How To Put ISIS Members On Trial

The best way — the only real option — is a new hybrid international tribunal

Andrew G. Reiter
Arc Digital

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The ISIS caliphate has been defeated, but over 55,000 suspected militants and their families remain in custody. This includes thousands of foreign fighters, who traveled from more than 50 countries to fight in Iraq and Syria. Now the international community is trying to figure out what to do with them.

Some, including the U.N. High Commissioner for Human Rights, insist they all get a fair trial. Yet current efforts to mete out justice are dangerously flawed, and most of the proposed alternatives poorly conceived. A new type of hybrid tribunal coordinated by the United Nations is the only viable path forward. While flawed in its own right, it is the least bad option, solving many of the challenges of meting out justice for so many people from so many countries involved in such horrific crimes.

Many argue that repatriation is the solution. But trying members of ISIS in their home countries comes with serious problems. Most countries did not have laws about joining foreign terrorist groups until recently, and evidentiary standards are high. Due to limitations on pre-trial detention, many states might have to release defendants into general populations, including some, such as France and Belgium, who saw citizens visit the caliphate, return, and commit terrorist attacks. And if ISIS members are convicted and sentenced, they could radicalize prison populations, many of whom will eventually be freed.

Instead of repatriation, many countries have stripped ISIS members of citizenship, partnering with Iraq to prosecute them there. While many defendants have never set foot in Iraq, its anti-terrorism laws are broad enough to cover members of terrorist organizations that sought to harm the country. The current trials, however, are deeply troubling.

Most convictions are based on confessions rather than evidence, and there are widespread reports of torture being used to extract them. Moreover, Iraq uses the death penalty, which is prohibited in most European countries and contrary to the Second Optional Protocol to the International Covenant on Civil and Political Rights. In May, France turned over seven of its citizens to Iraqi courts. Based on confessions, they were all convicted in just four days and sentenced to death by hanging.

To continue to serve this function, Iraq wants the international community to pay an exorbitant amount, reportedly as high as $10 billion upfront and $1 million per detainee. There are also questions about whether the process can be scaled up to meet the demand, and worries about Iraq’s ability to securely imprison so many fighters and prevent their escape.

To overcome those shortcomings, the international community will need to be more actively involved. The International Criminal Court (ICC) was established in 1998 to prosecute individuals for just the types of crimes committed by ISIS — genocide, crimes against humanity, war crimes, and crimes of aggression. Yet neither Syria nor Iraq are state parties. This could be overcome by a U.N. Security Council Resolution, but the court is not designed to handle large numbers of perpetrators and has only convicted four individuals since it began operation in 2002.

The ICC’s aim is to prosecute those most responsible for committing atrocities, and while ISIS leader Abu Bakr al-Baghdadi remains at large, other high-ranking members have been captured. Yet here again standards of evidence are high and gaining a conviction is not a foregone conclusion, as the world found out when former Côte d’Ivoire president Laurent Gbagbo was acquitted in January after three years on trial. Clearly, the ICC cannot solve the problem of what to do with the tens of thousands of captured fighters.

In addition, giving members of ISIS a high profile platform would be dangerous. Elevating them to a status as some of the world’s worst warlords and keeping them in the news while on trial for years would only aid the group in its efforts to recruit new followers.

As a report by the European Council on Foreign Relations documents, there is growing support within Europe, led by Sweden, to establish a new international tribunal. But previous attempts provide reasons for skepticism.

The International Criminal Tribunal for the former Yugoslavia — established after the wars in the Balkans in the 1990s — lasted for 24 years, cost well over $2 billion, and sentenced just 90 people. Other efforts in East Timor, Kosovo, and Cambodia suffered from budgetary constraints, lack of cooperation, and political manipulation, and produced few convictions. The hybrid tribunal the U.N. established in 2002 to deal with crimes committed during Sierra Leone’s decade-long civil war is generally considered a success, but its aims were limited, and it convicted just eight individuals in a decade of operation.

The only solution is a new type of hybrid tribunal based in Iraq with minimal international oversight. If the international community insists on trying suspected members of ISIS according to the full panoply of international standards it will fail, much as years of evidence gathering and further years of appeals bogged down previous hybrid tribunals.

The ISIS tribunal will have to live with many aspects of Iraqi law and the Iraqi judicial system. Confessions will still play a larger role than is typical for international tribunals, but the international community can stop coercion by insisting that prisoners receive access to the Red Cross and human rights organizations to prevent torture and abuse. They could also insist on removing the death penalty. International actors could fund it themselves, for far less than Iraq is requesting, and operate a secure international prison in Iraq to prevent detainees from escaping.

An ISIS tribunal would also bring an important level of consistency. Laws related to foreign fighters vary dramatically across the world, with penalties ranging from just a few years in jail to a death sentence. Such a patchwork process is bad for international law and hinders the creation of global standards for human rights violations, something various international courts have attempted to do.

Another benefit of a dedicated tribunal for ISIS is a venue to handle crimes committed elsewhere in the world. Branches of ISIS are currently active in more than a dozen countries, and each government faces the same questions about what to do with any fighters it captures. Being able to turn them over to a centralized court would be widely welcomed. And there is precedent in the international community’s support for courts in Kenya, Somalia, and the Seychelles to try pirates caught in international waters.

In the end, the international community will have to sacrifice some of its ideals and look the other way at a flawed Iraqi justice system. But helping to run an imperfect tribunal and successfully processing tens of thousands of ISIS fighters is the only viable option going forward.

ISIS’ size and transnational nature pose a unique challenge for the international community and require difficult choices. In this case, justice done poorly is better than no justice at all.

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Andrew G. Reiter
Arc Digital

Associate Professor of Politics and International Relations at Mount Holyoke College.