Taking Islamic State to Court Iraq's Challenging Path to Reconciliation

Christian Werner / DER SPIEGEL

By and Christian Werner (Photos)

Part 2: A New Cycle of Violence?

The judge writes down all the names. There is little else he can do. His work is reminiscent of the truth commissioners in El Salvador, Guatemala and Liberia who documented war crimes even though it only occasionally led to consequences for the perpetrators. The idea was to create an official version of events in order to reconcile society, so that perpetrators and victims could live together again. Judge Yami, however, still feels he is a long way from this goal.

"Ninety percent of all prisoners here are lying," he says. "If I could question them alone, they might tell me the truth. But now they spend a few days with the other prisoners, and then they know what to say in their testimony."

Although defendants remain in custody until a criminal judge reaches a verdict based on Yami's reports, the judgments are often contestable because people claim the confessions were made under torture or because they are based on flimsy evidence. As a result, the criminal judges acquit many guilty individuals to avoid the risk of locking away the innocent.

The Iraqi government issued an anti-terrorism law in 2005 following the overthrow of former dictator Saddam Hussein. Under Article 4 of the law, which now also serves as the basis for verdicts against IS supporters, acts of terror are punishable with life in prison or death. The problem with this law is that these penalties apply not only to the perpetrators, but also to helpers and accessories.

In order to prevent abuse, an amnesty law was enacted in 2016. Since then, anyone who can prove that he joined IS or another terrorist group against his will and did not commit any serious crimes is set free. Some 800 prisoners have benefited from the amnesty rule since the middle of last year.

"Almost all the prisoners I interrogate will soon be free again," says Judge Yami.

There is as still no clear strategy for how to account for IS's atrocities, and there have been few efforts to lead Iraqi society toward reconciliation, as was done in Rwanda under orders from the government. Although Iraqi Prime Minister Haider al-Abadi has spoken of establishing a special tribunal for IS criminals, it has failed to materialize thus far. The government is busy with the fight for Mosul, and the country's economy is in shambles. In this context, justice feels like a luxury.

Sometimes there are three prisoners in Yami's office at the same time. Then he instructs the clerks: "Each of you will interrogate one of them." Sometimes he reads to the prisoners what the security forces wrote down in their first interrogation, and they simply nod. "I gather evidence," says Judge Yami. But he soon becomes impatient. Besides, he doesn't really want to be observed by journalists during the interrogations.

Iraq needs help in coming to terms with the IS atrocities, and the judiciary appears to be hopelessly overwhelmed. Mass rape, crimes against humanity and genocide would actually be a case for the International Criminal Court in The Hague, but it cannot take them on because Iraq has not submitted itself to its jurisdiction. Even a war crimes tribunal, like those formed during the wars in the former Yugoslavia, could only be established by a decision of the United Nations Security Council -- and this would presumably be vetoed by Russia, China and the United States.

Thus, the kind of genuine accounting for the past that would be so important for the victims and the country will not occur. Instead, Iraq faces the prospect of vigilante justice and a new cycle of violence.

Furious Victims

Next to Judge Yami's interrogation room, hundreds of people are pushing their way up the stairs to the second office where the other judge, Yonis al-Jomaeli, sits. They move aside when the IS prisoners stumble down, but then their faces harden. "We will never forgive them," whispers a woman whose son was kidnapped by IS. "They destroyed our lives. How else should we feel?"

Yonis al-Jomaeli's office looks like the interrogation room. He too sits behind a wooden desk, a wiry man with narrow glasses. "Welcome to hell," he says, by way of greeting. Jomaeli is the administrator of horrors: The stack of files on his desk is 50 centimeters (20 inches) high. Some 200 to 300 families come to the court every day, he says.

He has collected statement after statement, including hundreds of photos of devastated living rooms filled with dead bodies. Without being asked, he begins reading from the files, jumping between cases, anecdotes and individual fates. At some point Jomaeli can no longer tell what distinguishes one family from another.

Jomaeli isn't working in this court voluntarily either. He too was a judge in Mosul and fled to Erbil when IS fighters arrived. One of the cases he is addressing today is that of a judge who was a friend of his and was murdered by IS. "Many IS victims were government employees, policemen and innocent civilians."

It's loud outside the room, where the crowd is jostling at Jomaeli's door. When someone leaves the office, several plaintiffs push their way in at the same time: a man who was the only member of his family to survive a bombardment; another who buried his murdered wife in the clay floor of his hovel because he did not dare carry her to the cemetery in view of IS fighters. There is a woman whose husband was killed by a sniper. They all hope for financial compensation, at the very least.

Jomaeli writes silently. He is in a hurry.

Noh Hazem Noh, 28, a shy man with jet-black hair, and his two-year-old daughter are part of today's group. He recounts how his wife Rihan, "the most beautiful woman in Mosul," was shot when they returned home from a refugee camp to the liberated eastern part of the city. His wife was pregnant, he says, and they were running through the streets "when an IS sniper took aim at us." As they were running, a bullet hit Rihan behind the ear. He held her, says Noh, adding that his T-shirt is still covered with her blood. He says that he can prove everything.

She was wounded and he brought her to the hospital, but in vain. Noh has come to the court with his mother and two witnesses. After their statement has been entered into the record, the family signs the document with Judge Jomaeli. "We demand our rights," they write beneath their signatures.

The Iraqi government has promised to pay a sort of survivor's pension to the victims of IS. But Jomaeli is pessimistic. "I have no idea when these payments will arrive, or whether they will arrive at all. I also don't know how much compensation there will be. Iraq has no money, and there are many, many demands." He hopes that NGOs will help the plaintiffs until the government can. "We have the capacity of normal people," he says. "We are tired." Jomaeli plans to take an unannounced vacation day the next day.

A woman who has not managed to see Judge Jomaeli is still waiting outside his office in the afternoon. She is here for the third time. "IS accused my son of being a spy, and they kidnapped him right before my eyes," she says. "My husband sold cigarettes secretly. They beat him half to death, and he is now disabled. I want these people to be locked up. My pain is unbearable."

Potential Abuse

The last prisoner of the day is standing in Judge Yami's office next door. His arms are covered in boils. He too claims that he never committed a crime, admitting only to attending a military camp, but said that he never engaged in battle. He says that his brother was active in IS, but that he has since disappeared. As the suspect tells the same story the judge has heard so often, his legs quiver. On several occasions, he has to gather himself before continuing to speak. At the end of his testimony, he begs: "Tell the guards to stop beating me!"

After spending a few days in this court, one gets the impression that some of the prisoners are being tortured to secure confessions.

An employee of the Iraqi intelligence service says: "The only thing we fear are NGOs, which make a fuss when we beat IS people."

A colleague of Judges Yami and Jomaeli says with a wink: "We have special interrogation methods. We make sure that the prisoners tell us the truth."

Judge Yami is unwilling to comment on the statement. He packs his bag in silence and finally says: "Islamic State is our enemy on the battlefield, but not in court."

As they do every day, the judges leave the court at 2 p.m., after five hours and dozens of hearings. They are in a bad mood, and they seem as if they want to leave this place behind as quickly as possible -- to escape the stories and the expectations of victims longing for justice.

As the two judges leave the building and the victims' families depart for Mosul, the black truck returns to the court.

The gate opens slowly and the prisoners walk out. They form a chain to the truck that will return them to prison, with each man's hands resting on the shoulders of the one in front of him. They are required to touch each other so that no one can escape. One prisoner after another places his bare feet on the ground. For a moment, it looks as if the chain will never end.

Translated from the German by Christopher Sultan

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david_svarrer 05/05/2017
1. Reconciliation after war crimes, ISIS
Rwanda seem to have found the formula. Instead of a formal legal system which will inevitably collapse under the burden of convicting even very few individuals, ICC style, for crimes of war, they have setup communal ways of addressing the issue, with courts of a more relaxed procedure, where forgiveness (of all impossible ways) plays an important role. Gandhi so truly said that if we follow an eye for an eye and, we will all end up blind. Therefore, name, shame and forgive may be a better way to do this. We would as societies also need to reconcile, and accept that each of us, myself included, are able to love and to hate, and each of us, pressed to our outmost, would be able to kill and commit atrocities. We would maybe also be sound minded if we admitted our own guilt, from NOT responding to the street child (I here speak about Kenya), with a handout (using all sorts of excuses rather than taking responsibility), and in Afghanistan/Syria/Pakistan, by NOT giving the 10% of our earnings as prescribed by the very same Quran which now the poor, the destitute, have been using as their excuse to commit atrocities. Without falling for neither the blame game nor the "understand your executor" trap, it is necessary not to accept violence in any form, but to understand our own role from top to bottom in creating these monsters. It is my qualified view, that we, who are more wealthy, are creating these monsters both directly, indirectly and via the societal systems we over centuries hsve built, and in the millions of small, daily "don't care" actions we commit. Is therr any bigger crime than causing poverty? Where is the criminal court which will be taking me, you and everybody else to court for our every day neglect of duty to protect and help those who can only pay you back by saying thank you? So before we laud the ICC, or court institutions and their efficient judgment of perceived perpetrators of war crimes, which surely for 99% of the defendants is the truth, we should read and learn to become wise, such that we also in the same court, shall ask those using the court to stone the defendants, to cast the stone, themselves, if they are themselves clean.
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