Expert: Holding international court for ISIS mercenaries is important step to achieve justice

The expert in the affairs of armed groups, Anki Sjoberg, considered holding an international court in northern and eastern Syria for ISIS mercenaries an important step to achieve justice for the victims of the ISIS mercenaries, stressing that the international community's failure in this regard is linked to the considerations and political and logistical complexities of the prohibiting countries.

The ISIS mercenaries file is one of the most complex in the world, as about 19 thousand ISIS mercenaries are in the prisons of the Autonomous Administration of the North and East Syria, including 12 thousand Syrian ISIS militants, 5 thousand Iraqi ISIS militants, and two thousand foreign ISIS militants from 55 foreign countries.

Al-Hol camp, located 45 km east of Al-Hasakah, is considered a major problem in the NE Syria and the Middle East and the most dangerous camps in the world, where about 60,000 people live, most of them are families of ISIS mercenaries, including 8,965 mercenary women (migrants) out of 2,625 families, most of whom are children. They are no more than 17 years old.

Despite the seriousness of the file of ISIS mercenaries, the international community turns a blind eye to it, despite repeated appeals of the AANES to hold an international court in the region for ISIS mercenaries.

In this context, our agency held a dialogue with the co-director and founder of Struggle for Humanity, specialized in the armed groups, and Dr. Anki Sjöberg, who highlighted during the dialogue that the international community should not make a decision on behalf of the victims. She expected that the trial would play an effective role in achieving justice if it strengthened communicating experiences with other groups in Syria and abroad.

 The following is the text of the interview:

* The AANES repeatedly appeals to hold an international court for ISIS mercenaries in northern and eastern Syria, but most concerned countries turn a blind eye to this demand despite the presence of their nationals as well. In your opinion, what are the legal complications that prevent these countries not take this step?

The idea of ​​establishing an international court in northeast Syria, is subject to a complex overlap due to its legal and political considerations. Most of these legal considerations are controversial in nature and are still the subject of legal debate and analysis in academia and experts in international law.

Among the most prominent of these issues is the controversy of the state’s approval requirement to establish an international court in its territory, in implementation of the basic law principle of prohibiting interference in the internal affairs of states, which reflects the pivotal principle of state sovereignty in international law.

The point of view that adheres to this principle and its enforcement of the idea of ​​establishing an international court on the territory of a state is considered a literalistic principle in that any intervention - and it is not required that it be by force - in the affairs of another state without its consent is a violation of the principle of non-interference. These are based on international instruments, including the Charter of the United Nations and the Declaration on Friendly Relations and Cooperation among States issued by the United Nations General Assembly (1970), in addition to some decisions of the International Court of Justice.

While the other party refutes the principle of non-interference as it is limited to two elements of coercion and fulfilling the interest of the intervening state. Accordingly, the proponents of this approach argue that the establishment of an international court, firstly, is not considered coercion, and secondly, it is not aimed at achieving interest the relevant countries, and therefore should not be considered a breach of the principle of non-interference. Political considerations remain the stumbling block even if this legal controversy is bypassed, because states are, of course, very wary of creating certain precedents that may lead at some point in the future force them to accept them. This is in addition to other considerations related to international relations and interests, especially in light of the presence of international powers adopting a decisive and rejecting stance for such a step, not only because of some of their strategic relations with the Syrian authorities, but also because some of them lead an international “camp” that advocates for the non-normalization of the violation of the principle of non-interference in sovereignty of states, apart from the logistical challenges of such a move.

It also highlights the controversy of the legality or validity of such a court and the legal basis on which it will be based. The UN Security Council is the only internationally authorized body to adopt binding measures, including the establishment of international courts with jurisdiction and legal references that may not stem from the jurisdiction and legal system of the country in which this measure is taken (such as the court of Yugoslavia, Rwanda, and others).

Some also rely on the fact that the common Article 3 of the Geneva Conventions encourages the conclusion of agreements between the parties to the "conflict" - and the Autonomous Administration is one of them in the Syrian context - in order to ensure the implementation of the provisions of these agreements, most importantly grave violations and criminal trials. On this basis, they argue that the establishment of this court can be interpreted in this context and therefore is not considered interference in the affairs of another state, especially since the third common article confirms in its last sentence that nothing in this article changes the legal status of the parties to the dispute.

However, proponents of holding the court try to strengthen their position by noting that international humanitarian law encourages all states to apply the principle of universal jurisdiction to try perpetrators of war crimes and crimes against humanity regardless of whether those states are party to the conflict or not. They point out that the application of this principle by any state to the citizens of another state is not considered interference, given what international law recognizes with regard to considering these international crimes and accountability for them a collective humanitarian responsibility that is not only related to the internal affairs of a particular state. Even more, international law encourages states to extradite those accused to states that activate in their judicial system the principle of universal jurisdiction, regardless of their nationality.

There are many other related legal considerations, such as fair trial guarantees and others, all of which are of course linked to the combined political and logistical considerations and complexities that make the issue of establishing an international court complicated, despite It is not impossible if we take into account the arguments and interpretations of its supporters.

 * On the 27th of last May, the Human Rights Defense Initiative, sponsored by the German human rights organization International) Medico, and the “fight for humanity” organization established a platform for ISIS victims. Do you think this platform will be the first step towards holding an international court for ISIS mercenaries?

In its current stage, the platform does not adopt a specific form of criminal justice for ISIS members who are found to have committed serious violations or international crimes. The platform establishes a clear framework with specific conditions for any form of criminal justice in the context of victims' right to an effective remedy. The platform adopts the holistic framework of the right to an effective remedy that includes components of criminal justice, reparation, truth and through a victim-centered approach. In the context of the general framework of its activities, the platform plans to enhance the victims' knowledge of these components and hold focused discussions aimed at coming up with specific positions and detailed action plans that address the form of each of these components, including criminal justice. Victims (the target group for establishing the platform) first need to have objective knowledge of these details so that their expectations are maintained and they are provided with sufficient detail about their strengths and weaknesses and what to expect from each form of criminal justice. Second, these victims need to discuss and think about it and come up with a plan and a position that determines their position on an international court or other form of criminal justice. And third, victims need to take the lead in advocating for their findings.

* The international community has not adopted any decision regarding compensation for ISIS victims, what are your expectations about this in the near future, and is it possible that there will be any change in providing support to these victims?

It is first necessary to agree that reparation is the more appropriate term because it is more general and comprehensive than “reparations” which are usually limited to monetary payments. Reparation is what members of the Platform are claiming in the context of their inherent right to an effective remedy.

Second, the international community may not make a decision on behalf of victims when it comes to effective remedies and reparations. These two types must be appropriate and satisfactory to the victims. This is the logic behind this platform, as it allows them to play their part in shaping effective redress mechanisms to the satisfaction of victims, including truth-knowing, criminal justice and reparations components. Conversely, and in contexts in which victims played a vital role, peace and transitional justice processes have been more successful, such as the experience of Argentina, Bosnia and, more recently, the experience of Colombia.

The forum is expected to play an effective role in this context, especially if it enhances its communication and exchange of experiences with other groups in Syria and outside Syria concerned primarily with the rights and roles of victims and their families, in order to combine efforts and form a pressure front on the international community and all stakeholders in order to make this issue a priority. They differ from the priorities of a political solution and an end to the armed conflict.

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ANHA