This chapter is part of POMEPS Studies 35: Religion, Violence, and the State in Iraq. Download the full PDF here.
Nussaibah Younis, European Institute of Peace
At its height, ISIS held almost one-third of Iraq’s territory and governed over five million Iraqi citizens. ISIS sought to create a functioning state, and to that end it required a substantial proportion of the population within its territory to actively participate in administration and public service delivery. Civil servants were forced to continue to perform the roles that they had previously occupied, including managing utilities, delivering health services, overseeing agriculture and registering property transfers, births, deaths and marriages. Those who resisted working for the Islamic State were threatened with violence.
Given the scale of collaboration with ISIS among the local civilian population, the Iraqi government and judiciary is faced with the challenge of deciding whom to hold accountable for ISIS affiliation, and to what extent. The Anti-Terrorism Law which governs these decisions is vaguely defined and allows for the extreme punishment of collaborators who were coerced into non-violent roles in support of the ISIS administration. The sheer number of such collaborators means that the Iraqi judicial system would be completely overwhelmed were it to seek to prosecute all of them to the fullest extent of the law. In practice, collaborators are inconsistently prosecuted leading to resentment among local populations. The extent of collaborators who are in the judicial system is also preventing the thorough prosecution of ISIS ringleaders and is failing to allow the time and space for victims to participate in the judicial process. Beyond the law itself, there are numerous problems within the judicial system that are preventing the fair and credible prosecution of prisoners detained on ISIS related charges. These include the use of evidence obtained through torture, the use of evidence obtained through anonymous informants, the failure to grant lawyers access to their clients, and the failure to protect lawyers who take on clients accused of ISIS affiliation. All of these elements have contributed to a deeply flawed judicial environment that undermines the goal of restoring harmonious inter-communal relations in Iraq, which in turn risks undermining stability in Iraq in the medium term.
Reforming the Anti-Terrorism Law
Iraq’s Anti-Terrorism Law, No. 13 (2005), is very broadly defined. Under its terms, hundreds of thousands of Iraqis who lived under ISIS could qualify for prosecution and even the death sentence under the provisions of the law. Article 4 of the law proscribes the death penalty for anyone who “incites, plans, finances, or assists terrorists to commit the crimes stated in this law.” A substantial proportion of the Iraqis who lived under ISIS occupation and who participated in local administration or governance may be prosecuted for “assisting terrorists” under this article.
Since its adoption in 2005, the Anti-Terrorism Law has been widely criticized by the international community, by Iraqi Sunni leaders, and by parts of the Iraqi legal profession. I have interviewed Iraqi Sunni leaders dozens of times over the last eight years, and the reform of the Anti-Terrorism Law has been consistently raised as a political priority for the Sunni community. Sunni leaders widely perceive the Anti-Terrorism Law to be a sectarian tool for the suppression of Sunnis in the post-2003 Iraqi political system. In an interview, Sunni leader and former Finance Minister Rafi al-Esawi said:
Since 2003, thousands of innocent Sunni men and women were detained under the Anti-Terror Law and hundreds were executed under Article (4) of the Anti-Terror Law. There is compelling evidence supported by local and international human rights organizations that confessions were extracted through torture and coercion. The misapplication of counterterrorism laws and the use of excessive force in Sunni majority cities disenfranchised hundreds of young people. Extremist groups such as al-Qaida and ISIL attract such [Sunni] young people who feel victimized by the government and its forces.
The mass protests against the Iraqi government that swept through Sunni areas in 2013 made the reform of the Anti-Terror Law a key demand.
Efforts to reform this law, however, have struggled to gain a critical mass of support in the Iraqi parliament. Political leaders fear that they could be branded as “soft on terrorism” if they support reform of the law. Because the issue impacts mostly the minority Sunni community, it has been difficult to build sufficient support among Shia politicians. Some Sunni politicians believe it is impossible to achieve sufficient cross-sectarian support to achieve reform; Hisham Abd al-Malik, a Sunni MP and Chair of the Parliamentary Integrity Committee, concluded that “there is no possibility of reforming the criminal justice process.” Even when Shia political leaders are persuaded of the need for reform, the issue is not considered to be a political priority in a context where legislative reform is required to address governance concerns and reconstruction needs.
Sunni leaders have tended to lead efforts to reform the counter-terror law, because it is their constituents who are most impacted by its excesses. But in taking on this challenge, Sunni leaders are more vulnerable to being undermined and discredited for “defending ISIS,” and their limited leverage in the Iraqi political system means that they have been unable to build a critical mass of support for the reform. Although Iraqi politics have become more transactional than sectarian, as Fanar Haddad notes, the nature of these transactions are primarily financial rather than policy focused. Political parties seek to gain access to ministries for the financial gain that such access affords to the party and for the patronage that they can distribute to loyalists. Political activities in Iraq are primarily funded through ill-gotten public funds, rather than through party membership or alternative models. In theory, Sunni political parties could mandate their joining of one coalition over another based on a commitment to reforming the Anti-Terrorism Law. But in practice, Sunni parties can only ask for so much in a negotiation, and the practical need to access ministerial posts trumps the desire to gain rhetorical commitments to pursuing reform. Sunni leaders are also keen to present themselves as firmly separate from the ‘terrorists’ and so there is also a reluctance to push hard on the issue for fear of appearing to be terrorist sympathizers. To give one recent example, a Sunni academic Shaymaa al-Hayali was forced to resign as Education Minister because her brother was accused of being in ISIS. She claimed that he was coerced into participation. There was no evidence that she personally had participated in ISIS, but the uproar against her was sufficient to drive her from office. For Sunni leaders in general, maintaining a clear separation from terrorism and related policy issues can be important to political survival.
If hard-line Shia leaders affiliated to the Popular Mobilization Units took the lead in pursuing reform in return for greater access to and credibility within the international community, this might have greater success by neutralizing those political attacks. Their nationalist credentials are strong, because of the role that they played in the war on ISIS, so they are more likely to be able to absorb the criticism. Some of these groups have substantial political capital and could prove more capable than Sunni leaders of building support for reform. Their participation also reduces the reputational risks of engagement for moderate Shia parties.
This is not as far-fetched as it might seem. A number of hard-line Shia leaders are keen to persuade the international community that they are constructive and responsible political actors who respect the rule of law. They have chosen to participate in the political process, in some cases they are seeking to reduce the excesses of the armed actors that they control, and they are seeking opportunities for international engagement.
For instance, the leader of the political party and armed group Asaib Ahl Al-Haq, Qais al-Khazali, told me he was keen to discuss the role that his party has played in brokering agreements between Sunni and Shia tribes in Yathrib, Salahuddin to enable the return of Sunni IDPs. He also raised the issue of unfair detention, saying, “there are many people unfairly in prison.” Of course, Asaib Ahl Al-Haq is accused of being responsible for the abductions and extra-judicial killing of Sunni men and boys. Amnesty International notes that “Scores of unidentified bodies have been discovered across the country handcuffed and with gunshot wounds to the head, indicating a pattern of deliberate execution-style killings,” and Asaib Ahl al-Haq is accused of being among the key perpetrators of these crimes. There are indications, however, that the group is seeking to re-brand itself, particularly after it won 15 seats in the 2018 Iraqi parliamentary elections and faces the prospect of assuming greater formal political power.
The cleric Moqtada al-Sadr has expressed support for the “legitimate demands” of Sunni protestors in 2013, among which was a demand for reform of the Anti-Terrorism Law. Sadr has sought to moderate his political and armed movement in part by recognizing Sunni concerns. Qais al-Khazali, who broke away from the Sadrists, sees Sadr as his key competitor, and is similarly beginning to embrace a somewhat less sectarian tone – although he has done far less than Sadr to rein in the violent extra-judicial actions of his associated armed group.
If there is success in reforming the Anti-Terrorism Law, there will need to be an effort to ensure fair and consistent application of these reforms across ethno-sectarian communities in Iraq. The more the Law is recognized as having an impact beyond the Sunni community, the more likely it is that a cross-sectarian coalition could develop that could successfully pursue its reform. Previous Amnesty Laws that have been issued in Iraq were originally thought by Sunni leaders to provide an opportunity for the release of unfairly detained Sunnis, but are now widely seen as having been applied disproportionately to Shia detainees – in particular those with links to power Shia political and armed groups. For example, the General Amnesty Law, issued in August 2016, specifically excluded crimes related to terrorism – a charge which is usually used against Sunnis – whereas amnesty was issued to those, often Shia militants, who had been convicted of crimes against coalition forces. The issuing of amnesties also relied on victims withdrawing their complaints, which favored detainees with powerful political or armed connections who could exert pressure on victims on their behalf.
Creating an enforcement policy
Whether with the current Anti-Terrorism Law or a new one, the Iraqi government needs an enforcement strategy that prioritizes the comprehensive prosecution of the most senior ISIS leaders and of those responsible for the most serious crimes. It is impossible to prosecute every Iraqi citizen who collaborated with ISIS, and the Iraqi government is not currently seeking to prosecute every such citizen. It is estimated that between 19,000 and 30,000 individuals are currently being detained on ISIS-related offenses, and given that ISIS governed over five million people, there is a substantial number of collaborators who are not being pursued for prosecution.
Currently, however, there is no strategy or set of guidelines that demarcate which collaborators should be prosecuted, and which should not be pursued. This means that the limited capacity of the Iraqi judiciary is not being directed towards the cases with the greatest potential impact on national security. There are claims that some of the most senior ISIS members have been able to use their resources and networks to better navigate their way out of the judicial system, while low-level and low-income collaborators face the most serious punishments. The arbitrary nature of prosecutions – and the draconian penalties that are handed down to those who are prosecuted – is contributing to a sense of injustice and grievance on the part of detainees and their families. This is particularly dangerous because it is seen by parts of the Sunni community as motivated by sectarian hatred, and it contributes to their ongoing sense of alienation from the Iraqi state. It was specifically this sense of victimization that has rendered the community vulnerable to radicalization in the years since 2003, and there is no reason to believe that such a process could not happen again.
There is also no mechanism for prioritizing the prosecution of the most serious offenders. This means that the system is clogged up with potentially thousands of low-level, non-violent collaborators, which is preventing the judicial system from fully investigating and comprehensively investigating the leaders of ISIS and those guilty of genocidal crimes. Instead, the system is processing people who worked for ISIS as cooks and janitors in the same way that it is processing murders, rapists, and human traffickers. In many cases both types of detainees are simply being convicted of affiliation to a terrorist group and are being sentenced to death or to life imprisonment.
Valuable opportunities are being lost to fully investigate and understand the crimes that ISIS committed, and the system is failing to address the rights of victims to participate in the criminal justice process and to see justice being fully served. Scott Portland of the Heartland Alliance who works with victims’ advocacy groups says: “There is resentment building because ISIS members are being convicted of membership of a terrorist group, instead of for the specific crimes they committed. There is a lack of differentiation between types of ISIS members. Minorities [Yezidis and Christians] want their day in court.”
A more effective way to manage the scale of collaboration with ISIS could be the creation of an enforcement strategy that differentiates between types of ISIS collaborators, which could direct the criminal justice system to focus its resources on fully investigating and prosecuting leaders of the group and those responsible for violent acts. Creating such a strategy would require the Iraqi government to identify the goals that it is seeking to achieve through prosecutions. Such goals could include, for example, the removal of ideologically committed ISIS members from society, the punishment of those responsible for perpetrating violent acts on the Iraqi population, the delivery of justice to victims of ISIS, and the pursuit of a durable peace. In the process of creating an enforcement strategy, it would be valuable for the Iraqi government to reflect on the utility of pursuing a deterrence-based punitive strategy, which is unlikely to achieve a durable peace. An important paper published by Kristen Kao and Mara Redlich Revkin highlights that the social science literature presents little evidence that “harsher punishments discourage recidivism,” and in a survey experiment in Mosul the authors demonstrate that imposing harsher sentences does not significantly advance reconciliation.
Enforcing constitutionally-mandated standards
The abuses of the Iraqi criminal justice system in the detention and prosecution of ISIS-related detainees have been well documented. There could, however, be substantial progress if international pressure on the Iraqi government focuses its efforts on four key issues: the dismissal of confessions obtained through torture, the dismissal of anonymous testimonies, granting lawyers access to their clients, and prosecuting those who threaten lawyers for taking on clients accused of ISIS-related crimes. There is currently inconsistency in the use of confessions obtained through torture and the use of anonymous testimonies, with some judges in some jurisdictions accepting such submissions as sufficient for convictions, and other judges dismissing cases if this is the only evidence that is presented. The Iraqi government should mandate that, in accordance with the Iraqi constitution, judges do not convict defendants based on confessions obtained through torture, or based on the testimonies of anonymous informants.
Lawyers are routinely denied access to clients accused of being ISIS affiliates, and lawyers who take on these cases are regularly subject to threats. Mohammed Juma, an Iraqi lawyer who has taken on clients accused of ISIS affiliation, said: “You can’t meet your client to prepare a case, you can only meet them in court minutes before the case. This is against the law and is imposed by security agencies.” Ameer Al-Daamy, an Iraqi lawyer and public commentator on legal issues, has also taken on cases in defense of detainees accused of ISIS affiliation, and he confirmed that he too had never been allowed to meet his clients in advance of trial. He added that he was “interrogated by intelligence services for why I chose to accept a case of an ISIS detainee” and that he has been “labelled as a potential terrorist for accepting the case.”
The denial of constitutionally mandated rights to detainees, and the excessively severe prosecution of those who were forced into non-violent collaboration with ISIS, is creating new constituencies of aggrieved families and communities who feel unfairly victimized by the Iraqi state. The saturation of the court system with minor collaborators is also preventing the Iraqi judiciary from fully investigating and rigorously prosecuting the leadership of ISIS in the manner that victims demand and in the most effective way to safeguard Iraqi national security. The Iraqi government could achieve substantial progress towards durable peace if it seeks to reform the Counter-Terror Law, if it creates an enforcement strategy, and if it addresses key violations of detainee rights.
 Raed Ahmed, 9th January 2019, ‘A Year After the Defeat of ISIS in Iraq, What Has Changed?’ Middle East Institute.
 Mara Revkin, May 2018, ‘The Limits of Punishment: Transitional Justice and Violent Extremism,’ UN University. https://i.unu.edu/media/cpr.unu.edu/attachment/2768/2-LoP-Iraq-Case-Study.pdf
 Rukmini Callimachi, 4th April 2018, ‘The ISIS Files,’ The New York Times.
 Anti-Terrorism Law No. 13 of 2005, Article 4. Available at: http://www.vertic.org/media/National%
 Muhanad Seloom, October/November 2019, ‘Transitional Justice and Counter-terrorism in Iraq,’ Wolverhampton Law Journal.
 Aziz Ahmed, 13th February 2019, ‘Undefeated, ISIS is Back in Iraq,’ The New York Review of Books.
 Interview with the Author, 1st March 2019, Baghdad, ‘Interview with Hisham Abd al-Malik.’
 Interview with the Author, 28th February 2019, Baghdad, ‘Interview with Qais al-Khazali.’
 Human Rights Watch, 11th July 2014, ‘Iraq: Campaign of Mass Murders of Sunni Prisoners.’
 Amnesty International, 14th October 2014, ‘Iraq: Evidence of War Crimes by Government-Backed Shi’a Militias.’
 Marisa Sullivan and Omar Abdullah, 2013, ‘Largest Turnout of Sunni Protesters in Iraq Since Crisis Began-2013,’ Institute for the Study of War, http://www.understandingwar.org/weekly-iraq-update
 Amnesty International, 2016, Punished for Daesh’s Crimes: Displaced Iraqis Punished by Militias and Government Forces.
 Qassim Abdul-Zahra and Susannah George, 21st March 2018, ‘Iraq Holding More Than 19,000 Because of IS, Militant Ties,’ Associated Press.
 Margaret Coker and Falih Hassan, 17th April 2018, ‘A 10-Minute Trial, a Death Sentence: Iraqi Justice for ISIS Suspects,’ The New York Times.
 Human Rights Watch, 17th December 2017, ‘Flawed Justice: Accountability for ISIS Crimes in Iraq.’
 Interview with the Author, 1st March 2019, ‘Interview with Scott Portland, Heartland Alliance.’
 Kristen Kao and Mara Redlich Revkin, 1st November 2018, ‘To Punish or to Pardon? Reintegrating Rebel Collaborators After Conflict in Iraq,’ The Program on Governance and Local Development.
 Ben Taub, 17th December 2018, ‘Iraq’s Post-ISIS Campaign of Revenge,’ The New Yorker.
 Interview with the Author, 2nd March 2019, Baghdad, ‘Interview with Mohammed Juma, Iraqi Lawyer and Deputy Head of the Iraq Legal Clinics Network.’
 Interview with the Author, 2nd March 2019, Baghdad, ‘Interview with Mohammed Juma, Iraqi Lawyer and Deputy Head of the Iraq Legal Clinics Network.’
 Interview with the Author, 1st March 2019, Baghdad, ‘Interview with Ameer Al-Daamy, Iraqi Lawyer and Commentator.’