Iraq: Change approach to foreign women, children in ISIS-linked trials

June 21, 2018 12:01AM EDT

Rushed Proceedings, Lack of Due Process, Disproportionate Sentences

(Beirut) – Iraq's judiciary should change its approach to dealing with detained foreign women and children who are accused of affiliation with the Islamic State (also known as ISIS), Human Rights Watch said today. Since January, Iraq has proceeded with rushed trials against foreigners on charges of illegal entry and membership in or assistance to ISIS without sufficiently taking into account the individual circumstances of each case or guaranteeing suspects a fair trial.

Most foreign women are being sentenced to death or life in prison. The Iraqi justice system is also prosecuting foreign children, ages 9 and up, on similar charges, and sentencing them in some cases with up to five years in prison for ISIS membership and up to 15 years for participating in violent acts.

"Iraq's 'one size fits all' approach to women who traveled to live under ISIS or to children whose parents brought them along is producing unjust outcomes in many instances," said Nadim Houry, Terrorism/Counterterrorism director at Human Rights Watch. "Iraqi justice should take into account their individual circumstances and actions and give priority to prosecuting the most serious crimes while exploring alternatives for lesser ones."

Human Rights Watch attended the trials of seven foreign women and three foreign children. Human Rights Watch also spoke with relatives of detainees and some of the lawyers representing them, and reviewed media reports of trials of at least 72 foreign women. The prosecuted women are from a number of countries, including, Turkey, Russia, France, Germany, Azerbaijan, Tajikistan, and Trinidad and Tobago.

Most of the foreign women and children held in Iraq belong to a group of more than 1,300 foreigners detained by Iraqi forces last August during the battle for the ISIS stronghold of Tal Afar in the northwest of Iraq. A security source told AFP news agency that the group was composed of 509 women and 813 children, though the overall number of foreign women and children in detention is believed to be higher based on information from sources close to the penitentiary system in Baghdad.

In September, Prime Minister Haider al-Abadi stated in an interview that most of the women and children were not guilty of a crime, and that his government was "in full communication" with their home countries to "find a way to hand them over." But Iraq appears to have changed its approach and starting in January 2018, proceeded to prosecute women and children ages 9 and up. Meanwhile, the women and children are detained in overcrowded conditions.

A relative of one woman held with her 2-year-old child for months in an airless leaking cell near Mosul with about 25 other women said: "The food they were getting was barely enough to keep them alive. Many were sick but no doctor ever came to see them. One of [her fellow] inmates gave birth right in the cell."

Despite several requests from Human Rights Watch, Iraq has not issued any statistics about how many trials of foreigners it has conducted.

In accordance with Iraqi law, suspects have access to a defense lawyer and a translator is provided, though in many instances the translator was without any qualification and was chosen from people in attendance. However, opportunities for a meaningful and substantive defense were lacking in the cases reviewed by Human Rights Watch. Lawyers told Human Rights watch that they rarely have access to their clients before the hearings and in the cases monitored, judges were quickly dismissive of the defendants' arguments, including their claims that they had simply followed their husbands or had been coerced to and had not supported or officially joined ISIS.

Human Rights Watch is not in a position to assess the veracity of these claims and recognizes that some women may have contributed to abuses perpetrated by ISIS. However, judges should ensure that the defendants and their representatives are able to prepare and present all evidence in their defense, including the individual circumstances through which they ended up in Iraq and examine what their contribution was – if any – to ISIS abuses.

The lack of opportunities for a substantive defense, the broad nature of the charges, and the speed with which the trials are conducted, indicate that these trials fall short of fair trial standards. In addition, disproportionately lengthy prison terms may violate the prohibition on cruel and inhuman punishment. Assuming imprisonment is warranted in a particular case, the question of proportionality turns then on the length of the sentence. Prison sentences should take into account the seriousness of the offense and the culpability of the offender.

Membership in an illegal group, especially one responsible for war crimes and crimes against humanity, could warrant severe sentences, but in the cases monitored by Human Rights Watch Iraqi authorities did not seem to sufficiently examine what drove a particular person to travel to ISIS territory or the actual role – if any – of these women in the organization. In this context, sentencing women to 20 years in prison or the death penalty merely because they traveled to live under ISIS, married an ISIS fighter, or received a monthly stipend from ISIS for the death of their husband risks violating the principle of proportionality. Human Rights Watch opposes the death penalty in all cases.

Some of the foreign children prosecuted may have been responsible for acts of violence while simultaneously being victims of ISIS themselves. International juvenile justice standards call on national authorities to make efforts to seek alternatives to prosecution, and to prioritize rehabilitative measures with the aim of reintegration of children into society. Authorities should incarcerate children only as a measure of last resort and for the shortest appropriate period. In 2007, the UN Committee on the Rights of the Child found holding children criminally responsible below the age of 12 "not to be internationally acceptable."

Particularly troubling is Iraq's approach to children who are only accused of membership in a group like ISIS and not of any specific violent act. In 2016, the UN secretary-general criticized countries that respond to violent extremism by administratively detaining and prosecuting children for their alleged association with such groups. His special representative for children and armed conflict has also stated that child soldiers should not be prosecuted "simply for association with an armed group or for having participated in hostilities."

The Iraqi authorities should prioritize prosecuting those responsible for the most serious crimes while seeking alternatives to prosecution for those who may have traveled to join or live under ISIS under constraint or who personally harmed no one in Iraq, Human Rights Watch said. Alternatives might include reparation, community service or participation in national truth-telling processes. In dealing with children, the authorities should focus on rehabilitation rather than punitive measures.

Iraq is responsible for ensuring the safety and basic rights of women and children in its custody. But their home countries' and other foreign embassies should encourage Iraqi authorities to ensure that all defendants, including the countries' own nationals, have a fair trial with due process rights and are not sentenced to death.

Iraq should develop a national strategy that prioritizes the credible prosecution of those responsible for the most serious crimes and the international community should support programs to provide alternatives to detention and prosecution, including rehabilitation and reintegration programs for children suspected of ISIS affiliation.

Iraq should prosecute child suspects only as a measure of last resort and with the purpose of any sentence being to rehabilitate and reintegrate the child into society. Those brought by their parents to Iraq should not be prosecuted for illegal entry if they had no choice in the matter. The authorities should also drop prosecutions for children for mere affiliation with ISIS if they did not commit any other crime themselves.

Sentences should be proportionate to the crimes committed. The broad prosecution under terrorism charges of all those affiliated with ISIS in any way, no matter how minimal, could lead to unfair results and ultimately dilute responsibility for the horrible crimes committed by ISIS.

"Under Iraq's current approach, those who killed for ISIS are basically getting the same sentence as those who simply married ISIS members and had children," Houry said. "Such an approach does not advance justice nor does it advance victims' rights. Iraq should change tack."

Prosecution of Foreign Women

Iraqi criminal proceedings involve a two-stage process. An investigative judge conducts an investigative hearing and then refers the case to trial before a three-judge panel. In the cases monitored by Human Rights Watch of those charged in connection with ISIS crimes, victims of ISIS did not attend trials and played no role in the proceedings.

The trials before the panels that Human Rights Watch attended lasted less than 10 minutes, with the presiding judge asking the defendant the same set of questions about when and how they entered Iraq, where their husband is, if they believe in ISIS ideology, and if they received any money from the extremist group.

Sentences are issued on the same day as the trial. Almost all cases reviewed ended with a life sentence, which in Iraq amounts to 20 years in jail, or the death penalty. Human Rights Watch has not been able to confirm if Iraq has carried out any of the death sentences issued against foreign women.

As required by Iraqi law, the women are represented by a lawyer, who is usually appointed by the court. However, lawyers told Human Rights Watch that they rarely have access to their clients before the hearings. Some said they did not have access to the evidence against them. In all trials that Human Rights Watch attended, the role of the lawyer was marginal and in no case did the lawyer's arguments or evidence appear to have an impact on the outcome.

The presence of translators is required under Iraqi law if the defendants do not speak Arabic, but the qualifications of the translators varies greatly. Some consulates provide translators when their nationals are being tried. But in other cases, translators are ad hoc. In one trial of a woman from Trinidad and Tobago for which Human Rights Watch received information, the court relied on the translation of a journalist in attendance. In another, the court relied on a local Iraqi man who knew Persian and who happened to be in the courthouse that day on other business. When no translator is available, proceedings are postponed and women are sent back to jail.

In none of the cases Human Rights Watch reviewed or attended did the judge ask the women about specific violent actions or their participation in supporting abuses or violations by ISIS. In all the cases, judges were quickly dismissive of the women's claims that they had simply followed their husbands, or had been coerced and had not supported or officially joined ISIS. However, in some cases, such claims appear to have swayed the court to impose a life sentence as opposed to the death penalty.

Many relatives of detainees told Human Rights Watch that their relatives had simply followed their husbands, or in some cases were compelled to do so. A Russian woman whose sister is on trial in Iraq said:

My sister's only fault is that she fell in love when she was just 19. A young silly girl. She didn't know a thing. She left home, married the man she was in love with, and then, he took her to Syria. He told her that he knew better [than her] and that as his wife, she had to follow him wherever he went. When she first called me she was crying, she wanted out – but she was helpless, she had no documents, nothing. I wanted to come and get her. I tried. But by that time, the border was no longer open.

Human Rights Watch is not in a position to assess the veracity of these claims. However, judges should ensure that the defendants are able to present such evidence at trial. Iraqi authorities have told Human Rights Watch that they do not have the capacity to carry out such investigations but judicial requests for cooperation to these women's home countries could assist in overcoming logistical challenges.

Prosecution of Foreign Children

In Iraq, children can be held criminally responsible for their actions from the age of 9. Children accused of affiliation with ISIS are tried before the same criminal court reviewing terrorism cases for adults. However, according to a local lawyer, their cases are heard in a chamber within this court that specializes in juvenile justice.

A lawyer who has represented many foreign children accused of terrorism in Iraq summarized the situation:

For children between the ages of 9 and 13, the courts are more lenient, though you can still be prosecuted for illegal entry and in some cases, for membership in ISIS. If you are just prosecuted for illegal entry, your sentence is usually between six months and one year. For membership, you get three to five years. If you are accused of participating in a violent act, like planting a bomb, then you can get between five and 15 years.

He said that Iraq has conducted about 400-500 trials of children accused of affiliation with ISIS, including dozens of cases of foreign children, who are also being charged with illegal entry into the country. Human Rights Watch attended the trials of two children from Azerbaijan, ages 13 and 14. Both were sentenced to six months in jail for entering the country illegally even though they were respectively 10 and 11 when their parents brought them to Iraq and said they had no choice in the matter. The 13-year-old had not seen his mother in five months.

Older children are subject to harsher sentences. An Iraqi court sentenced a 16-year-old German national whose case garnered much media attention, to six years in jail – five years for ISIS membership and one year for entering Iraq illegally.

Detention Conditions

Foreign children under age 3 are usually kept in jail with their mothers in often overcrowded cells. Those between 3 and 9 are usually separated from their detained mothers and put in foster institutions run by the Iraqi state. Those between 9 and 18 are held in juvenile detention facilities, a lawyer following the cases told Human Rights Watch. Foreign orphans are kept in local orphanages. Some foreign children have been transferred to their home countries while many others are still waiting to be transferred.

While Human Rights Watch has not been able to visit detention facilities, it received multiple reports about overcrowded conditions at the prisons where the foreign women and children have been held since they surrendered to Iraq forces in August 2017.

Link to original story on HRW website