An Effective Form of Judicial Treatment of Foreign Terrorist Fighters in Kosovo?

Introduction

Following the defeat of Islamic State in 2018 in Syria, thousands of Europeans accused of fighting for ISIS remain detained in Kurdish jails in Syria, while women and children related to these fighters are also living in several camps nearby the Iraqi border. Due to the absence of adequate infrastructure, some ISIS fighters are imprisoned in schools or hospitals without any security. Risks of attacks targeting detainees remain considerable and several fighters have already escaped. Citing security reasons, most Western countries have so far refused to repatriate ISIS foreign fighters of their nationality from Syria, and some countries, like France, are still opposed to the comprehensive repatriation even of  women and children related to these fighters. It is against this backdrop that state authorities in Kosovo initiated a  policy to bring back hundreds of jihadists and their families from Syria and Iraq. This post considers whether the model of repatriation and prosecution of foreign terrorist fighters pursued by Kosovo constitutes a model for other European countries, many of which are considering how to deal with treatment of those individuals.

Repatriation and justice programs

When regard is had to the size of its population (1.9 million), Kosovo was one of the most represented countries amongst foreign terrorists in Syria and Iraq after 2013. A 2020 report by the Kosovo Centre for Security Studies indicated that the estimated number of individuals who left Kosovo for Syria and Iraq was 403. By 2022, 253 Kosovo citizens had been repatriated (130 men, 39 women, 84 children), 100 died, and 82 remained in the Middle East (35 men, eight women, 39 children).  To justify those repatriation initiatives, authorities put forward the fact that the returned or repatriated persons did not bear at this moment any risk to society (this was particularly the case for women). The government also considers that fostering repatriation and ensuring reintegration in society would be particularly beneficial to prevent the spread of violent extremism.

Since 2014, authorities in Kosovo have always included in their repatriation program of repatriation from Iraq and Syria, the investigation, and prosecution of “all persons suspected of being part of the war”. For example, in 2021, following the return of 11 individuals (6 men 4 children, and one woman), the six men were placed in pre-trial detention and the woman in house arrest. All of them were suspected of terrorist affiliation.

Although lack of evidence from the conflict zone has sometimes proven to be a problem, the rate of prosecution is relatively high, notably for men (almost 70% of all male returnees in 2020). According to a recent OSCE study, most of the men indicted following their return from Syria in 2019 and 2020 were charged for the “preparation of terrorist offenses” or “participation and organization in a terrorist group”, as stipulated by Article 136 of the Criminal Code of the Republic of Kosovo. Most of the women that were charged were only convicted for participation in a terrorist group.

Almost all judicial decisions relating to ISIS returnees did not consider the existence of a law enacted in 2015 entitled “Law on the Prohibition of Joining Armed Conflicts Outside State Territory”, which makes it a criminal offense to “join or participate in foreign armies or police forces”. This law was particularly designed to include specific crimes related to the role of several repatriated fighters involved in military operations in Syria and Iraq under the banner of terrorist groups. Nonetheless, between 2018 and 2020, only five people were charged with these crimes. Additionally, no prosecutions were carried out in relation to terrorism financing offenses despite the existence of a number of cases where the funding aspects seemed to be clearly identified. The updated 2019 Kosovo code tried to fill the gaps in the previous one and included as a crime the financing of terrorism and traveling for terrorism.

In 2022, the EU Commission reported an average sentence of three and a half years for repatriated persons in Kosovo. For example, recently, according to the UN mission in Kosovo (UNMIK), a woman, previously repatriated from Syria, received a two-year suspended sentence, while two men were sentenced to two years and six months and three years and eight months, respectively.  

Potential improvements

In one sense the judicial treatment of terrorism we just described it looks satisfactory, notably from a procedural point of view. As reported by the EU rule of law mission in Kosovo, all these cases were handled efficiently and expeditiously by both the Special Prosecution of the Republic of Kosovo and the Special Department at the Basic Court of Pristina. In addition, despite the presence of major constraints, no significant delays were observed.

However, from a substantive point of view, some gaps remain. UNMIK recently reported several shortfalls including early release from jail and a lack of organized post-release supervision. UNMIK also mentioned the fact that convicted people, notably women, received « very lenient sentences » while usually, according to Kosovo law, terrorism-related offenses receive severe punishments, with punitive verdicts on acts such as the commission of terrorism ranging from 15 years to life-long imprisonment. We can also consider here that all the punishments imposed were below the minimum sentence prescribed for the offense entitled “Organization and participation in a terrorist group”, namely five years. As a potential factor, the EU rule of law mission in Kosovo pointed out the excessive use of a guilty plea as an inadequate mitigating factor in some cases. Reviewed documents also demonstrated the consideration by judicial authorities of the time previously spent in detention in Syria before repatriation. The fighter’s average age (28 in 2015) may also be a factor in the imposition of lenient sentences.

The security risk posed by the repatriation program is a major concern in this situation. Early release may potentially increase insecurity risks and recruitment of terrorists in Kosovo. For example, authorities reported that five returnees who went back in April 2019 have been involved in planning a domestic attack and were immediately arrested.

The imposition of lenient sentences was not coordinated effectively with authorities in charge of rehabilitation programs in Kosovo. While the Kosovo correctional service set up rehabilitation and resocialization (R&R) programs for handling foreign terrorist fighters systematically in 2016, efforts by the Ministry of Justice to rehabilitate terrorist inmates in Kosovo only began in March 2018. In 2020, only 18 of the 43 returnees convicted were taking part in reintegration programs. As a potential alternative, authorities considered the possibility for relatives of the returnees to play an important role in the reintegration process. Financial assistance (monthly vouchers) have been provided to the families of returnees (even those still detained) as well as those who were killed or are still in Syria.

A model for all European countries?

The comprehensive repatriation of Foreign terrorist fighters, women, and children based in Syria and Iraq initiated in Kosovo stands in contrast to most other European countries. According to several experts’ views, this type of coordinated repatriation of foreign fighters and family members may allow for a more effective administration of justice. In Kosovo, comprehensive judicial work has been conducted by authorities and is now recognized by the international community. While the use of lenient sentences maybe needs to be reconsidered, current gaps are mainly explained by the lack of operational means and the need to expand the implementation of reintegration programs. All of them can be adjusted and potential improvements are expected in the upcoming years.

The recognition by Kosovo of security threats posed by the absence of repatriations is also an example for the international community. Despite the presence of a permanent risk from several repatriated fighters, authorities in Kosovo consider that a more significant threat is likely to come from those who remain in Syria.  In 2019, several Kosovan detainees escaped from the A Hawl Al-Roja and Ein Issa camps and immediately threatened to commit terrorist attacks. In the future, distance, lack of control, and the absence of information may impede state authorities from monitoring the risks posed by those individuals.