The death of the Islamic State leader Abu Bakr al-Baghdadi comes two years after ISIS lost most of its Iraq territory and less than a year after the last major battles against ISIS in Syria. While al-Baghdadi’s death means that his victims will never get to see him answer for the crimes he is accused of in a court of law, thousands of ISIS suspects remain detained in prisons in Iraq and Syria. These detainees, despite their often-prolonged arbitrary detention, have yet to be criminally investigated for the specific crimes they may have committed and prosecuted.
In northeast Syria, the Kurdish-led Syrian Democratic Forces (SDF) hold about 12,000 men and boys suspected of ISIS affiliation, according to the SDF, including 2,000 to 4,000 foreigners from almost 50 different countries, in overcrowded prisons. The group also holds about 100,000 Syrian and foreign women and children who are family members of ISIS suspects — some of them perhaps ISIS members themselves – in squalid camps. The Kurdish-led coalition has repeatedly appealed to countries to repatriate their nationals. When most countries balked, Kurdish authorities earlier this year called for an international tribunal to bring ISIS suspects in their custody to trial. The proposal raised a number of legal, political, and practical difficulties, and was never taken up in earnest.
Despite various international meetings to consider the most feasible justice options following the appeal for a tribunal, discussions have seemingly been put on pause since Turkey began its military operations in northeast Syria on October 9. Behind the scenes, however, some European States, including Denmark, France, Germany, the Netherlands, Sweden, and the United Kingdom, appear to be fast-tracking negotiations with authorities in Baghdad that would see Kurdish-led forces transfer thousands of foreign ISIS suspects from northeast Syria to Iraq to face prosecution there for their links to the group. Iraq has already prosecuted a small number of foreign ISIS suspects who were captured there, and smaller numbers of foreigners already transferred from northeast Syria to Iraq in 2018 and early 2019.
Adding a level of complexity is the current political situation in Iraq, where thousands of protesters across central and south Iraq are calling for the prime minister and his cabinet to resign. Indeed, there is no guarantee that any deal brokered with Iraq’s current administration will be respected by a future one.
European courts are more capable of holding credible trials that meet international standards than Iraq’s courts. But those governments have no desire to make the deeply unpopular decision of repatriating ISIS suspects and their families, highlighting security concerns, the difficulty in confirming identities and obtaining evidence for successful criminal prosecutions. Officials in five Western European capitals told me in early October that none of them are considering bringing home their nationals that are ISIS suspects. As one put it candidly, “It would be political suicide.”
Most European countries say they are only willing to consider repatriating children. Western European countries, as well as Australia and Canada, have mostly focused on bringing home only small numbers of orphans, fearing that if they bring home children of living parents, their own courts might compel them to repatriate their mothers.
While it’s understandable that Western governments are mindful of the potential security risks associated with repatriating ISIS suspects and their family members, many countries, particularly in Central Asia, have brought home their nationals from northeast Syria and Iraq by the planeload. Kazakhstan alone has airlifted 524 citizens from northeast Syria, most of them children but also men and women, for rehabilitation and, in some cases, prosecution. Clearly, the treatment of these returnees should be closely monitored to ensure they are not abused.
These airlifts undercut arguments of some Western European governments that repatriations are logistically impossible. And all of the dozens of Western European detainees Human Rights Watch interviewed in camps in northeast Syria said they wanted to go home even if it meant serving prison time for links to ISIS.
The reality is that the thousands of foreigners pose a grave security concern by being held in profoundly degrading and, in many cases, inhumane conditions in an increasingly unstable region. Just since the beginning of Turkey’s assault, over 100 ISIS suspects and several hundred of their family members have reportedly escaped amid Turkish air raids and the SDF’s diversion of forces from prisons and camps to fight Turkish forces. Some ISIS escapees could regroup and plan attacks, and dire conditions in prisons and camps risk further radicalization.
Our research has documented that Iraq’s ISIS proceedings are inherently unfair and replete with due process violations, with suspects, including Western nationals, facing a real risk of torture in custody. Iraqi authorities are charging all ISIS suspects under Iraq’s counterterrorism law that authorizes death sentences and life in prison solely for ISIS membership. Many trials proceed solely based on a confession. Because the law does not require the prosecution to charge suspects with specific violent crimes, it does not need to involve victims and witnesses in the proceedings. So, Iraqi proceedings, in addition to being unjust, deprive ISIS victims of a meaningful day in court.
Despite these well-documented concerns, reports have emerged that some foreign ISIS suspects might have already been transferred to Iraq in the leadup to the Turkish military offensive.
Diplomats close to the discussion told me that European officials have outlined three preconditions to greenlight transfers to Iraq. First, they insist on removing the death penalty, an absolute red line for States that are party to the European Convention on Human Rights. For some States, this means Iraq could not sentence the nationals of these States to death; for others, I am told, an assurance that a death sentence would not be carried out is enough.
Their other preconditions are that proceedings meet international fair trial standards, and that they can maintain regular consular access to their nationals. The Iraqis have made their own demands on the Europeans, including payment for the proceedings, and, a senior Iraqi judge with knowledge of the discussions told me, a commitment that the states would not criticize the proceedings once underway.
Every Iraqi government official I have spoken to about the death penalty has said that suspending the death penalty is not an option. Human Rights Watch opposes the death penalty in all countries and under all circumstances, as a practice unique in its cruelty and finality. In Iraq, where the trials of ISIS suspects fail to meet even the most basic markers of due process, its application is particularly troubling. However, many Iraqis would find it galling if foreign ISIS suspects, including those reportedly most responsible for orchestrating ISIS’s horrific killings and sexual slavery, were exempted from the death sentence — in contrast to the Mosul doctor who, because he continued to work once ISIS took the city and provided treatment to all patients including ISIS members, has been sentenced to death.
The much more difficult hurdles to overcome are ensuring ISIS suspects get fair proceedings with access to a proper defense and the ability to challenge the legality of their detention. There must be a presumption of innocence, a real examination of evidence, victim participation, and no risk of torture at the hands of interrogators trying to extract a confession. To be clear, many of these legal protections are embedded in Iraqi law but are not respected in practice. International standards also require special treatment of children, with a priority on their rehabilitation and community reintegration.
The trials of 11 French suspects in Iraq in May highlighted these concerns not only for foreign suspects but for Iraqis as well. In our 2017 report on criminal proceedings against ISIS suspects in Iraq, we included six pages of recommendations that would go a certain way toward improving proceedings. They include trial monitoring, mechanisms to prevent torture, and setting up broadcast and transport networks to facilitate victims’ access to the courts. As far as I can tell, none of the States with nationals at risk of transfer to Iraq chose to support Iraq in carrying out those or similar recommendations over the last two years.
It is hard to imagine, in the current race against time, how European States could support the establishment of necessary programs and monitoring systems to address the multitude of gaps in Iraq’s judicial proceedings. But as long as they are adamant that they want to transfer their nationals to Iraq, they have no other choice.
In an alarming twist, in mid-October, several European government officials told me that a new alternative had emerged for several European States: leaving their nationals in northeast Syria, to ultimately be picked up by Syrian authorities who may retake control over the territory where they are being held. Of all the options on the table, this is one of the worst. As Human Rights Watch has documented, the prisons controlled by the Syrian government are notorious for mass deaths and torture. Syrian authorities have arbitrarily arrested, tortured and disappeared tens of thousands, many whose fate remains unknown.
While the ideal solution would be to ensure that the systems that currently hold all ISIS suspects, respect the basic tenets of humanity regardless of nationality, in the short term and given the urgency of the situation, countries that uphold rule of law should swiftly do all they can to bring their own citizens home. Once back, suspects and family members can be investigated and, if appropriate, monitored or prosecuted in line with international human rights standards.