Prosecuting The Islamic State: The Case For A Hybrid Tribunal – Analysis

By Bashir Ali Abbas*

Following the defeat of the so-called Islamic State (IS) at Baghuz, Syria, thousands of IS fighters are now in custody, leading to an international debate on whether they should face local or international prosecution. The IS has been accused of torture, slavery, rape, attacks on people, hors de combat and, inter alia, the use of human shields, all of which constitute war crimes and ‘crimes against humanity’. With both international and domestic trials facing multiple impediments, prosecution of the captured jihadists in a ‘hybrid’ tribunal appears as a feasible recourse.

International or Local Trials?

The Syrian Democratic Forces (SDF)—in de facto control of North Eastern Syria—have cited the lack of required legal infrastructure and resources to prosecute captive IS fighters and have called for an international tribunal, the urgency of which is fuelled by the Turkish threat to the SDF.

French efforts to prosecute IS fighters in Iraqi courts notwithstanding, European countries in general have refused to let jihadists of European origin return to their home countries—contrary to what the US has been advocating for—thus closing the door to trials in their courts. While Sweden has called for an international tribunal, Syria itself has rejected any international judicial mechanism that “conflicts” with their national judiciary’s powers.

Non-Viability of International Trials

Traditionally, such disputes are referred to supranational courts. However, in this case, this avenue faces roadblocks. The International Court of Justice does not have jurisdiction to try war crimes and the International Criminal Court’s jurisdiction depends on either states being parties to the Rome Statute (which Syria and Iraq are not) or the UN Security Council (UNSC) referring the case to the Court (which was blocked by Russian and Chinese vetoes). Additionally, international courts are criticised for being removed from the cultural and legal expectations of the region in which the crimes were committed and because they impede victims from being able to participate in and observe the trials.

This has been a fundamental criticism of specially established tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR). For transitional justice to be effective, the region’s cultures and practices have to be retained and reflected in any trial. However, due to international involvement in the fight against IS and affiliated jihadists, international supervision of their prosecution, is necessary.

Non-Viability of Domestic Trials

Prosecution in domestic courts too faces immense challenges. The prospect of trying the IS in Iraq for crimes committed in Syria is hindered by Iraqi law which prohibits prosecution for extraterritorial crimes without the Minister of Justice’s consent. Even for crimes committed in Iraq, the trials have been closely observed and heavily criticised by Humans Rights Watch for applying “deeply flawed” laws, using torture to incite confessions and deaths in custody.

The insistence on capital punishment has also fettered European support for Iraqi trials. The 2017 Iraqi assurance to try jihadists for crimes against Yazidis, under a Judicial Investigation Board, also remains largely unfulfilled. Trials in Northeastern Syria, in makeshift courts established by the SDF, have neither any defence lawyers nor any mechanism to appeal against a decision, and the courts themselves lack international recognition.

Furthermore, with a political solution being sought in Syria, any purely local judicial process runs the risk of being politically influenced.

Prospects for a Hybrid Tribunal

This raises the prospects for a hybrid tribunal—a court which reconciles municipal and international law and resembles an international court set up within the domestic judicial apparatus. In this instance, the area of the commission of crimes calls for a domestic trial, but the foreign origin of many of the accused—approximated at 49 different nationalities—and the commission of grave breaches of international law call for an international trial.

A potential hybrid court for Syria and Iraq could follow a number of established precedents set by the erstwhile tribunals of Iraq, Kosovo, Sierra Leone and East Timor. The Iraqi High Tribunal (IHT) statute covered grave breaches of established principles of international law and included crimes under the Iraqi Criminal Code. Drafted together by Iraqi lawyers and coalition jurists for the prosecution of Saddam Hussein, it ensured prosecution for “crimes against humanity” and “war crimes” while retaining the region’s laws.

The IHT also prosecuted for extraterritorial crimes, circumventing the obstacle posed by purely domestic law. In Kosovo, domestic law was reformed to accord with ‘international standards’ and the Sierra Leone Special Court ensured a mix of domestic and international judges in both the trials and appellate chambers, similar to the East Timorese setup. Such mixed benches—if well balanced—better shield judges from political influence, compared to purely domestic or international setups. It also counters the criticism faced by the hybrid Cambodia Tribunal where judges were “perceived as serving the interests of political parties” as there were more local judges on the bench.

Fundamentally, such a proposal would have a better chance of breaking the UNSC veto deadlock than any other, as it would complement the domestic judicial system rather than “conflict” with it, while prosecuting IS fighters, which too ensures that Syrian and Iraqi sovereignty is respected and upheld. Due to the crux of the dispute having always remained in Syria and Iraq, the regional location of such a tribunal would not only ensure that victims are able to participate in and observe the proceedings but would also reduce logistical obstacles.

Hybrid courts also enable reduced operational costs than international courts. For instance, the operational cost of the Sierra Leone Court was much lower than those of the ICTY and ICTR. With the pressing need to divert resources towards reconstruction efforts in the region, this tips the scale largely in favour of a hybrid court.

Thus, with the region gradually moving from a state of conflict to post-conflict, and with the need for efficient transitional justice, the establishment of a hybrid court is an option that must be explored as it faces lesser hindrances compared to other mechanisms and suits the situation optimally.

*Bashir Ali Abbas is a Research Intern at the Centre for Internal and Regional Security at IPCS.