Al-Kurdi’s capture raises thorny detention issues

The capture of a senior Islamic State leader in Aleppo, Syria yesterday is welcome news. In a brief statement, Combined Joint Task Force – Operation Inherent Resolve (CJTF-OIR) confirmed that coalition forces subsequently apprehended a man identified as Hani Ahmed al-Kurdi, described as an experienced bomb-maker tasked with facilitating attacks on US and partner forces. His capture will likely not only eliminate a major operational threat, but could also provide the US and coalition partners with the opportunity to interrogate him and potentially learn more about ISIS plots. Moreover, the operation appears to have achieved its objective with no coalition or civilian casualties – a significant achievement in light of growing criticism of US military operations following a series of revelations on civil damages. Nevertheless, it raises a host of potential issues regarding the detention and prosecution of terrorists in areas where the United States does not have a large presence on the ground, an issue that may be increasingly important as the US forces are withdrawing from previous operational levels in Iraq. and Syria.

Coalition forces have yet to release enough information about al-Kurdi’s detention to provide a clear picture of what is to come. We don’t know key facts such as al-Kurdi’s citizenship, nor has the Department of Defense said where he is being held, by whom, or whether criminal charges could be brought in the United States. or in other jurisdictions. Each of these details will be key to its own future disposition and, depending on the responses, could also provide a roadmap for future high-level ISIS captures (assuming, as appears to be the case, that states United States will remain engaged in these types of operations for the foreseeable future).

But none of the options for al-Kurdi’s future disposition are straightforward – his capture raises lingering thorny questions about how top terrorists are detained. Answering these questions is especially important as the United States enters a new, less intense, but seemingly persistent fight against terrorist groups.

Based on past cases, the administration is likely considering three potential dispositions for al-Kurdi: detention by the Syrian Democratic Forces (SDF) inside Syria, detention by a regional partner, or prosecution by states. United States or a close ally (laws of war, US detention in Syria or US territory are probably irrelevant, as we explain below).

First, given the location of his capture, it is likely that the SDF had a role in the operation, and even now he may well be held in a prison run by the group. Although they have successfully detained For some ISIS operatives, notably the so-called ISIS Beatles responsible for killing American hostages in Syria, long-term SDF detention still presents security concerns, as the overall SDF toll in securing prisoners from the Islamic State is mixed. Most recently, on January 20 Islamic State attack on an SDF prison in al-Hasakah, Syria – which lasted ten days, claimed more than 500 lives and led to the escape of potentially hundreds of ISIS prisoners – highlights the challenges facing SDF partners as a non-state actor subject to attack from nation-state forces and remnants of ISIS and lacking the diplomatic, intelligence and defense capabilities of a state. For these same reasons, the SDF continues to struggle with the difficult task of knowing what to do with the valued 43,000 men, women and children who were once associated with ISIS and who are still being held in camps in Syria and Iraq (where conditions are horrible). Adding high-level ISIS detainees to SDF facilities in Syria will not improve the situation, but may be the default option.

The second avenue of disposition would be for coalition forces to turn to a third country for assistance, an option that would be particularly viable if al-Kurdi is a foreign fighter operating in Syria or is responsible for the death of citizens of a third country. . If al-Kurdi is Iraqi or clearly linked to attacks on Iraqi targets, for example, he could be transferred to the custody of the Iraqi government or potentially the Kurdistan Regional Government for detention or prosecution. The same reasoning would apply to its transfer to the custody of another regional or coalition partner.

However, the viability of a transfer to a third country ultimately depends on al-Kurdi’s citizenship, his specific acts and the reliability of the partners envisaged in terms of their ability to organize fair trials if a prosecution is pursued. considered, their ability to safely detain ISIS detainees, and their track record of humane treatment of detainees (assuming the United States detains al-Kurdi and/or assists in his transfer to a third country , US non-refoulement obligations would apply). This last concern is not trivial, given the number of US counterterrorism partners who have a history of obtaining information from detainees through torture. And even on the security side, while the U.S. military and intelligence have a long history of counterterrorism cooperation with many regional partners, others have proven less reliable at securing, let alone successfully prosecuting, detainees. .

Finally, al-Kurdi could be transferred to the United States to face criminal charges, such as supplying material support for terrorism or costs related to specific offenses he may have enlisted as the leader of the Islamic State. nearly 700 foreign terrorists have been prosecuted and convicted in US federal courts since 9/11, including a number of ISIS fighters and supporters since the US became involved in that conflict in 2014 (mainly american foreign fighters). However, unless al-Kurdi is a U.S. national (or has committed crimes against U.S. persons for which sufficient evidence to convict him in a criminal trial is available), transferring him to be prosecuted in the United States is an unlikely path.

In previous years, al-Kurdi might have been considered for long-term detention under the laws of war by the United States. But the US has avoided holding ISIL detainees in sole US custody for several reasons: out of respect for local partners, due to the lack of a proper long-term detention center in a country where the American presence is weak and on precarious legal reason, and in part to avoid facing any situation that might lead to a habeas petition challenging the application of the 2001 Authorization to Use Military Force (AUMF) to ISIS. Bringing al-Kurdi to a military installation in the United States, or to Guantanamo (which will rightly be left off the table in the Biden administration), would open the door to such a challenge. The United States has avoided pronouncing itself on the substance of this question in Doe vs. Mattisa habeas case brought by a dual US-Saudi ISIS detainee captured in Syria, which ended after more than a year of detention under the laws of war in Iraq with a to transfer in Bahrain and a canceled US passport. Losing on the merits of a habeas case brought by an Islamic State detainee could undermine a series of wartime powers claimed by the government under the 2001 AUMF – a risk the US would surely take. great efforts to avoid.

Ultimately, we applaud the US decision to capture al-Kurdi rather than kill him, and the successful conclusion of the operation without harming civilians or coalition forces, even as we recognize the difficulties that a case like his presents. Identifying an appropriate long-term disposition will likely prove difficult in al-Kurdi’s case, but is essential for future capture operations, both in Syria and beyond.

Image: BAGHOUZ, SYRIA – MARCH 24, 2019: A Syrian Democratic Forces (SDF) fighter walks past destroyed vehicles at the last ISIL encampment on March 24, 2019 in Baghouz, Syria. The Kurdish-led, American-backed Syrian Defense Forces (SDF) on March 23 declared the “100% territorial defeat” of the so-called Islamic State, also known as ISIS or ISIL. The group once controlled large areas across Syria and Iraq, a population of up to 12 million and a “caliphate” that attracted tens of thousands of foreign nationals to join its ranks. (Photo by Chris McGrath/Getty Images)

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