Addressing the issue of Daesh foreign fighters and their families returning from Syria and other countries to the member States of the Council of Europe
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly debate on
23 January 2023 (2nd sitting) (see Doc. 15591, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Pieter Omtzigt; and Doc. 15672, opinion of the Committee on Social Affairs, Health
and Sustainable Development, rapporteur: Mr Stefan Schennach). Text adopted by the Assembly on
23 January 2023 (2nd sitting).See also Recommendation 2244 (2023).
1. The Parliamentary
Assembly recalls its
Resolution
2091 (2016) “Foreign fighters in Syria and Iraq” and
Resolution 2190 (2017) “Prosecuting and punishing the crimes against humanity
or even possible genocide committed by Daesh”. It reiterates its
position that “individuals who act in the name of … Daesh … have perpetrated
acts of genocide and other serious crimes punishable under international
law” and that “there is conclusive evidence that Daesh has committed
genocidal acts against members of the Yazidi, Christian and non-Sunni
Muslim minorities”. Many of these acts, such as enslavement, sexual
slavery, rape, imprisonment, torture and murder, also amount to
war crimes and crimes against humanity.
2. The Assembly notes that both the United Nations Independent
International Commission of Inquiry on the Syrian Arab Republic
in 2016 and the United Nations Investigative Team to Promote Accountability
for Crimes Committed by Da’esh/ISIL (UNITAD) in 2021 concluded that
Daesh had committed genocide against the Yazidis. UNITAD has also
identified evidence of crimes committed against other groups, such
as Shia, Christians and other communities.
3. Numerous national parliaments have also formally condemned
Daesh’s actions as genocide or crimes against humanity. Several
criminal courts in Council of Europe member States have convicted
Daesh members of terrorism-related offences, war crimes and crimes
against humanity committed in Syria and Iraq. In 2021, a German
court convicted an Iraqi Daesh member of genocide, crimes against
humanity and war crimes, for cuffing a five-year-old Yazidi girl
to a window in the scorching heat and letting her die in front of
her mother, motivated by the intent to eliminate the Yazidi religious
minority. This is the first time that a court, anywhere in the world,
has recognised as genocidal a crime committed against a Yazidi victim.
4. The Assembly also recalls that States have a general obligation
under the 1948 United Nations Convention on the Prevention and Punishment
of the Crime of Genocide (the Genocide Convention) to prevent and
punish acts of genocide, including complicity in genocide. According
to the International Court of Justice, the duty of prevention requires
a State to employ all means reasonably available, taking into account
its capacity to influence effectively the actions of persons likely
to commit, or already committing, genocide. States therefore have
a legal obligation to prevent genocide the very moment a State learns
or should normally have learned of the serious risk of genocide,
for instance by preventing the travel, recruitment and financing
of foreign terrorist fighters who joined Daesh and who were likely
to participate in the commission of genocide, and by effectively
prosecuting the perpetrators as a means to deter further crimes.
5. Since the outbreak of the Syrian armed conflict in 2011, thousands
of foreigners from all over the world joined Daesh in Syria and
Iraq, including with their families. A considerable number of European
citizens were among them. In response to the phenomenon of foreign
terrorist fighters, United Nations Security Council
Resolution 2178 (2014) established and reinforced international obligations
to prevent and criminalise the travel, recruitment and financing
of foreign terrorist fighters. It also called on States to develop
and implement prosecution, rehabilitation and reintegration for
returning foreign terrorist fighters.
6. The Council of Europe reacted by adopting the 2015 Additional
Protocol to the Council of Europe Convention on the Prevention of
Terrorism (CETS No. 217), becoming the first international organisation
to set up a regional legal instrument to implement the obligations
imposed by the United Nations regarding foreign terrorist fighters.
However, this protocol, which came into force on 1 July 2017, has
to date been ratified by only 24 member States.
7. Although some Daesh foreign fighters returned voluntarily
to their countries in Europe or Central Asia, thousands of them,
including European citizens and accompanying family members, remained
in Iraq and Syria. Many are now held in detention in camps and prisons
in northeast Syria, under the authority of the Autonomous Administration
of North and East Syria, and in Iraq. In Syria, the autonomous administration courts
reportedly try only Syrian Daesh detainees but not foreigners (Iraqi
and European). Those interned in camps, including children, live
in substandard conditions and are exposed to violence, sexual abuse
and (further) radicalisation. Those held in Iraq are unlikely to
receive a fair trial in compliance with international human rights
standards and risk being sentenced to the death penalty. In addition,
Iraq has not yet incorporated international crimes in its domestic
legislation, and Iraqi courts therefore can only prosecute suspected
Daesh fighters under anti-terrorism legislation.
8. The Assembly considers that the continued detention of Daesh
foreign fighters in Syria or Iraq is untenable. Their prosecution
in Syria or Iraq is currently not an adequate and human rights-compliant
solution. It may also be counter-productive in terms of security
concerns, given the risk of further radicalisation by Daesh in camps
and the recurrence of prison breakouts, which may lead to an increase
in the number of foreign fighters returning to Europe. Council of
Europe member States should therefore reconsider their position
that national Daesh fighters should primarily be tried in the countries
where the crimes were committed.
9. The Assembly is convinced that the best solution would be
the prosecution of Daesh foreign fighters before an international
tribunal, given the international nature of the crimes committed,
including genocide, and also given that Daesh fighters come from
over 100 countries. Neither Syria nor Iraq is a Party to the International
Criminal Court (ICC) and the ICC Prosecutor declined in 2015 to
open a preliminary examination in relation to offences allegedly
committed by nationals of States Parties to the Rome Statute of
the ICC. There is a proposal for a hybrid tribunal within Iraqi
national courts with assistance from international experts, as set out
in Assembly
Resolution
2190 (2017), but this has not yet received the necessary political
support from the Iraqi authorities. The Assembly thus regrets that
there is still no international or hybrid judicial mechanism capable
of trying Daesh fighters for international crimes committed in Syria
and Iraq.
10. Pending the setting-up of an international or hybrid tribunal,
prosecution of Daesh foreign fighters in their State of nationality,
or in other member States providing for universal jurisdiction,
is the most obvious alternative to pursue to ensure accountability
for their crimes. The Assembly acknowledges, however, the challenges
national authorities face as well as the existence of legitimate
security concerns of their citizens with regard to the return of
individuals who have committed heinous crimes and joined a terrorist
group engaged in an armed conflict abroad.
11. The Assembly considers that foreign fighters who are suspected
of having taken part in genocide or in other serious international
crimes constitute a serious threat to society. It is an ideology
that drove them to commit such crimes, including genocide against
the Yazidis, and this ideology will not disappear on its own. The
Assembly considers that, taking into account the ongoing threat
posed by Daesh fighters, it is crucial to consider that their right
to family life under Article 8 of the European Convention on Human
Rights (ETS No. 5, the Convention) must be restricted if national
security or other legitimate grounds under Article 8, paragraph
2, so require. Furthermore, separation from their children may also
be necessary for the best interests of the child. The Assembly reiterates
that children should in principle be repatriated with their mothers
or primary care givers, unless it is not in the best interest of
the child, as already recommended in
Resolution 2321 (2020) “International obligations concerning the repatriation
of children from war and conflict zones”, or if it is not in the
best interest of society as a whole. States should, however, have
the possibility – following a determination of the best interest
of the child and of the interest of society as a whole in accordance
with Article 8, paragraph 2, of the Convention – to repatriate foreign
fighters’ children to their State of nationality with a view to
reuniting them with other family members, without repatriating their
parents.
12. The Assembly is extremely worried about the situation and
the appalling conditions in which the survivors of Daesh crimes,
including children, still live in Iraq or Syria, often in camps
and without the possibility of a safe return to their areas of origin
and homes. Many, particularly Yazidi women and children, are still missing.
13. On the basis of the foregoing, the Assembly calls on Council
of Europe member States to:
13.1 give
priority to the establishment of a special international tribunal
or hybrid tribunal with jurisdiction over international crimes committed
by Daesh foreign fighters, by actively contributing to the setting-up
of such a tribunal within the United Nations or other international
organisations;
13.2 pending the setting-up of such a tribunal, give priority
to the prosecution by their national courts of suspected Daesh fighters
and members who come within their jurisdiction or control, on the
basis of the principle of active personality (for nationals) or
universal jurisdiction;
13.3 provide for universal jurisdiction over international
crimes covered by the Rome Statute of the ICC and, if this is already
the case, expand its use by not limiting the initiation of preliminary
investigations to cases where the suspects are located within their
territory, following the example set by Germany;
13.4 prioritise where possible cumulative prosecution of Daesh
foreign fighters for both terrorism-related offences and international
crimes such as genocide, crimes against humanity and war crimes, following
recent examples in Germany and the Netherlands, duly reflecting
the gravity and the different nature of the offences committed;
13.5 with respect to crimes committed against Yazidis and other
affected minorities, prioritise genocide as a criminal charge, having
regard to Daesh’s declared intention to destroy, in whole or in
part, these groups, as stressed in Assembly
Resolution 2190 (2017);
13.6 prosecute, in a non-discriminatory manner, avoiding gender
stereotypes, all Daesh foreign fighters and members, including women,
having regard to the actual role they may have played in the commission
of crimes, as perpetrators, supporters, facilitators, recruiters
or fundraisers;
13.7 if children are suspected of having committed criminal
acts, prosecute only under internationally recognised juvenile justice
and fair trial standards, in accordance with
Resolution 2321 (2020) and the United
Nations Key Principles for the Protection, Repatriation, Prosecution,
Rehabilitation and Reintegration of Women and Children with links
to United Nations Listed Terrorist Groups;
13.8 set up and adequately fund specialised units or staff
within prosecution, law-enforcement and judicial co-operation services
for the prosecution of foreign terrorist fighters;
13.9 make use of different types of evidence, including internet-based
evidence and battlefield evidence, and ensure that such evidence
is admissible for the successful prosecution of Daesh terrorist fighters,
having regard to Recommendation CM/Rec(2022)8 of the Committee of
Ministers of the Council of Europe to member States on the use of
information collected in conflict zones as evidence in criminal proceedings
related to terrorist offences and in full compliance with Article
6 of the European Convention on Human Rights;
13.10 make better use of evidence collected by United Nations
investigative mechanisms such as UNITAD and the United Nations International
Impartial and Independent Mechanism for Syria (IIIM), as well as
by non-governmental organisations documenting atrocities in Iraq
and Syria, and ensure that such evidence can be lawfully used in
criminal proceedings in their jurisdictions;
13.11 contribute to the collection and preservation of evidence
of Daesh crimes, including by making voluntary contributions, seconding
national experts and signing co-operation agreements with UNITAD and
the IIIM;
13.12 make full use of existing mutual legal assistance tools
between States in investigations and proceedings against Daesh foreign
fighters, including under the relevant international, Council of
Europe and European Union instruments, such as the possibility of
setting up joint investigation teams like the one established in
2021 between France and Sweden to support proceedings concerning
crimes committed against the Yazidis in Syria and Iraq;
13.13 take due account of the rights and needs of victims and
witnesses in criminal proceedings against Daesh foreign fighters,
including by taking the necessary measures to reach out to victims
and affected communities, such as interpretation, broadcasting of
the hearings and engaging with non-governmental organisations representing
them;
13.14 insofar as they have not yet done so, ratify and fully
implement the 2005 Council of Europe Convention on the Prevention
of Terrorism (CETS No. 196) and its 2015 Additional Protocol;
13.15 design and implement rehabilitation and reintegration
strategies for all returning Daesh foreign fighters and their families,
including, in particular, deradicalisation programmes specifically
tailored for children and young adults. These programmes are necessary
for all persons and are not a substitute for prosecution and punishment;
13.16 consider bringing before the International Court of Justice
proceedings against States which allegedly failed to prevent and
punish acts of genocide committed by Daesh, in order to hold those
States to account under the Genocide Convention;
13.17 support the Iraqi authorities, UNITAD and other organisations
in locating the missing Daesh victims and ensuring the safe and
voluntary return of the survivors to their areas of origin.
14. The Assembly also calls on:
14.1 Iraq
to adopt legislation on international crimes without further delay,
with the assistance of UNITAD and other relevant stakeholders, and
to actively participate in negotiations with a view to establishing
a special international tribunal or hybrid tribunal;
14.2 the ICC Prosecutor to reconsider the decision not to open
a preliminary examination into crimes committed by Daesh foreign
fighters who are nationals of State Parties to the Rome Statute
of the ICC;
14.3 UNITAD and the IIIM to continue their instrumental work
of gathering evidence on crimes committed by Daesh members in Iraq
and Syria and share such evidence with national courts to the extent
possible;
14.4 online platforms to preserve content, and the metadata
associated with this content, that potentially could provide evidence
of genocide, war crimes and other human rights violations.
