Peter Cephas Dahabreh, Harvard University, explains possible solutions including the creation of an International Tribunal.
What are the different options to bring foreign fighters in Syria to justice?
This discussion necessitates to make clear that, technically speaking, it is not a crime to be a foreign fighter. As history shows us time and again, a foreign fighter force is a common variable in conflicts. Distinctive from a mercenary force, although similar in some ways, foreign fighters have in the past have been peripheral bodies of militias. It was not until the Syrian civil war that we saw foreign fighters take shape like ISIS.
As far as options are concerned, towards bringing foreign fighters, who participated in Syria, to justice, we first and foremost have to step away from idealism and center our focus on a realistic and viable mechanism. The International Criminal Court cannot facilitate a tribunal for foreign fighters. This is because Syria not a party to the Rome Statue which is a necessary precondition for a court case to be reviewed.
The United Nations does have the International Court of Justice, however, this court is designed primarily for disputes among states. Yet, there are two paths to creating a court. One of which is a severely time consuming approach where multilateral treaties are created among states, directly or indirectly, involved with the issue to be adjudicated. The more effective approach is by establishing an ad-hoc international tribunal via the authority of the UN Security Council.
This favorable path gives us one-step forward but two-steps back. Those aware of geopolitics will not be surprised to find that any UNSC resolution to establish a court that holds Russian allied foreign fighter forces such as Islamic Revolutionary Guard Corps or Hezbollah, will be vetoed. Therefore, with two-steps back, how do we respond to the geopolitical handcuffs of our times? How can we try to, at the very least, bring justice to some of the victims of the Syrian civil war? Ideally, all those who violated International Humanitarian Law and International Human Right Law should be brought to justice. This is unequivocal, undebatable, and unforgettable. Yet, because a comprehensive tribunal that aims to bring justice to all victims is impossible, we must act to reconcile those crimes that have gone unpunished.
ISIS, Jabhat al-Nusra, and other terrorist foreign fighter groups are not protected by either of the five veto power nations. This is the best formula to bring foreign fighters of the Syrian civil war to justice. The veto powers have unanimously passed resolutions condemning these foreign terrorist organizations. All agree that these groups are intolerable and so are there actions. Nothing stands between the United States, Russia, or China in voting in the affirmative for bringing criminals in these foreign terrorist organizations to justice via an international tribunal.
What are the variables needed to establish this Tribunal?
Three things are absolutely necessary to kick-start this tribunal.
A UN SC Resolution to the UN Secretary General that proposes an International tribunal should be established for the Prosecution of Foreign Fighters Responsible for Serious Violations of International Humanitarian Law or International Human Rights law Committed in the Territory of the Syrian Arab Republic since 2011 is needed.
The UN Secretary General reviews the report and then sends back to the UNSC a proposal, some of which could be offered by member states, for an international tribunal to be established.
The proposal details which crimes and laws would be under the jurisdiction of the court. For example, violations to the Geneva Conventions, genocide, ethnic cleansing, crimes against humanity, etc.…
The UNSC reviews the proposal then votes and passes the resolution without a veto.
This is the critical stage I looked to overcome to determine the viability of such a resolution.
What are the main challenges to set up an international Tribunal (money, evidence...)?
Main challenges will surely arise even after the main challenge of creating the tribunal is passed. Most of them are logistics but financing the court will also be an issue. The latter has several mechanisms that could easily shoulder the burden. A foreseeable challenge is extradition. There could be some states unwilling to extradite a citizen to the court because that citizen may be under current investigation for charges of membership with a terrorist organization. This may prolong the court to wait for the verdict of the individual or condition the court to proceed without prosecuting the individual. Should the court be established for a period of time when the individual is released after serving his sentence (3-10 years depending on where he/she is incarcerated) the foreign fighter can then be extradited to the court for further prosecution.
Another factor that will require further investigation is evidentiary support that connects an individual to the heinous crime. However, the UN Independent Impartial and Independent Mechanism (IIIM) will stand as the evidentiary support to begin proceedings. This UN mandate is pivotal in our search for justice. The IIIM began in 2016 aimed, “to collect, consolidate, preserve and analyze evidence of violations of international humanitarian law and human rights violations and abuses and to prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law.” IIIM reports and the UN Human Rights Council reports will provide the stepping stones to bridge the gaps during and after cross-examination.
Is it realistic for the UN Security Council to agree on that Tribunal? Would it be realistic to create this type of Tribunal without UN support?
The United Nations was established to be the embodiment of international cooperation. Realistic goals is the UN’s affirmation. With this in mind, the UN is the only and best body to establish a recognized tribunal. Furthermore, in order to bring justice to the victims and in order to bring foreign fighters that returned home to be held accountable, a court that is globally entrusted with adjudication is necessary to oversee the execution of such an existential issue. Those who were involved with ISIS and committed horrendous acts are mostly indicted in their home country on charges of “membership with a terrorist organization”. Reducing an individual who is party to ethnic cleansing of Christians in Syria to charges of “membership with a terrorist organization” is one of the most laughable failures of our century. Realistic is not a challenge in creating this tribunal. Its lack of imagination towards opportunities to bring justice to the orphans, women, children, and refugees who now face an upside down life in their host country.
Should this Tribunal cover terrorist acts committed in Iraq?
Ultimately, no. The United States in collaboration with the Iraqi government can bring those foreign fighter criminals to court under Iraqi law. Syria, which was on the brink of collapse, was a quagmire during the height of ISIS and other extremist groups fighting for control. The civil war opened the country to participation of foreign groups and states unlike that which occurred during Iraq’s darkest days. Also, ISIS declared its caliphate in Raqqa. Syria was where ISIS’ presence was strongest and consequently where other foreign fighters felt invited, in the the scores of thousands, to travel and join their ranks. If we include those foreign fighters who committed terrorist attacks in Iraq, some who possibly never entered into Syria, then we may face a veto with the United States.
What are the main countries that would show support the creation of this Tribunal and the ones neutral or against?
I imagine that there would not be any state opposed to an international tribunal for the sake of prosecuting foreign terrorist fighters of the Syrian civil war. Specifically, those foreign fighters that are detested by Syria, United States, Russia, and most of the world. Syria may be hesitant to an international tribunal taking place on its territory but I do believe the court’s existence may give Assad an opportunity to further declare legitimacy. Syria may also be opposed because testimonies by foreign fighters may confirm speculation of crimes committed by Syrian forces.
Some Middle Eastern countries may be opposed because of extradition laws. This does serve as a potential problem that needs to be solved on the front-end. For example, countries like Saudi Arabia have been accused of funding extremist groups in opposition to Assad forces. While Saudi Arabia did offer support to the leading Syrian opposition force, Free Syrian Army, Saudi Arabia has been accused of funding Islamic extremist groups. From Saudi Arabia’s point of view, a tribunal that cross-examines a foreign fighter who claims to be sponsored by Saudi Arabia may bring cause for further investigation to other citizens of the kingdom. This could severely curtail support from Middle Eastern states. Yet, these states could rest assured that the purpose of this tribunal has no jurisdiction over their individual state. With some appeasements and mechanisms put in place, countries fearing backlash over extraditing their citizens could be on board. Nevertheless, none of these states have a veto power that make this tribunal dead in the water.
About the Author:
Peter Cephas Dahabreh is a researcher in International Relations. Peter earned his ALM in International Relations from Harvard University in May 2019. His work is centered on accountability of foreign fighters in the Syrian civil war. Prior to his graduate studies, Peter served four terms on the Los Angeles World Affairs Council Young Professionals Board.