European Challenges in Confronting the Fate of ISIS Returnees

This commentary is part of our Watch List 2020.

For nearly a year, the Syrian Democratic Forces (SDF), an umbrella force including Kurds, Arabs and Assyrians led by the Kurdish People’s Protections Units (YPG), have guarded roughly 13,500 detained foreign women affiliated with ISIS and children in makeshift camps in Syria’s north east. A smaller number of male foreign fighters – perhaps 2,000 – are held in a separate prison network. These individuals wound up in the camps and prisons of north east Syria in the aftermath of the battle of Baghouz in early 2019, when thousands of ISIS-affiliated families and fighters fled or were captured following the militant group’s defeat at the hands of the SDF and the U.S.-led counter-ISIS coalition. Nationals of EU member states account for roughly 1,450 men, women and children within this population, with the largest numbers from France, Germany, and the Netherlands. The majority resides in the squalid al-Hol camp, lacking basic health services and suffering sexual abuse and endemic violence.

Although Turkey’s incursion into north east Syria in October 2019 has not caused as much upheaval with respect to these camps and prisons as some feared, it demonstrated how precarious security is in the region. The SDF retains control of the facilities for now, but that could change. If renewed Turkish attacks compel the SDF to redeploy its forces, Damascus could press into SDF-held areas, including camps and prisons, seizing them or possibly agreeing to manage them jointly with the SDF. This could make conditions for camp residents yet worse; the regime is notorious for its abuse of prisoners

Notwithstanding humanitarian and security concerns, European governments have tended to deal with their nationals detained in north east Syria by looking away. Given the potential implications of allowing the situation to fester, EU member states should shift their approach, take responsibility for their nationals, and begin bringing them home, with support and encouragement from EU leaders and institutions as appropriate. Rather than allowing the political sensitivities surrounding repatriations to keep them from moving forward:

• Member states that are politically hamstrung when it comes to bringing home nationals who are male fighters should start instead with women and children, whose repatriation is likely to be less controversial. Women form a diverse group of detainees – some have renounced militancy and are far from being high threat individuals – and children appropriately benefit from a presumption of innocence. Both groups are also highly vulnerable to abuse while they remain in detention.

• Until they are ready and able to bring their nationals home, member states should take all feasible steps to provide for them to be housed in humane and secure conditions in the region, a task that has only become more difficult with the Turkish incursion and a new UN resolution restricting aid delivery.

• With the long view in mind, member states and the European Commission should also work with humanitarian agencies, the UN and the SDF to facilitate eventual repatriation and, in the meantime, protect vulnerable detainee women and children from trafficking, including by preserving relevant documentation proving identity and family relations.

As Crisis Group has separately reported, conditions at al-Hol camp – by far the largest of the holding facilities for women and children in the north east – are abysmal. Violence is rife, with regular breakout attempts and confrontations among women living in the camp, and between women, camp officials and aid staff. Women who now reject militancy are forced to live intermingled with committed jihadists in conditions that enable abuse and intimidation. Accounts of disappeared and detained male children taken away to separate “deradicalisation” facilities persist, and aid groups have documented sexual abuse of women and sexual violence against children. The situation, if anything, has become worse since the Turkish incursion, which saw a pullout of cross-border aid groups operating there and a steep decline in already limited services. Some of these groups are now exploring the return of their expatriate staff to the area, as most will be making up for lost time and major gaps in service provision to a vulnerable population whose needs have grown more acute in the interim.

Proponents of repatriation argue that, beyond the humanitarian responsibility that European governments bear for removing their nationals from the squalor and dangers of north east Syria’s camps and prisons, there is a security rationale for doing so. French judge David De Pas, who works on antiterrorism cases, has argued that it would be safer for France to bring French national fighters home where Paris would have them “on hand” rather than leave them in the field – where presumably they could escape or be freed and pursue their designs outside government control.

On the whole, however, European governments are much less sanguine. Among other things, they are concerned about the challenges of prosecuting foreign fighters who return – including the difficulty of gathering the evidence required to win a conviction for crimes committed on a foreign battlefield. Moreover, even for those fighters who are convicted, European sentencing regimes may deliver prison terms of seven years or less. Officials worry about a scenario in which returned fighters first head for short stints to prisons where they can propagate jihadist ideology and network with other inmates, and then are released, unreformed, into the general public – creating a major burden for overtaxed security services.

Linked to these security concerns are political ones. Some European officials fear that allowing returns would galvanise far-right and populist groups, which are likely to exaggerate both the threat posed by returnees and the burden they impose on state resources. Additionally, on the international front, many European states are reluctant to deal with the SDF or its political wing, the Syrian Democratic Council (SDC). In exchange for facilitating returns, the SDF and SDC have pushed for meetings and photo opportunities with visiting foreign officials to intimate a degree of European political recognition of SDC-led autonomy. Europeans are wary of according them legitimacy that outstrips their status as a non-state actor and alienating Turkey – which regards the SDF’s leading Kurdish faction as an extension of its nemesis, the Kurdistan Workers’ Party (PKK).

Against this backdrop, member states have resisted pressures, including from families and sometimes from within their governments, to accept even the lowest risk returnees. Although some courts (in the UK, Germany and Belgium) have weighed in to require governments to repatriate children, these narrow decisions have not changed overall policy.

Notwithstanding the formidable challenges involved with repatriation, EU member states cannot responsibly wash their hands of their nationals in north east Syria. They should start the process of repatriating their nationals in earnest, communicating to their publics the combination of humanitarian and security considerations that underlie their actions, and starting with the most vulnerable. They should emphasise that turning away from the situation gives short shrift to governments’ obligations toward their citizens – including innocent children held in horrific conditions at al-Hol – while also deflecting the burden of protecting, providing for, and securing their nationals onto others. To do so would be irresponsible under any circumstances, but particularly in a region that is already bowed under the costs of a long-running war.

In cases where member states consider it politically impossible to agree on the return of individuals who have a violent or militant past, that should not become a pretext for inaction. For purposes of making quick progress, governments should start by focusing on repatriating women and children, who are likely to be less controversial than male fighters. Taking into account the political tumult in Norway that accompanied the recent repatriation of an ISIS-affiliated mother and her children, they should make clear to their publics that they are focusing on highly vulnerable children and women who pose the least security risk, working to identify this subset based on their own often considerable information about their nationals, and cooperating with others to close gaps in their intelligence.

What to do about the remaining group of women with operational experience and male combatants is a more vexing problem. Governments that refuse to repatriate these individuals – so far, nearly all of them – will need to develop other options to provide for both the short- and longer-term needs of these individuals. The longer-term options that European authorities seem to prefer do not appear promising. A nascent deal some European officials have discussed with Baghdad, under which Iraqi courts with European assistance would try foreign fighters, appears to have stalled. Prospects for overcoming European legal and policy requirements relating to the non-application of the death penalty, humane treatment of detainees, and fair trial safeguards do not seem high, and the chaos that has unfolded in Iraq since October 2019 cannot have helped. Another idea that has been discussed – supporting the construction of new or improved facilities inside Syria – also seems fraught, including that it would likely encounter obstacles tied to Western governments’ refusal to undertake new construction in Syria absent a political solution to the wider conflict. It would also require faith that the territory on which any new facility sits will not change hands as dynamics among the SDF, Ankara and Damascus ebb and flow.

Against this backdrop, it will be important for European governments, supported by EU humanitarian institutions, to find ways to assure that their nationals are being held in safe, humane conditions while they develop a longer-term solution. They will in particular need to focus on ensuring the flow of resources to UN and humanitarian groups, whose aid provision has already been severely disrupted by Turkey’s incursion, and will be further hampered by the UN’s updated resolution on cross-border aid delivery to the north east, which carries new restrictions that will impact delivering crucial medical services. They should also support steps that will facilitate repatriation if and when other options prove unworkable, including family tracing and genetic testing for children, and the orderly preservation at the camps of European nationals’ civil documentation (identity cards and passports). The latter is also important for the protection of women, who are at particular risk of human trafficking, and who may gain a measure of protection through access to copies of their documentation.