UK ISIS members should be trialed in international courts

1. Background

Arab Millennial is a website that focuses on progress and development across Arab diaspora of all walks of religious and non-faith life.

This week, confirmation has been received that the last two members of a four member British terror cell known as “The Beatles” had been captured by US-backed Kurdish fighters.

Alexanda Kotey (featured image, left) and El Shafee Elsheikh (featured image, right) had been captured in Syria in January 2018, though it is not clear which of the two had been nicknamed “George” and which had been nicknamed “Ringo”.

Kotey, 34, was a black British convert to Islam and had his British citizenship stripped off him by the British Home Office. Elsheikh, 27, is of Sudanese origin, presumably identifies as an Arab and travelled to Syria as early as 2012. He also had his British citizenship revoked.

The hostages of John, Paul, Ringo and George nicknamed the murderers as such due to their British accents when talking Arabic.

Aine Lesley Davis (or Jihadi Paul), another black British convert to Islam who had previously been imprisoned for possessing a firearm in 2006, had been sentenced and convicted of terrorism charges in Turkey in 2017.

Although Mohammed Emwazi (or Jihadi John) – killed by a discriminate US drone strike in November 2015 – probably identified with a warped version of a greater Arab and Muslim cause, more senior members of ISIS assigned the 4 Brits with the task of handling predominantly Western hostages, capitalising off their use of English language and familiarity with Western culture. This was also a strategic means of communicating a message to the West that ISIS were capable of radicalising internal British and US citizens.

At the heart of this entire affair therefore seems to be a clear crisis of identity and unconscious search for meaning. Jihadi John saw himself as an Arab Muslim responding to a theological and political call from an Arab Muslim ummah, but many of his hostages and fellow murderers saw John, Paul, George and Ringo as quintessential Brits with a naïve understanding of Islam and Arab identity.

In his 2014 beheading video of Peter Kassig, Emwazi (of Kuwaiti origin) can be heard saying:

Obama, you have started your aerial bombardment in sham [the Levant] which keeps on striking our people, so it’s only right that we [ISIS] continue to strike the next of your people [Americans like Peter Kassig].

The cruel treatment of Peter Kassig by Mohammed Emwazi

Therefore, it is fair to suspect that Emwazi, Davis, Kotey and Elsheikh left themselves isolated from not only British and Arabic cultures, but also from a warped Islamic identity that they had established in their own minds that clearly failed to exactly match expectations. The motivations of the so-called Beatles were arguably as much political and cultural as they were theological, but these motivations were also warped and confused.

Why would Emwazi, an ISIS militant, show kinship with other shamis who had fallen prey to US drone strikes, yet be part of an organisation that is willing to kill shami people who do not subscribe to the same version of Islam that ISIS follow? This had been but one of his many confusions and inconsistencies.

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2. Justice and human rights

All in all, amongst their many hostages, “The Beatles” had been responsible for the savage executions of James Foley, Steven Sotloff, David Haines, Alan Henning, Peter Kassig, Haryana Yukawa and Kanji Goto. Interestingly, all of these people were men: perhaps women are “spared” by ISIS for use as sex slaves.

Furthermore, all of the men had been aid workers or journalists, and had either been US, UK or Japanese nationals.

At this point, it is worth noting that Britain’s intervention in Syria had been grounded in international law. Following a targeted terrorist attack by ISIS in Sousse, Tunisia, that left 30 Britons dead in 2015, there were two grounds for which the UK seemingly justified aerial intervention in Syria:

  1. ISIS are involved in the planning and implementation of foreign attacks on UK nationals (self-defence), and
  2. Post-invasion Iraq requires follow-up assistance from Britain to prevent local ISIS atrocities and further destabilisation (collective self-defence).

The right to self-defence and collective self-defence is stipulated by Article 51 of the UN Charter.

Of course, this does not overlook the fact determined by the Chilcot Report that Britain’s initial invasion of Iraq in 2003 was legally questionable and even destabilised the region, catalysing ISIS’ growth in the first place. Nonetheless, if Britain is learning lessons and at least claims to ground its most recent invasion in Syria in international law, then it must follow through with appropriate international procedures.

The Third Geneva Convention also calls for the preservation of rights for prisoners of war (POWs) and encourages the due process of POWs in tribunals to determine the nature of their alleged war crimes.

Kotey and Elsheikh, recently capture, are international war criminals: they are ex-British nationals who travelled to Syria, committed war crimes against foreign aid workers and are now captured by another foreign group: Iraqi Kurdish militia. Trialling Kotey and Elsheikh through international criminal courts and preserving their human rights as criminals does not justify their actions, but merely signifies a comprehensive follow through of procedure by British and other international authorities that show that they are serious about international law.

After all, 12 European empires signed the Geneva Conventions in August 1864, so it would be inappropriate for them to turn their backs on these conventions out of mere convenience. Many war criminals from former Yugoslavia have been trialled in a similar way and have been found guilty. This did not endorse their behaviour, but quite the contrary.

Additionally, in a destabilised Iraq, a just legal procedure is practically questionable. We do not endorse Saddam Hussein’s policies in any way, shape or form, but the way his execution was handled in Iraq appeared highly politically motivated, with the US-backed government swapping a fair judge for being perceived as “too lenient” and putting in place a Kurdish judge to handle the war crimes of a perpetrator of grave genocide against ethnic Kurds.

Yes, international criminal courts sometimes fail too. Indeed, Ratko Mladić’s trial had been delayed by many years for whatever political or diplomatic reason. Despite this, international criminal courts are more likely to comprehensively address Kotey and Elsheikh’s war crimes in Syria and Iraq than an infrastructurally weak Iraqi court.

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3. Coherence and credibility

Related, if the British government wants to continue practicing foreign policy on a perceived grounding in human rights, it would need to practice and implement what it is advocating, guaranteeing the preservation of rights for war criminals as set out by the Third Geneva Convention. This would bolster British credibility moving into future diplomatic and strategic encounters.

This isn’t about demonstrating compassion for terrorists: rather about behaving in a strategically optimal manner and following human rights processes (our best and most robust bet of guaranteeing holistic justice in a globalised world) through to the very end.

Some make the claim that members of ISIS do not recognise international governments or international legal institutions that are not grounded in sharia law, and therefore ask “why should we pay these terrorists any consideration that they don’t want or acknowledge for themselves?”. However, this would serve as an endorsement of their warped perspectives and recognitions. For instance, ISIS members believe an “Islamic State” or Caliphate exists, but this does not mean that such a state exists or that its self-proclaimed caliph is indeed legitimate. We should not acknowledge or legitimise their perceptions on international institutions in any way. We should instead determine what is the best procedure for their due process for ourselves, irrespective of the delusional opinions of irrational terrorists.

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4. Intelligence gathering

Another consideration to be made is intelligence gathering. If we leave British members of ISIS to die in captivity or to be summarily executed in a rushed judicial process, British intelligence agencies may miss out on vital information that could protect this country and other European and Arab countries from future terrorist attacks. Kotey and Elsheikh may also reveal false information under forced confession or mistreatment which is just as unhelpful to protecting British and Arab citizens.

A comprehensive international trial costs time and money, but it could save the international society future resources and further lives if vital intelligence is gathered and responded to immediately.

According to MI5 Director General Andrew Parker, 9 terrorist attacks had been prevented in the UK last year. Intelligence gathering works.

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5. Conclusions

Of course, the best way to deal with ISIS radicalisation is to prevent it from occurring in the first place through the creation of community youth clubs and developing a collective sense of inclusion for impressionable children transitioning into their adults lives.

Many ISIS members are former criminals or gang members who move from one gang family to another, more theologically-motivated gang family. Therefore, creating a sense of inclusion and security of identity does not excuse terrorists from becoming radicalised and committing grave atrocities, but it is a consideration that needs to be made as a preventative measure for children who can be “groomed” into terrorism.

Despite this, once ISIS members are captured, they should be trialled in international criminal courts. This would determine the exact nature of their crimes and seek comprehensive justice for their victims. It also potentially mitigates the complications of these terrorists often having their domestic nationalities revoked.

The incorporation of international criminal courts in Britain’s involvement in Syria bolsters credibility behind claims that any such involvement is grounded in international law, and may provide further useful information preventing future lives from being unnecessarily wasted.

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