EU States Eye Tribunal to Prosecute Islamic State Fighters

22.07.2019

Photo: Fighters from the Islamic State group parade in a commandeered Iraqi security forces armored vehicle on the main road at the northern city of Mosul, Iraq, on June 23, 2014. (AP Photo, File)

Officials from 11 European countries, in June, met in Stockholm, Sweden, to discuss creating a tribunal to prosecute Islamic State fighters.

Representatives from Sweden, Norway, Finland, Denmark, Austria, Germany, Belgium, the Netherlands, France, Switzerland and the United Kingdom attended the meeting. A delegation from the European Union and the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL also took part in the discussion.

Swedish Home Affairs Minister Mikael Damberg, who initiated the idea, met with his foreign counterparts in May to obtain support for such a tribunal. He also met with officials from Europol, the law enforcement agency of the European Union, and Eurojust, the agency that deals with cross-border criminal prosecutions in the EU.

“I think it’s necessary because it’s a moral issue, because this is perhaps the worst terrorist organization we’ve seen in modern history,” Damberg told the CBC last week.

Other conflicts have had their own ad hoc tribunals set up by the United Nations. The International Criminal Tribunal for the former Yugoslavia, which operated from 1993 until 2017, was set up by a resolution of the U.N. Security Council as was the International Criminal Tribunal for Rwanda. But similar resolutions to prosecute atrocities committed by the Islamic State have been blocked by Russia.

Neither Iraq nor Syria has signed on to the Rome Treaty, which leaves the International Criminal Court – the U.N. body for prosecuting war crimes and genocide – unable to take cases related to the Islamic State.

“I understand their impetus but it’s fraught with problems,” said Dr. Payam Akhavan of McGill University and an expert in public international law, since committing a crime in a foreign country is generally not illegal in one’s home country. “Without existing national law, it’s not clear what someone could be prosecuted for.”

In Sweden, for example, supporting a terrorist organization isn’t a crime, so there have been few avenues for prosecution of returning fighters. In other countries, the approach is different. The Netherlands has tried a number of fighters in absentia and will jail them if they return home. Sweden is considering implementing rules which would make supporting an organization like the Islamic State a crime.

A report released by The International Centre for the Study of Radicalisation at King’s College London in 2018 found 41,490 international citizens from 80 countries have joined IS in Iraq and Syria. The same report found that 7,366 people had returned or attempted to do so at the time the report was published.

In 2016, Europol reported around 4,000 European citizens had joined the Islamic State in Syria and Iraq.

Meanwhile, Iraq is pushing forward with its prosecution of Islamic State fighters. A court there sentenced eight French citizens to death for their role in the conflict over the weekend. Iraq currently holds hundreds more fighters in jail and some 2,000 are also in refugee camps in Syria.

“It’s not very appealing to allow citizens to be tried in Iraq for these crimes,” said Akhavan. All EU countries have forbidden the death penalty, which is available in Iraq, and the judicial system there does not offer the same rights and protections as those in Europe generally do.

After the meeting Monday, Damberg told reporters it will be “difficult to achieve a tribunal,” adding, “I’m still convinced that it is possible, but it will not be easy.”

Damberg said he plans to discuss the outcome of the meeting with his ministerial colleagues during an EU meeting in Luxembourg on Friday. The Netherlands has invited him to discuss the matter during the U.N. General Assembly meeting in the fall.

Molly Quell reports for Courthouse News from the Hague, Netherlands.

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