By pledging to try 13 French Islamic State (IS) group fighters, Iraq has assumed the role of judge and jailor for the suspected extremists — thereby saving Paris the controversy of repatriating them.
France has been rocked by fierce public debate over whether to repatriate dozens of its nationals, including children, caught fleeing IS’ collapsing “caliphate” in east Syria.
Most are held by US-backed Syrian forces, but 13 French citizens were transferred across the border to be tried in Baghdad, Iraqi President Barham Saleh announced on Monday.
The alleged fighters, who were turned over to Iraq after being seized by Syrian Kurdish forces, “will be judged according to Iraqi law,” Saleh told a news conference after talks with French President Emmanuel Macron in Paris.
“Those who have engaged in crimes against Iraq and Iraqi installations and personnel, we are definitely seeking them and seeking their trial in Iraqi courts,” he said.
The issue is sensitive in France, where a 2015 attack in Paris claimed by IS killed 130 people — but this arrangement could be the French government’s best option.
“This deal suits Iraq, but it’s also politically favorable for France, which will avoid having to deal with the difficult return issue. Baghdad will have done it a favor,” said Hisham al-Hashemi, an Iraqi expert with intimate knowledge of the issue.
“This way, France will no longer have to deal with organizations calling to repatriate, rehabilitate, and reassimilate these people,” he said.
Transferring foreign fighters to Iraq for trial appears to resolve a legal conundrum for Western powers.
The Kurdish-run administration in northern Syria is not a legally recognized government, so trying them there would be dubious.
However, repatriation is a politically fraught issue and governments fear that they might not have enough evidence to convict IS members who claim they did not fight.
However, Iraq has already tried hundreds of foreign IS fighters, including some caught in Syria and transferred across the border.
It has sentenced many, including 58-year-old French national Lahcen Ammar Gueboudj and two other French nationals, to life in prison. Baghdad has even handed down death sentences to about 100 foreigners, only one of which has been implemented.
Iraq’s 2005 counterterrorism law condemns any individual who provided material support for extremist groups to death, even if they did not pick up arms.
“This means Iraq can put anyone on trial who just passed through their territory on their way to Syria,” Hashemi said, adding that the 13 French nationals in Iraqi custody had battled government troops in Iraq and were transferred in coordination with the US-led coalition fighting IS.
France initially insisted that its citizens should face trial wherever they were caught, then last month seemed to soften its stance by saying that it was considering repatriations.
However, Macron on Monday appeared to backtrack, saying that it was “up to the authorities of these countries to decide, sovereignly, if they will be tried there.”
“These people are entitled to benefit from our consular protection, and our diplomatic service will be mobilized,” he added.
An Iraqi judicial source said that Western countries had a vested interest in making sure that their nationals were tried in Iraq, not at home.
“In their own countries, their lawyers could claim their clients were abducted in Syria,” which could hurt the prosecution’s case, the source said. “Trying them in Iraq guarantees these countries that this point won’t matter.”
Handing them over to Iraqi courts would also ensure “much tougher sentences,” the source added.
The 13 French nationals were brought to Iraq in parallel with the repatriation of 280 Iraqi IS members from Syria.
Fadel Abu Ragheef, a security advisor and strategic analyst, said there was more to come.
“There’s another wave of Iraqi and foreign jihadists that will arrive soon to Iraq,” he said.
However, Human Rights Watch (HRW) said any transfers should be completed in full transparency.
“When these transfers get done in the middle of the night with no one knowing, there’s no way to track these people,” HRW counterterrorism head Nadim Houry said, adding that he was concerned about a lack of due process in Iraqi courts and the possibility of abuse in its detention centers.
“Iraqi trials are rife with due process abuses, and the trials are not providing justice to the victims or information about the crimes,” Houry said. “It seems the West is still looking for someone to take that burden off of them without them engaging on the substance of the trials.”
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