Then
In the years following 9/11 and the start of the war in Afghanistan in October 2001, over 50,000 men, women and children were detained in Afghanistan by the US and its coalition and militia allies. Some were tortured to death, others “disappeared”. None had access to lawyers or due process rights.
Intended to remain beyond the reach of the law, the first prisoners arrived at Guantánamo Bay in January 2002. The narrative that these were the “worst of a very bad lot” and “Taliban and al Qaeda captives” went unquestioned for years. A 2006 report by Seton Hall University would reveal that “Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitive affiliation with either al Qaeda or the Taliban”.
Guantánamo is the visible tip of a giant iceberg. While 780 men and boys are known to have been held there, more than 100,000 people were detained by the US in Iraq: “More than 100 times as many prisoners have been held in Iraq as in Guantánamo Bay, with fewer legal rights recognized by US courts”. Before lawyers had access to Guantánamo Bay prisoners and their stories, the scandal of the physical and sexual abuse of Iraqi prisoners at Abu Ghraib prison emerged in 2004.
Now
Almost two decades on, the conflicts in Afghanistan and Iraq have not ended, nor has the involvement of the US and its allies. While the US and its allies have extended their repertoire to largely secret operations across the African continent, the fight against the Islamic State (ISIS) militant group since 2014 has seen their involvement in the Middle East extend to Syria. With the increasing use of drone strikes, the assault has been from the air and the ground, with states like the United Kingdom and France targeting their own citizens in Syria, in likely contravention of international law, as well as indiscriminately killing civilians.
On the ground, the Iraqi army and Kurdish and Iraqi militias allied to the US have captured and detained thousands of men, women and children as ISIS lost territory in the two countries over the past three years. With the situation in northeast Syria and Iraq reminiscent of that in Afghanistan and Pakistan in the early years of this century, it demonstrates that nothing has been learned over the past two decades and that indefinite arbitrary detention at Guantánamo Bay was no mistake but a template.
At present, the US-allied Kurdish-led Syrian Democratic Forces (SDF) militia is holding over 12,000 men and boys in northeast Syria suspected of ISIS affiliation. Around 2000-4000 are foreign nationals from over 50 countries in overcrowded prisons, in which “Dozens of fighters are crammed in a single cell”. In addition, over 100,000 Syrian and foreign women and children are also being held in squalid camps. Over 66,000 people, mainly women and children, 15% of whom are non-Syrian, live in tents in the Kurdish-run Al-Hol camp: 65% are children under the age of 12. In 2019, 517 people died in the camp, mostly children, “victims of malnourishment, war wounds and disease”.
How the SDF obtained its prisoners, and whether they were fighters, remains unknown: they have “yet to be criminally investigated for the specific crimes they may have committed”. Less than 10% of the prisoners are deemed “high-value”, yet how that assessment has been reached and what it means has not been disclosed. As a militia, the SDF has no jurisdiction and legal authority to try prisoners and probably lacks the facilities to do so, as well as to hold the prisoners in the long term, for which reason it is demanding that other states reclaim their nationals.
In Iraq, more than 20,000 people, almost half the prison population, are held either on terrorism charges or sentences, including women and children. Thousands more “are believed to be held in detention by other bodies, including the Federal Police, military intelligence and Kurdish forces”.
What to do?
Academic discourse, newspaper editorials and international and regional conferences on what to do particularly with foreign prisoners are partly theatre. The decision to send prisoners to Iraq was made long ago and has been enforced since at least 2017 in the form of transfers, arbitrary detention and quick trials. The finer points and deals with individual states to avoid accountability are currently being etched out. Nonetheless, the options presented on the table include:
An international tribunal for ISIS war crimes: Recourse to the International Criminal Court (ICC) is not an option as neither Syria nor Iraq are ICC members. Kurdish militias in Syria and Iraq have called for an international tribunal to be set up, in Iraq or Syria. This is supported by the Belgian Prime Minister and Sweden for European citizens, as an alternative to repatriation.
International tribunals can take decades to set up and become functional and can get bogged down in questions of the bases and authority of the tribunal, funding and scope. Would such a tribunal include the main victims of the atrocities – Syrian and Iraqi civilians – who have suffered war crimes not just at the hands of ISIS, but other militias, their own governments, as well as foreign entities, including the US-led coalition, Russia and Iran?
Thus far, this option is disfavoured by the extrajudicial executions of ISIS leaders and hasty trials for others in Iraq , which the UN has stated “should respect fair trial guarantees, ensure victim participation and uphold the right to truth.”
The SDF and other Kurdish groups have long called for states to repatriate their foreign nationals. The US has made slow progress in getting its allies to do this. By the summer of 2018, the US had convinced some states to repatriate their nationals. North Macedonia took back seven men, who were convicted and jailed in March 2019. Human Rights Watch (HRW) raised concerns about eight men sent back to Lebanon around the same time who were held for over one month “without any communication with their families or judicial authorities”.
Other states have repatriated their citizens, but in many cases, this only applies to children. European states have been reluctant to repatriate their nationals and claim that the security situation makes it too dangerous to provide consular access. Even though “European courts are more capable of holding credible trials that meet international standards than Iraq’s courts”, most European states would prefer to have their nationals tried in Iraq and not repatriated. In July 2019, a Dutch court became the first in Europe to convict a citizen for war crimes committed in Iraq and Syria.
A popular response has been citizenship deprivation, feeding into immigration policies and racist right-wing rhetoric and aimed largely at dual nationals, often from migrant communities from former colonies and former refugees who have been given citizenship. After the fall of ISIS in Iraq in 2017, it was anticipated that a large number of fighters returning to the UK would be prosecuted. Instead, in that same year, 106 people had their citizenship stripped, a 600% increase on the previous year: “where a person has dual nationality, the British response has been to deprive them of their British citizenship” The sweeping inclusion of an aid worker under such provisions undermines the stated aim of the measure.
Arguments against repatriation are undermined by the fact that Kazakhstan has repatriated over 500 of its citizens. Returnees are held in camps to process their need for rehabilitation, prosecution or both. For its part, the US has repatriated at least 16 ISIS members and prosecuted 13 of them. Nonetheless, where dual nationals are concerned, it attempted to deny legal rights to a Saudi-US national held without charge and also refused to repatriate a Yemeni Alabama-born woman on the basis that she is not a US citizen.
States were lobbied to repatriate their nationals days after Donald Trump signed an executive order to keep Guantánamo Bay open indefinitely. In August 2019, his administration announced that it was planning to send hundreds of ISIS prisoners to be detained in Iraq, and that it would send some of the highest-value prisoners to Guantánamo Bay, naming former British citizens Alexandar Amon Kotey and El Shafee Elsheikh, accused of kidnapping and murdering western hostages. The reference to Guantánamo Bay caught the public attention while obscuring the fact that the transfer of prisoners to Iraq was already ongoing for some time.
US human rights lawyers were quick to point out that any attempts to transfer new prisoners to Guantánamo would result immediately in litigation, as such prisoners would have more rights than the current prisoners. Guantánamo has since been ruled out as a possibility for prisoners. In October 2019, Kotey and Elsheikh were among a number of prisoners taken by the US from Syria and transferred unlawfully to Iraq. In tweeting about the incident, Trump restated Donald Rumsfeld’s “worst of the worst” description, demonstrating the similarity between the situation and logic of the current situation and that in Afghanistan in the early 2000s.
Few countries have extradition treaties with Syria, “let alone with the Kurdish-held areas in northern Syria”, yet little has been said about the probable illegality of the transfer of prisoners from Syria to Iraq, and indeed elsewhere in the region, by the US. Iraqi law only allows for crimes committed in that state to be tried by its judiciary, thus the fact that it has no jurisdiction to try prisoners captured in Syria has not attracted much attention either.
The Guantánamo option has provided a smokescreen for what is happening, just as the focus on Obama’s efforts to close Guantánamo obscured the fact that detention at Bagram in Afghanistan swelled to over 3000 prisoners at one point under his administration but was largely ignored.
Iraq
Some have welcomed the possibility of prisoners being held and prosecuted in Iraq, especially as it would then be responsible for them rather than the US. According to US officials, it would “”alleviate some of the security concern” that the prisoners could escape” and “eliminates the need for their home countries to enter Syria to collect them”.
However, prisoner transfers to Iraq are replete with risks of known human rights violations, including torture and unfair trials. According to HRW, which is monitoring the situation closely, “Our research has documented that Iraq’s ISIS proceedings are inherently unfair and replete with due process violations, with suspects, including Western nationals, facing a real risk of torture in custody”. UN officials and a new report back up these findings.
To work around this, European states reluctant to repatriate their citizens have been meeting Iraqi officials to work out the details of an arrangement and ultimately how they can avoid accountability for violations against their citizens, as emerged when citizens of some states returned from Guantánamo Bay. European legal experts first met in June 2019 and stepped up their efforts following Turkey’s incursion into northern Syria later in the year. Most recently, an EU delegation visited the Kurdistan Region in late January.
Iraq is offering to keep the prisoners for a multi-billion dollar fee. Among other issues being negotiated by European states are “that proceedings meet international fair trial standards, and that they can maintain regular consular access to their nationals”. Iraq is also seeking a commitment that states will not criticise its legal proceedings and appears inflexible on the death penalty. New detention sites are also being considered.
In practice
The US has been sending foreign and Iraqi suspected ISIS members captured in Syria to Iraq for trial since late 2017. Three of 30 men included in a Reuters report said they had been convicted of ISIS membership and sentenced to death; five had been given life sentences and four claimed they were tortured in prison.
For the first time, in February 2019, an Iraqi official, President Barham Salih, admitted to the transfer of ISIS prisoners when he announced that 13 French prisoners, transferred that same month allegedly at the request of the French government, would stand trial. Hundreds of others have also been transferred, including Iraqis.
Seven of the men were consequently convicted of ISIS membership and sentenced to death. HRW condemned “the “outsourcing” of ISIS suspects’ trials to Iraq”, while in a recent terrorism trial, France chose instead to prosecute and sentence 14 people presumed dead in Iraq and Syria to up to 30 years in absentia.
Their death sentence was preceded by that of another European, a Belgian citizen in March 2019. Bilal al-Marchohi said, “he signed a blank confession, which was later filled out by Iraqi authorities to detail his activities in Syria. It appeared to have been changed later to show he was arrested in Iraq.” Over 20 foreign women were also sentenced to death for ISIS membership in 2017-2018. So far no death sentences have been carried out against foreign nationals and the French case seems to be some sort of test case for how other Europeans will fair in the Iraqi judiciary, particularly given European states’ stand against the death penalty.
Law/less in Iraq
Iraq has one of the highest death penalty rates in the world. In 2018, it executed over 100 people with a further 8000 on death row. Over half of Iraq’s prison population of at least 37,113 prisoners in 26 prisons are imprisoned on terrorism charges. Another 11,000 people are said to be “detained by the intelligence branch of the Interior Ministry, undergoing interrogation or awaiting trial”.
Prisoners are held in inhumane conditions with little access to lawyers, who are often harassed for representing terrorism suspects. There is no way of ascertaining individual stories: typically, a hearing last 10 minutes, with no witnesses, including victims, or evidence, and often without a lawyer. Confessions are often obtained through the use of torture.
Prosecutions are carried out under Iraqi counterterrorism legislation; the single charge of ISIS membership, whether or not any violent crime was committed, results in a life term or death sentence. As a result, “those with minimal connections to the Islamic State group are caught up in prosecutions alongside those behind the worst abuses”. Many Iraqis and Syrians may simply be refugees or displaced families caught up in the broader violence in the region.
Prisoners are not charged or tried for offences they may have actually committed and victims are excluded. There is no transparency or due process. According to Belkis Wille from HRW, “These trials haven’t been about accountability, they have been about revenge. They simply do not comply with any fair trial standards.”
Women and children
A 2019 HRW report states that an estimated 1400 foreign women and children are detained by Iraqi and KRG (Kurdistan Regional Government) authorities. They include over 800 children, “sometimes detained with adults [in Iraq] in severely overcrowded and unsanitary conditions, with no access to education, rehabilitation, or contact with their families”. Children are tortured and beaten and by the end of 2018, “at least 185 foreign children had been convicted on terrorism charges and sentenced to prison terms” of up to 15 years. Seven of those convicted were girls. Younger children, under 13, “who haven’t committed violence generally receive sentences of three to six months for illegally entering Iraq.”
A Reuters report around the same time put the number of child prisoners higher at 1100, most of whom are detained with their mothers in overcrowded, poor conditions, resulting in the death of at least seven of them. At least three women have died as well.
Women are subject to the same speedy trials as men and the same penalties. Between late 2017 and August 2018, 494 foreign women were convicted of ISIS membership, with 20 sentenced to death by hanging.
Absent justice
A dominant feature of the so-called War on Terror is the lack of justice. Neither victims nor offenders get to have their day in court to tell their side of the story. The victims and their families both in Iraq and elsewhere want justice and fair trials. Meanwhile, states manoeuvre to ensure they are not held accountable for any wrongdoing; the focus on ISIS deliberately excludes the war crimes and offences committed by other parties to the conflict.
While the current escalation in US-Iran tensions in Iraq may pose an obstacle to detention plans, a greater obstacle is posed by the ongoing popular protests across the country since October 2019. Protesting against corruption and for decent jobs and public services, peaceful demonstrators have come up against the violence of their own security forces, who have killed more 600 people and injured thousands. Undeterred, the protesters saw the previous Prime Minister resign in November as they call for regime change.
Agreements made with the current fragile government may not last long if the protesters secure more of their demands. The protests, similar to popular protests in other countries, counter the narrative of the popularity of ISIS. Hundreds of thousands of Iraqi men, women and children have joined the peaceful protests for change; they did not join ISIS.
The situation faced by states is not a novelty: their concern is damage limitation. The torture and arbitrary detention of current times is rooted in colonial policies such as the Rowlatt Acts in India and internment in Northern Ireland as well as France’s defence of the use of torture in Algeria. Little has changed, nor the desire to grab resources that lies behind it.
Justice can help to break the chain of violence but it is not a profitable commodity like oil or minerals. Denying fair trials, whether in Iraq, Guantánamo, or elsewhere is as much a denial of justice to victims as it is to suspects. While governments appear to ponder their cards, they are fully aware that the game is already underway.
one small window... 