Report cites “serious concerns that basic fair trial standards were not respected.”
In September 2017, the Lebanese British jurist Amal Clooney; Alistair Burt, then-British minister of state for the Middle East; and Nadia Murad, the Ezidi Nobel Peace Prize laureate and victim of Islamic State terrorism in Iraq, visited U.N. headquarters to witness a milestone in their joint effort to hold the terrorist organization accountable for its crimes.
The U.N. Security Council, at the bidding of Britain’s then-foreign secretary, Boris Johnson, voted to pass Resolution 2379, which established an investigative team, led by a special advisor to the U.N. secretary-general, to support efforts by the Iraqi courts to the hold the Islamic State, also known as ISIL, “accountable by collecting, preserving, and storing evidence in Iraq of acts that may amount to war crimes, crimes against humanity and genocide.”
The high-minded undertaking had troubled some U.N. officials, who feared that the team lacked sufficient legal authority to require that Iraq’s prosecutors and judges abide by international legal standards of due process and fairness. At the heart of their concerns was a pair of Iraqi anti-terrorism laws that fell well short of international legal standards and included the enforcement of a mandatory death penalty for “a wide range of acts that do not meet the ‘most serious crimes’ threshold,” which is defined as murder.
Their fears have been born out in a report by the U.N. Assistance Mission for Iraq—which we are highlighting as this week’s Document of the Week. The document includes responses from the Iraqi government and Kurdistan’s regional government.
The 16-page report—which is based on an examination of 619 terrorism hearings—registered “serious concerns that basic fair trial standards were not respected in terrorism trials.” It found that defendants were generally assigned “ineffective legal representation,” had insufficient time to prepare their defense, and were unable to cross-examine key witnesses, who often testified anonymously against alleged terrorists and their supporters.
Judges, meanwhile, relied excessively on confessions, despite frequent allegations that defendants were subjected to torture to obtain them. Perhaps the most troubling element in Iraq’s terrorism laws was the “overly broad and vague definition” of a terrorist offense.
For instance, a defendant could be tried, and even sentenced to death, for simply joining a terrorist organization, even if there was no evidence that the individual was guilty of a crime or an act of violence. Iraq charged individuals, including wives and children of suspect terrorists, of “providing basic support to ISIL members, such as cooking or selling vegetables.”
The prosecutions have failed to sufficiently distinguish “between those who participated in violence and those who joined ISIL for survival and/or through coercion, and with harsh penalties that failed to distinguish degrees of underlying culpability,” according to the report.
The U.N. observed two hearings at which the courts sentenced defendants for providing medical services to Islamic State fighters, including a pharmacist in Mosul who received a life sentence for providing medical services to wounded Islamic State fighters.
In February 2018, the U.N. and Iraq negotiated terms of reference that preclude the special advisor, Karim Khan, from sharing evidence with the court unless he can establish the trial is fair. The agreement does not address whether the U.N. would cooperate in a death penalty trial, but a diplomatic source told Foreign Policy that Khan has made clear in his contract with the U.N. that he will not supply the courts with evidence if the death penalty is being considered. So far, Khan’s team has not shared any information with the courts.
In response, the Iraqi Foreign Ministry wrote in a letter that the courts have observed “the highest norms of justice and transparency” and extended “all legal guarantees” to defendants. “[W]e find that the signals in the said UN report do not fully convey the truth with respect to the size of accomplishment” that Iraq has achieved in prosecuting such a large terrorist population.