Capone, Francesca

Capone, F.

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Is Trump Right? Foreign Fighters andthe States' Obligation to RepatriateThemFrancesca Capone 2019-03-10T10:43:31In a widely commented upon tweet, President Trump asked “Britain, France,Germany and other European allies to take back over 800 ISIS fighters”. He addedto the request also a not-so-subtle threat by claiming that otherwise the fighterswill be released. The tweet has been published on 17 February 2019, but thesituation of foreigners, including European citizens, stranded in Syria and Iraqafter the nearly complete defeat of the Islamic State is not a new problem, nor anunpredictable one given the unprecedented number of individuals and families whoflocked to the Middle East in recent years. Yet, so far the States most affected by thesituation have adopted heterogeneous and even contradictory approaches, withoutever facing the question of whether they are acting or not in compliance with theexisting international legal framework. Leaving aside moral and long-term securityconsiderations that have been eloquently expressed in a recent ICCT perspective,the focus here is on whether States of origin have or have not an obligation underinternational law to “take back” (i.e. proactively repatriate) their nationals.Setting the scene According to the most cited data 41,490 international citizens from 80 countriesbecame affiliated with ISIS. Some 5000 men, women and children have travelledfrom Europeto Syria and Iraq since 2012. An estimated 1500 individuals havereturned to Europe so far, whereas only scattered and not always preciseinformation is available with regard to those who were born in Syria or Iraq, died,fled elsewhere, have been captured and are currently detained. If numbers aredifficult to come to terms with, equally daunting is the task of discerning betweenforeign fighters (i.e. “individuals, driven mainly by ideology, religion and/or kinship,who leave their country of origin or their country of habitual residence to join a partyengaged in an armed conflict”) and foreign terrorist fighters (defined by UN SCRes. 2178 as “individuals who travel to a State other than their State of residenceor nationality for the purpose of the perpetration, planning or preparation of, orparticipation in, terrorist acts or the providing or receiving of terrorist training,including in connection with armed conflict”).Even though, in the absence of any substantive evidence to the contrary, the termforeign fighters should always be preferred, the mainstream trend has been tostretch as much as possible the contours and scope of the term foreign terroristfighters and act consequently. This is true also with regard to women and childrenbecause factors like gender (as explained in a 2018 ICSR report, in spite of aninitially lenient approach, women are currently regarded as dangerous as their- 1 -male counterparts) or age (in ISIS ranks, children as young as 9 years old receivedmilitary and ideological training) cannot, at least in the  minds of the interestedStates, contribute to draw a neat line between those who clearly pose a securitythreat and those who don’t. In the famous tweet, President Trump made explicitreference to the fighters captured in Syria and therefore held in custody by theSyrian Democratic Forces (SDF), a long-time ally of the Global Coalition to DefeatISIS. However, foreigners, including women and children, associated with ISISare facing pretty much the same destiny also in countries like Iraq and Libya, thustriggering the need to adopt a broader perspective and provide a general answer tothe question asked above.   States of origin’s obligation to “take back” theirnationals affiliated with ISIS The alleged obligation incumbent upon foreign fighters’ states of origin to “take themback” clearly hints at the adoption of a proactive approach, i.e. the repatriation (orextradition when the legal conditions are fulfilled) of said individuals through theimplementation of measures to facilitate their return. This is an important point asdemanding the repatriation of FFs is not the same thing as claiming that if ISISforeign members and their families are released and somehow succeed in travelingback to their countries of origin they would have to be allowed entry.The latter scenario is rather implausible, but also easier to solve. Under bothcustomary international law and human rights law admission to a State primarilydepends on nationality. The essence of nationality can be said to lie in the State’sduty to admit its nationals and allow them to reside within its territory. Such a dutyexists first and foremost vis-à-vis other States, meaning that it is an obligationthat is needed to balance States’ sovereign prerogative to regulate the presenceof foreigners on their territory. Under international human rights law the State’sobligation to admit its nationals becomes the individual’s right to enter and residefree from expulsion in his/her country of nationality. Pursuant to Article 13(2) of theUniversal Declaration of Human Rights (UDHR), “everyone has the right to leaveany country, including his own, and to return to his country”, Article 12(4) of theInternational Covenant on Civil and Political Rights (ICCPR) further provides that “noone shall be arbitrarily deprived of the right to enter his own country”. The HumanRights Committee (HRC) in its General Comment No. 27 has clarified that thereference to the concept of arbitrariness in this context is intended to emphasize thatit applies to all State’s action and that there are few, if any, circumstances in whichdeprivation of the right to enter one’s own country could be reasonable. The HRChas also explained that States parties must not, by stripping a person of nationality,arbitrarily prevent this person from returning to his or her own country. It followsthat revoking citizenship as a measure to prevent the return of FFs is a violation ofinternational law and so it is, again according to the HRC, to prevent a person fromcoming to the country of nationality for the first time if he or she was born abroad. With regard to the existence of an obligation to proactively repatriate FFs the currentinternational legal framework is less capable of providing a straightforward answer.- 2 -The Vienna Conventions on Diplomatic and on Consular Relations (respectivelyunder Art. 3 and Art. 5) list among the basic functions of diplomatic missions and ofconsular posts “protecting in the receiving State the interests of the sending Stateand of its nationals”. However, and setting aside the fact that most European Statesat the moment have cut off diplomatic relations with Syria and Libya, there is nouniformity either on the question of whether a national has a legal right or merelya legitimate expectation of receiving protection from his own Embassy or consularpost, nor is there uniformity amongst States of nationality on the extent of protectionoffered by individual missions or posts. Furthermore, it is well established under international law that it is the sovereign rightof each territorial State to prosecute suspects for crimes committed on their territory.However, in the situation under scrutiny the assumption that the territorial States arewilling and able to exercise this right cannot be taken for granted. Iraq, for example,is relying on such sovereign right to prosecute adult FFs, both men and women,but is asking States of origin to repatriate children, many of whom are detained onnational security-related charges for their alleged association with ISIS.When it comes to Syria, the SDF, i.e. a non-State actor (opposed to the currentSyrian Government) which is exercising governmental functions on part of the Syrianterritory with the support (if not under the control) of the USA, is clearly not willing norable to prosecute FFs and it is equally not capable of managing the camps whereover 2000 family members are held.Similarly, in Libya FFs, mostly from Tunisia, are currently detained in the Maitigaprison run by the Special Deterrence Forces, a militia affiliated with Libya’sinternationally recognised Government of National Accord (GNA). As reported byHRW the Tripoli-based GNA wants Tunisia to bring home the women, the children,and the corpses that they said were dead Tunisian ISIS fighters, but Tunisianauthorities are still stalling and only three out of 35 children have been repatriated sofar. So, the territorial States that in principle retain the right to prosecute FFs need tobe distinguished on the basis of whether they can and want to exercise said right ornot.The first scenario, i.e. Iraq, raises a number of issues concerning the lack of fairtrial standards, inhuman detention conditions (possibly amounting to torture and/or degrading treatment) and the imposition of death penalty in accordance with thenational counter-terrorism legislation in place, which should trigger the swift reactionof those countries that keep reaffirming their commitment to the rule of law andhuman rights and hold a strong and principled position against the death penalty.With regard to the second scenario, when the territorial States are unable orunwilling to prosecute terrorist suspects, in light of a “common-sense obligationrooted in community morality that morphed into international obligation”, theymust extradite them. The corollary that completes this formula is that States, firstand foremost the States of nationality, must cooperate to ensure that there isno sanctuary for acts that are universally condemned and proscribed. In fact, asunderscored by the relevant UN SC Resolutions, most recently Res. 2396 (2017),“all Member States shall ensure that any person who participates in the financing,- 3 -planning, preparation or perpetration of terrorist acts or in support of terrorist acts isbrought to justice.”Concluding remarks The faith of FFs and their family members currently located in Syria, Iraq and Libyarepresents a problem that can no longer be ignored by their countries of origin.Whereas some states are slowly accepting the idea of proactively pursuing effortsto repatriate children (with Russia spearheading this approach), the same cannotbe said with regard to men and women associated with ISIS, regardless of therole fulfilled within the group. As emerges from the brief analysis carried out in thispost, states of origin that want to solve the tension between security concerns andcompliance with existing international law have only a viable and potentially effectiveoption, which is to seek out their citizens and bring them back home. Even if it is notpossible to pin down an obligation incumbent upon States of origin to repatriate FFs,it is undeniable that other obligations, either under human rights law or under thefragmented international framework that govern the global response to terrorism, riskbeing breached or at the very least watered down if States do not step in and “takeback” their nationals.- 4 -

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Is Trump Right? Foreign Fighters and the States' Obligation to Repatriate Them

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Is Trump Right?: Foreign Fighters and the States' Obligation to Repatriate Them

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Is Trump Right?: Foreign Fighters and the States' Obligation to Repatriate Them

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