In the coming weeks, the Kurdish-led Syrian Democratic Forces may hand over up to 28,000 people suspected of belonging to the Islamic State to the Iraqi authorities for prosecution. The suspects are likely to include thousands of foreign fighters from at least 50 different countries. Awaiting them will be a process that, although fairly efficient, has often ended with the death penalty—a fact that presents a challenge to the United Nations, which has sent an investigative team to assist the local judiciary in the investigation and prosecution of some of these crimes.
The trials of Islamic State defendants in Iraq began well before the official end of the group’s reign of terror in 2017. In 2015, dozens were charged, convicted, and later executed as terrorists for their role in a 2014 massacre of Iraqi Army cadets at Camp Speicher near Tikrit.
The following year, a series of U.N. reports concluded that the Islamic State may have committed acts of genocide, war crimes, and crimes against humanity against the Yazidi minority group. Demands from national and international nongovernmental organizations for a U.N.-backed international tribunal to prosecute suspects followed. The goal was to focus on crimes against this small group before perhaps expanding to cover crimes committed by the Islamic State against all groups in Iraq, including Sunnis, who were the terrorist outfit’s most frequent victim.
But U.N. member states had little appetite for establishing an international court, not least because of the cost and because of resistance from the Iraqis, who were already prosecuting and convicting hundreds of Islamic State defendants. Taking a cue from the U.N. General Assembly, which established in 2016 a quasi-prosecutorial body for international crimes committed in Syria, in September 2017 the Security Council established an investigative team to assist national investigations and prosecutions of Islamic State defendants in Iraq who had perpetrated atrocity crimes.
Following months of negotiations between the U.N. and the Iraqi government, in February 2018, the sides agreed on the parameters of the investigations. Most notably, the international investigative team would only provide its evidence to the national authorities if it deemed that local judicial proceedings were fair and independent. Furthermore, though not explicitly stated in the terms of reference, in accordance with U.N. policies, the team would not hand over evidence in circumstances where the death penalty was on the table.
Yet these stipulations are at odds with the way Iraq has so far handled many Islamic State cases. Since 2015, the country has prosecuted suspects through its counterterrorism law, a short and vague statute that stipulates that, for a conviction, the state must only prove membership or loosely defined support for the Islamic State. It does not have to prove any other underlying crime. The death penalty is mandatory in many of these cases. Under this system, in 2018, the Mosul court processed 9,000 Islamic State cases. Iraq has also said that it convicted over 500 foreigners that same year.
Despite the immediate issues raised by the parameters set for the U.N. investigators, the Iraqi government still welcomed the team, seeing it as a way to help re-build the capacity of members of a judicial system that, in large swaths of the country, had been forced to flee by the Islamic State. And so, in May 2018, the U.N. Mission in Iraq began systematically monitoring trials in Baghdad, where most cases had been prosecuted. Between that month and February, the team I led monitored approximately 150 trials and some investigations, primarily in Baghdad but also in Mosul and, much later, Erbil.
International media has painted a bleak picture of the cases. A common theme is outrage about the “10-minute trials” that determine suspects’ fate. And to be sure, the busiest court, the Central Criminal Court in Baghdad, was chaotic. Hearings were rushed, and sometimes the only evidence against Islamic State defendants was a confession, often allegedly obtained through torture.
But in other courts, the process was significantly more professional. In the court in Karkh, a Sunni neighborhood of Baghdad, greater care and attention was given to some cases. Investigation files contained witness testimony, documentary evidence, and forensic material. True, the trials themselves still appeared perfunctory, but the fact-finding and investigation stage could last months and consist of numerous sessions. The subsequent trial hearings, in essence, summarized those facts and allowed final comments from the parties.
The trials observed in Mosul, the Islamic State’s former capital in Iraq, were even more professional. There was greater attention given to gathering and exploring facts and weighing the evidence. Although representatives of international NGOs believed that the cases we witnessed may have been staged for the U.N., this seemed unlikely. It would take an implausible degree of coordination (including with defense witnesses) to have pulled off such a ruse.
Despite these improvements in process, the U.N. investigative team still has profound challenges to grapple with. Iraq’s criminal laws have a vague and uncertain standard for what degree of evidence is sufficient to convict as well as how to address the issue of duress (many Islamic State defendants allege they were forced to support the terror group). In the cases the U.N. team agrees to support, it will have to be careful about how it addresses the issue of confessions and other evidence allegedly obtained by torture. Many Iraqi judges and lawyers argued that torture is an unfortunate but widespread practice during interrogations in Iraq. Indeed the local law seems to suggest that torture may not necessarily disqualify a case. This is despite the fact Iraq is a state party to the U.N. Convention Against Torture and has made a series of commitments to the U.N. Human Rights Council to prevent and punish acts of torture.
Another conundrum is that to be satisfied that an investigation or trial meets the “fairness” standard, the United Nations team will have to determine whether the courts ensured the right to an effective defense. Certainly, in almost all of the 150 cases we monitored, the defense was remarkably passive. It was quite common for counsel to have neither met the defendant nor read the court file prior to arriving in the court room. Their role at trial was generally to assert their client’s innocence without reference to any facts, followed by a plea for the court to show mercy. In one case, defense counsel was assigned to four men literally one minute before their trial. He produced a blank piece of paper, wrote down the allegations and, in due course, asked for mercy. The defendants were all convicted and sentenced to death.
Almost all defense lawyers we met said that they were afraid to defend their clients because they didn’t want to be seen as Islamic State sympathizers. (A number of defense lawyers have indeed been detained and some beaten by state authorities.) To this end, the Security Council could consider encouraging the Iraqi government to allow for the introduction of international defense counsel, as in tribunals in Cambodia, Lebanon, and Sierra Leone. There would be cost implications, particularly when it comes to security, but if feasible, these lawyers could act as co-counsel to local Iraqi teams without having to reconfigure the U.N. engagement in Iraq.
One quirk of the Iraqi justice system (and likely to be a major headache for the U.N. team) is the fact that there appears to be no lawfully constituted federal supreme court that can address constitutional questions, including appeals from Islamic State cases on the grounds that the trial violated a defendant’s constitutional rights. The 2005 constitution, which has robust due process protections for defendants, required a two-thirds vote in the national assembly for a constitutional court to be established, but the effort never garnered that level of support. There is a court that does, occasionally, issue opinions, but so far not on criminal appeals. So if there is no venue to remedy trial errors amounting to constitutional violations, it goes without saying that the Islamic State trials cannot be deemed fair under the terms of the agreement between the UN and Iraq.
Then there is perhaps the most difficult issue facing the U.N. investigative team: the application of the death penalty. Those suspects who fall within the purview of the U.N. team will not be eligible for the death penalty. Everyone else is out of luck, from the vegetable seller accused of supporting the Islamic State because he sold them food to the mid-level Islamic State fighter not accused of having killed anyone. This situation raises serious due process and constitutional questions by creating a two-track system of justice that surely the Security Council had not intended.
In short, the challenges facing the U.N. investigative team are daunting. Some of the problems could have been addressed in the lead-up to the Security Council debate about the team’s mandate in September 2017 and certainly before the terms of reference were finalized, but they were not. For now, the investigative team remains in its infancy, and the pool of Islamic State defendants appears to be large and growing. In other words, there will be time to get it right if there is political will do so
If not, perhaps the U.N. investigative team will limit its focus to select cases, for example those relating to the killing of Yazidis or select massacres that occurred in Ninewa province. It will also presumably lend support to member state investigations of their foreign nationals detained in Iraq who could be prosecuted in their home countries. And it will provide capacity-building and hopefully support the idea of international defense counsel. Looming in the background remain calls for the establishment of an international tribunal, most recently advocated by Sweden. Though it still seems highly improbable, it may be the only viable fix to the headaches emerging from Iraq.