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A member of the Syrian Democratic Forces removes an Islamic State flag in the town of Tabqa, west of Raqqa city, Syria, April 30, 2017. © 2017 Getty Images

(Beirut) – The capture of two British men suspected of involvement in the Islamic State’s (also known as ISIS) torture and execution of Western hostages highlights the need to provide trials for ISIS suspects that respect due process and permit genuine victim participation, Human Rights Watch said today.

The Syrian Democratic Forces (SDF) recently detained Alexanda Kotey and El Shafee el-Sheikh, the last two members of a four-person group of UK nationals in ISIS implicated in the torture and beheading of a number of foreigners, including prominent journalists and aid workers. Mohammed Emwazi, another one of the four, was killed in an airstrike in Syria in 2015, according to the Pentagon and ISIS media outlets, and Aine Davis, the fourth member, was imprisoned on terrorism charges in Turkey. Since Kotey and el-Sheikh’s capture, victims’ relatives and former hostages have publicly called for the two to face justice in trials that they can attend.

“The capture of two ISIS suspects should jump-start international discussions on ensuring justice for ISIS’s horrific crimes,” said Nadim Houry, terrorism/counterterrorism program director at Human Rights Watch. “This means trials that respect due process and encourage victim participation in foreign countries with jurisdiction over the suspects.”

The two ISIS suspects should be prosecuted by foreign countries that have jurisdiction and can provide fair trials, Human Rights Watch said. While Human Rights Watch is not in principle opposed to local trials, locally set-up courts in northern Syria are currently not able to ensure basic due process. No country, including the United Kingdom, has said that it would try the two. The future of these men, as well as of the other foreign ISIS members held in northern Syria, is on the agenda of the meeting in Rome of key defense ministers of the International Coalition to Defeat ISIS on February 13, 2018, where US Defense Secretary Jim Mattis is expected to raise the issue, according to multiple media reports.

Britain’s defense secretary said on February 10 that the two men “should never be allowed to return to the UK” and media reports have indicated that the UK may have already stripped them of their citizenship. The foreign minister of France, the home country of at least two journalists who were tortured by the ISIS group, indicated on February 7 that the foreign ISIS members should be tried in northern Syria.

The US government has urged the UK and other members of the coalition fighting ISIS to help address the growing number of foreign fighters being held by the SDF. Kathryn Wheelbarger, the principal deputy assistant defense secretary for international security affairs said, “We're working with the coalition on foreign fighter detainees, and generally expect these detainees to return to their country of origin for disposition.”

A US official, speaking on condition of anonymity, told Reuters that the US was in talks with the UK about ISIS detainees but there were no plans to bring them to the US or the US detention facility at Guantanamo Bay. Should the US take custody of the two alleged ISIS members, they should be prosecuted in US federal court and not sent to Guantanamo, where they would be subject to military commissions that do not meet international due process standards, Human Rights Watch said.

The SDF have detained thousands of ISIS members in northern Syria, including hundreds of foreigners. The Democratic Union Party (PYD)-led autonomous administration in northern Syria has set up local counterterrorism courts, known as the People’s Defense Court, but so far have only tried Syrian and Iraqi nationals.

These courts apply a counterterrorism law that was locally enacted in 2014 and rejects the application of the death penalty. Human Rights Watch visited these local counterterrorism courts in July 2017 and again in January 2018. A number of serious due process concerns prevented trials before the court from meeting basic international standards, Human Rights Watch found.

Key issues include the absence of any role for a defense lawyer and the lack of any formal appeals process. Local critics also noted that the courts are not fully independent from the local authorities and lack adequately trained prosecutors and judges. Some of the judges were not officially trained as lawyers or judges, but local authorities said that they went through a four-month training program.

Local officials in charge of the court system in northern Syria told Human Rights Watch that they had hoped that foreign countries would take back their foreign nationals and reduce the burden on them. If that was not possible, they said, they would consider trying some of them, but recognized that this would require improving their judicial system and laws at a time of mounting challenges for the local administration.

Families of the victims have expressed their interest in fair trials that they can attend for ISIS group members. Diane Foley, the mother of the US journalist James Foley, who was executed by the ISIS group, said she hopes to see Kotey and el-Sheikh given a fair and transparent criminal trial and receive life sentences. She told the media she did not want the men sent to Guantanamo Bay: “It would perpetuate the hatred. They [the victims] were executed in orange jumpsuits, like they have to wear in Guantanamo. We need to be above that. We need to show them what real justice looks like.”

Nicolas Henin, a French journalist who survived brutal detention by the ISIS group, told the media that he wants his former jailers to face a fair trial for their crimes. “What I want is a trial and a trial potentially that I can attend, so rather, a trial in London rather than one in Kobani in northern Syria,” he told the media. “Guantanamo Bay wouldn’t be a satisfying solution either, as it is a denial of justice.” He added:

What I want is an incontestable trial, as fair as possible, where my captors would have all the chances to defend themselves…We must absolutely prevent them reversing the situation by depicting them as victims. We were the victims, not them. If they don’t get justice, they will use it to fuel their propaganda.

“Officials meeting in Rome should find ways to provide fair trials that respect due process and provide the victims and their families – be they Syrian, Iraqis, or foreign – their day in court,” Houry said. “It’s important for the members of the international coalition to agree on these basic principles.”

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