Iraqi Prime Minister Adil Abd al-Mahdi stated on June 25 that his government is considering taking over the prosecution of ISIS members currently detained in Syria, even if they did not fight in battles on Iraqi soil. This comes weeks after the trials of ISIS members was handed over to Iraq by the Syrian Democratic Forces (SDF).
The Kurdish SDF handed over the first group of ISIS members — including dozens of Europeans — to Iraq in February. Iraq’s judiciary sentenced five French nationals to death in late May, as the Iraqi government negotiated with the UN to claim custody of foreign ISIS fighters detained in Syria, including members who did not conduct terrorist attacks on Iraqi soil. The government, however, did not state why it joined the negotiations.
Iraq's willingness to be in charge of prosecuting foreign ISIS fighters raises many questions, especially regarding those fighters' countries of origins. Specifically, why have those countries not claimed the fighters and initiated legal proceedings? Could Baghdad legally prosecute the ISIS members? Can it afford the cost of their detention? What will Iraq, which, it could be said, is acting on behalf of the world, get in return?
A source at the Supreme Judicial Council of Iraq told Al-Monitor, “Iraq’s counterterrorism law criminalizes ISIS as a terrorist organization, and all of its affiliates are wanted in the country, although [the law] does not provide for a specific geographic scope for the organization’s work. The legislative foundation refers to a prevailing law … in addition to the criminal procedure law.”
The source added, “Based on that, whoever commits a crime at home or abroad is accountable before the Iraqi judiciary.”
He explained, “The anticipated sentences against the organization’s affiliates consist of a death sentence and life imprisonment. The latter is a problem given the overcrowded Iraqi prisons and lack of room.”
Iraq's parliament has demanded that a discussion be held as to why the Iraqi government is willing to host these fundamentalists in Iraqi prisons. Yet such a discussion has not been held, likely because parliament is preoccupied with forming a Cabinet and enacting other pressing legislation.
Raed Fahmi, a parliamentarian belonging to the Saairun Alliance, said his bloc intended to raise the issue in parliament. His bloc seeks to prevent the Iraqi government from striking a deal with foreign countries on detaining ISIS members and removing the pressure that could be exerted on the government by "having parliament make the final decision on the issue."
Local and Arab media reported that Europe paid Baghdad huge amounts of money in exchange for trying ISIS members in Iraq and not sending them back to their countries. The goal is to avoid lengthy trials that could result in the release of ISIS fighters, who could return to Europe and disseminate extremist ideas.
If such reports are valid, it would mean that Iraq's assistance would be subject to the budget law and parliamentary supervision. Yet France's Le Figaro reported that assistance to Iraq would be in the form of military aid. It reported that last month Baghdad received military assistance and incentives as part of armament deals with foreign countries, spearheaded by France. An estimated 700 French nationals are said to be among the ISIS ranks, out of 5,000 European fighters in Iraq and Syria.
Leith Sheber, an Iraqi politician close to Abd al-Mahdi, told Al-Monitor that the prime minister's government “did not receive any financial return in exchange for the previous trial of ISIS fighters. Today, Iraq does not need any money, but the EU and other countries that are on good terms with the Iraqi government are pressuring Iraq to prosecute foreign terrorists who fought in Iraq.”
He said most Iraqi parties oppose Iraq prosecuting ISIS fighters who did not fight in their country because it does not serve the country’s interests. "There are discussions in this regard, but no agreement has been reached," he said. "They only consist of preliminary consultations with the UN.”
Despite the existing relations between the Syrian regime and the SDF, the SDF did not hand over its ISIS prisoners to Damascus. This is due to the West's unwillingness to engage in cooperation that could grant the Bashar al-Assad regime international legitimacy. As such, EU sanctions have been imposed on prominent Syrian regime figures and Assad's relatives.
Iraq faces numerous problems in the handling of this dossier, including overcrowded prisons and lack of space for foreign detainees. Some Iraqi political parties are even calling for “depopulating the Iraqi prisons” due to high costs. Moreover, the legal proceedings for ISIS members would be time-consuming and complicated for foreign parties, as Iraqi law does not provide for retrials or appeals. This could result in the creation of an Iraqi Guantanamo, according to Mohammed al-Uqaili, a leader in the State of Law Coalition.
If Iraq is preparing to prosecute ISIS fighters on behalf of the world, just as it fought them with the help of the US-led coalition, it should demand a fortune. Otherwise, it would be best to establish an international tribunal for ISIS members, as suggested by Belgian authorities in February, thus saving Iraq from internal and external problems.