C Explanatory memorandum,
by Mr Pieter Omtzigt, rapporteur
1 Introduction
1. The motion underlying this
report, which I tabled on 12 April 2019, was referred to the Committee
on Legal Affairs and Human Rights for report on 25 June 2019. The
Committee appointed me rapporteur on 1 October 2019.
2. As indicated in the motion, in March 2019, the Syrian Democratic
Forces (SDF), an armed opposition group, declared that Daesh (also
known as “Islamic State”/IS, ISIS or ISIL) had been “defeated”.
Over 5 000 of the “foreign fighters” who had constituted part of
Daesh were from European countries (with approximately 3 700 from
the United Kingdom, Belgium, France and Germany alone). Many of
them were accompanied by women and children. It was estimated that
over one-half of the foreign fighters had already returned to their countries
of origin. The return of foreign fighters poses serious security
risks for European societies.
3. In
Resolution
2190 (2017) “Prosecuting and punishing the crimes against humanity
or even possible genocide committed by Daesh”, the Parliamentary
Assembly reiterated its view that Daesh had committed acts of genocide
and other serious crimes under international law. It then called
for prompt and effective action to ensure prosecution of such crimes,
whether by national courts in the countries where the crimes were committed
or in other countries by application of universal jurisdiction,
or by the International Criminal Court.
4. The present report will analyse the current situation and
examine what progress has been made, with a view to making recommendations
for a stronger national and international response that recognises
the need to, at the same time, fight impunity and minimise threats
to security posed by Daesh foreign fighters returning to Europe.
There is a European interest in co-ordinating policies in this area.
5. In the course of the preparation of the report, the committee
held two hearings. On 9 November 2020, the committee heard Dr Lars
Otte, Senior public prosecutor from the Office of the Federal Prosecutor
General at the Federal Court of Justice in Germany, and Mr Sinan
Can, investigative journalist from the Dutch public television BNNVARA.
On 23 May 2022, another hearing was held with the participation
of Dr Leyla Ferman, Chair of Women for Justice (Germany), and Ms Naomi
Prodeau, lead lawyer of the investigations team from Free Yezidi
Foundation (Iraq). A questionnaire was also sent to national parliaments
via the European Centre for Parliamentary Research and Documentation
(ECPRD): I would like to thank the parliaments of the 25 member
States which replied.
2 The Assembly’s position to date
6. In
Resolution
2091 (2016) “Foreign fighters in Syria and Iraq”, the Assembly expressed
its view that States should act on the presumption that Daesh had
committed genocide and should be aware that this entailed a duty
to act under the 1948 United Nations Convention on the Prevention
and Punishment of the Crime of Genocide (the Genocide Convention).
The Assembly therefore called on member and observer States to fulfil
their positive obligations under the Genocide Convention by taking
all necessary measures to prevent genocide. It also called on them
to work out a comprehensive response to the foreign fighter problem,
striking the right balance between repression of criminal behaviour,
protection of populations and human rights, prevention of radicalisation,
deradicalisation and reintegration of returnees after appropriate
punishment has been served. The Assembly also called for addressing
the root causes of radicalisation. In this context, the Assembly
called on member and observer States to sign and ratify the Council
of Europe Convention of the Prevention of Terrorism (CETS No. 196)
and its 2015 additional protocol aimed at addressing the phenomenon of
foreign terrorist fighters (CETS No. 217).
Note
7. In
Resolution
2190 (2017) “Prosecuting and punishing the crimes against humanity
or even possible genocide committed by Daesh”, the Assembly reiterated
its view that Daesh had committed acts of genocide and other serious
crimes under international law. In this respect, it considered that
Daesh had committed genocidal acts against members of the Yazidi,
Christian and non-Sunni Muslim minorities. It then called on member
and observer States for prompt and effective action in accordance
with their obligation under the Genocide Convention to prevent and
punish acts of genocide, including by prosecuting any suspected
Daesh members who came within their jurisdiction or control, by
application of universal jurisdiction, and by prosecuting all offences
committed within their jurisdiction relating to Daesh’s activities
abroad. The Assembly also asked States to refrain from applying
their anti-terrorist legislation to the detriment of their universal jurisdiction
when examining cases involving crimes covered by the Rome Statute
of the International Criminal Court. It also called on the United
Nations to consider establishing a special judicial mechanism for
trying crimes committed by Daesh in Iraq, which could be based on
existing international or hybrid models, or a system based in the
Iraqi national courts with assistance from international experts.
8. In
Resolution
2263 (2019) “Withdrawing nationality as a measure to combat terrorism:
a human-rights compatible approach?”, the Assembly considered that
the practice of depriving of their nationality persons involved
in terrorist activities (including “foreign fighters”) or suspected
of such involvement might lead to the “exporting of risks” and went
against the principle of international co-operation in combating
terrorism. It underlined that such practice also undermined the
State’s ability to fulfil its obligation to investigate and prosecute
terrorist offences. The Assembly therefore called on member States
to review such legislation in light of international human rights
obligations, refrain from applying this measure and prioritise wider
use of other counter-terrorism measures (for example, travel bans,
surveillance measures or assigned residence orders).
Note
9. Finally, in
Resolution
2321 (2020) “International obligations concerning the repatriation
of children from war and conflict zones”, the Assembly was appalled
by the dire situation of children in Syria and Iraq whose parents,
believed to be affiliated with Daesh, were citizens of Council of
Europe member States. It was convinced that actively repatriating,
rehabilitating and (re-)integrating these children without further
delay were matters of human rights obligations and humanitarian
duty. To this end, the Assembly urged member States to take all
necessary measures to ensure immediate repatriation of these children,
regardless of their age or degree of involvement in the conflict,
and to repatriate them together with their mothers or primary care
givers, unless it was not in the best interests of the child.
3 The
Council of Europe member States’ policies on the return of Daesh
foreign fighters
10. European countries have, on
the whole, been reluctant to repatriate their national Daesh fighters,
and some have even taken active measures to prevent their return
from Iraq and Syria. In May 2019, the French foreign minister, for
example, said that French people who have fought in the Daesh caliphate
must be tried in the place where they committed their crimes. One
of the French nationals who had previously been transferred by the
SDF to an Iraqi detention centre has even claimed that France organised
his transfer, with French officials directly involved. In September
2019, the Dutch justice minister said that he had declined US assistance
to repatriate 10 women Daesh suspects and their children as their
return could result in “direct risks to the national security of
the Netherlands”.
Note Returnees who were involved
in terrorist-related activities and/or in armed conflict abroad
are understandably perceived as a security threat in member States.
Governments that repatriate their nationals have to reckon with
political consequences, as domestic populations focus on the potential
security threats, whether immediately, for those returnees who cannot
be detained or prosecuted, or in future, once any prison sentences
have been served.
11. In order to obtain additional information on the member States’
different approaches to the return and repatriation of Daesh fighters,
I sent a questionnaire to national parliaments via the ECPRD. I
have received replies from the following 25 member States: Austria,
Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland,
France, Germany, Ireland, Latvia, Lithuania, North Macedonia, the
Netherlands, Norway, Poland, Portugal, Romania, San Marino, Slovak
Republic, Slovenia, Spain. Switzerland, Türkiye and the United Kingdom.
Note
12. The questionnaire consisted of the following questions:
i Do your authorities have a policy
on deprivation of citizenship from terrorists, in particular Daesh
(also known as ISIS or ISIL) members and suspects?
- If possible, please indicate
how has this policy been applied in practice, to how many people
and with what results.
ii Do your authorities have a policy on repatriation of nationals
who are known or suspected to have been Daesh members?
iii How many Daesh members or suspects have returned to your
country?
- If possible, please
indicate how did these returns take place. For example, were they
undertaken independently by the persons concerned, did they involve
assisted repatriation, or did they result from involuntary deportation?
iv How are returning Daesh members or suspects treated on
arrival and following their return?
- Are any special measures in place to ensure the avoidance
of threats to national security?
- Are returning Daesh members subjected to any deradicalisation
process?
- Is there differential treatment depending on the age of
the person involved?
v Have any returning Daesh members or suspects been prosecuted
for criminal offences?
- If so,
for which offences?
- What was the outcome of the prosecution?
3.1 Deprivation
of citizenship
13. Concerning the first question,
it appears from the answers to the questionnaire that 11 member
States allow for deprivation of citizenship for terrorism-related
crimes or for joining a terrorist organisation (Austria, Denmark,
Finland, France, Germany, the Netherlands, Norway, Romania, Slovenia,
Switzerland and the United Kingdom). While some legislations require
a final conviction for a terrorist offence (for example Finland, Norway),
others provide for the possibility to strip nationality from a citizen
who is abroad and has joined an organisation that endangers national
security (for example Netherlands) or actively takes part in combat actions/operations
for an organised armed group or a terrorist organisation abroad
(for example Austria, Germany), without the need for a conviction.
Some member States have introduced or expanded these powers only
in recent years (for example Denmark, Finland, Germany, Norway in
2019). A UK citizen can be deprived of their citizenship if the
deprivation is conducive to the public good, and in cases of naturalised
citizens, if they have conducted themselves in a manner which is
seriously prejudicial to the vital interests of the United Kingdom.
In most member States, however, it is not possible to withdraw a
person’s nationality if that person would become stateless as a
result, in line with the prohibition included in Article 7.3 of
the European Convention on Nationality (STE No. 166).
Note
14. Some replies indicated that although domestic legislation
provides for deprivation of citizenship, no such procedure had yet
been completed (Finland, Germany, Norway and Slovenia). In the Netherlands,
14 nationals had been deprived of nationality without a criminal
conviction. In France, one of the largest European source countries
of foreign fighters, nationality deprivation is rare, with 13 reported
cases linked to terrorism-related convictions between 1996 and 2016.
The United Kingdom has made a more extensive use of citizenship revocation
compared to other countries, as approximately 150 persons linked
to terrorism and serious crime have been deprived of their citizenship
since 2010.
Note
15. The replies to this question suggest that contrary to what
Assembly
Resolution
2263 (2019) recommended, some member States have recently expanded
their powers of citizenship deprivation in relation to terrorism
and foreign fighters.
Note As already noted
by the Assembly, such a practice, beyond its human rights implications,
goes against the principle of international co-operation in combating
terrorism, reaffirmed in United Nations Security Council Resolution
2178 (2014).
Note This
resolution does not only refer to the obligation to prevent foreign
fighters from leaving their country of nationality or residence,
but also requires States to develop and implement prosecution, rehabilitation
and reintegration strategies for returning foreign fighters, which
seems more difficult when they are legally prevented from returning.
Note In fact, prosecuting authorities tend
to view deprivation of nationality as an encroachment on prosecution
interests.
NoteNote
3.2 Repatriation
16. As regards the second question,
almost all replies indicated that there was no active repatriation
policy for national Daesh fighters. Only Türkiye stated that it
repatriates citizens who are known or suspected to have been ISIS
members.
Note Although most countries claim
that nationals are entitled to return independently from Syria and
Iraq to the national territory, they prefer to analyse each situation
on a case-by-case basis, through consular assistance or diplomatic
channels. For instance, in France, the Conseil d’État rejected applications seeking
repatriation of French nationals (women and children) detained in
camps in Kurdish-controlled north-eastern Syria, on the grounds
that the repatriation would entail negotiations with foreign authorities
or intervention on foreign soil, and that such measures were indissociable
from the conduct of France’s international relations, an area in
which French courts had no jurisdiction.
NoteNote France
has however repatriated 29 orphaned or separated children (with
the consent of their mothers) between 2019 and 2020, but refuses
to repatriate adults.
17. In other countries, there have been recent developments concerning
the recognition of a legal obligation to repatriate nationals under
national law, particularly with regard to children and those facing
extreme hardship. In Croatia, a legal obligation has been introduced
to repatriate citizens suspected to have been Daesh members. In
Finland, the government decided in 2019 to actively try to bring
all children back, on the basis of the constitutional obligation
to ensure the basic rights of children. In Germany, the courts established in
2019 that a mother had to be repatriated with her three children
from the Al-Hol camp in Syria, in view of the catastrophic humanitarian
situation there and on the basis of the constitutional duty of the
State to protect the right to life and physical integrity.
Note
18. Some replies have expressly indicated that States have no
obligation under international law to repatriate nationals who are
known or suspected to have been Daesh members, including their children
(for example Norway). The question of whether such an obligation
arises under international human rights law, particularly having
regard to the situation of the camps or prisons in which they are
detained or live in Syria or Iraq, goes beyond the scope of the
present report and has already been partially addressed in the report
of Mr Stefan Schennach (Austria, SOC) on “International obligations
concerning the repatriation of children from war and conflict zones”
Note.
19. However, it should be noted that several human rights bodies
have already taken clear positions in favour of the return and repatriation
of foreign fighters and their families to their State of nationality,
on the basis of existing human rights obligations, but also with
a view to bringing Daesh fighters to justice for the crimes committed
in Syria and Iraq (or on European soil) and protecting their victims’
rights.
NoteNoteNoteNoteNote The UN
Committee on the Rights of the Child has recently held that France
violated the rights of French children detained for years in camps
in northeast Syria by failing to repatriate them, and that the State
had a positive obligation to protect them against an imminent risk
to their lives, having regard to the inhuman sanitary conditions
in which they lived.
Note The Committee
explicitly referred to the French authorities’ awareness of the
situation and their ability to intervene, as shown by previous repatriations
of children from camps in Syria and their co-operation with Kurdish
authorities.
Note The European Court of Human Rights (Grand
Chamber) will soon deliver a judgment or decision on similar cases,
concerning the failure to repatriate two French women and their
children who are being held in camps in north-eastern Syria. The
Court will have to establish whether France exercises jurisdiction
with regard to its nationals detained abroad, and if so, whether
the refusal to repatriate them amounts to a violation of Article
3 of the Convention (prohibition of inhuman or degrading treatment)
and Article 3.2 of Protocol No. 4 (ETS No. 46) (right to enter the
territory of the State of nationality).
Note
3.3 Number
of returnees
20. According to the replies to
the third question, the vast majority of Daesh returnees voluntarily
returned to their country of nationality or residence on their own.
There have also been deportations or extraditions from Türkiye to
France, Denmark, Germany, Ireland and Latvia. The total number of
returnees from conflict areas indicated in some of the replies are
as follows: 1 (Ireland, Latvia, Poland), 16 (Switzerland), 20 (Finland),
60 (the Netherlands), 75 (Denmark), 83 (North Macedonia), 97 (Austria),
122 (Germany), 300 (France)
Note and 360 (United Kingdom). Some delegations
stated that there have been no such returns to their countries,
or that it was not possible to know the exact number of returnees.
3.4 Deradicalisation
and other special measures upon return
21. A number of replies indicated
that deradicalisation measures (exit intervention programmes) are implemented
for returnees (Austria, Cyprus, Denmark, Finland, France, Germany,
Norway, Switzerland, Türkiye and the United Kingdom). Some States
conduct prior individual risk assessment (Austria, Cyprus, Denmark,
Finland and Germany). In Slovenia, the authorities argue that deradicalisation
measures are not necessary since deradicalisation is not possible.
Other replies stated more generally that Daesh members or suspects
are detained and kept for questioning, placed under surveillance
or prosecuted (see below). In case prosecution is not possible,
suspects may be kept in custody under special warrants issued by
the Ministry of Interior (Cyprus) or subjected to special terrorism
prevention measures, such as travel and movement restrictions, exclusion
areas or GPS monitoring (United Kingdom).
22. Some replies indicated that deradicalisation and disengagement
programmes are aimed at social reintegration (Cyprus, Finland, Norway,
Switzerland). Specific programmes and measures designed for child returnees
were also mentioned (Cyprus, Denmark, France and the Netherlands).
3.5 Criminal
prosecution
23. Many countries’ replies indicated
that the criminal prosecution of Daesh foreign fighters returning
from Syria and Iraq has been undertaken for terrorism-related offences,
such as membership of a terrorist organisation, participation in
terrorist activities, preparation of terrorist acts, support of
a terrorist organisation abroad, recruitment, receiving training
or travelling for terrorist purposes, as well as financing any of
these acts. Those returning to France are generally charged with
“association de malfaiteurs en vue de
préparer des actes terroristes” (association of wrongdoers
in relation to a terrorist enterprise). Other criminal offences
applied include illegal participation in armed conflict (Latvia),
involvement in a criminal organisation for the purpose of committing
especially serious crimes against humanity or peace, war crimes,
genocide, etc. (Latvia), entry and residence in conflict zones without
prior permission (Denmark); and entering or remaining in a designated
area outside the country (the United Kingdom).
24. According to the replies received, the numbers of prosecuted/convicted
returning foreign fighters are as follows: one prosecuted in Ireland;
1 convicted in Latvia; 1 convicted in Poland; 4 convicted in the
Czech Republic; 8 prosecuted in Portugal; 9 convicted in Norway;
15 convicted in Denmark; 103 prosecuted in Germany,
Note 400
convicted in Turkey.
Note In
some countries, criminal investigations are initiated against foreign fighters
who have not yet returned, and national or international arrest
warrants are issued (Denmark, France and the Netherlands). In certain
systems, they can be tried and convicted
in
absentia, which means that they are placed in detention
to serve their sentences upon return (France).
Note
4 Ensuring
justice and accountability for the crimes committed by Daesh foreign
fighters
25. As already noted in previous
resolutions, it is beyond question that Daesh and its supporters
have been variously responsible for or complicit in a wide range
of offences under national and international law, including terrorist
offences, war crimes, crimes against humanity such as sexual slavery,
imprisonment, rape, torture and murder, and genocide. In May 2021,
the United Nations Investigative Team to Promote Accountability
for Crimes Committed by Da’esh/ISIL (UNITAD) confirmed that there
was evidence that ISIS had committed genocide against the Yazidis
as a religious group, as well as war crimes and crimes against humanity.
Note With respect
to investigations into crimes committed against the Yazidis in Sinjar,
the number of perpetrators identified by UNITAD was 1 743, including
102 foreign fighters. It also identified evidence substantiating
the crime of direct and public incitement to commit genocide against
Shia Muslims, in relation to mass executions of unarmed cadets and
military personnel from Tiktir Air Academy in June 2014. In its
latest report, published in November 2021, UNITAD stated that investigations
into the commission of sexual violence against, and the enslavement
of members of the Christian community by ISIL remained a key line
of inquiry.
Note
26. Therefore, Daesh foreign fighters should be held to account
not only for terrorism-related offences, in line with UN Security
Council Resolutions 2178 (2014) and 2396 (2017) and national anti-terrorist
legislation, but first and foremost for the more serious international
crimes committed, including genocide, war crimes and crimes against
humanity. Although it may be easier to prosecute foreign fighters
for charges such as membership of a terrorist organisation, as the
evidentiary threshold is lower compared to the actual crimes committed,
the problem with this approach is that all foreign fighters receive
a similar and often lower penalty, regardless of their role and
whether they actively committed more heinous acts amounting to crimes
under international law.
Note To limit the charges to terrorism-related
offences fails to address the extreme seriousness of the crimes
committed by Daesh in Iraq and Syria.
27. The question is how and by whom those suspected of these crimes
should be prosecuted. Assembly
Resolution
2190 (2017) recalled that the primary responsibility for prosecuting
Daesh suspects lies on the States in which the crimes were committed,
in other words Iraq and Syria.
4.1 Prosecution
by the authorities in Iraq and Syria
28. Iraq has been prosecuting Daesh
suspects for some time, but the procedure lacks basic procedural safeguards
and results in indiscriminate, often disproportionate sentences.
In December 2017, Human Rights Watch (HRW) found “serious legal
shortcomings that undermine the efforts to bring ISIS suspects to
justice”, with “no national strategy to ensure the credible prosecution
of those responsible for the most serious crimes”; “authorities
appear to be prosecuting all ISIS suspects in their custody under
counter-terrorism laws, primarily for ISIS membership, and not focusing
on specific actions or crimes that may have been committed.” 7 374 people
had been charged with ISIS membership since 2014, with 92 sentenced
to death and executed – including one death sentence passed against
an ISIS cook. At the time HRW reported that Iraq held at least 20 000
ISIS suspects in detention, often in overcrowded and sometimes inhuman
conditions, with children detained alongside adults.
Note
29. In March 2019, HRW reported that in Nineveh province in northern
Iraq, judges were “requiring a higher evidentiary standard to detain
and prosecute suspects, minimising the court’s reliance on confessions
alone, erroneous wanted lists, and unsubstantiated allegations”:
failings that HRW had criticised in its earlier report.
Note Elsewhere,
serious concerns remained: in April 2019, Agnes Callamard, UN Special
Rapporteur on extrajudicial, summary or arbitrary executions, called
on the Iraqi authorities to “take appropriate steps to prosecute
the crimes perpetrated against the Iraqi people, including alleged
genocide, crimes against humanity and war crimes” and to “respect
fair trial guarantees, ensure victim participation and uphold the
right to truth.” Her statement followed the conviction and sentencing
to death of four senior Daesh figures for membership of Daesh, despite
evidence (including from the defendants themselves) of their complicity
in even more serious crimes.
Note
30. There are many foreign fighters amongst the detainees in Iraq,
including nationals of European States. In February 2019, it was
reported that 13 French nationals had been captured by the SDF in
Syria and transferred to the authorities in Iraq, where they would
be prosecuted. The 13 were part of a group of 500 transferred Daesh
fighters whom the SDF was expected to transfer to Iraq.
Note In June 2019,
it was reported that 11 French nationals had been sentenced to death
by hanging for simple Daesh membership.
Note The
trial judge stated that “the penalty is the death sentence, whether
they fought or not.” Observers suggested that France was in effect
“outsourcing” the judicial process to Iraq, despite the trials being
unfair and the punishment disproportionate.
Note It
has been claimed that “the death sentences of jihadists were handed
down on the basis of allegations of facts that were not clearly
stated, discussed or proven, following trials that were usually expeditious
and did not respect a number of the defendants' fundamental rights.
These procedures are therefore contrary to all the international
instruments ratified by France and Iraq.”
Note The French Commission nationale
consultative des droits de l’homme considered that France should
give priority to the return of its nationals sentenced to death
by the Iraqi courts, having also regard to the fact that French
courts had full jurisdiction to try such persons on the basis of
their nationality.
Note
31. According to more recent reports, while considerable efforts
have been made by the Iraqi authorities to bring former Daesh fighters
to justice, there are still “serious concerns” about the fairness
of the proceedings and the application of the death penalty.
Note Furthermore, Iraq
has not yet adopted an appropriate legal framework allowing for
the prosecution for war crimes, crimes against humanity and genocide,
which means that ISIS fighters can only be prosecuted under anti-terrorism
legislation.
Note Yazidis are not involved in these trials.
32. The prospects for prosecution of Daesh members in Syria are
even more complicated. This is primarily due to the multiplicity
of actors – Syrian, SDF/ Kurdish, other Syrian opposition groups,
Russian, Turkish, and US/ coalition military forces.
33. Syrian President Bashar al-Assad has stated that “Every terrorist
in the areas controlled by the Syrian State will be subjected to
Syrian law, and Syrian law is clear concerning terrorism. We have
courts specialized in terrorism and they will be prosecuted.”
Note It has been noted that “Syrian
criminal justice is not known for its guarantees of due process,
but rather its pre-trial torture and post-trial mass executions
after trials lasting several minutes… Justice in the Syrian system,
without due process and the protection of the rights of the accused,
is not the type of accountability that would be palatable to the
international community.”
Note More specifically,
prosecution of terrorist offences in Syria is said to suffer from
a lack of legal certainty in the applicable laws, disproportionate
sentencing, a lack of procedural guarantees such as effective legal representation,
public trials and appeals processes, and a lack of judicial independence.
Note
34. The fact that the great majority of Daesh detainees in Syria
are in Kurdish-led SDF captivity does not simplify the situation.
Although still controlling extensive territory, the SDF do not qualify
as a State entity and are not subject to legal obligations that
would ensure fair trial guarantees.
Note According
to a June 2019 report on trials of Daesh suspects in Rojava in Kurdish-controlled
Syria, the “people’s courts” consist of a bench of three judges
applying elements of Syrian law; there are defence lawyers and an
appeals process, torture has been prohibited and the death penalty
abolished. It was even reported that the SDF no longer transferred Daesh
suspects to Iraq, since people previously transferred had been executed
there.
Note Other reports have noted, however, that
“There are major concerns about due process, with suspects denied
the right to a lawyer and to appeal their sentences”
Note and
“there are few details about how justice is being carried out and
what safeguards, if any, have been put in place to ensure accused
fighters get a fair hearing.”
Note In July
2019, it was reported that over 7 000 Syrian Daesh suspects had
been tried and sentenced by these courts, with another 6 000 awaiting
trial.
Note However,
it has been reported that foreign detainees (Iraqi or European)
cannot be prosecuted, since the self-administration courts only
try Syrian nationals.
Note It also appears that these courts are
currently not able to prosecute Daesh fighters for international
crimes, such as genocide or war crimes.
Note Moreover, the management of prisons
and detention centres by the autonomous administration in Northeast Syria
poses significant challenges in terms of security, as shown by the
assault by Daesh on Ghwayran prison in Hasakah in January 2022,
which led to the escape of hundreds of Daesh fighters.
Note
35. Given that, for various reasons, the authorities – whether de facto or de
jure – in Syria and Iraq cannot generally be relied upon
at present to deliver justice according to international standards
and reflecting the gravity of the crimes committed, alternatives
are needed. Only two possibilities exist: some form of an international
or hybrid tribunal, and for foreign fighters, repatriation to their
countries of nationality, for trial before the domestic courts.
4.2 Prosecution
by an international or hybrid tribunal
36. My earlier report entitled
“Prosecuting and punishing the crimes against humanity or even possible genocide
committed by Daesh”
Note examined alternatives
to prosecution by purely national authorities in either the region
or in foreign fighters’ countries of nationality.
37. The most obvious solution seems to be prosecution before the
International Criminal Court (ICC). There are three legal avenues
towards achieving this: first, Syria and/or Iraq accepts the ICC’s
jurisdiction (territorial jurisdiction), which in 2017 I considered
to be unrealistic, and which still seems unrealistic today; second,
the UN Security Council refers the situation to the ICC Prosecutor,
which I considered unlikely in 2017 and consider even more unlikely
today, given the military involvement of Russia, which has a Security
Council veto, and the fact that such a referral would arguably relate
to the entire “situation” in Syria,
Note and
third, the ICC Prosecutor decides to investigate crimes committed
by a national of a State that is party to the ICC Statute (personal jurisdiction),
which the Prosecutor has so far declined to do. In 2015, the ICC’s
Prosecutor issued a “Statement on the alleged crimes committed by
ISIS”, in which she noted that although thousands of foreign fighters
had joined ISIS, some of whom might have been involved in the commission
of crimes under international law, ISIS was primarily led by nationals
of Iraq and Syria, and so the prospects of investigating and prosecuting
those most responsible within the leadership of ISIS appeared limited.
She thus concluded that “the jurisdictional basis for opening a
preliminary examination into this situation is too narrow at this
stage”.
Note Despite the Assembly’s
call to the ICC Prosecutor to reconsider this decision in light
of subsequent submissions by concerned parties (paragraph 8.3 of
Resolution
2190 (2017), the position has not changed since then.
38. Given the ICC’s paralysis, an alternative would be an
ad hoc international tribunal or
some form of ‘hybrid’ (national/ international) tribunal. In 2017,
I noted that “The UN Security Council has adopted resolutions establishing
ad hoc international criminal tribunals
twice in the past, for the former Yugoslavia in 1993 and for Rwanda
in 1994. There have also been various special courts based on agreements
between the national authorities of the State in which relevant
offences were committed and the United Nations, such as the Special Court
for Sierra Leone, established in 2002, and the Special Tribunal
for Lebanon, established in 2007. Another model might be the special
“hybrid” judicial mechanisms within the domestic legal system, such
as the Special Panels for Serious Crimes in East Timor, established
in 2000, the Extraordinary Chambers in the Courts of Cambodia, established
in 2001, or the War Crimes Chamber of the State Court of Bosnia-Herzegovina, established
in 2004, in which international judges sit alongside national ones.”
One could also mention in this context the Kosovo Specialist Chambers
(part of the Kosovo*
Note judicial system, but located
in the Hague), established in 2015.
39. Although the UN Security Council has adopted resolutions considering
that Daesh constituted a global threat to international peace and
security through its terrorist acts and its continued gross, systematic
and widespread attacks against civilians, its violations of humanitarian
law and its recruitment of foreign terrorist fighters,
Note it is currently unlikely that it would
establish an
ad hoc tribunal
to prosecute and punish its crimes under Chapter VII of the UN Charter,
such as those set up for the former Yugoslavia and Rwanda in the
90s. A hybrid tribunal on the basis of an agreement between the
State in which the crimes were committed and the United Nations,
even if not necessarily requiring the involvement of the UN Security
Council,
Note is
practically impossible without the consent and active participation
of Iraq and/or Syria.
40. In 2019, the Swedish Government proposed the creation of an
international tribunal to hold Daesh fighters accountable, which
was supported by the Netherlands.
Note The legal basis for
such a court could be a multilateral treaty under which the parties
would transfer the jurisdiction they have over members of ISIS (active personality
principle) to the tribunal. The proposal was criticised as being
selective (addressing only one group involved in the conflict) and
perceived to be designed for European States to avoid their responsibility
to repatriate. It was also argued that without the participation
or co-operation of the territorial States (Iraq and Syria) and with
only a small number of States involved, the special tribunal could
only make a limited contribution to accountability and justice.
Note
41. Although I am aware of the practical difficulties facing the
creation of a new international tribunal, I continue to believe
that the best solution would be an international judicial mechanism
with a mandate to prosecute and punish international crimes committed
by Daesh members. If, as seems to be the case, the proposal for
a hybrid tribunal within Iraqi national courts (or a variant with
international experts) remains blocked,
Note member States should instead consider
establishing a fully international special tribunal. Such a tribunal
could have jurisdiction over Daesh members who have the nationality
of member States, are detained in Iraq and/or Syria, and cannot
face trial there in accordance with international human rights standards.
It would cover international crimes under customary international
law, especially war crimes, crimes against humanity and genocide.
Note The establishment
of this tribunal, possibly through a multilateral treaty, should
be actively supported by member States within the UN General Assembly,
the Council of Europe or the European Union. At the same time, Iraqi
authorities should be highly encouraged to participate in negotiations
with a view to establishing either a hybrid or a special international
tribunal.
4.3 Prosecution
by the authorities in Council of Europe member States
42. As noted above, most of the
replies from national parliaments to the questionnaire referred
to examples of prosecutions and convictions of Daesh returnees for
terrorism-related offences. Indeed, States are bound by UN Security
Council Resolution 2178 (2014) and by the 2015 Additional Protocol
to the Council of Europe Convention on the Prevention of Terrorism
(for those States that have ratified it) to criminalise the phenomenon of
foreign terrorist fighters, by establishing serious criminal offences
regarding the travel, recruitment and financing of foreign terrorist
fighters. This criminalisation applies, although not exclusively,
to acts committed by their own nationals, for instance the act of
travelling to a State other than the State of nationality or residence for
the purpose of terrorism (Article 4). Although there is no explicit
wording that would create the obligation to repatriate foreign fighters
living or held in detention abroad to their States of nationality
for the purposes of prosecution, UN Security Council Resolution
2178 (2014) establishes a general obligation to develop and implement
prosecution, rehabilitation and reintegration strategies for returning
foreign terrorist fighters. Moreover, the Council of Europe Convention
on the Prevention of Terrorism requires States to establish jurisdiction
when the offence is committed by a national of the State, regardless
of the place of commission.
Note
43. Furthermore, international humanitarian law and international
criminal law impose on States the obligation to prosecute certain
crimes, regardless of where they happened, such as war crimes,
Note as well as other crimes covered
by specific international treaties.
Note States have a right
under international law to assert jurisdiction over crimes against
humanity and genocide committed abroad, for instance by their nationals
or on the basis of the principle of universal jurisdiction.
Note Some
States that provide for universal jurisdiction over certain crimes
limit however its application to alleged perpetrators who are physically
present in their territory (for example the Netherlands).
4.3.1 Recent
examples concerning international crimes committed by Daesh members
44. Cases related to Daesh crimes
have been brought in several Council of Europe member States, most notably
in Germany, France, Sweden and the Netherlands.
Note
45. On 26 January 2021, the Court of Appeal of the Hague sentenced
a Dutch national who returned from Syria to seven years’ imprisonment
for participation in a terrorist organisation (IS) and war crime
of outrage upon personal dignity. While in Syria, the accused posed
next to a man who had been executed by IS and tied to a cross. In
the photo, later posted by the accused on Facebook, he appeared
to be proud and actively posing, the court finding that he had contributed
to the humiliation and degradation of the deceased person, placed hors de combat.
46. In January 2022, two independent organisations that collect
victim statements from Yazidis in Iraq reported that they found
evidence of Dutch ISIS fighters’ involvement in crimes committed
against the Yazidis. One of the victims, Layla Taloo, has testified
that she was enslaved and sexually abused by a Danish ISIS fighter
and his Dutch wife. However, there is no indication where the Dutch
wife is at the moment after she escaped from al-Hol detention camp
in Syria last year.
47. Germany applies universal jurisdiction less restrictively
than other States and consequently many more cases have been brought
before German courts.
Note On
30 November 2021, the Higher Regional Court of Frankfurt convicted
Taha al J., an Iraqi national, to life imprisonment for genocide,
crimes against humanity and war crimes. This was the first time
worldwide that a court recognised that the crimes committed against
the Yazidis amounted to genocide. Taha al J. joined ISIS in 2015
and “bought” a Yazidi woman and her five-year-old daughter who were
captured during the attack on Sinjar in 2014. Together with his
wife, he held the woman and child as slaves and forced them to practice
Islam. When the five-year-old girl urinated on her bed due to an
illness, he punished her by cuffing her to a window in the scorching
heat and letting her die in front of her mother. The German court
concluded that Taha al J. acted against the Yazidi girl and her
mother “with the intent to eliminate the Yazidi religious minority”.
The girl’s mother participated in the proceedings as a co-plaintiff
after an NGO identified and located her in Iraq; she was present
in the courtroom when the judgment was handed down.
Note In October 2021, the Munich Higher
Regional Court convicted Taha al J.’s wife (German national) to
ten years imprisonment for crimes against humanity and her involvement
in the death of the five-year-old Yazidi girl.
48. On 21 April 2021, a Higher Regional Court sentenced a German
national to 4 years and 3 months of imprisonment for participation
in a terrorist organisation, aiding and abetting the enslavement
of a Yazidi woman (crime against humanity) and pillage (war crime).
In 2015, the accused travelled with her three-year old daughter
to Syria to join IS. She became the spouse of an ISIL fighter and
was provided, free of charge, two dwellings appropriated by ISIL
as spoils of war. She often received the visit of another spouse,
accompanied by an enslaved Yazidi woman who carried out housework
or childcare tasks for the accused.
49. In Sweden, in March 2022, the District Court of Stockholm
sentenced a Swedish woman to six years imprisonment for enlisting
her son to ISIL armed forces (war crime). The accused took her then
11-year-old son to Syria in April 2013. Soon after arrival, the
boy was recruited and for two and a half years used as a child soldier
by ISIL armed groups. The boy died in Raqqa, Syria, at the age of
16.
50. In France, on 7 September 2021, the Criminal Chamber of the
Cour de cassation confirmed the indictment against Lafarge, a company
incorporated under French law, on the charges of complicity in crimes against
humanity, financing of terrorist activities and endangering the
lives of others. Lafarge’s local subsidiary operated a cement plant
in a region of Syria occupied by various armed groups, including
ISIL. The subsidiary made payments to these armed groups so that
the activity would not be compromised. The court found that Lafarge
financed, via its subsidiaries, ISIL activities through the payment
of several million dollars at that it had precise knowledge of the
actions of the organisation which were likely to constitute crimes
against humanity. The case has been remitted to the interlocutory
court for proceedings to move forward.
51. Finally, it is worth mentioning that in October 2021, France
and Sweden signed a Joint Investigation Team (JIT) to support proceedings
involving core international crimes committed by foreign terrorist
fighters against the Yazidi population in Syria and Iraq. The JIT
aims to avoid multiple interviews of the same victims, thus mitigating
the risk of re-traumatisation. States that are not formally JIT
partners may benefit from its work and actively contribute to the
collection of information regarding the involvement of their own
nationals.
52. From the examples mentioned above, we can see that several
convictions have been handed down with regard to female Daesh members.
As Ms Prodeau stated in our hearing of 23 May 2022, the Yazidi community is
often alarmed by the perception that female members were victims
themselves or by the possibility that they could escape culpability
on the basis of gender stereotypes. In some instances, female Daesh
members held Yazidi women captive or prepared them to be raped.
Therefore, it is extremely important to address the individual responsibility
of all returning Daesh members, including women, having regard to
the specific role they may have played in the commission of crimes,
including as supporters, facilitators or perpetrators.
Note
4.3.2 Evidentiary
issues
53. Assembly
Resolution 2190 (2017) recognised the significance of evidentiary issues to
the prospects for prosecution of Daesh suspects, notably prosecution
before an international tribunal outside the region or prosecution
of foreign fighters in their countries of origin. Problems such
as the preservation of material evidence, for example documentation
and burial sites, the recording of witness testimony and the availability of
witnesses to give evidence outside the region must be addressed.
Without sufficient, specific evidence, the chances of justice being
done for the extremely serious crimes that have been committed will
be drastically reduced.
54. Two international bodies have been established to investigate
violations of international human rights and humanitarian law in
Syria: the “Independent International Commission of Inquiry on the
Syrian Arab Republic”, created by the United Nations Human Rights
Council (HRC) in August 2011; and the “International, Impartial
and Independent Mechanism to assist in the investigation and prosecution
of persons responsible for the most serious crimes under International
Law committed in the Syrian Arab Republic since March 2011” (IIIM),
created by the UN General Assembly in December 2016. The Commission’s
mandate, as expressed in HRC Resolution 21/26, is “to conduct an
international, transparent, independent and prompt investigation
into abuses and violations of international law, with a view to
hold to account those responsible for violations and abuses, including
those that may amount to crimes against humanity and war crimes”.
The Mechanism’s mandate is “to collect, consolidate, preserve and
analyse evidence of violations of international humanitarian law
and human rights violations and abuses and to prepare files in order
to facilitate and expedite fair and independent criminal proceedings,
in accordance with international law standards, in national, regional
or international courts or tribunals that have or may in the future
have jurisdiction over these crimes, in accordance with international
law.” It should be noted that the mandate of both bodies extends
to acts committed not only by Daesh but by all parties to the conflict
in Syria.
55. The UNITAD was established in 2018 pursuant to UN Security
Council Resolution 2379 (2017). Although UNITAD’s term of reference
determines that the evidence gathered would be primarily made available
to Iraqi authorities, it also provides the possibility of sharing
evidence with other States to assist them in domestic prosecutions
against members of ISIS. The ability of UNITAD to collect testimonial
evidence from witnesses combined with its capacity to identity corroborating
internal ISIL documentation from digital battlefield evidence, has
been of particular assistance in supporting different national proceedings.
For instance, support was provided to the Portuguese authorities
with respect to the arrest of two individuals suspected of having
formed part of ISIL networks during its period of occupation of
Mosul. UNITAD has also established a dedicated database to collate
and cross-reference evidence relating to foreign terrorist fighters. It
also has an associate status with the Genocide Network supported
by Eurojust.
Note
56. These international UN mechanisms, while not being a court
tasked with prosecuting and trying individual perpetrators, have
become invaluable tools for the collection of evidence in support
of national jurisdictions. I believe that member States should further
support and engage with these investigative mechanisms, through
voluntary financial contributions, nomination of seconded national
experts, and by signing co-operation agreements with them with a
view to using their evidentiary material in domestic criminal proceedings.
57. With regard to access to battlefield evidence, the 2020 Eurojust
Memorandum on Battlefield Evidence suggested that in the past few
years several countries have used such evidence in criminal proceedings against
foreign terrorist fighters and other persons involved in armed conflicts.
Note It is also
important to note that the Committee of Ministers of the Council
of Europe has recently adopted a specific recommendation on the use
of information collected in conflict zones as evidence in criminal
proceedings related to terrorist offences (CM/Rec(2022)8, 30 March
2022). The recommendation states that member States should take
all necessary measures to ensure that information collected by military
personnel and intelligence services in conflict zones is admissible
as evidence under national criminal procedure laws. Member States
are also encouraged to develop their co-operation with other stakeholders
such as NGOs,
Note media
outlets and private companies and contractors in order to use the
information that they could have.
58. In this context, the “Operation Gallant Phoenix”, an initiative
of the US Government with its secretariat in Jordan, involves military
and intelligence services from 27 States as well as their police
authorities. It operates as a multilateral information-sharing platform
and has become a major source of information and evidence on foreign
terrorist fighters and their affiliates for law enforcement and
judicial authorities.
Note
4.3.3 Cumulative
prosecution
59. A report published in 2020
by the Genocide Network highlighted existing jurisprudence and national practices
to show that it was possible to cumulatively prosecute and hold
foreign terrorist fighters accountable for war crimes, crimes against
humanity and the crime of genocide, in addition to terrorism-related
offences (notably membership of a terrorist organisation).
Note Recent cases in several
member States (France, Germany and the Netherlands) seem to confirm
this trend, which usually leads to sentences significantly higher
than those handed down for terrorist offences only. For instance,
on 29 June 2021, the District Court of the Hague convicted a Dutch
woman to six years’ imprisonment for membership of a terrorist organisation
and participating in an organisation that has the purpose to commit
war crimes, for sharing videos showing ISIS prisoners being burned
alive and therefore affecting the personal dignity of the deceased.
The court considered for the first time that ISIS is not only a
terrorist organisation but also a criminal organisation with the
purpose to commit war crimes based on its inhumane and cruel treatment
of persons who do not adhere to their beliefs.
60. Cumulative prosecution takes better account of the gravity
of the offences committed by Daesh members and shows that anti-terrorism
legislation and international criminal law/international humanitarian
law can be complementary in ensuring comprehensive accountability
and proportionate sentences.
Note
5 Other
avenues for accountability: the question of State responsibility
for genocide
61. In parallel to prosecuting
Daesh members for international crimes in international or domestic
courts, the question arises as to whether certain States could be
held accountable before an international court for failure to comply
with their obligations under the 1948 Genocide Convention in relation
to the genocide committed by Daesh against the Yazidi and other
protected groups. Those duties include: to refrain from committing genocide
(by their own organs, agents or on their behalf);
Note to prevent genocide;
Note to
punish persons where the crime has occurred;
Note and
to enact necessary legislation to give effect to the obligations
under the Convention.
Note The duty to prevent is particularly important.
It requires a State to take measures to prevent the commission of
genocide the instant a State learns of, or should have learned of,
the existence of a serious risk that genocide will be committed.
From that moment onwards, if the State has means available to it
that are likely to have a deterrent effect on those suspected of
preparing genocide, or reasonably suspected of harbouring specific
intent, it is duty-bound to make such use of these means as the
circumstances permit. This is an obligation of conduct rather than
result, in the sense that States should “employ all means reasonably available
to them, so as to prevent genocide so far as possible”. For instance,
regard must be had to the “capacity to influence effectively the
action of persons likely to commit, or already committing, genocide”,
which depends
inter alia on
the strength of the links, or the geographical distance of the State
concerned from the scene of the events.
Note This duty may indeed apply extraterritorially.
Note
62. By virtue of Article IX of the Genocide Convention, disputes
between Contracting P arties relating to the interpretation, application
or fulfilment of the Convention, including those relating to the
responsibility of a State for genocide, may be submitted to the
International Court of Justice (ICJ) by any of the parties to the
dispute. The ICJ has held that all the States parties to the Convention
have a common interest to ensure that acts of genocide are prevented
and that, if they occur, their authors do not enjoy impunity. The
obligations in question are owed by any State party to all the other
States parties to the Convention. Therefore, any State party may invoke
the responsibility of another State party with a view to ascertaining
the alleged failure to comply with its obligations
erga omnes partes, and to bring
that failure to an end.
Note
63. Given the impossibility to establish the responsibility of
Daesh, as a non-State actor, before international courts, member
States could envisage bringing proceedings before the ICJ against
States which allegedly failed to prevent and punish the acts of
genocide committed by Daesh, or whose international responsibility may
otherwise be engaged under the Genocide Convention.
6 Conclusions
64. In
Resolution
2190 (2017), the Assembly reiterated its view that Daesh members
had committed acts of genocide and other serious international crimes
in Syria and Iraq. It called on member States to take prompt and
effective action in accordance with their obligation under the 1948
Genocide Convention to prevent and punish acts of genocide, and
their general responsibility to act against crimes under international
law, including by investigating and prosecuting any suspected Daesh
members who came within their jurisdiction or control on the basis
of the principle of universal jurisdiction. It also called on the
United Nations to consider establishing a special judicial mechanism
for trying crimes committed by Daesh in Iraq.
65. Unfortunately, there has been little progress in the implementation
of this resolution. With regard to the different venues for prosecuting
Daesh foreign fighters and providing justice, the prosecution in
Iraq and Syria does not seem to be an acceptable solution anymore.
Human rights considerations (fair trial standards, death penalty)
and the fact that there is still no legislative framework for prosecuting
international crimes makes it difficult for European States to maintain
the position that their nationals should be tried in these countries
since their crimes were committed there. Furthermore, the option
of establishing a hybrid judicial mechanism in Iraq, with some sort
of international participation, remains unlikely without the agreement
of the State concerned. In the absence of any other international
tribunal where Daesh foreign fighters could be tried, and given
the ICC Prosecutor’s position on the matter, member States should
give priority to the establishment of a special international tribunal
with a mandate to prosecute their own Daesh foreign fighters detained
in Syria and Iraq, with the involvement or support of the UN General
Assembly, the European Union or the Council of Europe. Iraqi authorities
should still be encouraged to participate in negotiations with a
view to establishing a special international tribunal or hybrid
tribunal.
66. Pending the setting up of such an international judicial mechanism
the most obvious option remains the prosecution of foreign fighters
before domestic courts of member States, on the basis of the active
personality principle or universal jurisdiction, as already suggested
by Assembly
Resolution
2190 (2017). Despite all the challenges and difficulties, particularly
in terms of access to evidence located in conflict zones, recent examples
from Germany (with the first ever conviction for genocide), the
Netherlands and Sweden show that member States have the capacity
to try Daesh members in Europe. By applying both anti-terrorism
legislation and international crimes such as genocide, crimes against
humanity and war crimes, prosecuting and judicial authorities are
in a better position to comprehensively address the complexity and
seriousness of the various offences committed by Daesh fighters,
while at the same time acting in conformity with States’ obligations under
international law. Recent successful convictions should indeed be
commended, but they remain limited compared to the number of returnees
and foreign fighters still detained in Iraq and Syria without facing
trial. Leaving these persons indefinitely in camps or prisons, with
the risk of further indoctrination and radicalisation by Daesh and
prison breakouts, may be counterproductive in terms of prevention
of terrorism and European and global security and does not contribute
to accountability. However, States should clearly prioritise genocide
as a criminal charge, at least with respect to crimes committed
against Yazidis and other affected minorities. They should also
address the criminal responsibility of all Daesh members, including
women, according to their actual role and involvement, and avoiding
gender stereotypes. Furthermore, they should design and implement
rehabilitation and reintegration strategies for all returnees, putting
emphasis on deradicalisation programmes for children and young adults.
These measures should in no way be a substitute for prosecution
and punishment of those criminally responsible.
67. Finally, in parallel to establishing the criminal responsibility
of individual members of Daesh before international or domestic
courts, member States should also envisage making use of other existing accountability
mechanisms, for instance by taking steps to hold States internationally
responsible under the Genocide Convention for the alleged failure
to prevent and punish the Daesh genocide. States had a legal obligation
to prevent the genocide that Daesh was committing, by impeding the
flow of foreign terrorist fighters to areas controlled by Daesh
and by effectively prosecuting the perpetrators as a means to deter
further crimes.
