The world must bring militants to justice

An international tribunal would ensure ISIS fighters face the law, but may not be feasible

New Zealand ISIS supporter Mark Taylor inside a Kurdish jail in northern Syria after surrendering to the Syrian Democratic Forces. Campbell MacDiarmid

“The international community has evaded its responsibility.” So says Abdulkerim Umer, of the Kurdish-led administration in northern Syria, contemplating the impossible task officials in the region face in dealing with thousands of foreign fighters and their families. After the last ISIS stronghold in Baghouz fell last week, the Syrian Democratic Forces are struggling to contain militants, their wives and children in camps. Many of those captured are European, American and Antipodean. As Mr Umer said: “We can’t put up with this burden alone.” Yet western nations have been reticent to repatriate their foreign fighters or to take responsibility for their citizens.

While the terrorists should undoubtedly face justice, calls by the Kurdish-led SDF for an international tribunal to prosecute the militants – an idea backed by some governments, including Sweden and Belgium – are at best, problematic and at worst, unrealistic. There is precedent for such a legal process – international courts were established in the 1990s to prosecute those accused of genocide and war crimes in Rwanda and the former Yugoslavia, for example – but the proposal raises a host of legal and political questions.

If the tribunal were to be held in Syria, it would absolve western governments of their responsibility for foreign fighters who left their countries to commit atrocities abroad. Further, the Kurdish-led administration in northern Syria is not internationally recognised; nor is there a precedent of setting up an international tribunal on sovereign territory without that country’s approval, which in this case is the same Syrian regime those western governments have been opposed to. Neither Iraq nor Syria ratified the 2002 Rome Statute that created the International Criminal Court, meaning it does not have jurisdiction over crimes committed in those countries. At a more practical level, it would take decades for thousands of individual cases to be heard. Then there is the question of whether fighters alone would be tried or whether their wives – many of whom remain dedicated to ISIS’s grim ideology – would be treated as complicit. Throughout a convoluted process, the SDF would have to shoulder a burden it has already declared is unmanageable.

So while the International Criminal Court in The Hague could potentially prosecute individual ISIS leaders, the idea of a court to try thousands of ISIS foot soldiers seems logistically impossible. Nor should militants be allowed to escape punishment. The international coalition to defeat ISIS contains 79 members and all have a responsibility to deal with their native fighters. The longer this problem malingers, the harder it will be for the SDF to contain militants in the camps and prisons, which are quickly becoming hotbeds for the creation of new militant cells. The price of not doing so is the deadly resurgence of ISIS.