Over 50,000 people, the vestiges of an ISIS “caliphate” in Syria and Iraq, remain in prisons and camps in northeast Syria administered by the Autonomous Administration of Northeast Syria (AANES). Prisoners have no reasonable prospect of being brought to trial and women and children in Al-Hol camp live in bleak conditions with no clear path to resettlement. For years, international NGOs and United Nations Special Rapporteurs have urged the international community to take action and the AANES to try former ISIS fighters and release women and children. These calls were largely unheeded. As Amnesty International reiterated in an April 2024 report, the indefinite detention of alleged ISIS affiliates is not consistent with international humanitarian law (IHL) and international human rights law (IHRL).
In April 2024, however, the AANES issued an amnesty for domestic crimes, such as misdemeanor theft and assault, paving the way for the release of 1,500 detainees from Al-Hol and detainees from Syrian Democratic Forces (SDF) prisons in the ensuing months. The releases made a small but meaningful dent in the total number of detainees. The AANES amnesty, on its own, will not be adequate to alter the fates of most of those who remain in Al-Hol and SDF prisons. A more comprehensive program is required to expedite the fair processing of ISIS cases. Any such approach must incorporate the views of the Syrian communities most impacted by potential trials, and the release and reintegration of former ISIS affiliates.
In order to better understand the needs of local communities, in June 2024, our organization, the Syria Justice and Accountability Centre (SJAC) conducted a series of focus groups in northeast Syria. Opinions varied, but most Syrian communities agreed that the closure of camps and return of residents to local communities was necessary. They called for a combination of formal trials and customary justice consistent with tribal practices. As we argue below, such a phased approach including amnesties, trials, and customary “parole boards” would be consistent with the requirements of IHL and IHRL.
International Justice Efforts for ISIS Crimes
Recent transitional justice mechanisms (particularly for crimes committed by ISIS affiliates) have been an exercise in the art of the possible. The International, Impartial, and Independent Mechanism (IIIM) was created by a United Nations General Assembly Resolution in the face of Russian and Chinese vetoes for the United Nations Security Council to refer the Syria situation to the International Criminal Court (ICC). It was a creative solution to work around the absence of international consensus for an ICC referral or creation of a stand-alone tribunal. But the IIIM has serious limitations. It lacks jurisdiction to prosecute crimes and does not have authorization to conduct investigations in Syria. It has been further weakened by a shortfall of donor funding, as a new Syria mechanism for the Independent Institution on Missing Persons (IIMP) has divided financial support. The IIMP – created in response to calls by Syrian families to ascertain the fate of their loved ones rendered missing during the Syrian conflict – is itself a compromised institution. There are at least tens of thousands of missing persons in Syria, but most were rendered missing by the Syrian government, which is the only entity in possession of critical information that could clarify the status of those missing. It has refused to cooperate with all such investigative efforts in the past. The IIMP cannot operate in Syria and therefore lacks access to government-controlled detention facilities or to the territory on which suspected graves are located.
Similarly, the U.N. Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) was created by a Security Council Resolution to investigate, but not prosecute, crimes committed by ISIS (also known as Da’esh or ISIL or the Islamic State). Though the Iraqi government had requested U.N. assistance to investigate crimes committed by the terrorist group, it stopped short of seeking criminal accountability through an international or hybrid institution. UNITAD was mandated to prepare the groundwork for the prosecution of members of ISIS for serious international crimes, including genocide against the Yezidi people. But Iraq did not have a domestic legal framework that criminalized war crimes, crimes against humanity, and genocide, and political will to pursue such crimes has largely evaporated. In fact, by 2023, the government of Iraq informed the U.N. that it would not authorize the renewal of UNITAD’s mandate beyond 2024. UNITAD has now closed its doors.
It is too soon to make definitive pronouncements on the success or failure of these new mechanisms. The IIIM and UNITAD have already consolidated and preserved massive amounts of data, the value of which can only be determined if and when it forms the basis of comprehensive justice efforts. To date, however, accountability for former ISIS affiliates has been fragmented as prosecutions move forward using domestic terrorism law, and in some cases for core international crimes, in several States, particularly Germany, the Netherlands, and Kosovo, among others.
Foreign fighters comprise approximately 2,000 of the detainees in SDF prisons. Although a handful of States, such as Kazakhstan, have repatriated foreign fighters for prosecution or reintegration at home, most have resisted pressure to do so. In 2019, Sweden convened a meeting of government officials to discuss a proposal for an international tribunal to prosecute ISIS affiliates. The AANES supported the creation of a tribunal, but requested a hybrid institution. The proposal went nowhere.
In 2021, SJAC proposed the creation of a treaty-based terrorism court to be located in neighboring Iraq (in the Kurdistan Regional Government) to prosecute foreign fighters. As to the remaining Syrian and Iraqi fighters, SJAC proposed that the international community support local prosecutions with resources and expertise. Again, there was no movement.
Since that time, the dynamics are unchanged, with the human rights community insisting that the issue should be resolved internationally and not be left to non-State actors such as the AANES, which has limited resources, capacity, and diplomatic standing. In its most recent report highlighting abuses in AANES detention facilities, Amnesty International notes the failure of repatriation of foreign fighters to resolve the crisis and calls for the U.N. Secretary General to convene a discussion “to identify venues where perpetrators can be brought to justice in fair trials.” Since the international community has rejected similar proposals since 2019, it is unlikely that the current proposal will gain momentum. The terrorism cases which have moved forward against foreign fighters in European States have not made a significant dent in the detainee population in northeast Syria.
Before the international community settles on any process, it must center the victims and survivors of these crimes. What do Syrians and Iraqis – those who suffered under the ISIS caliphate – prioritize in relation to justice and accountability? A handful of Syrians within the diaspora have access to U.N. institutions and diplomatic channels, which provide an important opportunity for the international community to hear Syrian voices. But what are the views of Syrians who live next to the remaining members of ISIS and who will be forced to coexist with them after their release? With these questions in mind, SJAC completed a series of focus groups in northeast Syria in June 2024.
Syrians Want Trials and Customary Justice
Between June 10-26, 2024, SJAC hosted six focus group discussions in the northeast Syrian cities of Deir Ezzor, Raqqa, and Al-Hasakah to explore local communities’ perspectives, demands, and concerns regarding the future of ISIS affiliates. Thirty-two community members participated in the focus group sessions and four additional interviews were conducted with tribal leaders and local NGO personnel. While the participants’ input may have been influenced by ethnic identities and socio-economic factors, local community members are keenly aware that the current management of populations in detention camps or AANES and SDF prisons is unsustainable and impedes the reintegration of Syrian ISIS affiliates into society, our report found.
When it comes to accountability measures, local communities across the three regions emphasized that incarcerated ISIS affiliates should undergo trials. However, they expressed heightened skepticism about the ability of AANES and the SDF to conduct credible and transparent trials or acquire the necessary resources to do so. To build trust in these trials, the majority of participants suggested international expertise and support, including assistance in collecting evidence, training local judges, and monitoring trials. They also made clear distinctions between the varying levels of involvement with ISIS among those incarcerated, stressing that a one-size-fits-all trial or amnesty would neither be effective nor address the justice needs of local communities.
Beyond retributive justice, locals from Deir Ezzor and Raqqa explained that the tribal reconciliation system, deeply rooted in the regions’ history, had traditionally been used to address cases of murder, robbery, and assault. They argued that returnees to Deir Ezzor and Raqqa who were affiliated with ISIS should not bypass the tribal reconciliation process. This process typically involves negotiations between the tribe of the perpetrator and the tribe of the victim, mediated by tribal leaders and religious figures, the study participants said. Resolutions often include measures such as financial compensation known as Diyya, paid by the perpetrator’s tribe to the victim’s tribe. To adapt to the post-ISIS reconciliation context, a unified charter signed by the tribes currently includes crimes committed under ISIS and the appropriate financial compensation. In some cases, the victim’s tribe may demand the exile of the returnee for a specific period. Notably, participants argued that the tribal reconciliation process should complement a prison sentence for those who committed serious crimes like murder, rape, and torture. In communities that endured ISIS’s brutal ethnic targeting, such as Al-Hasakah, there was a stronger preference for retributive justice measures, such as criminal trials, as these are believed to serve as a deterrent for future harms. Coincidentally, after SJAC completed its focus group work, the AANES issued a significant amnesty of ISIS fighters.
AANES Amnesties
In July 2024, the AANES issued Amnesty Law No. 10 which identified 1,520 detainees, including 63 women to be released from AANES detention facilities and camps. Based upon SJAC’s documentation, there were two types of releases: (1) those detained on criminal charges must pay “bail” between $5 and $20; and (2) those charged with membership in ISIS “whose hands were not stained with blood” were released only with a guarantee from tribal leaders that the individual would not engage in future terrorism.
Excluded from the amnesty were ISIS leaders, those accused of killing, and anyone who fought against the SDF. Our documentation indicates that releases began on July 18, 2024, from Raqqa central prison with many coming from Gweran prison and others from Hassakeh and Alaya prisons. There were also some releases from Al-Hol camp. However, the AANES did not announce a list of persons who would be released, creating some confusion among Syrians in the northeast region.
Although some local news outlets reported on the process as it unfolded, AANES shared little information to prepare the local population ahead of the releases. The lack of transparency makes it difficult to evaluate whether the detainees received adequate due process protections and deprives victims of an opportunity to be included in the justice process. A formalized system for future amnesties could be helpful to involve local communities and facilitate the reintegration of former detainees. This should be based upon clear and consistent standards which could be modeled upon factors considered by parole boards. Parole boards, which are often part of prison systems, decide on whether a convicted person should be released and assess the readiness of an individual based upon statutory factors such as the nature of the offence, likelihood of recidivism, and victim safety. The AANES should formalize a system by which victims and tribal authorities can make submissions on the release of particular individuals.
Releases must be part of the solution. Indeed Article 6(5) of the 1977 Additional Protocol (II) to the Geneva Conventions of 1949 encourages amnesties at the end of hostilities. But they will not resolve cases where ISIS affiliates are suspected of serious crimes. A fair judicial process, as identified by Syrians in SJAC’s focus groups, must also form part of the solution. Syrians are not opposed to the idea of AANES trials, but consider that international support will be necessary for any such efforts to be transparent and fair. This begs the question of what trials require to meet international standards.
AANES Releases Under an IHL Regime
The protection status of detained individuals is clear under IHL. The law of non-international armed conflicts (NIACs), namely Common Article 3 of the 1949 Geneva Conventions (CA 3), provides that detained individuals are considered hors de combat, and therefore protected persons who “shall in all circumstances be treated humanely, without any adverse distinction” based on certain criteria, including race or religion.
The applicable principle is less clear when it comes to the establishment and administration of a criminal tribunal by non-State armed groups (NSAGs) during NIACs. Despite being a common practice, the legal basis for the establishment and administration of criminal tribunals by NSAGs remains uncertain. Although the IHL of NIAC does not explicitly permit the establishment and administration of criminal tribunals, this legal framework does not prohibit them from doing so.
It is our view that in line with the “equality of belligerents principle” which provides that “IHL applies equally to all parties to an armed conflict and imposes the same obligations on them,” NSAGs are entitled to lawfully establish criminal tribunals during NIACs particularly when the situation entails de facto territorial control by such groups. It is, however, essential to assess the lawfulness of such criminal proceedings based on facts on the ground. The obligation to afford the fundamental judicial guarantees in any criminal proceeding is considered a customary IHL norm binding all parties to an armed conflict, including NSAGs. Hence, to be considered lawful, such courts must satisfy and be able to (realistically) afford the minimum “essential [judicial] guarantees of independence and impartiality” as outlined in CA3, and further elaborated and clarified in Article 6 of Additional Protocol II (AP II). Recognizing the necessity for additional humanitarian rules to further protect the civilian populations from the effects of modern warfare, two Additional Protocols to the Geneva Conventions were introduced; so far AP II has been acceded/ratified by 169 States. In Article 6, Additional Protocol II enumerate some universally recognized fair trial standards, including for instance, the right of the accused to an independent an impartial tribunal, the right to information and defense, the right to be present at trial, the right against self-incrimination, in addition to the obligation of the parties (to the conflict) to respect the principles of individual responsibility, non-retroactivity, and the presumption of innocence. In short, AP II offers the minimum grounds for protection, not the ceiling.
In addition to considering the legitimacy of its purposes and capacity to fulfill them, the lawfulness assessment of any court should also include the quality of the (substantive and procedural) laws applied in such a tribunal. In this regard, just a few months ago, the AANES issued new amendments to its Anti-Terrorism Law (No. 7 of 2021) to assert jurisdiction over certain international crimes (excluding the crime of aggression). A newly introduced Article 17 gives the People’s Defense Tribunal jurisdiction over genocide, crimes against humanity, and war crimes, mirroring the language in Articles 6, 7, and 8 of the 1988 Rome Statute of the ICC. Furthermore, Article 18 of the new amendments recognizes the absence of a statute of limitations for such crimes. This is an important and practical opportunity for international legal scholars and practitioners to observe the law-making process as well as domestic implementation of international law by non-State actors. Introducing the substantive requirements to prosecute international crimes is a major step forward, though insufficient on its own to guarantee a procedure consistent with international legal requirements. There must be additional judicial guarantees as noted above. With few exceptions, the AANES has not allowed the public to observe the trials that have proceeded. Even in such cases, access was limited. Transparency and unhindered access to public trials and monitoring would be indispensable to determine the lawfulness and legitimacy of such processes.
Even if such processes are found to meet international standards, the double jeopardy rule, which provides that no person should be tried twice for the same illegal act by a single sovereign entity, might permit the retrial of such individuals. Given the limited and non-customary nature of the double jeopardy principle, and no statute of limitations for international crimes, any judicial or non-judicial process resulting in the conviction or acquittal of a suspect (including amnesties), will not necessarily shield such suspects from being tried later by another court of appropriate jurisdiction, nor would it bar any other State from criminally pursuing such suspects. For example, Britain prosecuted a former ISIS fighter, Aine Davis, who had already served a sentence for other ISIS crimes in Turkey. The applicability or inapplicability of double jeopardy could have important ramifications for the ability to charge similarly situated defendants.
Comprehensive Solutions
The international community has failed to identify a comprehensive solution to the indefinite detention of the remaining members of ISIS in northeast Syria. For now, a wholly international solution is politically out of reach. The AANES release of 1,500 detainees to tribal authorities through a formal amnesty is a positive step towards resolving a monumental challenge. But greater transparency is required in future releases. The AANES should pass a law setting forth a statutory framework for the creation of “Parole Boards,” composed of AANES authorities and local community members. These Boards must take into account the views of victims who suffered under ISIS rule and request written input from tribal leaders on the potential release of individuals.
The AANES has also promised on multiple occasions to expand trials of ISIS affiliates. As we have noted above, such a process could be consistent with IHL. Unfortunately, all parties agree that the AANES lacks adequate capacity and resources. The international community should end its policy of ambivalence and initiate support for AANES-led trials. International experts should support local authorities in building cases against former ISIS affiliates suspected of the most serious crimes. Other experts could also assist judges in the procedure and administration of such trials. Furthermore, the AANES should permit trials to be observed by neutral monitors to ensure essential guarantees of independence and impartiality. Where evidence is lacking, a phased approach should be pursued for the release of prisoners to their communities.
The present indecision amid calls for additional deliberations serves neither human rights nor national security interests. A more practical approach should be adopted that accepts current realities and seeks to address this long-festering problem.