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After Yugoslavia and Rwanda, what would an International Court for Isis look like?

There are numerous challenges to ensuring that the thousands of Isis fighters imprisoned in north-eastern Syria face justice.

On 22 June, at a press conference in north-east Syria, Australian diplomat Jon Philp parried three hurried questions on the repatriation of Isis-linked children from the Autonomous Administration of North and East Syria, more commonly known as Rojava. An expected repatriation announcement didn’t materialise. Instead, the diplomat presented his hosts with a “real Australian boomerang” and disappeared offstage without addressing the issue.

The next day, news broke that eight children had in fact been returned to Australia, following a months-long negotiation and a protracted media campaign by their grandmother. The expenditure of so much effort on just eight vulnerable children – and the way the transfer was framed as a “rescue mission” by the Australian press, not a peaceful negotiation between allies – indicates the difficulty of achieving justice for the 15,000 foreign nationals detained in north-east Syria. These are, following the Kurdish-led Syrian Democratic Forces’ defeat of Isis in March, 1,000 to 2,000 male fighters and over 13,000 Isis-linked women and children.

The humanitarian situation is dire, and the region does not have the resources to put them on trial. Isis is re-organising in the camps. Piecemeal repatriations are making only a tiny dent in their number. As such, the Autonomous Administration is calling for an international tribunal for Isis fighters, to be held on the ground in Syria. Officials have been hazy on what this would look like in practice, while long articles ruminating on the issue have curtly dismissed the idea as “unworkable”. 

Fortunately, historical blueprints exist in the form of the ad-hoc international tribunals set up to try crimes committed in Rwanda and the former Yugoslavia. The New Statesman spoke to Jean Flamme, a lawyer with experience both of the Rwanda tribunal (ICTR) and the International Criminal Court, to understand what the proposed tribunal could look like – and what we can learn from the errors of previous efforts.

Flamme supports repatriation where possible – “so long as there is no international tribunal, the Belgian state should repatriate them and judge them,” he says of his own government. But since March, EU states have brought back just 41 young children. For adult fighters, there is virtually no movement whatsoever.

The other option is Iraq, which is demanding $10bn up front, then $1bn annually, to expatriate and try foreign fighters in SDF custody, and which hands out death sentences following ten-minute trials without access to a lawyer. “In Iraq people are tortured in the prisons – if you obtain confessions under torture they are worth nothing,” Flamme says. North-east Syria called off prisoner transfers to Iraq following their decision to execute French-national Isis fighters, Dr Abdulkareem Omar of the Autonomous Administration told the New Statesman.

The Autonomous Administration have put themselves forward as alternative hosts. Officials note they abolished the death penalty following the establishment of autonomy. Having been trusted to lead the military fight against Isis with respect for international humanitarian norms, they should be trusted on this as well, they say.

"The people of this region are witnesses to the terrorism carried out here. Isis need to be put on trial in the place they committed their crimes," says leading northern Syrian politician Asya Abdullah.

“Justice must be seen,” says Flamme, echoing Abdullah's words. “The advantage of a [local] tribunal is that justice is much more visible to the people who have suffered.” Similarly, a local court with local witnesses would have more legitimacy in the eyes of restive, Isis-sympathetic sections of the population than an opaque process far away in The Hague.

A successful tribunal could achieve what the ICTY itself described as a “shift from impunity to accountability… bringing justice to thousands of witnesses and giving them a voice,” allowing for the “establishment of facts” for the historical record. Like the ICTY, it could run in parallel both with local criminal justice mechanisms for those fighters not tied to war crimes, and with foreign nations’ own justice efforts.

Yet Flamme’s assessment of the ICTR is gloomy: “a waste of time and money.” His principal complaint is that the ICTR targeted Hutus who carried out the genocide against the Tutsis, overlooking Tutsi officials like Paul Kagame who were also tied to war crimes yet enjoyed effective impunity.

“It’s a victor’s justice, it’s not objective,” Flamme says. “Justice must be complete, or it should not exist.”

He insists an international tribunal would need “competence to judge all war crimes, crimes against humanity and genocide, committed in a certain time on Syrian territory,” by all parties - especially “the regime, the Russians…”

It’s a big ask. The primary obstacle standing in the way of a tribunal is Russia’s presence on the UN Security Council, the body that established the ICTY and ICTR. Russia has vetoed all global justice efforts to date over the Syrian conflict, thus rendering the tribunal an apparent non-starter.

Flamme proposes two ways out of this impasse: “We can forget a creation of a tribunal by the Security Council, but this leaves open the creation of a tribunal by the General Assembly, which is in fact [the Assembly’s] competence.

“Another possibility is that the EU would create a tribunal, which would not be recognised by China or Russia… but even an international tribunal doesn’t have to be recognised by every country in the world.”

As Flamme notes, inductees’ refusal to accept the legality of the ICTR and ICTY didn’t keep them from getting convicted; nor has the USA’s refusal to recognise the International Criminal Court stopped it from securing convictions. Even if some parties are tried in absentia or some states refuse to recognise the tribunal, it can still serve a purpose.

Secondly, Flamme says an international tribunal can only target “big fish” tied to war crimes, genocide and crimes against humanity, and not “lower executants”, ordinary soldiers who must be tried in “specialised, mixed-composition local chambers … with one or two international, together with national, judges.”

This was another failure in Rwanda. To Flamme, traditional "Gacaca" courts set up to handle the overwhelming post-genocide caseload failed to respect basic legal norms.

In north-east Syria, there is a young but functioning judiciary providing defence lawyers and the right to appeal, which has tried around 7,000 local Isis fighters to date. With international support and training, this system could become a viable partner organisation, trying international fighters on criminal charges.

Asya Abdullah calls for international support for the “the preparation of evidence” and the “establishment of the court”, Flamme says that at present “the infrastructure may be insufficient” to hold the tribunal in Syria – for example, local women found guilty of Isis support are currently let free as there is no women’s prison to hold them.

To Abdullah, north-east Syria needs “political status as a guarantee” if the court is to go ahead. With the constant threat of Turkish invasion, like the one which destabilised and installed thousands of jihadist proxies Afrin, it is impossible to guarantee the continued secure detainment of thousands of Isis prisoners.

More broadly, political status would allow Syria to open up to international aid, trade and investment, and put infrastructure in place both for the tribunal and long-term regional security. At present, this seems a distant possibility. The British government has preferred to wash its hands of its citizens in Syria while cutting all cash aid to those responsible for their upkeep and protection.

Any international tribunal in Syria would require both a sea change in international relations to the autonomous region, and a unique legal mechanism like Flamme’s proposals. To this end, an international forum is being convened in NE Syria at the start of July. International legal experts will meet with policy-makers, anti-terror experts and local politicians like Abdullah to discuss the next steps to take.

The past month has also seen a slew of foreign delegations visiting Syria – Belgium, Holland, France, Sweden – and pan-European discussions on the international tribunal. Swedish home affairs minister Mikael Damberg has said the tribunal “would take time and require cooperation between many parties, as was the case for previous tribunals… because something is hard is no reason to fail to investigate the possibilities."

Thousands of Isis members are being held without trial, in conditions not so far from those where the organisation first arose. Isis sleeper-cell attacks are increasing month-on-month in north-east Syria, claiming lives every day. In the area’s refugee camps, young children are growing up steeped in Isis ideology by unrepentant mothers.  

To Flamme, “Western states’ international obligation is to create that international court, either locally over there, or in The Hague.” The challenges facing the tribunal are enormous: but what is truly "unworkable" is to do nothing.