Prosecuting Western and Non-Western Islamic State Fighters
How are countries dealing with their citizens who travelled abroad to fight for the Islamic State? In short, they have taken two approaches. Some states like the United States and Germany are strong advocates of repatriation. This process allows citizens to be brought back to their countries, and charged and prosecuted in their courts according to their laws. Other states like France and the United Kingdom have been cautious in allowing Islamic State members from their countries to return home. These countries are quite firmly against repatriation, and argue that a lack of evidence to fairly prosecute their citizens who went to fight for the Islamic state as one of the major reasons. The Canadian government also appears to be in the anti-repatriation camp, even though police and prosecutors are willing to charge Islamic State fighters for their crimes. So far, France has only repatriated children. Meanwhile, states like Russia, Turkey, Tunisia, and Saudi Arabia have a dodgy record on prosecuting their citizens.
According to most recent estimates, the Islamic State attracted over 40,000 fighters from 120 countries. The majority came from Tunisia, Saudi Arabia, Morocco, Russia, Egypt, and other predominantly Arab and Asian countries. Those from the West included individuals from the United States, United Kingdom, Canada, Australia, New Zealand, Germany, and France.
The debate on repatriating foreign Islamic State fighters to prosecute them in their home countries is a contentious one. There are deep divisions in the way Western countries have approached the problem. Some like France and the United Kingdom appear unwilling to take them back for political reasons: Repatriating terrorists is deeply unpopular among the public and the additional lack of evidence would complicate prosecutions for Islamic State crimes. A 2019 poll in France found 89 percent of respondents were opposed to the return of foreign fighters.
In contrast, United States has urged the repatriation of foreign fighters on grounds that they pose a greater threat in the long term if not brought to justice. The United States fears that while they stay in camps in Iraq and Syria, they will have the incentive to break out of their prisons, escape, and rejoin terrorist groups. Meanwhile, the Trump and Biden administrations have repatriated a total of 28 U.S. citizens, including12 adults and 16 children. Ten of the adults have been prosecuted on terrorism-related charges.
Notwithstanding the merits or demerits of repatriation, the entire debate has been solely focused on foreign fighters from Western countries. This exclusive focus on repatriating Western foreign fighters with little attention to the remaining non-Western foreign fighters is fostering an unfair and skewed system of international arbitration in bringing perpetrators of terrorism and genocide to justice. Instead, an international war crimes tribunal that charges and sentences all Islamic State fighters, both Western and non-Western, for membership in a terrorist organization and participation in genocide, would offer a more equitable system of delivering justice. Once charged, it would then be prudent for Western and non-Western foreign fighters to serve their respective sentences in their home countries. In other words, repatriation is a good idea only once these fighters are charged for their crimes in an international court, as the Islamic State threat is fundamentally an international security challenge — and not just a challenge for individual states.
Differential Treatment of Foreign Islamic State Fighters
As the debate on the repatriation of foreign Islamic State fighters gained ground in the United States, Canada, and Europe, the focus, by both scholars and analysts, has for the most part been narrowly confined to the repatriation of Westerners. The repatriation of thousands of non-Western Arab, Asian, or Russian Islamic State fighters being held in the same prisons has barely sparked any concern or discussion among academics and policymakers.
Why is this the case?
While it is, in part, natural that Western countries would be more concerned about prosecuting their own citizens who traveled overseas to commit war crimes and genocide, Western academics and journalists have an obligation to include analyses of non-Western fighters to deliver a more complete picture on prosecutions, the Islamic State, and counter-terrorism threats. It seems the predominant Western focus on bringing their citizens to justice while ignoring the status of non-Western fighters is a function of Western nations’ determining and defining the international order of norms and justice tailored to suit their sovereign interests. U.S. officials have mostly viewed a liberal international order as a tool to serve U.S. interests. However, other countries view and interpret the international order in accordance with their unique political systems and cultures. In a diverse milieu of nations, the interests of Western states are not always aligned or weighted proportionately to the interests of non-Western states. The results of repatriation and prosecution of Islamic State fighters clearly reflects these stark differences. While cold hard realpolitik may serve what’s best in the interests of the most powerful Western nations, this approach, when applied uniformly to laws and rules that affect the prosecution of Western versus non-Western Islamic State fighters, is likely to have the opposite effect of building less representative and less equitable international laws on war crimes and genocide. If justice for victims of Islamic State crimes is the primary motivator of all states, then laws on prosecution need to reflect that reality uniformly.
The Murky Waters of Prosecution
The prosecution of Western and non-Western Islamic fighters deserves further attention because of glaring inconsistencies in methods, procedures, and processes embedded in the internal justice systems of different countries. Prosecution of Islamic State foreign fighters is a grey zone where the most conspicuous differences in the treatment of Western and non-Western Islamic State foreign fighters have emerged. The causes for the differences are manifold and range from a product of laws specific to each country, inadequate evidence, and inconsistent sentencing.
Many nations in the Arab and Asian world follow very stringent laws on terrorism that carry a life sentence for membership in a terrorist organization and the death penalty for more serious offences. For example, Islamic State fighters from Tunisia, Egypt, and Russia face severe legal penalties — most often, the death penalty — in their home countries. In Iraq, 9,000 Islamic State prisoners were convicted of terrorism related charges and many have received the death penalty. In other states like Kazakhstan, Uzbekistan, and Tajikistan, many fighters have been released without trial, with very few even being prosecuted for their crimes. In contrast, Western states hold higher standards on due process. But these standards are not quite uniform and again, vary according to each nation’s internal legal system. The United States has repatriated 28 Americans from Syria and Iraq and 10 have been charged with terrorism-related offenses. Most have been charged with conspiring to provide material support to the Islamic State. Currently American Islamic State members like Omer Kuzu face anywhere between 20 and 35 years in prison for providing communication support to Islamic State fighters on the frontlines. According to the George Washington University’s Program on Extremism, the average prison sentence is 13.4 years in the United States. A brief look at the prosecution data in these countries reveals the widely divergent sentences Western and non-Western Islamic State foreign members are receiving.
Laws on prosecution become murkier when prosecuting male versus female Islamic State members. In December 2020, Germany and Finland repatriated five women and 18 children from Syrian camps housing suspected family members of Islamic State militants. It’s not clear how many of these women have been prosecuted except for a German Algerian woman who was convicted in June 2021 for Islamic State membership and for holding Yazidis as slaves but was sentenced only to six-and-a-half years in prison. Many of these women are at times perceived as having no agency whatsoever. The media often portrays them as victims who either had no idea what they were getting into, were merely accompanying their husbands, or were just confined to cooking and cleaning duties in the Caliphate. Women Islamic State members, in fact, have been notorious participants in the genocide and sexual enslavement of Yazidi women.
No Prosecution for Genocide
Another issue in prosecuting Western Islamic State foreign fighters that has received inadequate attention is the genocide against Yazidis. In 2014, when the Islamic State captured Sinjar, the terrorist group killed between 3,000 and 5,000 Yazidis and abducted approximately 6,000 Yazidis, confining them to years of torture and sexual enslavement. In September 2017, the Security Council established the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State of Iraq and the Levant. The Baghdad-based team collected evidence of atrocities and war crimes. In May 2021, the United Nation’s Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State of Iraq and the Levant referred to as UNITAD, stated that it had found “clear and compelling evidence” that the Islamic State committed genocide against the Yazidis in the northern Sinjar region in 2014. To date, the U.N. investigative team has provided evidence for 30 trials in 10 countries. In addition to being members of a terrorist organization, both Western and non-Western Islamic State foreign fighters participated in the genocide of the Yazidis.
However, most foreign Islamic State members are being prosecuted in the West only on terrorism charges and not genocide. The Netherlands and the Belgium are the only two countries to have officially recognized the genocide of Yazidis. But even some parliamentarians in these countries recognize the limitations of prosecuting them on genocide charges because their laws at a minimum will only prosecute them for terrorism-related offenses. This discrepancy in failing to bring genocide charges against Islamic State members is a travesty for the Yazidis — the actual victims of genocide. According to findings published by the Counter Terrorism Project, at least half of the Yazidi survivors polled had contact with Westerners in captivity, often revealing the extent of horrific crimes perpetrated by their British and German captors. Many of the Western Islamic State foreign fighters have already been prosecuted only on terrorism-related charges effectively erasing their participation in the Yazidi genocide. Any future prosecutions, therefore, should include both terrorism and genocide charges.
An Inequitable System of International Justice
To create and implement a truly fair and representative body of international laws that applies to all Islamic State members, Western or non-Western, domestic or foreign, an international tribunal is the most optimal answer. An international tribunal would convict and prosecute all Islamic State fighters, irrespective of their nationality, according to a uniform set of principles instead of creating a situation where some countries succeed in prosecuting these fighters while others completely fail. Further, it would prevent the issue from being politicized by individual states and their governments producing disproportionate outcomes in sentencing and prosecution. Here, the international community and particularly the United States, United Kingdom, Germany, France, and other European nations have demonstrated a complete lack of political will. Others like Russia have even vetoed resolutions in the United Nations to create ad-hoc tribunals. A multilateral treaty outside the U.N. framework would allow the setting up of a tribunal that could maintain legal jurisdiction over crimes committed by Islamic State foreign fighters using the active personality principle. The active personality principle — also known as the nationality principle — argues that a sovereign state is entitled to regulate the conduct of its own nationals anywhere, as its nationals are obligated to obey the state’s laws even when they are outside the state. What this principle means is that states have the jurisdiction using this principle to prosecute their citizens if they commit crimes outside their nations’ territory — on international soil. Moreover, an international tribunal would allow the prosecution of Islamic State foreign fighters prior to returning to their home countries. Abdulkarim Omar, the de facto foreign secretary of the self-styled Autonomous Administration of North and East Syria, and the co-chair of its foreign affairs committee, has made similar pleas calling for the establishment of an international tribunal to prosecute all Islamic State members. In Omar’s words, “those people, the Isis criminals, committed their crimes in our region and against our communities. Evidence, proof and witnesses against them are in this region, and we can prosecute them.”
The utter lack of political will by international states to take accountability for a more equitable system of international justice is a matter of deep concern. The repatriation debate, too, makes it much harder to push for an international tribunal because most Western states want to prosecute their citizens in their own countries. However, again, given wide disparities in national laws and loopholes in prosecution, the international community will inevitably be left with a situation where some Islamic State members get away with severe punishments while others get away with milder sentences or no trial at all. None of this represents either a fair system of arbitration or justice for the Yazidis.
The judicial processes of nations convicting Islamic State foreign fighters leave a lot to be desired. The differential treatment and sentencing of Western versus non-Western foreign fighters, inconsistencies in methods and procedures for prosecution, and the absence of convictions not just for membership in a terrorist organization but for crimes against humanity and genocide present the most immediate challenges. In the long term, this means that Islamic State members who either serve light sentences or no sentence at all will be released back into society while remaining a threat to the public while actual victims of Islamic State war crimes and genocide, the Yazidis, will never see justice served.
These policy problems can be addressed in three ways. First, the United States and its European partners should, in consultation with the United Nations — international institutions on war crimes like the International Criminal Court and the International Court of Justice — arrive at a consensus on the nature and types of crimes committed by Western and non-Western Islamic State fighters. As of now, an absence of consensus on the subject makes it difficult for these fighters to receive fair and appropriate sentences in accordance with their exact crimes. A good place to start is to collect evidence based on those who participated in war crimes and the genocide of Yazidis directly and those who did not. Second, crimes of women Islamic State foreign fighters should receive the same magnitude of attention as crimes of male foreign fighters. Women Islamic State foreign fighters participated equally in the enslavement of Yazidi women and many supported their husbands in capturing and torturing Yazidi women for years. And finally, to foster an equitable system of justice that deals with this international challenge, an international tribunal on prosecuting Islamic State fighters — Western and non-Western — should be created immediately. Such a tribunal would allow the same set of laws to be applied uniformly and without discrimination to all foreign fighters, Western and non-Western. The international community should show political will in ensuring that justice is served for the Yazidis.
Ayesha Ray is an associate professor of political science at King’s College, Pennsylvania. She is the author of The Soldier and the State in India: Nuclear Weapons, Counterinsurgency, and the Transformation of Indian Civil-Military Relations and Culture, Context, and Capability: American and Indian Counterinsurgency Approaches. Her research focuses on security, conflict, and defense in South Asia.