As ISIS fighters and their families gather in makeshift camps in eastern Syria, the international community is grappling with the dilemma of what to do with 850 men and a few thousand women accused of loyalty to a group responsible for genocide and war crimes. Western countries have adopted different approaches but none appear willing to take their own radicalised nationals home.
Britain has already stripped Shamima Begum, a high profile runaway ISIS bride of her citizenship. The US followed with the case of Hoda Muthana, despite concerns that a hasty US withdrawal from Syria could prompt their release. Meanwhile, Belgium and Sweden called for a Nuremberg-like international tribunal far from their own borders in the Kurdish-administered part of war-torn Syria.
In what is increasingly looking like the most popular solution, France opted to delegate the prosecution of 13 of its ISIS-affiliated nationals captured in Syria to Iraqi justice. Iraq is increasingly emerging as the willing executioner who rids societies of its unwanted. Its president, Barham Salih, accepted this week an official request by French President Emmanuel Macron, saying that the French citizens “will be tried according to Iraqi law”.
Iraqi Prime Minister Adel Abdul Mahdi said on Tuesday that Baghdad could help to transfer non-Iraqi ISIS detainees held by the Syrian Democratic Forces (SDF) in Syria. Iraqi MP Alia Al Emara told The National that the Iraqi judiciary “will not be merciful to anyone belonging to the group”. “Iraq will set an example for the prosecution of ISIS fighters in the region,” she assured. While the international community is devising measures to oversee operations on the ground, the flawed Iraqi judiciary system does not guarantee an outcome many Western countries will want to be remembered for.
In September 2017, the UN established the need to launch an investigation into the crimes committed by ISIS which led to the deployment of the investigative team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant (Unitad) in October 2018. The team, led by Special Adviser Karim Asad Ahmad Khan, is mandated to collect, store and analyse evidence of ISIS on war crimes, crimes against humanity or genocide according to international standards for use in Iraqi courts.
“It is only by establishing the investigative team as an independent objective and trusted source of evidentiary material… that we can best support the government of Iraq in its pursuit of accountability and justice,” Mr Khan told the United Nations in occasion in December 2018. The team may well succeed in analysing the remains of 12,000 bodies buried in more than 200 mass-graves across Iraq, collecting the testimony of those who survived ISIS’ brutal rule or compiling the troves of evidence comprised of video-taped executions and other propaganda material.
But the ability to collect proof matters little if there is no court available to hear that evidence gathered against their foreign nationals. The failure of Iraqi courts in prosecuting ISIS suspects has been extensively documented by Human Rights Watch and other organisations on the ground. Iraqi law covers a wide variety of crimes – including membership or support for a terrorist organisation – but it does not include rape, sexual slavery, and other serious crimes such as war crimes, crimes against humanity or genocide, which are not enshrined in national law.
Ali Al Bayati, a board member of the Iraqi High Commission for Human Rights, told The National that “the fact that Iraqi law does not deal with international crimes presents a huge problem”. Hisham Al Hashimi, an Iraqi security expert and former security adviser, told The National that Iraq is taking steps to make sure that its legislation complies with resolution 2178 – which tackles the threat of foreign fighters in Iraq and Syria – and 2199, on combating illegal funding to terror groups.
But concerns remain as to whether courts such as the Nineveh counter terrorism courthouse – which HRW found in 2017 to be operating out of an abandoned home in the town of Hamdaniya – can be trusted with holding ISIS members to account. According to Belkis Wille, senior Iraq researcher at Human Rights Watch, “Unitad in no way represents a significant enough investment in trying to bolster the Iraqi justice system.”
“European countries and other countries who are supporting Iraq have done nowhere near enough to ensure that prosecutions could proceed safely,” Ms Wille added. In September 2017, the Iraqi judiciary had already handed down around 200 death sentences and dismissed less than five per cent of the cases they were hearing, HRW found. While harsh sentences may be seen favourably in the West, the watchdog believes the prosecution of people who did not commit nor were complicit in serious crimes beyond membership in or support for the group could have dire repercussions for Iraq’s internal stability.
A similar strategy was deployed in the aftermath of the US invasion, introducing a sweeping “de-Baathification” campaign to purge the Iraqi civil and military services of thousands of members of Saddam Hussein’s party. This, the group warned, led to the marginalisation of a segment of the population and the sowing of new grievances that still fuel sectarianism in the country today.
Yet, finding an alternative to an Iraq-led effort is almost implausible. Swedish Minister of Justice and Migration Morgan Johansson and Belgian Prime Minister Charles Michel have called for an international tribunal to be established in the Kurdish-administered part of Syria (despite it not being a state and having rudimentary courts that may not exist much longer). “It is reasonable to examine the possibility of doing something similar where the war begins to end,” Mr Johansson said this week.
Abdulkarim Omar, the head of the foreign affairs commission for the Kurdish-led authority in north-east Syria, said this week that “if Europe and the coalition countries don’t want to take back their citizens, then one alternative is the establishment of an internationally sponsored tribunal.” Paradoxically, recurring to the International Criminal Court (ICC) – the tribunal created precisely to adjudicate the type of atrocities that ISIS has committed – may not be viable.
The Rome Statute authorises the ICC’s jurisdiction only in limited circumstances to protect sovereign nations against frivolous charges. The principal basis for prosecution lies where the crimes are committed in the territory of, or by nationals of, a party to the Rome Treaty. Neither Iraq nor Syria has ratified the treaty or is expected to do so in the near future.
In spite of this, Syria and Iraq could still decide to accept the jurisdiction of the ICC, or they could be referred to the ICC by the UN Security Council. But each of the five permanent members of the council can veto any such action – a card Russia has played and is likely to use again. A third way still exists, but it is the only one no country seems willing to take.
Hans-Jakob Schindler, Senior Director at the Counter Extremism Project (CEP) and special adviser to Unitad, said the investigative team in Baghdad could be used by Western countries to hand down a sentence to their nationals on home turf in a way that is fair, effective and that minimises the risk of losing tracks of their whereabouts.
“If you have an individual who comes back and you cannot prove that individual joined ISIS, there is someone [from Unitad] in Iraq right now who will collect the evidence in a manner that is compatible and admissible with European courts – all you need to do is ask,” he said.
Mr Schindler said that Western countries “have the tools to manage the risk” of taking their nationals back. Unlike the Nuremberg days, when “four great nations” voluntarily submitted their captive Nazi enemies to the judgement of the law, no Western politician seems eager to make a case for the fair trial of ISIS’ foreign recruits. Dumping the problem on Iraq, however, may not yield a lasting solution.