Turkey is now occupying other parts of the Syrian territory, either directly or through proxy forces (see here and here).

According to the Pictet Commentary to Article 6 of the Fourth Geneva Convention (GCIV), “[t]here is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation” (at 60). The Commentary puts forward a theory for the functional beginning of application of the law of occupation based on which at least some of GCIV’s provisions apply immediately to any relations between the invading troops and the civilians they meet, who are to be considered protected persons as soon as they find themselves in the hands of a party to the conflict or occupying power of which they are not nationals (ibid.). The Commentary identifies the Convention’s provisions on penal prosecutions (Article 64 GCIV ff.) as being susceptible to be applied already in the invasion phase (at 61). Arguably, Article 78 GCIV, which regulates the internment of protected persons by the occupying power for imperative reasons of security, could also be applied during the invasion (see here at 1079-1086 and 1413).

Because of the parallel existence of an IAC between Turkey and Syria (potentially triggering the full or functional application of the law of occupation) and of a NIAC between Turkey and ISIS, the detained ISIS members might be considered as falling at the same time under both the IAC and the NIAC legal frameworks vis-à-vis Turkey. On the one hand, the NIAC between Turkey and ISIS started before the latest invasion and occupation of Syria by Turkey. On the other hand, Turkey is only coming into contact with the ISIS members detained by the SDF because it has invaded and occupied Syria, albeit in the course of another parallel NIAC with the SDF. I would thus argue that there is a stronger “nexus” to the occupation, and thus that the law of IAC, rather than the law of NIAC, applies to the relationship between the Turkish forces and the detained ISIS members with which they come into contact following the invasion of Syria. It should also be kept in mind that the law of IAC is more detailed than the law of NIAC when it comes to internment and prosecution, and that no equivalent of the law of occupation can be found in the NIAC regime. The prevalence of the IAC regime in this case thus also seems preferable from a protection perspective.

Turkey’s responsibilities towards detainees

Based on the functional beginning of occupation theory, Turkey would become responsible for the internment and prosecution of ISIS fighters and their family members currently detained in North East Syria. As soon as Turkish or Turkish-backed forces come into contact with the detainees by taking control of some of the detention sites, and even if such contact occurs during the invasion phase and prior to the establishment of occupation proper, they are to be considered as protected persons under GCIV, in so far as they find themselves in the hands of a party to the conflict of which they are not nationals (Article 4 GCIV). This would be true of both ISIS fighters and their family members. In fact, ISIS members would surely not be entitled to protection as prisoners of war (POW) under the Third Geneva Convention (GCIII). At the same time, there is no gap in the protection offered by GCIII and GCIV, and thus individuals that do not qualify as POWs but meet the requirements of Article 4 GCIV would be protected under GCIV (see here at para. 271). In areas in which Turkish control has solidified so as to undoubtedly create a state of occupation, Turkey is a fortiori responsible for the implementation of all obligations incumbent as a matter of customary and treaty law on the occupying power under the international law of belligerent occupation, such as the duty to “to restore, and ensure, as far as possible, public order and safety” in the occupied territory, including by legislating appropriately and carrying out penal prosecutions in accordance with applicable IHL rules, as well as by preventing jailbreaks that would jeopardize the security of the local population.

In practice, it appears that the Turkish-backed Free Syrian Army (FSA) have been freeing ISIS members previously held by the SDF, although Turkey contests these allegations and claims that the Kurdish forces themselves set them free to create chaos as Turkish forces advance. Other reports indicate that Turkey has been struggling with prosecuting alleged ISIS members already in its custody in Turkish territory, and it is thus unlikely that they would be able (not to mention, willing) to properly address the crimes allegedly committed by (some of the) ISIS members detained in Syria.

In any event, Turkey has obligations under IHL also towards detained ISIS members that are not in its hands, but that are nonetheless affected by its military operations against the Kurdish forces. In fact, as fighting has been nearing some of the detention centers and camps in which alleged ISIS fighters and their family members have been kept by the SDF, Turkey (which is not a party to the Additional Protocols to the Geneva Conventions) shall comply at all times with applicable rules of customary IHL on the conduct of hostilities, and specifically with the principles of distinction, proportionality and precaution. In the framework of the conduct of hostilities, in fact, it is not only prohibited to attack civilians, but also to attack persons who are hors de combat and thus no longer participating in hostilities, as is the case for detained ISIS members.

SDF’s obligations towards detainees

On the other hand, under IHL, the SDF also have obligations towards the persons it detains. Specifically, detention centers must be removed from the combat zone and the SDF must take all feasible precautions to protect the civilian population under their control against the effects of attacks. Conversely, the SDF have no obligation to continue detaining even the most dangerous ISIS fighters. I would go as far as arguing that in fact there is an obligation to end unlawful detentions, and that this would include instances when the detaining authority can no longer comply with its obligation to treat detainees humanely. Because humane treatment includes providing humane conditions of detention, the SDF might thus have to release the detainees due to the radical worsening of the conditions of detention caused by overcrowding, which is reportedly a consequence of the need to remove them from the border zone where intense fighting is occurring. Indeed, knowing that they would not be able to hold this large number of detainees for much longer, and not wanting to prosecute non-Syrian nationals in their ad hoc terrorism courts, the Kurds had been asking for months that the countries of origin of the foreign ISIS members in their custody repatriate them, or alternatively that they collaborate towards the establishment of an international tribunal to prosecute them. Their calls have so far remained unheeded. As part of their deal with the Syrian government, the Kurds may agree to transfer some of the detainees to the governmental forces. As I previously discussed, such a transfer would most likely violate the principle of non-refoulement given the grim record of the Syrian government with respect to the treatment of detainees.

Conclusion to Part I

In conclusion, while both the Turkish forces and the SDF have responsibilities under international law towards the ISIS members detained in North East Syria, they are not the only actors that do so. The second part of this post will analyze the responsibilities of the countries of origin of the so-called “foreign fighters” and their families.

News Roundup | 13 – 20 October

October 21, 2019

Engaging armed groups in peacebuilding, Iranian backed militias in Iraq, and children of Isis suspects returning home.

Armed non-state actors need to be included in pragmatic peacebuilding

Britain makes move to bring home children of Isis suspects from Syria

Syrian rebel force: It was mostly Kurdish militants who entered Manbij

Syrian troops enter Kurdish fight against Turkish forces

Syria war criminals may find the law is finally closing in on them

Gunmen raid cafes in Libya capital to curb social freedoms

Iran-backed militias deployed snipers in Iraq protests

Sudanese peace talks boosted by rebel group’s return

Former Ivory Coast rebel leader Soro to run for president

Colombia’s indigenous on guard against armed groups

Countering Internal Threats: Armed Groups and International Law

October 21, 2019

Dr Shane Darcy is a senior lecturer and Deputy Director of the Irish Centre for Human Rights in the School of Law at the National University of Ireland Galway. He is currently a Japan Society for the Promotion of Science visiting fellow at Doshisha University, Kyoto. His new book To Serve the Enemy: Informers, Collaborators and the Laws of Armed Conflict is published by Oxford University Press.

Armed groups, while usually having inferior capabilities and less resources than regular armed forces, often mirror certain activities of State authorities during situations of armed conflict. This has included undertaking covert intelligence-gathering practices, such as the deployment of informers, as well the overt punishment of those suspected of having provided assistance to an opposing party in some way.

Considering these activities through the lens of applicable international law provides a clear reminder that although international humanitarian law applies to both State and non-State parties to an armed conflict, this body of law was developed historically with warring States in mind primarily, and while some but not all of its obligations and protections have gradually been extended to non-state armed groups, certain requirements seem to remain rooted in the idea of States, or at the very least State-like entities, are engaged in conflict with one another. The obligation to comply with fundamental fair trial guarantees is a case in point, particularly when examined in the context of armed groups countering internal threats.

As I discuss in a new book, States have long made use of informers as a source of intelligence in wartime, including on the activities of non-state armed groups. The latter have also sought information from the civilian population, and through infiltrating opposition forces and institutions. For example, David French has described how during the British presence in Cyprus:

EOKA agents penetrated almost all government departments. Police informers provided EOKA with information about forthcoming security forces operations and the identities of key personnel. EOKA agents working in the post office opened mail addressed to the authorities and thus discovered Greek Cypriot informers, with sometimes fatal consequences for them.

More recently, Islamic State is said to have developed “a highly complex system involving the infiltration and surveillance of all groups”, including rebel groups and Syrian government militias. Like States, armed groups have understood the pre-eminent value of information in wartime.

Read more…

News Roundup | 7 – 13 October

October 14, 2019

Islamic State accountability, child soldiering, and conflict ignites between Turkey and Kurdish-Syrian groups.

Accountability for Islamic State fighters: What are the options

SDF says Turkey-backed rebels killed Kurdish politician, rebels deny it

Turkey bombards Syrian Kurdish militia, thousands flee as death toll mounts

Syrian Kurds outgunned but vow to inflict toll on Turkish army

Turkish and Syrian rebel forces to start Syria offensive “shortly” – Erdogan’s aide

Iraqi armed groups raid offices of media outlets covering protests

Peace may bring freedom to South Sudan’s child soldiers, but not the help they need

Doing bad to be good: Remedying the realities of youth participation in Colombia’s non-state armed groups

UN envoy: Vast majority of Colombia rebels back peace deal

Colombia’s FARC party expels rebel faction

News Roundup | 23rd September – 6th October

October 8, 2019

23rd September – 29th September

Terrorist groups, artificial intelligence, and killer drones

Russia says it has downed almost 60 drones in Syria this year

Yemen’s rebels say attack on Saudi border frontline captured ‘thousands’

Afghans vote in presidential election despite attacks by insurgents on polling stations

A desperate battle, and a victory for now, at a remote afghan outpost

How Taliban interference is hijacking Afghanistan’s election

Libya’s Khalifa Haftar says open to dialogue as fighting drags on

Practical guide: To fulfil the reintegration needs and rights of girls formerly associated with armed forces and armed groups in South Sudan

Nigeria: Abducted aid worker killed by ISIL affiliate

FARC leaders admit responsibility for mass kidnapping of civilians

30th September – 6th October

Syrian rebel groups merge as Turkish offensive looms

Northeast Nigeria: More children cleared of ties with armed groups and released from administrative custody

Rwanda charges 25 men tied to rebel outfit with treason, other crimes

Dozens of troops killed, scores missing after raids on Mali bases

Somali commandos, U.S. air strike repel Islamist insurgent attack

International Criminal Court puts Mali war crimes suspect to trial

Cameroon opens dialogue to end Anglophone separatist crisis

Armed group seizes four police in Shan

The Colombian city forgotten by peace

Armed militias are taking Trump’s civil war tweets seriously

News Roundup | 16 – 22 September

September 23, 2019

The Blue Nile front, multiple Taliban attacks, and Sylvestre Mudacumura killed.

Pro-Iran fighters killed in unidentified strikes near Syria-Iraq border

Suicide bomber and gunmen hit eastern Afghanistan gov’t office

Taliban delegation visits Iran to ‘discuss latest developments’

Taliban attacks kill 48, Afghan leader unhurt as bomber targets rally

Saudi oil attacks raise questions about nature of Yemen conflict and legitimate military targets

Houthi rebels in Yemen say they will stop attacks on Saudi Arabia

DRC army says Rwandan Hutu rebel commander Mudacumura killed

Islamic State trains in Somalia’s Puntland

Islamic State fills the void in Nigeria as soldiers retreat to ‘super camps’

Blue Nile: Sudan’s forgotten front