The US still has a lot more to do to actually hold ISIS accountable

  • The extradition of two ISIS notorious members to the US on terrorism charges this week is a poignant reminder of the dark and lingering legacy of the so-called caliphate.
  • But the case underscores how the idea of international justice has been hollowed out, with countries obstructing or ignoring its practice based on their own interests, writes Candace Rondeaux.
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The extradition to the United States this week of two of the Islamic State's most notorious members on terrorism charges was a poignant reminder of the dark and lingering legacy of the so-called caliphate.

As much as the case marks a major milestone in America's 20-year-long "global war on terror," it is also a sad testament to how much remains unresolved about the status of thousands of foreign fighters who traveled to Syria and Iraq to join the Islamic State and are now in detention in various countries, along with the women and children they brought with them.

In its own strange way, this case underscores how hollowed out the idea of international justice has become. Still, the pending prosecution in a US federal court of Alexanda Kotey and El Shafee Elsheikh is a watershed victory for human rights advocates who have long argued that the American criminal justice system was up to the task of bringing terrorists to account.

The two British men are among the four so-called Beatles, as their British ISIS cell was dubbed, implicated in the videotaped beheading of two American journalists in Syria in 2014, James Foley and Steven Sotloff, and the torture and murder of two American aid workers, Kayla Mueller and Peter Kassig.

Their extradition from Iraq, where they were being held by the US military, also gives a well-deserved boost to the long-suffering families of all four murdered American hostages. Even so, the road to their full trial is likely to be long and twisting.

News of Kotey and Elsheikh's prosecution came as Kurdish officials in northeastern Syria said this week that they plan to release thousands of women and children who were detained during the final battles with the Islamic State last year.

Humanitarian and human rights organizations have documented unsanitary and overcrowded conditions at the al-Hol displacement camp, in the desert outside the city of Hasakah, which reportedly holds about 65,000 detainees currently. About 11,000 of the women and children there have familial ties to suspected ISIS fighters, and at least 7,000 of the children are under the age of 12, according to Human Rights Watch.

The question of justice and accountability for the countless men, women and children who heeded the Islamic State's apocalyptic call remains one of the thorniest problems in international law.

Scattershot might be too charitable a way to describe the response of many of the countries whose citizens are now lingering in legal limbo, and of the international institutions mandated to deal with this problem.

Many European countries continue to refuse the repatriation of their own citizens from internment camps in Iraq and Syria because they claim there is not enough evidence to prosecute suspected ISIS fighters on terrorism charges. Britain, for its part, seems particularly erratic.

While British courts acceded this week to American calls for justice in the Kotey and Elsheikh case, last year they revoked the citizenship of Shamima Begum, a young British woman who traveled to Syria to join the Islamic State at the age of 15.

The true source of the problem is that no one can agree on the best way forward for dealing with war crimes perpetrated by all sides in Syria and Iraq. Sweden, for instance, has called for the establishment of a special international tribunal to review alleged ISIS war crimes. But Syrian civil society and American and international human rights groups rightly point out that there are multiple countries and armed contingents implicated in abuses.

The UN Security Council has largely tried to avoid dealing with the issue at all, as it is stuck in a tug of war between Russia and China on one side, and the US, France and Britain on the other.

Russia and China have done all they can to try to stop the one UN investigative body — the Independent Impartial and Independent Mechanism, better known as the IIIM — mandated to look into war crimes in Syria. Earlier this year, Russia tried to essentially defund it, after the UN General Assembly had already approved its budget last December.

As Human Rights Watch has aptly noted, authoritarian countries believe they can successfully chip away at the budgets of international tribunals and investigative bodies to avoid accountability for war crimes and other abuses.

Iran, Myanmar and North Korea all backed Russian and Chinese moves to denude the IIIM of its ability to pursue its mission on war crimes in Syria.

Myanmar has reportedly deployed similar tactics of death-by-a-thousand-budget-cuts to undermine a parallel investigative body for war crimes involving the Rohingya genocide.

But Russia and China are not alone; other countries have tried even blunter methods by simply denying the legitimacy of the mandate of investigative bodies and international courts.

As I and others have pointed out, given the Trump administration's stunning order to sanction the International Criminal Court's chief prosecutor, Fatou Bensouda, and her staff for investigating war crimes in Afghanistan, including by American forces, the US is equally guilty of undermining the application of international law in wars and other conflicts.

Trump's recent decision to pursue legal charges against anyone found to be "aiding and abetting" Bensouda and her staff may well be ruled unconstitutional.

Early this month, three well-respected human rights lawyers sued the Trump administration on grounds that his September executive order barring anyone from providing members of the ICC who are under American sanctions with "material support" violates their First Amendment right to free speech.

In connection with that lawsuit, one of the plaintiffs, Diane Marie Amann, a professor of international law at the University of Georgia School of Law, said the White House's order has also had a chilling effect on her work as a volunteer special adviser to the ICC on issues dealing with child soldiers.

The Trump administration has been pressing its European allies to make haste in dealing with the repatriation and trial of ISIS fighters, but a substantial number of those cases involve teenagers or young adults who were lured to Syria and essentially became child soldiers.

The US likely would benefit from a more measured approach to the ICC in the long run, and from a more consistent approach to the application of international humanitarian law for suspected war crimes, including terrorism.

Imagine if, instead of vilifying institutions like the ICC, the US just acceded wholesale to the idea that criminal courts and legal tribunals have a legitimate role in weighing in on transgressions of international law in active warzones and in cases of transnational terrorism.

American taxpayers might not still be paying tens of millions of dollars a year to keep accused al-Qaida terrorists in Guantanamo, out of reach of American criminal courts. The thousands of American families that have suffered in terrorist attacks on American government installations at home and abroad might have resolved untold millions in civil court claims for damages. Families of hostage victims in Syria might have more recourse in pressing for justice, too.

Who knows, US recognition of the mandate of an international tribunal might even translate into leverage over other countries that flout accepted international legal norms, like Russia, China and Myanmar.

But, alas, Trump or no Trump, there doesn't seem to be much appetite in Congress, or among most Republicans or Democrats, for that kind of thinking. Instead, it looks like there will still only be limited international justice and accountability for war crimes for the foreseeable future.

Candace Rondeaux is a senior fellow and professor of practice at the Center on the Future of War, a joint initiative of New America and Arizona State University. Her WPR column appears every Friday.

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