The Global Coalition Against Daesh met in Riyadh this week faced with a singular problem. What to do with the extraordinary prisons and camps in Northeast Syria whose existence they have supported and sustained for seven years? The answer, in a joint statement from the governments of the United States and Saudi Arabia, shows signs of strain, despite statements of continuity on old policy:
The participants reaffirmed their priorities, including the swift transfer and safeguarding of ISIS detainees, third-country repatriation, the dignified reintegration of families from al-Hol and Roj camps to their communities of origin, and continued coordination with Damascus and Baghdad on the future of the Defeat ISIS campaign in Syria and Iraq. Participants welcomed the Syrian government as the 90th member of the D-ISIS Coalition. Coalition members underscored their readiness to work closely with the Syrian government and encouraged members to provide direct support to Syrian and Iraqi efforts.
The strain is, we argue, a forced reckoning on the long-term sub-contracting of a non-state armed group (SDF) to take care of a self-made detention problem, plus a reliance on complex allies like the Kingdom of Saudi Arabia to lead on resolving it. Moreover, the challenges for states meeting in Riyadh comes not from the blatant illegality of detention, and mass transfers that appear to embrace refoulement at scale, but the fact that the transfers of prisoners from Syria to Iraq is posing legal and practical quandaries.
On Jan. 21, while the Syrian army was retaking Kurdish-held territory in Northeast Syria, the United States, supported by the anti-Daesh Coalition, began transfers of foreign men and boys detained based on their alleged association with ISIL-Daesh to Iraq. Transfer was rhetorically justified by fears about the security of the prisons, rumors of prisoners escaping or being released by the Kurdish Syrian Democratic Forces (SDF) before territorial loss, and western States that just didn’t want to take any chance of these prisoners going free. That day, over the course of several intense hours, the first 150 prisoners were transferred, reportedly in small batches, to prisons in Iraq. On that same day, CENTCOM affirmed that it expected to assist in the transfer of approximately 7,000 detainees to Iraq within days.
At time of writing, we have ascertained that at least 500 people and as many as 4,583 detainees may have been transferred cross-border. The scale of this cross-broader transfer on the basis of alleged terrorism affiliation for men and boys who have been detained without trial or process, for almost a decade, is unprecedented globally. Meanwhile, the government of Iraq has swung between proclaiming that the transfers will not impinge on Iraqi national security, and being unequivocal that these transfers are “temporary.” Iraq has also insisted that foreign countries should take their nationals back to detain and try them in countries of origin. Maybe they, too, could smell a rat.
In parallel, developments on the ground have been fast and furious, including large-scale departures by women and children from Al Hol camp. The basis of their release remains uncertain (whether self-initiated or compelled by controlling government forces), their destination unknown (to further incarceration in undefined locations, freedom in cities like Idlib, or into the coercive control of the individuals and local tribes). Despite years of holding women “in a prison within a prison,” the notorious Annex of Al Hol camp exists no more. And, as women leave Al Hol, concerns about the physical safety of the women and children who remain in SDF detention in Al Roj grow, with allegations of physical violence, theft, and harassment emerging.
Detainee transfers have happened before. In early 2019, French men were transferred from Northeast Syria to Baghdad. In 2020, the central penal court of Baghdad sentenced 11 of these men to death by hanging. In September 2025, another 47 French detainees were transferred to Iraq to be tried. These are the transfers we know of.
Last month, we noted that these Syrian-Iraqi transfers absolutely contravened the principle of non-refoulement, raising the international legal responsibility of both territorial and transferring State for violation or a customary international law prohibition. We also described the absolute dearth of fair trial protection in Iraq for individuals accused of terrorism, and the mandatory death penalty under Iraq’s counter-terrorism legislation.
Here, we raise a different conundrum: can Iraq legally, as a matter of both domestic and international law, actually try these individuals for crimes of terrorism or core crimes as a matter of universal jurisdiction under domestic law? We identify four problems:
First: Can Iraq sustain this new massive influx of detainees, given the systemic overcrowding (by about 300 percent) of its carceral system, the result, inter alia, of a surge of convictions for domestic terrorism crimes, or prison pending judgement for these crimes?
Second: Can Iraq detain such persons and remain in compliance with their international law obligations on fair trial and human rights compliant conditions of detention? Detention conditions in Iraq are squalid. Multiple international assessments have already concluded that they are violations of the most minimum international standards.
Third: Who will pay for the cost of transfer and detention for up to 7,000 individuals? In 2020, it was reported that the French government had paid two million dollars per detainee to Iraq for the prisoners to be detained and tried. Given the speed at which the decision to transfer detainees was taken, it seems highly unlikely that any agreement about payment and other modalities have been concluded so far. We assume this is part of the bargaining in Riyadh.
Fourth: Does Iraq have lawful jurisdiction to try these cases?
An influential judge on Iraq’s Supreme Judicial Council has affirmed, in a statement without binding legal effect, that “the Iraqi judiciary has criminal jurisdiction to prosecute all perpetrators of terrorist crimes domestically, regardless of the nationality of the perpetrators or the place where the crime occurred.” This is a broad assertion. And rhetorical assertions don’t tell us what will actually happen in court. A basic principle of the rule of law is that the right to prosecute someone depends on whether a jurisdictional link exists between the country and the individual or the crime. Put simply here, either the individual charged holds Iraqi nationality, or the crime was committed on Iraqi territory, or the victims are Iraqi.
While we don’t know the nationality of all the men transferred or what they are alleged (or not) to have done, or where, legal representatives and families, in previous transfers, have claimed that the men had never set foot in Iraq. In previous transfers, lawyers have argued that Iraq does not have the jurisdictional competence transferees from Syrian detention. We think the same argument will be made here, and it may be right.
According to a French lawyer representing some of the men transferred in the fall of 2025 who visited some of her clients in Iraq in late January, the interviews in prison by the Iraqi authorities aim to have detainees confess that they spent time in Iraq before the fall of the Caliphate. While not a survey of all transferred detainees, this insight reveals at a minimum, preoccupation about this question of territorial nexus from the Iraqi authorities.
Critically, Iraq has not legislated for crimes of universal jurisdiction, such as genocide or crimes against humanity in national law. This would suggest none of these transferred men can be charged with such crimes. And, even if there were some considerable haste demonstrated to pass such a law now, the problem of ex post facto law rears is inconvenient head.
More pedantically but fatal to prosecution, article 13 of the Iraqi constitution covering universal jurisdiction does not include crimes of terrorism. Article 9 of Iraq’s Penal Code, which provides that its provisions are applicable to “any person” who commits “an offence that affects the internal or external security of the State or that is against the Republican regime” outside Iraq. So, despite its obvious vagueness defect this provision appears largely inapplicable to terrorism. This is because terrorist offences are included in Law 13 (2005), which is a specially enacted law for these crimes. In short, absent clear evidence of territorial links between those transfers and acts or victims on the territory of Iraq, there may be no basis to try those transferred in Iraqi courts.
In the search for jurisdictional nexus, the meeting participants in Riyadh may channel mutual judicial cooperation as their best prosecution bet, through the implementation of the obligation to prevent safe havens for terrorists and extradite or prosecute (aut dedere aut judicare). This obligation was a central element of the UN Security Council counter-terrorism framework (UNSCRs 1373 (2001) and 1456 (2004)). But even if we accept that the Security Council had, through chapter VII resolutions, created mandatory global extraterritorial jurisdiction for “terrorism” beyond the sectoral counter-terrorism conventions, the main obstacle (here again) is the lack of a universal definition of terrorism, combined with the vagueness and broadness of Iraq’s Law 13 (2005), particularly of its definition of terrorism and of membership to a terrorist group.
Despite the rush to transfer, with the apparent goal of charging hundreds of detained men (and possibly women in the future) with core crimes and/or with terrorism, some obvious steps have been ill-thought through. “Transfer in haste, regret at leisure” may be one applicable maxim. Despite emerging information that senior judges at Baghdad Karkh Investigative Court have started terrorism investigations, the quality of any evidence from current or past interrogations should seriously unnerve states who rhetorically insist they oppose the use of torture to extract confessions, and there should be serious doubt about the quality of evidence gathered in Iraq from 2014 onwards, as the state was fighting for its survival against the territorial take-over by the Islamic state. To suggest that the niceties of rule of law observant evidence collection was happening or that there are waiting files for thousands of transferred men and boys from Islamic State borders on the preposterous, even as it provides cover for those states who continue to evade their legal responsibilities on repatriation.
Given these legal defects, a worrying move might be an ill-conceived attempt to handsomely compensate Iraq for accepting thousands of transfers to a legal process clearly incompatible with the most fundamental elements of a rule of law-based system, namely a firm legal basis to deprive a person of liberty and charge them with a crime.
Where does that leave us? First, it raises the prospect that prolonged arbitrary and unlawful detention becomes the legal status quo in Iraq. This, in effect, moves systematic arbitrary detention across the border from Syria to Iraq. And moreover, that this sets a global precedent on the acceptability of such detention. Second, the rule of law requires that with no basis to detain, some individuals should be set free, but given practice to date in Iraq and Syria, this seems unlikely. The result: sustained arbitrary detention supported and paid for by the Global Coalition. Third, the most clearly international law compatible solution is that States whose nationals have been transferred will be forced to do what they should have done long way, namely repatriate them and charge with terrorism or core crimes as appropriate, or set them free with monitoring and rehabilitation strategies to the fore. Those States appear to seek every highway and byway to avoid that logical and necessary outcome. The moral of this story may well be, think (or maybe ask some competent international lawyers their views) before you transfer between black legal holes.
– Anne Charbord and Fionnuala Ní Aoláin KC (Hons), Published courtesy of Just Security.
