In Legal Wrangling Over ISIS Families, Should Anyone Be Allowed Home?

by Anne Speckhard & Ardian Shajkovci

as published October 31, 2018 in Homeland Security Today

The territorial defeat of ISIS and resultant roundup of both male and female ISIS cadres, not to mention their children – including infants and toddlers – are creating legal nightmares for Western countries, many who do not want them back. Citizen revocations, refusals to return even women and children and bureaucratic hurdles are leaving many of these Westerners in a legal limbo as well as raising important questions of when citizenship can be revoked, creating statelessness and issues regarding cruel and inhumane punishment, not to mention collective punishment, in regard to ISIS women and children.

Researchers from the International Center for the Study of Violent Extremism (ICSVE) recently visited two prison and detention/camp facilities in Kurdish Region, Rojava, which is currently governed by the Syrian Democratic Forces (SDF), to interview ISIS detainees and prisoners. In total, 10 male foreign fighter prisoners, held in a prison facility, and 11 women, held in Camp Roj, were interviewed.

Women and children’s status in camp Roj and other detention facilities in Syria’s Rojava region remains complex. While women are not (formally) accused of any crimes for living in the so-called Islamic State, nor are they aware of any pending indictments or trials in their home countries for crimes they may have committed, they are not free to leave the camp. Despite talks about possible repatriation of women and children to their respective countries, coupled with the fact that officials representing the SDF express their willingness to release them to their home countries, Western governments appear to be acting slowly on the issue, often citing bureaucratic hurdles concerning establishing parenthood in the case of the children, issues of separating mothers from their children, and fear of terrorist actions and spreading radical ideologies once returned.

Currently, there are 500 women and 1,200 children at Camp Roj who await a resolution to their pressing issues. While these ISIS mothers may be guilty of horrific crimes – we certainly have heard many abuses including flogging, torture, biting, etc., carried out by ISIS women in our 101 ISIS cadre interviews to date – their children were brought or born into ISIS by no fault of their own. Yet, these children – Belgian, French, German, Russian, Kuwaiti, Swiss and more – who we witnessed languishing without toys, playgrounds, and in conditions unsuitable for any children, are held in this limbo. When ICSVE staff queried American government officials about the status of Samantha El Hassani’s four American children who up to recently were held in Camp Roj (and now finally returned home to Indiana), these officials cited inability to bring the children back without their mother’s cooperation, despite the fact that she had shown poor mothering skills by taking them to ISIS to begin with, the children’s lack of identity documents, difficulties with proof of citizenship, the need for DNA testing, etc., as hurdles preventing their return home.

The European mothers we interviewed in Camp Roj all now renounced ISIS and claimed for the most part to have been pretty naïve in joining, although that may not actually be the case. They complained about others in the camp who were still acting as ISIS enforcers – one was forced back into a hidjab as a result, according to her claims. They were all concerned about lack of vaccinations and about children and mothers who had died in the camp of typhus and other serious communicable diseases. One of the Belgian mothers had a toddler who was routinely struggling to breathe or stopped breathing all together for short moments. None had adequate stimulation for their children (they literally play with rocks or, in the case of the older children, in a dirty canal). Medical treatments are difficult to procure and pose serious health risks, as in the case of one Belgian mother who was pregnant and about to give birth and was likely to have another cesarean section; she returned to the camp following surgery with a newborn infant. Another has no antibiotics or bandages to put on a serious skin wound of her toddler.

One mother whose child is seriously ill begged for her child to be taken from the camp and placed with family members back home, as did American Samantha El Hassani when one of her young children was seriously ill. Yet 1,200 children remain imprisoned without having committed any crime, and some could even die there. Their mothers all suffer watching their children suffer and fear of serious illness is pervasive in the camp, especially as winter approaches.

Article 16 of the UN Convention against Torture (UNCAT) requires parties to prevent “acts of cruel, inhuman or degrading treatment or punishment.” Is it not a slow torture to watch your child die in front of your eyes, to be denied vaccinations for your baby, to not have medical treatments, or to give birth and return after a cesarean to a camp with a newborn that may not have a chance to survive in the heat and dust? These are serious concerns about both women and children held in detention centers in Syria.

Despite the chaotic situation in Syria, the Syrian Democratic Forces (SDF) – mostly consisting of, and militarily led by, the People’s Protection Units (YPG) – appear to be running a functioning criminal justice system. Interviews with officials revealed that ad-hoc counter-terrorism courts set up in their territory are already prosecuting local Syrians and Iraqi nationals for their involvement with the so-called Islamic State, although they are currently not prosecuting foreign fighters.

From a legal standpoint, International Humanitarian Law (IHL) does not grant any powers to non-state armed groups, SDF included, when it comes to holding trials; however, it spells out a set of rules and legal obligations by which such groups should abide provided they choose to hold trials. In other words, IHL contains rules and obligations that apply both to non-state and state armed groups on how to ensure due process and administer fair and free trials (i.e. customary international law, article 75 of Geneva Convention, etc.), which should also be applied in the case of foreign fighters currently in the custody of SDF.

According to IHL, because foreign fighters are currently imprisoned by SDF, a non-state armed group indirectly linked to the central government of Syria, as also feared by some interviewed foreign fighters, the Syrian government could, in fact, request that foreign fighter prisoners be transferred to their custody in Damascus, from where they could also be traded or released back to ISIS-controlled areas. One male European prisoner in particular expressed this fear, asking that his country protect him from such a fate.

All the interviewed foreign fighters pleaded to be repatriated to their respective home countries, even if that meant facing prosecutions and serving prison time. A Belgian foreign fighter stated he would rather serve his prison sentence in his home country: “I will serve 10, 15 years if need be,” he stated. In terms of transferring detainees to their home countries and respective authorities, one must also consider the principle of non-refoulement under IHL. While it is important to extradite those known to have committed crimes in the battlefield in Iraq and Syria, primarily to bring justice to the victims’ families, the principle of non-refoulement sanctions the transfer of detainees to the countries (e.g. origin) where they could possibly face torture or other forms of cruel punishment. In cases where citizenship is being revoked and a second passport is in place, this is a very real possibility. Some of the Belgian women we spoke to worried about ending up in Arab countries or Turkey, where their rights are unlikely to be respected in the same manner as in Europe.

The U.S. government has recently facilitated the repatriation of seven Macedonian nationals, former ISIS members captured and detained by SDF, to their home countries, where they are likely to face prosecution. The Department of Defense praised Macedonia’s willingness to take them back, adding that “repatriation efforts remain the best solution to prevent detained foreign terrorist fighters from returning to battlefields in Iraq, Syria, or elsewhere across the globe,” a dreadful scenario indeed, should the government of Bashar al Assad ever have the chance to set them free as he did in the past with al-Qaeda imprisoned fighters or chose to trade them for hostages or his own men. Similarly, two American citizens, Samantha El Hassani included with her four children (two of them American passport holders), held by SDF were also recently repatriated to the United States, where they are awaiting prosecution by the Justice Department. France recently announced that they will allow the return home of French children, but not of their mothers. A French mother we interviewed said she couldn’t bear to be separated from her toddler.

Interviewed SDF officials shared that the United States and other western countries are not in direct control of such prisons and detention centers. Namely, their cooperation is only limited to gathering evidence and intelligence from the prisoners and offering logistical help to manage and run the facilities. Given that western countries are already cooperating with SDF on the above-mentioned matters under IHL and other international legal instruments (i.e. The United Nations Convention Against Torture, to which the U.S. and many western countries are a party) they are also obligated to ensure adequate treatment of prisoners and detainees. The medical and psychological risks, including from the complete lack of vaccinations, possible extremist indoctrination from the extremist prisoners in the camp, the poor schooling, etc., that Western children in Camp Roj are subjected to is concerning to say the least.

Following the massive outflow of Westerners to join the ranks of ISIS, citizenship revocations as a security measure and counter-terrorism response are now being introduced by many western countries, especially in light of growing fears over IS foreign fighters returning to their countries of origin. The governments of UK and Austria, for instance, have already introduced citizenship revocation. Their legal instruments spell out a number of conditions under which citizenship could be revoked (e.g. UK’s Immigration Act of 2014, Counter Terrorism Security Act of 2015). Citizenship revocation is most often justified on the grounds that these individuals voluntarily joined a terrorist group; that these individuals voluntarily declared allegiance to a terrorist group and/or a foreign country; that these individuals lived outside the country of origin for a considerable amount of time without declaring an intention to remain a citizen; and that they were not pressured to leave the home country to join a terrorist group and/or a foreign country. However, the controversial aspects of such legal instruments are the powers to revoke citizenship from individuals with only one citizenship, essentially creating stateless individuals and raising the question of who is responsible for prosecuting, imprisoning and attempting to rehabilitate such individual. And if they are ever set free, how do they live and where? For instance, recently the UK government revoked the citizenship of two former ISIS fighters, who are currently in the custody of SDF. They belonged to the so-called ISIS“Beatles” gang, a group that became notorious for kidnappings and beheadings of a number of western journalists and aid workers. Questions also remain about the children of stateless individuals, particularly in which being born abroad to a French citizen, for instance, does not preclude a child from claiming French citizenship.

Detainees we spoke to feared they could become stateless or semi-stateless citizens. While the international law delegates the states the right and authority to determine the criteria for citizenship, namely the basis for inclusion and exclusion, citizenship revocation could threaten individuals’ human rights and leave them in a legal limbo. Most importantly, it could weaken community relations and achieve little to prevent terrorist attacks. Despite recent examples of repatriation to their countries of origin, the future of a majority of ISIS foreign fighters and ISIS mothers and wives, as well as their children, remains uncertain.

To date, a limited number of countries have sought to take children born to their citizens back home. Russia, for instance, took half of the Russian women and children held in Camp Roj home, but left the others to languish. The U.S. took home Americans from Camp Roj only very recently – having left them in the camp for over a year.

Governments should expedite the process of facilitating the return of both adults and their children, especially in the case of pregnant women and their innocent children held in detention camps. SDF officials complain that foreign fighters are not their responsibility to house or prosecute. And while it is difficult to obtain evidence from a conflict zone, each country has a responsibility to prosecute their own citizens while also protecting the rights and well-being of children born to them and eligible for citizenship or already child passport holders.

Detainees and prisoners should also be allowed to contest transfer to their own or other country where risks of torture and unfair trials exist. Equally important, any secret transfer to another location would mean loss of basic legal protections and exposure to potential abuse.

While there is much to fear from groups like ISIS, we must never become like them in sacrificing our upholding of basic human rights. Western countries in particular have no legal or moral excuse for refusing to deal with their own citizens and to protect their own children.

Read the original report here.

About the Authors:

Anne Speckhard, Ph.D., is Director of the International Center for the Study of Violent Extremism (ICSVE) and serves as an Adjunct Associate Professor of Psychiatry at Georgetown University School of Medicine. She has interviewed over 600 terrorists, their family members and supporters in various parts of the world including in Western Europe, the Balkans, Central Asia, the Former Soviet Union and the Middle East. In the past two years, she and ICSVE staff have been collecting interviews (n=101) with ISIS defectors, returnees and prisoners, studying their trajectories into and out of terrorism, their experiences inside ISIS, as well as developing the Breaking the ISIS Brand Counter Narrative Project materials from these interviews. She has also been training key stakeholders in law enforcement, intelligence, educators, and other countering violent extremism professionals on the use of counter-narrative messaging materials produced by ICSVE both locally and internationally as well as studying the use of children as violent actors by groups such as ISIS and consulting on how to rehabilitate them. In 2007, she was responsible for designing the psychological and Islamic challenge aspects of the Detainee Rehabilitation Program in Iraq to be applied to 20,000 + detainees and 800 juveniles. She is a sought after counterterrorism experts and has consulted to NATO, OSCE, foreign governments and to the U.S. Senate & House, Departments of State, Defense, Justice, Homeland Security, Health & Human Services, CIA and FBI and CNN, BBC, NPR, Fox News, MSNBC, CTV, and in Time, The New York Times, The Washington Post, London Times and many other publications. She regularly speaks and publishes on the topics of the psychology of radicalization and terrorism and is the author of several books, including Talking to Terrorists, Bride of ISIS, Undercover Jihadi and ISIS Defectors: Inside Stories of the Terrorist Caliphate. Her publications are found here: https://georgetown.academia.edu/AnneSpeckhardWebsite: and on the ICSVE website https://www.icsve.org Follow @AnneSpeckhard

Ardian Shajkovci, Ph.D. – is the Director of Research and a Senior Research Fellow at the International Center for the Study of Violent Extremism (ICSVE). He has been collecting interviews with ISIS defectors and studying their trajectories into and out of terrorism as well as training key stakeholders in law enforcement, intelligence, educators, and other countering violent extremism professionals on the use of counter-narrative messaging materials produced by ICSVE both locally and internationally. He has also been studying the use of children as violent actors by groups such as ISIS and how to rehabilitate them. He has conducted fieldwork in Western Europe, the Balkans, Central Asia, Africa, and the Middle East, mostly recently in Jordan and Iraq. He has presented at professional conferences and published on the topic of radicalization and terrorism. He holds a doctorate in Public Policy and Administration, with a focus on Homeland Security Policy, from Walden University. He obtained his M.A. degree in Public Policy and Administration from Northwestern University and a B.A. degree in International Relations and Diplomacy from Dominican University. He is also an adjunct professor teaching counterterrorism and CVE courses at Nichols College.

Reference for this Paper: Speckhard, Anne & Shajkovci, Ardian (October 31, 2018) Legal Wrangling over ISIS Families: Should anyone be Allowed Home? Homeland Security Today