The Syrian Kurds' plan to try suspected ISIS members is not viable

The Kurdish-led administration in north-east Syria has announced it will begin trying the thousands of foreign suspected ISIS members who have been languishing in its prisons and camps for several years. The announcement has drawn alarm from many western diplomats, not in the least because the administration’s territory is not a recognised state, and therefore it has no legal jurisdiction to conduct such trials. It is not the first time Kurdish administrators have made such threats. But they are understandably frustrated about countries’ persistent unwillingness to repatriate their citizens from its jails, and the international community’s seeming inability to come up with another solution, such as an international tribunal. There would be little need for an international tribunal if western governments would simply take responsibility for their citizens, repatriate them and try them at home. A common argument in western security circles is that repatriation will be an extremely expensive exercise in pursuing justice without actually achieving it. Domestic courts would be greatly challenged in gathering and consolidating enough evidence to put suspects behind bars, and allowing them to walk free would necessitate monitoring them round-the-clock, potentially for the rest of their lives. Some countries have, indeed, repatriated fighters without successfully prosecuting them. An international tribunal of the kind the world has seen previously for Rwanda , former Yugoslavia and Cambodia would not solve everything. It would still likely result in many ISIS fighters receiving light sentences or going free – the number of suspects in custody is enormous by international tribunal standards. It is also difficult to see any tribunal created that focuses solely on ISIS fighters getting widespread international support without addressing alleged crimes committed by the Syrian government and other parties to the conflict as well. This makes such a project unlikely to get off the ground in the first place. Tribunals are normally created with the consent of either the state where the crimes occurred or the UN Security Council. The Syrian government is unlikely to agree, not only because it wants to avoid any legal exposure but also because it would probably insist that its courts should exercise sole jurisdiction for all crimes committed on Syrian soil. And Russia, a close ally of Syria, is likely to veto any proposal pursued through the Security Council. The only other avenue that has emerged in practice is the idea of domestic trials in Iraq. Such trials have already taken place, but they have been so problematic in their execution (many have lasted no longer than 15 minutes) that few now consider them to be a viable tool for justice. An alternative idea, which has gained some traction among legal scholars, is to set up a treaty-based court. This could potentially be in the Kurdistan Region of Iraq (KRG), where many victims, witnesses and suspects are already located or could easily travel to, though arrangements would have to be made to transfer suspects from Syrian Kurdish custody. Pursuing this solution would require considerable diplomatic and legal creativity, but it is not impossible. The dozens of countries whose nationals are in Syrian Kurdish prisons could sign a treaty pooling their jurisdiction to prosecute fighters for international crimes and terrorism-related crimes, using a combination of international law (where applicable) and either the laws of suspects’ home countries or KRG and Iraqi law. The treaty could also impose certain parameters, like the exclusion of the death penalty. The realisation of any such plan (or others) probably remains a long way off. The current global geopolitical climate does not have the world in a particularly co-operative mood. Powerful countries could do without having to confront complicated truths about who bears responsibility for some of the most egregious crimes the world has seen in the past two decades. For Syrian Kurds, however, the truth is very simple: whoever is responsible, it isn’t them.