The dilemma of captured Daesh fighters and abandoned children? Who is responsible?

Donald Rumsfeld, the notorious former United States defence secretary, in describing his endless war on terror, once said: “We need a new vocabulary.” How would Rumsfeld, an advocate of the vague and sometimes absurd term “enemy combatant”, describe Daesh fighters, women and children trapped in legal limbo in Syria, Iraq and Libya? Known for his cruelty and trickery Rumsfeld might help western leaders, including his fellow Republican, President Donald Trump, with a new term to describe these women and children being held in miserable conditions in Al-Hawl refugee camp controlled, mainly, by US-backed Kurdish militia. Foreign fighters from all over the world number in thousands.

Western countries, including the US, United Kingdom and France have not been very helpful. At first they vowed not to take back any of their citizens who joined the Caliphate during its heydays. They even resorted to severe measures including revoking citizenships and suspending any rights such individuals and their families are entitled to under their respective national laws. Shamima Begum, a British teenager who fled to Syria and married Yago Riedijk, a Dutch Daesh fighter, ended up in the Al-Hawl refugee camp and quickly the UK government revoked her citizenship forcing her family into a complicated legal process of appeal against the government’s decision with little hope of ending her tragedy anytime soon. Yet the British authorities found it easier to provide her with legal aid to challenge the British Home Office’s decision to strip her of her citizenship. This seemingly contradictory policy only highlights the lack of commitment by the coalition countries to provide legal context to their war against the now defeated Caliphate.

READ: Syria’s challenges in the post-Daesh era

This mirrors the situation Donald Rumsfeld created for the US while fighting his war on terror first in Afghanistan and then all over the globe. His flawed definition of “enemy combatant” meant those captured, including in illegal secret operations by the CIA, ended up in the notorious Guantanamo Bay prison with almost no legal rights whatsoever. At the end of the day dozens of “enemy combatants” and innocent people spent years incarcerated and denied any due legal process earning the US harsh criticism from international rights groups. Even former president Barack Obama, who vowed to close Guantanamo only to fail to disentangle Rumsfeld’s loop.

Under different national laws many western countries gave themselves the right to revoke the citizenships of their nationals on different grounds including “supporting terrorism”. But they failed to provide any alternatives to such people literally leaving them stateless.

France also has a law enabling the government to strip anyone, under certain circumstances, of their nationality. Yet this law is only applicable to individuals with dual nationalities particularly from North African countries. Critics of the law describe it as discriminatory since it only applies to French nationals of, mainly, migratory descent. Yet unlike the UK, France did not offer legal aid to any of its four citizens who were handed death sentences in Iraq last May.

When it comes to children of Daesh fighters the situation is more bleak and legally thornier requiring much more bureaucratic and legal wrangling. Since the war against Daesh is being executed outside the available international legal entities like the International Criminal Court (ICC) it is very difficult to figure out what is legal and what is not. There is no enforceable legal provisions that make states responsible for their citizens in times of war and peace alike. A MEMO article, published 15 August 2018, highlights the predicament of little children being cared for in children’s centres in Libya. They are children of dead of imprisoned Daesh fighters. Most of the children are from Egypt and Tunisia whose governments have been unwilling to take them back or too slow to repatriate these little innocent kids.

READ: Palestinian children’s right to education denied in Israel prisons 

Since the collapse of the Caliphate’s last enclave in Baghouz, northern Syria, the captured fighters and their families have been rounded up in miserable refugee camps controlled by US-backed Syrian Democratic Forces (SDF) further complicating their destiny. The SDF is not a country with legal systems of its own to furnish due legal process for those terrorists and their families. The opposition group, also, lacks the resources to care for the thousands of people it holds in the long run.

SDF has repeatedly appealed for help from the international community, particularly western governments, to end those people’s dilemma but to no avail. The easiest way to help end the awful situation in northern Syria is for each country to take back its citizens and deal with them in accordance with its own national law. Since the United Nations (UN) was not the optimal conduit for the coalition to fight the Caliphate then its broadly accepted legal structures, like the ICC, are automatically sidelined. At the same time the UN was not used, as a legal vehicle to create special international tribunals to deal with Daesh fighters, like the one for former Yugoslavia, further isolating the international body.

Unfortunately many countries have refused to repatriate their citizens. Not even to find out if they are innocent or guilty of killings or of joining the Caliphate.

The only option left is national laws within existing internal laws that govern war and peace otherwise the world risks a repetition of Donald Rumsfeld’s inhumane policy of punishing everyone first then considering their alleged misdeeds.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.