Who deals with suspected allies of ISIS in Iraq to help the nation move forward?

Over the past decade and a half, going back since the time of the American invasion of Iraq until the present, iterations of what is now called the “Islamic State” or ISIS in English have terrorized the country. A brief stint of seizing territory in Anbar Province in 2006 showed the world just how horrible ISIS rule would be, but few if any imagined the amount of territory the group would seize in 2014. It goes without saying that horrible crimes against humanity have been a staple of ISIS rule. Stopping them is most certainly the first priority, but healing a close second. The healing process will certainly take years, but Iraq does not have the comfort of taking years to implement its plans for transitional justice. This transitional justice is necessary to not only help those who’ve been violated and displaced reintegrate, but also to have a chance at long-lasting peace. The problem is, darkly and unfortunately, that the nature of the fight against ISIS means many places in Iraq are having to start this transition while ISIS still exists.

The process of carrying out transitional justice in areas liberated from Daesh is complex and fraught with pitfalls. Its success is, however, of the utmost importance. The Iraqi state aims to re-impose Iraqi sovereignty and control over these areas, while giving residents trust in the state which they would understandably lack. In relation to the Speicher Massacre, for example, the state has been too quick to execute those accused of being members of Daesh, while troubling evidence of torture and forced confessions undermines the accusations made by the Iraqi state. These examples underline the risky and uncertain manner in which the Iraqi state is preceding; quickly, to assert its sovereignty and power, but ad hoc, highlighting the extent to which the state is still fractured and struggling to unify Iraq. To illustrate the problem in more detail, a number of examples from recently liberated places in Iraq show how the Iraqi state carries out haphazard trials, struggles to implement justice, and risks stimulating sectarianism at every turn.

One scene, depicted in a recent VICE news report by journalist Aymenn Oghanna, contained footage of Iraqi soldiers holding several men in front of an informal tribunal of men from the village. Footage already showed them grabbing one man, handcuffing him and hitting him over the head while asking where he was from. They speculate he’s Qatari, Saudi or Afghani. The tribunal is read a list of names, some of whom are identified as already being in custody, while others are among those gathered. The accused have to appeal to their peers, in an unplanned public tribunal to vouch for their innocence. Yet towards the end of the video, we see a man, tied up in the back of a truck along with other men determined to have collaborated with ISIS, protesting his innocence. “They searched my house, they release me, and then they recaptured me,” he protested, “I swear to God.”

The manner in which these tribunals are carried out will have long-term implications for stability and reconstruction in areas moving past ISIS. There are clearly power dynamics, potentially never voiced, but understood- about who is condemning whom and who does or doesn’t speak on a man’s behalf. If “truth” is normally extracted through testimony in front of a judge, this manner of extracting “truth” through public denunciation not only leaves the formal judicial hierarchy but remains highly questionable as we can see. In the same video, a woman comes to the Major and asks for justice for her son after which we see the Major and others go to a home and sit with men accused of being collaborators. Given the ad hoc and informal nature of these proceedings, combined with the very real and long-term nature of the results, those potentially wronged in this process will struggle to reverse them or prove their innocence.

Meanwhile, authorities in Hit and Dhuluiya struggled with similar problems. Entire families perceived-rightly or wrongly- to have collaborated with ISIS, were forced out. Hit was only recently liberated from ISIS, but Dhuluiya has been free of ISIS for two years. The tensions with families known (or perceived) to have collaborated with ISIS and those who suffered at the hands of ISIS lingered. The solution here, as in the example above, relied on testimony and not on formal trials. It was also taken, apparently, to prevent vigilante justice being attempted by members of society. Several weeks after, similar problems arose in Falujah where residents refused to allow families tied to ISIS to return to their homes in the city. Falujah residents also refused to accept any religious or tribal attempts at mediation. An important question hangs in the air: where are these families displaced in this manner to go? Apparently neighboring districts refuse to host them, and they may have to return to areas controlled by ISIS, or potentially leave Iraq as refugees. Even if members of the families forced out indeed supported ISIS, what of the others, especially children? Is collective punishment the answer?

Another recent example helps illuminate how residents act to secure justice when the state fails to. Tribal leaders in Qayyarah have begun carrying out their own justice against the families of Daesh members they perceived to have escaped justice from the Iraqi state. The town, just south of Mosul and west of Kirkuk, is known for being flush with oil. The perpetrators of this round of violence, who blew up several homes in the town, expressed frustration that the families of Daesh members remained, living their lives, while others had suffered so much at the hands of their relatives in Daesh. The quote below, from the Los Angeles Times, which was apparently shouted at Iraqi General Karim Shoeyli, expresses these sentiments clearly:

“Daesh blew up our houses. I have no house, and their families are living there happily,” he said, using an Arabic acronym for Islamic State, “[T]his guy from Daesh, he killed my three brothers, and my uncle, and I saw him hit my mother,” said the leader, who did not want his name published for safety reasons. “You expect me to accept seeing his son and his wife in front of me?” — Los Angeles Times, 10/9/2016

The outburst came in the middle of the General trying to tell a group of tribal leaders from the area that any form of vigilante justice was unacceptable:

““It is not the duty of anyone — security official, civilian or sheik to do this,” Shoeyli said. “You are not in a jungle. What you blew up will not change what happened.” — Los Angeles Times, 10/9/2016

In other locations in Iraq, the failure of the state to act has prompted tribal leaders to seek justice of their own, as authorities feared in Hit and Dhuluiya. Kamal al Ayash writes how tribes labeled the homes of those they said to have collaborated with ISIS for destruction. In many but not all cases, the homes are demolished several days later.

Yet if above collective punishment was justified by pointing at the threat of vengeance marring the rebuilding process, citizens carrying out the collective punishment is fundamentally no better. Unfortunately, the Iraqi state’s recent attempts to control the process are fraught with their own problems. A temporary court has been established on the outskirts of Mosul to deal with those accused of collaborating with ISIS. As the NPR report shows, major issues with due process undermine the justice supposedly served with the court’s 15-year sentence to an Iraqi man accused of helping ISIS. It is not clear where the charges came from, the defendant was denied access to a lawyer until the day of trial, and the court itself lacks judges, leading to delays. Despite the problems, one holds out hope that at least the defendant in this case has access to recourse to challenge his conviction and potentially right a wrongful conviction as the current evidence is questionable at best.

The grey and often arbitrary nature of the decisions taken in the attempts to root out ISIS extends into the battle to retake Mosul and other areas ISIS still controls. Turkey’s desire to play a role in the liberation of Mosul has been rebuffed by Iraqi authorities, leading to a war of words between Iraqi Prime Minister Haider al Abadi and Turkish President Recep Tayyip Erdogan. Not counting Turkish forces, there are three different forces acting to retake Mosul from ISIS: The Iraqi Army, the Popular Mobilization Units (Hashd/ حشد), and the Peshmerga are all active. The Peshmerga, as the armed forces of the Kurdistan Regional Government (KRG) already seized Kirkuk two years ago when the Iraqi state was weak right after ISIS seized Mosul. These issues of complexity in the actual fighting will only exacerbate issues of transitional justice, especially since the Popular Mobilization Units are already accused of getting revenge against Sunni communities (here, here, and most recently here). As far as this author knows, those accusations remain unresolved.

Importantly, all is not lost. Iraq already took very important steps to deal with its painful and violent experiences under Ba’thist rule. Trials related to the Anfal Campaign in Iraqi Kurdistan and the massive state violence used to crush the 1991 Uprisings had to take place while Iraq was still experiencing significant violence and unrest (2006–2008). The 1999 Uprising was also part of the trials carried out at this time, and several government defendants were sentenced to death for their roles. The trials faced major hurdles as the process of de-baathification that had been carried out was badly designed and deeply problematic. De-Baathification hampered transitional justice at the time and it continues to cast a shadow on the country, especially as its role in marginalizing so many in the Sunni community is now seen as a factor behind the rise of ISIS. I do not mean to argue that transitional justice to help Iraq move forward is impossible, quite the opposite. It is very possible, very important, but it will not be easy. The Iraqi state must be the only actor carrying out trials, preventing vigiliante justice, and it must do so in a transparent manner that ensures the rights of the accused. To this author’s knowledge, it has yet to reach that standard.