Should Isis militants be returned to the UK?

The UK and other European nations that refuse to repatriate homegrown Islamic State fighters risk further destabilising the Middle East, the US defence secretary has warned.

During a visit to London on Friday, Mark Esper claimed there were “around 2,000 foreign fighters, many from Europe” currently detained in northeastern Syria - and that Kurdish Syrian Democratic Forces do not have the resources to continue holding them.

“It’s an untenable situation,” Esper said. “How long can they be guarded in these camps by others? You’re talking about several thousand fighters in total, there are over 2,000 foreign fighters, many of whom came from Europe, that is the situation,” The Independent reports.

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“We are asking a lot of the folks that are holding them, the Kurds,” Esper added.

The Guardian says that “around 250 to 300 foreign fighters who are still in Syria are estimated to have come from the UK”, but the Home Office has appeared increasingly unwilling to repatriate British-born militants who defected to Isis, having gone so far as to strip two UK nationals of their citizenship.

The paper adds that the subject of the repatriation of Isis fighters is a “running sore between the United States, the UK and other European countries”, pointing to an unusual statement in August from US President Donald Trump. He threatened to release Isis fighters “into the countries from which they came. Which is Germany and France and other places.”

The UK Government has yet to respond to Esper’s warning, but has developed a reputation in recent years for taking a hard stance against defectors to Syria.

Why does the UK not want to repatriate Isis fighters?

While a number of European countries have agreed to take back captured Isis fighters, the UK has been among the most reluctant to do so.

EuroNews suggests that this reluctance “may stem from the worry that much of the evidence against any returning fighters may not stand up in court”, potentially allowing jihadis to walk free in the UK.

Shiraz Maher, the director of the International Centre for the Study of Radicalisation, told the news organisation: “For all kinds of legal reasons, much of what is called ‘battlefield evidence’ in this case would not be admissible in court, either falling short on evidential grounds or because of the manner in which it was obtained.

“We do not, for example, use intercept evidence in UK courts,” Maher added. “The result is that some repatriated British fighters could simply walk free once they return.”

Alex Younger, head of MI6, said in February that returnees were also “likely to have acquired the skills and connections that make them potentially very dangerous”.

The Irish Times notes that another worry is “possible public anger with both returnees and the authorities for allowing them to come back”, particularly if they have “shown no remorse”.

Why does the US want the UK to bring them home?

The US believes that abandoning the fighters in Syria and Iraq will have a destabilising effect on a region Washington is desperate to bring under control.

For a start, the Kurdish-controlled Syrian Democratic Forces do not have sufficient resources to keep them detained. Abdel Karim Omar, a Kurdish foreign affairs official, told The Independent earlier this year that processing and holding thousands of captured Isis fighters is a “big burden”.

“They belong to 49 countries, and they don’t have documents and passports,” he added. “We cannot bear this responsibility alone. We ask the international community and the countries to which Isis members belong to take up its moral and legal duty and repatriate their citizens back to their countries.”

Concerns have also been raised by the US that the “conditions in which foreign fighters are held could radicalise them further”, the Guardian says, with “some officials raising the prospect there could be a repeat of what happened in Iraq a decade ago”, when a number of the men imprisoned at detention facilities in Iraq went on to help launch Isis.

What do experts say?

On top of concerns over the risk of further radicalisation, experts on international law have also warned that neither Iraq nor Syria have the legal infrastructure with which prosecutors could avoid human rights violations.

According to Dr Katherine Brown, a lecturer in Islamic Studies at the University of Birmingham, the Iraqi constitution contains important safeguards for prisoners, including “the right not to be subject to arbitrary detention, the right to a fair trial, and the right not to be subjected to torture or degrading treatment”.

However, Brown notes that charities and NGOs have reported a “consistent failure” by Iraqi authorities to uphold its international obligations, particularly with regard to the death penalty. In 2017, she adds, the UK stated that it will “oppose the death penalty in all circumstances” and aims to “do everything we can to prevent the execution of any British national anywhere in the world”.

Can anyone else take charge?

No. Only the UK can decide whether or not to repatriate its citizens in Syria and Iraq in order to guarantee them a fair trial.

In 2015, the International Criminal Court was called upon to step in and help with legal proceedings, but chief prosecutor Fatou Bensouda dismissed the request in a statement: “The atrocities allegedly committed by ISIS undoubtedly constitute serious crimes of concern to the international community and threaten the peace, security and well-being of the region, and the world,” she wrote. “However, Syria and Iraq are not Parties to the Rome Statute, the founding treaty of the International Criminal Court.

“Therefore, the Court has no territorial jurisdiction over crimes committed on their soil,” she added.

Are European countries repatriating their citizens?

The Republic of North Macedonia became the first European country to conduct a significant repatriation, taking back and prosecuting seven fighters in August 2018.

In January, France said it was considering the repatriation of 130 men and women to be tried, but a month later no progress appeared to have been made.

Germany, which accounts for many foreign fighters, is said to be watching the French case closely.

“The federal government is examining all options for a possible return of German nationals,” the German Foreign Ministry said in a statement in November.