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Prosecuting Foreign Fighters in Syria: The Creation of an International Court

Peter Cephas Dahabreh, Harvard University, addresses possible solutions to prosecute Foreign Fighters in Syria, including a new ad hoc International Court.

The Syrian Civil War demonstrates the shift of threats against the Westphalian system of international order. The evolution of foreign terrorist fighters as an escapable force in the Middle East demands our attention concerning how the international community decides to move forward towards resolving this new face of terrorism. What began as a sideshow of the Arab Spring is decisively the domino whose chain reaction must be stopped. Prior to and since its declaration of the Caliphate in 2014, ISIS had successfully demonstrated the futility of the civilized world’s mechanisms to protect its citizens from this new age threat. The war brought new challenges to the world as a consequence of this now almost decade-long civil war. Although, Raqqa has since been liberated and ISIS has lost its territorial domain, the terrorist group continues to execute terrorist campaigns throughout the world. These campaigns of terror are committed by many of the fighters who returned home after engaging in the Syrian civil war. The lack of accountability for these foreign fighters exposed a deficiency for international law. Foreign fighters prosecuted in their habitual residence are not charged with serious violations to international law. They are charged with domestic crimes such as membership with a terrorist organization. Membership with a terrorist organization is a despicable crime. However, is this the best the international community is capable of? Does this present the best approach to bring justice to thousands of men, women, and children who were robbed of their universal rights? To this, I respond with an unequivocal, No! The United Nations provides the opportunity to establish a tribunal via the Security Council to hold these foreign fighters accountable. All that is left to do, is the Security Council to pass a resolution. In the past, international courts have sought to address severe crimes to international problems of this magnitude by utilizing ad-hoc tribunals via Chapter VII of the UNSC. The case for prosecuting foreign fighters definitely meets the previous threshold. I propose the establishment of an International Tribunal 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.

Today, a problem that needs to be resolved worldwide is how to handle the return of every foreign fighter. No corner of the globe is safe from the return of these men and women. Thousands of who joined ISIS, Jabhat al-Nusra, or other Islamic extremist groups walk the streets of their home country free from accountability. Questions must be asked.

1. If there is no court to hold accountable these violators of international law and international human rights, what recourse is there for holding these foreign fighters accountable for actions that have ravaged and prolonged a conflict resulting in millions of displaced people and more than a half a million dead?

What is the most viable option for holding foreign fighters responsible when it is determined that they violated international law during the Syrian civil war?

Research has promoted that the most viable pathway to bringing these foreign fighters to justice is through a new international tribunal. One that can hold foreign fighters who fought in the Syrian civil war accountable for their actions. Most domestic laws stop short of justice, deciding instead to charge a foreign fighter with membership in a terrorist organization. Perhaps a state charging its citizen with membership is due to lack of evidence tying its citizens to a specific crime. Also, it could be the lack of an adequate framework to prosecute returning foreign fighters. Some countries have taken it upon themselves to define due process and facilitate prosecution. Other states and entities have expressed towards considering the option of an international courts as the most viable option for rendering judgment. Establishing an international tribunal through the United National Security Council is, therefore, the best and only viable option the international community retains. Neutralizing the continuing and threatened potential of foreign fighters in this manner is a realistic option. One that the international community currently has procedures in place to establish.

Following past wars, the international community came together to bring justice to bear on individuals who committed serious crimes. Tracking down and bringing to justice some of the participants in the Rwandan Genocide and the Srebrenica Massacre shows that the international community has previously come together to set precedence in the face of a new threat. These conflicts each gave rise to its own tribunal where responsible parties who violated international law were prosecuted. These courts serve as memory for the new international tribunal to move forward towards holding accountable those who committed grave violations to international law in the Syrian civil war.

Another reason for establishing a court that is centered on foreign fighter groups, like ISIS, is because of their internationally recognized status as a terrorist organization that openly commits atrocities. ISIS is not a political organization/force bolstered by one super power seeking to diminish the strength of another. It must be dealt with accordingly. The solution that will ultimately be chosen to handle the threat posed by such groups must take their zero-sum mentality, with death as a reward, into consideration. In an interview with Chuck Hagel during his tenure as US Secretary of Defense, he described ISIS a new phenomenon. Hagel said its uniqueness was evident from its level of organization. Hagel argued that this was the reason why ISIS was a “credibly powerful new threat.”

There is a fine line between foreign fighters who operate on behalf of a state and those who do not. Groups monitoring the war in Syria have reported extensively on the activities of both types of groups. Activities by the Islamic Revolutionary Guard Corps (IRGC), Hezbollah, and ISIS have been well documented, and their presence has often encouraged support for sanctions against them. However, the focus of this international tribunal should focus primarily on Islamic extremist groups like ISIS and Jabhat al-Nusra.

The current framework allows the Syrian government, including President Bashar Al-Assad, to remain free from being held accountable by the UN. This is because any resolution brought forward to hold Syria or Al-Assad responsible will be struck down by a Russian and possibly a Chinese veto

This new tribunal will focus specifically on foreign fighters who collaborated with terrorist organizations. The tribunal will hold these foreign fighters accountable for serious crimes committed during the time they participated during the Syrian civil war.

Despite moral reservations against prosecuting some groups and excluding others, no viable path yet exists for holding accountable all alleged violators of international law. The current framework allows the Syrian government, including President Bashar Al-Assad, to remain free from being held accountable by the UN. This is because any resolution brought forward to hold Syria or Al-Assad responsible will be struck down by a Russian and possibly a Chinese veto. Russia is Syria’s most important ally. Without the Russian veto, the UNSC could have implemented several resolutions that could have led to Al-Assad experiencing a fate similar to that of Muammar Ghaddafi. On a dozen occasions, Russia utilized its veto power in the UNSC to reject any resolution that would jeopardize Syrian sovereignty. Some argue that another hurdle, if a resolution were to target only specific foreign fighters, is that the United States would veto such a resolution. I suggest that the United Stated has operated pragmatically since President Obama’s administration. The United States has retracted its position on regime change in Syria, an indication that Al-Assad would be allowed to continue his administration.

Another indication that Russia and the United States would support a resolution for an international tribunal can be found by reviewing their past cooperative efforts on counterterrorism, which Russia has endured just like the United States and the European Union. Russia has cooperated with the United States several times in Syria and elsewhere to address mutual threats.

One of the more serious challenges to an international tribunal is evidentiary support tying foreign fighters to specific crimes against international law. Monitoring groups report repeated challenges when attempting to access ISIS-held territories. Such challenges lead some to believe an international tribunal will be unable to acquire sufficient evidence to corroborate guilt. This may be why many returning foreign fighters are instead prosecuted for membership in a terrorist organization. However, two monitoring groups provide substantial support in reaching decisive evidence towards associating an individual with a serious crime committed. The UN Independent Impartial and Independent Mechanism (UNIIIM) and the UN Human Rights Council (HRC) have monitored and extensively documented the violations committed. Their reports are extremely useful and could be utilized by an international court that has jurisdiction over violations committed in the Syrian civil war.

A new tribunal under the aegis of the UN Security Council will succeed in eliminating a gap in international law that currently allows these foreign terrorist fighters to walk the streets without being held accountable. This new tribunal seeks a plausible avenue whereby world powers could agree upon an international court that would target mutual threats. Like past UN international tribunals, this one will have shortcomings. Primarily because some groups will escape accountability. However, both the United States and Russia have fought foreign fighters in Syria, and dealt with organized groups that carry out terrorist attacks: JN, ISIS, and others. Together, the United States and Russia are in the best possible position to develop and implement a tribunal that would hold foreign fighters accountable. This is why the world must proceed forward and promoted the UNSC to pass a resolution that establishes International Tribunal 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.

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.


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