A new United Nations report found that from January 2018 to October, 2019, the Iraqi judiciary has processed over 20,000 terrorism-related cases, with thousands pending as of this January. The report, released Jan. 28, is the result of independent monitoring by the U.N. Assistance Mission for Iraq (UNAMI) of 794 criminal court hearings in Anbar, Baghdad, Basra, Dhi-Qar, Dohuk, Erbil, Kirkuk, Ninewa, and Wassit governorates.

These trials have sparked much controversy, mainly due to allegations of lack of respect of fundamental guarantees for those accused of having joined the Islamic State or ISIL. Another reason for concern arose when it was reported that some European countries were undertaking diplomatic efforts to ensure that Iraq would try European foreign fighters charged with being members of the Islamic State. This, combined with the refusal of several countries to repatriate their citizens charged of terrorism offenses, has shown a clear policy designed to avoid holding trials of foreign fighters in their home countries (see here and here) at any cost.

In general, trials of foreign citizens are not an issue for international concern and they are happening all around the world every day. However, the trials of foreign fighters in Iraq have received scrutiny from human rights defenders for a number of reasons. One problem is that some of the crimes charged by the Iraqi courts were not originally committed on Iraqi soil, but in Syria, a circumstance that would defeat the territorial jurisdiction of Iraq. Exceptions to this general rule are allowed for the prosecution of international crimes such as genocide, war crimes and crimes against humanity. However, such crimes have not been codified as such by Iraqi law, leaving Iraqi courts without jurisdiction over such crimes.

Another huge controversy relates to the lack of safeguards to ensure respect of due process and fair trial principles. The new U.N. report, which assess the compliance of such trials with international norms, is therefore of great relevance. The report’s findings raise serious doubts about the respect of fundamental rights for the accused, and confirms the doubts raised about the adequacy of the Iraqi judiciary to be tasked with such a mandate.

While the report acknowledges the huge efforts undertaken by the Iraqi judiciary in conducting these trials, the findings also spark serious concerns about the respect of basic fair trial standards. Some of the main findings are as follows:

–          “Violations of fair trial standards relating to equality before the courts and conduct of hearings – in particular as a result of ineffective legal representation, lack of adequate time and facilities to prepare a case, and limited possibility to challenge prosecution evidence – which cumulatively placed the defendant at serious disadvantage compared to the prosecution.

–          The overreliance on confessions, with frequent allegations of torture or ill-treatment that were inadequately addressed by courts and that on their own constitute a human rights violation, further contributed to the disadvantaged position of defendants.

–          Prosecutions under the anti-terrorism legal framework – with its overly broad and vague definition of terrorism and related offenses – focused on ‘association’ with or ‘membership’ of a terrorist organization, without sufficiently distinguishing between those who participated in violence and those who joined the Islamic State for survival and/or through coercion, and with harsh penalties that failed to distinguish degrees of underlying culpability.”

The reported inadequacy of the Iraqi tribunals also raises questions about the conduct of the E.U. States who have refused to repatriate their nationals facing terrorism-related charges in Iraq. Their refusal, made while aware of the blatant lack of fair trial guarantees in the Iraqi court system, shows a lack of willingness to ensure the protection of fundamental human rights to their own citizens charged of terrorism offenses.

While some European courts have recently rebutted this approach — mandating the repatriation of nationals in order to stand trial in front of national courts–such decisions have been usually relegated to specific situations involving minors accused of terrorism-related offenses. As of October, France repatriated 18 children, the U.S. repatriated 16 adults and children, Australia returned home eight children, and Sweden took back seven children.

In addition to the concerns related to the respect of fair trial standards, the recourse to death sentences has been a constant in these trials, provoking concern in the international community. The U.N. report notes that Iraqi anti-terrorism laws allow for the imposition of death sentences. The Anti-Terror Law applicable in the Kurdistan region provides sentences for different acts of terrorism, ranging from the death penalty to life imprisonment to imprisonment for less than 15 years. The Federal Anti-Terrorism Law, applicable in the Iraqi Federal Government territory, requires instead the mandatory application of the death penalty for any person who commits any of the terrorist acts detailed in the law. The same penalty is prescribed for those who incite, plan, finance, or assist terrorists.

Such provisions do not seem to conform to the provision of Article 6 of the International Covenant on Civil and Political Rights (ICCPR), which strictly limits the death penalty to the “most serious crimes.” As found in the U.N. report, the Iraqi anti-terrorism laws allow for the imposition of capital punishment to a “wide range of acts that do not meet the threshold of ‘most serious crimes’ necessary to impose such a sentence.” As reported, some sentences for association with the Islamic State involved persons “providing basic support to ISIL members, such as cooking or selling vegetables and family members of ISIL members, including women and children.”

The U.N. report also raises serious concerns about the respect of fair trial standards, including the right to receive effective legal representation and the use of evidence obtained through torture or ill-treatment. Violation of the fair trial guarantees, such as those recognized in Article 14 of the ICCPR, resulting in the imposition of the capital punishment, render the death sentence arbitrary in nature, in violation of article 6 of the ICCPR and amounting to a violation of the right to life.

Faced with the lack of respect for fundamental guarantees, and despite the mandatory application of the death penalty required by the Iraqi Federal Anti-Terrorism Law – the U.N. report underscores the trend of some judges to avoid the application of death sentences by charging terrorist offenses ranging from one year to 19 years of imprisonment instead. In the Kurdistan region, a de facto moratorium on the death penalty has been in place since 2008, based on an instruction from the former president of the Kurdistan region, indicating that death sentence warrants are not to be processed. Notwithstanding the attempt of some judges to conform to the respect of international safeguards, the use of capital punishment has been recorded by the U.N. in 100 instances, involving 105 defendants, out of the 317 terrorism-related trial hearings in Federal courts, amounting to 31.5 percent.

Recourse to the death penalty in the absence of respect for judicial guarantees amounts to a violation of international human rights norms and international humanitarian law (Common Article 3 to the Geneva Conventions). The findings of the U.N. report therefore confirm the doubts raised by civil society actors, which condemned the frequent recourse to death sentences from the Iraqi judiciary. Such allegations are already serious enough to spark international outrage towards Iraq, but they also provide a basis to further condemn the decision of western States not to repatriate their own nationals stranded in Iraq. As I wrote here, even if there are no concrete legal obligations upon States to prevent the execution of their nationals abroad, there are several international norms allowing them to intervene to protect their citizens from an arbitrary deprivation of life. The U.N. report could thus serve as a basis to strongly advocate for the repatriation of those awaiting trial in Iraq and to ensure that they face fair trials in their home countries.

Image: French jihadist Djamila Boutoutaou attends her trial at the Central penal Court in Baghdad, on April 17, 2018. Boutoutaou, 29, was sentenced to life in prison for belonging to the Islamic State group, the latest in a series of court judgments against jihadists. Photo by Ammar Karim/AFP via Getty Images