Sometimes complex policy issues are best captured in a simple question. If ISIS leader Abu Bakr al-Baghdadi is captured alive tomorrow, who should prosecute him, where and for what crimes?
When I pose this question to policymakers – in Western capitals or in the Middle East – I am often met with a blank stare. Most expect al-Baghdadi to be killed instead of caught. But even if al-Baghdadi is not captured alive, what about the thousands of ISIS members – some of whom held key roles in ISIS – currently detained in Syria and Iraq?
Even though ISIS’s territorial control in Syria is collapsing, the international anti-ISIS coalition and local powers have yet to adopt a coordinated strategy to hold ISIS members accountable. What we have is a piecemeal approach that is deeply flawed.
ISIS members have been prosecuted solely within the framework of domestic counterterrorism laws. Terrorism offenses are convenient because authorities only have to prove a connection between the accused and a terrorist organization, and sentences are lengthy. But the approach fails to capture the full range of crimes committed by ISIS or judge members for specific actions. It also denies victims their day in court, and sheds no light on the inner workings of the group. It is a missed opportunity to create a judicial record of ISIS atrocities and bring individuals to justice for those crimes.
There are also serious fair trial and due process concerns with the current approach. In Iraq, trials of ISIS suspects have been rushed, with speedy convictions and many death sentences handed down. Victims of ISIS abuse, including Yezidis, say they have been ignored in court proceedings and that those who harmed them are not being charged with crimes like rape or murder. Iraq’s approach is so blunt that an ISIS cook can receive the same punishment as an ISIS member who may have raped or beheaded victims. Due process violations, including torture, have further undermined confidence in the process.
In northern Syria, the U.S.-backed Syria Democratic Forces (SDF) are holding thousands of local and foreign ISIS suspects. The local authorities have set up makeshift courts that have tried hundreds of Syrian ISIS members by applying a locally enacted counterterrorism law. But the proceedings are deeply flawed. There are no defense lawyers to represent suspects and no appeals process.
The SDF’s makeshift courts are not recognized by the Syrian government or the international community – including the group’s own international partners – raising doubts about the long-term impact and enforceability of the rulings. Meanwhile, hundreds of foreign ISIS members – from 46 countries – remain in custody with no legal process because the SDF would like their home countries to take them back – a request that most home countries have rejected so far.
Local and international initiatives to improve these efforts have been ill-conceived and some have been underfunded. Iraqi authorities announced in 2017 that they would set up a Judicial Investigation Board for Crimes Against the Yezidis to investigate ISIS crimes against them. But key Yezidi groups that provide support to people formerly enslaved by ISIS say they were never contacted and that the investigative body has not published any information about its work or how it will feed into criminal cases.
Iraq’s Kurdistan Regional Government (KRG) also created a committee to investigate crimes against the Yezidis, but a recent report by the International Federation for Human Rights says the committee’s evidence does not currently feed into any prosecution system. Among the reasons for the absence of prosecution efforts for war crimes and crimes against humanity is the fact that international crimes, such as war crimes and genocide, are not currently incorporated into Iraqi law.
The United Nations has tried to assist Iraq, but its efforts have been limited and suffer from design flaws. The Security Council established a team to investigate ISIS crimes in Iraq, and the team began its work in late 2018. But the mandate of this team, known by the acronym UNITAD, is limited. For now, it only covers crimes committed in Iraq by ISIS members. It will not investigate ISIS crimes in Syria nor conduct investigations on the Syrian side of the border, nor will it look into grave crimes committed by groups that fought ISIS in Iraq despite overwhelming evidence of rampant abuses.
But even in Iraq, where the UN team will have a mandate to gather evidence, it is not clear how any UN evidence will be used in future trials. UN policy rightly prohibits supporting or assisting processes that could lead to the death penalty or that deny defendants a fundamentally fair trial. And death sentences and unfair trials are a common experience for those accused of ISIS affiliation in Iraq. So right now, it is not clear how this UN-effort will further prosecutions.
The absence of an international strategy to credibly prosecute ISIS members is particularly flagrant in northern Syria. The U.S.-led Global Coalition to Defeat ISIS never developed a plan to bring ISIS members held there to justice. Key members of the coalition have often repeated the mantra that foreign members of ISIS should be tried by the coalition’s local allies, yet the coalition has not assisted the local authorities in northern Syria to develop their courts.
With the United States announcing its withdrawal from Syria, the SDF finds itself holding hundreds of foreigners suspected of affiliation with ISIS with no capacity or strategy to investigate the crimes they are implicated in and prosecute them. One concern is that faced with no other options, the SDF may be tempted to eventually transfer these men to Syrian government custody – a troubling prospect given the rampant torture and lack of fair trials in areas under its control.
The UN – through the General Assembly – did establish in December 2016 an international mechanism (known as IIIM) to assist in investigating and prosecuting those responsible for the most serious international crimes committed in Syria since March 2011. Unlike UNITAD in Iraq, the IIIM can look at crimes by all parties in Syria. However, this impartial approach has come with an operational cost. Unlike the UN-mandated investigation in Iraq, which operates with the approval of Iraqi authorities and can dispatch teams to the country, the IIIM does not have the support of the Syrian government and cannot currently operate inside Syria.
While the IIIM and UNITAD are both rooted in the UN system, they are each confined to examining crimes in a particular country with no explicit system to exchange information or share evidence as there is no dedicated forum that currently has jurisdiction to prosecute these crimes. The IIIM is, in its own words, “neither a prosecutor’s office nor a court,” so it will have to find and transfer its evidence to a national, regional or international court that has – or may in the future have – jurisdiction.
Possible candidates for such transfers could be national courts with jurisdiction over the crimes because the suspects or the victims are nationals, or because these courts recognize universal jurisdiction over certain crimes. But so far, European countries have been reluctant to repatriate ISIS suspects to try them in their courts and some non-European countries that have repatriated their nationals have poor human rights records, raising torture and fair trial concerns.
This fragmented policy environment means that the question of how a hypothetical future trial of al-Baghdadi – or that of other senior ISIS member – will unfold has no clear answers to date. If the SDF detain him in Syria, what will they then do with him? Will the UN-created units be able to feed the information they have gathered into his prosecution given concerns around fair trial and the death penalty? Will he just be prosecuted for terrorism-related charges or will there be a way to prosecute him for war crimes and crimes against humanity?
While much time has been lost, it is not too late for the international community and key actors in Syria and Iraq to develop a more coherent response to bring ISIS members to account. Information sharing between the two UN teams and local mechanisms will be important, but there needs to be a clear process to ensure that such information is not used to violate key rights. More fundamentally, it is time to start thinking of possible venues that can provide fair trials, ensure victim participation, and prosecute senior ISIS members for the full range of crimes they may have committed.
If key international actors believe that such trials can be held locally – a proposition that seems far-fetched given the rampant abuses in Syria and Iraq – they should invest in beefing up local justice systems, ensure fair trial guarantees, eliminate the death penalty and encourage local authorities to amend their laws to allow prosecutions for international crimes. If the political will or context does not permit such efforts, then it is time to explore which other courts can assert jurisdiction. Hoping that these issues will solve themselves will not make the problems go away.