SOUTH KURDISTAN (IRAQ)
Flawed Justice – Accountability for ISIS Crimes in Iraq – Languages Available Inالعربية – سۆرانی
4 Dec 2017 – Summary – The armed forces of the Iraqi government and the Kurdistan Regional Government (KRG), supported by various international partners, including the United States and Iran, have almost concluded their military campaign against the Islamic State (also known as ISIS) in Iraq. In the course of this campaign, Iraqi government and KRG forces have detained thousands of suspected ISIS fighters and affiliates, including hundreds of children.
The judiciaries of the Iraqi government and the KRG are relying on their respective counterterrorism courts to rapidly prosecute all of these ISIS suspects on charges brought under their counterterrorism laws, primarily and often exclusively on the charge of membership in ISIS, with no distinction made for the severity of the charges brought against suspects and no effort to prioritize the prosecution of the worst offenses. One Iraqi judge at the Nineveh counterterrorism court, which is mandated to prosecute ISIS members captured in Mosul, said that between February and late August 2017, the court had commenced trials against 5,500 ISIS suspects, and convicted and sentenced at least 200.
Human Rights Watch knows of at least 7,374 individuals that the Iraqi and KRG judiciaries are trying or have convicted and in 92 cases already executed since 2014, while recognizing that this represents a fraction of the total number of individuals held as ISIS suspects.
This report focuses on the screening, detention, investigation and prosecution of ISIS suspects in Iraq. At each of these stages, the report finds serious legal shortcomings that undermine efforts to bring ISIS fighters, members, and affiliates to justice.
Most significantly, Human Rights Watch research finds an absence of a national strategy for ISIS prosecutions that will ensure the fulsome and credible prosecution of those responsible for the most serious crimes committed by ISIS, with the meaningful participation of victims and the creation of a thorough judicial record of these crimes. At the same time, the very broad prosecution of all those affiliated with ISIS in any way, no matter how minimal their involvement, will impede future community reconciliation and reintegration and clog up Iraqi courts and prisons for decades to come.
The report raises concerns about due process in the screening process by which Iraqi and KRG security and military forces screen those leaving ISIS-controlled areas. Human Rights Watch is concerned that the quality of the incriminating information and the opacity of the process used to identify ISIS suspects, based on wanted lists or accusations by community members with no further evidence, may result in the misidentification and detention of boys and men who are or were not actually affiliated with ISIS. As our research shows, those wrongfully identified in the screening process as ISIS suspects may spend months in mass arbitrary detention during the course of their judicial investigation.
Conditions of Detention
Conditions in detention and during interrogation are also problematic. Our research found that Iraqi authorities are detaining ISIS suspects in overcrowded and in some cases inhuman conditions; are failing to segregate children from adult detainees; and are systematically violating the due process rights of ISIS suspects. These violations of due process rights include ignoring guarantees in Iraqi law to bring detainees before a judge within 24 hours, to grant access to a lawyer throughout interrogations, and to notify families of their detention and allow families communication with them. Furthermore, numerous detainees have alleged that authorities tortured them to confess to membership in ISIS. When asked about such allegations, Iraqi authorities said they have investigated them but have not provided evidence of any such investigations.
The actions of ISIS represented a serious security risk to the Iraqi state. The group has carried out a broad range of attacks, including against civilians, and other criminal acts throughout the country. The Iraqi and KRG authorities are right to prosecute these crimes in order to protect the security of their population and to ensure justice for the victims. However, this report finds a number of shortcomings in the prosecutions of ISIS fighters and affiliates.
Lack of a National Strategy
The report finds that there is no national strategy for ISIS prosecutions and that the charges against ISIS suspects fail to capture the broad range of crimes ISIS has committed. Iraqi and KRG judges say that the Iraqi and KRG counterterrorism courts are operating in parallel. However, when asked about the overall plan to prosecute ISIS crimes, the judges told Human Rights Watch there is no national strategy to coordinate these prosecutions or to prioritize the prosecution of those responsible for the most serious crimes. Instead, both the Iraqi and the KRG authorities appear to be prosecuting all ISIS suspects under their respective counterterrorism laws primarily for their membership in ISIS, without any distinction or prioritization based on the gravity of the offenses they are accused of committing.
Reliance on Counterterrorism Laws
The counterterrorism laws being used by both Iraqi government and KRG authorities have allowed judges to bring charges against a wide range of individuals, including some who are not implicated in specific violent acts but are deemed to have assisted ISIS, including for example doctors who worked in ISIS-run hospitals or cooks who prepared food for fighters. The counterterrorism laws carry harsh sentences, even for mere membership of ISIS: life in prison or the death penalty.
Charging ISIS suspects with violating the counterterrorism laws, rather than charging them with other offenses under the criminal code, is often easier as an evidentiary matter. In these cases, authorities only have to prove membership in ISIS, or participation in the ISIS bureaucracy or fighting forces, as grounds to prosecute and sentence ISIS suspects as opposed to proving that they committed specific criminal acts – a challenge given that these crimes took place in the chaos of war. But the reliance on counterterrorism laws is problematic from the perspective of prioritizing and punishing the most serious crimes under ISIS.
In addition, while membership in a terrorist organization is criminalized in most countries and there is nothing in international law that would preclude Iraq from prosecuting ISIS members, such wide-ranging prosecutions may not be appropriate in Iraq given the size of the territory and population centers over which ISIS maintained military and civilian control. At the height of its power ISIS relied on tens of thousands of local Iraqis to govern the populations and territory under its control. Prioritizing prosecution of the most serious crimes would allow for the strategic alignment of limited Iraqi resources.
Establishing a Judicial Record and Victim Participation
Prosecution solely under the counterterrorism laws is also problematic from the perspective of establishing a judicial record of the wide body of crimes committed against countless Iraqi citizens and gathering the evidence of these crimes from witnesses and victims. While victims’ communities in Iraq have been calling for justice, and trials in Iraq generally allow for victim and witness participation, authorities have made no efforts to solicit victims’ participation in the trials, including to attend trials, appear as witnesses, share their testimonies, or submit questions to suspects.
Instead the authorities appear to be relying only on compensation to address victim rights and, with respect to crimes against Yezidis, a special review board to review. But even on these limited initiatives there is little public communication. Some representatives of victims’ communities have stated they have no knowledge of the compensation scheme. While authorities in Baghdad have said they established a Judicial Investigation Board for Crimes Against the Yezidis to lead the prosecutions of crimes against Yezidi victims, they said the Board has no budget or location. And while they said the board had interviewed victims and collected criminal complaints, Yezidi community leaders said they have never interacted with the board.
Prosecution of Children
The detention and prosecution of child ISIS suspects also may violate Iraq’s human rights obligations governing the treatment of children, which requires considering a child’s best interests, detaining them only as a last resort, prioritizing rehabilitation and considering alternatives to detention.
The Government of Iraq’s Amnesty Law
ISIS members convicted in government of Iraq courts may be entitled to release under General Amnesty Law passed in August 2016 (no.27/2016), but Iraqi judges are not consistently applying the law. The law offers amnesty to anyone who can demonstrate they joined ISIS or another extremist group against their will and did not commit any serious offense, including possession or use of explosives, maiming, or killing, before August 2016. The law also grants amnesty to individuals charged with a range of other crimes.
The office of the Chief Justice told Human Rights Watch that between August 2016 and October 2017, authorities had released 9,958 detainees under the amnesty law, but did not specify how many of those were facing counterterrorism charges. Judges handling the majority of counterterrorism cases have said they refuse to apply the law. For example, a senior counterterrorism judge in Nineveh said that, in his opinion, those who supported ISIS even with basic functions like cooking, were as culpable as ISIS fighters, and that he had no interest in defendant claims that they joined ISIS against their will. He told Human Rights Watch that he refused to apply the amnesty law because he thought no one who provided any support to ISIS deserved an amnesty. The KRG has not passed any amnesty law for ISIS convicts or suspects and a KRG spokesperson said none was under consideration.
While governments are not obliged to grant amnesties, international humanitarian law encourages authorities at the end of non-international armed conflicts to implement the broadest possible amnesties to those who participated in the conflict, except for the most serious crimes such as war crimes, crimes against humanity or genocide or other international crimes. International humanitarian law also prohibits the prosecution of medical workers for performing medical duties compatible with medical ethics.
Iraqi and KRG Authorities
Human Rights Watch supports efforts to bring to credible justice all perpetrators of serious crimes and recognizes the challenges that the scale and number of these crimes represent to the Iraqi justice system. However, unless the judicial process meets basic due process and fair trial standards, and unless Iraqi and KRG authorities create a national strategy to prioritize the prosecution of the most serious crimes, including passing laws to criminalize war crimes and crimes against humanity, the current process will provide neither judicial documentation of these crimes nor justice for victims.
The Iraqi and KRG authorities should therefore urgently develop and publish a national strategy to prioritize the prosecution of those who committed the most serious crimes by bringing charges for those specific crimes, and with a clear role for victim engagement. For those suspected only of membership in ISIS without evidence of any other serious crime, and especially for children, the authorities should consider alternatives to criminal prosecution including truth-telling mechanisms; the current prosecutions are clogging the judicial system and prisons while not providing justice for victims or helping Iraq transition towards a more peaceful future.
The authorities should, at a minimum, drop charges against those whose functions under ISIS contributed to the protection of human rights of civilians. However, if authorities insist on pursuing the broadest possible prosecutions, including only for membership in ISIS without any further offense, they should prioritize first and most quickly trying those with the most minimal charges against them and promptly releasing those eligible under the amnesty law. For children in particular authorities should consider alternatives to detention and criminal prosecution, and develop rehabilitation and reintegration programs to aid their return to society.
An approach that prioritizes prosecution for the gravest crimes while proposing alternatives to prosecution for less serious offenses, may create friction in victims’ communities that are demanding urgent justice against any and all who may have been involved in ISIS’ civil, political, security, and military administration. But authorities can mitigate this by actively seeking victims’ participation in ongoing trials against the perpetrators of serious crimes, and communicating publicly and regularly regarding ISIS suspects’ trials and convictions. Such measures would not only demonstrate the justice system’s accountability but also support the creation of an accurate historical narrative.
The authorities should also develop truth-telling mechanisms with a broad mandate and powers, including the right to subpoena testimony and witnesses, that would address abuses committed by all sides in the conflict.
Further, Iraqi and KRG authorities should increase efforts to ensure that Iraq’s existing compensation scheme is available to all victims, and develop the scheme into a broader gender-sensitive reparations program through a transparent and participatory process for all victims of serious human rights and humanitarian law violations committed during the conflict, including sexual violence. Restitution has been relied on in a number of different countries to remedy violations that involved displacement of people from their homes and lands. Such restitution would not only help those displaced by ISIS to regain their homes and lands but also foster broader transitional justice. Local and tribal councils across Iraq have also advocated for deradicalization or “rehabilitation” programs for ISIS sympathizers, though to date none have been developed.
Accountability and Reconciliation
The impunity of Iraqi and KRG security forces for their own serious abuses is a serious problem for justice and accountability in Iraq and for broader efforts at reconciliation. As far as Human Rights Watch is aware, Iraqi and KRG courts have not convicted Iraqi, Kurdish or anti-ISIS forces for any human rights and laws of war abuses. These well-documented abuses include mass killings, summary executions, disappearances, kidnappings, torture, and widespread home demolitions of Sunni homes in areas retaken from ISIS. Human Rights Watch has requested information from Iraqi and Kurdish authorities on numerous occasions about the outcomes of their investigations of Iraqi or KRG forces’ abuses but has not received any reply. Authorities should urgently act to hold abusive forces accountable, or risk another conflict with communities who have little faith in the fairness and justice of the Iraqi government and the KRG.
A number of international actors, including the criminal-investigative group: the Commission for International Justice and Accountability (CIJA), third countries, and most recently a UN Security Council mandated investigative team, have attempted to launch various initiatives aimed at seeking justice for some ISIS victims, but have no apparent interaction with the fast-proceeding ISIS prosecutions underway in Iraq; such prosecutions may well be concluded by the time the international initiatives are under way. International actors should support a range of activities to improve detention and prosecution practices and address due process and other violations documented in this report. Such activities should include human rights and trial monitoring at the prisons and courthouses holding ISIS suspects. The partners of the Iraqi government and KRG should work to convince their judiciaries of the need at minimum to document crimes under the criminal code during the investigative process, even if suspects are charged only under counterterrorism laws, and to abolish and/or suspend the death penalty. They should also fund and facilitate the transport of victim families to participate in the trials.
On September 21, 2017, the United Nations Security Council unanimously adopted a resolution that mandates the Secretary General to establish an investigative team to collect and preserve evidence of serious crimes, including war crimes and crimes against humanity, committed by ISIS in Iraq, for anticipated use in future criminal proceedings in Iraq or possibly in other national courts. However, as long as Iraqi and KRG courts allow for the death penalty for ISIS suspects, the investigative team should not provide them with evidence it collects for use in ongoing ISIS prosecutions, in line with the longstanding United Nations policy of not supporting or assisting processes that could lead to the death penalty. On October 10, United Nations Secretary-General Antonio Guterres said “the death penalty has no place in the 21st century,” describing it as a “barbaric practice.”
Instead, they should urge the Iraqi authorities at minimum to suspend the application of the death penalty in these prosecutions, for which there is recent precedent; the Lebanese government agreed to such a suspension of the death penalty in connection with the proceedings of the Special Tribunal for Lebanon as part of the government’s agreement with the United Nations. Read full report : https://www.hrw.org/report/2017/12/04/flawed-justice/accountability-isis-crimes-iraq