Holding Minors Accountable for Serious Crimes Committed in Syria
Part I – Child Perpetrators in Europe
This brief is the first in a two-part series which aims to answer the question of how national, regional, and international authorities (e.g., police, prosecutors, social services providers) should deal with individuals who committed crimes in Syria as minors. While the second brief will focus on child perpetrators currently in SDF territory and Iraq, this brief is tailored to child perpetrators outside the region, namely in Europe. In particular, it focuses on individuals who were repatriated to their country of origin or who have entered a state another way, such as through an asylum process. It outlines the core challenges facing authorities, then suggests interventions for balancing the best interests of children and national security concerns.
Around 4,640 foreign children were affiliated with ISIS in Iraq and Syria between 2009 and 2017, and another 730 infants were born to foreign parents. Many of these individuals remain in Northeast Syria. Some reside in squalid camps where they face inhumane conditions, persistent violence, and the threat of ideological extremism. Others are held in detention facilities that are notoriously overcrowded and devoid of legal protections. This is even though people are more likely to recidivate or re-adopt dysfunctional behavior the longer they are exposed to violence and are denied their due process rights. Thus, states must repatriate citizens, including children born to foreign nationals in Syria, and take these actions.
First, nationals should be granted legal documentation to facilitate their return, including birth certificates and travel documents. Minors should not be repatriated unaccompanied by their mothers without compelling evidence that separation is in the best interest of the child. Extended families of minors without parental guardians should be contacted for custodial purposes. If a custodian cannot be identified, the repatriating country should arrange state services.
Second, states must coordinate with the SDF and local civil society organizations to start psycho-social support while individuals are still in Syria, many of whom suffer from severe trauma linked to their conflict-related experiences and life in camps or detention facilities. The goal of services should be to emotionally prepare returnees for imminent changes to their environment. Services should account for cultural, religious, and gender challenges, as well as the physical and psychological safety of both staff and clients operating in at-risk environments.
Third, upon their return, individuals should be assigned trauma-informed caseworkers who provide support, guidance, and counsel to returnees and relevant authorities during reintegration and accountability processes. Authorities should consult caseworkers when determining accountability measures for individuals who committed crimes in Syria as minors.
Throughout the conflict in Syria, various armed groups have forcibly recruited children. Children have also joined armed groups as a desperate attempt to survive poverty, displacement, and trauma. But the fact that some minors committed conflict-related crimes does not excuse the violations they faced which may have been the impetus for their illegal acts. Understanding the reasons why minors become involved with armed groups is important for determining culpability, establishing disengagement needs, and preventing re-recruitment to extremist organizations. Authorities should assess individual culpability considering victim status by doing the following.
First, authorities should consider the circumstances leading to criminal activity case-by-case. These circumstances should be weighed against the mental state of the individual when the crime allegedly occurred, the aim of which is to fairly determine the minor’s purpose, knowledge, and recklessness in committing the illegal act. In doing so, the victim status of individuals who committed crimes as minors is protected, while the needs of survivors and witnesses are respected in accountability mechanisms.
Second, authorities should consult Syrian civil society organizations and the International, Impartial, and Independent Mechanism on Syria during accountability processes to ensure that they are rooted in the social, cultural, and political realities of the Syrian conflict, the goal of which is to comprehensively account for factors that may have led to children’s perpetration of crimes (e.g., forced recruitment, poverty, and so on).
Judicial accountability efforts undertaken by authorities are critical for achieving justice on behalf of survivors, regardless of the perpetrator’s age, gender, or the circumstances they faced when the crime was committed. But efforts to hold someone accountable will differ on a case-by-case because of the perpetrator’s victim status, the nature of crimes, and the scope of victims connected to the crime. If authorities determine that legal processes are necessary, then these factors should be considered.
First, legal proceedings should align with international standards for the fair administration of justice. Defendants should be afforded a presumption of innocence, an impartial and efficient judiciary, and a right to remedy. These principles should be upheld by all actors involved in proceedings – from police to lawyers to judges. Punishment should be proportional to the perpetrator’s age when the crime was committed, the circumstances of the crime’s occurrence, and the gravity of the crime. It should also be gender sensitive. Minors should not be confined to facilities with adults, and the death penalty should not be imposed.
Second, states should set the minimum age of criminal liability to at least 15-years-old in consideration of the mental, emotional, and intellectual development of minors. Proceedings must account for the best interest of the child and adhere to international juvenile justice standards. Individuals who committed crimes between the ages 15 and 18, but who are now adults, should be afforded the same protections as juveniles in respect of their age when the crime occurred.
Third, psychosocial support (PSS) should be integrated into legal proceedings, including for returnees. Offering PSS to survivors, witnesses, and returnees based on their unique needs helps to safeguard the emotional wellbeing of participants. For survivors and witnesses, PSS helps them limit re-traumatization caused by recounting traumatic experiences. For returnees, PSS helps them digest the accountability process, facilitate their communication with the parties by controlling stress, and limit the chance of recidivism.
Disengagement and reintegration constitute non-punitive and reparatory measures that acclimate individuals to their new environment. These measures encourage perpetrators to acknowledge the effects of their crime, move past feelings of marginalization, and counter stigmatization that might cause them to exacerbate old grievances, engender new ones, and recidivate. Thus, authorities should consider the following.
First, authorities should facilitate the development of disengagement and reintegration programs for returnees in consultation with caseworkers. Programs should incorporate PSS at every stage. Bearing in mind that disengagement and reintegration will take different forms for different people, authorities should also accommodate gender sensitive and individualized interventions to counter extremist narratives and help individuals make amends for the harm they have caused. Additionally, programs should tailor tools focused on harm reduction and deradicalization, building on those used in existing programs.
Second, states should engage in information-sharing to ensure that best practices and lessons learned are shared among authorities across jurisdictions.
The actions of those who committed crimes in Syria as minors pose complex ethical, legal, and logistical challenges for the international community. For foreign nationals, long-term solutions to these challenges inevitably involve repatriation to their country of origin. Once returned, authorities face the challenge of determining the scope of the individual’s victim status, then assigning the most appropriate punitive or non-punitive measures. As described, implementing these long-term solutions inevitably involves the coordination of various actors in different jurisdictions, such as police, prosecutors, and social service providers. In doing so, authorities can facilitate one of the few avenues for accountability available to survivors of crimes committed in Syria, no matter the perpetrator’s age when the crime was committed.
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