What do Iraq's prosecutions of ISIS members mean for transitional justice?Law and Order
Despite the end of Iraq’s three year fight against ISIS and the UN Security Council’s launch of an independent investigative team into the Islamic state in Iraq, the country’s decision to hold national prosecutions for former ISIS fighters has unearthed a string of its own human rights violations—far from what Western states imagined international standards of transitional justice to embody.
Notwithstanding the complex issues that prosecuting ISIS members itself brings to the understanding of justice, Iraq’s severe prosecutions are further complicated by traumatic historical experiences, a tense social fabric backed by strong religious identities, and a lack of national and international political will to hold terrorists accountable for their actions. Hence, making sense of Iraq’s response to ISIS depends on a comprehensive understanding of these deeper challenges. Otherwise, prescribing strategies to improve Iraq’s transitional justice will be misinformed, inappropriate, and not conducive for victims.
As per Human Rights Watch’s most recent report in December 2017, Iraq’s prosecutions of former ISIS fighters violates basic standards of due process and human rights. ISIS suspects are often detained over long periods in overcrowded and inhumane conditions, with children detained alongside their parents. Detainees are denied a judge within 24 hours, access to a lawyer, and family notification and communication. Charges are made rapidly and based on mere membership in ISIS, with confessions at times obtained through torture and little differentiation between cases. As a result, a high rate of individuals face execution, with a total of 250 individuals executed since 2014. In some cases, trials can be as short as 10 minutes. For example, one woman was sentenced to death after only having two minutes to defend herself.
This is not the first time Iraq has attempted transitional justice. After the 2003 U.S. invasion of Iraq, a “de-Baathification” campaign under guidance of the U.S. Coalition Provisional Authority was put in place to eliminate Baath-party members from the Iraqi civil and military services. It too, however, was only based on membership and did not differentiate between types of crimes. Barely fulfilling the retributive aspect of transitional justice, it left virtually any prospect of reconciliation unaddressed. New grievances engendered an increased sense of marginalization for dismissed Sunni populations, undermined trust in Iraq’s political and legal institutions, and (some would argue) sowed the seeds for the later development of ISIS. Much of this action to “eliminate” the enemy parallels with today’s approach, in applying a blanket punishment to all ISIS members regardless of involvement.
Sectarian politics continue to frame Iraq’s current response. I spoke with Diego Osorio, who served two years as the Special Assistant to the DSRSG during the UN Assistance Mission for Iraq in Baghdad. He clarified that Sunnis as a minority already feel marginalized from the Saddam Hussein period. They see prosecutions as continued punishment by Shiite populations, especially since a large majority of ISIS members were drawn from this pool of frustrated Sunnis. Also missing from prosecutions are those individuals outside of ISIS but responsible for equally heinous crimes. “At this point, what you have is a vengeful understanding of a victor’s justice that is still within the limits of what you can call institutionally legitimate but not necessarily morally viable,” Osorio points out. If continued, this could warn of a renewed conflict.
Other historical factors such as the 15-year long U.S.-Iraq war (following the more than 10-year Gulf War) has left little motivation for building up effective legal institutions. I asked Payam Akhavan, human rights scholar and international lawyer at McGill University, what he believes are the underlying reasons for Iraq’s current approach. In response, he clarified the connection between past experiences, institutional weakness, and the current flawed transitional justice process: “Iraq doesn't have either the political culture or democratic institutions that would allow for fair trials before credible courts. The legacy of Saddam Hussein, followed by the disastrous American invasion and sectarian violence encouraged by foreign meddling, have left the country in a terrible state.”
The mere trauma of war has shaped much of how Iraq justifies its quick and harsh punishments. Iraqis suffered under a life of terror with execution, public floggings, religious police, and laws dictating everything from use of technology, electricity, to dress-code. One woman living in Mosul during the ISIS occupation explained how she was forbidden to leave the house unless she dressed according to ISIS rules, for fear of public lashing. After ISIS was defeated, eliminating the threat was paramount and Iraq was quick to issue harsh sentences. “I think we need to remember, for all intents and purposes, Daesh [ISIS] was an existential threat to Iraq. Daesh is not an existential threat to Western countries, clearly. But in Iraq it was, and how post-Caliphate Iraq deals with that situation is very much colored by what went on over the period from 2014 all the way through to 2017. And there’s a huge difference in perceptions from one part of the world to the next as far as I’m concerned,” reminds Jeffrey Allan, a former UN Political Affairs Officer in Iraq whom I spoke to in June.
As a result, Iraq has not aimed to address deeper societal wounds requiring reconciliation. Yet, on a closer look, these underlying reasons rarely appear in criticisms of Iraq’s prosecutions, and critics are quick to draw conclusions by comparing it to Western standards of justice. If these deeper reasons are understood, more possibility exists for responding in a way that Iraqis will support and accept.
Reconciliation needs to be addressed, but crafted sensitive to emotional trauma, religious identity, and apathy towards Iraq’s legal institutions. In intensely affected areas such as Mosul, neighbors turned towards ISIS, making it difficult to trust those closest and creating a post-conflict situation in desperate need of reconciliation. Other experiences centered around sectarian divisions, highlighting a need for societal-level transformation. Iraq also requires institutional change to move forward. Interestingly, ISIS actually served Iraqis in ways which the state never did. For example, ISIS operated as a local police system, enforcing law for petty crime, something which the Iraqi state never did. For Iraqis this experience of frustration with the state’s justice system could be why they have not pushed for change, seeing little potential for an effective justice system to develop.
Akhavan also brought up this need for transformation: “transitional justice is not about exacting revenge; it is about moral transformation. ISIS isn't just a terrorist group; it is but one expression of an extremist ideology that still finds roots in the sectarianism that pervades politics. Iraq must defeat not just a group, but a way of thinking. Lining up the enemy and executing them won't teach people the lessons they need to learn. There is a need for a legitimate and visible process before credible courts that sends the message that justice is something more than settling sectarian scores”
Essentially, even the scale of the justice process is not taken into consideration and more support is needed to cope with a large number of detainees. In discussing the potential for improving Iraq’s courts, Allan illustrated that, “we’re not talking about 10 people on trial in a country like Canada with a clear set of judicial procedures in place, we’re talking about hundreds of people on trial and in a weaker judiciary system, and in a situation where the political context on the ground is very much in flux. So the challenges are much more manifest. I don’t think we can judge how they are doing this from our own perspective without taking that into account.”
Yet, in reflecting on this point raised by Allan, one could compare the Iraqi case to other instances of transitional justice. For example, Rwanda managed to deal with 130,000 detainees after the 1994 genocide with local “Gacaca” courts, far outnumbering the estimated 20,000 detainees in 2017 in Iraq. This involved a huge national willingness on the part of the Rwandan government, however, to pursue alternate methods of justice, of which Iraq has not yet done. Rwanda effectively separated levels of crimes, with those most serious tried on the international or national level and less serious held in local courts. To me, logistical concerns are not the only reason Iraq has chosen to issue rapid blanket death sentences. Rather, I think much stems from the emotional desire to eliminate the threat, political apathy, and sectarian politics which bias the process.
As a non-state actor, ISIS poses an even greater quandary for transitional justice. Even the international community has no agreed upon definition of terrorism, making it difficult to categorize attacks and respond accordingly. As a result, each country prefers to follow their own definition of terrorism, with little political will to act in concert. In Iraq, the understanding of terrorism is overly broad. Passed in 2005, Iraq’s Anti-Terrorism Law no. 13 considers terrorism to be “any criminal act carried out by one or more persons against the security and stability of the state and/or against persons or groups of persons deliberately or blindly.” Made up of a total of eight offenses and ambiguous already in its mere definition, it also fails to specify essential elements including the “motive” of terrorism.
In my opinion, it is paramount to develop an international definition of terrorism. Without common understanding, it is impossible to pressure states to hold their citizens accountable for actions which in their eyes may not qualify as terrorism. “If you believe in international humanitarian law, and the laws of war, if we do nothing then we’re contributing to the erosion of those standards, as far as I’m concerned,” urges Allan in discussing international responsibility.
Alongside a definition of terrorism could emerge the possibility of an International Court for Terrorism, already proposed by Spain and Romania, which would promote accountability and publicly denounce acts of terrorism. ISIS was able to recruit 30,000 individuals from over 85 countries by 2015 and delegitimizing this organization’s appeal is vital. Even historically, the creation of the International Criminal Court and definitions of terms such as genocide, human rights, sexual violence, and racism did not occur in a vacuum and required international cooperation. “How did we get Nuremburg after World War II? There was no international law with respect to governing individuals accused of having committed crimes with the Nazi regime, right? But, the international community came together and said yes, we need to do this, we need to have a Nuremburg process. Why can’t we have a similar process for ISIS, given the atrocities they have committed?” advocates Allan.
International engagement likewise demands one which does not evade Western accountability for actions such as air-strikes and ISIS returnees. Yet, is it really realistic to aim to hold all accountable? There are already a multitude of actors involved within Iraq, and raising the issue of accountability for Western states might sabotage any political will they have for improving Iraq’s justice process. Even within Iraq it remains complicated. “… If you open it to some sort of an international judicial process, then there are many layers, who comes first? Are you going to deal with the Baath, are you going to deal with Sunnis, are you going to deal with war crimes and the involved forces? So it’s not clear either way,” Osorio justifies. But, I would argue that international responsibility should at least be considered, if not for the dignity and right of those civilians affected.
Many foreign fighters source from countries such as Great Britain, France, Belgium, Germany, Denmark, the U.S., and even Canada, and in some instances little action has been taken to try these individuals in national courts. This means that foreign fighters still in Iraq are subject to punishments as extreme as death, in conflict with the laws of their country of origin and often in violation of human rights standards. Others who come home never face a proper trial. For example, in January 2018 despite outrage by the German community, a German woman was sentenced to the death penalty in Iraq after admitting to membership in ISIS. In contrast, the UK discussed extrajudicial killings of their foreign fighters as a more “convenient” way to achieve justice.
As discussed earlier, relegating more serious cases to national or international courts and lesser crimes to local tribunals could offer a mid-way solution to improving crime differentiation, speed of courts, and local ownership. Various forms of justice should be considered to balance retribution with reconciliation. Speaking from experience in leading various truth commissions, Akhavan emphasizes that “criminal trials, as important as they are, constitute only one aspect of a process of justice. In particular, victims have a broader need for healing and there is also a wider need for reconciliation which punitive justice alone cannot achieve.”
Following a more inclusive and fair process would have further reaching benefits for Iraqis’ trust in legal institutions, in what Osorio terms “a nation-building exercise.” This requires including more voices beyond Shiite populations, especially the Yezidi who suffered a horrifying genocide under ISIS. More specific attention is needed for children detained for crimes related to ISIS, those subject to sexual assault by ISIS, and women who were active agents of ISIS crimes.
At this point almost all countries have been affected by terrorist violence and it is shocking that a cooperative strategy to address the crimes of ISIS and terrorism has hardly been considered. As the war in Syria continues, ISIS will find new spaces to re-emerge, and we cannot remain inactive to a growing global threat. The struggle to successfully respond is not wholly due to a lack of knowledge of transitional justice processes, but rather a lack of political will, institutional mistrust, and insensitivity to these deeper lying contextual factors which threatens to derail the process.
Iraq’s prosecutions of ISIS offer a crucial opportunity to set an example for how we wish to respond to these types of crimes and how we want to shape the future of transitional justice. This could set a clear precedent for justice for victims affected by terrorist actions. The task is enormous, but understanding these deeper layers is truly valuable in allowing us to respond more effectively and sensitively. If missed, I firmly believe we risk solidifying the ability of powerful actors to continue to have the upper hand and victims to suffer in ways which threaten generations to come.
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ISIS, Iraq, Syria, Terrorism