A little over a fortnight ago, Karim Khan, the lawyer heading the UN Investigative Team to Promote Accountability against ISIS (Unitad), gave his final briefing in that capacity to the UN Security Council. He said there was "clear and compelling evidence" that between 2014 and 2017 ISIS committed genocide, crimes against humanity and war crimes in Iraq.
No one knows exactly how many ISIS members are currently housed in Iraq’s overcrowded prison system, but a low estimate is somewhere in the thousands. No one knows how many have been tortured or sentenced to death, but the figures are thought to be high. And no one knows how many have actually been executed, either – Iraq does not publish records.
The ambiguity might be slightly easier to accept if it were certain that every convict were guilty, and that those slated for death row were killers themselves. It’s true that ISIS was hardly ambiguous in its intention to torture, enslave and wipe out whole sections of Iraq’s population. Due legal process didn’t come into it for them. That Iraq and other countries are disinclined to apply due process in return now that their terrorisers are themselves in the dock is, perhaps, understandable.
But the way in which Iraq and the dozens of countries from which foreign ISIS fighters hail have pursued the course of justice over the past few years has created a mess. Moreover, it risks damaging prospects for a real resolution to the years of suffering ISIS caused, and extending the terrorist group’s longevity.
The burden of dealing with ISIS should never have fallen so heavily on Iraq in the first place. Although thousands of Iraqi citizens joined ISIS, as many as 40,000 fighters were foreign, including several thousand from Europe.
When the terrorist group was finally run out of its last remaining Iraqi territory, there were three options for prosecuting its members: repatriate them to face trial in their home countries, create an international tribunal, or try them where they were caught (that is, in Iraq).
Astonishingly, the consensus achieved in the West was to go for the third option. Countries did not want to bring suspected terrorists home, and an international tribunal is apparently too complex and expensive. So they shuffled a huge pool of potentially dangerous individuals – and their families or innocents unlucky enough to have been near them when they were arrested – into a legal system incapable of dealing with them.
And so Iraqi authorities began a series of shotgun trials, seemingly more concerned with revenge and quick convictions than with ascertaining the level of guilt. There were a lot of cases to get through: from January 2018 to October 2019, Iraq’s judiciary processed more than 20,000 terrorism-related cases, and even after those were finished, there were thousands more pending.
Representatives from the UN Assistance Mission to Iraq (Unami) observed 619 of these cases. In a report, they wrote that Iraq “has made considerable efforts to ensure accountability” and that Unami “generally observed efficiency, structure and order in the conduct of judicial proceedings”.
There’s always a “but”.
“Nonetheless,” the report continues, “the findings show serious concerns.” These include violations of fair trial standards, an overreliance on confessions, frequent allegations of torture and a lack of transparency.
One of the biggest problems, Unami notes, is that all ISIS-related prosecutions are tried under Iraq's wide-ranging 2005 counterterrorism law. It is applied to a broad range of offences, in effect maximising the conviction rate. The death penalty can be used for as minor a charge as simply having been associated with a terrorist group. Thirty per cent of the sentencing hearings Unami attended resulted in the death penalty – 10 times the rate it saw in non-terrorism-related criminal cases.
Several of the ISIS suspects tried in 2019 were alleged foreign fighters. One French suspect, Mustapha Merzoughi, met his attorney just minutes before a short trial in which he was sentenced to death.
“Many judges are not necessarily seeking harsh penalties,” an Iraqi judge told Unami officials. “The law does not give much choice.”
In one case Unami observed at a juvenile court in Baghdad, a boy aged 14 at the time of his alleged offence was sentenced to 15 years in prison because he admitted that his family was part of a group of civilians that acted as "human shields" to protect a group of ISIS fighters from an air strike.
Iraq's sentencing laws are risking more than the lives and liberty of potentially innocent suspects. They are also jeopardising its ability to investigate and arrest guilty suspects.
Mr Khan's team at Unitad have been in Iraq for three years, gathering mountains of evidence against ISIS that meet the most rigorous standards of international criminal law. He has been unable to share the vast majority of it with Iraq's government. The Security Council resolution that authorises Unitad's work mandates that the agency operate according to the "best practices of the UN", which Mr Khan rightly interprets to preclude assisting capital punishment.
There is some debate within the Security Council as to whether or not this should be the case. Amazingly, one of the strongest opponents of Unitad sharing evidence with Iraqi courts on death-penalty grounds is France. It spoke out about this at a Security Council session in 2019, even as Paris was refusing to repatriate Merzoughi, citing respect for Iraq's judicial sovereignty.
To avail itself of the treasure trove of evidence Unitad has secured, the Iraqi government must reform its legislation to try ISIS suspects to a higher standard, and without the death penalty. For most in the Iraqi government, who want to appear as tough as possible on ISIS, that could be an electoral problem. That is partly why a draft reform law has stalled in Baghdad’s Parliament.
It also does not help that so many ISIS-related arrests have been carried out with political or sectarian motive. As Vera Mironova, a former member of Unitad, has written: “Iraq’s aggressive approach to fighting terrorism has basically given ungoverned Shia militias that are often operating outside of government control a free pass to arrest Sunni Iraqis for alleged ISIS membership or sympathy.”
There is some recent progress. Iraq’s autonomous Kurdish region has its own Parliament, which is reaching the final stages of establishing a special court to try ISIS suspects according to international standards. It was designed with the advice of Unitad, and aims to try even people who are not currently in Iraq. If this spurs Baghdad into action, there could be two parallel ISIS courts on Iraqi soil.
Whether either can shed all of the corruption and malpractice that has perverted the course of justice thus far remains to be seen. If they do not, then the cycle of injustice that rages between ISIS and those who wish to see it destroyed will continue.
But hopefully they do, because they will inevitably serve as a model for other legal systems throughout the developing world that have to deal with ISIS. As Mr Khan warned after his Security Council briefing, ISIS is now “alive and kicking in Afghanistan and the Sahel”.
Sulaiman Hakemy is opinion editor at The National