In late 2017, a mass grave was discovered in a formerly ISIL (Islamic state of Iraq and the Levant) controlled area near the banks of the Tigris River in northern Iraq containing the bodies of men and boys as young as 13, but this was not a grave for victims of ISIL, but rather for ISIL militants. These former combatants are believed to have been executed by Kurdish Peshmerga forces.
Given the group’s reputation of wholesale slaughter and sexual violence, ISIL militants do not make the most sympathetic victims; however, the hundreds of men killed are believed to have been prisoners who willingly turned themselves in. Under the laws of war, these prisoners should have been given fair trials, a crucial step seemingly skipped by their captors, as evidenced by the unmarked, hastily-dug resting place.
Despite ISIL’s horrific crimes, Baghdad should treat former ISIL combatants humanely because it’s the right thing to do, and, just as importantly, it’s in Iraq’s best interest.{mosads}
Human Rights Watch investigated the alleged execution, traveled to the grave site, and collected testimonies by a retired Peshmerga soldier and nearby villagers revealing that the bodies were likely prisoners, who, all evidence suggests, were extrajudicially executed. Herein lies a serious violation of international humanitarian law, the body of laws that governs conduct during times of war. No matter who they are, you cannot kill, torture, or mutilate prisoners of war (POWs).
The mass grave is hardly the only evidence of a miscarriage of justice in Iraq. Flawed prosecutions in Iraqi courts have been treating low-level ISIL affiliates (e.g., doctors) with the same charges and sentences as combatants alleged to have committed much more heinous crimes.
Meting out sentences commensurate with the alleged crimes is critical for Iraq’s eventual transition into a post-conflict state. The Iraqi government is blanket-prosecuting all ISIL suspects with harsh counterterrorism laws. Such examples of retributive justice not only violate due process of law, but also stifle opportunities for reconciliation.
The assault on due process extends outside of the confines of the courtroom. Iraqi security forces and intelligence officials have allegedly been threatening and detaining lawyers of accused ISIL members and their families, discouraging them from representing their clients. This impacts not only former ISIL members who are being held and tried on terrorism charges, but their families as well. In fact, Iraqi courts have been sentencing wives of ISIL members, even those who committed non-violent crimes, to life in prison and in one case execution.
Since ISIL’s rise, the United States and a coalition of allies have dedicated substantial military power to destroying the terrorist group. Given its reputation for killing civilians en masse and running a sex slave trade, it’s difficult to envision why a member of ISIL deserves basic human rights. Nonetheless, upholding their human rights is essential for the following reasons:
Customary international law requires that former combatants of any military affiliation are treated humanely by their captors. These allegations against the Peshmerga provide a unique opportunity for the Iraqi government and Kurdish Regional Authority to demonstrate their respect for due process and commitment to the rule of law. Kurdish authorities should investigate the allegations of extrajudicial executions of ISIL POWs and prosecute those responsible to the extent of the law.
To show the international community that the Iraqi judicial system is as capable as its military, the government should prioritize prosecuting violent ISIL affiliates to demonstrate proportionality between crime and punishment. Killing POWs and unfair prosecution are policies one might expect of ISIL; Iraq should seize the opportunity to show that it’s better than that.
The Iraqi government should take the issues of extrajudicial killing and flawed prosecutions seriously because doing so is ultimately beneficial to the reconstruction and reconciliation of Iraqi society. Retributive justice ultimately perpetuates cycles of violence.
Retributive justice is a critical factor in understanding the very emergence of ISIL. It’s no secret that the American-led de-Ba’athification of the Iraqi government and military under the Coalition Provisional Authority (CPA) was a significant impetus of the formation of ISIL. The wholesale punishment of all ex-Ba’ath officials, from the lowly foot soldiers to the generals in the highest echelons of the Iraqi regime created a sizable population of out-of-work and disgruntled Iraqis – a decision whose consequences ripple into the present.
There is no room for rehabilitation, for reconciliation, in this Iraq. Today, the Iraqi judiciary is following in the CPA’s footsteps by punishing ISIL affiliates for mere affiliation, rather than actual crimes.
It’s difficult to advocate for the humane treatment of ISIL combatants, especially those alleged to have been directly involved in the sexual enslavement of Yazidi girls and the murder and forced exodus of the indigenous Assyrian population of northern Iraq.
ISIL has been a scourge to the Iraqi people. Nevertheless, their mistreatment will not heal Iraq’s deep wounds that are tied to its colonial past, sectarian strife, and ethnic components. In 2003, the seeds of ISIL were sown. What is the Iraqi government sowing in 2018?
Rosemary Youhana is the 2018 Human Rights Fellow at Young Professionals in Foreign Policy (YPFP). Previously, she worked as an advocacy associate at the Assyrian Universal Alliance Americas Chapter where she collaborated with civil society organizations based in Iraq, Syria and Turkey on human rights issues facing ethnic and religious minorities. She holds BAs in International Relations and French from the University of California Santa Barbara and a Master’s in International Affairs with a focus on human rights and global governance from American University’s School of International Service. Follow her on Twitter @roseyouhana.