From Sweeping Punishment to Real Justice in Countering Terrorism

Designated terrorist groups such as the Islamic State (IS), Boko Haram, and al-Shabab, have committed deplorable human rights abuses. Their spectacular violence against civilians triggers widespread revulsion. Understandably, governments and affected populations want to bring them to justice swiftly and severely.

Yet, a study led by the United Nations University that examined punitive efforts in Iraq, Nigeria, and Somalia shows that too often, nonviolent associates who may have been coerced into cooperating – cooks, drivers, bureaucrats, even the fighters’ wives, for example – are being unfairly or disproportionately penalized. The result is a perpetuation of grievances that risks reigniting violence, and missed opportunities to deliver true justice and end the conflicts in which these groups thrive.

Through fieldwork, our research team studied Nigeria’s approach to Boko Haram, Somalia’s to al-Shabab, and Iraq’s to IS. Our aim was to understand how, alongside or in the aftermath of military operations, the governments in question are dealing with the large numbers of their citizens accused of collaborating with jihadist groups. The detailed results are outlined in The Limits of Punishment: Transitional Justice and Violent Extremism.

The research found people subject to detention or other punitive measure who have diverse associations with jihadist groups, not all of them violent or voluntary. In areas where such groups have gained control over territory, locals might become cooks, drivers, or women married to fighters, either voluntarily or forcibly.

In the case of civilian bureaucrats in the service of the group, people often retain the same jobs that they held before the conflict began – whether as doctors, garbage collectors, and teachers – only under new management.  Those who live under the control of these groups generally must pay taxes, a key source of financing for terrorist activity. Some locals may support the group’s ideology, but others – likely the majority – had little choice but to develop some association with their new overlords.

In the affected countries, the numbers of people potentially falling into these grey areas of association are very large. In Iraq and Syria, for instance, the U.N. estimated that 8 million people were living under IS control in 2015. In January 2018 alone, Iraqi forces and militias moved hundreds of families of IS suspects into isolated camps.

Rather than rigorously sorting through who did what, and under what conditions, authorities are frequently lumping together fighters, noncombatants, and relatives of group members, treating them all as guilty, dangerous, and deserving of heavy punishment. In Iraq, Nigeria and Somalia, trials of individuals allegedly associated with proscribed terrorist groups frequently lack due process.

In many cases, individuals are also subject to punishment that falls outside the formal justice system. For example, several of those accused of affiliation with al-Shabab in Somalia or IS in Iraq have undergone clan and tribal justice processes, respectively, that do not adhere to human rights standards. Paramilitary groups in Nigeria and Iraq have reportedly resorted to extrajudicial killings and torture.

Forced Allegiance

To illustrate how such flawed processes determine the fates of individuals, Mara Revkin, author of the project’s Iraq case study, described the case of Khaled. A Mosul resident, Khaled said he was forced to pledge allegiance to IS when the group took over the city. If he had refused, he said, he would have lost his job at a slaughterhouse and put his family at risk. As Revkin notes, IS is known to have executed dissidents living under its control, so for many residents like Khaled, refusing to collaborate was hardly an option. Khaled is now one of more than 19,000 people who have been detained by Iraq on suspicion of being linked to the IS, even though he was not accused of having been a combatant.

Iraq’s Anti-Terrorism Law criminalizes membership in a terrorist group, and as such does not distinguish between those who directly participate in military activities and those who play other, nonviolent, roles. In a trial that lasted less than 30 minutes, Khaled was sentenced to 15 years in prison on the charge of membership in a terrorist group – even though he pleaded joining the group under coercive conditions.

In Nigeria, the military has detained relatives of Boko Haram suspects on the basis of their family ties. Similarly, in Iraq, the relatives of IS suspects have been forcibly displaced and routinely denied identity cards.

Entire populations who lived under the control of these groups have been widely stigmatized, as many in society (wrongly) believe they must have stayed behind by choice. As the principal of a school in an Iraqi village previously held by IS recounted to Revkin, his entire community was treated as suspect simply because six locals had joined IS.

“We were treated as if we were [IS], too, not real Iraqis,” the principal told Revkin. “In everyone’s minds — and that included the government and the media — it’s simple: Hawija is [IS].”

The results of heavy-handed and dragnet policies bode ill for efforts to resolve the conflicts involving jihadist groups. First, casting punishment too widely can exacerbate the grievances that enabled the rise of the group in the first place. This is particularly the case where those accused of terrorist association are primarily members of a marginalized group, such as Sunni Arabs in Iraq.

Second, an emphasis on punishment can obstruct pathways out of the group for those who wish to disengage. Disillusioned members of armed groups are unlikely to voluntarily defect if they know that what awaits them on the other side is jail – or worse.

Third, too heavy a hand can weaken an already fragile state’s capacity to deal effectively with the most dangerous offenders. In Iraq, for instance, targeting even those with tangential associations to the IS leaves fewer of the state’s limited resources for ensuring that the members directly responsible for atrocities are held to account.

A More Effective Approach

Parallels can be drawn to the cases of hardline policies aimed at combatting criminal groups in the Western hemisphere. In parts of Latin America, for example, mano dura (iron-fist) policies against gangs since the early 2000s have resulted in law enforcement rounding up scores of youth who fit the demographic profile of a suspect (e.g., male, young, tattoos, from a certain neighborhood). Beyond stigmatizing already-marginalized communities, research has shown such policies have inadvertently strengthened gangs, including by turning prisons into recruitment hubs.

The experience in Latin America and cases elsewhere point to alternatives that may be more effective in delivering accountability and justice to societies beset by militant group violence. To degrade a group’s rank-and-file, for instance, states could declare conditional amnesties for those who voluntarily surrender and renounce violence. Such defection-oriented amnesties have helped erode groups like the Lord’s Resistance Army in Uganda.

To avoid undermining victims’ rights, states should attach eligibility conditions to amnesties. For example, such reprieves can be limited to those who did not participate in violence, and made conditional on the beneficiary’s participation in a truth-telling process in which he or she must reveal the crimes committed. Amnesties also should be designed such that beneficiaries lose their immunity from prosecution if they return to criminal activity.

Vanda Felbab-Brown, author of our project’s Somalia case study, found that officials there have experimented with amnesty offers and small-scale demobilization programs for low-risk al-Shabab defectors. These programs offer eligible individuals an alternative to military justice, where they would likely receive the death penalty. Although the programs face many challenges, including the ad hoc nature of amnesty declarations and the difficulty of accurately sorting out who qualifies as “low-risk,” they offer some defectors a feasible way out of al-Shabab. As Felbab-Brown argues in her report, Somalia could improve these programs by developing a concrete legal framework for amnesty and introducing thorough auditing of reception and screening processes for defectors.

Defections are only one possible goal of a transitional justice strategy. A balanced and principled measure of legal leniency – such as an amnesty, or reduced sentencing – can serve as a carrot for amenable group leaders to enter peace negotiations. Such negotiations can address reparations – for instance, by making amnesty conditional on beneficiaries contributing to compensation funds. That, in turn, would honor the rights of victims. Furthermore, commitments by the state to undertake institutional reform, including of the security sector, can help provide victims of state forces with assurances that the same abuses won’t recur.

Prosecutions also are an important component of an effective transitional justice strategy, but states faced with an overwhelming number of cases will need to find ways to prioritize the most critical ones. Focusing the state’s capacity on the most violent offenders is a strategy that has helped the United States and other countries counter criminal violence. As Felbab-Brown has written, such “focused deterrence” strategies aim to move away from zero-tolerance policies that expend resources on filling prisons with low-level criminals, and toward a tactical focus on the worst offenders.

The field of transitional justice is particularly rich with lessons for moving states away from blanket punishment, and toward more strategic and effective approaches. To break cycles of conflict, local and international policymakers need to understand the limits of punishment as a policy tool, and instead begin to draw on the many basic lessons learned elsewhere to carry out effective demobilization and transitional justice.

An Iraqi man who fled the Islamic State-controlled Old City of west Mosul during heavy fighting in June 2017 is questioned and searched, believed to be a possible Islamic State militant. (Photo by Martyn Aim/Getty Images)

 

About the Author(s)

Cale Salih

Cale Salih is a Research Officer with the Centre for Policy Research at United Nations University. Follow her on Twitter at (@callysally)