Foreign Relations & International Law Terrorism & Extremism

Iraq’s Harsh Approach to Punishing Islamic State ‘Collaborators’ Stands to Have Counterproductive Consequences

Mara Revkin
Monday, June 11, 2018, 9:00 AM

“[The Islamic State]’s ideology is so dangerous that we cannot afford to show any leniency” —an Iraqi judge interviewed in Mosul (Dec. 13, 2017)

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“[The Islamic State]’s ideology is so dangerous that we cannot afford to show any leniency” —an Iraqi judge interviewed in Mosul (Dec. 13, 2017)

Khaled was working for a slaughterhouse in Mosul when the Islamic State swept across northern Iraq in June 2014. The Sunni jihadist group, which claimed to be building a “caliphate” based on the earliest model of Islamic governance, overran Mosul in just five days with little resistance from the Iraqi Army. By the end of 2014, the group controlled the economies and institutions of 20 major Iraqi cities. Like many of the estimated 5 million Iraqis living and working in areas captured by the Islamic State, Khaled soon faced a terrible choice. He was told by the new Islamic State-appointed manager of the slaughterhouse that to keep his job he would need to pledge allegiance to the group. Those who refused to swear this oath of loyalty (known in Arabic as bayʿah) would be fired. Beyond the loss of income, quitting would have exposed Khaled and his family to the threat of retaliation. Refusing to work for the group could be interpreted as an act of opposition, and the Islamic State routinely executed civilians believed to be dissidents or spies for the Iraqi government. Faced with these threats to his economic and physical security, Khaled, like many residents of Mosul, decided to cooperate when the group took control of his workplace and salary.

Three years later, in July 2017, Iraqi forces supported by an international coalition recaptured Mosul after a bloody nine-month battle. Khaled is one of more than 19,000 people who have since been detained on suspicion of association with the Islamic State—of these, more than 3,000 have been sentenced to death. Khaled was arrested solely on the basis of testimony from a secret informant in a camp for internally displaced persons to which he had fled as the battle to retake Mosul intensified. During his trial, which I observed in December 2017, Khaled testified that his work consisted only of feeding and caring for the animals at the slaughterhouse and that he had never carried a weapon or received any military training from the Islamic State. He admitted to receiving a small monthly salary from the Islamic State for his work in the slaughterhouse and to occasionally “hanging out” with friends from Mosul who had become fighters for the group. He insisted, though, that he had never participated in combat or any terrorism activities on behalf of the group. The non-military nature of his association with the Islamic State had little bearing on the outcome of his case, however, because Iraq’s Anti-Terrorism Law criminalizes membership in a terrorist group, regardless of whether the member has engaged in violence or other criminal acts. A three-judge panel concluded that Khaled’s admission of pledging allegiance to the Islamic State—even though the pledge was coerced—was sufficient evidence of membership for him to be convicted and sentenced to 15 years in prison after a trial that had lasted less than 30 minutes. Under the 2005 law, the minimum sentence for membership in a terrorist group is life in prison. Iraqi judges generally interpret this as 20 years. The maximum sentence under the law is capital punishment. Judges have some discretion to reduce sentences in cases with mitigating circumstances, such as Khaled’s. The judges told Khaled that he was lucky to have been sentenced to “only” 15 years, given the harsher alternatives. Khaled was so distraught by the verdict that he collapsed on the courtroom floor as he begged the judges to reconsider.

Khaled’s trial illustrates many of the flaws in the Iraqi government’s efforts to bring justice and security to areas recaptured from the Islamic State, which I document in more detail in a report for United Nations University. When the group retreated from Mosul and other cities last year, it left behind a population that Iraqi authorities regard as complicit in terrorism. Although many of these perceived “collaborators” disagreed with the ideology of the Islamic State and were themselves victims of its violence, complying with its policies only to stay alive, there is a flawed assumption among policymakers and many other Iraqis that simply living and working in territory controlled by the Islamic State was an act of material support for terrorism. Reintegrating this population into Iraqi society is a monumental challenge. In their efforts to identify and prosecute individuals affiliated with the Islamic State, authorities have taken an extremely heavy-handed approach that fails to differentiate between voluntary and involuntary collaboration as well as between more serious crimes and lesser offenses. This approach is widely perceived as collective punishment of Sunnis and appears to be generating new grievances that could fuel the emergence of what many analysts predict will be an “Islamic State 2.0.”

One Iraqi judge explained his sentencing philosophy to me by saying that the Islamic State’s “ideology is so dangerous that we cannot afford to show any leniency even for those who were only believers and did not commit specific crimes.” This judge declined to elaborate on what type of evidence, if any, would be sufficient to prove “belief” or “membership” in the group. During research in Baghdad, Mosul and other areas of northern Iraq, I observed trials of alleged Islamic State members and interviewed numerous Iraqi judges, prosecutors and lawyers. This research found that individuals accused of association with the Islamic State—whether as family members, civilian employees or combatants—have little hope of receiving a fair trial, if they are lucky enough to go before a judge at all. As the battle for Mosul unfolded, many Islamic State fighters were extrajudicially executed by Iraqi security forces, state-affiliated militias and civilians seeking revenge.

Family members of Islamic State fighters are also experiencing extrajudicial violence. Tribal law is influential in the many areas of Iraq where state institutions are perceived as illegitimate and ineffective, and one of its key principles is the attribution of collective guilt to the family or tribe of the perpetrator of a crime. As a result, relatives of Islamic State members frequently are held vicariously responsible for crimes that they did not commit, leaving many people at risk for revenge killings. In Iraq’s Hajj Ali camp for internally displaced persons, I interviewed widows of Islamic State members in December who said that they hoped to stay in the camp indefinitely because they believed that they and their children would be safer there than in their former homes in Hawija, where family members of Iraqis who joined the group are facing death threats, looting, and the destruction of their homes by fire or bulldozers. One of these widows told me, “I am afraid that if I return, my neighbors would kill me in my sleep.”

Another deficit of the Iraqi government’s approach to accountability is its reliance on a false dichotomy between victims and perpetrators. Although Iraqi women whose husbands joined the Islamic State are severely stigmatized, they had little control over their husbands’ decisions and could not leave or divorce them without endangering their own lives or losing their children. One woman from Shirqaat said that when her husband decided to join the Islamic State in 2014 and she expressed misgivings about the group’s extreme ideology, he told her that if she did not agree with his choice, “You can leave and I will keep the kids.” In many cases, wives and children of Islamic State fighters were often victims of the group’s violence themselves, yet they are widely perceived as perpetrators or at least accomplices.

In general, the Iraqi government has been unwilling to differentiate between the many different types of affiliates: civilian residents of Islamic State-controlled territory who were required to pay taxes to the group, civilian employees of Islamic State-run institutions (such as Khaled), Islamic State fighters, or relatives of the group’s civilian employees and fighters. Nor does it recognize variation in their culpability. In contrast with the government’s indiscriminate approach to alleged collaborators, however, a survey of 1,409 residents of Mosul that I conducted in April indicates that many Iraqis distinguish between different types of affiliation with the group and prefer more lenient punishment—or no punishment at all—for some. I worked with Kristen Kao, a postdoctoral fellow at the University of Gothenburg, to design two survey experiments that assessed Mosul residents’ preferences for the punishment, forgiveness and reintegration of hypothetical individuals who cooperated to varying extents with the Islamic State—for example, as taxpayers, wives, fighters, cooks who prepared food for fighters, or janitors who worked for the group’s department of municipal services in Mosul. Among many results, we found variation in perceptions of the voluntariness of different types of “collaboration.” The vast majority of respondents (92 percent) perceived paying taxes to the Islamic State as an involuntary act, which is unsurprising since the group imposed mandatory taxes and harshly punished tax evasion. Less than a third (29 percent), however, perceived working as a janitor for the group’s municipal services department to be involuntary. Almost all respondents (97 percent) perceived fighting for Islamic State to be voluntary. In general, these results suggest that many residents of Mosul recognize that some people were coerced into cooperating with or working for the Islamic State against their will.

Additionally, we found that many Mosul residents are willing to allow the reintegration of hypothetical collaborators into their neighborhoods who are subjected to more lenient and restorative punishments—such as community service—than Iraq’s Anti-Terrorism Law allows. For example, in the case of a hypothetical 35-year-old woman married to an Islamic State fighter, 27 percent of respondents would allow her reintegration into the community despite receiving no punishment at all—even though Iraqi courts routinely sentence wives of Islamic State fighters to life in prison. Imposing a punishment of six months of community service, three years in prison or 15 years in prison does not significantly increase the willingness of respondents to accept her has a neighbor. In general, the results of this experiment suggest that harsher punishments do not necessarily improve the prospects for peaceful reintegration of former Islamic State “collaborators.”

We also found significant differences between the preferences toward punishment among survey respondents who remained in Mosul for the duration of the Islamic State’s three-year rule and those who left relatively soon after the group arrived: “Stayers,” on average, preferred more lenient punishments for collaborators than did people who had left. Given the extent to which those who stayed were victimized by the Islamic State, which used civilians as human shields during the battle for Mosul and mass-executed hundreds of those who were trying to escape, this result has important implications for the design of post-conflict transitional justice processes. It suggests that those who have been exposed to the highest levels of violence and abuse by an armed group are not necessarily more vengeful toward collaborators and may even be more empathetic and forgiving—perhaps as a result of their personal knowledge of the Islamic State’s ability to extract cooperation through coercion and fear.

These findings have important policy implications. Previous research has found that “bottom-up,” community-driven approaches to peace building are more durable and successful than those imposed by states from the top down, and our study provides important insights into what ordinary Iraqis view as necessary conditions for reconciliation and reintegration in the aftermath of conflict. Additionally, a United Nations report on best practices for post-conflict transitional justice has found that failure to prioritize the prosecution of more serious crimes over lesser offenses can increase the likelihood that innocent people will be convicted while those who are actually guilty escape justice. By demonstrating that residents of Mosul perceive variation in the culpability of different types of collaborators and prefer different punishments for them, our research indicates that the Iraqi government’s heavy-handed approach to these individuals is inconsistent with public opinion and with important principles of transitional justice, including proportionality and prosecutorial prioritization. This mismatch between the harsh punishments prescribed by Iraq’s legal framework and the preferences of ordinary Iraqis suggests the need for legislative reform and an inclusive national conversation about how best to balance demands for accountability with the need for reconciliation.

The Iraqi government’s approach to individuals associated with the Islamic State is widely perceived as collectively punishing Sunni civilians who happened to live and work in areas that were captured by the group. Although it is important that Islamic State members be identified and held accountable, it is equally important that punishment be proportional to the severity of the offense and that innocent people not be convicted of crimes they did not commit. Several lawyers I interviewed in Iraq expressed concern that excessively harsh punishments may backfire and increase the likelihood of recidivism by convicted Islamic State members if and when they are eventually released from prison. Furthermore, the wrongful conviction of innocent people is generating new grievances that could contribute to a future insurgency against the Iraqi government. “Many innocent people have been unjustly imprisoned. If they remain in prison with terrorists for years and years, by the time they are eventually released, they will become the next generation of Daesh,” Nifal al-Tai, the director of the Iraqi Bar Association’s Ninewa office, told me. The Islamic State’s history in Iraq dates to the early 2000s, and its remnants are likely to reemerge again if the underlying political and economic grievances that fueled its rise in recent years are ignored and exacerbated by new forms of injustice.

NOTE: This post is based on Mara Revkin’s recent report,“After the Islamic State: Balancing Accountability and Reconciliation in Iraq,” which is part of a larger project led by Cale Salih of United Nations University in partnership with the Institute for Integrated Transitions. To read more about the results of the survey experiments mentioned in this article, contact Kristen Kao ([email protected]) and Mara Revkin ([email protected]) for a draft of their working paper: “Reintegrating Rebel Collaborators: Experimental Evidence from Mosul, Iraq.”

Mara Revkin is an associate professor of law at the Duke University School of Law and a nonresident scholar with the Carnegie Endowment’s Democracy, Conflict, and Governance Program.

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