Why Won't Europe Take Back ISIS Fighters from Syria for Trial?

Samir Bougana, a 24-year-old Italian, was one of thousands of western European recruits who traveled to fight alongside the Islamic State after 2014. But he differs from all of them in one key respect: His own government is taking him home to stand trial.

Bougana was captured and held for almost a year by Kurdish forces in Syria before Italy took custody of him, in a decision the State Department praised and urged other western European countries to emulate. But so far, none of them has taken one of its citizens back to face a terrorism trial for joining ISIS.

Some 2,000 suspected fighters from dozens of countries, including hundreds from Europe, languish in Kurdish detention in northeastern Syria, and the Trump administration has been pushing its democratic allies to bring them home to face justice. Although Donald Trump himself vowed during his campaign to use the prison at Guantánamo Bay—which remains open but hasn’t taken in any new prisoners since 2008—and “load it up with some bad dudes,” his administration’s actual policy has been far more humane and measured.

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Prisoner repatriation is a rare issue wherein the administration’s efforts largely align with the recommendations of legal scholars and human-rights groups. Many have argued that, in democracies at least, there is no more legitimate, efficient, and secure way to handle terrorism suspects than to use the domestic criminal-justice system. They have condemned such practices as stripping citizenship, which the U.K. did in the case of the 19-year-old ISIS bride Shamima Begum; or allowing their nationals to stand trial in Iraq, which has a documented history of prisoner abuse and unfair trials, as France has done with several of its citizens.

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The irony is that some western European countries, whose representatives were appalled by America’s indefinite detention of terrorism suspects at Guantánamo Bay after September 11, are now by default accepting a sprawling Guantánamo in the desert.

“Europeans seem to be fine with letting their own citizens sit there,” a senior State Department official, who requested anonymity to discuss the issue, told me. This official said that the U.S. was working to identify its own citizens in the custody of America’s local Kurdish allies—the Syrian Democratic Forces, or SDF—and has repatriated four so far for trial. (One dual Saudi American citizen the U.S. had suspected of joining ISIS, but never brought to trial, was freed in Bahrain last year; in another case, the State Department controversially argued that an accused ISIS propagandist, Hoda Muthana, was not actually a citizen despite being born in Alabama.) But thousands of other foreign fighters—not even counting Iraqis and Syrians—are in makeshift prisons northeastern Syria.

Among democratic countries, which arguably have the best means to bring them to justice and hold them securely, there is very little interest in bringing them home to face prosecution—or even in bringing home the wives and children of ISIS fighters, who are being held separately in squalid detention centers.

A further irony is that authoritarian Central Asian countries, such as Kazakhstan, have been leading the way on repatriating their citizens from Iraq and Syria—especially women and children—and casting their efforts in humanitarian terms, Letta Tayler, a senior researcher in terrorism and counterterrorism at Human Rights Watch, told me. “Western Europe is hiding its head in the sand when it should be taking care of its citizens,” said Tayler, who recently visited separate camps in northeastern Syria, where the families of suspected ISIS members are being held in conditions she described as squalid and horrifying. “If Kazakhstan can repatriate by the hundreds, surely western Europe, with far greater resources and far fewer suspects and family members … can do the same.” (Tayler has written that France, for example, has brought back 17 children—but has left at least 400 people, including children, behind.)

Read: He was branded the ‘American Taliban.’ Now he’s getting out of jail.

In a rare moment of praise for a post-Soviet dictatorship, Fionnuala Ní Aoláin, the United Nations special rapporteur on the promotion and protection of human rights and fundamental freedoms, said the country was showing “much needed leadership on the critical global issue.”

There are of course concerns that, public messaging aside, authorities in dictatorships like Kazakhstan may themselves abuse prisoners. Ní Aoláin highlighted the country’s use of domestic-counterterrorism laws against religious minorities and political dissenters. Tayler says Human Rights Watch has been pushing for transparency about what happens to prisoners in custody. But the broader significance of policies like Kazakhstan’s, she says, is that they expose the weakness of the western European argument that it’s too difficult or dangerous to take such suspects back.

So far, Washington’s pleas are being mostly ignored. For instance, in May, an Iraqi court tried seven French suspects, and handed them the death penalty after four days of hearings. Though France opposes the death penalty and had told the Iraqis so, French Foreign Minister Jean-Yves Le Drian said recently: “Those French nationals tried in Iraq for belonging to [ISIS] left their country to join the ranks of a terrorist organization which, among other things, has killed and tortured Iraqis. It’s logical that they should be tried where they committed their crimes and where justice claims jurisdiction.”

A U.K. official, who also requested anonymity to discuss the issue, wrote in an email: “We’re continuing to explore justice mechanisms in the region and of course it’s up to every country to decide what the best course of action is regarding foreign fighters in line with their national security priorities.”

From the administration’s perspective, the best course of action is already clear: Unless prisoners would be tortured in their home countries, they should be sent home to face trial. The United Nations Office of the High Commissioner of Human Rights has embraced a similar position, declaring that states have responsibilities toward their own nationals—and that foreign family members in particular should be repatriated unless they are to be prosecuted under international standards.

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Trump himself may not have humanitarian concerns in mind when he presses Europe. He has not given the issue anywhere near the public attention that, say, Barack Obama did to closing Guantánamo. That was a much less complicated project involving far fewer people from far fewer countries, plus it enjoyed far more high-level attention from the U.S. Yet that effort remains unfinished a decade after Obama vowed to close the prison—which still holds some 40 people. Trump did in February call on Europeans to take their citizens back for trial, warning darkly on Twitter that the U.S. “does not want to watch as these ISIS fighters permeate Europe, which is where they are expected to go.” Rather, he pointed to how much the United States had done and spent to fight ISIS, and made clear his preference to leave once the fight was over. This spring, he again accused the Europeans on Twitter of not doing enough to take back their citizens following the reclamation of ISIS territory.

In the meantime, the world’s attention is flagging. Summer holidays are approaching in Europe; in northeastern Syria, Tayler points out, the season also means triple-digit temperatures where prisoners—and, at separate camps, their family members—languish in poor conditions. The Islamic State was America’s top national-security priority for years; now that the group has lost its territory, it’s hard to focus on what’s happening in its former lands. Besides, it’s always easier to draw attention to a threat than to what looks like a humanitarian problem.

There’s also a limit to how much the Trump administration itself is willing to focus on the issue, given its other priorities. “If this was truly a Trump administration priority, then the signals that were coming out didn’t demonstrate that to our partners,” Elizabeth Dent, a nonresident scholar at the Middle East Institute who previously served as a special assistant to the special presidential envoy to the global coalition to defeat ISIS, told me. And it’s difficult to predict the outcome, given the seemingly ever-shifting policy on the U.S. presence in Syria. If Bashar al-Assad’s forces attempt to retake the territory held by America’s Kurdish partners, for example, “this could go very badly,” Dent said—not least because it would stretch the Syrian regime even more thinly to regain control of more than a third of the country and take custody of thousands of detained fighters and their families.

And it may not stay a humanitarian problem. The Islamic State’s predecessor, al-Qaeda in Iraq, built itself in part through breaking fighters out of prison; there are security problems in SDF prisons, and reports of attempted prison breaks. “My concern at this point is if there is a prison break, we will be kicking ourselves. The Europeans will be kicking themselves,” said the senior State Department official. “If there’s a prison break, these guys end up undetected on [Europe’s] borders.”