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What international law says about the repatriation of Daesh members

  • Alican Tekingunduz
  • 14 Nov 2019

Should European countries be taking back their citizens who are Daesh members?

In this May 27, 2018 photo, death row prisoner Ahmed Nijm speaks with The Associated Press at the Eagles' Cell counterterrorism intelligence office in Baghdad. An investigating officer who knew of Nijm’s case said a witness identified Nijm as a Daesh terrorist. ( AP )

After Operation Peace Spring, Turkey says it has captured 287 Daesh terrorists in northeast Syria since the Operation Peace Spring and is holding hundreds of suspected Daesh militants. 

Turkey wants to repatriate the terrorists back to their countries of origin, however, European Union countries lack a coherent policy for the repatriation of Daesh members.

EU countries don’t want to take their citizens back citing the threat that they may pose in the future.

Turkey’s Interior Minister Suleyman Soylu said “Turkey is not a hotel” for Daesh members, earlier this month.

Some countries, such as the UK, Germany and Denmark, stripped citizenship from Daesh members, effectively washing their hands of any responsibility.

The stripping of citizenship raises questions about its basis in international law and the EU’s positioning on human rights.

These citizens are responsible for the myriad crimes committed against ordinary Iraqis and Syrians.

What International law says

Most EU states adopted the United Nations Security Council resolution 2178 on foreign fighters in 2014 which recalls resolution 1373 from 2001 that says: “States shall ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense:
(a) their nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training.”

Assistant Professor on International Law Kutluhan Bozkurt from Yeditepe University spoke to TRT World regarding the legal framework of the repatriation of Daesh members to Europe.

Bozkurt says countries do not have a right to refuse the repatriation of Daesh members who are their citizens. He adds that Turkey has the right to send these people to their own country for prosecution.

When it comes to the removal of citizenship for Daesh members, one major loophole in international law is the lack of a central sanction body, Bozkurt says.

“Sovereign states can make such arrangements (revoking citizenship) because their national interests come before international law, but it is not possible to say that such arrangements are in line with universal norms.”

Prosecuting Daesh members with EU citizenship in Iraq or Syria contradicts the European Convention on Human Rights (ECHR) because of the potential to be sentenced to death, which is forbidden in Europe. 

Bozkurt also said that it is hard to set an international tribunal in countries like Iraq and Syria as it would be hard to gather a broad consensus from a large number of states to make it possible. Even if that is done, it would take a long time.

Dr Enver Arikoglu who is a lecturer in International Law at Istanbul University said recent German and Danish decisions to remove citizenship from their own nationals cannot be applied retrospectively.

Arikoglu underlined, that the citizenship of these fighters should be applied keeping the date of the crime in mind.

“They will be tried according to the law and the situation at the time of the crime, where the crime starts and continues as a member of the terrorist organization in the country where they came from.”

Arikoglu suggests that the crimes of many Daesh members actually began at home, often they were already involved in clandestine activity. If they had been discovered it may have resulted in them being prosecuted. 

When they went to Syria and Iraq they may well have committed further crimes but it was certainly not the beginning.

Approximately 5,000 EU residents have joined Daesh in Syria and Iraq and the report states that about 30 percent of them have already returned to their home countries.

There is no international agreement for the prosecution of those captured in Turkey and northern Syria. 

According to a recent study by Brussels based Egmont Institute, between 1,110-1,200 Europeans, including 700-750 children, are detained in Syria and Iraq.

A European Council on Foreign Relations (ECFR) report suggests that the EU nations follow ‘externalisation’ policy against migrants by stopping them before they can enter their territories.

But, in the case of Daesh members, the EU seems to be applying the same policy against their own citizens. 

The fear that Daesh members can radicalise other people drives this EU policy.

UK defence secretary Ben Wallace described these fighters as ‘diehards and dangerous.’

Revoking citizenship, keeping them in Syria and transferring them to Iraq is the strategy many European nations seem to be employing.

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