Iraq rejects Kurdish attempts to establish court for ISIS crimes

ERBIL, Kurdistan Region – Iraq’s Federal Supreme Court has rejected calls to establish a criminal court in Erbil to try Islamic State (ISIS) suspects, the Kurdistan Region’s Ministry of Justice said on Sunday. 

“After the Kurdistan Region of Iraq called for the establishment of a special court for Daesh [ISIS] crimes, the request has been denied by the Iraqi federal court,” the ministry said in a statement. 

"It’s been two years the Kurdistan Region prepared and worked on several documents on the crimes of Daesh terrorists," the statement quoted the Minister of Justice of the Kurdistan Region, Firsat Ahmed, as saying. "We will review the decision of the Federal Court and we will have our own response with the relevant parties.”

The statement added that the desired court was to specialize in ISIS crimes, but not act as a special court in itself. 

Ministry advisor Krmanj Osman told Rudaw on Sunday that Baghdad’s reasoning “has to do with the sovereignty of Iraq.”

“The Kurdistan Regional Government (KRG) can’t employ non-Iraqi judges and public prosecutors,” he said.

A June 13 statement from the Federal Supreme Court of Iraq, obtained by Rudaw, states the draft legislation from the KRG included “authority to appoint non-Iraqi judges and prosecutors and the authority to impose death penalty in addition to its jurisdiction over Iraqi citizens and foreigners.”

According to Article 95 of the Iraqi constitution, the establishment of a “special or extraordinary court is prohibited.”

In late April, Kurdistan Region Prime Minister Masrour Barzani announced that his cabinet has approved draft legislation to establish a criminal court in Erbil to try ISIS suspects, calling on parliament to prioritize and pass it as soon as possible. 

Barzani called on UNITAD, the United Nations Investigative Team to Promote Accountability for Crimes Committed by Daesh, and the international community to “increase judicial support and training in the preparation for the first public trial. In this legislation, members of the international community are also called upon to provide assistance and contribute towards a fund in support of the victims.”

The aim was “to hold ISIS accountable for war crimes, crimes against humanity and genocide,” he added.

Trials of ISIS suspects are conducted under Iraqi anti-terrorism law. In a January report on ISIS trials and the justice administration of Iraq, the Office of the United Nations High Commissioner for Human Rights (OHCHR) said that “International crimes are not codified as such by Iraqi law. Iraqi courts thus do not have jurisdiction over the crime of genocide, war crimes or crimes against humanity committed within its territory. Iraq is not signatory to the Rome Statute of the International Criminal Court.”

The report added that their prosecution under the anti-terrorism law “focused on ‘membership’ of a terrorist organization without sufficiently distinguishing between those who participated in serious crimes and those who joined ISIL out of perceived necessities of survival or under coercion.”

Iraq has already come under fire for its prosecution of suspected ISIS members. International concern has been expressed about the trial and detention conditions of ISIS suspects in Iraq, including the use of the death penalty sentencing for both Iraqi and foreign nationals convicted of ISIS involvement, the use of violence and torture in prisons, and the overcrowding of Iraqi facilities holding ISIS suspects and their kin.

The Iraqi High Criminal Court, which was established to prosecute Saddam Hussein and other Baathists, also provoked worldwide debate over its tribunal process in respect of human rights and a just trial, and was criticized for the lack of non-Iraqi lawyers at the tribunals.

“The legislation the KRG has put forward is for international crimes. Those who have been convicted in Kurdistan [Region] in the past year were convicted on the basis of the anti-terrorism law. Terrorism is different from international crimes,” the KRG’s International Advocacy Coordinator Dindar Zebari told Rudaw English on Sunday.

“For the future, if the legislation is passed, then those who will be brought to court will be brought on the basis of the international crimes, not terrorism crimes. There’s a big difference,” he added.

ISIS prisoners in Iraq are being sentenced according to Article Four of the 2005 Counter-Terrorism Law, which says anyone found guilty of committing a terror offense is given the death sentence, with life imprisonment given to those who assist or hide those convicted of terrorism.

Erbil and Baghdad have detained thousands of ISIS suspects, while hundreds have been executed. A large number of these suspects are foreigners. Iraqi and Kurdish officials have warned several times recently that the group still poses a threat.

At least 41,049 people are imprisoned in Iraq, including 22,380 convicted on terror-related charges, according to a document obtained by Rudaw on January 17 from the Ministry of Justice's Iraqi Reform Department. Several terror convicts have been hanged in recent months.

ISIS controlled swathes of Iraq and Syria in 2014, displacing millions of people and subjecting many more to their brutal reign. They also killed and abducted thousands, especially members of the ethno-religious Yazidi community.. 

Zebari said in November that almost 450 ISIS prisoners are held in Kurdistan Region prisons, but that 48 suspects were released “owing to a lack of evidence.” Almost 400 were tried and sentenced.

The number now stands at over 300 prisoners, he said on Sunday. 

Additional reporting by Hemin Baban Rahim