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Justice after ISIS: time for judicial triage

The overwhelming reliance on a counterterrorism framework is showing its limits. Judges and local officials in Iraq and Syria are realizing that you cannot lock everyone up.

lead Author interviewing local Tabqa residents after ISIS had been pushed out of city (July 2017) © Ole Solvang/Human Rights Watch. All rights reserved.The Raqqa Civilian Council building was full of people with complaints when I visited in July. The council, based in the Syrian town of `Ayn Issa, was set up in April to govern the areas in Raqqa province that US-backed Syrian Democratic Forces (SDF) are retaking from ISIS. A local sheikh had come to seek the release of a relative who the SDF had detained on suspicion of being an ISIS member. Another local man was upset that the SDF had not arrested his neighbor, who he says had joined ISIS and had used his association with them to confiscate some of the local man’s property.

The scene that unfolded before me in rural Syria was not just about predictable local complaints. It illustrated a difficult policy question that runs all the way from the battlefields of Iraq and Syria through key international capitals: what should justice look like after ISIS? In other words, who should be prosecuted, by whom, and for what?

The question is a complex one. While the imperative for justice is overwhelming, existing justice mechanisms are underwhelming. Sorting through and properly prosecuting the grave crimes committed by ISIS in Iraq and Syria would be a challenge for any well-resourced and fully functioning judiciary. Some of the challenges include the sheer number and types of crimes, the difficulty gathering evidence for crimes that took place in the chaos of war, and the inevitability of having to conduct these investigations in a highly politicized and polarized environment.

For the judiciaries in Iraq and Syria – weak to begin with and now depleted by years of conflict and corruption – it is a nearly impossible task. And to make things worse, each of those countries has different judicial systems operating in various parts of the country that either do not cooperate or are openly hostile toward one another.

Blunt instrument

To face the challenge, the authorities in Iraq and Syria have opted to go with a blunt instrument. For the most part, they have relied on their counterterrorism laws and special counterterrorism courts to prosecute ISIS members as well as their suspected accomplices. An Iraqi judge at the Nineveh governorate’s counterterrorism court, which has jurisdiction over cases from the Mosul area, told Human Rights Watch recently that the court was working through about 2,000 cases involving people suspected of being ISIS members or affiliates. Across the border in Syria, the People’s Protection Court, a local court in charge of terrorism cases in the Democratic Union Party (PYD)-led autonomous administration in northern Syria, has handled more than 700 cases, a local judge told me last month.

It is easy to see why counterterrorism laws appeal to prosecutors. They can lock people up for a long time simply by proving membership in ISIS or that someone materially assisted the group or its members, without having to prove they committed specific criminal acts. But these laws and the courts that apply them are too blunt for the challenge at hand. They do not sufficiently distinguish between ISIS members who may have committed rape or executions, and those who simply worked as traffic police.

And the definition of assistance is so broad that it has been applied to large swathes of the population that lived under ISIS. For instance, the laws in force could penalize doctors who worked in ISIS-run hospitals, lawyers who participated in ISIS courts, local shop owners who sold food to ISIS or filled their cars with gas. This is not just a hypothetical; in the past two weeks, Iraq has issued arrest warrants against at least 15 lawyers, apparently for the “crime” of practicing law in ISIS courts.

Amnesty

The overwhelming reliance on this counterterrorism framework is showing its limits. Judges and local officials in Iraq and Syria are realizing that you cannot lock everyone up. In June, the Raqqa Civilian Council pardoned 83 captured ISIS fighters whom it described as “low-ranking members without blood on their hands.” The council said that it was a goodwill gesture designed to promote stability and reconciliation.

Iraq passed a law in August 2016 that offers amnesty to anyone who joined ISIS or another extremist group against their will, and did not commit any serious offense such as torture, killing, or the use of explosives. The head of the Iraqi parliament’s legal committee, Mohsen al-Karkari, told Human Rights Watch during a meeting on February 7 that it was a roundabout way to limit the scope of Iraq’s wide-reaching counterterrorism law. According to the Iraqi Justice Ministry, authorities have released 756 prisoners since the law was passed.

Amnesties may be a necessary correction to expedited and often flawed trials as well as overflowing prisons, but the overall process is not delivering justice. Several Raqqa residents told me that they feared that those who benefited from the June amnesty were not necessarily those with “clean hands” but rather those who had strong advocates among the key clans that the SDF is trying to accommodate to promote stability. Those who benefited from the June amnesty were not necessarily those with “clean hands” but rather those who had strong advocates among the key clans that the SDF is trying to accommodate to promote stability.

In Iraq, the amnesty has failed to convince many judges or promote local reconciliation. A judge in the Nineveh counterterrorism court told Human Rights Watch that in his opinion those who supported ISIS even with the simplest actions like cooking, were as culpable as the fighters, and that he had no interest in claims from defendants that they joined the group against their will.

Accountability for specific acts

It is time to recognize that the overreliance on counterterrorism laws and courts to judge acts conducted during ISIS rule is producing a failed outcome. What is needed is to apply the judicial equivalent of medical triage: prioritize the prosecution of serious crimes and explore alternative avenues to address lesser crimes. Authorities in Iraq and Syria should concentrate their limited judicial resources on investigating the gravest crimes committed by ISIS members. They should encourage victims to participate in such proceedings. Terrorism charges can still be relied on when appropriate but it will be essential to investigate and prosecute serious underlying crimes such as rape, execution, and kidnapping, to establish accountability for specific acts, and to provide victims with a sense of justice for the crimes committed against them.

Given the scale and nature of crimes committed by ISIS, efforts to introduce international crimes, such as war crimes and crimes against humanity, into Iraqi and Syrian law should be a priority so that these crimes can be properly prosecuted. Without proper international support and political backing, it is doubtful that Iraqi and Syrian courts would be able to successfully prosecute such cases. Authorities in Iraq and Syria should concentrate their limited judicial resources on investigating the gravest crimes committed by ISIS members. They should encourage victims to participate.

For lesser crimes, notably nonviolent crimes, alternatives to criminal prosecution are needed. The intent is not to sweep certain crimes under the rug but rather to seek alternative ways, such as financial compensation to victims, public apologies, and property restitution to promote victims’ rights and ensure reconciliation. Justice and the notion of triage do not always sit well together but given the actual judicial options and resources available, it would be a vast improvement over the current approach.

About the author

Nadim Houry is the Director of the Terrorism and Counterterrorism Program at Human Rights Watch, based in Paris.

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