How Europe Is Handing Off Its ISIS Militants to Iraq

BAGHDAD—Standing in his prisoner’s yellow jumpsuit, Mustapha Merzoughi remained quiet at first. He shook slightly and brushed at his eyes, before assuming a neutral expression. His Arabic appeared to be limited, and when the judge first began to question him, he stayed silent, eventually saying in French:

“There is no point that I speak. Whatever I say, you will convict me to death.” About an hour later, he was.

Merzoughi was one of 11 French defendants that an Iraqi court sentenced to hang over the course of trials from May 26 to June 3. He was captured, however, not in Iraq but in neighboring Syria, by the Syrian Democratic Forces (SDF) during the last battles against the Islamic State. Merzoughi and his fellow ISIS defendants were the first official cases of foreigners transferred from Syria to Iraq for trial—juridical guinea pigs in an experimental solution to the problem facing many European countries whose citizens left home to fight for the Islamic State. The Europeans do not want them to return, but the SDF does not have the sovereign power to sentence them, leaving their citizens in limbo.

Transferring them to Iraq allows Europe to sidestep the issue, but it comes with a price—or, to be more precise, a fee. Sources from both the Iraqi and U.S. sides have alleged that Iraq wants to be paid for the trouble of trying foreigners. Senior Western officials reportedly have said the Iraqis want $10 billion as an upfront fee, with an additional $1 billion each year to take in detainees. Three Iraqi officials reportedly said they would charge $2 million per suspect per year. The French government has denied making any payments, according to a Reuters report this week. However the article also noted that “a French official briefing reporters after a visit by Iraq’s prime minister in May said Paris expected Baghdad to make an official request, including financially, on what it needed to handle large number of Islamist fighters.”

Between 800 and 1,500 foreigners from countries including France, the United Kingdom, and Germany still remain in Syria detained by the SDF. France alone has about 450 citizens being held in Syria. Jean-Charles Brisard, the head of the Center for the Analysis of Terrorism (CAT) in France, believes that as long as public opinion holds steady in resisting their return, this is only the beginning of a new kind of injustice.

“I believe this is the first wave of trials and we can anticipate other waves in the future,” he told Foreign Policy. “From what we know, the trials were very expedited and had very little time for defense. It is the opposite of our own values of justice.”

For French President Emmanuel Macron, the Iraqi trials were an uneasy solution to an intractable problem. In late February, Macron faced a French public haunted by the trauma of the 2015 Paris attacks that left 130 people dead and hostile to the potential return of any French Islamic State members. On the other hand, there was mounting pressure from the United States and the SDF to take the foreign detainees out of their territory in northeastern Syria. Macron met with Iraqi President Barham Salih, and after long discussions, they held a joint press conference in which Macron pledged to deepen France’s military and economic support for Iraq. Salih confirmed that a total of 13 French nationals would be transferred to Iraq for trial.

“I think it was at this moment during this presidential visit that this deal was passed between Macron and the Iraqis,” said Myriam Benraad, a research fellow at the Institute of Research and Study on the Arab and Muslim Worlds in France. “The Iraqis said very clearly to the French, ‘We are ready to keep them, but that’s going to mean money, and that’s going to mean assistance, in particular arms and military assistance.’”

French Foreign Minister Jean-Yves Le Drian has portrayed the prosecutions as just, stating recently that the defendants had received “fair trials.” His statements have been condemned by lawyers and human rights organizations, but public opinion appears to be with the government. A recent poll in France showed that 89 percent of respondents believed the government was right to let Iraq judge the French nationals.

“Le Drian knows that this is purely a political move because he knows that the French population does not want them back. There’s a certain revenge mode for a lot of French people. They are getting what they deserve after everything we suffered,” Benraad said.

France claims that the transfer was an agreement between the Kurdish SDF forces and the Iraqis and that it was not involved in the decision. France has officially stated that it respects Iraq’s sovereignty in this matter, but Iraq did not claim jurisdiction over these cases until recently.

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While Article 9 of the Iraqi Penal Code allows for the prosecution of foreign nationals who commit crimes outside of Iraq as long as those crimes affect Iraq, only a year ago senior judges’ interpretation of the law was quite different, said Belkis Wille, a senior Iraq researcher for the Middle East and North Africa division of Human Rights Watch. “Last year they were saying no,” she said. “Our interpretation of our jurisdiction is that we could not prosecute because they never committed a crime in our soil and they’re not our nationals.”

But this year, after Macron and Salih announced the French trials, Wille said senior judges flipped their reading of the article. “A few weeks ago, when I was back at the court, suddenly the tone had completely changed, and it’s obviously because politically they’ve been told that they have to prosecute,” she said.

The Iraqi justice system is infamous for its abuses: Trials lasting 10 minutes, torture, and forced confessions have all been widely reported. If a country pays for its nationals to be prosecuted in Iraq, it could potentially violate international law and make France complicit in torture. Paris is sensitive to these issues, and Wille said she does not believe France would make any public quid pro quo or direct payment for trials. “It would be increased military assistance or development money or whatever else,” she said.

Regardless of payment, France did not object to the transfer of its citizens to Iraq, a nation known for widely applying the death penalty in terrorism cases. Le Drian said France is in talks with Iraq to see if they can reduce the death sentences to life sentences.

The courts prosecute defendants in these cases under Iraq’s 2005 anti-terrorism law, which has been heavily criticized for consisting of broad articles that can be loosely interpreted: In the French cases, the judge needed to prove only that they were members of a terrorist organization to sentence them to death. Sentencing requires only confession, a system that incentivizes abuse and torture in order for interrogators to extract the necessary confessions.

In the French cases, only one of the 11 defendants, Fodil Tahar Aouidate, alleged torture. Aouidate told Iraqi Judge Ahmed Mohamed Ali that he had been forced to sign a confession saying that he fought battles in Syria and Mosul. “I was tortured so of course it says that,” he said. Ali asked him to show him his body, and Aouidate lifted his shirt. The judge ordered a medical exam and delayed his trial to June 2. A few days later, he read aloud the results of the medical exam, which found no signs of torture on Aouidate. The session finished quickly, and Ali sentenced Aouidate to death.

Wille said the forensic medical exams rarely make a difference. “Even in cases where the judge believes them enough to order a forensic medical exam, that rarely leads to them being acquitted. And it rarely leads to the interrogators who are alleged to have committed the torture being investigated and eventually punished,” she said. “What we often see … [is] the defendant simply gets taken back into the hands of the same forces, gets tortured again, makes another confession, and the second time he’s too scared to tell the judge that he’s been tortured.”

A defense lawyer who did not want to be named said flatly that torture was common in these cases. “They’ll torture them with electricity to get them to sign something in a language they don’t understand,” he said in between court sessions.

Addressing the allegations that confessions are often obtained through torture, Ali told Foreign Policy in an interview following the trials: “I don’t know how they have been treated before, but they have confessed here [in the courtroom], and that’s enough.”

“No one touches them because they are foreigners,” he added. “Of the French, no one said they were tortured with one exception, and the medical report said he did not have one mark on his body.”

Both Ali and Khaled Taha Mashadany, the president of the court where Merzoughi was tried, seemed eager to demonstrate the fairness of the trials. They mentioned multiple times that they wanted the media to observe the trials and asked for journalists’ opinions on the proceedings. The trials themselves appeared better than the standard faced by most Iraqis accused of terrorism. Ali was careful to follow procedure, and the trials lasted from 45 minutes to two hours, as opposed to the brief 10-minute cases that have been previously reported. The defendants were given a chance to respond to the judge’s questions fully.

“We have experience. Iraqi justice is better than anywhere else in the world,” Mashadany said. “Human rights organizations have understood wrong. They don’t take the long investigations before the trials into consideration.”

But there were several issues present in the courtroom. Foreign Policy attended each of the court sessions of the defendants, and they followed a similar pattern. In the beginning, Ali read intelligence reports on the defendants’ crimes along with the confessions gathered in the investigative period. No witnesses were present. A slick video showing evidence against the defendant was played, accompanied by a dramatic orchestral music. The method of questioning Ali used established whether or not the defendants traveled to Syria to join the Islamic State, which under the counterterrorism law is enough for the death sentence. However, this meant that legally there was no need for the prosecution of individual crimes, leaving few roads for Islamic State victims to get justice.

“No one is really here to know the truth or what happened or the crimes they committed, which is … a denial of justice for the victims,” Benraad said.

At the end of the trial, both the prosecution and the defense stood up and read statements that rarely lasted for more than a minute. The defense lawyers Foreign Policy spoke to were appointed by the state on the day of the trial, and the longest one of them had met with one of the defendants was for 30 minutes the same day.

“The government—by agreeing that these French citizens be transferred from Syria to Iraq to be tried—is clearly a way to avoid handling its humanitarian role in France,” said Brisard, the CAT head. “This is why they are standing on the position to say the trials were fair even though we all know that they are not.”

Thousands of people left Europe to fight for the Islamic State, a fact that years later European countries still appear reluctant to reckon with. But as Europe debates how to dispose of the fighters, Iraqis are left with a different question.

“Iraq has the right not to be used as the most violent country,” said Pascale Warda, the president of the Iraqi Hammurabi Human Rights Organization, after attending the trials. “Why shouldn’t those countries take responsibility? Why should the responsibility be on our people?”