The war with the Islamic State may be winding down in Syria and Iraq, but the battle over how to bring its detained fighters to justice is only just beginning.

Some 2,000 male foreign fighters, including 800 Europeans, are believed to be held in Kurdish Syria, trapped in a legal limbo, since the war ended in March. The United States believes they should be returned to their countries of origin and stand trial, but most European countries are proving resistant to that idea. On a continent plagued by ISIS terrorist attacks, the main obstacle to repatriation may be hostile public opinion. Politicians, wary of being blamed for any subsequent attacks, have opted to keep their nationals away, including the families of alleged terrorists.

Open gallery view Number of ISIS fighters in Syria's state prisons Credit: Haaretz

Indeed, critics say European governments are in effect creating their own “Guantanamos” in the overcrowded prisons and detention camps being run by the U.S.-backed Syrian Defense Forces across northeastern Syria.

The problem has already been debated for several years, with European powers holding various meetings across the world in a bid to advance the matter. But they are still a long way from finding a solution. “We talk, we talk, but we are nowhere,” a source in a European Foreign Ministry tells Haaretz. “We are completely in the dark.”

Open gallery view From the U.K. to Germany: Where ISIS' European fighters came from Credit: Haaretz

There have been various suggested solutions to the dilemma. In May, for instance, the Swedish government started lobbying for the creation of an international tribunal, possibly based in Iraq, to prosecute ISIS fighters for war crimes. Mikael Damberg, the country’s interior minister, suggested that it could be modeled on the international courts established to prosecute perpetrators of the genocides in Rwanda and the former Yugoslavia. Others have called for a Nuremberg-like tribunal, referring to the German city in which Allied powers brought Nazi war criminals to justice after the end of World War II.

Interviews conducted with dozens of political figures, senior officials, military sources, lawyers, judges, experts, jihadists, victims and human rights defenders in the Middle East and Europe highlight the major challenges that need to be overcome before foreign ISIS fighters can be brought to justice, and how far European countries are from truly tackling this question. Some sources requested anonymity to freely discuss such a sensitive topic.

Tribunal in Rojava

In early July, in the middle of wheat fields blackened by fires that burned all summer long, about 100 local Kurdish officials, lawyers and international experts gathered in a holiday resort near the city of Amuda for a conference to promote the establishment of an international tribunal in the de facto autonomous Kurdish region of Rojava. Dozens of men in black, armed to the teeth, jealously guarded all entrances to the site.

Open gallery view Nazi war criminal Hermann Goering during cross-examination at his trial during the International Military Tribunal, Nuremberg, Germany, in 1946. Credit: Getty Images

“When you see the harm they have done, and considering this is where the caliphate was defeated, it is normal to ask that they be judged here. We have a desire for revenge,” Suaad Murad Khalef, a 21-year-old Yazidi survivor invited to speak at the conference, tells Haaretz. She was kidnapped on August 3, 2014, from the ancestral Yazidi homeland of Sinjar, northern Iraq, on the first day of the genocide against her ethnoreligious community. Like hundreds of other women, she was then sold as a sex slave, repeatedly being traded from one jihadist to another.

In the Kurds’ view, this international tribunal would lend a powerful voice to the victims of ISIS by putting them at the center of the judicial process and offering them reparations. It would also ensure that their region would benefit from long-lasting international support now the war is over.

For the time being, Syrian ISIS members are the only ones standing trial in Rojava. In Iraq, meanwhile, only charges related to terrorist acts are being heard. Sex crimes, such as those committed against the Yazidi women, are not considered, while crimes against humanity or genocide do not exist in Iraqi law.

“As a victim, I want to attend these trials,” says Khalef. “This is an opportunity for us to demand justice and to shed light on what has happened to us.”

Open gallery view Suaad Murad Khalef. “As a victim, I want to attend these trials,” the Yazidi Kurdish woman says. Credit: Chloé Troadec / Rojava Informat

Yet for more than two years, the Syrian Kurds who spearheaded the fight against ISIS (as part of the U.S.-led coalition) insisted that foreign jihadists languishing in their prisons be sent back to their home countries. Only a handful of nations, including Russia, responded positively to such a request, though, and a deafening European silence further irritated the Kurds, who called on the countries to take responsibility for their citizens’ actions.

But the Syrian Kurds have since changed tack and are now insisting that these individuals be tried in Rojava. However, European countries like the United Kingdom, France and Belgium see the Kurdish offer as neither practically feasible nor particularly desirable.

Indeed, most experts and officials Haaretz talked to see the chances of an international court being established in Rojava as slim. In Europe, supporting such a project is seen as a political risk. Turkey, a historical ally of the Western powers within NATO, sees the Syrian Kurds’ YPG militia — the backbone of the Syrian Democratic Forces — and its political affiliate to be subgroups of the PKK, a Kurdish-armed group that Ankara considers terrorist in nature.

The Syrian regime is another issue. Despite their dreams of emancipation, the Kurds maintained constant contact with Damascus throughout the war, and President Bashar Assad always promised he would regain control of the entire territory. Europe’s leaders worry that by leaving their detained nationals there for too long, they will, one way or another, end up in enemy hands.

Open gallery view Yazidi Kurdish women chanting slogans during a protest against ISIS' invasion of Sinjar, in Dohuk, northern Iraq, August 3, 2015. Credit: AP

Clandestine transfers to Iraq

Some Western countries have seemingly taken drastic steps to pursue another option: smuggling foreign detainees from Rojava to Iraq. In January, 11 French nationals being held in northeastern Syria reportedly woke up in Baghdad after being transferred overnight. They were subsequently sentenced to death during a series of trials in May and June.

France, which opposes the death penalty, signaled that it would not stand in the way of the trials, saying it respects Iraq’s sovereignty. The French Foreign Ministry reiterated its government’s position that citizens who joined ISIS should be tried near to where the crimes were committed, but a spokesperson says it will ask for the death sentences to be commuted.

This alleged practice has alarmed human rights activists. “If a coalition partner is involved in the transfer of its nationals to Iraq, whose criminal justice system is seriously flawed and where torture is pervasive, and it has not taken measures to ensure that its nationals do not risk an unfair trial or torture in Iraq, then these transfers are illegal and the governments must be held accountable,” says Belkis Wille, a senior Iraq researcher for Human Rights Watch. The NGO says it has reason to believe that U.S.-led coalition forces transferred foreign fighters from Syria to Iraq in at least five cases, including detainees from Australia, Lebanon and the Gaza Strip, plus the French nationals.

Open gallery view Four ISIS members seen attending trial at the Central penal Court in Baghdad, April 17, 2018. Credit: Afshin Ismaeli / SOPA Images / L

The reported transfer is also attracting the attention of the United Nations. Agnès Callamard, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions at the Office of the High Commissioner for Human Rights, tells Haaretz she sent an official letter to the French government in August asking for an explanation over its possible involvement in the transfer of its nationals — a practice she views as counter to international law.

“Where is the process of justice? Truth? Justice has not been served, the truth is hidden,” says Callamard, speaking from a park in Oxford, England, where she teaches law. “What interests me is that we have a policy of providing justice to victims of the Islamic State group, whether they are in Iraq, Syria or in Europe. These are crimes of international scale, so we need a response that is commensurate with the crimes that have been committed.”

Given what she calls “the complexity of the situation,” Callamard says “there is not a single answer” to the problem. “In some cases, trials in the countries of origin are the best option. But given the nature of the conflict and the crimes committed, an international response is also required,” she adds, advocating a “Nuremberg-like” tribunal. She calls the alleged transfers “the antithesis of justice.”

Open gallery view Detainees sitting in a holding area being guarded by military police at Camp X-Ray of Naval Base Guantanamo Bay, January 11, 2002. Credit: Reuters

Another person disturbed by the alleged transfers was considerably closer to the conflict than Oxford. Speaking to Haaretz in a deserted office on the outskirts of the city of Qamishli, a Kurdish anti-terror judge outlines her problems with the practice. “We didn’t want the French jihadists to be transferred to a country that would sentence them to death. It was France and the coalition that organized and sponsored this,” she tells Haaretz, requesting anonymity for security reasons. She looks visibly shaken by the actions: the Syrian Kurds’ ideology precludes capital punishment.

“What we want is for the trial of men and women of 52 different nationalities present on our territory to take place here,” she explains. “It makes more sense: the crimes were committed here. The victims, the perpetrators, the witnesses and the evidence are all here.”

Regional court in Amman

As an alternative to the Syrian Kurdish proposal, some in Europe have suggested referring the matter to the International Criminal Court — although only the UN Security Council can do that. In May 2014, Russia and China blocked a draft resolution that would have given the ICC the jurisdiction to try war crimes committed in the Syrian civil war. Any new attempt would inevitably be vetoed by Russia, an ally of the Assad regime that is accused of at least as many crimes as ISIS. There is also no reason to believe that the United States, which advocates for repatriation, would vote in favor.

Moreover, neither Syria nor Iraq are party to the ICC’s founding treaty, the Rome Statute. Loopholes exist, but the ICC is perceived as ineffective in any case: Too slow, too expensive and better suited to judging the leadership than the numerous foot soldiers filling Iraqi and Syrian prisons.

Open gallery view Agnès Callamard, the UN Special Rapporteur on extrajudicial, summary or arbitrary execution Credit: Denis Balibouse/ REUTERS

According to several sources familiar with the talks, other EU officials floated the idea of creating a “regional” court that could sit in a Middle Eastern city such as Amman. Such jurisdiction would have the benefit of creating a powerful counter-narrative to ISIS’ propaganda, offering fair trials in a Sunni-majority country — radically different from Iraq’s current policy, which critics say is more akin to collective punishment than justice. But which Arab capital would be willing to take the political and security risk of hosting such a body?

In addition, leading Syrian political figures in exile are already speaking out against a hypothetical court that would exclusively try the crimes committed by ISIS yet give impunity to other parties to the conflict such as the Assad regime.

“The challenges are not legal; these could easily be solved. All the issues are effectively political,” Canadian war crimes investigator Bill Wiley, director of the Commission for International Justice and Accountability, tells Haaretz about all of the suggested solutions. “There are credible ideas, but there is also legitimate opposition to these ideas. No one agrees with anyone. Which is why we suspect that the talks between Europeans will fail.”

Open gallery view A general view of the Kurdish city of Rojava, northeastern Syria, in 2014. Credit: Janet Biehl

‘Hybrid’ court in Iraq

The scenario that seems likeliest to gain traction, according to European officials and experts, is to have Iraq-based trials in one form or another. Some European officials and experts, for example, are looking into the possibility of creating a “hybrid” court in the country. These would be trials in which international and national judges sit, integrated into the Iraqi judicial system.

In Iraq’s case, international input could take the form of advisers rather than judges. Such a body would theoretically ensure fairer trials and that the death penalty be removed as an option.

“We want Iraqis to abandon the death penalty — for legal and ethical reasons. That is the number one priority. But for them, it is, for the moment, inconceivable,” says a source in a European Foreign Ministry. “They are a bit like us after the war against the Nazi regime: a spirit of revenge.”

However, if the Europeans succeed in getting the Iraqis to acquiesce on the issue of capital punishment, they say it would then hypothetically be possible to legally organize the transfer of their citizens from Rojava to Baghdad.

Wiley, who works in close coordination with senior EU officials, suggested to them that such a court could be established in Iraq’s own Kurdish region. He believes it would be easier to negotiate with Iraqi Kurdish authorities over the capital punishment as they already have a general moratorium on executions. Their courts, he says, are also generally perceived as providing a higher degree of procedural fairness. “The idea is to put internationals in there after making small amendments to the criminal procedure law. That’ll up the level of fairness markedly,” he adds. Moreover, the security situation in Iraqi Kurdistan is much better than in the rest of the country; securing an internationalized court in the capital would be a huge and costly challenge. However, few among the sources Haaretz spoke to believe the central government would green light this.

‘The best solution’

Ideas for how to deal with ISIS detainees have been discussed since at least 2016. But as of today, a Nuremberg-esque ISIS trial seems chimerical to many. “I am having a hard time believing that Iraq, a sovereign country, will agree to subject its judicial system to international tutelage. It makes no sense,” says French lawyer Nabil Boudi, who is defending a number of Europeans suspected of being ISIS members — including seven of the 11 French men transferred from Syria to Iraq earlier this year.

“In my view, everyone is buying time,” he says. “They come up with all these ideas so they don’t have to talk about bringing home their own citizens — which is, I think, the best solution.” Boudi fears that more European jihadists will quietly be transferred from Syria to Baghdad and receive life or death sentences without due process, and says he plans to take the matter to the European Court of Human Rights.

Open gallery view Kurdish soldiers bringing a blindfolded Indonesian man suspected of ISIS membership to a security center in Kobani, Syria, July 21, 2017. Credit: Hussein Malla / AP

One issue concerning the Europeans when it comes to trying ISIS fighters domestically is the fear that they may not have enough evidence to successfully prosecute them in their own courts.

“They worry that, for example, they could only prosecute them for material support and membership, with light sentences of four or five years,” says Wiley, whose organization has collected much evidence in Iraq and Syria, which it is storing in a secret location ahead of any trials. For Wiley, the best option remains the repatriation of foreign fighters — hence the need to provide the relevant services with the hard proof they need to put their nationals in jail for a longer time.

“Leaders have legitimate concerns; they fear for the security of their countries,” he says. “We work closely in Western Europe with prosecutors and the police. The second we can tell politicians that we have enough evidence to bring their fighters to justice, then maybe they will consider repatriation.”

In Baghdad, similar work is being set in motion by the UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh (the Arab name for Islamic State), probing acts committed by ISIS members that may constitute war crimes, crimes against humanity and possible genocide. It is preparing files that could also enable foreign states to conduct domestic trials — whether of their own nationals or individuals arrested on their soil.

Open gallery view Nabil Boudi. “In my view, everyone is buying time," says the French lawyer who represents several alleged ISIS members being held in Syrian Defense Forces prisons. Credit: Stephane Kenech

“I have received requests to feed into and support trials in other states, including European countries,” British lawyer Karim Khan QC, who heads UNITAD, reveals to Haaretz. “We will be able to help them as soon as this month.”

Inès Daif and Massoud Hamid also contributed to this story.