In December of 2017, ISIS had lost almost 95% of its territory in Iraq and Syria. This began, what was considered to be, the fall of ISIS. One of the significant issues that sparked a huge debate, was the repartition of European foreign fighters back to their home country and subsequently how to try them. An estimate of around 3000-5000 EU citizens have fled to Syria and Iraq. The EU became aware of the alarming number of citizens leaving for Syria and Iraq in 2013. It caused the EU and all its institutions to adopt new measures to check for suspicious travel, prevention of radicalisation, investigation, the returnees, and more.
In 2015, the foreign fighters issue became a top priority for ‘The Global Strategy for the European Union's Foreign and Security Policy’. One of the main issues was that the EU could not define the term ‘foreign fighters’. More importantly, the distribution of foreign fighters in the EU was incredibly dispersed. The majority of foreign fighters came from Belgium, France, Germany, and the UK. Therefore this was clearly a more prominent issue in Western Europe. No Eastern European countries reported more than 50 foreign fighters. Therefore, the level of threat was not uniform across Europe. In addition, when ISIS started carrying out attacks in Europe, most of them occurred in Western Europe. All of these factors caused a very asymmetrical approach to the issue. Consequently, when the fall of ISIS started to occur, and repatriation requests transpired, many EU countries were in limbo about what they should do.
As stated, the fall of ISIS occurred around the end of 2017. Many foreign fighters requested to be repatriated back to their European country. These requests sparked a debate amongst mainly Western European countries on what they should do. One of the most prolific cases was that of Shamima Begum, who lost her British citizenship after the British government discovered that she had fled to Syria and joined ISIS. The deprivation of citizenship is legal in 19 EU countries and is sometimes considered a counter-terrorism measure. However, an abundance of research has demonstrated that this is not an effective measure; it is often considered to push those individuals even closer to terrorism.
This debate consists of two main viewpoints. On the one hand, a lot of EU countries have been against bringing back foreign fighters. They claim that these foreign fighters willingly became terrorists. Therefore the governments are protecting their country by not letting them return. Also, the EU has no official legislation concerning the repatriation of foreign fighters. All member states must agree on the terms of repatriation. This is primarily due to the Schengen agreement which states that access to one EU country means access to all. However, states seem more disposed to the idea of bringing back children, and possibly women, but this idea is not widespread.
On the other side of the debate, lawyers and many other international legal actors have claimed that it is the states' duty to bring back its citizens. The UN High Commissioner for Refugees stated that states should at least try to repatriate children and orphans. This is required under Article 3 of the Convention of the Rights of the Child. It states that a child's best interests should be the primary consideration. This can be determined through 'best interests of the child assessment' (“BIA”). A critical factor that has to be considered is that a child should not be punished because of their parents' actions. International actors often use this argument. The children who went with their parents to Syria and Iraq did not have a choice; they were put into perilous situations by their parents. There has been much movement to return children back to their country of origin. Due to the international advocacy of at least repatriating children, some EU countries have set an age limit for children.
Controversies on both sides
Despite the possible international requirements to repatriate and care for their citizens, both sides present severe and controversial issues. EU countries that do not want to repatriate their citizens face the issue that this can possibly push more people into becoming terrorists. Additionally, many of these ISIS foreign fighters are being tried in Iraqi courts, where even those who committed minor offences are getting the death penalty. Although EU countries have advocated for abolishing the death penalty, this is not guaranteed to save their lives. The Iraqi judicial system has long been criticised for not abiding by human rights standards and a fair and equal trial is often unlikely for these foreign fighters. Thomas Renard has claimed that some trials only last 15 minutes, a lot of people do not receive any legal representation, and at times children have even been tried. In addition, Iraq does not have the universal jurisdiction to try a lot of these foreign fighters. To activate universal jurisdiction, crimes like sex slavery and massacre first need to be recognised under national law; however this is not the case for Iraq. Many have argued that because of these arbitrary rulings, the appalling detention centres, and the fact that they are EU citizens, that this should call for EU governments to bring home the foreign fighters.
However, there are also many issues surrounding bringing them back inside the EU. Many lawyers and international activists have stated that they can be tried in a national EU court; however, this is not easy. A lot of activities of ISIS members are unknown, especially if they are not high profile members. There is a current movement to make it illegal to head to a terrorist occupied zone to join the organisation; however, this is not yet in place. Importantly, for ISIS foreign fighters the uncertainty remains if the ‘ ex post facto’ law can be brought into play. For example, someone like Shamima Begum, according to current laws, would be tough to charge. Most of the jurisprudence relates to people who were convicted of plotting or committing an actual crime. Begum claims that she was essentially just a concubine. In addition, the EU would have to create many deradicalisation programmes and prisons to avoid a rise of radicalisation.
The issue at hand is an increasingly complex one and does not have an easy solution. Both sides come with many issues. To solve this issue, some have advertised for an ad-hoc hybrid court. However, this would include thousands and thousands of people, with minimal actual proof. There are still over 1000 foreign fighters in Syria, Turkey and Iraq. Due to SARS-COV-2, the issue has not been as pressing as before, however it is still an important issue for many EU member states.