Prosecuting Islamic State Foreign Fighters: Issues And Implications

Suspected Isis militants wait their turn for sentencing at the counterterrorism court in Baghdad, Iraq

The collapse of the physical caliphate of ISIS (Daesh) in Iraq and Syria has not led to the demise of Salafi-jihadi terrorism, but given rise to a set of problems relating to the management of scores of detained ISIS foreign fighters. Essentially, how should the international community deal with these foreign citizens who had travelled to the Levant to join ISIS?

While countries are reluctant to allow their citizens, who became foreign fighters to return home, these countries have expressed concerns with the way that their citizens are being prosecuted in Iraq (or a third country).

There are no clear positions and no clear solutions about the management of detained ISIS foreign fighters. For example, France reportedly said that the prosecution of French ISIS fighters in Iraq is “a sovereign matter for Iraq” but “opposed in principle to the death penalty.” Human rights groups said that the court trials in Iraq depend on “circumstantial evidence or confessions obtained under torture”, but there appear to be very few alternatives.

Issues and Implications

The bottom-line, the paths to de-radicalisation, rehabilitation and reintegration are seemingly closed to these foreign fighters. The delivery of retributive justice, however, has several issues and implications, some the writer had stated in an interview with Pakistan’s Indus News in Episode 99 (31 May 2019) of Scope:

1. Proportionality, legality and morality? Is the Iraqi court as well as the international community demonstrating that they are better than ISIS in terms of delivering justice and showing humanity? These points constitute an important consideration as counterterrorism is both a kinetic war and a war of ideas and ideals.

2. Is the international community being responsible by leaving their citizens to the justice system in conflict zones? In the first place, the world could not prevent ISIS from emerging and could not prevent their citizens from travelling to the conflict zones to join ISIS. The world had some time to prepare for the collapse of ISIS, but when ISIS collapsed, the world remains unprepared and divided about dealing with the foreign fighters and their families.

3. By stripping foreign fighters of their citizenship and leaving them in Iraq to face justice, are countries inadvertently recognising that these fighters were fighting for an enemy state and therefore recognising the caliphate as an actual albeit proto state?

4. By outsourcing the justice process to Iraq, is it politically expedient for countries in the short term but with long term ramifications to international security? The international community still needs to deal with the family members of foreign fighters who are left behind in Iraq and Syria. Will these family members usher in the next generation of jihadi terrorists, or could they be levers in counter-radicalisation and counter-propaganda efforts to weaken the ISIS brand?

5. The international community needs to pre-empt how ISIS could use the death penalties and trials in Iraq as part of their propaganda to re-invent themselves and sustain their ideology even as they move towards insurgency tactics now. For example, how would the death penalties complement the ISIS narrative of martyrdom? How would the lack of fairness in court processes complement the ISIS narrative that the caliphate must replace the existing international political order?

6. Dealing with citizens who had joined ISIS in conflict zones is a complex task. Unlike homegrown terrorists, citizens who joined ISIS had undergone more intensive psychological conditioning and indoctrination. However, not all of them travelled to the caliphate to die. Some went there to live; therefore, de-radicalisation efforts could turn some of them into credible voices for preventing violent extremism.

7. As ISIS is an international problem, the international community should not leave it to Iraq alone to solve the foreign fighter problem. Years of armed conflict may have left Iraq with insufficient capacity to deal with the enormous scale of the problem. The international community should seriously consider setting up an international war crimes tribunal to prosecute the leaders and members of ISIS in a way that is as fair as possible. The tribunal could be based in Iraq but with representatives from the various countries that participated in the fight against ISIS. This tribunal is a mission that international organisations such as INTERPOL could support in terms of operations and investigations.

Conclusion

The collapse of the physical caliphate of ISIS had caused many countries to be concerned about how returning foreign fighters could “threaten a new wave of terror”—as part of ISIS 2.0—in non-conflict zones. However, this is only one side of the coin.

The other side of the coin is how the process of retributive justice that these fighters and their families face in conflict zones—such as Iraq—could change them for the better or worse. Beyond the jails, the detention camps in Syria and Iraq could inadvertently become grooming grounds for future jihadi terrorist leaders and fighters.

Source: Eurasia Review, Op-Ed; Muhammad Faizal B Abdul Rahman, May, 2019. Muhammad Faizal B Abdul Rahman is a Research Fellow, Centre of Excellence for National Security (CENS), S. Rajaratnam School of International Studies (RSIS), NTU, Singapore.

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