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Justice and accountability after the Islamic State: ‘Few options’ for victims of IS war crimes

A Syrian man rides a motorbike in Raqqa in February. […]

23 August 2018

A Syrian man rides a motorbike in Raqqa in February. Photo by Delil Souleiman/AFP. 

Public executions, brutal extrajudicial murders and other atrocities were the norm in areas controlled by the Islamic State during the group’s four years of rule over areas of northeastern Syria.

Nowadays, even with IS gone from cities like Raqqa and Deir e-Zor, the group left behind deep scars. With an untold number of Syrians brutalized or killed by IS fighters—who do survivors turn to for justice?

“Accountability—even within the larger context in Syria—is very difficult,” says Sara Kayyali, Syria researcher with Human Rights Watch (HRW) who has previously focused on transitional justice in Syria.

Kayyali, who visited Raqqa earlier this year, says that the defeat of IS in northeastern Syria raises difficult questions about justice and accountability—both for victims as well as perpetrators.

Although survivors of IS atrocities can pursue litigation under the principle of universal jurisdiction, seeking justice through international means is a slow process with limited effectiveness, Kayyali says. The other immediate option is reporting their cases to the SDF—an effective but potentially “problematic” solution.

“It’s unfortunate, but the options are very limited,” she says. 

At the same time, Kayyali and other observers are concerned that local, SDF-backed authorities are arresting and detaining Syrians with little more than hearsay as evidence.

“That process is incredibly problematic…it’s amazing how many people [the SDF] had captured,” Kayyali tells Syria Direct’s Justin Clark.

Large amounts of detainees have been released since—usually after months behind bars with no trial—after SDF authorities discovered that “they weren’t IS fighters,” Kayyali says.

Q: What do you regard as the priorities regarding the pursuit of transitional justice in a post-Islamic State Syria?

We’ve done a lot of work on trying to respond to post-IS justice questions, but also more generally, what will those areas look like after they’ve been retaken from IS?

I think from our perspective there are a couple of priorities—or, a couple of questions that remain—in the larger context. One is how you hold IS detainees accountable for the violations they committed during their tenure in those areas. The other question is how you move forward. Not just in terms of IS-issued civil documentation, but also from the Syrian government, and how that [transition] is going to happen.

Q: Can you talk a little bit about the legal systems that are currently in place in these post-Islamic State regions? I’m talking specifically about Raqqa and Deir e-Zor provinces.

I don’t have a comprehensive understanding of the legal system, because in many ways it’s still nascent, but there are a couple of things that are happening. The SDF and SDC—the Syrian Democratic Council—are setting up these ad hoc counter-terrorism courts to deal with IS fighters. We weren’t able to observe any of these cases, but we were able to watch half of a proceeding where it was very clear that the court was still not equipped to deal with [the situation fully].

[Ed.: The SDC is the political wing of the SDF and tasked with administering areas under the group’s authority. The SDC is currently participating in ongoing talks with the Syrian government.]

The SDF and the associated civil councils have implemented this [system] of dispute resolution that includes members of tribes operating in those areas.

[But] these dispute resolution mechanisms are for civilian residents. My understanding is that IS fighters are being tried at the ad hoc counter-terrorism courts set up by the SDF.

Q: How so? Can you explain how the SDF goes about detaining a suspected IS fighter?

Essentially, [there are] two mechanisms that the SDF [relies] on, from our understanding, to be able to detain suspected fighters. One was by relying on informants and intelligence to capture key members of IS. The other—and this one was a lot more concerning because it seemed so arbitrary—was by screening every person who was displaced and then re-routing them to displacement camps.

Then, from the displacement camps or checkpoints, they are basically just selecting people for detainment. I’ve conducted several interviews about the ways in which the SDF has conducted their investigations. It’s amazing how many people they had captured, suspected of being IS fighters. [The SDF] detained them for months on end, and then let them go once they discovered that they weren’t IS fighters.

[The SDF] also detained people with relations to IS fighters, and would then interrogate them in a way to try to get as much information as possible on where those IS fighters could potentially be. We’ve had consistent testimony about how overcrowded these detention facilities are, along with the humanitarian conditions there and some accounts of mistreatment.

In most cases, suspected IS fighters would be in these detention facilities for months without seeing a court. Then they’d either be released without ever having been through that process, or they’d have to sign a declaration then go through the courts.

We’ve not been able to get permission to witness any of the [court] proceedings.

[Ed.: According to a report released last month by HRW’s terror/counter-terrorism director Nadim Houry, the SDF’s handling of IS-linked detainees happens in “total secrecy without basic legal protections,” and represents a “recipe for abuse.”]

The thrust of the argument [is] that the counter-terrorism proceedings [witnessed] did not, first of all, fulfill due process requirements. Second of all, these courts [are] over-capacitated by the number of detainees currently under SDF control. My research mostly focused on how IS [suspects] are detained. That process is incredibly problematic.

The problem with relying on this kind of evidence [from informants]—even for initial screening—is that if your neighbor doesn’t like you and he pinpoints you as an IS fighter it can be very difficult to prove otherwise.

Q: I can’t imagine being in a crowded detainment facility like that and trying to prove my own innocence. It sounds like a futile exercise for someone who is placed in that kind of position. Is the international coalition or anyone else providing any kind of oversight for this operation? Or is this strictly carried out by local SDF-run authorities?

My understanding is that, especially with the IS fighters, the US is involved and has knowledge of the prisons and the policies there. That’s our understanding based on our conversations with detainees.

But then there are questions of foreign IS fighters and where they’re going to go, because the SDF does not want to deal with them. The US has washed its hands of everything and the countries of those foreign fighters don’t want to take them, either.

Q: For those seeking justicevictims of IS brutalitywhat avenues can they actually pursue for holding the perpetrators accountable? Is it just by being an informant for the SDF, or are there any kind of other avenues out there?

I don’t have to tell you that accountability, even within the larger context in Syria, is very difficult. But there are a few avenues that victims of violations can pursue. One is universal jurisdiction cases.

[Ed.: Universal jurisdiction refers to the legal principle whereby states, organizations and other actors can pursue perpetrators of crimes deemed so serious that courts have jurisdiction over them regardless of their geographic location.]

These are currently picking up, and are still at the sort of small-fish level, or just focus on the Syrian government.

This is an avenue that been more active within the Syrian context than in any other recent conflict, and it’s something we’re going to see build up.

The other avenue that they could pursue is justice through the SDF courts, where Syrian IS fighters are being prosecuted. The SDF has clarified that they don’t have any intention to prosecute foreign fighters as it’s not within their mandate nor within their capacity to do so. And then, unfortunately, the [International Criminal Court] is not here yet. It can’t be referred to because of the UN Security Council veto.

[Ed.: Repeated vetoes by Russia and China prevent the ICC from pursuing perpetrators of alleged war crimes in Syria.]

It’s unfortunate, but the options are very limited.

Q: There’s another issue in these areas that is, arguably, often overlooked in terms of the Syrian conflict: those Syrians who registered major life events—births, marriages, buying property, deathsduring the rule of IS.

IS had a very active civil registry documenting all of these events. But if someone has an IS-issued marriage certificate, for example, what do they need to do to in order to make their marriage legal through the SDF courts?

I think this might be the most important issue. It determines how people can live their lives.

In the conflict between IS and the SDF, we haven’t seen any retaliation or non-recognition of documents that were created during the IS period. The authorities have indicated a willingness to deal with these issues in a constructive manner.

I think the question here is one of capacity, in terms of how they deal with these documents and what the process is. But we don’t have much clarity on that.

The second thing is what will happen long term. I’m sure you’re aware that the SDC is in contact with the Syrian government precisely over these issues, over civil documentation matters and provision of essential services.

I think that’s the difficult bit, because the SDF will not be transferring records—I don’t think—until they get authority on that. That’s just to say it’s very complicated. But as far as I’ve seen, the SDF has recognized marriages and births that occurred under IS.

Q: At the same time, an untold number of Raqqa civilians were killed by coalition airstrikes, as well—so there’s more than one dimension to post-IS justice, isn’t there?

Another major question is the US coalition’s responsibility for much of the damage that happened to the cities and victims of airstrikes. Are they going to be providing compensation? Are they going to be investigating these strikes?

Q: In Iraq and other conflict areas there is a formalized process for asking for reparations, or asking for some kind of compensation for damage and death from airstrikes—has any kind of similar mechanism appeared in Syria? What’s the outlook for something like that arising, given the current US administration’s position on Syria?

In Iraq they’ve instituted this potential for investigation. It’s not compensation, but more like a gift—in any case, there’s a way for families to go and make these claims.

The Iraq model is not a bad model to follow. It still needs a bit of work, but it’s still miles ahead of where we are in Syria.

In Syria this is completely absent—it just doesn’t exist and no one has talked about it. And this is very curious. I’m sure you’ve seen the rhetoric. At this point we’re still engaging the coalition to even recognize the number of civilian casualties that they’ve had or investigated—we’re not even at the point where we can discuss compensation.

[The US] removed the stabilization funding and they’re barely investigating these strikes. Even when they do, it’s very difficult to get them to admit anything.

But just because it’s unlikely does not mean it’s not their moral responsibility to do so, considering how active they were in resolving this issue [by force]. Just because it’s far off doesn’t mean it’s right [to not do so].

This interview is part of Syria’s month-long coverage of former Islamic State-held territories in partnership with the Konrad Adenauer Foundation and reporters on the ground in Syria. Read our primer here.

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