Transitional Justice Could Help Deal With ISIS Crimes

  • Haid Haid

    Consulting Fellow, Middle East and North Africa Programme, Chatham House

    زميل مشارك استشاري، برنامج الشرق الأوسط وشمال أفريقيا

The scale of the crimes and the sheer number of victims – combined with massive shortages in resources and personnel – make the task extremely difficult to address through the traditional legal system. An alternative approach would be transitional justice mechanisms, often used after political conflicts to redress human rights abuses. So far, however, the relevant authorities do not seem inclined to implement such solutions.

What is at stake is the long-term stability of northeastern Syria. There are hundreds of thousands of families with ties to ISIS and, in the absence of a credible justice process, an enormous risk of extrajudicial revenge killings targeting not only former militants but their entire extended families. Besides, the Turkish operation in northeastern Syria has raised the prospect of a return of many captured ISIS fighters to the battlefield.

The current judicial approach simply cannot cope with the volume of cases and the atrocities involved. The current efforts by the Kurdish-led self-administration entity to bring some justice to victims are largely focused on detaining ISIS members and, when possible, charging them with terrorism offences. The authorities have set up local counterterrorism courts to prosecute thousands of locally recruited ISIS members who are in custody.

But not all detained ISIS followers end up in jail. Members of the group who are from the region but did not hold senior roles in the ISIS apparatus and are not accused of major crimes are being released under limited reconciliation deals. Fighters who qualify under those criteria are being discharged after discussions with prominent tribal leaders in their communities, who are responsible for preventing them from rejoining ISIS.

On top of concerns regarding due process, particularly the fact that suspects are not allowed representation by defence lawyers, local courts are seriously understaffed and limited in number. At the current rate of prosecutions, it would probably take more than a decade to process the cases of all of the ISIS suspects in detention. Many victims are also upset at seeing ISIS members walk free without even admitting their guilt publicly, especially in cases where the court proceedings have lacked transparency.

Another concern is that the local administration is holding tens of thousands of civilians with ties to ISIS or its members in camps scattered across the northeast. Most of them are women and children who are not officially under arrest, but in reality they are being detained in the camps with no clear strategy for dealing with them.

More broadly, the current counterterrorism approach has largely failed to address the full range of crimes committed by ISIS. In addition, there are no formal mechanisms to determine the fate of people detained or forcibly disappeared by ISIS. Human rights groups have documented more than 8,000 people detained by ISIS whose fate remains unknown, but the actual number of victims is assuredly much higher.

Nonetheless, there are still no official mechanisms or entities to obtain and process information from the families of victims and ISIS members or to properly excavate mass graves to determine the status of the missing. Local courts are mainly focusing on establishing whether ISIS members were fighters in order to establish their guilt or innocence, but there is no clear method of highlighting the personal responsibility of individuals for war crimes or crimes against humanity. The counterterrorism courts also do not allow victims to file charges for crimes such as rape, theft and kidnapping, or to provide evidence against ISIS members.

To overcome the limitations of the counterterrorism framework, transitional justice provides mechanisms to establish accountability for ISIS crimes and to give victims a sense of justice. The formation of community-led fact-finding commissions could help to document and gather evidence about the full range of ISIS crimes, including individual responsibility. The commissions could also complement counterterrorism trials by sharing findings with relevant local authorities and encouraging victims to participate in proceedings.

The commissions should also consult with residents of the region on alternative paths to justice, such as monetary compensation and public apologies, to bring about a sense of closure. Clearly, some compensatory measures should be limited to former ISIS members who did not commit violent crimes or were released for lack of evidence. Those who committed serious crimes should be tried while ensuring the participation of victims in court proceedings, with transparency about the verdicts. All this is currently lacking.

The commissions could also cooperate with existing local reconciliation committees, comprising local tribal leaders and other community figures, to lead reconciliation and mediation efforts between former ISIS members, their victims and the families involved.

Northeastern Syria is a clear example of the limitations of counterterrorism laws to give victims a sense of justice. A transitional justice model could provide alternative avenues to resolve grievances and help communities heal and reconcile with hundreds of thousands of families previously linked to ISIS.

There is little local expertise to implement such a model and few precedents of transitional justice being applied to the crimes of violent jihadist groups. While much time has been lost, it is not too late for the international community, the local self-administration entity and Syrian civil society groups to develop more coherent transitional justice mechanisms to ensure victim participation and for ISIS members to fully account for their crimes.