Sentenced to death: the difficult case of ISIS’s European fighters

Written by Ombeline Lemarchal 

On 27 May 2019, four French men were sentenced to death by an Iraqi court after having been found guilty of joining the Islamic State (ISIS), also known by its Arabic name Daesh (BBC News, 2019). The French government came under criticism for refusing to take them back, choosing instead to let Iraq carry out the sentence (Foltyn, 2019). Since the beginning of the Syrian conflict in 2011, 40,000 foreign fighters have joined ISIS, out of which more than 5,000 have been European citizens (Barrett, 2017). Hundreds of them have been detained and judged in Northern Syria and Iraq, while the European Union (EU) governments have repeatedly refused repatriation (Cebrian, 2019). Iraq has long protested against what it sees as an outsourcing of the legal responsibility of the EU, but EU governments still do not have a coherent policy to handle those who have joined the terrorist group (Dworkin, 2019). Repatriation and the risk of another attack on European soil is a threat that no country is willing to undertake. However, current European disengagement poses a clear moral challenge to the fundamental values endorsed by the EU. Member states are allowing their citizens to be sentenced to death abroad in foreign courts, although that would not be allowed in the EU. By refusing a judgement in domestic courts to those who have turned their back on their country, the EU is not only disregarding the principle it was founded on and the rule of law but betraying its long-standing opposition to capital punishment and its commitment to human rights.   

What is the EU governments’ current response to ISIS’s European fighters? Member states are refusing to take responsibility for their citizens who have joined Daesh. On October 17, 2019, French Minister of Foreign Affairs Jean Yves Le Drian travelled to Iraq to negotiate an accord with the Iraqi authorities (Irish, 2019). But why is France willing to go to the trouble of creating a complex legal structure to have Iraq deal with the returnee problem? Governments have been reluctant to defy a public opinion hostile to repatriation and with little sympathy towards those who have joined the terrorist group. In France, 89% of the population has spoken against the return of French adult Jihadis (Cebrian, 2019). The hostility is particularly strong in France, as the Paris Attacks in November 2015 that killed 130 people, were perpetrated in part by French and Belgian nationals who had returned from fighting for the Islamic State (Callimachi, 2016). Faced with such strong public opposition to repatriation, letting Iraq handle the returnee problem is seen as an attractive solution. An attack carried out by an ISIS returnee would mean the end of the political career of whoever has allowed repatriation, something few leaders are willing to put on the line for moral obligations. 

Children have been repatriated but the adult fighters who are captured in Northern Syria by the Kurdish-led Syrian forces are being transferred to Iraq (Foltyn, 2019). As the Syrian Democratic Forces (SDF) do not have international diplomatic and legal recognition, they cannot prosecute foreign fighters, instead leaving the task to Iraqi courts (Maher, 2019). To justify this decision and the death sentence of ISIS French nationals in May 2019, Macron invoked Iraqi justice and the principle of non-interference (BBC, 2019). His claim was supported by Britain and Belgium who stated that their nationals who fought for the Islamic State should be judged in the countries where they have committed the crimes (Euronews, 2019). 

But governments’ reluctance to handle the case of ISIS returnees also stems from a lack of coherent procedures required for repatriation. It appears at the moment simpler to let Iraq judge European fighters. From a security perspective, repatriation would require a consensus among European nations (Cebrian, 2019). Because of the free movement zone in the Schengen area, a French person could carry out an attack in Spain (Cebrian, 2019). Placing the responsibility on Iraq and Syria is a way to limit the risks of an ISIS returnee walking free in Europe. Many legal experts have been concerned that evidence against returnees may not stand in European courts or that they might serve shorter sentences in Europe or even “simply walk free once they return” (Maher, 2019). Collecting evidence in Syria is no easy task, especially after the Turkish intervention (Dworkin, 2019). And what about the European citizens who have joined the terrorist organization and travelled to ISIS-controlled territories without actually engaging with combat and thus cannot be easily convicted and would walk free once they have returned to Europe (Maher, 2019)? Because of the difficulty of collecting evidence and proving that a crime has been committed beyond that of being affiliated to Daesh, it is unclear how these European citizens could be sentenced in domestic courts. To respond to this threat, the EU has recently strengthened its legislation by criminalizing “travelling within, outside or to the EU for terrorist purposes” (Council of the EU, 2017). In light of this, joining Daesh would count as a crime in the EU. Yet, convicting foreign fighters remains a difficult legal problem which is especially worrying as some return with the intention of carrying out attacks in their home country (Ragab, 2019). This concern has sparked a sentiment of fear that has led many to oppose repatriation. 

It is clear that European countries are not ready for the return of ISIS fighters. But to what extent is letting Iraq handle the case a viable policy? The following section will consider the practical, legal and ethical implications of current European disengagement. 

Firstly, the United States’ (US) withdrawal from Syria and Turkish military intervention is forcing Europe to reconsider its position (Schulz, 2019). The Kurdish-led Syrian forces are currently handling the detention and transfer of foreign fighters but they no longer have logistical support from the US (Kaval, 2019). This coupled with a Turkish intervention has raised the risk of jihadists escaping and making their way back to Europe (Dearden, 2019). After the Turkish intervention into Northern Syria, 800 people escaped a jihadist prisoner camp according to Kurdish officials (Kaval, 2019). The Kurdish Forces have warned Europe that if the Turkish forces continue to attack they will not be able to secure the prisons for long (Kaval, 2019).

US withdrawal poses a clear security threat for Europe and has reignited the public debate over what Europe should do with its fighters detained in Syria and Iraq. The Kurdish forces have criticized Western countries, saying handling prisoners was not their responsibility and that “what they have left us here is a bomb about to explode” (Kaval, 2019), thus urging Western countries to act. But the Kurdish Forces, the leading component of the Syrian Democratic Forces (SDF) are not the only ones decrying European attitudes as the US has also been putting pressure on European governments. Trump has threatened to “drop them right at your borders” if the EU does not start to deal with the issue (Dearden, 2019). Turkish interior minister has called European behavior “not acceptable” and “irresponsible” after Turkey had taken charge of escaped jihadists after their military operation in Northern Syria (Euronews, 2019). In the face of growing international pressure, it is becoming increasingly difficult for Europe to justify leaving the problem to Iraq and Syria. 

The practical implications of European disinvolvement have already been felt in Middle Eastern countries, showing that the EU’s current approach is unsustainable. Europe can no longer avoid its international obligations. In addition to the long term unsustainability of leaving European fighters in the custody of the Kurdish forces, there are multiple legal complexities that could force Europe to reconsider the current status-quo. Firstly, there is a clear lack of trust in the Iraqi justice system which is “stretched and weak” (Brown, 2019). Human rights groups have spoken against Iraqi authorities for inconsistencies in their legal procedures and unfair trials, leading some detainees to be convicted without sufficient evidence (Kar-Gupta and Rasheed, 2019). In May 2018, an Iraqi court sentenced over 40 foreign women after a trial that lasted only 10 minutes (Chulov, 2018).  Those who have not yet been transferred to Iraq and are waiting for death in North-Eastern Syria, are detained by a political and military entity without international legal legitimacy and at the mercy of a Turkish intervention after the disengagement of the international community (Kaval, 2019). Prisoners have been denied proper treatment, both in Iraq and Syria, where the Kurdish forces do not have the means to handle them, leading to human rights abuses (Kaval, 2019). 

But if letting Iraqi courts pronounce judgement is ethically questionable, especially considering the values endorsed by the EU, creating an accord with Iraq is also disputable regarding current European legislation. This strategy is currently pursued by the French government but would require the creation of a legal structure between the EU and Iraq which would meet the requirements of international and EU law (Schulz, 2019). This, however, appears to be irreconcilable with current Iraqi judicial practices. French judge David de Pas has spoken against creating such an accord with Iraq, insisting that France must have “the political will of repatriation” (Pas, 2019). He notably invoked the public security threat of prisoners escaping from Kurdish detention camps and the risk of uncontrolled migration of jihadis towards Europe (de Pas, 2019). 

Lastly, there are implications that threaten to fracture the very idea of the EU itself. But why does European disengagement pose a danger to the EU? The rule of law is one of the founding values of the EU, it is enshrined in the article 2 on the European Union which states that “the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”. The respect and enforcement of the rule of law are at the core of the EU. In light of this, Europe’s current attitude towards its ISIS fighters is undermining the principles it is meant to uphold as well as its credibility. 

As the rule of law does not extend outside the boundaries of the EU, member states have technically not acted illegally by invoking a country’s sovereign jurisdiction and do not have a legal obligation to repatriate their ISIS fighters. Yet by doing so, they are clearly trying to accommodate the irreconcilable. They have signed the founding treaties of the EU which are explicitly based on a commitment to the rule of law, and yet they are allowing their citizens to be subjected to abusive treatments, unfair trials and the death sentence in Iraq. European countries might not be in a clear violation of their legal obligations but they are undeniably undermining the foundation of their own laws.  

Article 2 of the EU charter on fundamental rights states that “no one shall be condemned to the death penalty, or executed” (European Convention, 2000). Countries such as France have repeatedly reaffirmed their opposition to capital punishment, with the French minister of foreign affairs Le Drian stating that France is “opposed in principle to the death penalty at all times in all places” (Kar Gupta and Rasheed, 2019). Yet this statement, in line with article 66-1 of the French Constitution banning the Capital Punishment, was pronounced just as four Frenchmen were sentenced to death by hanging after France refused to bring them home in May (Reuters, 2019). France in this case is violating its European and international obligations (Stevoli, 2019). France is a signatory of the Charter of Fundamental Rights of the European Union (2000) and the UN’s Second Optional Protocol to the International Covenant on Civil and Political Rights, “aiming at the abolition of the death penalty” (1989). 

As the example of France has demonstrated, it seems that Europe cannot coherently defend this double thesis of commitment to the rule of law while allowing its own citizens to be sentenced to death. By doing so, European countries have made the political decision to renounce the obligations that have committed themselves to when adhering to EU legislation, and the values they have founded the European project on. It is thus the essence and raison d’être of the EU that is being questioned. In the words of French journalist Allan Kaval, Europe has “refused to answer the challenge from the Islamic State to the rule of law” (Kaval, 2019). In addition to the practical issue of leaving European fighters at the charge of Iraq and the SDF, a rule of law approach would be the best response to the ethical and legal challenges posed by preventing repatriation. It is clearly impossible for Europe to have one set of values at home and another abroad without betraying itself. For its future and for those who still believe in the European project, Europe must hold its fighters accountable. 

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