As published in Homeland Security Today:
by Anne Speckhard & Ardian Shajkovci
“We have thousands of ISIS fighters that we want Europe to take, and let’s see if they take them,” President Trump told reporters at the beginning of the month. “If they don’t take them, we’ll probably have to release them to Europe.”
At a policy level, the U.S. government remains critical of European governments’ reluctance to repatriate captive ISIS fighters and their family members in Iraq and Syria while European policy-makers express concerns that ISIS returnees constitute a long-term danger to their home countries. Many European governments fear that they will not be able to successfully prosecute ISIS cadres and family members upon their return, in particular when given significant challenges that many governments face in obtaining and presenting court-admissible evidence collected in the battlefields in Iraq and Syria. Even in the event of successful prosecutions, the concern remains that many may receive short sentences and be released without being rehabilitated and may also serve as radicalizing and recruiting forces during prison time.
Perhaps such concerns are legitimate, given that European partners have suffered so much terrorism from ISIS cadres on their home soil, including returnees from Syria and Iraq. As noted above, in addressing Europe’s reluctance to take their citizens home, President Trump warned Islamic State fighters held by U.S.-backed forces could be released to Europe if their home countries fail to take them back.  In an earlier statement, reflecting his concern that the SDF may ultimately have to release Europeans held in their custody, he had added that “the U.S. does not want to watch as these ISIS fighters permeate Europe, which is where they are expected to go. We do so much and spend so much. Time for others to step up and do the job they are capable of doing.”
A sudden, uncontrolled release of ISIS fighters and their family members currently held in prisons and camps by the Syrian Democratic Forces (SDF) is highly unlikely to occur, though some members of the SDF have highlighted to ICSVE researchers both material and technical difficulties associated with long-term detainment of such individuals. However, most of the SDF leaders interviewed by ICSVE have repeatedly reassured that they are responsible in regard to controlling their captured ISIS prisoners and have no intention to ever release any of the fighters held by them, except to their relevant country authorities.
Yet there have been riots and escapes from the SDF-run facilities, in both the prisons and the camps, making circumstances challenging for their SDF captors. Likewise, with almost weekly ISIS attacks happening in SDF-controlled territory, as well as Turkey threatening to invade – that threat felt to be very realistic given the recent Turkish incursion and takeover of the Kurdish city of Afrin – the SDF faces continued conflicts and distractions in the way of fighting ISIS. In this regard, SDF leaders rightly point out that its forces could be distracted by fighting other foes and could be placed in the untenable situation of being unable to adequately staff and guard their prisons and camps currently holding ISIS cadres and their family members. In addition, the SDF leaders we spoke to have stated that since the fall and roundup of thousands of ISIS fighters and family members, they are facing severely overcrowded prisons and camps and need financial and technical assistance to expand their prison-holding capacities as well as additional training in terrorist-holding procedures.
The SDF have also in the past six months begun floating the idea of hosting an international tribunal in their territory to try ISIS prisoners there. They have garnered some European support despite the UN’s objections that it could only legitimately be formed under the auspices of the UN or the International Criminal Court (ICC) in the Hague, with neither being likely to undertake such an expensive and time-consuming task.  Military forces are allowed under domestic laws to hold “enemy combatants” indefinitely and without charge, as it is the case in the United States under the Law of Armed Conflict Detention and 2001 Authorization for Use of Military Force. For instance, in deciding a Guantanamo case, Department of Justice lawyers recently argued that the U.S. government can indefinitely detain anyone—even U.S. citizens.  Comparatively speaking, as a non-state actor, the issue of detainment creates an additional layer of challenge for the SDF in terms of having a legal right to hold the ISIS detainees and in the way of administration of justice. However, this is not to say that international law does not recognize the role of non-state actors in lawmaking and administration of justice, which are often considered not a rule but rather “ad hoc exceptions.”  Even the U.S. backer and coalition countries involvement with the SDF might stretch this point. Thus far, none of the foreign fighters held under the SDF jurisdiction have been formally charged, while Syrians they hold have been charged in courts acting within SDF-governed territory.
The aforementioned legal issues remain increasingly pressing as time passes with over 800 European male ISIS foreign fighters and hundreds of European ISIS wives, children, and family members being held in the detention camps. Yet, nearly all European countries remain adamant about their immediate return, with some remaining hostile about return at all, often citing politics and public opinion as the steady force in resisting their return. Some countries, like the UK, have resorted to stripping citizenship of those who hold, or are judged as eligible to hold, dual citizenship to prevent their return home, though the UK has allowed return and prosecuted at least 40 individuals who have returned to the UK from the battlefields in Iraq and Syria.  The practice of citizenship removal becomes thorny for cases like the UK passport holder Shamima Begum, who was claimed by UK politicians to be able to apply for Bangladeshi citizenship, given her parents’ Bangladeshi heritage, while the government of Bangladesh itself made it clear she would not receive a Bangladeshi passport on the grounds that “she is not a Bangladeshi citizen and has never applied for dual nationality with Bangladesh.”  It also made for thorny issues regarding the birth of her child, recently deceased in the camp, which by British law should have been considered eligible for UK citizenship. In other words, while revocation of citizenship obtained through naturalization is permissible and more easily achievable under certain circumstances (e.g. national security threat), Shamima’s then-newborn child was eligible for British citizenship having not committed any crime. In addition, Riedijk, Shamima’s ISIS Dutch foreign fighter husband and the father of the child, could have paved the way to the child’s Dutch nationality, though it remains debatable as to whether the underage ISIS-ordained marriage between him and Shamima (15 at the time of marriage) would have been considered legal by the Dutch authorities.  The newborn, however, was not given any protection whatsoever by either the UK or Dutch government, with the UK politicians refusing to bring him home for medical care (citing that it was too dangerous to retrieve him) before he died some weeks after being born sickly.
In contrast to European reluctance to repatriate its ISIS citizenry, the recent U.S. position in dealing with ISIS sympathizers and travelers to Iraq and Syria has been to take them home rather swiftly after they are captured.  In that regard, two women and six minors were recently repatriated from Syria and resettled at unknown locations in the United States.  Similarly, a Texas teacher caught in Syria was recently repatriated to the United States and charged with trying to provide material support to ISIS.  An American ISIS sniper was also recently transferred into U.S. custody from Syria and charged with providing material support to ISIS. Others are being processed for possible return. This follows a steady stream of repatriations of captured Americans who joined ISIS, as well as robust convictions of those who tried to travel to join. The Department of Justice has already successfully tried some of these ISIS returnees in U.S. courts as well as shown commitment to resettle, rehabilitate and release some of those who did not fight or were minors taken to or born inside ISIS territory.
While the U.S. has recently repatriated its captured ISIS cadres rather quickly, not all American ISIS detainees have been repatriated as quickly, as some Americans still wait for decisions on their cases. Samantha Elhassani and her four children (all under the age of 12, two holding U.S. passports), for example, resided in Camp Roj for over a year. Samantha’s family member claimed that during her time in detention, the FBI was using her as a convenient intelligence source. Indeed, federal prosecutors admitted to having had her as a source for the Federal Bureau of Investigation (FBI) before she and her husband left to Syria but said that their engagement with Samantha at that time “was not a part of terrorism investigation.  Whether or not she was used as an informer while in Camp Roj is not publicly known.
On another note, it is not uncommon to hold detainees away from home to learn if they will confess while being held outside the country. As Robin Wright found in her interviews, “Americans who want to leave [camps in Syria] are primarily, if not entirely, at the U.S. government officials’ mercy for relief. Such a grasp on one’s fate presents profound leverage when it comes to extracting confessions to be used in a criminal prosecution. In this regard, the home governments of ISIS detainees held by the SDF may rightly or wrongly, depending on the perspective, utilize a profound leverage when it comes to extracting confessions, or taking statements of evidence on others, from those held in SDF territory for long periods of time without charges, to be later used in criminal prosecution. That being said, as was the case of Samantha Elhassani, the delays in repatriating her two American passport-holding children and two U.S.-eligible children may cause considerable risk of harm and danger from disease, illness, and additional psychological harm without adequate care for their psychological traumas endured while living under ISIS and also while waiting to be returned home.
Others who left for ISIS from the U.S. and who were not promptly returned include Hoda Muthana, whose American citizenship is under dispute. Waiting for her case to be resolved, Muthana, along, along with her sickly toddler son, also currently languishes in Camp Roj, where she fears her young son could die of a respiratory failure. He also is separated from his American green card holding grandparents.  An American with dual American-Saudi citizenship was also picked up in Syria by the SDF and held in Iraq by the U.S. forces. Initially, he was held on strong suspicions that he had fought for ISIS. He was freed after being in U.S. custody for more than a year.  Such is the current U.S. legal landscape.
There are more European than U.S. foreign fighters in the SDF custody. Some are known or suspected to have carried out heinous crimes. This could potentially be problematic in the case of European countries with less robust counter-terrorism laws. Likewise, women who went as wives and mothers have been impossible to prosecute under existing domestic or EU laws in some countries, and many men have also managed to return home to the EU without being prosecuted, which raises fear levels among Europeans of an ISIS detainee immediate comeback. Some countries, like Germany, have found a way around some of these challenges by prosecuting some of these women who might otherwise not be prosecutable, for having lived in homes taken from Syrians by ISIS or for the crime of having held a Yazidi slave. 
While Belgium has recently shown resolve to repatriate its nationals, namely by repatriating six parentless children of ISIS fighters from Syria, four other Belgian children have died in the camps, one dying shortly after birth just last week. ICSVE researchers also talked to a Belgian mother who was terrified her child detained with her in an SDF-run camp would die under frequent asthma attacks, citing numerous incidents where her small child’s lips turned blue as he struggled to breathe the dusty air. The mother was willing to send her child home to live with family members in Belgium but has not received permission from Belgium to send him out. Another 8-year-old girl born in Belgium and holding Belgian citizenship told ICSVE researchers that she wished to return home to attend school.
While the fates of these children of ISIS parents are at times quite dire, their parents’ European countries appear to be doing little to nothing to bring them home. Meanwhile, legal issues mount over whether ISIS fighters and their family members can be held indefinitely and without formal charge by a non-state armed group, or even without entering some legal proceeding in SDF territory or elsewhere.
While there are no easy solutions to these complex challenges, the SDF appears to remain resolute and organized to keep the detainees for the foreseeable future. The U.S. and Coalition troop presence are also still there to ensure that ISIS prisons are not overrun, as they were in Iraq some years back, resulting in the release of many terrorists and terrorist suspects. Likewise, an international tribunal established in SDF territory is also unlikely to materialize – at least not under UN or ICC auspices for reasons discussed above. Advocating for it may buy Europeans more time, but the reality is that a UN-dictated tribunal would only address serious international crimes (e.g. war crimes, genocide, crime against humanity) and it would also need to address more than just ISIS criminal acts. In addition, they could only be set up with that government’s agreement. Given that the Assad regime carried out more killings and war crimes than ISIS, the Assad regime is unlikely to agree to an international tribunal. Neighboring Iraq is also unlikely to agree to an external court operating on its territory, as it would require constitutional changes and approval, and if it were to be established, additional issues would be raised concerning crimes carried out by the Iraqi state and by the Shia militias. Problematic would also be the question of whether the tribunal would endorse the death sentence as Iraq currently does, highly improbable given the UN’s anti-death penalty stance, and if it would also allow convictions based on[often forced]
confessions weighing as strongly as actual evidence presented to the court, as is currently the practice in Iraqi courts.
Any of the to-date proposed tribunal alternatives are thus unlikely to resolve the pressing issues of how long ISIS prisoners can be held without charges by an armed non-state actor such as the SDF. On the SDF side, their hope is for recognition as a semi-independent state within Syria, although that process, if it is ever to occur, will also take considerable time and political bargaining. Repatriation of ISIS foreign fighters and their family members thus remains the most likely way to observe the rule of law by those countries whose citizens joined ISIS and are now being held by the SDF in Syria. Repatriation and prosecution at home is at the same time likely to minimize the risk for wider societal radicalization, namely by diminishing grievances with ISIS cadres’ family members and wider social circles. This should be a hopeful solution given that Europe’s robust socialized medicine and now burgeoning de-radicalization/disengagement sector could engage these former ISIS members in rehabilitation and reintegration efforts following successful prosecutions.
Many European countries face the additional challenge of their refusal to deal with the SDF due to its alleged dominance by the YPG, a group known to have ties and history with the PKK, which is a group designated by both the EU and the U.S. as a terrorist organization. Given the reluctance by many European governments to deal with the SDF, they would likely benefit from additional and expanded networks of those already engaged in the field and doing research on ISIS and the recent conflicts in Iraq and Syria, such as the U.S. government or other entities (or a combination of all) to eliminate political, legal, and public opinion related obstacles to help with the repatriation.
Likewise, given concerns by EU countries over prosecution, both the SDF and the UN’s International, Impartial, and Independent Mechanism (IIIM), with the latter only recently after a year’s work having been set up in Syria, need to become more active helping EU country prosecutors gather evidence to ensure successful prosecutions. In this case, the SDF could further strengthen information-sharing with IIIM on ISIS detainees and ISIS victims to be used in trials. A recent case in Germany serves as a success story on how countries and NGOs working together were able to bring a Yazidi mother to testify in court against the ISIS “owners” of her child, who was allegedly killed by them.
ICSVE is also able to offer some assistance in this regard, as we have now interviewed a significant portion of the Europeans held by the SDF and understand well the many nuanced issues involved in the histories of many of these ISIS cadres that can be helpful in trying to both prosecute and rehabilitate them. We are also able to offer information to country authorities from our research interviews that may be useful in deciding whether or not to bring a detainee home. Currently, our practice is to ask each detainee held by the SDF at the end of their in-depth interview, lasting about 1.5 hours, if they would like the notes from their interview passed to their country’s justice authority. Most have answered positively (on video) saying they wish to be prosecuted at home. As researchers, we have omitted any incriminating evidence as to potential crimes involved, other than their admitting to having lived and served the so-called Islamic State which is usually obvious in the manner in which they were arrested or in their surrender. Some of these appear to have deradicalized and are now repentant, while others simply want to return and face justice at home. Most also appear fearful of being turned over to the Iraqi or Syrian government, where many would likely receive death sentences or life imprisonment and could potentially suffer torture. They prefer returning to their home countries and facing justice there. At present, the detainees interviewed by ICSVE researchers tell us the SDF does not engage in torture or mistreatment.
Having interviewed over 160 ISIS cadres and their family members in Iraq, Syria and elsewhere, and given our presence in the region, we are actively engaged in the process of removing legal, political, risk-related, public opinion-related, and logistical challenges that are often cited as main obstacles to successful repatriation of ISIS fighters and their families in Iraq and Syria. For instance, we are currently working with some European governments to bring their citizens back when we are able to offer information from our research interviews (with the detainees full permission) of many of these ISIS cadres, that can be helpful in trying to help them face justice and rehabilitate them upon return. Emphasis in our work is placed on both ethical and legal safeguards that ensure nothing is shared without permission and that there is careful handling of their sensitive information and responsible transfer of detainees to their respective countries. We are also engaged in preliminary detainee psychological assessments to determine tendency for continued extremist behavior both while in the camps and in the event of their release and repatriation. While we are only a small think tank, we also see the U.S. government having a responsibility to continue to assist in such efforts given the president’s demand for these ISIS cadres to be repatriated.
Although repatriation is a complex process, we must continue to highlight responsibility on the part of the public and the governments to repatriate their citizens. Despite the U.S. and some other European governments’ willingness to address and focus on the issue, security concerns in the SDF-run prisons, the prospect of the Assad regime, or even Turkey, overtaking the territory acquired by SDF, and the ever-shifting policy on the U.S. presence in Syria render the issue of repatriation rather urgent. All of our governments need to do more in this regard.
About the authors:
Anne Speckhard, Ph.D., is Director of the International Center for the Study of Violent Extremism (ICSVE) and serves as an Adjunct Associate Professor of Psychiatry at Georgetown University School of Medicine. She has interviewed over 600 terrorists, their family members and supporters in various parts of the world including in Western Europe, the Balkans, Central Asia, the Former Soviet Union and the Middle East. In the past two years, she and ICSVE staff have been collecting interviews (n=169) with ISIS defectors, returnees and prisoners, studying their trajectories into and out of terrorism, their experiences inside ISIS, as well as developing the materials from these interviews. She has also been training key stakeholders in law enforcement, intelligence, educators, and other countering violent extremism professionals on the use of counter-narrative messaging materials produced by ICSVE both locally and internationally as well as studying the use of children as violent actors by groups such as ISIS and consulting on how to rehabilitate them. In 2007, she was responsible for designing the psychological and Islamic challenge aspects of the Detainee Rehabilitation Program in Iraq to be applied to 20,000 + detainees and 800 juveniles. She is a sought after counterterrorism expert and has consulted to NATO, OSCE, foreign governments and to the U.S. Senate & House, Departments of State, Defense, Justice, Homeland Security, Health & Human Services, CIA and FBI and CNN, BBC, NPR, Fox News, MSNBC, CTV, and in Time, The New York Times, The Washington Post, London Times and many other publications. She regularly speaks and publishes on the topics of the psychology of radicalization and terrorism and is the author of several books, including Talking to Terrorists, Bride of ISIS, Undercover Jihadi and ISIS Defectors: Inside Stories of the Terrorist Caliphate. Her publications are found here: https://georgetown.academia.edu/AnneSpeckhard and on the ICSVE website http://www.icsve.org Follow @AnneSpeckhard
Ardian Shajkovci, Ph.D., is the Director of Research and a Senior Research Fellow at the International Center for the Study of Violent Extremism (ICSVE). He has been collecting interviews with ISIS defectors and studying their trajectories into and out of terrorism as well as training key stakeholders in law enforcement, intelligence, educators, and other countering violent extremism professionals on the use of counter-narrative messaging materials produced by ICSVE both locally and internationally. He has also been studying the use of children as violent actors by groups such as ISIS and how to rehabilitate them. He has conducted fieldwork in Western Europe, the Balkans, Central Asia, Africa, and the Middle East, mostly recently in Jordan and Iraq. He has presented at professional conferences and published on the topic of radicalization and terrorism. He holds a doctorate in Public Policy and Administration, with a focus on Homeland Security Policy, from Walden University. He obtained his M.A. degree in Public Policy and Administration from Northwestern University and a B.A. degree in International Relations and Diplomacy from Dominican University. He is also an adjunct professor teaching counterterrorism and CVE courses at Nichols College.
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