Lack of due process in Iraqi courts could help ISIS

LONDON — Islamic State (ISIS) militants are holed up in their last enclave in eastern Syria, pummelled by coalition air strikes and a ground offensive by the Syrian Democratic Forces (SDF). Further east, Iraqi soldiers closely watch the border between the two countries, on guard against ISIS members trying to slip across the frontier.

This is only one reason events in Syria are also an Iraqi affair. At the end of February, the SDF handed over 280 Iraqi and foreign detainees to Iraq. Reuters reported that the ISIS detainees included nationals from France and unspecified Arab countries.

Speaking during a visit to France, Iraqi President Barham Salih said 13 ISIS detainees would be tried in Iraq. “All those accused of having committed crimes in Iraq, against the Iraqi people or against Iraqi installations in Iraq, we will seek to prosecute them,” he said. French President Emmanuel Macron did not comment on whether French citizens were among those handed to Iraq.

A day after Salih’s comments, Iraqi Prime Minister Adel Abdul-Mahdi said Iraq could help transfer foreign ISIS fighters to their home countries or prosecute them in Iraq if they are charged with crimes committed there.

The debate about what to do with ISIS suspects caught in Syria has become increasingly urgent in Western countries as more foreign ISIS members are held by SDF forces.

The transfer of SDF detainees to Iraq also shines light on how the Iraqi court system has been dealing with ISIS suspects. Human rights groups have voiced concerns over a suspected lack of due process.

Trials of ISIS suspects in Baghdad “have lasted as short as 5 minutes, have consisted of a judge interviewing the suspect, usually relying on a confession, often coerced, with no effective legal representation,” said Belkis Wille, senior Iraq researcher at Human Rights Watch (HRW).

During battles against ISIS, several Iraqi units have been accused of torturing people they suspected of being supporters of the militant group.

An HRW report claimed the central government and Kurdish regional authorities had charged hundreds of children with terrorism in connection with ISIS. HRW said that, at the end of 2018, approximately 1,500 children were held by authorities for alleged affiliation with the militant group. The report said children had been tortured to make them confess in front of a judge.

The authorities, added Wille, “have also made no efforts to solicit victim participation in the trials, even as witnesses.” She said: “A more fundamental concern is the overly broad and vague counterterrorism definition being used [by the central government] to prosecute suspects.”

HRW raised concerns that the transfer of ISIS suspects to Iraq exposed detainees to the risk of being tortured.

The Associated Press calculated in March 2018 that Iraqi authorities had detained or imprisoned at least 19,000 people accused of connections with ISIS or other terrorism-related offences and sentenced more than 3,000 of them to death.

In a review of Iraq’s 2005 anti-terrorism law, the American Bar Association said the law “criminalises otherwise lawful activities that are unrelated to deterring or punishing terrorism.” The law’s definition of terrorism refers to both petty and serious crimes, “ranging from mass killings to vandalism,” the review said.

The United Nations noted that “among the broad range of activities defined as terrorist acts, many do not meet the threshold of ‘most serious crimes,’ under international human rights law.”

Baghdad is a signatory to several international human rights treaties, such as the International Covenant on Civil and Political Rights.

Analysts warned of the consequences.

Large-scale protests in Sunni-majority areas of Iraq in 2012-13 called for a repeal of the law before being violently crushed by the government of Nuri al-Maliki.

“Part of why ISIS rose to power is because the process of transitional justice [in Iraq] did not go well. Maliki used the anti-terror law to exact retribution against Sunnis, basically a campaign of revenge,” said Muhanad Seloom, honorary research fellow at the Institute of Arab and Islamic Studies at the University of Exeter.

A lack of due process in the Iraqi justice system and Western countries’ refusal to take back their citizens, Seloom added, would affect ISIS’s future in Iraq and beyond. Citing efforts by several countries to strip ISIS members of their citizenship, he said Western countries are “de facto creating citizens of the Islamic State, which is very dangerous.”

The battle against ISIS is not just a military standoff, it’s also a “moral fight,” Seloom said. The militant group’s propaganda machine will “take advantage of these policies and say: ‘Our citizens now are being persecuted by the Iraqi justice system in a revenge campaign.’”

“We are helping ISIS by refusing to take our citizens back,” Seloom said, adding that the treatment of ISIS detainees will affect the next generation as well.

Manuel Langendorf is a writer and editor focusing on the MENA region. You can follow him on Twitter @m_langendorf.

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