Nations are responsible for holding to account their citizens accused of joining ISIS and committing war crimes. Leaving it to Iraq to play the role of judge, jury, and executioner in cases of foreign nationals overburdens the country and violates international law.

Iraq defeated ISIS within its borders in 2018, leading to the capture of thousands of ISIS fighters, functionaries, and their relatives. Since then, Iraqi authorities have detained or jailed at least 19,000 people accused of being associated with ISIS or other terrorism-related offences. Of those, more than 3,000 have been sentenced to death. Authorities accuse those charged with having supported the extremist group in its vicious three-year rule, which, at its height, covered over one-third of the country.

As many as 41,490 international citizens from 80 countries are thought to have joined ISIS in Iraq and Syria between April 2013 and June 2018, many originating from Western European countries.

Human Rights Watch has heavily criticized the conduct of the Iraqi and Kurdistan Regional Governments during the trials of suspected ISIS members, calling out in particular their “haphazard approach and rampant due process violations.” But how much blame should be accorded Iraq, and should the international community have responsibility for some of the burden by bringing its citizens home for trial?

Lack of Due Process for ISIS Defendants

The vague and wide-ranging counterterrorism legislation used by Iraqi authorities has allowed them not only to prosecute members and supporters of ISIS but also those loosely affiliated with or forced to work under the group. ISIS was not just an extremist military faction. Rather, it attempted to establish a working nation of its own and embedded itself in all areas of society, from hospitals to marketplaces. Civilians were forced to work under its control in order to survive the brutal regime. 

As a result, after the fall of ISIS, a wide range of people have been caught up in the legislation’s broad definition. For example, Iraqi judges can try people who were not involved in violent acts, such as workers in ISIS-run hospitals or cooks who prepared food for fighters. The provision has also allowed the Iraqi government to detain relatives of alleged ISIS members as a form of collective punishment.

Many have been convicted on confessions allegedly obtained by torture, a widespread practice during interrogations in Iraq.

The standard of evidence needed to produce a conviction is uncertain, with the provision prescribing only two penalties: life imprisonment or the death penalty. Many have been convicted on confessions allegedly obtained by torture, a widespread practice during interrogations in Iraq. The admissibility of such evidence is questionable and again violates international law.

ISIS members sentenced to death in Iraq

ISIS members sentenced to death in Iraq

The rule of law has been applied inconsistently during trials resulting in a lack of due process. Baghdad’s Central Criminal Court has produced judgments based on questionable evidence, while Mosul’s court has engaged more seriously in fact-finding and forensics before reaching a verdict. Human Rights Watch has condemned the inconsistent trials, considering them to be rush judgments that rely on “an overly broad law to quickly achieve the maximum punishment of the most people.”

The lack of due process in these trials has raised significant concerns. The U.S.-backed Syrian Democratic Forces already handed over 280 foreign-born ISIS fighters to Iraq in February, and the country was expected to receive an additional 28,000. With such a large volume of suspects to investigate, the Iraqi authorities may rush adjudications to decrease the case load and signal that ISIS will not be tolerated in Iraq. This process could lead to irreversible miscarriages of justice.

Sharing the Burden: How the United Nations Has Helped So Far

But what other alternative prosecution routes are available? The International Criminal Court (ICC), established to complement international judicial systems and prosecute individuals for crimes against humanity and war crimes, is perhaps the most logical alternative. The Court’s advanced gender justice initiative makes it particularly well-placed to bring charges related to rape, sexual slavery, and other forms of gender-based violence also known to have been committed by ISIS.

However, the ICC is unable to adjudicate these matters because it does not have jurisdiction over claims with respect to Iraq or Syria. Neither country is a signatory to the ICC’s Rome Statute, the treaty established the court’s jurisdiction to prosecute war criminals. The Rome Statute also allows the United Nations (UN) Security Council to refer a matter to the ICC when a nation is not party to the Court, but this provision has been inaccessible because Russia has vetoed it over a dozen times, often with China’s backing.

With the ICC not an available option, the UN is working with Iraq to improve its judicial practices. The United Nations Investigative Team for the Promotion of Accountability for Crimes Committed by Da’esh/ISIL (UNITAD), other names for ISIS, aims to assist the Iraqi authorities with investigating Islamic State crimes. Evidence collected will be shared with local authorities, provided they work fairly and independently. UNITAD’s mandate is limited, because it is unable to investigate crimes committed in Syria or crimes committed by groups that fought ISIS in Iraq. Moreover, how UNITAD will use any gathered evidence is unclear: UN policy prohibits assistance in cases where the death penalty may be imposed.

The UN General Assembly also established an international mechanism known as IIIM (International, Impartial and Independent Mechanism) in December 2016 to assist in the investigation and prosecution of those responsible for serious international crimes committed in Syria post-March 2011. The IIIM can investigate crimes committed by all parties in Syria, unlike UNITAD in Iraq, but the procedure faces operational and financial challenges.

However, although UNITAD operates with the approval of the Iraqi authorities and can dispatch teams to the country, IIIM is not supported by the Syrian government and cannot operate inside Syria. The mechanism is essentially inoperable, as no court exists in Syria to hear the evidence collected against foreign nationals.

With the ICC unavailable, and both UN investigative measures extremely limited, an alternative is needed to hold ISIS criminals accountable for their crimes.

Calls for the International Community to Step Up 

Iraq’s approach toward trying suspected ISIS members reflects the lack of an international strategy and effective mechanisms to adjudicate their cases. 

Finding an alternative to the Iraq-led effort seems implausible, but it is not impossible. Hans-Jakob Schindler, special adviser to UNITAD, said that the investigative team in Baghdad could be a gateway to information-sharing and cooperation between Iraq and Western Europe. He proposes that the countries try their nationals on home turf using the evidence collected by UNITAD.

“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,” Schindler said.  Still, European states are reluctant to allow their citizens return, citing national security concerns.

The UK’s reaction to Shamima Begum is a telling example. The British 19-year-old, who ran away to join ISIS in Syria in 2015, declared her desire to return home, but the UK responded by revoking Begum’s citizenship. The US followed suit with the case of 24-year-old American citizen Hoda Muthana.

The UK, the US, and France are all signatories of the United Nations Convention against Torture, but by declining to voluntarily repatriate their own nationals, they are willfully turning a blind eye to the absence of fair trials, free of torture and prejudice, held locally in Iraq.

France’s President Emmanuel Macron has declined to comment on the French ISIS suspects facing trial in Iraq, calling the issue a “sovereign matter” for Iraq. The UK, the US, and France are all signatories of the United Nations Convention against Torture, but by declining to voluntarily repatriate their own nationals, they are willfully turning a blind eye to the absence of fair trials, free of torture and prejudice, held locally in Iraq.

Willful blindness cannot restore justice for the victims of ISIS, but a collaborative approach to prosecution can. The international community worked together after World War II to formulate a system that brought Nazi war criminals to justice in the Nuremberg trials. This international collaboration was motivated by the principles of accountability for war crimes and preservation of human rights. In contrast, the same community today seems reticent to call for the fair trial of ISIS recruits. 

The Nuremberg trials demonstrated that the prosecution of international war crimes could be achieved through international cooperation. To prosecute ISIS operatives, this means a partnership between Western nations, the UN, and Iraq. Such a joint effort would also alleviate the over-burdening of Iraq’s judicial system. Justice must be served in accordance with the norms and principles of international law and with respect for fundamental human rights. Iraq alone cannot play the role of judge, jury, and swift executioner for foreign nationals with any expectation of justice or due process for the suspects on trial or the victims of their crimes, if convicted. The international community must step up.