The ISIS-Fighters Who Have Lost Their Way Home: A Case-Study of Alexanda Kotey and Shafee El Sheikh

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The ISIS-Fighters Who Have Lost Their Way Home

A Case-Study of Alexanda Kotey and Shafee El Sheikh

Master Thesis: International and European Law (Public International Law) Supervisor: Dr. Catherine Brölmann

Rosalie Becker (12444499) rosaliebecker@hotmail.nl Final version: 26-07-2019

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ABSTRACT

In March 2019, the military coalition named the Syrian Democratic Forces ("SDF") declared that it had eliminated ISIS from Syrian territory. In the following months, an international discussion started concerning the ISIS-fighters, who left their home states to join ISIS in Syria. Due to the recent victories, the SDF detainment centres are overcapacity, but the SDF does not have resources for prosecution or indefinite detainment of all fighters. The SDF has requested the foreign fighter's home states to transfer their nationals back to their territory. The transfer could be crucial to ensure that the international crimes committed by these detainees will not go unpunished. However, the home states are unwilling to adhere to the request. Some states even started to withdraw the citizenship of their nationals. This thesis seeks to determine what means for the transfer are available under international law, regardless of this unwillingness of states. The means for transfer are examined in the context of a case exemplifying this situation: the case of (former) UK-nationals Kotey and El Sheikh.

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List of Abbreviations

ANSA Armed Non-State Actor

ARSIWA Draft Articles on Responsibility of States for Internationally Wrongful Acts

CAT Committee against Torture

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

FFs Foreign Fighters

HRC Human Right Committee

ICCPR International Covenant on Civil and Political Rights

ICJ International Court of Justice

ICL International Criminal Law

ICRC International Committee of the Red Cross

ISIS Islamic State of Iraq and al-Sham

OHCHR Office of the United Nations High Commissioner for Human Rights

PKK Kurdish Worker's Party

PYD Kurdish Democratic Union Party

SA-NES Self-Administration of North and East Syria

SDF Syrian Democratic Forces

UNGA United Nations General Assembly

UNHCR United Nations High Commissioners for Refugees

UNHRC United Nations Human Rights Council

UNRIAA United Nations Report of International Arbitral Awards

UNSC United Nations Security Council

VCLT Vienna Convention on the Law of Treaties

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Introduction

Setting the scene: ISIS' foreign fighters stuck in Syria

On the 29th of June 2014, Abu Bakr al-Baghdadi, the leader of a terrorist organisation, announces the establishment of the Caliphate of the Islamic State in part of the territories of Iraq and Syria, ruled under Sharia Law (“the Caliphate”).1 The years that follow are marked with terrorist attacks throughout the world, under which in Paris, Brussels, and Manchester. All attacks are attributable to the same terrorist organisation: the Islamic State of Iraq and al-Sham ("ISIS").2

Significant about ISIS as an organisation, is the high number of foreign fighters ("FFs"), who have left their home states and travelled to the Caliphate to join ISIS.3_{Nevertheless, the}

flow of FFs was not enough to maintain the Caliphate. In March 2019, approximately five years after the establishment of the Islamic State, the US-backed Syrian Democratic Forces ("SDF") declared that the Islamic State had fallen. The group had eliminated ISIS from Syrian territory.4

The victories of the SDF have created new challenges under international law. One of these challenges relates to the high numbers of ISIS-fighters captured by the SDF during its fight against the terrorist organisation. Due to the recent victories, the detainment centres are overcapacity and the SDF does not have the resources for indefinite detainment or effective prosecution.5 To remedy the overcapacity, the SDF is urging states to take back the captured FFs to their country of nationality for prosecution, which would reduce the number of detainees significantly. For example, around 800 European ISIS-fighters, are currently under SDF custody.6 Nevertheless, many states, including Western-European states, are unwilling to contribute to this solution. Several states have even started to withdraw the nationality of these FFs to avoid any form of responsibility.7

1_{Jessica Stern and J M Berger, ‘ISIS: The State of Terror' (Harper Collins 2015), p. 12}

2_{The organisation is also referred to by the names Da'ash, IS (Islamic State) or ISIL (Islamic State in Iraq and}

the Levant)., see: Brian L. Steed, ‘An Introduction and Guide to the Islamic State' (ABC-CLIO 2016), p. 15

3_{For the definition of ‘foreign fighters' see: UNSC Res 2178 ‘Threats to International Peace and Security}

Caused by Foreign Terrorist Fighters' UN Doc. S/RES/2178 (2014), p. 2

4_{Bethan McKernan, ‘Isis defeated, US-backed Syrian Democratic Forces announce' The Guardian (Istanbul the}

23rd of March 2019) <https://www.theguardian.com/world/2019/mar/23/isis-defeated-us-backed-syrian-democratic-forces-announce> accessed 04-04-2019

5_{Wladimir van Wilgenburg, ‘Syrian Kurds call on foreign countries to take back IS fighters’ Kurdistan 24 (Erbil}

the 7th of October 2018) <https://www.kurdistan24.net/en/news/3d949f26-0bb7-44c9-ac7b-5c6794b06e5a> accessed 04-04-2019

6_{Richard Hall, ‘Hundreds of Isis prisoners with ‘no blood on their hands' released in Syria' The Independent}

(Beirut the 4th of March 2019) <https://www.independent.co.uk/news/world/middle-east/isis-prisoners-released-syria-kurdish-sdf-a8806996.html> accessed 04-04-2019

7_{Tineke Strik, ‘Withdrawing nationality as a measure to combat terrorism: a human rights-compatible}

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The overcapacity in the SDF detention centres is a problem by itself. However, recent events have added an extra level of urgency to finding a solution to the problem. The most significant factor contributing to this urgency, relates to the withdrawal of US-troops from Syria, leaving the SDF without its back-up.8 The withdrawal is problematic given the location of the SDF detention centres. The centres are located in the north-eastern part of Syria, which is a predominantly Kurdish region, referred to as Rojava. In Rojava, political parties have established the autonomous Self-Administration of North and East Syria (“SA-NES”). The parties seek a degree of autonomy outside the control of the Syrian government.9 Additionally, the majority of the SDF consists of Kurds from the Syrian Kurdish Protection Unit (“YPG”), which is perceived to be a terrorist group by Turkey. The YPG has been under Turkish attack in the past. The US-decision to withdraw its troops, increased the chance of Turkey attacking again.10_{The SDF-officials fear that the SDF could lose control over its detention centres if the}

region comes under attack, which could offer the detainees a chance to escape custody. Consequently, the international crimes that these suspects allegedly committed may go unpunished. Authorities in Rojava have referred to the situation as a ‘time bomb', to which no solution has been found.11

Research question and structure

Amongst these SDF-detainees are Alexanda Kotey and Shafee El Sheikh, both (former) UK citizens. The men have allegedly been part of the ISIS-cell referred to as ‘the Beatles', together with Mohammed Emwazi, known as Jihadi John and Aine Lesley David. ‘The Beatles' are suspected of taking around 27 people as hostages, torture and murder.12 The incentives of states to avoid obligations these states could have concerning the men, sparked my interest in this

8_{Guney Yildiz, ‘US withdrawal from Syria leaves Kurds backed into a corner' BBC News (London the 20th of}

December 2018) <https://www.bbc.com/news/world-middle-east-46639073> accessed 09-04-2019

9_{Tom Perry, ‘Where do the Kurds fit into Syria’s War?’ Reuters (Beirut the 3rd of January 2019)}

<https://www.reuters.com/article/us-mideast-crisis-syria-kurds-explainer/where-do-the-kurds-fit-into-syrias-war-idUSKCN1OX16L> accessed 08-04-2019

10_{Anne Barnard and Ben Hubbard, ‘Allies or Terrorists: Who Are the Kurdish Fighters in Syria?’ The New York}

Times (Beirut the 25th of January 2018) <https://www.nytimes.com/2018/01/25/world/middleeast/turkey-kurds-syria.html> accessed on 04-03-2019

11_{Ellen Francis and Philip Blenkinsop, ‘U.S.-backed Syria force seeks help with Islamic State prisoners' time}

bomb" Reuters (Beirut/Brussels the 18th of February 2019) <https://www.reuters.com/article/us-mideast-crisis-

islamicstate-detainees/u-s-backed-syria-force-seeks-help-with-islamic-state-prisoner-time-bomb-idUSKCN1Q715H> accessed 04-03-2019

12_{Adam Goldman and Eric Schmitt, ‘2 of ISIS' Infamous British Fighters Are Captured by Syrian Kurds' New}

York Times (Washington the 8th of February 2018) <https://www.nytimes.com/2018/02/08/us/politics/britons-detained-american-hostages-syria.html> accessed 22-11-2018

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case. It made me question whether a withdrawal of citizenship could relieve a state of its obligations.13

The situation of Kotey and El Sheikh indicates a disparity between the importance of individual criminal responsibility and the need for states to take responsibility to ensure that individual criminal responsibility. This gap needs to be bridged, in order to transfer the men from the SDF detainment centre, especially when the reluctance of states to abide by its international law could result in impunity for international crimes.14 These considerations have led me to construct the following research question:

What means for the transfer of Kotey and El Sheikh are available under international law?

The research question, as formulated above, is goal-oriented. The question aims at enabling a transfer of Kotey and El Sheikh from the detention centre to the territory of another state. A crucial element in this research question is the interpretation of the word ‘means'. In this thesis, the interpretation of ‘means' is linked to the overarching goal of enabling a transfer. Based on this connection, the interpretation of ‘means' is three-fold. Since the ‘means' indicated in this thesis are specifically tailored to the situation of Kotey and El Sheikh, the facts of their case are trivial (chapter 1).

In the most general understanding, the ‘means' for transfer refers to the question of whether a transfer of the men is possible under international law given the facts of their case (chapter 2). The question whether the Kotey and El Sheikh can be transferred, forms the foundation of this research. A discussion on the ‘means' of transfer available under international law is futile if a transfer is impossible in the first place. After it is established that the transfer of Kotey and El Sheikh is possible, the question arises why a transfer has not taken place.

The transfer is obstructed by the unwillingness of states. Therefore, for a transfer to take place, the unwillingness needs to be challenged by not solely addressing whether states are allowed to transfer the men, but whether a transfer is obligated. In this context, ‘means' does not merely relate to the practical possibilities of transfer. The interpretation of the term includes

13_{Andrew Sparrow, "Javid's death penalty stance' abhorrent and shameful' MPs told – as it happened' The}

Guardian (London the 23rd of July 2018) <https://www.theguardian.com/politics/blog/live/2018/jul/23/javid-

says-british-militants-can-be-tried-in-us-without-usual-no-death-penalty-assurance-politics-live?page=with:block-5b55e98ae4b0b9a0a347f723> accessed on 04-04-2019

14_{Impunity for international crimes is contrary to the goal of international criminal law as a discipline. See: M}

Cherif Bassiouni, ‘The Discipline of International Criminal Law' in M Cherif Bassiouni, International Criminal Law: Volume I (Martinus Nijhoff 2008), p. 3

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an analysis of the relevant obligations for transfer under international law to decide whether states must transfer the men (chapter 3).

As evident from the case of Kotey and El Sheikh, even where states are bound by international obligations necessitating the transfer of the men, states have attempted to escape these obligations. The envisaged goal of the transfer can only be achieved if the initial unwillingness of states, as well as the methods employed to avoid their obligations, can be challenged. In this sense, ‘means' should be interpreted as referring to the ‘means' available under international law to counter the initial unwillingness of states (chapter 4).

The conclusion of this thesis is the result of the three-fold interpretation of ‘means, which includes the possibilities of transfer, the state-obligations to transfer and legal arguments to counter the initial unwillingness of states to enable the transfer. What follows from this analysis is that the initial unwillingness of states could be countered, which places states under an obligation to transfer detainees under international law.

Methodology

In this thesis, I intend to determine the means available under international law to transfer FFs detained by the SDF in the north-eastern region of Syria. To search for the means of a transfer of Kotey and El Sheikh, I conduct a literature-study of relevant theory, legislation and jurisprudence. The thesis is conducted in a normative manner, whereas it seeks to determine the effective means for the transfer under international law. In this context, the ‘most effective means' is the method most likely to result in a transfer of the men. The research is based on a qualitative case study of two SDF-detainees. The decision to conduct a case study finds its consequences in the scope of the study. The means for transfer established in this thesis are tailored to the personal situation of Kotey and El Sheikh and the domestic particularities of the states involved. Still, the discussion situated exclusively on the international level could be relevant to other FFs in SDF-custody.

In this thesis, the term ‘transfer' indicates the physical movement of Kotey and El Sheikh from the detention centre to the territory of another state, rather than relating to a legal process. A second relevant term is ‘terrorism'. Kotey and El Sheikh are both suspects of terrorist-related activities. Despite the increased attention that the concept has received over the years, it still lacks an internationally recognised definition. A terrorist to one person is considered a freedom fighter by the other. To avoid an extensive discussion on the definition and characteristics of terrorism, I dissect the ‘terrorist acts’ allegedly committed by Kotey and El Sheikh – taking hostages, torture and murder – into separate crimes. In as far ‘terrorism' is mentioned in this

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thesis, the definition of terrorist-related crimes as discussed in the United Nations Security Council Resolution 1566 (2004) is followed.15 The final remark in terms of terminology relates to the interchangeable use of nationality and citizenship. Although there are certain nuances to both terms, it is evident that the UK, by withdrawing citizenship, also seeks to denounce the legal status of the men based on nationality.16

There are two limitations to the research conducted in this thesis. The first limitation relates to the number of states reviewed in the research. The discussion focusses on a transfer to the UK or the US, even though there are other states with a jurisdictional nexus to the case. The withdrawal of citizenship left Kotey stateless, but El Sheikh remained with the Sudanese nationality. However, a discussion of a transfer of El Sheikh to Sudan is excluded from this thesis. Other states excluded from the analysis are the home states of the victims, other than the UK and the US, such as France and Japan. The decision to exclude these states from the analysis is based on the word limit for this thesis. Still, similar international obligations could be imposed on the states that will not be discussed, as far as the same obligations bind those states through treaties and custom.

Another limitation of this research relates to the lack of publicly available official documents concerning Kotey and El Sheikh. Consequently, I had to rely on newspaper articles to sketch the facts of the case. I tried to overcome the lack of official documents by cross-checking every fact in several newspapers and other available sources. In this manner, I attempted to disclose the most accurate and correct information. The constellation of the facts, which is the result of this process, will be discussed in the upcoming chapter.

15_{UNSC Res 1566 ‘Threats to International Peace and Security Caused by Terrorism' S/RES/1566 (2004), para.}

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16_{Oliver Dörr, ‘Nationality' Max Planck Encyclopaedia of Public International Law (last updated November}

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Chapter 1 - The facts of the case concerning Kotey and El Sheikh

The case of Kotey and El Sheikh exemplifies a larger problem concerning the transfer of FFs from the SDF detention centres to another state. To understand the full extent of the case of Kotey and El Sheikh, the first section of this chapter will explain the broader context of the situation. Afterwards, the specific details of the case of Kotey and El Sheikh will be discussed.

1.1 The SDF in Syria

As discussed in the introduction, the SDF has been successful in its fight against ISIS. As a consequence, the detainment centres are overcapacity, and the SDF is unable to prosecute or indefinitely detain all detainees.17 In the search for ways to reduce the number of detainees, the SDF has urged states to take back the FFs currently held by the SDF. Nevertheless, states, under which Western European states, are reluctant to take back these FFs. States fear for the threats these returning fighters could pose on society and expressed concerns about the difficulties of obtaining evidence for prosecution.18_{There are two factors are enhancing the complexity of}

this situation. The first factor relates to the composition of the SDF. Secondly, the state failure of Syria is an important factor in this situation.

1.1.1 The composition of the SDF

The SDF is a US-backed military coalition, consisting of various groups.19 The coalition focusses on eliminating ISIS from its territory, although some sub-groups also serve a more a political aim. Still, fighting ISIS on Syrian territory is the predominant characteristic of the SDF as a group. Based on that dominant characteristic the SDF should be qualified as an armed non-state actor (“ANSA”) in a non-international armed conflict. This qualification subjects the SDF to international humanitarian. Therefore, the SDF is bound by obligations concerning the detention and prosecution of the individuals detained during the conflict.20

The majority of SDF-fighters are Kurds from the YPG, which is the armed wing of the Kurdish Democratic Union Party ("PYD"). The PYD is a prominent political party in the Rojava region, which is seeking autonomy from the Syrian government. The Assad regime,

17_{van Wilgenburg (n. 5)}

18_{Piotr Bąkowski and Laura Puccio, ‘Foreign fighters – Member state responses and EU action’ (European}

Parliamentary Research Service 2016), p. 3

19_{Genevieve Casagrande, ‘The Road to Ar-Raqqah: Background on the Syrian Democratic Forces' (Institute for}

the Study of War 2016), p. 1 – 3

20_{Common Article 3 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the}

Treatment of Prisoners of War (signed the 12th of August 1949, entered into force the 21st of October 1950) 75 UNTS 135

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however, has not recognised the region as autonomous.21 The PYD/YPG is considered to be the Syrian associate of the Kurdish Worker’s Party ("PKK"), which is a Kurdish militant group actively fighting the Turkish suppression of the Kurds.22 The PKK and the PYD/YPG are perceived as terrorist groups by Turkey. Turkey has attacked these groups in Rojava before and might decide to attack again, especially now that the US-troops are leaving Syria.23 Officials in the Rojava region fear that, if the region would come under attack, the SDF might lose control over the detainment centres. The loss of control could give the detained ISIS-fighters, some of which suspects of international crimes, a chance to escape.24

The SDF cannot rely on the Syrian government for protection against Turkey. The SDF has strong connections to the autonomous administration in Rojava, and the detainment centres are located in that region. These circumstances place the centres outside the control of the Syrian government.25_{In addition, Syria can be qualified as a ‘failed state', which also finds its}

repercussions in the situation of the detainees.

1.1.2 Syria: a ‘failed state’

Syria can be qualified as a fragile and ‘failed state’.26 The qualification of Syria as a failed state is attributable to the fact that the government is unable to perform its obligations towards its citizen and the international community.27 Additionally, the government has lost control over a significant part of the territory, including the Rojava region.28 The state failure of Syria has created a legal vacuum in relation to the SDF detainees, whereas the state failure has two significant consequences.

The first consequence is that Syria is unlikely to be held responsible for its breaches of international law.29 The Syrian state will not be held accountable for breaches of human rights

21_{Perry (n. 9)}

22_{Suleiman Al-Khalidi and Tom Perry, ‘New Syrian rebel alliance formed, says weapons on the way' Reuters}

(Amman/Beirut the 12th of October 2015) <https://www.reuters.com/article/us-mideast-crisis-syria-kurds/new-syrian-rebel-alliance-formed-says-weapons-on-the-way-idUSKCN0S60BD20151012> accessed 08-04-2019

23_{Barnard and Hubbard (n. 10)} 24_{Francis and Blenkinsop (n. 11)}

25_{Eric Schmitt, ‘Pentagon Wades Deeper Into Detainee Operations in Syria’ New York Times (Washington the}

5th of April 2018) <https://www.nytimes.com/2018/04/05/world/middleeast/pentagon-detainees-syria-islamic-state.html> accessed 09-04-2019

26_{Fund for Peace, ‘Fragile State Index Annual Report 2019' (2019), p. 7; Huseyn Aliyev, ‘Precipitating state}

failure: do civil wars and violent non-state actors create failed states?' 38 Third World Quarterly 9 (2017), p. 1978

27_{Chiara Giorgetti, ‘A Principled Approach to State Failure: International Community Actions in Emergency}

Situations' (Brill 2010), p. 43; Marija Sulce, ‘The War Report 2018: The Syrian Armed Conflict: Nearing the End?' (The Geneva Academy 2019), p. 5 -7

28_{Perry (n. 9)}

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law or international criminal law occurring in the Rojava region. The second implication relates to the principle of non-refoulement.30 In the past, the Syrian government has committed

‘massive and systematic violence’ against former SDF-detainees.31_{Since the SDF is bound by}

the principle of non-refoulement, the transfer of the detainees to the Syrian government is highly unlikely.32 Therefore, a discussion of the transfer of the detainees to the Syrian government is excluded from this thesis.

1.2 The case of Alexanda Kotey and Shafee El Sheikh

A case exemplifying the problem of the FFs is the case of Alexanda Kotey and Shafee El Sheikh. The men, both (former) UK-citizens, have allegedly been part of the ISIS-cell known as ‘the Beatles'. This cell is suspected of takings hostages, torturing, and killing 27 people of differentiating nationalities. The men have been in SDF-custody since January 2018. Since then, the men have been in legal limbo. There is no prospect of prosecution in Syria and no prospect of a transfer to another state. Still, it is clear that the men should not be indefinitely detained without a prosecution, since that could lead to a violation of their human rights. In interviews, the men have stated that they wish to be returned to UK.33 Nevertheless, such a transfer appears unlikely, whereas the UK has withdrawn their citizenship.34 The future of Kotey and El Sheikh remains uncertain, even though a transfer out of the SDF centre is necessary. To determine what means for transfer are available for the men under international law, the next chapter will explain the legal framework on the transfer of suspects.

30_{ICRC, ‘Commentary of 2016 on Common Article 3 Geneva Convention Relative to the Treatment of}

Prisoners of War’ (2016), para. 708 and 713

31_{Human Rights Council, ‘Out of Sight, Out of Mind: Deaths in Detention in the Syrian Arab Republic' (2016),}

p. 2

32_{ICRC (n. 30)}

33_{Van Wilgenburg (n. 5); Nick Paton Walsh and others, ‘ISIS fighters known as ‘the Beatles’ demand fair trial’}

CNN (Northern Syria the 9th of April 2018) < https://edition.cnn.com/2018/04/09/middleeast/isis-beatles-interview-intl/index.html> accessed on 07-04-2019

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Chapter 2 – The possibilities of transfer of suspects under international law The reluctance of states to transfer the FFs has created a complicated situation in international law. Some FFs, such as Kotey and El Sheikh, are suspects of international crimes and are currently detained by a non-state actor in a region outside the control of a state government. There is a chance that their international crimes may go unpunished, especially since the withdrawal of the US troops.

Before discussing the reluctance of states to cooperate with the SDF, it is necessary to determine whether the transfer of Kotey and El Sheikh is allowed under international law, given the specific constellation of the facts. In order to determine whether a transfer is possible, the general framework regarding the transfer of suspects under ICL needs to be examined.35 Afterwards, the particularities of the case of Kotey and El Sheikh will be placed within this framework, which demonstrates that the only possibility of transfer is through a state establishing jurisdiction over the offences. The final section addresses whether an ANSA, such as the SDF, is capable of transferring detainees under international law.

2.1 Legal framework on the transfer of suspects of international crimes

Kotey and El Sheikh are suspects of taking hostages, torture and murder. The crimes of torture and the taking of hostages have been incorporated in specialised treaties.36 The crimes are also listed as ‘war crimes' and ‘crimes against humanity' in the Rome Statute of the International Criminal Court.37_{This qualification, frames the acts as ‘international crimes’, in the sense that}

international law perceives the acts to be ‘universally criminal’.38_{Ensuring these international}

crimes will not go unpunished is perceived to a value dear to the international community.39 The qualification of offences is of importance for the transfer, whereas their gravity and the universal recognition of their criminality, inherently links the transfer to a prosecution. This

35_{A discussion on the transfer based on the right to diplomatic protection is excluded from this chapter.}

Regardless of reports of human rights violations in the SDF detention centres, the UK will not exercise its right to diplomatic protection in this case. A good indicator of this decision is the withdrawal of citizenship of the men.

36_{UNGA, International Convention Against the Taking of Hostages (adopted 17 December 1979, entered into}

force 3 June 1983) 1316 UNTS 205 (“Hostages Convention”); UNGA, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (“Torture Convention”)

37_{Articles 7 and 8 UNGA, Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into}

force 1 July 2002) (“Rome Statute”)

38_{Kevin Heller, ‘What is an International Crime? (A Revisionist History)’ 58 Harvard International Law}

Journal 2 (2017), p. 354

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connection will be explained in light of the forms of prosecution available under international law: international prosecutions or a prosecution in a national court.

2.1.1 A transfer based on an international prosecution

There are two international institutions capable of prosecuting suspects: the permanent International Criminal Court (“ICC”) and an ad hoc court or tribunal.40 The fact that Kotey and El Sheikh are suspects international crimes is especially relevant in the context of the ICC since the jurisdiction of the ICC only relates to suspects of international crimes.41 In order to prosecute alleged perpetrators, the ICC can issue a warrant of arrest and surrender.42 To surrender an alleged perpetrator, the state that has arrested an individual needs to transfer that person to the ICC.43

A second possibility for an international prosecution is through an ad hoc tribunal established by the UN Security Council through Chapter VII of the UN Charter. The jurisdiction and the connected ratione materiae of such a tribunal depends upon its statute.44_{If the UN}

Security Council decided to establish a tribunal for the international crimes committed by individuals in Syria, a transfer of the individuals to the custody of that tribunal would be necessary. 45 Other than a transfer based on an international prosecution, suspects of international crimes could be transferred and subsequently prosecuted in nationals courts.

2.1.2 A transfer based on a prosecution in a national court

A state has the jurisdiction to prescribe, adjudicate and enforce its laws within its territory. In addition to this territoriality basis for jurisdiction, the international community accepts that states can establish jurisdiction over crimes which occur abroad if founded upon a permissive principle and with the consent of that other state.46 The permissive principles to establish jurisdiction are the principles of territoriality, nationality, passive personality, protective and universality principles.47 These principles offer a legal foundation for states to exercise authoritative control over a criminal, even if the crime or criminal are initially located abroad.

40_{M Cherif Bassiouni, ‘The Need for International Accountability’ in M Cherif Bassiouni, International}

Criminal Law Volume III: International Enforcement (Martinus Nijhoff 2008), p. 21

41_{Article 5 Rome Statute} 42_{Article 89 Rome Statute} 43_{Article 3 Rome Statute}

44_{Guénaël Mettraux, ‘International Crimes and the Ad Hoc Tribunals’ (Oxford University Press 2006), p. 7} 45_{See for example article 20 of UNSC, Statute of the International Criminal Tribunal for the Former Yugoslavia}

(adopted 25 May 1993, as amended 17 May 2002)

46_{This thesis follows the permissive – rather than a prohibitive manner – of establishing jurisdiction.} 47_{Cedric Ryngaert, ‘The Concept of Jurisdiction in International Law' in Alexander Orakhelashvili, Research}

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In order to exercise jurisdiction, a transfer of the criminal to the state requesting to exercise jurisdiction could be necessary. The state in custody over the criminal, needs to surrender the criminal to the jurisdiction of the requesting state through, for example, extradition.48 International cooperation between states is of significant importance in this process.

Whether an individual is a suspect of international crimes is relevant for the transfer based on the establishment of jurisdiction by a state. Usually, once an alleged criminal is within the jurisdiction of the requesting state, the suspect is subjected to the ‘reasonable and justified

prosecutorial discretion’ of that state.49 However, this prosecutorial discretion is limited in relation to suspects of international crimes through the principle of aut dedere aut judicare. This principle to prosecute or extradite can be found in treaties, but according to Bassiouni, this obligation also exists in customary law concerning core international crimes. These core crimes include crimes against humanity and war crimes.50

The obligation of aut dedere aut judicare will be discussed more extensively in chapter 3. For this section, it is relevant that jurisdiction over international detainees could be established by states based on a permissive principle. In order to place a criminal under the jurisdiction of a requesting state, a transfer from the custodial state to the requesting state could be necessary. If the transfer concerns a suspect of international crimes, such a transfer will serve as a prerequisite for a prosecution.

2.2 The applicability of the legal framework in the case of Kotey and El Sheikh

As explained in the previous section, there are three options for the transfer – followed by a prosecution – of a suspect of international crimes within ICL. Connecting these options to the facts of the case of Kotey and El Sheikh, will demonstrate that possibilities of an international prosecution is excluded for the men. As a consequence, the transfer based on a domestic prosecution is the remaining possibility.

2.2.1 International prosecution of Kotey and El Sheikh

The first option discussed in the previous section was the transfer in order to facilitate prosecution by the ICC. However, it is unlikely that the ICC will decide to prosecute Kotey and El Sheikh. The Prosecutor of the ICC has issued a statement in which it emphasises that the

48_{Geoff Gilbert, ‘Aspects of Extradition Law’ (Kluwer Academic Publishers 1991), p. 40}

49_{M Cherif Bassiouni, ‘Introduction to International Criminal Law’ (Transnational Publishers 2003), p. 712 –}

713

50_{M Cherif Bassiouni and Edward Wise, ‘Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in}

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ICC will only prosecute ‘those most responsible, within the leadership of ISIS'.51 The second option of international prosecution, by an ad hoc international tribunal, is also implausible. There is little chance the UN Security Council will decide to establish such a tribunal. One of the main reasons for this implausibility is the refusal of the US and Russia – both permanent members of the UN Security Council – to create an ad hoc tribunal.52 Hence, both options for the transfer of Kotey and El Sheikh as a necessary component for international prosecutions can be excluded. This exclusion makes the transfer based on the establishment of jurisdiction followed by a domestic prosecution the only remaining option.

2.2.2 Domestic prosecution of Kotey and El Sheikh

The final possibility available in the case of Kotey and El Sheikh relates to the transfer of detainees through the establishment of jurisdiction based on a permissive principle. The option of the establishment of jurisdiction through the principle of universality is excluded from these possibilities. States only exercise universal jurisdiction if the perpetrator is present its territory.53_{Since the core of the discussion is the immovability of Kotey and El Sheikh, a}

discussion on the applicability of the principle of universality is futile.

It is evident that several states – under which the UK and the US - could establish jurisdiction over the international crimes based on the nationality of the victims. The UK could, furthermore, establish jurisdiction based on the nationality principle.54 If the UK and the US would establish jurisdiction over the men, a transfer would be necessary for prosecution, whereas both states do not prosecute criminals accused of serious offences in absentia.55 Nevertheless, even though several states are allowed to establish jurisdiction over the men, it remains questionable whether the establishment of jurisdiction can be given any practical effect in the form of a transfer. This questionability is due to the lack of legal personality of the SDF.

51_{Office of the Prosecutor, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on}

the alleged crimes committed by ISIS’ (8th_{of April 2015)}

<https://www.icc-cpi.int/Pages/item.aspx?name=otp-stat-08-04-2015-1> accessed 14-04-2019

52_{Anthony Dworkin ‘A tribunal for ISIS fighters?' European Council on Foreign Relations (the 31}st_ofMay

2019) <https://www.ecfr.eu/article/commentary_a_tribunal_for_isis_fighters> accessed 03-06-2019

53_{See overview in Amnesty International, ‘Universal Jurisdiction: A Preliminary Survey of Legislation Around}

the World – 2012 Update’ (Amnesty International Publications 2012)

54_{The UK could also request to establish jurisdiction over the crimes of joining a terrorist organisation and}

recruiting fighters have been committed on its territory. Both are penalised acts in the UK's domestic legislation. See: sections 3(5), 11(1) and 59 of the Terrorism Act 2000 (20 July 2000). Nevertheless, the focus in this thesis remains on the international crimes.

55_{United States: US Supreme Court, Lewis v. United States 146 US 370 (1892), p. 372; US Supreme Court,}

Illinois v. Allen 397 US 337 (1970), p. 338. United Kingdom: Court of Appeal (Criminal Division), Regina v. Jones EWCA Crim 168 (2001), para. 22, which was approved in House of Lords, R. v. Jones UKHL 5 (2002)

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For a transfer to be possible, it needs to be ascertained whether the ANSA is capable of transferring suspects under international law.

2.3 The transfer of Kotey and El Sheikh by an armed non-state actor

Extradition law is perceived as the primary method of transferring suspects and criminals under international law.56 The possibility of transfer under extradition law serves as the starting point for the analysis of the practical methods for transfer, since it is the preferred method in terms of legality and rooted in international cooperation. The assumption is that that if an ANSA could participate a transfer under the stringent requirements of extradition law, the possibility for an ANSA to partake in other – legal and ‘extralegal’ – methods should be available as well.57

The problem in the present case relates to the fact that the men are situated outside the control of a recognised state government. Extradition conveys a rather state-centred system and Syria is unable to function as the custodial state within this process. Consequently, there is a legal vacuum in which the men cannot be moved from the detainment centre by extradition, due to the absence of a state government.

A theory focussed on the avoidance of such a legal vacuum is the ‘de facto control’-theory. According to this theory, legal personality can be attributed to non-state actors, if that actor exercises exclusive control over a part of the territory beyond the control of the de jure authority of a state.58 Such an entity can be held responsible for its acts and conclude international agreements.59 The recognition of de facto regimes connects to the principle of effectiveness and the desire to uphold the rules of international law through an interplay of factual circumstances and legal reality. Still, the recognition of a de facto regime does not equate the recognition of the authority of a non-state actor. 60 In the present case, the non-state actor most likely to be perceived as a de facto regime is the SA-NES, which it is in control over the territory of Rojava. A recognition of the de facto regime of the SA-NES could be useful to bridge the gap between the absence of a state government (the legal reality) and the need to transfer the SDF detainees (the factual circumstances). For a transfer of Kotey and El Sheikh, the men would have to be placed in the

56_{Gilbert (n. 48), p. 8}

57_{M Cherif Bassiouni, ‘International Extradition and World Public Order’ (Sijthoff/Oceana 1974), p.121 – 122} 58_{Daragh Murray, ‘Human Rights Obligations of Non-State Armed Groups' (Bloomsbury Publishing 2016), p.}

121 - 123

59_{Jochen A Frowein, ‘De Facto Regime' Max Planck Encyclopaedia of Public International Law (last updated}

March 2013), para. 3

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custody of the SA-NES, which could necessitate a transfer out of the SDF detention centre. Nevertheless, similar to the SFD, the SA-NES does not have the means to prosecute the detainees.61 Therefore, the transfer would be an intermediate step to transfer the men out of

Syria in order to be prosecuted in another state.

There are issues connected to the recognition of the de facto regime. The recognition of such a regime is in a tense relationship with the principles of non-intervention and territorial integrity, whereas the Syrian government has not recognised Rojava as an autonomous region.62 Another problematic component relates to the tense relationship Turkey has with the SA-NES based on its connection to the PDD/YPG. Due to these circumstances, states could be less inclined to enter into legal relations with the regime. Regardless of these issues, the recognition of the de facto regime is the best option in terms of legality. Other options for the transfer of criminals, such as kidnapping or abduction, are more likely to result in violations of principles of international law.

2.4 Concluding remarks

States are allowed to transfer Kotey and El Sheikh from the SDF detention centre to its territory. The possibility to transfer the men is not necessarily obstructed by the lack of legal personality of the SDF. The legal vacuum – created by the absence of a recognized state government – could be avoided through the recognition of the de facto regime of the SA-NES. Still, the unwillingness of states to establish jurisdiction is a factor that obstructs the transfer. Although the facts of the case are permanent, the unwillingness of states is a factor that is susceptible to change. Instead of assessing the possibilities for a transfer by examining the rights of states, the focus must be placed on the relevant obligations that states, with the intention to change the unwilling behaviour.

61_{Van Wilgenburg (n. 5)} 62_{Perry (n. 9)}

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Chapter 3 – State obligations necessitating a transfer

The freedom of a state to act as it deems appropriate is limited through international treaties and customary law, imposing obligations on states which prescribe how states must act. The ‘means’ available under international for the transfer of Kotey and El Sheikh should be assessed in light of these relevant international obligations, to determine whether states are allowed to persist in their unwillingness.

The obligations discussed in this chapter share three characteristics. Firstly, all obligations are applicable outside the territory and initial jurisdiction of a state. The second characteristic is that all obligations focus on obligations that are applicable after the crimes were allegedly committed. Finally, all obligations, to some extent, relate to the obligation to establish jurisdiction over criminals abroad. This obligation is of importance by itself but also functions as a pre-condition for the applicability of subsequent obligations. The following analysis only examines the obligations found in treaty-law. Customary law obligations are left out of the discussion since states will not consider themselves to be bound by more extensive obligations under customary law, then under treaty-law.63_{Hence, the focal point of the upcoming section}

will be on obligations stemming from treaty-law.

3.1 The obligation to establish jurisdiction over suspects abroad

It is evident that states with a jurisdictional nexus to the offences allegedly committed by Kotey and El Sheikh are allowed to establish jurisdiction. However, for international crimes, this right to establish jurisdiction transforms into an obligation. The obligation can be found in the treaties applicable to the crimes allegedly committed by Kotey and El Sheikh.64 The preamble of the Rome State places a duty on states to exercise criminal jurisdiction over suspects of the crimes incorporated into the Rome Statute. According to Cassese, Gaeta and John R W D, the preamble of the Rome Statute confirms a duty mainly focusses on the territoriality and nationality principle as methods of establishing jurisdiction.65 Through articles 5 of the Hostages Convention and the Torture Convention, states are under an obligation to establish jurisdiction on the principles of territory, nationality and universality. These articles, furthermore, convey

63_{Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford}

University Press 2011), p. 2 – 3

64_{Hostages Convention, Torture Convention and the Rome Statute}

65_{Antonio Cassese, Paola Gaeta and John R.W.D. Jones, ‘The Rome Statute of the International Criminal Court:}

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the possibility of establishing jurisdiction based on the nationality of the victim. However, that possibility is formulated as a right, rather than as an obligation.66

The articles conveying an obligation to establish jurisdiction aim to ensure that there is no safe haven for alleged perpetrators in the territory of any of the parties that have ratified these Conventions.67 The connection between the establishment of jurisdiction and absence for safe havens of perpetrators is given effect through the principle of aut dedere aut judicare (the obligation to prosecute or extradite), which becomes applicable once a suspect is within the jurisdiction of a state. If the alleged perpetrator is under the jurisdiction of a state that is unwilling or unable to prosecute him, he should be extradited to another state that has a jurisdictional nexus and is willing to prosecute him.68 If there is no other state willing to the prosecute the suspect, the state under whose jurisdiction the alleged criminal is at that moment, is under an obligation to prosecute the suspect. Through the principle of aut dedere aut judicare, the individual criminal responsibility of perpetrators of international crimes is ensured.

A method used by states to escape the obligation to prosecute suspects is through deportation or rendition of the alleged criminal to another state through an informal process. However, these informal processes do not formally release a state of its aut dedere aut judicare obligation, since these methods could fail to ensure the prosecution in another state.69 Other than the establishment of jurisdiction being relevant for the obligation to prosecute or extradite a detainee, it is linked to the obligation to prevent international crimes.

3.2 The obligation to prevent international crimes abroad

States are under a general obligation to prevent crimes from occurring on their territory.70 This obligation has a territorial focus but could also relevant for states outside their territory. The obligation could be imposed extraterritorially, while still within the jurisdiction of a state, as well as outside a state's jurisdiction. Extraterritorial obligations within the jurisdiction of states arise through the exercise of ‘effective control’ over territory or individuals outside the territory

66_{Article 5(1)(c) Torture Convention; article 5(1)(d) Hostages Convention}

67_{J Herman Burgers and Hans Danelius, ‘The United Nations Convention against Torture: A Handbook on the}

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (Martinus Nijhoff 1998), p. 131 – 132

68_{M Cherif Bassiouni, ‘The Modalities of International Cooperation in Penal Matters’ in M Cherif Bassiouni,}

International Criminal Law: Volume II (Martinus Nijhoff 2008), p. 35

69_{ILC, ‘The obligation to extradite or prosecute (aut dedere aut judicare)’ Final Report of the International Law}

Commission (2014), para. 22

70_{UNHRC, ‘The Role of Prevention in the promotion and Protection of Human Rights: Report of the Office of}

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of a state.71 However, in the case of Kotey and El Sheikh, there is no state exercising effective control over the Rojava region, the SDF or the detainees in the SDF-facilities.72 Therefore, only the obligation to prevent, outside the initial jurisdiction and territory of a state, will be discussed in more detail.

According to the ICJ, states could breach their obligation of prevention if two conditions are satisfied. The first condition relates to the knowledge of a state that a form of prevention was necessary. Additionally, the state must have had the available means to provide for prevention but failed to employ these means diligently.73 The obligation of prevention is a due diligence obligation focussed on conduct instead of result. The obligation relates to the prevention of acts between the state and private parties but also formulates a due diligence obligation to prevent crimes from occurring between private parties. There are two distinct phases in the obligation to prevent.74_{The first phase relates to the obligation to prevent crimes}

from materialising.75_{The second phase commences after the crime has occurred and focusses}

on the prevention of recurrence of the crime.76_{Accordingly, the obligation to prevent crimes}

outside the initial jurisdiction and territory of states will be analysed in light of these two phases.

3.2.1 Direct prevention: the obligation to prevent before a crime occurs

The direct prevention of crimes, focussed on the long-term prevention, places an obligation on states to create an environment where the crime is unlikely to occur. The long-term prevention of crimes depends on the territory and jurisdiction of states, whereas it, for example, relates the instalment of legislative measures to ensure and protect human rights.77 Direct prevention also entails an obligation to prevent violations on the short-term. States are obligated to employ all means reasonably available to it, as soon as a violation becomes foreseeable.78 The ICJ

71_{ECHR: Banković, para. 59 – 63 and Al-Skeini and Others v. The United Kingdom, app. No. 55721/07 (Grand}

Chamber judgment of 7 July 2011), para. 133 – 140; ICCPR: HRC, Lopez Burgos v. Uruguay, Comm. No. 52/1979 UN Doc. A/36/40 (Decision of 1981), para. 12.3.; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004 (Advisory Opinion of 9 July 2004): , para. 109 Torture Convention: CAT, ‘Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: United States of America’ UN Doc. CAT/C/USA/CO/2 (2006), para. 15

72_{The US financial and organizational support does not reach the level of ‘effective control’.}

73_{ICJ, Corfu Channel Case (the United Kingdom v. Albania) ICJ Reports 1949 (Judgment of 9 April 1949), p.}

23; ICJ, Case Concerning United States Diplomatic and Consular Staff in Tehran (the United States of America v. Iran) ICJ Reports 1980 (Judgment of 24 May 1980), para. 60

74_{This distinction is based on the distinction of the obligation to prevent made for the Torture Convention:}

OHCHR, ‘Preventing Torture: An Operational Guide for National Human Rights Institutions’ (2010), p. 3

75_{UNHRC (n. 70), para. 9} 76_{Ibid. para. 10}

77_{Ibid. para. 9}

78_{ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of}

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recognises this obligation for short-term prevention outside the territory or initial jurisdiction of states in the Genocide Case.

In the Genocide Case, the ICJ extended the scope of the obligation for short-term prevention of genocide to a state’s ‘capacity to influence’. If short-term prevention of genocide is within the ‘sphere of influence', a state is obligated to prevent its materialisation. The ‘sphere of influence'-approach is tailored specifically to the Genocide Convention. Nevertheless, the ICJ does not indefinitely exclude the possibility of other crimes – such as torture – from being susceptible for a similar approach.79 Trapp argues that the ‘sphere of influence’-approach could also be useful in the prevention of terrorist-related crimes. The usefulness mainly derives from the transboundary nature of terrorist-related activities together with the need for international cooperation in combatting the threat the crimes poses on the international community.80 Still, as for now, the ‘sphere of influence'-approach is focussed not (yet) recognised for other international crimes. There is, however, an obligation to indirectly prevent international crimes, other than genocide, which transcends the territory and jurisdiction of states.

3.2.2 Indirect prevention: the obligation to prevent after the crime occurred

Other than an obligation to prevent crimes from occurring, states have preventative obligations after a violation has materialised, to ensure the non-recurrence of the crime. According to the ICJ, the establishment of jurisdiction is crucial for the non-recurrence, since it has a ‘preventive

and deterrent character’ and is a ‘necessary condition’ to provide prevention.81 This obligation could be applicable for offences located outside the jurisdiction and territory of a state, through the principles of nationality and universality. The prevention of recurrence is safeguarded through the investigation and prosecution of the alleged crimes and perpetrators, as well as through to provision of an effective remedy for the victims.82 The obligation of states to provide a remedy to victims will be reviewed in the next section, to determine whether states could be obligated to transfer the men to ensure the victim’s right to an effective remedy.

79_{Andreas Zimmermann, ‘The Obligation to Prevent Genocide: Towards a General Responsibility to Protect?’}

in Ulrich Fastenrath and others, From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford University Press 2011), p. 269

80_{Kimberly Trapp, ‘State Responsibility for International Terrorism’ (Oxford University Press 2011), p. 17 – 18} 81_{ICJ, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ Reports 2012}

(20 July 2012), para. 74 – 75

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3.3 The right of victims to an effective remedy

The individuals who endured violations of their human rights at the hands of ‘the Beatles’ are entitled to an effective remedy for these violations. However, the possibility of obtaining an effective remedy is endangered, since the victims are unable to formulate a claim to the Syrian government and the crimes of their alleged perpetrators may go unpunished. According to Bassiouni, the international community has become increasingly concerned with ensuring the victims of violations of international human rights and humanitarian law norms right to an effective remedy.83 Victims of gross violations are entitled to the truth, justice and reparation. Reparations in this regard can take on several different forms such as restitution, compensation and guarantees of non-repetition.84

The right to an effective remedy has been incorporated into treaties that are relevant for victims of ‘the Beatles'. For the victims from the UK and the US, there are three international treaties that incorporated the right to an effective remedy and which in substance match the violations that occurred.85_{These treaties are the Torture Convention, the International}

Covenant on Civil and Political Rights (“ICCPR”) and the European Convention on Human Rights (“ECHR”) for victims from the UK. Nevertheless, even though the right to an effective remedy has been incorporated in these treaties, does not necessarily entail that the right can successfully be invoked by the victims of ‘the Beatles’. The fact that the crimes occurred outside the territory and jurisdiction of the UK and the US makes it impossible to successfully invoke the right under the ECHR and the ICCPR. In both treaties, the right ‘can not be invoked in

isolation'.86 It is not an autonomous right and can only be claimed after a state has violated another (autonomous) right, which has been incorporated into the treaty articles.87 Neither the UK nor the US has breached such an autonomous ex ante obligation towards its citizens; consequently, there is no ex post obligation to remedy the victims under these Conventions.

The right to an effective remedy is interpreted differently in the Torture Convention. Under article 14 Torture Convention, there is an obligation to remedy all victims, even if the violation occurred outside the initial jurisdiction of the state. As explained previously, article 5

83_{Bassiouni Volume II (n. 68), p. 232}

84_{UNGA, ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross}

Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’ UN Res. 60/147 (2006), section IX

85_{Article 13 ECHR; article 14 Torture Convention; article 2(3) UNGA International Covenant on Civil and}

Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (“ICCPR”)

86_{HRC, SE v. Argentina, Comm. No. 275/88 UN Doc. CCPR/C/38/D/275/1988 (Decision of 1990), para. 5.3} 87_{This is also true for article 13 ECHR, see: Tom Barkhuysen and Michiel van Emmerik, ‘Right to an Effective}

Remedy’ in Pieter van Dijk and others, Theory and Practice of the European Convention on Human Rights (Intersentia 2017), p. 1036 – 1037

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Torture Conventions places an obligation on states to establish jurisdiction over crimes based on the principles of territoriality, nationality and universality. After the suspect is brought within the jurisdiction of a state, obligations such as the obligation to prosecute or extradite the suspect or to investigate the facts are imposed on that state.88 If a state fails to comply with these obligations, the state violates the right to provide victims with an effective remedy.89 States are obligated to secure these rights for all victims, regardless of the territory where the crime occurred or the nationalities involved. This interpretation of article 14 Torture Convention is of increased importance where victims are unable to formulate their claim in the state where the torture occurred.90

Again, the obligation to establish jurisdiction is of crucial importance. It is only through the establishment of jurisdiction – based on the principles of territoriality, nationality and universality – that victims can claim their right to an effective remedy. However, with the state failure of Syria, the withdrawal of nationality and the territorial focus of the principle of universality, no state is obligated to establish jurisdiction over the men. The transfer of Kotey and El Sheikh to another state is necessary for the victims to access their right to an effective remedy. Even though there is an absence of legal obligations of states to transfer the men, the unwillingness of states could nevertheless be changed by appealing to considerations located outside the field of law. An argument could, for example, be found in the field of morality. Through invoking such moral grounds, states could be compelled to exercise their right to establish jurisdiction based on the passive personality principle.

3.4 Concluding remarks

In the case of Kotey and El Sheikh, the existence of state-obligation hinges upon the existence of the legal relationship an individual has with a state through nationality. This legal relationship of nationality is crucial since the principles of territoriality and universality are fruitless in this case. Consequently, the existence of nationality serves as the only nexus through which states can be obligated to establish jurisdiction over the international crimes. When connecting the relevant obligations to the case of Kotey and El Sheikh, it is evident that, other than Syria, only the UK would have been under an obligation to establish jurisdiction. This

88_{Articles 6 – 8 Torture Convention}

89_{CAT, ‘General Comment no. 3: Convention against Torture and Other Cruel, Inhuman or Degrading}

Treatment or Punishment: implementation of article 14 by States parties’ UN Doc. CAT/C/GC/3 (2012), para. 17

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obligation - together with the obligations that are relevant after the establishment of jurisdiction - dissolved through the withdrawal the nationality.

In situations where there is absence of state obligations to establish jurisdiction, states could still be compelled to establish jurisdiction by, for example, appealing to morality rather than law. If, successful, states could perceive the establishment of jurisdiction as a duty rather than as a right.91 Still, no state has appeared willing or obligated to establish jurisdiction over Kotey and El Sheikh, which implies that states can persist in their initial unwilling and avoid their obligations concerning the transfer of the men. Therefore, in order for the men to be transferred, the means to counter the unwillingness of states need to be found.

91_{Alex Mills, ‘Rethinking Jurisdiction in International Law’ 84 British Yearbook of International Law 1 (2014),}

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Chapter 4 – Arguments to counter the initial unwillingness of states

The existence of the legal relationship of nationality is crucial in the case of Kotey and El Sheikh, whereas it is the only nexus through which states could be obligated to establish jurisdiction. The UK has attempted to sever this bond through the withdrawal of that nationality. As a consequence, the aim of transferring the men can only be achieved if the UK’s initial unwillingness to comply with its obligations is countered. To determine the ‘means’ available under international law for the transfer of Kotey and El Sheikh, ‘means’ should be interpreted as including the legal arguments available to counter this unwillingness.

Throughout this analysis, the relationship of nationality plays a significant role. A possibility of reinstating the obligations the UK had towards its nationals is through challenging the withdrawal of citizenship as a whole. The arguments employed, challenge the decision of withdrawal, based on the applicable international legislation dealing with the right to a nationality. If the arguments to challenge the withdrawal as a whole are unsuccessful, the UK could still be held responsible for the breaches of its obligations prior to the withdrawal of citizenship. Therefore, a second argument to counter the initial unwillingness could be indicated by dividing the obligations the UK had prior and after the withdrawal.

The arguments discussed in the first two sections would, if successful, change the UK’s initial unwillingness to non-compliance. The third and final argument, is not (yet) capable of effectuating such a shift. Whether this argument could potentially transform the unwillingness to non-compliance is highly depended upon future events. The argument is based on the potential responsibility of the UK in relation to a future obligation of prevention. This potential responsibility might compel the UK to establish jurisdiction before the UK could be held responsible.

4.1 State responsibility by challenging the withdrawal of citizenship

In international law states have the freedom to decide who it qualifies as its citizens, which is a corollary of state sovereignty.92 However, this freedom is not absolute, since there are international agreements that restrict this discretion. The decision to withdraw the citizenship of the men could potentially be challenged on the basis of these international agreements. If the withdrawal is non-conform the international agreements, the jurisdictional link of nationality could be reinstated. The first section focusses on the obligations of the UK arising out of the

92_{David Owen, ‘Citizenship and Human Rights’ in Ayelet Shachar and others, The Oxford Handbook on}

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Convention on the Reduction of Statelessness. The subsequent section will analyse the possibility to challenge the withdrawal in an individual complaint procedure under the ECHR.

4.1.1 Challenge withdrawal based on the Convention on the Reduction of Statelessness One the international agreements limiting the discretion of states is the Convention on the Reduction of Statelessness. Under article 8(1) of the Convention, states are prohibited to deprive the nationality of individuals, if that deprivation would result in statelessness. When the UK ratified the Convention, it retained its right to deprive the nationality of naturalized citizens even if that would result in statelessness under the British Nationality Act of 1948. This retentive right is offered to states under the article 8(3)-exception of the Convention. The British nationality Act of 1948 was replaced by the British Nationality Act of 1981. In this new Act, the UK expanded the grounds on which the government could deprive citizenship, but the UK also declared that it would no longer deprive individuals – naturalized or UK-born – of their citizenship, if that deprivation would result in statelessness. Accordingly, the UK no longer relied on the article 8(3)-exception.93_{However, in Section 60 of the Immigration Act of 2014,}

the UK reinstated the possibility to revoke citizenship of naturalized citizens based on the article 8(3)-exception.94 The overview of the UK’s domestic legislation concerning the revocation of citizenship is relevant for the case of Kotey and El Sheikh for two reasons. Firstly, the possibility of withdrawing the citizenship of a UK-born citizen is of interest. Secondly, the overview is relevant concerning the object and purpose of the Convention.

Kotey, other than El Sheikh, was born in the UK, which is an indication that he is a UK-born citizen.95 Based on its domestic legislation and the Convention, the UK may withdraw the citizenship of UK-born citizens, but only if the Secretary of State is satisfied that the decision will not render the person stateless.96 The Secretary of State must have ‘reasonable grounds for

believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory’.97 Whether Kotey will be granted nationality by another state is profoundly questionable, since he is an alleged terrorist. Hence, the withdrawal of the citizenship of Kotey could be a breach of the obligations stemming from the Convention on the Reduction of Statelessness.

93_{Luca Bücken and René de Groot, ‘Deprivation of nationality under article 8(3) of the 1961 Convention on the}

Reduction of Statelessness’ 25 Maastricht Journal of European Comparative Law 1 (2018), p. 48 – 49

94_{Section 60 Immigration Act of 2014 (27 May 2014)} 95_{Goldman and Schmitt (n. 12)}

96_{Section 40(4) British Nationality Act 1981 (29 October 1981)} 97_Ibid.

The ISIS-Fighters Who Have Lost Their Way Home: A Case-Study of Alexanda Kotey and Shafee El Sheikh