The capture of two Islamic State (IS) fighters who were among the terror group’s most high profile Western recruits has sparked a debate over who holds responsibility for combatants who allied themselves to a “state” that never existed.
As reported by the New York Times on February 8, U.S.-backed rebel groups captured Alexanda Kotey and El Shafee Elsheikh in January. The last two surviving members of an execution squad dubbed the “Beatles” due to their English accents, they were debriefed by U.S. forces but currently are not under anyone’s jurisdiction and are held by Kurdish-majority Syrian Defense Forces.
In a press briefing this week, U.S. defence secretary Jim Mattis told reporters that U.S.-backed forces are “gathering up hundreds” of detainees. In September 2014, the UN said 13,000 fighters from 80 countries had joined IS.
“The important thing is that the countries of origin keep responsibility for them,” said Mattis.
His UK counterpart Gavin Williamson disagrees, telling journalists (Independent) that IS fighters have forfeited their right to return to the UK. The Times reports that the UK government has stripped Kotey and Elsheikh of their citizenship.
The so-called “Beatles” quartet is a particularly striking case given the fates already handed to two of its members. Aine Davis was sentenced by a Turkish court on terrorism charges in May 2017 and is currently serving 7-1/2 years in a Turkish jail, raising questions over what his status will be when his sentence is served.
Mohammed Emwazi, also known as “Jihadi John”, was killed by a drone strike in November 2015. Critics argue that this a legally dubious method of fighting IS, which breaches human rights law. The U.S. says that the laws of war apply to the fight against IS, though its forces do not constitute an army. This view of IS circumvents rules of engagement but justifies the use of drones, and has drawn scepticism from legal experts according to UK think tank Chatham House.
Back to Britain
The UK passed legislation in 2014 that gave the Home Secretary (now Prime Minister) Theresa May the power to revoke someone’s citizenship. Prior to this, the UK stayed in line with contemporary interpretations of international law, which said it was illegal to make someone stateless.
The “most straightforward” way to deal with Kotey and Elsheikh would be for the UK prosecution service to indict them for murder, Jon Silverman, professor of media and criminal justice at the university of Bedfordshire told WikiTribune. “It doesn’t matter where the crimes took place.”
This would require a voluntary agreement by their captors to return them to the UK, but the fundamental challenge remains the same. It depends on the “willingness by the UK authorities to put them on trial,” said Silverman.
Syrian and Iraqi justice
Rachel Kerr, of the department of war studies at King’s College London, told WikiTribune: “Both the Syrian and Iraqi courts would have jurisdiction to try crimes committed on their territory. Whether they are currently capable or whether we think it would satisfy fair trial standards is another matter.”
The UN and other international bodies have repeatedly condemned the Syrian justice system for failing to respect standards of justice and accountability, particularly regarding combatants involved in Syria’s civil war. Human Rights Watch (HRW) has similarly said that Iraqi courts are not an adequate forum for dealing with IS suspects.
The U.S. authority
The U.S. could claim jurisdiction on the grounds that the pair are suspected of murdering U.S. citizens. If they wanted to, the U.S. could also claim the right to prosecute Kotey and Elsheikh under the doctrine of “universal jurisdiction,” which allows prosecutors to tackle crimes of a particularly grave nature even if they occured elsewhere.
In January, President Donald J. Trump signed an executive order to keep Guantanamo Bay open, having promised on the campaign trail to fill the offshore detention centre with “bad dudes.”
If they do not face trial, Kotey and Elsheikh could join the 41 detainees still held there, according to a campaign group for the prison’s closure.
However, the U.S. has not indicated any desire to take on the burden of foreign terrorists and Mattis has been firm on the stance that they are the UK’s responsibility.
In 2011, U.S. forces killed a U.S. citizen in Yemen. Al Qaeda leader Anwar al-Awlaki was the first terrorist whose execution was ordered (by drone strike) abroad. In 2014 a U.S. court authorised the release of a justice department memo that revealed Awlaki’s death was justified as a lawful act of war (LA Times).
Germany and Sweden
Germany and Sweden have accepted the most refugees fleeing Syria’s conflict and as a result have seen seven cases brought regarding atrocities committed in Syria, according to Human Rights Watch (HRW), taking advantage of a resource of witness testimonies and using the universal jurisdiction doctrine.
Both governments have set up specialized war crimes investigations units to work with their prosecution services. German authorities told HRW in 2017 that they were pursuing 21 investigations into crimes committed by IS.
The International Criminal Court (ICC) was founded in 2002, with the purpose of becoming the arbiter of the worst crimes committed by mankind. As an international tribunal specializing in human rights atrocities, particularly in international conflicts, it would seem the ideal forum to prosecute captured IS fighters.
In April 2015, the ICC’s chief prosecutor Fatou Bensouda said in a statement that IS’s alleged crimes were out of her reach as neither Syria or Iraq are signatories to the Rome Statute, the court’s founding document.
The prosecutor does have authority to investigate crimes in countries that have not signed up to the court’s jurisdiction, but only if referred to the case by the UN Security Council. In 2014, Russia and China opposed referring Syria’s civil war to the ICC prosecutor.
“China might be persuaded to abstain but Russia would veto any effort to refer Syria to the ICC,” said Kerr.
The U.S., Kerr pointed out, is not a member of the ICC and could similarly block any move that risks bringing its troops under the purview of the Hague tribunal’s prosecutor, unless it gets an “exception” for U.S. nationals.
The surviving victims of Kotey and Elsheikh, and the relatives of those who died, have called on authorities (The Guardian) to ensure that they are subject to a legitimate trial process. HRW issued a statement on February 13 seeking similar assurances. The fate of the two Britons and the hundreds of other foreign fighters held in Syria remains up in the air.