Iraqi soldiers stand guard at a checkpoint in Nineveh, Iraq. Friday Dec. 4, 2020.
© 2020 AP Photo/Samya Kullab
(Beirut, October 28, 2021) – Dozens of Sunni Arab men who served prison time or were acquitted in Iraq’s Kurdistan Region for Islamic State (ISIS) connections risk rearrest or retaliation if they try to reunite with their families in areas controlled by Baghdad, Human Rights Watch said today. Some of the men were boys as young as 14 when Kurdish security forces arrested them.
The men are currently stuck in a camp in the Kurdistan region, after being released from prison between 2018 and 2020. Security forces are not allowing them to leave the camp to live elsewhere in the Kurdistan region, and they fear for their lives if they were to return home. This stems from a lack of coordination and recognition between the separate judicial systems of the Kurdistan Regional Government and Iraq’s Baghdad government, as well as the near-total impunity with which armed groups operating in the men’s home communities arbitrarily detain and even kill those suspected of ISIS affiliation.
“These men, most of them boys back when ISIS was in control of their areas, have been and continue to be punished, even though many were victims as child soldiers,” said Belkis Wille, senior crisis and conflict researcher at Human Rights Watch. “After years of suffering they are still in limbo with no hope for the future.”
In August 2021 Human Rights Watch interviewed 10 men whom the Asayish, the Kurdish security forces, had arrested for alleged ISIS affiliations in 2016 and 2017. Six were children at the time of their arrest. They were among about 65 men at a camp in northern Iraq, controlled by the Kurdistan Regional Government, where they resettled after being acquitted or completing a sentence in the region. Though security forces at the camp would let the men leave if they were to return to Baghdad-controlled areas, they do not allow them to leave the camp at all if they want to travel or resettle within the Kurdistan region.
The men interviewed said that they were among about 100 men transferred to the camp in April 2019. Because of the dire conditions in the camp, and because many of them felt they had no future in the country, those who could afford it managed to leave the camp, paying smugglers to take them to Turkey. All of those interviewed said they would go to Turkey if they had enough money.
“My only solution is to leave Iraq and go to Turkey,” one man said. “If I were to go home or anywhere else on the Baghdad side, it wouldn’t just be the courts that would come after me, it would be the tribes, and the PMF [Popular Mobilization Forces – militias formerly under the prime minister’s control]. I have no future here.”
Each of Iraq’s two separate judicial systems have their own counterterrorism laws, which are applied in their courts. As part of their campaign to defeat ISIS, Iraqi and Kurdish security and military forces screened people leaving ISIS-controlled areas and detained those identified as ISIS suspects. They checked the names against “wanted” lists that security forces on both sides had developed since 2014. The security forces compiled the lists from a variety of sources, including public information about ISIS members, names published by ISIS itself, and names provided by informants.
Many relatives of detained ISIS suspects told Human Rights Watch that since 2016, people would submit names because of tribal, familial, land, or personal disputes, falsely accusing them of links with ISIS. People stopped at checkpoints who are on the lists face detention while officials investigate the alleged ISIS-affiliation, usually through interrogations.
Numerous judges and lawyers have told Human Rights Watch that the prosecutions in some cases rely solely on defendants’ confessions, often extracted through torture. Human Rights Watch’s experience monitoring trials in both regions confirms this. In at least 428 cases among almost 800 trials that the United Nations Assistance Mission to Iraq observed, in addition to confessions, evidence admitted – and primarily relied upon in terrorism prosecutions – included anonymous witness statements and information based on security or intelligence reports.
“Someone from my town who had a grudge arrived in the camp and told the Asayish I had been with ISIS.” said one man who had fled the fighting in 2016 and arrived at a camp in the Kurdish region. “The Asayish beat me until I said I had joined ISIS for four days. They sentenced me, and after over a year in prison they finally released me.”
The men gave Human Rights Watch the names of four individuals, all of whom had been boys when arrested, who had returned home to areas under Baghdad’s control after completing their sentences. The men said that they heard from relatives later that all four were rearrested by Baghdad authorities and were now serving extended second sentences for ISIS affiliation. Sentences for terrorism charges are significantly longer in Baghdad-controlled territories. Human Rights Watch was able to contact relatives of two of the four men and confirm the accounts.
Iraq’s constitution prohibits putting anyone on trial twice for the same crime. While the two regions have separate counterterrorism laws, the offense is ultimately the same and if a person has been convicted in one of the jurisdictions and completed their sentence, they cannot be tried again for the same offense anywhere in Iraq. Iraq’s Code of Criminal Procedure prohibits further action against a defendant, even if new evidence emerges, two years after an investigative judge has issued a decision on the case.
As a priority, Baghdad authorities should ensure that all of the men can obtain up-to-date civil documentation including by sending representatives from the nearest Civil Status Directorate to the camp to issue these documents.
The Kurdish Regional Government should allow the men to reside in any part of the Kurdish region they choose, in line with the general residency requirements the region has in place. It should allow their families to seek residency to join them in the region. It should open the camp and allow freedom of movement to its residents throughout the Kurdistan region, keeping any restrictions on movement strictly necessary, proportionate, and non-discriminatory as compared to those residing in the Kurdistan region.
“These men have served their time or been acquitted,” Wille said. “Continuing to restrict their ability to return to a normal life is nothing less than unlawful discrimination.”
Real Risks to Return
All of the men said they were afraid of being rearrested or harmed, even killed, if they returned home, even if Baghdad’s High Judicial Council confirmed that they would face no further charges. They also shared that they are not in regular communication with their parents and relatives, fearing that if security forces found out the men were speaking to their family members, they could be arrested, evicted, or otherwise threatened.
One man said that his father, brother, and uncle are ISIS members, and that a unit of the PMF that controls his hometown told his mother and other relatives that he needed to return and provide them with information on his ISIS relatives’ whereabouts.
He said the PMF unit had convinced the local police to issue an arrest warrant for him. They abducted his younger brother and sent the man a photo of the warrant in a message after they got his phone number from the brother’s phone. In the message, which he showed researchers, they said they would use the arrest warrant as grounds to evict the man’s mother and younger brother as an ISIS-affiliated family unless he returned home:
I don’t know what to do. If I go home, I am sure they will try to get information out of me, and then kill me. But if I don’t surrender myself, they will evict my family. They already are watching my mother and don’t let my family move freely.
Another man, whose wife was living in Erbil while he served his prison sentence there, said that she is now living in the camp with him. He described what happened to her in mid-2021 when she travelled from the camp to their hometown via Mosul to visit her family:
When she got to the first Baghdad-controlled checkpoint on the way to Mosul, security forces checked her identity card and then held her for two hours, before letting her go. When they let her go, they told her, “Your husband is wanted. If he doesn’t surrender to us, we will not let you through this or any other checkpoint to visit your family again.”
One man said that in mid-2021 security forces in control of the area where his family lived, forced his mother to open a criminal complaint against him as an ISIS member in order for her to obtain a security clearance to avoid eviction or other forms of collective punishment. This practice is known as tabriya. He said this meant he could never return home. “I am not angry at her for doing this,” he said, “but now that she has, the tribal forces in our area [effectively] have the right to kill me.”
Another problem the men face is an inability to obtain civil documentation. Only three of the men have valid identity cards, which are vital for anyone trying to move around within the country. Many only had childhood documents which are no longer valid.
One man said that his mother tried to get him a new identity card back in his hometown, but when the PMF in control found out from the Civil Status Directorate that she applied for the document, they approached her and told her that if she continued to ask for the identity card, they would evict her from her home.
In addition, most of the former detainees struggled to obtain documents confirming their time in detention, only one of the ten men was given a document upon his release confirming his time served; whereas the rest required legal assistance from nongovernmental organizations to obtain the appropriate documentation after their release.
Baghdad’s High Judicial Council should adopt specific policies and procedures to prevent repeated prosecutions for people who have been acquitted, or convicted and served their sentence for ISIS involvement, whether in the KRI or in other Baghdad-controlled governorates. It should take measures to establish the number of detainees in custody who have already been exonerated or served a sentence for the same crime, and should release or pardon them as appropriate.
Judicial authorities in Baghdad-controlled territories and the KRI should start automatically sharing with each other the judicial paperwork in each case, including release certificates. They should ensure that all former detainees are given release certificates, including those released without charge, with enough specificity to be considered valid, and order their names be removed from “wanted” lists.
All detaining authorities should redouble efforts to bring defendants before a judge within the legally mandated 24 hours, so that if they have served a previous sentence, they will be able to communicate this to a judge promptly and be released. Iraq should ratify the Optional Protocol to the Convention Against Torture and set up its own independent system to inspect detention centers.
Iraqi authorities should consider alternatives to detention and criminal prosecution for child detainees, and develop rehabilitation and reintegration programs to aid their return to society.