After eight years of bloody conflict in Syria, numerous brutal and horrific urban battles, and the slaughter of thousands of members of Iraq and Syria’s religious and ethnic minorities, the infamously brutal Islamic State of Iraq and the Levant finally appears to be subdued. The terrorist group once controlled territory spanning from the rich oil fields of Northern Iraq to the urban and rural heartlands of Eastern Syria. Now, most of ISIL’s living fighters sit captive in holding camps throughout the Syrian northeast — an area that’s controlled by the Syrian Democratic Forces — and in the prison cells of the Iraqi judicial system.

Now that major campaigns against the terrorist organization have concluded, ISIL’s victims are demanding accountability. However, the judicial process is complicated by the fact that ISIL’s members have deeply diverse origins. They hail from dozens of different nations and speak countless languages between them. While it remains unclear exactly how many captured ISIL fighters are not of Iraqi or Syrian origin, estimates show that in Syria’s largest ISIL holding camp, Al-Hol, where about 70,000 people are imprisoned, approximately 15 percent traveled internationally to join ISIL’s ranks.

The development of this situation raises difficult and politically divisive questions for the governments of the captives’ home nations. Are foreign states obligated to leave their defected citizens to the whims of the Iraqi and Kurdish judicial systems, where they may cause further instability and face weak standards of justice? Or should these fighters be extradited to their countries of origin to face due process at home courts? 

The question has become a substantial political headache for some European governments especially, which face a rising tide of racism and anti-immigrant fervor that could rhave a negative reaction to nations’ decisions to import terrorists from a foreign war using taxpayer dollars. For example, Great Britain has been among those most staunchly opposed to bringing fighters home.

“I’m not putting at risk British people’s lives to go looking for terrorists or former terrorists in a failed state,” British Foreign Minister Ben Wallace remarked earlier in 2019.

Shemima Begum, a former British student of Bangladeshi descent, recently became the face of this controversy. She left Britain several years ago at only age 15 with two friends, and they planned to join the Islamic State. Now alone in a detention camp in Northern Syria, Begum has requested to return to her parents in Britain. However the British government has responded by stripping her of her British citizenship, claiming that leaving her stateless is legal under international law because she is also entitled to Bangladeshi citizenship. Bangladesh has denied that she is entitled to Bangladesh citizenship, leaving her with no citizenship or recourse. Proponents of Begum’s case have claimed that as a minor, she deserves the right to return to her parents, especially because she claims to have not committed any violent crimes during her time with ISIL. 

With few exceptions, most governments have adopted Britain’s logic and indicated that they do not intend to take back their foreign fighters, citing complex security risks and the difficulty of producing court-admissible proof of crimes committed abroad. In response, Swedish diplomats have recently begun circling a new potential solution to the problem: an internationally-sponsored tribunal for ISIL criminals in Baghdad, Iraq. At first glance, this appears to solve a number of critical issues. An internationally-brokered tribunal would ensure that the courts would administer fair and legitimate standards of justice, and such a tribunal would benefit from easy, in-country access to evidence and witness testimonies from those who were harmed by ISIL.

However, some critics claim that an international tribunal does more harm than good and ultimately provides little more than an opportunity for foreign governments to offload their political problems. Meanwhile, establishing a tribunal to try only ISIL criminals in Iraq would set the precedent that the international community is only interested in bringing terrorist groups to justice, while other groups involved in Syria’s civil war — such as the Syrian government and Syrian Kurdish militias — would escape accountability for the violence they have perpetrated in the region. A precedent of selective accountability would only increase tensions in Iraq and Syria, making it more difficult to promote justice in the wake of the previous decade’s extreme violence.

“An ISIS tribunal would be able to deliver justice to at best a tiny percentage of those who committed crimes,” argues a recent position paper by Impunity Watch (“ISIS-only tribunal: selective, politicised justice will do more harm than good,” Oct. 31, 2019). “Though a tribunal would bring welcome attention and acknowledgement of the ordeals suffered by some victims, it would do little to address the needs and demands of wider victim communities, such as safe and voluntary returns for the displaced, fair compensation at the individual and collective level, opening mass graves, and other measures to reveal the fate of the missing and disappeared.”

The question of how to deal with foreign fighters seems to have few easy solutions. Leaving them in Iraq presents significant issues of due process given Iraq’s often-partial judiciary, in which judges are known to exact extremely harsh convictions for fear of being perceived as soft on ISIL. Reports suggest that ISIL trials in Iraq frequently last for less than half an hour and have a conviction rate of 98 percent, after which most are sentenced to life in prison or execution, regardless of their position in ISIL’s bureaucracy or the presence of significant, convincing evidence. With woefully inadequate support thus far from the international community, Iraq’s judiciary can hardly be expected to bear the burden of justice alone. As a result, Iraq’s courts have been unable to provide adequate standards of justice.

In order to best improve conditions on the ground, foreign governments should both extradite their foreign fighters and, if possible, provide substantial support to the Iraqi judicial system as it adjudicates trials for its citizens. Many countries must help shoulder the burden of restorative justice in Iraq, especially given the enormous role that foreign states have played in the region’s conflicts over the past several decades. Bringing home foreign fighters is just one way that the international community can exert a legitimately positive influence on the situation and help Iraq move on from the horrific nightmare of the fight against ISIL.