With the battle against the terror group "Islamic State" (IS) in Syria now reportedly over, more than 65,000 of its members, among them thousands of foreigners, are being detained in camps run by Syrian Kurds. Since Syria's informal Kurdish region is unequipped to try them, and Western countries are not willing to take them back, Iraq has been asked for help.

The Syrian Kurds, who have been fighting IS as part of a coalition with the United States, are overwhelmed by the huge number of fighters who are now in their custody. They have warned that they cannot guarantee their continued imprisonment in case of an expected Turkish assault on their region.

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In search of a solution, Washington turned to Baghdad, and Iraqi Prime Minister Adel Abdul Mahdi has announced that, as part of an undisclosed agreement, Iraq will try those foreign IS members from Syria who have committed crimes against Iraqis. He also promised to help repatriate other foreign members/fighters to their home countries. Fourteen French IS members have since been taken from Syria to Baghdad, along with 280 Iraqis, a number which is set to rise to 500 as part of the agreement. Talks are ongoing to transfer a total of 20,000 Iraqi IS men, women and children to Iraq, the International Red Cross has reported.

But according to Saman Abdullah Aziz, assistant professor of law at Salahaddin University in Irbil, the capital of Iraqi Kurdistan, this will not solve all the problems. "If these people committed their crimes in Syria, Iraqi law does not allow for them to be tried here," he says. This will be the case for many of the IS suspects. "Prosecution is only possible for crimes committed against Iraqis or in Iraq. In all other cases, the judge must transfer the suspects to the country where they committed their crimes."

However, trial by the Assad regime in Syria is not an option for most of the countries involved, and Syria's Kurds cannot try them for lack of a formal state and justice system.

At the same time, the Iraqi justice system is already bursting at the seams, and prisons are overcrowded: About 20,000 IS men and boys are imprisoned in Iraq, as well as some 2,000 women and children. The number of foreigners among them is unknown, but is likely to run into the hundreds. That is why Iraqi President Barham Salih has stressed that dealing with foreign fighters is an international responsibility. "To laden Iraq with this issue on behalf of the world is too much to ask of Iraq," he said in an interview.

Too much for Iraq

Statistics are hard to come by in Iraq, but according to media reports, in April 2018, of the 10,000 cases then before the courts, a verdict was reached in around 2,900 of them, 300 of which led to a death sentence. Those tried have a right to appeal, but how many cases have been appealed is unknown.

Professor Saman Abdullah points out that the huge numbers necessitate a different solution. New laws will also be needed, he notes, as at present there is no provision for trying crimes against humanity in Iraqi courts: "There is no article in Iraqi law that can be used against those suspected of slavery or genocide."

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IS suspects are tried under Iraq's terror law, and anyone who planned, conducted or financed terror attacks can be given the death penalty. Simple affiliation with IS is enough for a life sentence. During their day in court, the accused spend 10 minutes at most in the actual courtroom, but in 98 percent of the cases, sentences are issued. In regular Iraqi courts, about a third of all those accused go free, Abdullah says.

The flaws in the Iraqi system could make Western countries pause for thought before they agree to submit their citizens to it. Iraq's courts do not guarantee justice according to international laws and regulations.

Human rights organizations and local lawyers report that charges are frequently based on statements made by informers, who often remain anonymous and cannot always be trusted, and that suspects are forced to confess that they were part of IS. Human Rights Watch (HRW) states in its reports that it is not the proof collected by the prosecution that leads to prosecution at trial, but the defendant's confession. As if to illustrate this, Iraq's Supreme Judicial Council published confessions of French IS fighters in Syria soon after they arrived in Baghdad.

Confessions after torture

The problem is that, according to reports by HRW and others, many of the confessions are extracted using torture. HRW cites the cases of young boys who claim they only signed confessions to stop the beating and cigarette burns. An inhabitant of Mosul, who was picked up for another reason and wishes to remain anonymous, says he was forced to watch IS suspects being tortured in jail. All of them confessed under duress, he says.

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Judges usually ignore complaints from suspects who only confessed under torture, HRW noted, after attending a number of trials. "According to the Iraqi Constitution, forced confessions through torture are illegal," Professor Abdullah says, adding that if torture is proven, the charge is annulled and the defendant set free. But the defendants in Iraqi terror courts do not usually have a lawyer to present their case. Lawyers have been unwilling to appear in such cases after colleagues who represented IS suspects were themselves charged with affiliation with the group.

Even so, Abdullah stresses that there is nothing wrong with Iraqi law itself. "It simply is not applied. For us, too, the burden of proof lies with the court, and the accused are innocent until proven guilty. A confession should always be backed up by evidence."

Case for international tribunal

Iraq has not joined the International Criminal Court (ICC) in The Hague and will not accept foreign assistance in trying its IS suspects. But since the numbers are so high and may rise still further as people are transferred from Syria, the professor suggests that Iraq should set up a special commission to find new solutions. It could also, he says, ask the United Nations Security Council to exercise its right to refer Iraqi cases to the ICC.

Abdullah thinks it is time for a special international tribunal to be formed. "Iraq is not a member of the ICC, but Baghdad can still ask the court to come to Iraq and undertake these cases."

However, Iraq's continued use of the death sentence is a potential stumbling block. The Associated Press reports that some 250 IS prisoners have been executed since 2014.

Abdullah points out that a special commission set up by the UN Security Council in 2017 to research IS crimes ran into problems for this very reason. He suggests that Iraq follow the example of its Kurdistan region and resolve not to carry out death sentences, making such a solution possible.

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