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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.

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