“Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that”. - Martin Luther King.

On 29 September 2021, the Grand Chamber of the European Court of Human Rights (ECHR) heard two families asking for the repatriation of their daughters, who had joined the Islamic State (case H.F. and H.M. v France). The verdict will have a ground-breaking impact on the repatriation policy of European Union (EU) Member States regarding European foreign fighters. It will set the precedent for future cases, determining whether people can be brought home to face justice, giving their children born in the confines of the Islamic State (IS) an opportunity to reintegrate into society.

Out of the 5,000 European citizens (or persons that had residence in Europe) who joined IS, 500 are still on Syrian and Iraqi soil. Many of them have expressed their willingness and desire to face justice in Europe and serve sentences back home, an idea that many counter-terrorist experts also support. Nevertheless, most of them are held in detention camps in the region or are being tried in Iraq.

There is a legitimate fear that former terrorist fighters might pose a danger to Europe once they are back. This is the reason why the European states have opted for leaving their nationals in the region or to fund the Courts in Iraq to try IS suspects. However, numerous studies reveal that the unfounded fear of recidivism and reengagement, which often dictates policy decisions, is much greater than the reality justifies. Key findings have estimated the terrorism recidivism rate to possibly be less than 10%, most of the studies even below five percent.

THE RISK POSED BY ESCAPED FORMER FIGHTERS

The real danger to society is not posed by those who are repatriated, domestically prosecuted, and/or monitored but, to a greater extent by those who manage to escape conflict zones and return on their own. As many experts and scholars have argued, it is far easier to keep track of former fighters who are repatriated home than those who might escape and return to Europe. Disillusioned old members of IS who do not, in principle, pose a direct threat, can become frustrated radicals, and target their country if they are prevented from returning. Realistically, sooner or later these people will be either released or escape from the conflict zones, not having control over them. Daniel Koehler, a German expert in de-radicalisation and family counsellor, said that “if people want to return, they return anyways. I’d rather want the person to return from Syria/Iraq into a controlled socially positive environment with experts sitting behind it and having their families figuring out what is happening, than people just returning and no one actually knowing where they are or what they are doing, no one having a look at them”.

In addition, leaving people in detention camps makes individuals extremely vulnerable to further radicalisation. In detainment camps, radicalisation is not an uncommon phenomenon. An example is the Al-Hol camp in the Northeast of Syria which hosts about 68,000 people, including 20,000 women and 43,000 children. In this camp, controlled by Kurdish forces who do not have enough international support, security is a problem and riots are not uncommon. IS continues to smuggle children out of the camp and violence perpetrated by the group is rampant: only in the first three months of 2021, 47 people were killed by IS. 

Besides, living conditions are extremely dire. More than half of the people in the camp are children, and hundreds of them have died from diseases and malnutrition. Only in the first week of August 2021, eight children below five years old died and many more are victims of sexual violence. This widespread violence and extremely harsh living conditions have led to more than 40 Europeans escaping the Al-Hol camp since 2019 and becoming invisible to the authorities. This is the case of the British fighter Shabazz Suleman, who managed to escape from the detention camp in which he was held in Syria and since disappeared off the radar. Some of the European fighters have also been tried in Iraq.

A COMPARISON OF JUDICIAL SYSTEMS

Nevertheless, Western countries are in fact more equipped to prosecute IS suspects and the European Convention on Human Rights prohibits any state from transferring its nationals to a country where the death penalty could be applied. However, it is not new that EU nations are allowing their citizens to be tried in Iraq. The French government was in 2019 highly criticised when it allowed 11 men to be transferred from Syria to Iraq where they were sentenced to death row.

The Iraqi government has accepted to prosecute foreign individuals in exchange for foreign funding based on the number of imprisoned people. This agreement is leading to a judicial system that prioritises convicting people to gain money rather than seeking justice. The trials lack any due process. Trials do not last more than 15 minutes, and suspects are very often convicted based on confessions in a system of widespread torture, without proper access to a lawyer and with no other supporting evidence for the allegedly committed crimes, other than their confessions. This is leading to high leaders of IS being freed through bribes. With a system in place that has led to people accusing their own neighbours of assisting IS as personal vendettas, there is no guarantee that convicted individuals are guilty and that released individuals do not pose any danger to society.

The Autonomous Administration of North and East Syria, which at the end of 2020 held more than 75.000 ISIS affiliates, started developing a justice system. The goal of this system is to provide justice to victims and to manage the security threat that the region suffers. Since January 2021, more than 100 attacks have been carried out by IS affiliates. This legal system is secular and combines accountability with transitional justice. It bans the death penalty, torture, and the extradition to states in which the death penalty is applied. However, to date, no foreign fighters have been tried, leaving them to an uncertain fate due to the lack of judicial options.

THE BENEFICIAL OUTCOMES OF REPATRIATION TO THE EU

Actively repatriating these individuals does not only comply with international human rights law, but helps to place IS suspects on the radar, decreasing their danger. De-radicalisation and disengagement programs in prison deal with this phenomenon and some states even have programmes for not convicted individuals to reintegrate into society.

Besides, bringing returnees home can also be an asset to understanding the group’s methods and activities, not being the first time that returnees help discourage others from following their course. 

The decision by most European Member States to not repatriate their nationals or to accept Iraq’s jurisdiction over their cases violates the European Convention on Human Rights, the International Covenant for Civil and Political Rights, and the Convention against Torture, as outlined in UNSC Resolutions 2178 and 2396.  It also poses a major threat to national and international security. Decisions to not repatriate become especially objectionable regarding children, who have done nothing wrong and are particularly at risk of becoming orphans, stateless, or radicalised.

The option of leaving European nationals in camps is realistically not sustainable and will not last forever. Repatriating European nationals, prosecuting, and monitoring them is the only viable option from a legal, moral, and long-term security perspective.

Índigo holds an LL.B. and an MSc in International Crimes. Among others, she has worked in the European Center for Constitutional and Human Rights and the International Criminal Court. Currently, she is working as a Legal Investigator at Guernica37.

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