Following the routing of the Islamic State of Iraq and the Levant (ISIL) in and around Raqqa, hundreds of ISIL fighters are now in the custody of US backed opposition groups such as the Syrian Democratic Forces (SDF) and the Free Syrian Army.
These groups do not have the capacity to undertake long-term detention operations in compliance with international humanitarian law. Many of those detained are foreign fighters, who hail from outside the region and from U.S. allies.
During a meeting in Rome last month, US Defense Secretary James Mattis urged members of the anti-ISIL coalition to take back their nationals to determine the best course of actions against them.
Pentagon officials are calling for the repatriation of two Americans in the custody of SDF namely El Shafee Elsheikh and Alexanda Amon Kotey back to the US so they will be prosecuted federal court.
Elsheikh and Kotey are members of British Jihadi group dubbed (The Beatles). The two men were said to be former associates of British national Mohammed Emwazi also called Jihadi john, who was killed in a 2016 air strike.
The two Americans are accused of involvement in the 2014 beheading of at least three US citizens-namely Journalists Jaes Foley and Steven Scotloff as well as Peter Kassig, an Aid worker and a former Army Ranger as well as the deaths and mistreatment of multiple other ISIL hostages.
All three beheadings were gruesomely captured on trophy videos in which the journalists appeared in orange jumpsuits reminiscent of the early Guantanamo photographs of Muslim prisoners incarcerated in the Cuban Island.
According to reports, US personnel have already interrogated Elsheikh and Kotey and have confirmed their identities. James Foley’s mother has called for the prosecution of her son’s killers.
Mrs. Foley’s poignant request could be granted. The United States has the necessary legal framework in place to prosecute both men in federal court. Although the U.S. War Crimes Act does not go as far as it could under international law, it does give U.S. courts clear jurisdiction over war crimes committed by or against US citizens. Included in the list of war crimes is hostage taking and the murder of a civilian no active part in hostilities, a crime subject to the death penalty.
If these two can be linked to the videotapes of these deaths or identified by former hostages, like French Nicholas Henin, the Department of Justice will have direct evidence of their complicity in the deaths U.S. citizens.