Introduction
Following the territorial defeat of Islamic State of Iraq and Syria (ISIS) in northeastern Syria, the Kurdish-led autonomous administration, dominated by the Syrian Democratic Forces (SDF), is grappling with the task of quickly dealing with thousands of the group’s detained members while also bringing justice to their victims. Whenever possible, the administration is using counterterrorism laws and courts to prosecute local ISIS members, who are the main focus of this paper.1
The process appeals to local prosecutors because it is straightforward. They determine the guilt of the detainees mainly by establishing whether these individuals fought with ISIS or not.2 However, the scale of the crimes and the number of victims – on top of severe shortages of resources and workers – make dispensation of justice extremely difficult to achieve through the traditional legal system. As a result, not all detained ISIS members suspected of criminal activity receive prison sentences. Individuals who did not hold senior roles in the group’s apparatus and were not combatants are often being released under limited reconciliation deals with local communities.3
Many victims are unhappy at seeing some ISIS members walk free without publicly admitting their guilt, especially in the absence of public information on court proceedings.
Despite the importance of its efforts, the administration’s piecemeal approach to justice is deeply flawed. Because it is mostly designed to deal with ISIS members accused of fighting for the group, a wide range of other crimes (including rape, theft and even torture) are unaddressed. Moreover, there are no precise instruments to highlight the personal responsibility of individuals for specific crimes, or for their role in war crimes and crimes against humanity that were committed by ISIS.4
The regional administration seems to have adopted the mistaken view that detaining or prosecuting ISIS members will be sufficient to serve justice and provide stability. But many victims are unhappy at seeing some ISIS members walk free without publicly admitting their guilt, especially in the absence of public information on court proceedings.5 Failing to recognize those shortfalls risks pushing victims to seek revenge not only against ISIS members but also against their extended families. Quite apart from the moral considerations involved, this has the potential to undermine stability in the region.6
To overcome the limitations of the current, counterterrorism-focused framework, adoption of a ‘transitional justice’ approach could provide mechanisms to establish accountability for ISIS crimes without allowing the group to benefit from the harms it has caused. According to the United Nations, ‘transitional justice is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’.7 Transitional justice may include a combination of judicial measures (prosecution) and non-judicial ones (such as truth commissions and reparations programmes) to reach outcomes desired by local communities.
Currently, however, the administration does not seem to view transitional justice as a suitable tool for alleviating the enormous burden of dealing with captured ISIS members. This is due partly to the lack of local expertise in finding alternatives to criminal prosecution, and partly to the absence of precedents for using transitional justice to deal with the crimes of violent jihadi groups.
This paper therefore aims to assist the region’s local authorities, and their key foreign backers, in understanding how transitional justice can provide alternative avenues for holding local ISIS members to account while contributing to the healing of communities.8 It examines the limitations of the autonomous administration’s current approach to dealing with detained ISIS members, and of its policies towards their family members who are held in camps. It then presents several non-judicial instruments that could be used to investigate ISIS crimes and provide victims with a sense of justice. It concludes by providing fundamental principles and policy recommendations to help design such a process.
Central to this study is a set of 40 semi-structured interviews with Syrian officials, analysts, residents, ISIS victims and former ISIS members. These were conducted by the author online – via Skype, WhatsApp or email – or in person between November 2018 and January 2020. The interviewees were assured of anonymity to allow them to talk freely and mitigate the risks involved for them in sharing their experiences.
While this paper focuses on transitional justice in northeastern Syria, the proposed framework could be used to guide policymakers elsewhere in dealing with mass crimes committed by violent extremist groups. Moreover, the paper seeks to contribute to the broader discussion on how to provide justice and improve stability without hindering the ability of local communities to achieve reconciliation.
1 Those counterterrorism laws were written and adopted by the Kurdish-led autonomous administration in 2014, based mainly on the counterterrorism laws used by the Syrian government. For more information, see The Self-Administration (2016), ‘The Counterterrorism laws’, 29 March 2016, http://encumenacibiciker.info/المرسوم-التشريعي-رقم20-/ (accessed 11 Jan. 2020).
2 Haid, H. (2019), ‘Transitional Justice Could Help Deal With ISIS Crimes’, Chatham House, November 2019, https://bit.ly/30K9PXL (accessed 12 Jan. 2020).
3 Haid, H. (2018), Reintegrating ISIS Supporters in Syria: Efforts, Priorities and Challenges, London: International Centre for the Study of Radicalisation (ICSR), August 2018, https://bit.ly/3asZSTf (accessed 11 Jan. 2020).
4 Houry, N. (2019), ‘Bringing ISIS to Justice: Running Out of Time?’, Human Rights Watch, 5 February 2019, https://bit.ly/36j4IPE (accessed 8 Jan. 2020).
5 Author interview via Skype with a resident based in Raqqa, 6 December 2018.
6 Author interviews via Skype with several victims of ISIS based in Raqqa and Deir ez-Zor, November and December 2019.
7 United Nations (2010), ‘Guidance Note of the Secretary General: United Nations Approach to Transitional Justice’, March 2010,
https://bit.ly/2ReZWOJ (accessed 10 Jan. 2020).
8 This paper only focuses on Syrian ISIS members. The group’s foreign members, whether from elsewhere in the region or overseas, are not covered.