We really are no closer to figuring out what to do with ISIS detainees

Deciding how to deal with detained ISIS ‘foreign fighters’ is proving to be very, very difficult.

One would think it rare that terrorists and those trying to prevent them from achieving their goals would share the same desires. Yet in a way it is true, at least for the Islamist terrorist variety. Many Islamist terrorist groups have a cult of martyrdom, believing that dying in the cause is a worthwhile goal that will lead to paradise. Those seeking to stop these actors from succeeding in their task also want them to die as a corpse cannot carry out any more attacks. As I often say: a dead terrorist is a good terrorist.

So what do you do with those who don’t leave this mortal coil?

Well, you can arrest them, charge them, try them, convict them, sentence them and incarcerate them. That is, after all, how justice systems normally work. There is a snag, however. For all of this to go off without a hitch those who run the legal system need evidence, and witnesses, and laws, and defence teams, and a whole bunch of other things that must work well to achieve the end goal: i.e. rightly punished terrorists and fewer innocent deaths.

All this is proving to be a herculean challenge when it comes to Islamic State (ISIS) terrorists , especially the so-called ‘foreign fighters’, the 40,000 or so individuals from more than 100 nations who traveled to Iraq and Syria over the past five years to join the terrorist group. Many are dead and many others are in jail in both countries. It is the third category, however, that is proving to be the problem.

Thousands are held by Kurdish forces and that prison population is in a state of flux. Firstly, because the Kurds do not have the resources to hold and try them (they have told us as much and have asked countries to take back their own citizens) and secondly because of recent Turkish military incursions into Kurdish territory (itself painted as a counter terrorism move), which have led to prison breaks as guards are now needed to repel the invaders.

Not surprisingly, few nations have volunteered to repatriate their terrorist citizens, and some have gone as far as to revoke their citizenship (more on this in a bit). Governments are loath to bring back terrorists in light of the aforementioned prosecution challenges and sure as hell do not want to risk an attack on home soil from ‘returnees’. Hence the current limbo.

What then should be done? Here are a few suggestions, all of which have shortcomings:

  • try them in situ as that is where the crimes occurred (CON: Iraqi and Syrian ‘justice’ leaves a lot to be desired – use of torture, short trials, capital punishment, etc.);
  • continue to deny the problem by stripping citizenship (CON: normally citizenship is revoked only if obtained fraudulently. This does not seem to be happening here and in fact these terrorists were radicalised in their adoptive home countries BEFORE they joined ISIS. Furthermore, Turkey has threatened to deport them back even if citizenship is revoked). The Dutch Public Prosecutor has actually said that citizenship removal ‘hinders’ prosecution;
  • set up an international tribunal in Iraq and/or Syria to hold trials (CON: the ICC in The Hague is a notoriously inefficient way to do this as some prosecutions have taken decades);
  • hope the terrorists die in airstrikes or other military ops (CON: not a very nice thing to hope for);
  • bring the children back and put them with extended family or state care and leave their parents there (CON: the removal of children from their parents is usually seen as a last resort, although I have made the argument that ISIS moms and dads are by definition NOT competent caregivers).

The bottom line is that there is simply no ideal solution to any of this. Anyone who tells you differently is lying. My guess is that we will muddle through and continue to do nothing until absolutely forced to do so. The downside is that this issue will not disappear and hence some decisions will have to be made.

I am glad I am not in the position to have to do so.

By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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