Should foreign ISIS fighters captured in Syria be tried by the ICC, given the refusal of their home states to repatriate them?

In a move that has become commonplace under the administration of President Donald Trump, a decision of some significance has been announced via Twitter. Alexanda Kotey and El Shafee Elsheikh, half of the infamous group of ISIS members that became known as ‘The Beatles’ due to their British accents, have been taken into United States (US) custody. As the Turkish military began its offensive into Syrian territory on 9 October, Kotey and Elsheikh were among up to 50 ISIS militants reportedly transferred from Kurdish-operated prisons into US custody in neighbouring Iraq. Many of those extracted by US forces will be handed over to Iraq and can expect to face brief trials and swift executions. However, it has been reported that the US Justice Department has other plans for Kotey and Elsheikh. They intend to eventually transfer them to Virginia where major terror trials are held, and where they too will ultimately face the death penalty.

There has been an ongoing legal battle in London over the fate of the two men.  Elsheikh’s mother has led efforts to prevent both the potential of extradition to the US and the sharing of evidence by the British government with American authorities, as long as the death penalty remains in play. The UK typically extradites prisoners to the US only once the death penalty has been ruled out. A judgement has yet to be reached in that case. If Kotey and Elsheikh do find themselves in front of an American court, it would represent a shameful failure of the UK to take responsibility for its own citizens. The UK has publicly maintained that it has no evidence against the men and they would therefore stand a greater chance of successful prosecution in the US. However, court documents have revealed that Kotey had been charged with five counts of murder and eight counts of hostage-taking in February 2016 by the Crown Prosecution Service, with warrants subsequently issued for his arrest. So why has the UK government made no attempts to repatriate either of the men in order to face trial in the UK? It has been reported that the Home Office, and then Home Secretary Theresa May, decided against the move, feeling that it would be politically problematic.

A former UK Director of Public Prosecutions, Ken MacDonald QC, has been scathing in his assessment of the government’s decision, arguing that: “This abject behaviour, driven entirely by party politics, dumped what was clearly our problem onto the rest of the world.” Going on to add: “It calls into question Britain’s status as a dignified sovereign state capable of regulating the conduct of its own citizens, and it reduces us to the level of a banana republic lacking any faith in the power of our own institutions of justice.”

If British authorities are adamant that Kotey and Elsheikh not be tried in the UK, there is another option that continues to be overlooked – that they could fall under the jurisdiction of the International Criminal Court (ICC). Under the principle of complementarity, the ICC can exercise its jurisdiction when a national court is unable or unwilling to act, which certainly seems to be the case here. The UK is a member of the ICC and can refer situations where its nationals have committed crimes within the Court’s jurisdiction. Under the ICC’s funding model, the UK is also one of its largest contributors. If the British taxpayer is funding the Court, then why not utilise it for something that is beneficial to the British people?

Other than the obvious legal argument for Kotey and Elsheikh to be tried in either the UK or the ICC, there is arguably a strategic aspect that should be considered. According to the ICC’s own website: “International justice can contribute to long-term peace, stability and equitable development in post-conflict societies. These elements are foundational for building a future free of violence”. In other words, the application of fair and impartial international justice is essential for peace-building efforts in regions ravaged by war. There have been several instances of foreign nationals with suspected ISIS links being transferred from Syria to Iraq, where they face possible torture and unfair trials, which is contrary to international human rights and humanitarian law.

In October 2018, Human Rights Watch (HRW) identified four terrorism trials in Baghdad involving defendants from France, Australia and Lebanon. During these trials, defendants described being captured in Syria and then transferred to Iraq. HRW notes alleged due process violations as well the torture of defendants in two of the cases. French national Lahcen Ammar Gueboudj received a life sentence while Tarek al-Khayat of Lebanon and Ahmed Merhi of Australia were sentenced to death.

These are just a handful of the hundreds of foreign ISIS fighters held by Iraqi authorities and the thousands more that had been held in Syria that now face uncertain futures. If we are to accept the ICC’s assertion regarding the importance of international justice, then the treatment received by these men can only be detrimental to any future peace in the region. It is worth noting that France and Australia are members of the ICC. Of the approximately 11,000 ISIS fighters held in ad hoc detention facilities by Kurdish forces in northern Syria, it is understood that the majority are Syrians or Iraqis, although some 2,000 are foreign nationals whose governments have refused to repatriate them. Many of these governments are ICC members.

The US has repeatedly called on states, particularly those in western Europe, to take responsibility for their captured citizens but largely to no avail. Along with the UK, France has received harsh criticism for its refusal to take back its nationals that have been captured fighting with ISIS. HRW condemned what it describes as the “outsourcing of trials” to Iraq as more French nationals received death sentences in June 2019 based on confessions, rather than evidence, in a judicial system known to utilise torture. This begs the question, if states such as the UK and France wish to outsource, then why not to the ICC?

Stuart McLintock achieved First Class Honours at UWA where he completed his dissertation on Palestine and the ICC. He commenced a PhD at Murdoch University where he is exploring the influence of non-member states on the ICC.

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