(Beirut) – Sunni Arab boys who serve prison time in Iraq’s Kurdistan region for Islamic State (also known as ISIS) connections risk rearrest after their release if they try to reunite with their families in areas controlled by Baghdad, Human Rights Watch said today. The problem stems from a lack of coordination between the separate judicial systems of the Kurdistan Regional Government (KRG) and the Iraqi government.

This situation currently only affects about two dozen boys who have been released after serving time on counterterrorism charges. But dozens more and hundreds of adults will soon be released from KRG prisons. The risk of rearrest means that they may not be able to return home and reintegrate into society. It may also clog up Iraq’s prisons and courts.

“The lack of coordination between Iraq’s two separate judicial systems has led to a risk of repeated prosecutions for the same crime,” said Lama Fakih, deputy Middle East and North Africa director at Human Rights Watch. “Right now, the situation largely affects boys who have served shorter sentences, but as Erbil starts releasing adults who have finished their sentence, they will face the same problem.”

In November 2018, Human Rights Watch interviewed four boys between ages 15 and 17 who had been arrested by the Kurdish Asayish security forces, convicted, and served sentences ranging from 2 to 14 months. None had returned home to their families, who are living in areas under the Iraqi government control. They said that they feared rearrest since they had heard that other boys who returned had been rearrested. One boy who was rearrested said that he was then tortured to confess ISIS affiliation by Iraqi prison authorities.

Each of Iraq’s two separate judicial systems have their own counterterrorism laws, which are applied in their courts. Sentences for terror charges have been significantly shorter in the Kurdistan courts than the Iraqi government courts, Human Rights Watch has found.

Historically, they had an information-sharing and transfer system. But judges from both systems have told Human Rights Watch that in recent years this system, has become less effective, particularly since the September 2017 referendum on Kurdistan region independence. A statement by the Iraqi government’s High Judicial Council on December 17 highlighted the need for better coordination and said that in November it ordered formation of a committee to improve coordination between the two judicial authorities. However, as far as Human Rights Watch has been able to determine, the committee has yet to start functioning.

As part of their campaign to defeat the ISIS, Iraqi and Kurdish security and military forces screen people leaving ISIS-controlled areas to detain those identified as ISIS suspects. They check names against “wanted” lists that security actors on both sides have developed since 2014. They compile the lists from a variety of sources, including public information about ISIS members, names published by ISIS itself, and names of ISIS suspects in their communities supplied by people fleeing ISIS-controlled areas or after the area was retaken by Iraqi forces.

Many families of detained ISIS suspects have told Human Rights Watch that neighbors or other people had put forward the name of a family member simply because of tribal, familial, land, or personal disputes.

People stopped at checkpoints, who are on the lists, face detention while officials investigate the allegation of their ISIS-affiliation. The prosecutions of those detained for ISIS affiliation in most cases rely solely on defendants’ confessions, based on information from numerous judges and lawyers, and Human Rights Watch’s own experience monitoring trials in Iraq.

Iraq’s constitution states that, “The accused may not be tried on the same crime for a second time after acquittal unless new evidence is produced.” According to two legal experts working as lawyers both in the Kurdish region and Baghdad, if a person has been convicted in one system of an offense and has completed their sentence, they cannot be tried again for the same offense anywhere in Iraq, even if new evidence has emerged. But because of the lack of coordination, it would be hard for prosecutors in one system to know whether evidence they find is new, or even whether a person they detained has served a sentence in the other jurisdiction.

Experts monitoring the situation of these boys told Human Rights Watch they knew of at least five boys who had returned home and were rearrested, but had no details about what happened to them. They said that the Asayish did not automatically give court or release documents to boys released from the Erbil Reformatory for Women and Children and that the boys needed to petition for these documents later through lawyers in a lengthy process if they wanted them.

The experts and reformatory staff also said that they also knew of many cases of the Asayish holding boys for months, then releasing them without charge. The experts said that because they were not charged, Kurdish authorities did not issue an official release certificate, as those are only issued for detainees who were brought before a judge. As a result, these boys are in an even worse situation because they have no documentation to prove they were released without charge.

In an email to Human Rights Watch on December 18, Dr. Dindar Zebari, the KRG coordinator for international advocacy, responded to concerns about the lack of coordination, saying that there has been coordination that had led to six transfers from Kurdish to Iraqi prisons. He did not respond to questions about the extent to which the judicial authorities on both sides are sharing information about acquittals and convictions, nor what documents detainees are being issued upon their release.

Human Rights Watch also wrote to Muhammad Tahir al-Mulhim, director of the human rights office within the Prime Minister’s Advisory Council, on December 12, raising the same concerns. He has yet to respond.

Judicial authorities should adopt specific policies and procedures to avoid repeated prosecutions for people who have been convicted and served their sentence for ISIS involvement, or acquitted. All forces making arrests should release all detainees who have already been exonerated or served a sentence for the same crime. Judicial authorities on both sides should start automatically sharing judicial paperwork in each case, including release certificates. They should ensure that all detainees are given release certificates upon their release, including those released without charge and remove their names from “wanted” lists.

All detaining authorities should redouble efforts to bring defendants before a judge within the legally mandated 24 hours, so that if they have served a previous sentence, they will be able to communicate this to a judge promptly and be released. Iraq should ratify the Optional Protocol to the Convention Against Torture and set up its own independent system to inspect detention centers.

“Baghdad and Erbil need to find a solution that puts the well-being of these children at its heart,” Fakih said. “Once these boys are released, they should be able to return home to their families, return to school, and reintegrate into society as quickly as possible.”

In November, Human Rights Watch interviewed seven boys and one young man age 18 with his family, all of whom have been detained by Asayish forces for ISIS affiliation. Three were still in detention while five were in various locations in northern Iraq. Human Rights Watch interviewed the detainees privately and was able to select the detainees it was allowed to interview. All of those interviewed gave their verbal consent to be interviewed and for the information to be used in a public report but said that their identities should not be revealed.

Unable to Return
“Abdullah,” 17, said he spent a year and two months in prison in Erbil and was released after serving his sentence. He is in the Kurdistan region, but doesn’t even want his family to visit him there, as he worries that if anyone finds out that he has been released from prison and has been in contact with his family, security forces in their area will arrest the family as punishment. “If I get rearrested,” Abdullah said, “I am sure I will get a sentence of 10 or 15 years.”

“Alaa,” 16, said he was released in June after serving a 14-month sentence in Erbil. He said he was afraid to return to his village because of the pro-government Popular Mobilization Forces (PMF), also known as the al-Hashd al-Shaabi, which are part of Iraqi government forces. “Once they know I’m in the village, they will come and take me away…When someone hears I am there, they will track and find me.” He felt that his only options were to stay in a camp for displaced people or leave the country.

Human Rights Watch obtained information about over two dozen other boys who had been released and were in the same situation, with no clear solution before them on how to return home safely. Researchers interviewed three boys currently serving a sentence for ISIS-affiliation at the Erbil Reformatory for Women and Children, a prison facility for women and children, who said that they would not be able to return home to their families upon release, because they had heard from other boys about the risk of rearrest. One, age 17, said he was sure he would not be able to join his mother because he believed the PMF would arrest him. He was concerned that when he is released, the Asayish would directly hand him over to the PMF. Another, also 17, said:

I cannot go back to my village after I am released because I would get rearrested. I don’t think we can ever leave the Kurdistan Region because our situation is too difficult. If we go home, the PMF will come and arrest us again – there is no chance for us to go home safely.

Case of Rearrest
“Karim” is from a village near Mosul. He said he was arrested by Peshmerga, KRG military forces, at a checkpoint when fleeing his home in March 2016. He said they handed him over to Asayish, who held him for two days along with at least four other boys from his village who had fled with him, without providing any reason. Karim said they confiscated his identity card, and then transferred him to the Asayish headquarters in Erbil, where they interrogated him and he confessed to joining ISIS for one day.

He said that Asayish transferred him to the Erbil Reformatory for Women and Children and four days later took him before a judge, where Karim again said he had joined ISIS for a day. He was taken before an investigative judge in August 2016 and released in April 2017 without charge for lack of evidence, according to court documents he showed researchers. Asayish drove him to a camp near Erbil, where his uncle picked him up and drove him home.

He said that Asayish did not return his identity card, so 10 days after returning home to Iraqi government-controlled territory, Karim went to the area’s civil status directorate to get a new card. Officials there told him to get security clearance from the Interior Ministry’s local intelligence office. There officers said he was wanted for ISIS affiliation and arrested him. He said, “I told them I had served a sentence in Erbil and had a paper ordering my release. They said they don’t care, they don’t recognize the Kurdistan Regional Government.”

They held Karim in a prison under their control for 45 days, he said, in a cell of about four-by-five meters, housing 60 detainees, about 15 of them under 18. He said he was not allowed to leave the room except for interrogations or to use the toilet, with guards beating anyone who took more than a few seconds. They ate inside the cell and had no access to a doctor, he said. Human Rights Watch verified most of the same conditions when visiting the same facility.

Karim said that interrogators repeatedly beat him and hung him from his hands bound behind his back in a technique called the “bazoona.” He said this happened at least four times, each time for 10 to 15 minutes with a few minutes in between. While torturing him, they told him to confess to having joined ISIS for three days, which he finally did, after which they took him before an investigative judge, he said. He said the guards told threatened him with more abuse if he told the judge they had tortured him. He showed researchers the marks on his body.

Guards then flew Karim with a large group of other detainees down to Baghdad and held him at a prison at Baghdad International Airport. There again, he said, officers interrogated and beat him four times with plastic pipes before he was finally taken before a judge in December 2017. The judge ordered his release after he told the judge he had been tortured during interrogations and that he had already served a sentence in the reformatory in Erbil.

His mother who was present during the interview said:

He used to love school but now sits at home all day and doesn’t go to school because he is scared if he leaves the village, and security forces find him at a checkpoint they will arrest him yet again because his name has likely not been removed from the list of people who are wanted. He sits here so scared to be rearrested, and we have even had security forces come back since he was released to question him again. Meanwhile because of everything he has been through he has started lashing out against his siblings, and often hits them.

Legal Framework
Baghdad authorities are bringing charges against those suspected of ISIS affiliation under Iraq’s counterterrorism law (no. 13/2005). The law punishes anyone who committed, incited, planned, financed, or assisted a terror act that led to death, and gives a life sentence to anyone who covers up such an act or harbors those who participated.

The KRG passed its own counter-terrorism law (no.3/2006), to replace law no. 13/2005. It calls for the death penalty for anyone who committed an act of terror or joined, founded, coordinated, or cooperated with a terrorist organization, incited, planned, financed, or assisted in a terror act. It gives a life sentence to a range of criminal acts including causing destruction to a building, hijacking, kidnapping, or financing a terror attack. It further stipulates a sentence not exceeding 15 years for publishing terrorist propaganda and knowing of a terror act without notifying the authorities.

International standards
The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which Iraq acceded to on June 24, 2008, addresses the situation of children recruited into armed groups in the context of armed conflict, including terrorist and violent extremist groups. The protocol states that non-state armed groups shall not, under any circumstances recruit or use in hostilities children under 18 and calls on states parties to provide appropriate assistance for the physical and psychological recovery and social reintegration for children who have been recruited.

The Neuchâtel Memorandum on Good Practices for Juvenile Justice in a Counterterrorism Context provides specific guidance to governments regarding the treatment of children involved in terrorism activities. It urges countries to consider alternatives to detention, including diversion from the criminal justice system, and to develop rehabilitation and reintegration processes to aid the child’s successful reintegration into society.

Iraqi authorities should consider alternatives to detention and criminal prosecution for child detainees and develop rehabilitation and reintegration programs to aid their return to society.

Article 14 of the International Covenant on Civil and Political Rights, ratified by Iraq, states that “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”