The US is transferring foreign nationals who joined Daesh from Syria to Iraq despite the risk of torture and unfair trails, Human Rights Watch (HRW) has announced.
At four recent trials in Baghdad, several foreign fighters from France, Australia and Lebanon reported being transferred across the border by US-backed forces in the north with several alleging due process violations and, in two cases, being tortured in Iraq. A fifth detainee, a Palestinian national from Gaza, is also believed to have recently entered Iraqi custody but Human Rights Watch does not know if he has been charged.
None of the detainees in question were known to have carried out any activity in Iraq and had all been captured in Syria.
"Prosecuting ISIS [Daesh] suspects is crucial for their countless victims to obtain justice, but that won't be achieved by transferring detainees to abusive situations," said Nadim Houry, terrorism/counterterrorism director at Human Rights Watch. "The US should not be transferring ISIS suspects from Syria to Iraq or elsewhere if they will be at risk of torture or an unfair trial."
Houry stressed that this denies victims their day in court because "no victims participate in these [Iraqi] trials" and added that the US was "trying to take the easy way out by transferring these people to Iraq".
The north of Syria is currently managed by the US-backed Syrian Democratic Forces (SDF), made up primarily of Kurdish militia driven by a federalist vision for future governance. Earlier this year, the Pentagon announced that the SDF are currently holding nearly 600 foreign fighters from over 40 nationalities in custody, but emphasised that it would not be able to hold them indefinitely and had no plans to bring them to trial.
"As you can imagine, it is a drain on their resources. They are not a policing organisation," US Army Colonel Thomas Veale, a spokesman for the coalition, said at the time.
However, most European countries have refused to take back their citizens who joined Daesh, or married fighters, instead deferring to local prosecution in Iraq and Syria.
"We support UN resolution on the crimes of [Daesh] and this resolution respects Iraqi sovereignty, and Iraqi judiciary will play [the] main role in prosecution of crimes," Ramon Blecua, the EU ambassador to Iraq, said during the Middle East Research Institute 2018 Forum on 23 October, adding that such a system was acceptable as long as this does not lead to the death penalty.
"It's up to the Iraqi state, where the crimes were committed, to judge and prosecute them and bring justice to the victims," he said. "Our position is clear on that."
However, according to HRW's sources and local Iraqi media, some foreign militants have been sentenced to death in recent trials.
HRW also argues that Iraq's legal proceedings against people accused of Daesh affiliation have serious shortcomings, which the US has also admitted in its annual report. Trials rarely consider specific offences and use torture to extract confession. There is also debate as to whether Iraqi law permits the prosecution of foreign nationals for acts of terrorism, with some members of the Iraqi High Judicial Council stating that the law does not grant extraterritorial jurisdiction unless the defendant is an Iraqi citizen.
International human rights and humanitarian law prohibits the transfer of detainees to countries where they are at serious risk of torture and mistreatment.