Iraq Proposes “Pay-To-Prosecute” for IS Foreign Fighters

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by Joe Stork

Somewhere between 800 and 900 Islamic State (ISIS or IS) fighters captured in Syria are reportedly neither Syrian nor Iraqi, and the question of what to do with them has become something of a political football. The Kurdish-led Syrian Democratic Forces (SDF) now detaining them says that it doesn’t have the resources or the jurisdiction to try these foreign fighters or detain them indefinitely. In the words of UN spokesperson Stephane Dujarric, international efforts to address the issue have been “a bit of a mess.”

Few of the IS captives’ 50-odd countries of origin have been willing to accept them. Some of these countries have claimed that they would not have evidence to convict the detainees but are unwilling to see them go free. The SDF has called for establishing an international tribunal, but it’s a proposal with little traction. Lichtenstein’s UN envoy, for instance, dismissed the possibility as “politically difficult, financially costly, and a clumsy and cumbersome process to set up.” In addition, an international tribunal would ideally address war crimes and other atrocities by all parties to the conflict, not only IS.

Iraq has tried thousands of IS suspects—including hundreds of non-Iraqis—captured inside Iraq itself. It recently started a trial of nearly 900 Iraqis transferred from SDF custody. The SDF also transferred to Iraqi custody a number of European nationals, including at least a dozen French nationals and one German, apparently with the agreement of those countries. Independent trial observers in Baghdad have said that several foreign suspects in recent trials have testified that they were captured in Syria and then transferred to Iraq. Some alleged that they were subjected to torture in Iraq.

The Trump administration is unlikely to favor an international tribunal, given its fierce hostility to the International Criminal Court but has publicly pushed U.S. allies to repatriate their nationals, numbering in the hundreds. In the words of a February 16 presidential tweet,  “we captured [them]” and “we will be forced to release them.” In fact, the United States has reportedly transferred “many” foreign IS suspects captured in Syria to Iraqi security services.

Iraqi leaders initially indicated that the country’s courts have only taken up cases of foreign fighters who had been responsible for crimes in Iraq or against Iraqis. Now, according to several reports, Iraq is proposing to the United States and several European states that it prosecute and sentence foreign nationals captured by the SDF if the United States and others cover the costs, which one Iraqi official told AFP would be $2 million per suspect per year. Another Iraqi official said that Iraq had requested $2 billion and could ask for “more money to cover the cost of their detention.” “These countries have a problem, here is a solution,” the first official said. AFP said that the United States had not responded to its request for comment.

The German news channel ZDF reported in late March that Iraq would prosecute the foreign fighters in exchange for European countries and the United States paying the costs. Those in favor of trials in Iraq argue that European standards of evidence make convictions in the countries of origin more difficult. “Europe and especially Germany with its way of life are unable to deal with such cases,” Iraqi presidential adviser Hussein al-Honanien told ZDF. “Germans need to understand we expect economic, political, and social support.”

What should put an immediate stop to the proposal is precisely how much easier Iraqi court convictions would be. Convictions are often based solely on confessions, many of which are coerced under torture. Trials lasting no longer than 10 minutes are not unusual. Two New York Times reporters who sat in on an April 2018 court session described Iraq’s “assembly line” judicial process: inside of two hours, they wrote, the judge convicted 14 Turkish women, one after another, and sentenced them to die. Convictions under Iraq’s counterterrorism law are not for the worst crimes, or even specific crimes, but solely for alleged affiliation with IS, or “support” in the loosest sense. “Cooks, medical workers, everyone is given the death penalty,” Human Rights Watch researcher Belkis Wille told the Times.

Iraq has detained an estimated 20,000 persons in connection with IS since 2014, most of them since 2017, and half of that number have at least started judicial proceedings. “People familiar with the court” told the Times that the conviction rate was around 98 percent. At the same time, there is little effort to investigate and bring to justice the worst perpetrators of atrocities.

The steep price tag associated with the purported Iraqi proposal—$2 million per suspect per year—may be enough to ensure that such a deal does not proceed. (AFP’s Iraqi sources said that figure is “based on estimate operational costs of a detainee in U.S.-run Guantanamo.”) “This may be the silver lining,” Wille, the Human Rights Watch researcher who is a frequent visitor to Iraq, told me. “Some diplomats here worry that Iraq may stretch out the process to maximize cash flow, and that might make governments seriously reconsider their reluctance to take their nationals back home to face justice.”

Joe Stork is chair of the advisory board of the Gulf Center for Human Rights and former deputy director of Human Rights Watch’s Middle East division.

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