Over the weekend, President Trump directed his administration to “develop a comprehensive plan to defeat ISIS.” That memorandum follows a clear focus on the Islamic State in Iraq and Syria in the White House’s foreign policy statements, as well as comments by Secretary of State Rex Tillerson clarifying that the defeat of radical Islam and ISIS will be a primary mission objective of the State Department under his watch.
In line with the positive whole-of-government approach adopted by the administration, it is imperative that thought be given to the fate of ISIS fighters who will inevitably be captured in the upcoming actions in Iraq and Syria and how the handling of them may either advance or negate efforts to defeat ISIS. Once detained, there is very good reason to provide for swift, yet fair, justice for ISIS fighters.
In recent years, international criminal justice has often been packaged by the U.S. government as an equal among other pillars of transitional justice, such as truth seeking, reparations and legal reform. In post-conflict settings this makes sense; however, in the context of ongoing kinetic action, criminal justice should be de-linked from those transitional justice structures and supported as a non-kinetic operational priority of the mission to defeat ISIS.
Of course, many ISIS fighters will die in combat, but a substantial number will not. If held in prolonged detention without trial or convicted in fast-tracked show trials charged only with material support to ISIS, these fighters will continue to find support in a vulnerable global community of at-risk youth. These young people remain susceptible to a narrative that ISIS is the protector of a holy caliphate, whose members are persecuted at home and abroad simply for being members of a devout religious group.
By feeding this narrative, future actions could inadvertently promote the continued recruitment of individuals willing to travel to Syria and Iraq, as well as those answering ISIS’s calls for violence at home.
Demonstrating the specific criminality of individuals in ISIS through fair and open trials, rather than simply trying them for material support to the group, provides a powerful counter message and contributes to their delegitimization.
These individuals are criminals, common and habitual. They are murderers, rapists, slavers, thieves and drug dealers. While ISIS has been happy to demonstrate some of its criminality through public executions and physical abuse, its members are much less vocal about their role as serial rapists, human traffickers and drug traffickers — allegedly producing and selling Captagon, an amphetamine popular in the region.
Fair trials for specific crimes will provide an additional tool to fight back against the group’s social media campaign with facts, proven in courts of law and open for the world to see — at least for those not yet so far down the path to radicalism that facts no longer matter.
Bringing these individuals to justice wherever they may be found for drug trafficking and other lucrative criminality also contributes to another administration priority: the need to cut off funding for terrorist groups. And U.S. support for the collection and preservation of evidence of ISIS crimes and the chains of command within ISIS today will also serve a longer-term purpose: Many ISIS members will seek to avoid detention or death on the battlefield by leaving the organization.
An increase in ISIS fighters leaving Syria and Iraq has already been noted in the last several months — those numbers will surely increase once an enhanced US engagement is underway.
Over time, many of these former fighters will resurface elsewhere in Syria, Iraq and other countries, particularly in Europe. It is imperative that evidence is collected and preserved to criminal law standards today in order to ensure the fair and just prosecution of these individuals once they are identified, hopefully before they engage in further terrorist activities. This will be particularly important for mid-level commanders who are less likely to appear in ISIS propaganda videos but who are in positions of significant authority and hold responsibility for numerous crimes.
Not only does securing evidence of criminal activity now allow for the proper prosecution of these individuals abroad, it also ensures support for attorney general nominee Jeff Sessions’s stated top priority at the Department of Justice: protecting the American people from terrorism.
By supporting the collection of evidence on suspected ISIS fighters now before it is destroyed or discarded, the U.S. can ensure that material identifying ISIS fighters is preserved for future vetting purposes, thereby increasing the likelihood that a potential terrorist is stopped before entry into the U.S. or, in the event they make it to our borders, that sufficient material is available to effectively prosecute these individuals.
Whether the administration chooses to try such individuals in U.S. federal court or in military tribunals, an issue reportedly being discussed by the administration, evidence collected for criminal justice purposes in Syria and Iraq can only strengthen these prosecutions, and indeed, where relevant, contribute to defense of an innocent individual.
Irrespective of where these individuals are ultimately tried, the key to ensuring that justice is done and that those responsible are held accountable is the availability of reliable evidence.
Given the long-term benefit of collecting evidence now, and the devastating impact of having murderers, rapists and drug traffickers go free if evidence is destroyed or simply allowed to disappear, it seems clear that the U.S. should consider providing support to those Iraqis and Syrians in the region who are already collecting and preserving such evidence. This type of support is currently being discussed in Congress and is detailed in Rep. Chris Smith’s Iraq and Syria Genocide Emergency Relief and Accountability Act (H.R. 390).
In addition, the administration should consider supporting the fair prosecution of ISIS fighters in Iraq, thereby keeping justice local, where it is best served, while protecting U.S. interests by ensuring these individuals are not allowed entry into the United States. With limited support, Iraqi courts could try these fighters in an fair and efficient manner under Iraqi law for the specific crimes they have committed, utilizing material collected over the past years by regional lawyers in anticipation of this moment.
Conversely, delaying justice will provide additional ammunition for ISIS’s rallying call of religious persecution — one that many around the world may still answer.
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