An ISIS suspect held for questioning by Iraqi forces near Mosul.

© 2016 Safin Hamed/Getty Images

Last week, the US-backed Syria Democratic Forces (SDF) transferred at least 280 suspected Islamic State (ISIS) members to Iraq, following their arrest in Syria. Though the detainees are overwhelmingly Iraqi, there were reportedly at least thirteen French ISIS suspects among them. Their transfer to Iraq raises a critical issue: where exactly should these detainees be held?

On February 25, Iraqi President Barham Salih announced that the Iraqi justice system would be prosecuting at least thirteen French ISIS suspects “according to Iraqi law.” His statement marks the first transfer of foreign ISIS suspects to be publicly recognized by the Iraqi government, and also comes after many European government have refused to bring home and prosecute their nationals who joined ISIS.

Iraq’s judiciary convened on February 28 to discuss how it would “examine the cases of terrorism suspects – both national and foreign – recently handed over to Baghdad by the SDF.

Despite Salih’s assurance that Iraq is acting within the confines of international law, the record of previous ISIS trials in Iraq shows that these transfers may instead violate it, as detainees risk torture in detention. Furthermore, detainees are subject to unfair trials that could still end in the death penalty. Human Rights Watch opposes the death penalty in all countries and under all circumstances, but in Iraq, where the trials of ISIS suspects fail to meet even the most basic markers of due process, its application is particularly concerning.

Until now, trials of ISIS suspects in Baghdad, which have lasted as short as 5 minutes, have consisted of a judge interviewing the suspect, usually relying on a confession, often coerced, with no effective legal representation. Authorities have also made no efforts to solicit victim participation in the trials, even as witnesses.

It would be galling if France, a member of the European Union, with a key foreign policy goal of eradicating the death penalty globally, did not speak out publicly even as its citizens risk prosecution and death in unfair trials that deny victims their day in court. Any country allowing Iraq to receive and prosecute its citizens should press the government to take urgent measures to improve the quality of these prosecutions. Otherwise, it should take its nationals home and investigate and, if appropriate, prosecute them in trials that meet internationally-accepted fair trial standards.