Where should “the Beatles” be tried?
The Beatles are four British ISIS members accused of torture, mock execution and decapitation of foreign hostages, including three Americans — journalists James Foley and Steven Sotloff and American aid worker Peter Kassig. Hence, the United States has a keen interest in seeking justice, but so do others.
{mosads}Two members of the Beatles — El Shafee Elsheikh and Alexanda Amon Kotey — were captured in January by the Syrian Democratic Forces, a Kurdish militia working with the United States. The U.S. killed Mohammed Emwazi — also known as “Jihadi John,” who appeared in beheading videos — in a drone strike in Raqqa in 2016. Turkey convicted the fourth member, Aine Davis, last year and sentenced him to seven-and-a-half years in prison.
In addition to Elsheikh and Kotey, the Syrian Democratic Forces reportedly have captured more than 1,000 foreign jihadists, posing an important and urgent question regarding detainee operations and bringing those extremists to justice. Criminal proceedings are possible in multiple jurisdictions.
U.S. Defense Secretary Jim Mattis recently declared that allied countries of origin should take custody of ISIS foreign fighters captured in Syria. Likewise, Lord Carlile, who was the independent reviewer of counterterrorism laws in Great Britain, said that the Beatles “should be returned to their country of origin, where their case should be considered in a normal way with British rights, British duties, British obligations and British responsibilities.”
Complicating matters, though, is that the United Kingdom stripped both men of U.K. citizenship to prevent their return, rendering them stateless. The United Kingdom could conclude, however, that the suspects’ nationality would not prevent it from taking the men into custody for prosecution.
The British Government minister for the Ministry of Defense, Tobias Ellwood, has called for Kotey and Elsheikh to be tried before the International Criminal Court, which has authority to prosecute crimes against humanity, but the ICC is considered a court of last resort when other nations do not have the capacity or capability to prosecute, which is not the case here.
Japan could well assert an interest in prosecution since ISIS beheaded two of its citizens, Haruna Yukawa and journalist Kenji Goto. And French courts could prosecute if evidence demonstrates that French journalist Nicolas Henin was held hostage by the Beatles. It is not clear whether Japan or France are seeking to assert jurisdiction.
The United States could assert its interest in prosecution. If so, the British likely would demand guarantees against the death penalty and against trial by military commission at Guantanamo Bay. Although Secretary Mattis indicated that foreign fighters captured by the Syrian Democratic Forces should not be sent to Guantanamo, President Donald Trump and Attorney General Jeff Sessions are open to expansion of detainee operations at the island prison.
During his State of the Union address, President Trump announced that he had rescinded President Obama’s executive order directing the closure of the prison, and ordered his administration to conduct a review of future operations. One hopes that any review will consider that no 9/11 suspect yet has been brought to justice, whereas federal courts have convicted more convicted more than 600 individuals in terrorism cases since 9/11, including Dzhokhar Tsarnaev, the Boston Marathon bomber, and countless al Qaeda members.
In a New York Times op-ed, “Justice for our Children, Killed by Isis,” American families of former hostages killed by ISIS, including by the Beatles, wrote: “We want the world to know… that it would be a mistake to send killers like these to the military prison at Guantánamo Bay, or to seek the death penalty in court. Either path would make them martyrs in the eyes of their fanatic, misled comrades in arms — the worst outcome.”
There are multiple good options to bring the Beatles to justice before criminal courts in the United States, the United Kingdom and Japan. Guantanamo should be ruled out. What is needed is justice that is fair, transparent and lawful. The message to ISIS fighters is — and must be — that no one is above law, and that the law in its transparent administration is what distinguishes civilized nations from brutes.
C. Dixon Osburn is executive director of the Center for Justice and Accountability, a U.S. nonprofit international human rights organization based in San Francisco. Follow him on Twitter @DixonOsburn.