Domestic Justice for International Crimes: Prosecuting ISIS members in Iraq

by Nina Mileva


After several years of protracted conflict, the Iraqi forces have managed to attain control over all of the country’s territory formerly occupied by the Islamic State (ISIS/ Daesh). Reports by various bodies provide overwhelming evidence that during this period Daesh committed war crimes, crimes against humanity, and, with respect to the Yazidi community, the crime of genocide. With a modicum of peace at hand, the Government of Iraq is now facing a new transitional justice-related challenge – prosecuting former members and affiliates of Daesh.

There are broadly two categories of persons which have fallen in the scope of prosecution – those who willingly joined Daesh and contributed to the furtherance of its objectives and those who were forced into it and acted in arguably non-military roles (for example as medical personnel or cooks). The current prosecution enacted by the Iraqi state similarly pursues one of two avenues: accused are either charged and prosecuted under Iraq’s counter-terrorism laws, or, if an accused can show that they were forced into ISIS membership and did not commit any serious offense, their prosecution is reviewed under the Government of Iraq’s General Amnesty Law.

Current Approach

In its December 2017 report entitled “Flawed Justice: Accountability for ISIS Crimes in Iraq”, Human Rights Watch (HRW) identified several issues in the current prosecutorial approach adopted by the Iraqi Government. The issues identified by HRW, including the absence of a national strategy for prosecution and due process concerns, largely centre around the choice of the Iraqi government to prosecute alleged Daesh members under the broad Anti-Terrorism Law of 2005. Under this law, it is enough for authorities to prove the accused’s membership in Daesh, or participation in the organisation’s structures, to ensure grounds for prosecution and eventually conviction. The penalties within this framework are life imprisonment or death. The reason behind the current prosecutorial approach is likely owed to the high number of accused facing prosecution, coupled with the limited time and resources to prosecute them. Thus, charging suspected members under the broad umbrella of terrorism, rather than more specific offences, is often easier both from the perspective of evidence and the perspective of time.

By grouping a wide spectrum of conduct under the single charge of terrorism, the approach fails to differentiate between persons responsible for the most serious crimes and persons who were part of the Daesh administration in other or non-military ways. This approach hampers the establishment of an accurate judicial record, raises due process concerns, and harms the overall judicial process. For this reason, there is a need to develop a prosecution strategy that accounts for crimes other than the general crime of terrorism, in particular, international crimes such as genocide, crimes against humanity, or war crimes.

Strategies for Improvement

By prosecuting alleged Daesh members for perpetrating international crimes, the Iraqi government will ensure an accurate and detailed representation of the crimes committed. Furthermore, it will ensure a fair trial for all involved, equally preserving the rights of the victims and witnesses and those of the accused. Another benefit of adopting an international crimes-based approach is that the judicial process can be informed by the detailed international jurisprudence developed in this field. While national legislation might neglect to represent certain elements of the crimes, international standards provide for a uniform and accurate application of the law, including, in the case of Iraq, the potential application of amnesty. Moreover, international standards offer both a broader scope of protection and larger basis for prosecutions. Finally, while war crimes, crimes against humanity and genocide are not enshrined in Iraqi national law, this does not preclude the associated obligations that might arise from Iraq’s membership to international instruments related to this category of crimes.

Global Rights Compliance (GRC) has an extensive record of aiding national governments in their efforts to train and prepare local law-enforcement staff for prosecuting international crimes domestically. The adoption of a positive complementarity approach ensures that domestic governments are equipped with the knowledge and skills to prosecute international crimes at home successfully, and in compliance with their international obligations. Strategies such as the training of local law-enforcement staff on the collection and assessment of relevant evidence, the preparation of dossiers related to international crimes, the presentation of evidence, and the involvement of civil society, are only few of the ways in which the Iraqi government could equip itself with the skills necessary to successfully prosecute international crimes at home.

In a recent letter addressed to the UN Secretary General, Iraq has asked for international assistance in the investigation of Daesh crimes, showing openness to the possibility of modifying the current approach and ensuring sustainable accountability for those responsible of the most serious crimes.

Suspected Islamic State members sit inside a small room in a prison south of Mosul, July 18, 2017. (Photo: AP)