
The limitation of the anti-terrorism lens
The efforts of the autonomous administration in northeastern Syria to bring justice to ISIS victims mainly focus on detaining group members, charging them with offences under counterterrorism laws, or releasing them under tribal-sponsored reconciliation deals. On top of several procedural flaws that hinder fair treatment of ISIS members (see below), these mechanisms have fallen short of providing justice for ISIS victims.
Criminal prosecution
The number of ISIS-linked individuals in the custody of the SDF continues to increase, due to the ongoing security operations against the group’s active members. Guarding and processing detainees – currently estimated to number 11,000 – is becoming ever harder.9 To prosecute local ISIS members, the administration established terrorism courts (known as ‘People’s Protection Courts’) and adopted special counterterrorism laws in 2014.10 The legal proceedings in these courts are typically brief. ISIS members are tried individually in front of a panel of three judges. After being read the charges, suspects are sentenced in accordance with their crimes and with the evidence provided.11 The process usually results in three main verdicts:
- Members implicated in certain (though not all) violent crimes are typically condemned to between a few years and life in prison, which technically means a 20-year sentence.12 The autonomous administration abolished the death sentence.13
- Individuals who played non-military roles receive reduced sentences, as do fighters who joined ISIS when they were minors, cooperated with the authorities, surrendered and/or showed good behaviour while in custody. The reduced sentences mostly vary between six months and one year in duration.14
- Members found not to have fought for ISIS (the basis on which innocence is determined is not clear) are mostly released in coordination with local tribal figures, or detained in camps for internally displaced persons (IDPs) after the investigation is over.15
Despite the apparent good intentions of officials, these terrorism courts were established by non-state actors and lack international recognition. They also do not have sufficient human resources, especially experienced judges.16 This is evident in the relatively small number of individuals – around 1,500, in comparison to the much larger number of detainees in pre-trial facilities – who were tried between 2015 and April 2018.17 At this rate, the authorities will need more than 10 years to process the thousands of ISIS prisoners currently in custody. Besides, the approach of the courts has several procedural flaws, as trials mainly focus on establishing whether ISIS members were fighters as a gauge of guilt or innocence with regard to violent crimes. The courts fail to capture the full range of crimes committed by ISIS or its individual members.18 In addition, the terrorism courts do not prosecute female ISIS members, who instead are either released or held in IDP camps.19
There is no clear method for investigating other crimes (such as theft, rape or torture) or highlighting individuals’ responsibility for mass abuses. Additionally, the terrorism courts do not allow victims to make complaints to law enforcement, or to provide evidence against ISIS members. Victims do not have access to the courts or proceedings to know who was convicted of what. Thus, even when perpetrators are held accountable, their victims have no way of knowing that justice, to a certain extent, has been served.20
Observers have also pointed out significant concerns about the fairness of legal proceedings inside the terrorism courts. For example, ISIS members are not allowed to hire defence lawyers, nor they are allowed to challenge court decisions.21 There are no clear regulations regarding the time that ISIS detainees can legally spend in prison prior to trial. Thus, some might spend years in custody before they get a chance to appear in front of a judge.22 There is also no clear policy on how their family members, most of whom are held in camps, should be dealt with. Most family members who are not specifically suspects are thus trapped in legal limbo: they are not formally detained, yet they are not allowed to leave the facilities they are held in.23 Similarly, locals have raised alarming concerns about civilians being arrested in anti-ISIS campaigns despite inadequate evidence.24 Such suspects could be detained for months until proof of their innocence is obtained.25
Observers have also pointed out significant concerns about the fairness of legal proceedings inside the terrorism courts. For example, ISIS members are not allowed to hire defence lawyers, nor they are allowed to challenge court decisions.
Analysts have frequently warned that collective detention centres and camps may become recruiting bases for ISIS as a result.26 Group members in the custody of the SDF do not all have the same level of commitment to ISIS and its goals. Many individuals joined ISIS for reasons other than religion (such as money, power or protection). Other detainees might have been arrested by mistake and have no links to the group. Many are held in camps alongside IDPs, without sufficient measures to protect the latter from ISIS members, both men and women.27
The vast majority of those held in camps, regardless of gender or age, have limited access, if any, to recreation, vocational training or job opportunities. While living under such dire conditions does not automatically lead to radicalization, ISIS might be able to exploit their suffering as a recruiting tool. Such a task is potentially made easier by the inability of the SDF to monitor everything that happens inside crowded camps or detention facilities.28
Ad hoc reconciliation deals
Not all detained ISIS members end up receiving prison sentences. Those who did not fight locally, and who joined the group for non-ideological reasons, are judged as low-risk and as having reasonably high chances of reintegration. Thus, the terrorism courts take a lenient approach towards them.29 While some serve short prison sentences, as discussed above, others are released in accordance with prior agreements with tribal figures in their communities.30
Apart from helping local authorities to cope with the rising number of detainees, tribal-sponsored deals aim to improve relations with Arab-majority communities, to which the vast majority of detainees belong.31 This theoretically involves local communities in supporting the released ISIS members and stopping them from restoring their ties with the group.32 The administration has frequently used reconciliation agreements to discharge certain categories of ISIS members.33 Although there is still no detailed information on the number of people freed, local sources indicate that at least a few thousand have been released through this process.34 Notably, the number also includes family members who were allowed to leave IDP camps and return to their communities.
Although the impact of tribal-sponsored deals is yet to be thoroughly assessed, it is clear that the engagement of some local leaders in the process is insufficient on its own to ensure success.35 Largely due to a lack of resources and knowledge, the reconciliation deals do not provide rehabilitation programmes for released former fighters or contain follow-up mechanisms to assess their reintegration progress.36 The process also lacks transparency, especially with regard to the proceedings that determine the innocence of those released and the criteria used to prioritize their discharge over others who fit the same profile.37
People in areas where reconciliation deals have been implemented claim that the agreements have facilitated the release of many ISIS members, including ones responsible for committing or ordering crimes. A resident in Raqqa states:
Those criminals, who are known to locals, were released only a few weeks after they had been captured. Even if the SDF did not know about the crimes that they had committed, which is doubtful, this means that their vetting process is flawed. In other words, people might be benefiting from those deals not due to their innocence but rather connections to influential tribal figures.38
Similarly, an SDF official has said on the record that some ISIS affiliates who agreed to provide intelligence while still working for the group have been granted immunity. The beneficiaries of such arrangements have been allowed to walk free without questions being asked about any violations they may have been involved in.39 Some ISIS members have even been allowed to join the SDF as fighters or informants.40 Such practices, which undermine justice and accountability, have a negative impact on local communities. An ISIS victim based in Deir ez-Zor says:
It does not feel right to see a criminal walking free without a fair trial. But such actions do not come with no consequences. The families of the victims might take the law into their own hands when they feel that justice is not served.41
The overwhelming dependence of the regional administration on the abovementioned ad hoc approaches to accountability and reconciliation are exacerbating existing problems while contributing little to healing.