Iraq’s Broken Justice System for Islamic State Fighters

Thousands of prisoners accused of ISIS membership are in custody in Iraq, and this number is on the rise. More than two years after the fall of the Caliphate in Iraq, the Iraqi government continues to arrest new suspects. On top of that, ISIS members are also being moved from Syria to Iraq’s detention centers.

It seems most foreign countries have at one point or another put the burden on Iraq to solve the international problem of prosecuting and incarcerating ISIS affiliates. This type of arrangement may be beneficial for the foreign countries—it helps them avoid having to solve counterterrorism dilemmas domestically—but inside Iraq, this problem and the policies associated with it have prevented normalization in former ISIS territories. The defer-to-Iraq strategy also increases the risk of future conflicts. For both of these reasons, it’s important to take a look at the effectiveness of Iraq’s current counterterrorism practices.

I have seen these problems firsthand. I worked on ISIS in Iraq for more than five years. In 2016-2017 I was embedded with Iraqi Special Operation Forces for the nine-month battle of Mosul, conducting fieldwork for my first book “Human Resources of Non State Armed Groups.” After ISIS lost its territory in the country, I focused on prosecutions of ISIS members and am currently writing a book about the subject. I attended dozens of trials, conducted extensive interviews with counterterrorism judges and lawyers working in the courts, interviewed former inmates and conducted multiple surveys trying to understand public opinion in relation of prosecutions and rule of law in the country. And in 2019 I worked for UNITAD, U.N. Investigation Team to promote accountability of crimes committed by Da’esh/ISIS, in Baghdad.

So what has contributed to the swelling prison population? In reality, multiple factors contribute to the growth of the prison population in Iraq.

First, Iraq’s aggressive approach to fighting terrorism has basically given ungoverned Shia militias, that are often operating outside of government control a free pass to arrest Sunni Iraqis for alleged ISIS membership or sympathy. These arrests are carried out to scare the population into compliance, extort the local population, or even to settle personal scores. For example, it is not rare to have a Sunni accused of being a member of ISIS by a wife’s lover or someone else who simply wants him out of the way. As you can imagine, such haphazard arrests have swelled the population of the local prisons.

And running these prisons is a very profitable enterprise for its leadership and employees—adding an incentive to keep the prison population large. Not only is the government paying a per-person fee to prison administrators for each inmate, inmates and their families are often also made to pay fees. According to a former inmate in a prison near Mosul whom I interviewed, everything is for sale in jail: “An inmate pays money to get better food, allow visits from relatives, and get access to cellphones. He might even have to pay a flat per day fee to move from an overcrowded prison cell to a VIP room with a couch and TV.” In at least one known case, a rich businessman was arrested for ISIS membership, and his court date was intentionally put off for an unusually long time so his family would continue to pay for his time in prison. The businessman’s case is unfortunate, but at least in that case, his family knew where he was. In many cases, it is very difficult for relatives to even find incarcerated loved ones because of the large number of secret prisons in Iraq. These arduous conditions apply to both those in punitive detention and those in pretrial detention.

But the legal process for alleged ISIS members really falls off the rails at the trial stage.

When a person is charged with ISIS membership, he eventually faces trial. In 2018, at a Tal Kayf court, I didn’t see a trial that lasted more than 15 minutes. The court quickly convicted each defendant based on his own confession of guilt. But according to a former inmate within that prison whom I interviewed, torture is so widespread that basically everyone is convinced to confess whether they are guilty or not. In addition, defendants are almost always defended by court-appointed lawyers who know nothing about their clients and have no interest in defending him. “We do not like being appointed to defend terrorists because they are guilty,” one lawyer admitted. “But unfortunately, by law, we have to be there.”

Given the almost impossible odds of winning such trials, these lawyers’s attitude is understandable. And independent lawyers who do defend ISIS suspects are likely to be arrested themselves and charged with supporting the terrorist group. In fact, according to one former inmate in one prison, there was a so-called lawyers cell where all imprisoned lawyers were segregated for trying to persuade fellow cellmates not to confess, even under extreme torture.

The few independent lawyers who still agree to take ISIS-related cases are constantly afraid for their lives. Many carry a weapon and those who work in Mosul courts prefer to live in Iraqi Kurdistan, commuting four hours a day so that they can live in a place that is under a different government and has much better security. This pressure has led some international organizations to reconsider the safety of sending defense lawyers to Iraqi courts. According to a security adviser for an international NGO that has lawyers working on ISIS-affiliated cases, “Because they [their lawyers] were threatened by court guards right in the courtroom, we had to reconsider working there for the safety of our staff.”

A third aspect of the Iraqi counterterrorism justice system is the very high stakes of getting convicted. According to Iraqi counterterrorism law, a male charged with participating in combat with ISIS gets the death sentence. Even non-combatants get 25-year prison sentences—the life-or-death stakes of the battlefield continue into the criminal process. To understand what these factors are doing to the country and what Iraqis think about this, I conducted several surveys, part of the “Rule of Law in Iraq” book project (with Sam Witt), among the local population. I reached out to a diverse range of people: Sunni ISIS victims in Mosul, ISIS affiliates in camps around Mosul, and civilians in Baghdad and Mosul who did not personally suffer from the group’s actions.

Harmful Counterterrorism Justice

Unfortunately, counterterrorism justice in Iraq is leading to major problems and pushing the country deeper into conflict because the justice process does not allow for reconciliation and does not further security goals.

The first problem is sentence severity. Since the death sentence is given to almost all defendants accused of ISIS affiliation, it dissuades ISIS members still at large from peacefully surrendering—if one surrenders, it’s unlikely he will be able to return to civilian life. Surrender often leads not only to execution, but also to torture in prison. And, very likely, the surrendered man’s family would have to pay bribes to the prison until his execution. Almost all (93%) of surveyed ISIS affiliates agree that the death sentence and prison torture are major barriers to ISIS members surrendering. It is simply more costly to surrender than to keep fighting. Turning to the insurgency after ISIS lost its territorial control allows ISIS members to stay relatively free, possibly visiting their family members, continue inflicting damage on their enemy and in the long run gives hope of victory. The opinions of ISIS victims, on the other hand, fall largely in the other direction. More than half of surveyed ISIS victims (53%) think that even if an ISIS member voluntarily surrenders, he should be given the death penalty.

A second problem is the sheer number of people affected by Iraqi counterterrorism policies. Extreme sentences for terrorist group affiliation give non-democratic governments heavy weaponry that could be used against the general population. In the case of Iraq, it allows the government to have total control of the population most likely to be accused of ISIS membership—Sunni Arabs. For example, while anti-government protests are currently ongoing all over Iraq, they are virtually non-existent in the Sunni-predominant former ISIS Mosul. The main reason for that disparity is that when peaceful protests were just starting, according to local activists, members of intelligence warned Sunni protestors that anyone protesting, even peacefully, would be accused of ISIS membership and imprisoned.

Because these threats deprive Iraq’s Sunni population of peaceful and legitimate ways of reaching the government with their complaints, it makes the Sunni population more likely to turn to violence and join any new anti-government insurgency. According to the survey, both ISIS affiliates and civilians feel very strongly that the will of people is more important than existing laws and violence is sometimes necessary to support the just cause.

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