Take Them Back – [Jerusalem Post Piece]

US-backed Syrian Democratic Forces recently announced the final push to take Baghouz in Syria’s northeast from Islamic State fighters. This move comes months after a concerted effort by anti-ISIS coalition forces to take the neighbouring city of Hajin. As the ISIS self-professed caliphate collapses, more fighters and their families continue to be captured, and increasingly consist of foreign volunteers from northern countries such as France and the United Kingdom. The question now is whether these countries will repatriate their citizens, or leave them to face retribution from local authorities, such as in Iraq.

Forty thousand volunteers from over a hundred countries flocked to join ISIS during its rise. Crossing the border from places such as Turkey into Iraq and Syria, these foreign fighters fortified the organisation and aided in its expansion. Notorious individuals such as British foreign volunteer Mohammed Emwazi – aka Jihadi John, conducted beheadings to spread the network’s terrorism. Other volunteers such as British medical student Mohammed Fakhri Al-Khabass assisted with the recruitment of volunteers and used their skills to abet the organisation, highlighting a vast network utilised by ISIS to solidify control in Syria and Iraq.

Women flocked from across the world – voluntarily – to join the self-declared caliphate, marrying local fighters and raising children to further the ISIS ideology. These female volunteers indoctrinated the youth in Salafi-jihadist ideology, normalising violence against victims of the caliphate and preparing those youth to one day join and fight for the organisation. The result of this indoctrination is evident in the propaganda videos produced by ISIS from places like Deir ez-Zor, where prisoners were executed by young children. Given the totalitarian nature of ISIS ideology, all individuals under the proto-state’s control are used to further the expanse of the organisation.

Fighters of the caliphate were not the only ones that engaged in violence towards local indigenous populations. Wives of fighters participated in sexual, physical and emotional abuse of enslaved individuals, such as the Yazidis. Lebanese journalist, Jenan Moussa of Al Ann TV conducted an interview with an ISIS female volunteer and wife in 2017, where Jenan noted the lack of remorse for victims by the interviewed volunteer. In the interview, the woman explains in detail the process of selling and acquiring slaves – showing a lack of empathy, understanding and moral conscious for why such things are wrong.

Another interview conducted by the French journalist James Andre for France 24, highlighted a group of captured female volunteers living in a refugee camp in Syria’s northeast after being freed from places like Hajin and Baghouz. They were segregated from the rest of civilians freed from the organization’s control. In that interview, volunteers from France, Canada, Brazil and elsewhere express regret for joining the organization, emphasizing the horrible nature and alleged deceit that coerced them into joining. However, whether these ‘confessions’ are genuine is another question, as radicals amongst these volunteers still cling to ISIS ideology and harm individuals that speak out against it.

The response to the capture of foreign volunteers by the international community has been mixed. Syrian Democratic Forces (SDF) – a multiethnic coalition of militias leading the fight against the Islamic State – currently hold thousands of foreign ISIS volunteers and fighters in captivity. Coalition countries who are involved in supporting the SDF are reluctant to take back their citizens that joined ISIS. Fearing the risk these individuals pose at home, these nations – except for the United States and France – are slow to repatriate their renegade citizens and prefer that justice be delivered by the local authorities, regardless of the problems that arise from this policy.

The problems that occur from refusing to repatriate ISIS volunteers are two-fold. The first is the lack of international judicial oversight in trials in local countries such as Iraq. Islamic State volunteers who were handed over to Baghdad receive short trials that result in life sentences or death. This is despite the United Nations Security Council (UNSC) launching an investigation into ISIS’s crimes under resolution 2379 in 2017. There is a lack of proper legal course in trials that are governed by retribution rather than law. At first glance, this may not prove a problem to those who wish to see ISIS volunteers ‘get what they deserve’, but does it not serve to undermine justice for victims of the organisation’s brutality?

When the Bosnian war waged across former Yugoslavia in the 1990s, the UNSC passed resolution 780. This resolution created the International Criminal Tribunal for Yugoslavia (ICTY). The ICTY was tasked with the prosecution of perpetrators of human rights and international law violations. Under the ICTY, dozens were prosecuted for crimes against humanity, genocide and various other war crimes. Not only did it set a legal precedent in international law, but also verified the gravity of the crimes perpetrated by those convicted, leading to the classification of the massacre in Srebrenica – for example – as a genocide. The same process should be adopted for the prosecution of ISIS volunteers.

There is not just a legal precedent to be set, but a moral one too. Unless international support and oversight is provided to local authorities, then the system of justice that is delivered will not suffice to solidify in the public consciousness what happened to the many victims of ISIS. Ensuring an effective legal prosecution that highlights the extent of the group’s barbarism, as well as giving gravitas to the stories of victims will aim to preserve international law and human rights both in the present and the future. In turn, this will set a legal precedent and a standard from which to judge future atrocities by.

The second issue that arises from a refusal to repatriate ISIS volunteers is the security threat that these individuals pose to the longevity of the organization. There are thousands of fighters held in captivity in Syria by the SDF. Without continued support and military oversight, the maintenance of prisons which contain fighters will be challenged. With the withdrawal of the US from the region, concerns are rising over what will happen to these volunteers. These concerns are also exacerbated by the prospect of increased instability from threats of a military incursion into the area by Turkey, which is could result in a resurgence of ISIS.

As this phase of the war against the Islamic State ends, the question arises as to whether countries should repatriate their ISIS citizens or leave them to the fate of local justice. The poor quality of justice offered in those countries which currently holds ISIS volunteers, increase doubts over the effectiveness of local authorities to impartially prosecute these members. Waning military support coupled with weak infrastructure in Syria do not create confidence in the long-term security concerns of nations or for stability in the region. These concerns place the burden of responsibility on the international community in order to deal with the aftermath of ISIS. Western nations must take back that responsibility.

Written by Anthony Avice Du Buisson (20/02/2019)
Original version available at Jerusalem Post:

https://bit.ly/2IykI9J


The Legal Mechanisms of Human Rights – [JCU Law assessment]

INTRODUCTION:

The legal mechanisms available to the international community for the prosecution of human rights (HR) violations such as crimes against humanity are extensive. Taking the form of international courts and ad hoc tribunals established on statutes set up through the approval of the United Nations Security Council (UNSC), these legal mechanisms have been used to hold perpetrators of HR violations accountable. The application of these legal mechanisms in the prosecution of high ranking Serbian personalities for HR violations during the Bosnian war (1992-1995) by the International Criminal Tribunal for the Former Yugoslavia (ICTY) is one such example. Bound legally through established international conventions and monitored through HR treaty-based bodies, United Nations (UN) and member states that make up the international community are obligated to adhere to human rights law in the prevention of HR abuses.

UNITED NATIONS SECURITY COUNCIL:

The international community – including the UN – uses the UNSC to authorise enforcement mechanisms that address HR violations such as crimes against humanity that are committed by state and non-state actors. The UNSC is the principal security body of the UN that has powers under the UN charter to establish subsidiary organs for the maintenance of peace and security.[1] UNSC responds to matters of international security and passes resolutions that can be binding on member states.[2] When nations violate international law conventions – whether in war or peace – and threaten international security, the UNSC acts in accordance with the UN charter and under the deliberation of  the council to address those violations.[3] Utilising a variety of mechanisms to deter state actors and mitigate violations, the UNSC authorises these mechanisms to enforce international law.[4] Some of these mechanisms take the form of ad hoc tribunals such as the ICTY.

INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA:

One subsidiary body established by the UNSC in response to gross HR violations was the ICTY. The ICTY was established by the UNSC during the Bosnian war in 1993 under resolution 827,[5] as a legal mechanism to bring perpetrators of HR violations in the regions consisting of the Former Yugoslavia to trial.[6] The former Yugoslavian regions of Bosnia and Herzegovina in the Balkans were embroiled in an ethno-nationalist conflict during the early 1990s resulting in gross HR violations being committed by military forces upon civilian populations.[7] One notable HR violation occurred in 1995 with the killing of over 3000 Muslim Bosnians by the Serbian army in the town of Srebrenica.[8] The ad hoc tribunal’s statute (including UNSC authorisation) granted the ICTY jurisdiction to bring public as well as military officials of the Former Yugoslavia to trial at the Hague.[9] During the trial of one of these military officials [Radovan Krsitć] in 2004,[10] the ICTY determined that the massacre in Srebrenica was genocide and found the official guilty of crimes against humanity.[11] This ICTY judgement was based on the tribunal’s statute that was set up in accordance to international law conventions such as the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention)[12]. Throughout the 1990s-2010s, more than ninety individuals connected to atrocities in the former Yugoslavia have been convicted by the ICTY and sentenced to imprisonment for long periods of time.[13] The ICTY is no longer in existence as of December 2017 but the decisions of the tribunal are still used by intergovernmental judicial bodies like the European Court of Justice and International Criminal Court.[14] The ad hoc tribunal of the ICTY provides just one example of a legal mechanism available to the international community that has set a precedent for the prosecution of HR violators.

THE INTERNATIONAL CRIMINAL COURT:

The International Criminal Court (ICC) was established five years after the creation of the ICTY as a permanent international tribunal for the prosecution of individuals for war crimes, crimes against humanity, crimes of aggression and genocide.[15] Founded on the Rome Statute of the International Criminal Court (Rome Statute) created by the UN General Assembly in 1998, the ICC is an intergovernmental legal mechanism that transitioned the legal strategy of concurrence and primacy found in the ad hoc tribunal systems to one of concurrence and complementarity.[16] Aiming to set a permanent entity for the conviction of international law violators, the UN and member states of the international community use the ICC as a court of last resort when a nation’s internal legal system is not functionable or hostile to international law.[17] The ICC works with the UNSC and other organs of the UN to bring individuals to justice. The ICC is currently still in existence as of July, 2018.

CONCLUSION:

The legal mechanisms utilised by the international community for the prosecution of human rights violations are wide-ranging. Ad hoc tribunals and international courts established on United Nations Security Council authorisation are the primarily international form of legal defence to human rights existing. As highlighted in the organisation of the International Criminal Tribunal for the Former Yugoslavia and International Criminal Court in pursuing prosecution of individuals for crimes against humanity, there are international judicial mechanisms available to the international community to persuade individuals and states to adhere to human rights.

Written by Anthony Avice Du Buisson for LA1027, assessment task 3 (07/09/2018)


[1] Charter of the United Nations art 29.

[2] Ibid art 49.

[3] Carrie Booth Walling, ‘Human Rights Norms, State Sovereignty, and Humanitarian Intervention’ (2015) 37(2) Human Rights Quarterly 383, 387.

[4] Simon Chesterman, ‘I’ll Take Manhattan’: The International Rule of Law and the United Nations Security Council’ (2009) 1(1) Hague Journal on the Rule of Law 67, 70.

[5] SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/RES/827 (25 May 1993).

[6] Statute of the International Tribunal for the Former Yugoslavia art 1.

[7] Adam Mcbeth, Justine Nolan and Simon Rice, The International Law Of Human Rights (Oxford University Press, 2nd ed, 2011) 359.

[8] Ibid.

[9] Statute of the International Tribunal for the Former Yugoslavia art 8 & 9.

[10] Prosecutor v Krsitć (Appeal Judgement) (International Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-98-33-A, 19 April 2004) [37].

[11] Ibid.

[12] Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) art 2.

[13] United Nations International Tribunal for the Former Yugoslavia, History, < http://www.icty.org/sid/95>.

[14] Ibid.

[15] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) art 5(1).

[16] Hassan B Jallow, ‘International criminal justice: reflections on the past and the future’, (2010) 36(2) Commonwealth Law Bulletin 269, 277.

[17] Ibid.