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Rusafa Central Criminal Court in Baghdad. © 2018 Maya Alleruzzo/AP Photo

(Beirut) – The United States has transferred foreign nationals suspected of Islamic State ties from northern Syria to Iraq without apparent regard for the risk of torture and unfair trials in Iraq, Human Rights Watch said today.

Independent observers of four recent terrorism trials in Baghdad reported that several foreign defendants, including from France, Australia, and Lebanon, had been tried in Iraq based, at least in part, on their alleged membership in the Islamic State (also known as ISIS). The defendants reported their capture in and transfer from Syria during the trials. Some alleged due process violations and, in two cases, being tortured in Iraq. A fifth detainee, a Palestinian national from Gaza, was also transferred from northeast Syria to Iraqi custody but Human Rights Watch does not know if he has been charged in Iraq.

“Prosecuting ISIS suspects is crucial for their countless victims to obtain justice, but that won’t be achieved by transferring detainees to abusive situations,” said Nadim Houry, terrorism/counterterrorism director at Human Rights Watch. “The US should not be transferring ISIS suspects from Syria to Iraq or elsewhere if they will be at risk of torture or an unfair trial.”

An independent source monitoring events on the border between Iraq and Syria told Human Rights Watch it is aware of “many” US transfers of foreign ISIS suspects from Syria to Iraq but was unable to quantify them. Human Rights Watch has reasons to believe that at least in five instances, US forces handed foreign detainees over to Iraq’s Counter Terrorism Service (CTS).

International human rights and humanitarian law prohibits the transfer of detainees to countries where they are at serious risk of torture and mistreatment. In general, suspects linked to ISIS have been routinely denied fair trials and often face torture in Iraq.The US should not transfer ISIS suspects detained in Syria to Iraq or another country if it would put them at risk of torture and other abuse, and detainees should be able to contest such transfers, Human Rights Watch said.

The Syrian Democratic Forces (SDF), a coalition of predominately Kurdish armed groups controlling parts of Syria's northeast, has sought to send the hundreds of foreign ISIS suspects in their custody to their home countries for prosecution. But most detainees’ home countries have refused to take their nationals back. The local authorities in northern Syria have not yet brought any suspected foreign ISIS fighters to trial and have declared that they don’t plan to. The Counter Terrorism Service is an elite military unit under the command of the Iraqi prime minister. The US set up the unit 2003 and has maintained close ties and support with it. Human Rights Watch has documented serious violations by its forces, including torturing and executing ISIS suspects, mutilating victims' bodies, and carrying out enforced disappearances.

The US government has yet to respond to a Human Rights Watch letter from September 10, 2018, seeking clarification about US policy on the transfer of detainees held in northern Syria, including the number transferred to Iraq.

Human Rights Watch did not attend the recent trials of the four foreign ISIS suspects but learned about the court proceedings from multiple sources, including independent trial observers. Iraq prosecuted the four under the 2005 Anti-Terrorism Law and for illegally entering the country. Two were convicted and sentenced, one to death. The other two cases are pending. All are believed to be in Counter Terrorism Service custody.

Generally, Iraq’s legal proceedings against people accused of ISIS affiliation have serious shortcomings, which the US has reported in its annual human rights report. Trials are summary and often do not put forward evidence of specific offenses. Interrogators routinely use torture to extract confessions, and in most cases judges ignore torture allegations from defendants.

The trials of the foreign suspects appear to have been premised on the defendants having entered Iraq illegally and violated the Anti-Terrorism Law while in Iraq. But at least two of the defendants asserted in court that the US forcibly transferred them to Iraq. The family of another foreign detainee made a similar assertion.

In addition, Iraqi law may not permit the prosecution of foreign nationals for acts of terrorism committed outside the country. Senior members of the Iraqi High Judicial Council have recently said that Iraq's penal code and Anti-Terrorism Law, when read together, do not grant extraterritorial jurisdiction unless the defendant is an Iraqi national. A senior judge at the Risafa Central Criminal Court in Baghdad said that while ISIS as a group was in Iraq, Iraq’s laws do not allow a non-Iraqi to be prosecuted for membership in ISIS, if they did not enter Iraq while a part of the group.

The United Nations Convention against Torture, as well as customary international human rights law and international humanitarian law, prohibits the transfer of detainees to a country where “there are substantial grounds for believing” they would be in danger of being tortured. Human Rights Watch has previously expressed concerns that the US has recently transferred some ISIS suspects from northern Syria to their home countries without transparency and apparent safeguards to ensure that the suspects were not at risk of torture or an unfair trial.

In cases where the US has already transferred detainees to Iraq, the US is obligated under international law to monitor their cases to ensure that they are not mistreated and, if prosecuted, are fairly tried. If Iraqi authorities or courts determine that Iraq has no jurisdiction over transferred detainees, US authorities have a responsibility to transfer the detainees to their home countries or to other countries that may have jurisdiction, unless there is a risk of torture. For those who cannot return to their home countries, relocation to a safe third country should be considered.

Many countries have refused to take back nationals who are suspected ISIS members. In these cases, greater international cooperation is needed to find alternative countries to prosecute them fairly and that would allow victim participation in trials. US and Iraqi authorities should ensure that foreign nationals in their custody can communicate with their families, consulates, and legal counsels.

“Faced with the refusal by many countries to take back their nationals, the US seems to have taken the easy way out by transferring some to Iraq and be done with it,” Houry said. “The US needs to create a system that won’t make the US complicit in torture and ensures that ISIS suspects are fairly tried for their crimes, however heinous.”

Mahmoud al-Nuwajha, Palestine

The family of Mahmoud al-Nuwajha, a Palestinian from Gaza, said they received information in March from a former Iraqi detainee held with him that the Syrian Democratic Forces in Syria were holding him. The family then heard from al-Nuwajha in August that he was in the custody of Iraq’s Counter Terrorism Service at a prison outside Baghdad’s international airport, presumably after being transferred from Syria. They said that he had never previously been to Iraq and, to their knowledge, was not wanted in Iraq for any crime.

On September 10, Human Rights Watch wrote to Iraqi, Syrian Democratic Forces, and US officials about al-Nuwajha’s case. The SDF official responded by email on September 20 that they “don’t provide information regarding any transfers of specific detainees for operational reasons.” On September 25, a representative of Iraq’s Prime Minister’s Advisory Council denied by email that al-Nuwajha was in Iraqi custody based on inquiries he said he had made to two government branches. However, on October 15, in a meeting with Iraq’s High Judicial Council, a senior supervisory official confirmed to Human Rights Watch that al-Nuwajha was in Counter Terrorism Service custody. The US has not yet responded.

Lahcen Ammar Gueboudj, France

Lahcen Ammar Gueboudj, a French national, told the Risafa Central Criminal Court in Baghdad on August 6, via a translator, that he had been captured in Syria on March 27 by a non-state armed group, two independent observers at his trial said. Military personnel, whom Gueboudj identified as Americans by their accent when they spoke English, came to the base where he was being held, he said. Gueboudj told the court that he and a group of other foreign detainees were then transferred to Iraq. He said that he had never previously been in Iraq, the trial observers reported. On October 15, a senior Iraqi official confirmed to Human Rights Watch in a meeting with Iraq’s High Judicial Council that Gueboudj was in Counter Terrorism Service custody.

The independent trial observers said that the judges at Gueboudj’s trial disregarded his testimony about never having been to Iraq, asserting that Gueboudj had stated in his confession during an investigative hearing that he was captured in the northern Iraqi city of Mosul. Gueboudj said that he had not had an effective interpreter at the investigative hearing, had no knowledge of what was in the confession from the investigative hearing, and that the contents were inaccurate. The court convicted Gueboudj hat day for illegally entering Iraq and for membership in ISIS under Iraq’s Anti-Terrorism Law, and sentenced him to life in prison.

On September 23, the case’s presiding judge told Human Rights Watch that he ignored Gueboudj’s claims because “these ISIS fighters are good at fabricating stories, so we just rely on what is in the confession.” He said there were also two witnesses to his capture in Mosul, a statement Human Rights Watch was unable to corroborate.

Ahmed Merhi, Australia

A foreign journalist who attended the trial of Ahmed Merhi, an Australian national, on September 17, said that Merhi told the Risafa Central Criminal Court in Baghdad that the Syrian Democratic Forces had captured him in Syria and that US forces had then transferred him to Iraq and handed him over to Iraqi authorities. Merhi said that he was transferred to Counter Terrorism Service custody and alleged that its officers tortured him.

The presiding judge did not respond to Merhi’s allegations of US forces transferring him from Syria but ordered a physical examination to see if Mehri had been tortured. When he reappeared in court on October 9 for sentencing on charges of terrorism and illegal entry into Iraq, his trial was postponed because authorities did not provide the requested forensic medical report, said another foreign journalist who was at the trial.

Unnamed Detainee, Nationality Withheld

A foreign journalist who attended the trial of another foreign detainee at the Risafa Central Criminal Court on October 9, told Human Rights Watch that the individual told the court that the Syrian Democratic Forces captured him in northern Syria and that US forces transferred him to Sulaymaniyah in northern Iraq. The journalist said he told the court he was held there and tortured for several months by Iraqi forces, which he did not identify by name, then transferred to Counter Terrorism Service custody in Baghdad to await trial.

The journalist who observed the trial said that the case, in which the suspect is facing charges of terrorism and illegal entry, was sent back to the investigative judge for administrative reasons. The judges did not respond to his claims of transfer or torture.

Tarek al-Khayat, Lebanon

On October 9, the Risafa Central Criminal Court in Baghdad sentenced Tarek al-Khayat, a Lebanese national, to death for membership in ISIS, a Lebanese news outlet that had a representative at the trial reported. Al-Khayat, a relative of the Australian national Ahmed Merhi, told the judge that he had travelled from Lebanon to Raqqa in Syria in 2014 to work in ISIS’s financial administration and that, after his capture, US forces transferred him to Iraqi authorities. Al-Khayat contested his conviction in court, saying that he had not “committed any acts on Iraq’s territory,” the Lebanese outlet reported. Human Rights Watch opposes the death penalty in all circumstances because of its inherent cruelty.

Australia’s News Corp reported on September 6 that Syrian Democratic Forces fighters had captured al-Khayat in the Syrian city of Hasakah in March, and that Lebanese intelligence sources said that unidentified forces had transferred him to Iraq. News Corp said that he was then handed over to US forces, who held him incommunicado “at a secret military base in Iraq,” where they interrogated him and then transferred him to Baghdad authorities.

Another source told Human Rights Watch that al-Khayat was currently in Counter Terrorism Service custody.

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