The Challenge of Foreign Fighters: Repatriating and Prosecuting ISIS Detainees

Fomenting support for terrorism

The problems are admittedly complex, but doing nothing about them is not an option and the status quo is growing increasingly untenable. Female detainees who are not repatriated languish in camps, where life is not cheap. According to those interviewed, the women generally obtain funds from outside, either from relatives back home or from individual ISIS supporters, about $300-500 a month — barely enough to survive for a mother with several children to feed.¹⁷

According to the foreign women interviewed in the camps, ISIS supporters get a substantial amount of money every month, often around $1,000-2,000 per family, and live much more comfortably.¹⁸ They are able to afford good food, new clothes, and fans in the summer.

Sending money to ISIS affiliates in northeastern Syria is against the law in many countries, where relatives of women in camps have been charged and arrested for funding terrorism. As a result, the only way for these women to provide for themselves and their families is to claim they support ISIS.

By contrast, actual ISIS members and supporters tend to know how to evade anti-terrorism laws. In one known case, money sent from an ISIS supporter in Sweden went through four different countries before reaching a woman in a camp he had met online.

As a result, these laws disproportionally hurt relatives back home who are not affiliated with the group as well as women in camps who no longer support ISIS. The laws also benefit the group; because women in camps are afraid to incriminate their relatives by having them send money, they purport to support ISIS and might, for example, try to demonstrate this by spreading its propaganda on social media.

This is particularly evident in countries with a strong rule of law, such as the U.S., the U.K., Australia, and EU states; conversely, in several developing countries, law enforcement officials have openly told relatives of ISIS members that they will turn a blind eye to the money sent to camps, despite laws against the practice.

 

ISIS’s onetime territorial base: Iraq

In the countries that became the territorial base for ISIS — Iraq and Syria — the conditions that led to the group’s emergence are only being exacerbated by the incarceration of its members, both local and foreign.

In Iraq, ISIS enjoyed support in Sunni-majority areas because of the oppression Sunnis experienced at the hands of the Shi‘i-dominated central government and the absence of an independent judicial system through which to confront that discrimination. Now, more than three years after Iraq’s liberation from ISIS, Shi‘i militias are once again taking control of Sunni-populated areas using the same brutal methods as in 2012, often under the guise of fighting terrorism.

The use of counterterrorism laws in Iraq to repress Sunnis is one of several problems in the country related to the prosecution and incarceration of ISIS members; Sunni Iraqis who try to peacefully stand up against corruption or the Shi‘i-dominated leadership are often accused of links to ISIS and arrested. It is also not uncommon for a Sunni to be accused of being an ISIS member by a relative who wants to inherit their property, a phenomenon that only undermines trust in the country’s law enforcement.

When a person is charged with ISIS membership in Iraq, he eventually faces trial. In 2018, at a court in the town of Tal Kayf, I watched dozens of these cases and not one lasted more than 15 minutes. The court quickly convicted each defendant based on his own confession of guilt. But according to a former inmate interviewed, torture is so widespread that virtually everyone is coerced into confessing regardless of guilt.¹⁹ Furthermore, Iraq’s Parliament has refused to ratify the optional protocol to the Convention Against Torture, which would allow an independent United Nations team to visit prisons and advise and assist Iraq on strengthening protections against torture.²⁰

In court, defendants facing charges related to ISIS are almost always defended by court-appointed lawyers who know nothing about their clients and have no interest in defending them. Those independent lawyers who do defend ISIS suspects are likely to be arrested themselves²¹ and charged with supporting the group.

Then come the harsh sentences. According to Iraq’s counterterrorism law, a male charged with participating in combat with ISIS receives the death penalty. Even non-combatants get 25-year prison sentences — the life-or-death stakes of the battlefield continue through the criminal process.

Another impediment to justice is the fact that running an Iraqi prison can be a very profitable enterprise for its leadership and employees, creating an added incentive to keep the prison population large. Not only does the government pay a fee to prison administrators for each inmate, inmates and their families are often also required to pay illegal or unofficial fees as well — for example, to make sure that they are not abused in prison or even to gain access to better food and accommodation.

In many cases, it is very difficult for relatives to even find their incarcerated family members because of the large number of secret prisons in Iraq.²² It could take several years and many thousands of dollars in bribes for a family to locate relatives detained on ISIS-affiliation charges.

The nature of Iraq’s justice system arguably contributed to the intensity of the conflict in 2016-17, because those affiliated with ISIS did not want to surrender knowing what was waiting for them and instead fought until the end. (A large number of foreign fighters who surrendered at Tal Afar in 2017 did so to Kurdish forces²³ even though it was Iraqi federal forces that ousted ISIS from the territory.) But Iraq’s current approach is also fueling an ongoing insurgency. According to a survey I conducted in 2018 with ISIS affiliates in refugee camps around Mosul, the overwhelming majority think that ISIS fighters would surrender if not for the prospects of facing a death sentence and torture in prison.²⁴

In prisons, abuse and torture only lead to more support for ISIS, even among those not affiliated with the group. According to a person who spent eight months incarcerated in in prison near Mosul, “No more than 30 percent of people were actually affiliated with ISIS, but everyone celebrated their insurgency victories. Although some even suffered from the group when it was in power, now they would support anyone who is fighting against the government and is effective in that.” ²⁵

Not only is the international community doing little to pressure Iraq to institute due process, it is using the flawed system for its own benefit. For example, according to several members of Iraqi intelligence, France used diplomatic pressure to compel the Iraqi government to take in and prosecute French ISIS members arrested in Syria. According to an Iraqi counterterrorism judge, “We did not want to take them because they have nothing to do with Iraq, but there was an agreement between Iraqi and French governments, so we did not have an option.”²⁶

During the trials that I attended, there was no evidence presented of the defendants’ guilt and they were not represented by independent lawyers, but rather by court-appointed ones who were not familiar with their cases, nor were they provided professional translators. According to court employees, representatives of the French embassy were present, but they did not object to the trials despite the obvious problems, and they even tried to prevent filming of the trial that had been authorized by the Iraqi judge.

According to several members of Iraqi intelligence, there is an ongoing discussion about transferring other Westerners from Syria to Iraq, and although the Iraqi prime minister opposes such a move, Western countries could again use their diplomatic leverage to try to make it happen.