Published by The Lawfare Institute
in Cooperation With
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.
Third, even if harsh sentences for ISIS membership satisfy ISIS victims and civilians not affected by the group, the absence of due process in the Iraqi courts bothers those with familiarity about how the courts work. The overwhelming majority (71%) of ISIS victims said they trusted Iraqi criminal courts, an opinion shared by only 24% of ISIS affiliates. Those numbers could seem like proof that the justice system is working for the victim. But a closer look reveals something else—Iraqi civilians and ISIS victims are less knowledgeable than other groups about what is going on behind the courts’s closed doors.
Of those civilians interviewed in Mosul, 40% said that they never follow the news about counterterrorism trials, while 44% of ISIS affiliates follow news about the trials regularly and pay close attention to it. When Mosul civilians (as part of the survey experiment) were informed that ISIS defendants did not have access to independent lawyers, it changed their opinion of the trials. While that information did not change their perception of the defendants’s guilt, it significantly changed their opinion about the justice of the trial, with 67% of ISIS victims thinking the defendant did not get a fair trial; 69% thinking the judge did not make a right decision; and 57% thinking the sentence was motivated by revenge.
That means that when a significant number of ISIS victims learn about how counterterrorism trials in Iraq work, their trust in the justice system significantly decreases. Those working in the judicial system understand this reality, and as a result, try hard to limit public access to courts. To attend trials that are—as a formal matter—public, you need special permission from a director of the court. And if journalists are sometimes successful in getting those permissions, members of the public or relatives of defendants are almost never allowed.
To promote peace in post-ISIS Iraq and deflate the chances of insurgency, current counterterrorism policies should be changed—and the sooner the better.
To start, only the government and not pro-government militias should have the monopoly on arresting and detaining terrorism suspects. This would cut down on the number of unlawful arrests and secret prisons.
Second, due process should be assured and taken seriously. Independent lawyers should be allowed to defend ISIS suspects, and confessions made under torture should be eliminated. All trials should also be open to the government and international NGOs, many of whom are now threatened and not allowed to attend trials.
Third, harsh counterterrorism sentencing should be re-examined. Not only should capital punishment be eliminated, the whole concept of ISIS membership should be reconsidered. Many Iraqis especially want to see the 25-year sentence for non-combatant membership reduced.
Although there were many variations among survey respondents as to how different ISIS affiliates should be punished, there were several widely shared opinions that could be used as common ground moving forward.
All Iraqis, no matter what side of the war they were on, agree that ISIS leadership was to blame for what happened. The only difference is in how the four groups of people surveyed—civilians in Baghdad, civilians in Mosul, ISIS victims and ISIS affiliates—want to see ISIS leadership punished. Even here, there is more consensus than there is difference. While basically all civilians, regardless of how they personally suffered from the group actions, want ISIS leadership to get the death sentence—and 40% of ISIS affiliates share that belief.
This is because all groups see themselves as victims of the group leadership, although for different reasons. According to interviewed civilians in Mosul, “ISIS leadership came up with all those policies that were against normal people.” ISIS affiliates blamed the leadership because “group leadership promised us victory and paradise, but it was so far from the reality we saw in the organization.”
There is little disagreement that the top command should bear the large amount of responsibility. But opinion becomes much more varied among the three groups when it comes to the question of responsibility down the ranks of the ISIS organization.
Responsibility of Local Fighters
Interviewed civilians in both Mosul and Baghdad are confident that, along with ISIS leadership, foot soldiers also deserve the blame for ISIS crimes. The majority of Mosul civilians believed that “local fighters deserve a great deal of blame for crimes committed by ISIS” and an additional one-third of Mosul civilians think foot soldiers deserve a fair amount of blame. ISIS affiliates also agree that local fighters are far from innocent, they attribute slightly less blame to them.
ISIS affiliates in the focus group attribute the difference in views between the civilian population and ISIS fighters on the subject of foot soldier responsibility to what ISIS affiliates view as the civilian population’s lack of understanding of how ISIS operated. ISIS affiliates allege that civilians cannot differentiate between the orders issued by the leaders of ISIS and the actions of low-level members.
But civilians had a different take. “If you talk to ISIS members now, they say they regret being part of the organization, and that they were only carrying out orders. But back then, all ISIS members believed in everything they did, even if their actions were wrong.” Civilians cite the fact that under ISIS, if someone would talk to a fighter about Islam and humanity, or the unethical actions of the group, a fighter would just kill him.
As a logical consequence of the disagreement in blame attribution, there is also a difference in how civilians in Mosul and Baghdad and ISIS affiliates want to see local low-level fighters punished. Almost all civilians want local ISIS foot soldiers not only to be punished but to get the highest possible punishment—the death sentence. As one civilian argued, “Group members could have refused carrying out some leadership orders but they did not,” thus they deserve what their leaders deserve.
The desire for revenge among civilians is very high, and according to one, “ISIS killed so many people that executing their members is the only right way to punish them back.” Many civilians also think that by killing them, it will make it possible to get rid of the ideology, and that executions would also be a deterrent for potential future IS adherents.
ISIS affiliates, however, want fighters to get prison sentences instead of the death penalty. One affiliate explained: “Leadership gave orders and those who did not follow them were killed on the spot, so there was little they [fighters] could have done to help civilians.” In particular, almost half of interviewed ISIS affiliates think that foot soldiers deserve long prison sentences (15-40 years), and the rest are divided between short prison sentences (6-15 years) and life in prison.
So while both groups (ISIS affiliates and Iraqi civilians) have similar opinions on the guilt and punishment of ISIS command, opinions started to vary as questions went down the group’s ranks. And while Baghdad and Mosul civilians agree that ISIS fighters are to some degree guilty of ISIS crimes, they disagreed about their level of guilt and, as a result, the severity of their punishment.
Going even lower in the ranks of the ISIS organization—to civilian employees—the differences in opinion about guilt and punishment becomes even more apparent. Not only do the opinions of civilians differ from those of ISIS affiliates, opinions between civilians in Mosul, who personally suffered under ISIS, and those in Baghdad also differ.
Responsibility of Group Civilian Supporters.
While the majority of ISIS affiliates think civilian employees of ISIS are not guilty and should either get light sentences or not be punished at all, most interviewed civilians in Baghdad think they should definitely be punished. However, the sentence lengths suggested by civilians in Baghdad are much lighter than those proposed by civilians in Mosul. Half of Baghdad civilians think that civilian employees of ISIS should be either pardoned or get a lighter sentence, whereas this opinion is shared by only 17% of Mosul civilians.
In fact, the majority (65%) of surveyed Mosul civilians go even further in blame attribution and strongly agree that “anyone who helped ISIS should be held accountable.” According to them, not only should civilian official ISIS employees be held accountable, so should anyone who cooperated with the group, such as the civilians ISIS hired while they ran the official government of Mosul.
According to one ISIS victim, “There would have been no ISIS if civilians would not have helped them run their Islamic State. But by working for them, they helped the organization function. An ISIS fighter could not go and kill people if he did not have a proper breakfast cooked by a civilian ISIS employee.”
But ISIS affiliates disagree. As one ISIS member put it: “Whether we liked it or not, ISIS was running the town, and some civilians just continued working where they had been working before ISIS. If civilians did not go to work for the electric company, ISIS would not have had electricity, but neither would the Mosul residents.”
Overall, Iraq public opinion tells us that while ISIS leadership and fighters should be changed with medium to long prison sentences, other members of the group could be given much shorter sentences, and that would satisfy the majority of all three groups (ISIS affiliates, ISIS victims, and civilians in Baghdad).
The Possibility of Change
While managing arrests, imprisonment, and court proceedings is the job of any democratic government, the question of whether Iraqi politicians are willing and able to change current counterterrorism policies is more complicated. According to all interviewed members of the Iraqi parliament, it is basically political suicide to suggest reducing sentences for ISIS members. It is also dangerous. A politician making such a suggestion might also be accused of supporting terrorism and face the same sentences.
However, it is a mistake to assume that all Iraqis are blinded by the desire for revenge or that they are unwilling to discuss changes to the automatic death penalty. If a politician proposes an acceptable reason for abolishing the death sentence, there are those who are willing to give their support. Only about half of interviewed civilians in Mosul and Baghdad said that they definitely would not vote for a politician who promises to abolish the death sentence carte blanche. Citizens I interviewed in Baghdad are even more open to a politician proposing more lenient sentencing. About a quarter of those interviewed in Baghdad said they are willing to vote for a politician who would propose to suspend the sentence to convince ISIS members to stop fighting, and a third would vote for a politician who proposed suspension in order to respond to international pressure. Although it would still be a stretch, it is not absolutely impossible for a politician to successfully propose a change to current counterterrorism policies.