The Kurdistan Regional Government authorities have detained more than 150 boys on suspicion of joining the Islamic State (also known as ISIS) in areas far outside of the KRG’s territorial control. These boys are being held for weeks and months on end, with their time in detention marked by delays, mistreatment, and a lack of clarity about the charges against them, what laws they will be prosecuted under and in what jurisdiction. All of that makes it nearly impossible for them to prepare a defense.

In mid-December, we interviewed 19 of the boys, ages 11 to 17. Some said they had been held as long as five months, without ever seeing a judge. Seventeen said they had been tortured or otherwise abused to force them to confess. Only four had been allowed to communicate with their families, and none had a lawyer as far as they knew. One KRG official told us that it was their fault for not requesting one.

Boy prisoners in the yard of the Women and Children's Reformatory in Erbil, Kurdistan Region of Iraq. Many boys were detained on suspicion of links to the Islamic State

© 2016 Human Rights Watch

Though most denied any links to ISIS, a few readily admitted they had joined the group, usually to work as checkpoint guards or cooks. Some said they had enlisted to earn money for their families. Others said ISIS pressured them to join or attend Quran studies and weapons training.

Four juvenile judges overseeing terrorism cases have said that since October, when the operation to retake Mosul began and detentions of people thought to have been affiliated with ISIS in Mosul increased, they have received only 20 cases of juveniles held on terror charges from the Asayish, the KRG’s security services.

The treatment of children recruited by or associated with ISIS poses a significant challenge to Iraq, including for the KRG. Some of these children have been responsible for acts of violence while simultaneously being victims of ISIS themselves. The United Nations Office of the Special Representative of the Secretary-General  for Children and Armed Conflict said in 2011 that when dealing with children who took part in armed groups “more effective and appropriate methods, other than detention and prosecution are encouraged, enabling children to come to terms with their past and the acts they committed.”

A particular challenge is what to do with children who are only accused of membership in a group like ISIS and not of any specific violent act. In 2016, the secretary-general criticized countries that respond to violent extremism by administratively detaining and prosecuting children for their alleged association with such groups. He noted that such deprivation of liberty is contrary to the best interests of the child and can exacerbate community grievances.

His special representative has also stated that child soldiers should not be prosecuted “simply for association with an armed group or for having participated in hostilities.” While many countries are worried that children who are members of ISIS pose a future threat, detaining and prosecuting a child should always be regarded as a measure of last resort and the purpose of any sentence should be to rehabilitate and reintegrate the child into society.

International law allows for authorities to detain children before trial in limited situations, and only if they have formally charged the child with committing a crime, not merely as a suspect.

The authorities should release all children who have not yet been formally charged.

But the KRG authorities are determined to prosecute these children, despite considerable confusion regarding what laws might even apply to them.

The KRG passed a counter-terrorism law (no. 3/2006), to replace the federal Iraqi counterterrorism law (no. 13/2005), which had been heavily criticized for providing a minimum sentence of life in prison for any terrorism related offense and for allowing the death penalty for adults, though Iraqi law allows a maximum sentence of 15 years for children. After being extended three times, the KRG’s law expired last July 2016, because parliament had been suspended. At the time, a KRG advisory committee recommended bringing charges under the “internal security” provisions of Iraq’s penal code (no. 111/1969) until the law was reinstated.

However, judges said that in most of the juvenile cases received so far, the prosecution is continuing to charge the children under the expired law because they are seeking higher sentences than the penal code’s national security provisions would allow. This would violate the basic principle of legality – that a person can only be prosecuted for an act that was a crime under clear domestic law at the time of the offense and that if there is any difference in the criminal penalties that applied under the law at the time of the offense and of the trial, the lesser penalty would apply.

A legal adviser to the president of the KRG, Masoud Barzani, told Human Rights Watch that judges could also resort to law no. 8/1992 to Punish the Possession, Manufacture and Use of Explosives, which allows for sentences up to the death penalty for adults, but Human Rights Watch was unable to confirm that any judges are applying this law.

Iraq’s Criminal Procedure Code (no. 23/1971) could be interpreted to give the KRG authority to try individuals from Mosul on ISIS membership charges. However the judges Human Rights Watch consulted said that as they read the law, a suspect has to be tried in the jurisdiction where they are said to have committed the crime. In other words, ISIS suspects from Mosul should be tried in the Nineveh court system under the control of the central Iraqi government.

The KRG judges said they fully recognized that their jurisdictional limits meant they should be transmitting cases of those suspected of ISIS-participation outside the Kurdistan Region of Iraq to the relevant courts under the control of the central government. However, they said that Asayish officers had refused to accept that position and were pressuring them to rule on the cases. Ultimately, the judges said, they are being asked to rule, without the authority to do so.

For the children the KRG is detaining, the lack of clarity over the laws that govern their detention not only make it nearly impossible for them to defend themselves, but their continued detention by the KRG instead of by the federal government also limits their ability to benefit from the General Amnesty Law passed in August (no. 27/2016), said a senior judge we spoke to in Baghdad. He urged transferring these cases there.

The law provides amnesty to anyone who can demonstrate that they joined ISIS, or another extremist group, against their will and did not commit another offense such as torture or killing while a member. Under those provisions, many of these child suspects would probably be released. The head of the Iraqi parliament’s legal committee told me that this law, which parliament was discussing expanding, was a way of amending the problematic Iraqi counterterrorism law in a roundabout manner, and potentially a way of securing the release of thousands of detainees, adults as well as these children.

In late February, the central government’s Justice Ministry stated that it had so far released 756 prisoners under the amnesty law.

The children detained on terrorism charges may also suffer from lengthier delays if forced to face trial before KRG judges. A lawyer representing terror suspects said that within the KRI, he knew of only three judges with expertise in counterterrorism cases involving child suspects, but that in federal Iraq, where these cases have been coming forward since 2003, there is considerably more expertise. In his view, cases of children who may be charged with legitimate criminal offenses would be adjudicated much more quickly in the courts in federal Iraq.

Unfortunately, the KRG has rejected our requests to visit the facilities holding men detained on terrorism charges, so we have been unable to verify their treatment or legal status. But we have concerns that they may be facing the same abuses, and legal limbo.

The authorities should ensure that any children detained solely for suspected ISIS affiliation are rehabilitated and reintegrated. Children who have been charged with a valid criminal offense should be treated in accordance with international juvenile justice standards, which emphasize alternatives to detention and prioritize the rehabilitation and social reintegration of the child. They should have due process guarantees – which means access to counsel, including during interrogations, contact with their families, and access to education and health care.