The Syrian Detention Conundrum: International and Comparative Legal Complexities

Abstract

The phenomenon of battlefield detention by non-state groups is increasingly common and has been recently brought into focus by events in Syria where, as part of the international effort to counter the Islamic State of Iraq and Syria (“ISIS”), the United States and coalition partners have worked “by, with, and through” a non-state armed group called the Syrian Democratic Forces (“SDF”). That successful partnership has resulted in significant battlefield victories — and the resultant detention by SDF of more than 2,000 ISIS foreign fighters. A detention conundrum has, however, been created by the modern reliance by states on non-state actors for counterterrorism operations, and their simultaneous reluctance to accept the return of terrorists captured and detained by non-state actors in the course of those operations. Specifically, SDF partners have signaled that they do not have the capacity or authority for the continued detention of the foreign terrorist fighters captured in the course of the successful counter-ISIS effort. Moreover, the countries of origin of these captured terrorists are reluctant to accept their return, citing to legal obstacles to repatriation. The inability of non-state partners to detain foreign fighters indefinitely, coupled with the refusal of countries to repatriate their nationals, risks the release of dangerous terrorists. To assist in navigating this complex situation, this Article illuminates the international and comparative legal issues associated with the detention of terrorists by non-state armed groups and clarifies the legal issues relating to the repatriation of detained foreign terrorist fighters by the SDF in Syria. Through this analysis, the Article ultimately demonstrates that international law and the domestic law of many international partners generally permits the lawful transfer of foreign fighters from the custody of a non-state entity to government authorities for prosecution, rehabilitation, or other appropriate means of preventing their return to terrorism.

Keywords: Syria, Syrian Democratic Forces, ISIS, detainees, detained, non-state armed groups, nonstate armed groups, repatriation, abuse of process

JEL Classification: K33, Z18