The aim of this Brief is to clarify the legal status of ISIS foreign fighters and ISIS-affiliated foreign women and children held in detention by the Syrian Democratic Forces (SDF) under international humanitarian law (IHL). In doing so, this Brief explains the minimum standard of treatment owed to all detainees under IHL in the context of a noninternational armed conflict (NIAC). The purpose of this Brief is not to advocate for any particular political solution to the problem of ISIS foreign fighters and ISIS-affiliated foreign women and children held in detention. Rather, its purpose is to clarify the applicable law so that all parties to the conflict in Syria can uphold their obligations under IHL and general international law.
Following this Introduction, the remainder of this Brief is structured as follows:
Section 2 provides a factual analysis of the conflict in North-East Syria. Specific attention is given to: the rise of ISIS and its ability to attract foreign fighters to join its cause in Syria; the composition, structure, and political status of the SDF as the military wing controlling the SelfAdministration of North and East Syria (SA NES); and current statistics and standards of treatment of ISIS foreign fighters and ISIS-affiliated women and children detained by the SDF.
Section 3 describes the legal framework applicable to the conflict in North-East Syria. It explains why the conflict is classified as a NIAC due to the sufficient intensity of the violence and organization of the warring parties. The applicable legal framework consists of: IHL; international human rights law; and international refugee law. As persons rendered hors de combat (out of combat) by reason of their detention, ISIS foreign fighters and affiliated women and children detained by the SDF are entitled to the protection of IHL applicable in NIAC. Due to the SDF’s status as a non-State armed group (NSAG), the applicability of international human rights law is disputed. However, there is general agreement that international human rights law applies to NSAGs who, like the SDF, exercise de facto territorial control over a civilian population. Furthermore, the SDF has shown a willingness to be bound by human rights obligations. International refugee law applies to ISIS foreign fighters in the hands of a State party to the 1951 Refugee Convention who face a genuine fear of persecution if refused protection. The principle of non-refoulement is applicable to NIACs.
Section 4 discusses the SDF’s legal authority to detain ISIS foreign fighters and affiliated women and children for security reasons under IHL. Consistent with the official position of the International Committee of the Red Cross (ICRC), this Brief explains that there is an implied authority for the parties to a NIAC to detain persons for ‘imperative security reasons’. While treaty law applicable in NIAC does not expressly provide this authority, it is necessary to give effect to the relevant treaty provisions concerning detention in NIAC and is recognized under customary international law. Practically, one of the primary reasons for recognizing the implied authority to detain in NIACs is that it is often the only alternative to using lethal force as a means of neutralizing a security risk. The internment of ISIS foreign fighters or affiliated women and children is only justified where the individual poses the requisite security risk to the SDF. Membership to ISIS as a fighter or pursuant to a ‘continuous combat function’ is sufficient to justify internment. Mere affiliation is not sufficient.
Section 5 outlines the minimum standard of treatment owed to ISIS foreign fighters and affiliated women and children detained by the SDF under IHL applicable in NIAC. It is noted that while IHL treaty applicable in NIAC contains certain technical and procedural gaps in detention standards, these gaps have been filled by customary IHL and the synthesis of international human rights law applicable in armed conflicts. At the bare minimum, article 3 common to the Geneva Conventions of 1949 (Common Article 3) requires that all detainees are to be treated humanely at all times. However, various other treaty provisions which now form part of customary international law are equally binding on the SDF as a party to the NIAC. Along with certain provisions of international human rights law, these IHL rules provide specific procedures, standards, and material conditions of detention that the SDF is legally obliged to uphold.
Section 6 explains the minimum judicial guarantees owed to ISIS foreign fighters and affiliated women and children who find themselves subject to criminal prosecution. These judicial guarantees apply irrespective of whether the individual is charged with violating IHL, terrorism legislation, or ordinary domestic criminal law, providing there is a sufficient connection with the NIAC. A brief discussion is provided on the legal authority of the SDF to enforce laws legislated by the non-State armed group.
Section 7 discusses the legal obligation on both the receiving and transferring parties during the transfer of ISIS foreign fighters and affiliated women and children previously detained by the SDF. While treaty IHL applicable in NIACs does not specifically deal with detainee transfer, it is understood that the obligation to ensure detainees’ humane treatment under the law of international armed conflict is applicable as a rule of custom.
Furthermore, ICRC commentary to Common Article 3 upholds the principle of non-refoulement as necessary to give effect to the obligation of humane treatment.
Section 8 outlines potential obligations on the States of origin of ISIS foreign fighters and affiliated women and children under general international law. Pursuant to the international human rights law instruments, various United Nations Security Council Resolutions, and the Convention against Statelessness, States of origin of the ISIS foreign fighters and affiliated women and children may be legally obliged to either repatriate their citizens, facilitate their prosecution either at home or overseas, or to at least take action that would avoid rendering such persons either stateless, subject to inhumane treatment, or a continuing terrorist threat.
Section 9 glances at the Belgian experience in dealing with repatriation and returnees.
The Conclusion summarizes each of these legal rights and obligations in turn. It reaffirms the legal 1. This Brief has been prepared by Matias Thomsen (Doctoral candidate – University of Tasmania, Faculty of Law) and Thomas Assaker (Legal Advisor – Diakonia IHL Resource Desk in Lebanon) under the supervision of Jelena Plamenac (Manager of Diakonia’s Lebanon IHL Resource Desk) .Thomsen would like to thank India Beecroft, Felix Craig, Matthew Etherington, and Salmaan Shah of the International Justice Initiative (IJI) for their research assistance. The IJI is a public interest initiative of the University of Tasmania’s Faculty of Law: http://www.utas.edu.au/law/leftquick-links/internationaljustice-initiative. status of ISIS foreign fighters and ISIS-affiliated women and children as persons hors de combat by reason of detention and the protection to which they are entitled under IHL. This Brief shall be of use to the warring parties to the NIAC in North-East Syria, lawyers, judges, advisors, and humanitarian actors in introducing the applicable legal framework to the detention, treatments, prosecution, and transfer of ISIS foreign fighters and affiliated women and children detained by the SDF in Syria.
The present legal analysis is based on factual information gathered from open sources, including reports of international organizations, international and local non-governmental organizations, and news outlets.