Analysis | What should happen to foreign ISIS fighters in Iraq and Syria?
By: Institute For The Study Of Diplomacy
Tags: Diplomacy, Syria, Crime, ISIS, Iraq

Cira Mancuso

The following blog post draws on a report the author researched and published through the ISD Fellows in Diplomacy program. Read the full report.

A building destroyed by ISIS in Iraq (Image: Levi Meir Clancy on Unsplash)

At the height of its power, the Islamic State of Iraq and Syria (ISIS) boasted around 60,000 fighters — 40,000 of whom were citizens of a third country. When its territorial rule largely ended in 2017, the Syrian Democratic Forces (SDF) took responsibility for detaining ISIS fighters, including foreign fighters (non-Iraqi, non-Syrian individuals who left their country to fight for a non-state actor abroad). Currently, the SDF operates about half a dozen make-shift wartime detention sites, holding roughly 10,000 captive ISIS fighters, 2,000 of whom are foreign. However, Syrian forces are detaining foreign ISIS fighters in an increasingly precarious security environment.

Unfortunately, only a handful of countries have repatriated their fighters, and an even smaller number have comprehensive rehabilitation and reintegration programs for returnees. Instead, most governments, faced with security, legal, political, and social challenges, favor non-repatriation options, which fail to solve the problem.

Challenges to repatriation

The first challenge associated with repatriation, rehabilitation, and reintegration is the security challenge. Governments frequently describe ISIS fighters as battle-hardened individuals with extremist beliefs, connections, and skills. Consequently, many officials fear that repatriation could result in a “blowback” of attacks on domestic targets. Another challenge is the legal dilemma, primarily the difficulty of acquiring evidence proving crimes committed in Syria or Iraq. Not every country has a law similar to the United States where even attempting to join a terrorist organization is a crime, so prosecution depends on evidence of crimes committed abroad. The third challenge is political: the difficulty of overcoming public opposition to repatriating foreign ISIS fighters. Lastly, rehabilitating and reintegrating returnees is a social challenge. This includes deradicalization programs; the participation of religious counselors or scholars, and psychologists; leveraging familial structures and civil society organizations; access to employment; and mental health support.

Alternatives to repatriation

Given these challenges, most governments favor four commonly cited non-repatriation options. The first is to continue the status quo, meaning Kurdish forces continue to detain foreign ISIS fighters in a precarious security environment; however, many foreign ISIS fighters have already snuck back into their home countries. The potential consequences, such as a mass prison break that re-energizes ISIS’s forces, are undesirable. Additionally, fighters who are caught after their return are typically convicted of crimes such as terrorism, murder, or material support for a terrorist organization — the same crimes returnees would be charged for if repatriated.

The second option is to bring the fighters to trial in Iraq. wherein participating countries would transport foreign ISIS fighters to Iraq for trial and detention. However, the Iraqi judicial process has received criticism for its reliance on a broad terrorism law and use of torture. If Iraq took all foreign fighters, other countries would work with Iraq to create a legal framework that satisfies international and domestic standards. However, this would be a significant strain for the Iraqi justice system. If the legal framework included a protection against the death penalty, which is prohibited in European countries, Iraq would be required to emprison all foreign ISIS fighters, which it does not have the capacity to do.

A similar option is trials by the Kurds or the Syrian regime. However, the Kurdish autonomous administration is not a recognized legal entity internationally, raising questions about its legal right to prosecute foreign ISIS fighters. As for trials by the Syrian regime, the United States or European Union are wary of this option due to the lack of diplomatic relations with the Syrian government. Once foreign ISIS fighters are transferred to the Syrian government, the United States and European Union would lose access to information on these individuals, including critical intelligence.

The last option is to convene trials in existing international courts or to establish an international tribunal. The International Criminal Court (ICC) is the primary candidate; however, as non-members, Iraq and Syria are outside its jurisdiction. To date, governments in favor of establishing a tribunal have only considered Iraq and Syria have been considered as possible locations. The countries’ proximity to where ISIS committed its crimes means governments would not need to repatriate their fighters. However, Syria’s diplomatic isolation and the regime’s own crimes renders this option improbable. Establishing a tribunal in Iraq is also unfeasible as the 2005 Iraqi Constitution expressly states that “special or exceptional courts may not be established.” Furthermore, several questions would need to be addressed: Where would convicted fighters be held? If they are held in Iraq, then there is still the question of Iraq’s stability. Which states will fund it? What happens to those who are acquitted? Would it apply in Iraqi law, international law, or a hybrid?

Repatriation: the only viable solution

Despite the challenges, Kosovo, Saudi Arabia, and Kazakhstan offer frameworks for the rehabilitation and reintegration of foreign ISIS fighters after their return. Kosovo and Kazakhstan are countries that have repatriated their ISIS fighters, and Saudi Arabia allows the return of its ISIS fighters, though its record on repatriation is unclear because it censors that information. In regards to the security challenge, these countries demonstrate that comprehensive rehabilitation and reintegration programs mitigate the security risk, as these fighters are a far greater risk when they escape and return undetected than when they are repatriated and monitored. While countries argue that prosecuting foreign ISIS fighters is difficult because of the lack of evidence, these countries have successfully tried and sentenced foreign ISIS fighters domestically (see Appendix B of the paper for more, including successful convictions by European countries). As for the political challenge, the ways in which governments frame the issue can play a significant role in how citizens respond; the Kosovar government framed repatriation and reintegration as a necessary response to a security threat. Lastly, in terms of the social challenge, how foreign ISIS fighters rehabilitate and reintegrate will be connected to the effectiveness of the rehabilitation and reintegration programs.

Given the international security threat posed by the current situation, it is imperative that every government with foreign ISIS fighters repatriate and prosecute those they are able to charge with crimes. Governments should also fund and establish rehabilitation and reintegration programs both inside prisons for those it can prosecute, and outside prisons for those it is unable to charge. While there are challenges to repatriation, rehabilitation, and reintegration, Kosovo, Saudi Arabia, and Kazakhstan have proven that such challenges can be overcome. If governments do not act, foreign fighters will continue to escape, return to their home countries, or rejoin ISIS once again.