BEIRUT - Not long after a Dutch national arrived in Syria to join the self-proclaimed Islamic State (ISIS) terrorist group, he posed next to a crucified body in a photo that later circulated on social media. Two French nationals did the same, instead posing with a severed head.

 These men are among the estimated 13,156 European citizens that flocked to Syria and Iraq at the height of the so-called Islamic Caliphate and they are also among the 2,540 that later returned to Europe. 

Today, the Dutch and the two French nationals sleep in European prisons. But while the French received, last December, a ten-year-sentence for participation in a terrorist organization, the Dutch  citizen was convicted last July to five years in prison for membership in a terrorist organization and two and a half years for the war crime of degrading and humiliating treatment of dead bodies. Prosecution not only for terrorism charges, but also for core international crimes is not a minor detail: it is key to determine if ISIS atrocities in Syria will be investigated and the victims served full justice or not. 

In a recent study, the EU Agency for Criminal Justice Cooperation (Eurojust) and the EU Network for investigation and prosecution of genocide, crimes against humanity and war crimes (Genocide Network) advocated for the cumulative prosecution  of ISIS members, that is, charging them with terrorism and as well as with core international crimes—war crimes, crimes against humanity and genocide. Except for Belgium, most EU Member States can conduct cumulative prosecution. 

The ‘pragmatic’ counter-terrorism approach

In European states, prosecution under terrorism charges can be pretty straightforward. “In most of the states, you can secure a conviction from five to eight years by showing that the suspect belongs to ISIS,” Valérie Paulet, a project coordinator at TRIAL International, told Syria Direct. A flight ticket to Syria or a photo with an ISIS flag can lead to a prison sentence. In 2018, European courts issued 399 convictions of jihadi terrorism, according to the latest Europol report.

This counter-terrorism approach is pragmatic: it puts ISIS members behind bars on European soil, but it comes at a cost. By prosecuting them under terrorism charges only, authorities “put the victims out of the equation, because terrorism is a crime against the state, it is not a crime against a victim in particular,” said Paulet. Thus, it “will not do true justice to the victims, and people  [convicted of terrorism] will be released relatively quickly,” Christophe Paulussen, a senior researcher at the T.M.C. Asser Institute, told Syria Direct. 

This approach “does not reflect the total scope of the crimes committed,” Paulet said. For instance, genocide is not punishable under terrorism charges, but it is a core international crime.

To “encompass the full criminal scope of individual offences” ISIS members should be investigated for genocide, crimes against humanity and war crimes, the Genocide Network insists. According to Paulussen, this will lead to a “more complete picture of the suspect’s criminal responsibility. Because of that, it will also lead to a more tailored, and usually longer, punishment.” 

ISIS has fulfilled the criteria under International Humanitarian Law to be considered “a party to a non-international armed conflict in Iraq and Syria acting as an organised non-state armed group,” and consequently can be tried under core international crimes, argued the Genocide Network. However, there is no European consensus on this point yet. 

As signatories of the Geneva conventions—which “form the core of international humanitarian law, [regulating] the conduct of armed conflict”—European countries have the obligation to investigate and prosecute perpetrators of international crimes. European states can initiate an investigation if the perpetrator or the victim is a European national. Many states can also invoke the principle of universal jurisdiction—requiring in most cases that the suspect is present or resides in the state of prosecution. 

Given the veto power of Russia and China at the UN Security Council, the path to establishing an international tribunal to investigate all crimes committed in Syria—including those committed by the Syrian regime—is blocked. That leaves European courts the task of holding ISIS members accountable for their crimes in Syria. 

Prosecuting international crimes

Between 2013 and 2019, ISIS perpetrated a variety of different war crimes, including murder, mutilation, torture, enforced disappearance; crimes against humanity of sexual slavery, rape and enslavement; and genocide, according to evidence gathered by several UN bodies and NGOs.

Securing a conviction for war crimes in European courts, however, can be complex. For starters, Syrian authorities do not allow foreign prosecution authorities to access their territory. “The prosecutor can’t go to Syria so he has to rely on a network to gather evidence; investigating a country where you can’t go, with a different culture and language can be very complicated,” said Paulet. 

Most of the ongoing cases charging ISIS members with international crimes are based on the testimony of victims gathered by Syrian NGOs or UN bodies like the Investigative Team to Promote Accountability for Crimes Committed by Da'esh/ISIL (UNITAD) and the International, Impartial and Independent Mechanism for Syria (IIIM).

Since 2016, IIIM has gathered more than two million records (documents, photographs, videos, satellite imagery, witness statements and open-source materials), despite being unable to operate in Syrian territory.  Between August 2019 and January 2020, IIIM received 46 requests for assistance from 10 national jurisdictions and processed 17 of them

The cooperation between IIIM and the French authorities led to the first cumulative prosecution of a French ISIS fighter for terrorism and crimes against humanity and crime of genocide.  He was identified by a female Yazidi victim living in Germany.  

France and Germany are leading the way in the cumulative prosecution of ISIS members, building a growing body of European jurisprudence. 

Currently, the Higher Regional Court of Munich is trying a German national ISIS member, Jennifer W., under charges of a war crime for chaining a five-year-old Yazidi child—enslaved by her and her husband—and letting the child die under the heat of the Iraqi sun. Paulet pointed out that this trial was initially based on a terrorism charge but then it developed to include war crimes.  “Pragmatism is to use terrorism charges to have a case and to build a case slowly on war crimes afterwards,” she said.

The gruesome photos and videos that ISIS members publicized to spread terror can be used not only to prosecute them for terror charges but also for international crimes. In November 2016, the Frankfurt Higher Regional Court sentenced a German ISIS member to eight and a half years in prison for joining a terrorist organization and the war crime of outrage upon personal dignity for recording a video of himself cutting the ears and nose of a dead Syrian soldier and firing bullets into the heads of other dead soldiers. 

Despite the leading role of France and Germany, Paulet acknowledged that there is still “a lot to do” since European judicial authorities, in general, still prioritize securing terrorism charges, while finding evidence of war crimes remains a secondary concern. “We hope more states are going to use cumulative charges, we need to be cautious and make sure they walk the talk of their international commitments,” said Paulet.

Waiting in limbo

International commitments seem even more absent when it comes to the repatriation of the estimated 430 European ISIS fighters currently detained in mostly makeshift prisons run by the Autonomous Administration of North East Syria (AA), according to data of the Brussels-based Egmont Institute

“The Global Coalition to Defeat ISIS should ensure that ISIS members are held to account and not just left to regroup or escape,” Letta Tayler, a senior researcher at the Crisis and Conflict Division of Human Rights Watch told Syria Direct. “Creating a viable court to fairly judge the necessity and legality of these suspects’ detention would cost a fraction of what the coalition is spending on combating ISIS,” she added. 

Beyond exceptional cases like the repatriation of an Italian foreign fighter,  European countries have been reluctant to repatriate and try their nationals. “Indefinitely locking up ISIS suspects without charging them or even bringing them before a court won’t make Europe safer. It will just increase detainees’ despair and encourage further violent radicalization,” warned Tayler.

Paulussen also agreed that this pattern is just a way of “shoving the problem away to other actors” and that the “current passivity is a recipe for  a disaster, creating a Camp Bucca 2.0,” he said, referring  to the Iraqi prison considered the birthplace of ISIS.  

Although countries have discretion in providing consular assistance, UN Security Council resolutions oblige EU states to prosecute nationals that travel abroad to join groups like ISIS. Further, “countries have a duty to take all necessary and reasonable steps to assist nationals abroad facing serious abuses including risks to life, torture, and inhumane and degrading treatment,” explained Tayler, adding that those conditions are present in the makeshift prisons: “These prisoners are jammed into cells like sardines, so tightly they cannot even sleep without touching each other.” 

Local tribunals in Syria would bring with them legal obstacles, since Syria's Kurdish authorities are not internationally recognized. 

The obstacles to try these prisoners both internationally and locally lead to a scenario where “the only way for EU countries to fill this accountability gap is to repatriate their nations for investigation and, if warranted, prosecution,” said Tayler.