EER Webinar: Is There A Way To Resolve Europe’s Problem in Repatriating Jihadist Fighters and Their Families?

European Eye on Radicalization (EER) recently hosted its fifteenth webinar on the thorny issue of whether jihadist foreign fighters from Europe and their families should be brought home, with specific reference to the members of the Islamic State (ISIS) in the camps in Syria.

Despite the destruction of ISIS’s “caliphate” taking place in March 2019, more than three years later the issue of repatriating European citizens who joined ISIS continues to rumble on as a contentious political debate. Some European Union (EU) states have been quite pro-active in recovering their citizens from Al-Hol and the other camps in Syria run by the Kurdish “Syrian Democratic Forces” (SDF) militia. Some states, notably France, have been openly opposed to this approach.

Recently, the European Court of Human Rights (ECtHR) has asked France to reconsider its decision to not repatriate two women who traveled to Syria and Iraq in 2014 and 2015 to join the Islamic State, where they gave birth to three children. The French Foreign Ministry said noted the ECtHR decision and said that it was ready to renew repatriation operations “whenever conditions allow”.

The ECtHR decision could have legal implications for other states that have put themselves under its jurisdiction, and in the meantime has renewed the debate, among academics and practitioners, as well as the public, about the wisdom of repatriating jihadists. To discuss these complexities, EER gathered a panel of experts:

Abigail Thorley, Researcher at the International Centre for Counter-Terrorism (ICCT).
Liam Duffy, Researcher, speaker and trainer in counter- terrorism based in London
Sharon Weill, Associate Professor of International law, American University of Paris. Associate Researcher, CERI, Sciences PO Paris
Sofia Koller, Senior Research Analyst, Counter Extremism Project (CEP), Germany.

Legal Issues

Abigail Thorley began by noting that the awful conditions in the camps has been known, to specialists and media, for many years. And some states had taken a forward-leaning approach to repatriation, particularly Kazakhstan, Uzbekistan, Kyrgyzstan in Central Asia, and in Europe it was Kosovo that led, joined more latterly by Germany, Denmark, the Netherlands, Belgium, Sweden, and—the recent ECtHR rebuke notwithstanding—France. Thorley explained that a lot of the issue that the recent ECtHR decision ruled on turned on “effective control”: usually this applies to areas under a state’s sovereignty, but there are cases where responsibilities apply extra-territorially, generally where states can or have demonstrated an ability to uphold an individual’s human rights—for instance, by repatriating other nationals.

Still, says Thorley, the ECtHR has essentially remained “on the fence” by ruling substantively that neither France’s physical ability to repatriate, nor the fact of the camp residents holding French citizenship, imposed an obligation on France to take these people home; the only firm judgment was on process, saying that France needed to establish a procedure that safeguarded against arbitrariness, which had not been done in this case. On the other part of the claim—the issue of whether citizenship provides a right for these people to enter France—the ECtHR also found in the negative. Had the decision gone the other way, it could have had a chilling effect on humanitarian operations: it would have created a situation where humanitarian operations to take children out of the camps would demonstrate a capacity for repatriation and thereby impose an obligation to repatriate all citizens in the camps—providing an incentive structure for states to do nothing at all to avoid being put on the hook for this larger obligation.

In terms of the ECtHR law, Sharon Weill agreed that it was not a major innovation: the argument that France was responsible for the violations of its citizens human rights in Syria—in effect because Paris has the power to stop these violations and did not—was rejected, and this is a general pattern, since applying obligations extra-territorially opens such a pandora’s box over jurisdiction. Weill underlines that the second argument was the more novel, namely that citizens could not be deprived of a right to enter the state of which they are nationals, and the ECtHR in effect said that France “might” have a positive obligation in this respect and should consider it, but left the ultimate decision with the French government. Nonetheless, Weill regards the ECtHR decision as a “very strong signal” to France that it should recover its citizen minors from Syria, and certainly should have a more transparent process to explain why it will not, because the current circumstances are legally dubious and undemocratic.

There was concurrence from Sofia Koller that the ECtHR decision has “limited” effect, and she focuses on Germany. The Germans have been in the process of repatriating their citizens for some time and will likely complete the process this year, which makes the decision even less relevant to them. There are still some edge cases Germany is wrestling with, particularly what to do about those who do not want to be repatriated and those who have some kind of link to Germany, but not citizenship; what security and humanitarian responsibility the German state has to such people is still being worked out.

Liam Duffy suggested that the approach that stresses jihadists should “face justice at home” and since “they’re our responsibility, they should be our problem”, needs to reckon with the fact, specifically in Britain, that many of them will not face justice if they are brought home. The British government in effect outsourced the prosecution of Alexanda Kotey and El Shafee Elsheikh, two members of the ISIS “Beatles” cell, responsible for the torture and murder of hostages, witnessed doing this by dozens of people, because the Crown Prosecution Service was not sure it could get a conviction; it was easier to leave it to the Americans. This is an indictment of European legal systems, but it should also shape this debate by having people acknowledge what the real trade-offs are: killers will walk free on European streets because there is what Duffy describes as “a black hole” for several years in the lives of many of these people, and even when witnesses such as Yazidis come forward to report war crimes and crimes against humanity by people now residing in Germany and elsewhere, there is no guarantee this will stick.

While some states like Britain have struggled legally in dealing with ISIS returnees, Sharon Weill said that France has had a better time of things: it prosecutes people, and sentences them to long prison terms, simply for membership in banned organizations, rather than having to prove that somebody has participated in a specific criminal act as part of a terrorist group. France allows these prosecutions without any real statute of limitations.

Returnees and Reintegration

The scale of this problem varies from state to state, Thorley explains: the Netherlands has 60 children in the camps; Belgium has 12 to 17; Sweden has 25 to 30; and France has 150 to 170. This means the urgency and options vary widely, but in all cases, says Thorley, children should be treated as victims, with the focus being on their health, safety, identity, preserving family ties, social and physical protection. The Central Asian states and Kosovo can provide lessons learned because they repatriated from an earlier stage.

Germany’s government took the view that it had humanitarian obligations to repatriate children, Koller documents, but this was not considered a general mandate: sick children and orphans were those that this applied to, and children in the Roj Camp—which is better run and more sanitary than Al-Hol Camp—were regarded as non-priorities, though interestingly there were some slightly arbitrary cases where families won court battles demanding their grandchildren, say, be recovered, and Berlin executed these legal decisions.

Koller highlights that Germany has also operated under a strong legal norm that children cannot be separated from their mothers—which has applied in a lot of EU states. But most EU states regard this as meaning the children should be left in the camps with their mothers; for Germany, it has meant bringing the women home along with the children. And this in turn has made Germany the main centre of something very unusual in Europe: prosecutions of female ISIS members, generally for genocide-related or -adjacent crimes against Yazidis. Prosecutions of female ISIS members have exceeded prosecutions of males in Germany since 2018.

While Germany proceeds with the intent to reintegrate returnees, Koller says, a key part of this is accountability: the prosecution and punishment of people for terrorism and genocide is regarded as an important part of bringing these people back into society. So far, Germany has led in bringing legal sanctions against ISIS members. The major downside is that Germany only gives these people short prison sentences, leaving open the question of efficacy and—a problem that afflicts all other states—potentially creates other problems of radicalism contagion in the prison population.

There was little disagreement from Duffy about the child returnees, but when it comes to adults there has so far been a disturbing tendency for the discourse to be “unserious”: these people are presented either as victims—who had no volition in the decision to join a terrorist caliphate—or whose very monstrousness leads to a kind of celebritization, with media appearances, book deals, and the rest of it that trivialises what they did and what they helped to happen. If returnees cannot be legally prosecuted, it would behove us to find a better social settlement in how they are dealt with, Duffy argues, not least to avoid giving them the prominence that can be used to radicalize others.

How Did This Happen and What Does it Mean?

Duffy points out that the fact that thousands of people chose to leave liberal secular democracies to live in the territory of a genocidal theocracy has never been very well-examined. There have been explanations offered: that this was some kind of backlash to an experience of marginalization in Europe; that it was all to do with ISIS finding a unique way to radicalize people on the internet, which was particularly popular with some countering violent extremism (CVE) practitioners; or that it was an inherent feature of Islam.

Duffy suggests that looking at the data of where foreign fighters came from to see how well these theories hold up, and what we see is that it occurs in clusters—the overwhelming majority of European ISIS travellers came from a half-dozen countries, and within those countries came not only from certain cities, but identifiable districts and even apartment blocks within those cities. This clustering is not what would be expected if marginalization or the internet were the key factors, since they exist broadly across society, and if Islam was the key variable then towns with heavy Muslim populations—like Marseilles, Glasgow, and Bradford—should have been affected, and they were not.

What seems to be the key variable, argues Duffy, in triggering foreign fighter flows is the presence of veterans from prior jihads—in Afghanistan, Algeria, Bosnia, and Iraq—who switched over to ISIS in the post-2013 period and used their old networks to mobilize. Duffy stresses that what was seen at the height of the foreign fighter flow in 2014-15 was “not that ISIS was doing the radicalizing. It was that the caliphate revealed the extent to which European Salafi-jihadism had grown” since the Iraqi jihad ten years earlier, and we are now in another “dormant” period when attention is waning, but the jihadists are at work spreading their message. It was this work in the “dormant” period that meant between 2005 and 2015, cities like Toulouse and Birmingham saw their jihadist populations increase by several orders of magnitude.

Questions and Answers

Panellists discussed the politics that mingles with, and really dominates, the legal discussion about whether or not to repatriate jihadists to Europe. There was some debate about the desirability of prosecuting simply for membership in an illegal group versus prosecutions for acts while part of ISIS—whether that is war crimes against Syrians and Iraqis, or terrorism against the West. The importance of length and quality of prison sentences was debated.

The panellists had a detailed exchange on the feasibility of establishing an international court on the model of the Nuremberg Tribunal or the courts for Bosnia and Rwanda—or Lebanon—and whether the United Nations could oversee such a thing. It was contested whether it was better for prosecutions to take place at an international level, or within the legal frameworks of the states where their crimes were committed. The problems with the latter option came down to administration, namely that all the available parties were highly problematic: the “SDF” is in reality the Kurdistan Workers’ Party (PKK), which the U.N. itself regards as a terrorist organization; the Syrian government of Bashar al-Assad is an outlaw responsible for far worse crimes than ISIS; and the Iraqi government is under significant influence from the Islamic Republic of Iran, a notorious state-sponsor of terrorism.

The panel delved into the question of a child’s best interests, which is the principle that is generally adopted when children are brought back from the camps, and how this obligation can conflict with the legal norm of keeping children with their parents—after all, is it really in the best interests of the child to remain in the care of a parent who took them to the caliphate?

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