Turkey’s Repatriation Plan for Islamic State Prisoners Raises Questions about State Responsibility
It has become common practice for European countries to strip ISIL fighters of their citizenship in order to prevent their return. Turkey has had enough and has officially started sending captured Islamic State militants back to their countries of origin, raising difficult questions about state responsibility and risking diplomatic fallout with European allies
By: An Anonymous Columbia Law Student
After a controversial announcement about its new ISIL repatriation plan in early November, Turkey has officially started sending captured Islamic State militants back to their countries of origin. This move has caused significant uproar in the international community for multiple reasons, not least of which has to do with the complex international legal dimensions of the policy.
Indeed, Turkey’s plan raises difficult questions about state responsibility and it risks diplomatic fallout with European allies, given the fact that it has become common practice for European countries to strip ISIL fighters of their citizenship in order to prevent their return. Turkey’s Minister of Interior, Suleyman Soylu, has been adamant that militants nevertheless ought to be sent back home, stating that Turkey is “not a hotel” for foreign terrorists. But where citizenship has been nullified, it remains unclear how legal repatriation would be possible.
Turkey’s decision comes amidst a great deal of turmoil in the region. Following a decision by US President Donald Trump last month to withdraw troops from northeast Syria, Turkey launched an offensive in the region against the Kurdish-led Syrian Democratic Forces (SDF). The invasion was motivated by the Turkish government’s view that the main element of the SDF, the Kurdish People’s Protection Units (YPG), is a “terrorist group” due to its connection with outlawed Kurdish fighters.
Soylu has stated that Turkey houses nearly 1,200 foreign members of ISIL in custody, and that it has captured 287 new members during its recent invasion of northeast Syria. Turkish media sources have listed foreign ISIL prisoners as coming from France, Germany, Belgium, Holland, Sweden, Finland, Denmark, Britain, Italy and Austria. Additionally, about 90,000 men, women, and children with potential ties to ISIS are currently being held by Kurdish forces in northern Syria. Turkey’s repatriation initiative has prompted a great deal of concern over the fate of these prisoners, and even Turkish allies have warned that it could hinder the ultimate fight against ISIS, opening the door for its resurgence.
European countries have insisted that Islamic State prisoners must be tried wherever they are caught. Indeed, French Defense Minister Florence Parly has stated that France’s longstanding position on the issue of repatriation remains unchanged: “those who committed crimes in [Syria] must be prosecuted in that country.” Soylu criticizes this approach as an attempt by European states to create “a new form of international law.”
This characterization may not be entirely correct. Indeed, the practice of revoking citizenship is an old phenomenon that states have used to achieve different objectives, from the more social (such as the US revoking a woman’s citizenship upon marriage to a foreign man in the early 1900s) to the more insidious (such as the Vichy regime’s denaturalization of Jews during World War II).
Despite its historical roots, however, the practice remains very controversial. The Universal Declaration of Human Rights lists nationality as a right, and forbids states from arbitrarily depriving someone of it. Additionally, a 1961 UN treaty—the Convention on the Reduction of Statelessness—prohibits the withdrawal of citizenship based on factors such as race, religion or politics, and also bans it when it would result in leaving a person stateless. The Convention provides exemptions for states whose own national laws, at the time of signature, furnished the right to render someone stateless. Reliance on this exemption does not appear to be common, however. For example, although Britain enjoys the exemption, it has not used it since 1973.
What Soylu is pointing to is what appears to be a more systematic use of citizenship revocation as a tool to achieve a new objective—namely, to fight terrorism. There has been debate as to the merits of this strategy, with some arguing that it could harm global security to leave terrorists floating abroad, rather than imprisoning them domestically. Furthermore, it is clear how one country effectively forcing other countries to manage its exiles would cause diplomatic damage. Despite these drawbacks, European states have increasingly pursued revocation as a way to fight ISIS, and Turkey has had enough.
US President Donald Trump has been outspoken in support of the repatriation policy, and has criticized Europe for taking advantage of US involvement and not pulling its weight when it comes to fighting ISIS. He recently stated he would “drop them [ISIS fighters] right on your border and you can have fun capturing them again.”
As it stands, a significant proportion of the captured militants are legally stateless. As such, no country is technically responsible for them, nor required to accept them. From Turkey’s standpoint, it should not have to bear the brunt of this statelessness. After all, the fact that the captured militants in question and their families have been stripped of their former citizenship certainly does not render them Turkish citizens. So, Soylu asks, why should Turkey have to suffer the consequences? “What shall I do with your terrorist?”
Turkey has not articulated any precise methods for implementing the policy. Some countries request detailed passenger lists in advance for both military and commercial aircrafts entering their airspace; these could simply refuse aircraft containing the prisoners.
Europe has exhibited strong reluctance to accept these former citizens. A report by the International Centre for Counter-Terrorism at the Hague calls the revoking of citizenship a problematic with respect to international law, pointing to various human rights treaties as well as UN Security Council Resolutions 2178 and 2396—from 2014 and 2017, respectively—that impose a legal obligation on states “to bring terrorists to justice and to develop and implement appropriate prosecution, rehabilitation, and reintegration strategies for returning foreign terrorist fighters.”
Nevertheless, there are some clear negatives to repatriating the fighters from Europe’s perspective. First, it would be an extremely difficult political move vis-à-vis the countries’ people to bring back hundreds of suspected fighters onto domestic soil. Second, the legal systems of several European countries do not include strong federal criminal statutes relating to terrorism. By contrast, in the United States, individuals can be prosecuted for providing material support for terrorism. And where European countries do allow prosecution, obtaining the material evidence necessary to secure a conviction can be difficult or impossible under the circumstances. Another concern is the risk of in-prison radicalization—that ISIS prisoners will propagate their ideas and recruit members from the prison population.
The United Nations and other international organizations are working with states to try and address the complicated issues attending the repatriation of foreign fighters, with the Security Council issuing a report recognizing the significance of the issue in February 2019. The UN Office of Counter-Terrorism has emphasized that despite the significant difficulties that attend repatriating ISIS fighters and their relatives, countries bear primary responsibility for their nationals; it has also urged them to avoid measures leading to statelessness. Additionally, the Executive Director of the Counter-Terrorism Committee Executive Directorate (CTED) briefed Security Council members on the repatriation issue, highlighting significant knowledge gaps that remain with respect to “the number and profiles of women who travelled to and returned from ISIL-held territory.” In addition, several countries such as France, the Netherlands, and Belgium have been reconsidering their policies on repatriation and rehabilitation since the spring. These efforts do not appear to have yielded any concrete progress thus far.
The State Department hosted a ministerial meeting of the Global Coalition to Defeat ISIS—an organization of 81 nations and multinational institutions—on November 14. The Coalition released a communiqué the following day, in which they touched upon the repatriation issue: “There remain a considerable number of Foreign Terrorist Fighters and their families who are kept in custody in Syria and Iraq. We are committed to establishing or supporting existing effective accountability mechanisms in close coordination with the countries of origin for Foreign Terrorist Fighters.”
Though the issue is certainly a focus of the international community, it remains uncertain how the process will unfold as Turkey continues its deportations, and what the practical, legal, and diplomatic implications of the new policy will be.