Sentenced to death: the difficult case of ISIS’s European fighters

The repatriation of ISIS’s European fighters is one of the most pressing and divisive issues that Europe is faced with today. Politicians have been reluctant to repatriate them and to risk another attack on European soil. However, member states’ current disengagement is not a viable long-term solution to the problem and has wider practical, legal, and ethical implications for the EU and what it stands for. The EU must hold its fighters accountable.

Since the beginning of the Syrian conflict in 2011, 40,000 foreign fighters have joined ISIS, out of which more than 5,000 have been European citizens (Barrett, 2017). Hundreds of them have been detained and judged in Northern Syria and Iraq, while the European Union (EU) governments have repeatedly refused repatriation (Cebrian, 2019). Iraq has long protested against what it sees as an outsourcing of the legal responsibility of the EU, but EU governments still do not have a coherent policy to handle those who have joined the terrorist group (Dworkin, 2019). The risk of another attack on European soil is a threat that no country is willing to undertake. However, current European disengagement poses a clear challenge to the fundamental values endorsed by the EU. Member states are allowing their citizens to be sentenced to death abroad in foreign courts, although that would not be allowed in the EU. By refusing a judgement in domestic courts to those who have turned their back on their country, the EU is not only disregarding the principle it was founded on and the rule of law but betraying its long-standing opposition to capital punishment and its commitment to human rights.

The EU’s current response to the challenge

Member states are refusing to take responsibility for their citizens who have joined Daesh. On October 17, 2019, French Minister of Foreign Affairs Jean Yves Le Drian travelled to Iraq to negotiate an accord with the Iraqi authorities (Irish, 2019). But why is France willing to go to the trouble of creating a complex legal structure to have Iraq deal with the returnee problem? Governments have been reluctant to defy a public opinion hostile to repatriation and with little sympathy towards those who have joined the terrorist group. In France, 89% of the population has spoken against the return of French adult Jihadis (Cebrian, 2019). The hostility is particularly strong in France, as the Paris Attacks in November 2015 that killed 130 people, were perpetrated in part by French and Belgian nationals who had returned from fighting for ISIS (Callimachi, 2016). Faced with such strong public opposition to repatriation, letting Iraq handle the returnee problem is seen as an attractive solution.

Adult fighters who are captured in Northern Syria by the Kurdish-led Syrian forces are being transferred to Iraq (Foltyn, 2019). As the Syrian Democratic Forces (SDF) do not have international diplomatic and legal recognition, they cannot prosecute foreign fighters, instead leaving the task to Iraqi courts (Maher, 2019). To justify this decision and the death sentence of ISIS French nationals in May 2019, Macron invoked Iraqi justice and the principle of non-interference (BBC, 2019). His claim was supported by Britain and Belgium who stated that their nationals who fought for the Islamic State should be judged in the countries where they have committed the crimes (Euronews, 2019).

But governments’ reluctance to handle the case of ISIS returnees also stems from a lack of coherent procedures required for repatriation, which would require a consensus among European nations (Cebrian, 2019). Because of the free movement zone in the Schengen area, a French person could carry out an attack in Spain (Cebrian, 2019). Placing the responsibility on Iraq and Syria is a way to limit the risks of an ISIS returnee walking free in Europe. Many legal experts have been concerned that evidence against returnees may not stand in European courts (Maher, 2019). Collecting evidence in Syria is no easy task, especially after the Turkish intervention (Dworkin, 2019). European citizens who have travelled to ISIS-controlled territories without actually engaging with combat cannot be easily convicted (Maher, 2019)? Because of the difficulty of collecting evidence and proving that a crime has been committed beyond that of being affiliated to Daesh, it is unclear how these European citizens could be sentenced in domestic courts. To respond to this threat, the EU has recently strengthened its legislation by criminalizing “travelling within, outside or to the EU for terrorist purposes” (Council of the EU, 2017). Yet, convicting foreign fighters remains a difficult legal problem which is especially worrying as some return with the intention of carrying out attacks in their home country (Ragab, 2019). This concern has sparked a sentiment of fear that has led many to oppose repatriation. It is clear that European countries are not ready for the return of ISIS fighters. But to what extent is letting Iraq handle the case a viable policy?

The practical, legal, and ethical implications of European disengagement

Firstly, the United States’ (US) withdrawal from Syria and Turkish military intervention is forcing Europe to reconsider its position (Schulz, 2019). The Kurdish-led Syrian forces are currently handling the detention and transfer of foreign fighters but they no longer have logistical support from the US (Kaval, 2019). This coupled with a Turkish intervention has raised the risk of jihadists escaping and making their way back to Europe (Dearden, 2019). After the Turkish intervention into Northern Syria, 800 people escaped a jihadist prisoner camp (Kaval, 2019). The Kurdish Forces have warned Europe that if the Turkish forces continue to attack they will not be able to secure the prisons for long (Kaval, 2019).

US withdrawal has reignited the public debate over what Europe should do with its fighters detained in Syria and Iraq. The Kurdish forces, the leading component of the Syrian Democratic Forces (SDF), have criticized Western countries, saying that “what they have left us here is a bomb about to explode” (Kaval, 2019) and Trump has threatened to “drop them right at your borders” if the EU does not start to deal with the issue (Dearden, 2019). Turkish interior minister has called European behavior “not acceptable” and “irresponsible” (Euronews, 2019). In the face of growing international pressure, it is becoming increasingly difficult for Europe to justify leaving the problem to Iraq and Syria.

In addition to the long-term unsustainability of leaving European fighters in the custody of the Kurdish forces, there are multiple legal complexities that could force Europe to reconsider the current status-quo. Firstly, there is a clear lack of trust in the Iraqi justice system (Brown, 2019). Human rights groups have spoken against Iraqi authorities for inconsistencies in their legal procedures, leading some detainees to be convicted without sufficient evidence (Kar-Gupta and Rasheed, 2019). In May 2018, an Iraqi court sentenced over 40 foreign women after a trial that lasted only 10 minutes (Chulov, 2018). Those who have not yet been transferred to Iraq and are waiting for death in North-Eastern Syria, are detained by a political and military entity without international legal legitimacy and at the mercy of a Turkish intervention after the disengagement of the international community (Kaval, 2019). Prisoners have been denied proper treatment, both in Iraq and Syria, where the Kurdish forces do not have the means to handle them (Kaval, 2019).

Creating an accord with Iraq is also disputable regarding current European legislation. This strategy is currently pursued by the French government but would require the creation of a legal structure between the EU and Iraq which would meet the requirements of international and EU law (Schulz, 2019). This, however, appears to be irreconcilable with current Iraqi judicial practices. French judge David de Pas has spoken against creating such an accord with Iraq (Pas, 2019). He notably invoked the public security threat of prisoners escaping from Kurdish detention camps and the risk of uncontrolled migration of jihadis towards Europe (de Pas, 2019).

Lastly, there are implications that threaten to fracture the very idea of the EU itself. The respect and enforcement of the rule of law are at the core of the EU. In light of this, Europe’s current attitude towards its ISIS fighters is undermining the principles it is meant to uphold as well as its credibility. As the rule of law does not extend outside the boundaries of the EU, member states do not technically have a legal obligation to repatriate their ISIS fighters. Yet by not doing so, they are clearly trying to accommodate the irreconcilable.

Article 2 of the EU charter on fundamental rights states that “no one shall be condemned to the death penalty, or executed” (European Convention, 2000). French minister of foreign affairs Le Drian stated that France is “opposed in principle to the death penalty at all times in all places” (Kar Gupta and Rasheed, 2019). Yet this statement, in line with article 66-1 of the French Constitution banning the Capital Punishment, was pronounced just as four Frenchmen were sentenced to death by hanging after France refused to bring them home in May (Reuters, 2019).

Europe must hold its fighters accountable

As the example of France has demonstrated, it seems that Europe cannot coherently defend this double thesis of commitment to the rule of law while allowing its own citizens to be sentenced to death. By doing so, European countries have made the political decision to renounce the obligations they have committed themselves to when adhering to EU legislation. In the words of French journalist Allan Kaval, Europe has “refused to answer the challenge from the Islamic State to the rule of law” (Kaval, 2019). In addition to the practical issue of leaving European fighters at the charge of Iraq and the SDF, a rule of law approach would be the best response to the ethical and legal challenges posed by preventing repatriation. It is clearly impossible for Europe to have one set of values at home and another abroad without betraying itself. For its future and for those who still believe in the European project, Europe must hold its fighters accountable.


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Author description:

Ombeline Lemarchal is an incoming third-year International Relations undergraduate at the London School of Economics (LSE). Previously, she gained experience at the Institute of Economic Affairs where she worked as a European policy intern. She has always been passionate about security-related issues, with a focus on Russia where she studied in 2019. She speaks French, English, Spanish, and Russian.

Another version of this article is also available on the European Student Think Tank.

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