ERBIL, Kurdistan Region - Iraq will prosecute all 5,704 Islamic State (ISIS) militants recently transferred from Syria, a judiciary official confirmed on Thursday.
Last week, the United States military announced it had completed the transfer of 5,704 male ISIS prisoners from detention facilities run by the Kurdish-led Syrian Democratic Forces (SDF) in northeastern Syria. The operation lasted 23 days.
Iraq has already launched preliminary investigations into the detainees.
“We have started investigations. They already have legal cases, but their files were handled by SDF courts, which are not internationally recognized since they are not a state. We want to collect information and investigate them again. Most are foreigners; only about 470 are Iraqi,” Iraqi Foreign Minister Fuad Hussein told Rudaw’s Alla Shally on the sidelines of the Munich Security Conference last week.
An Iraqi judicial authority later confirmed to Rudaw that all transferred militants will be tried in Iraqi courts.
Of the 5,704 detainees, 467 are Iraqi nationals, 4,253 are non-Iraqi Arabs, and 983 are citizens of dozens of other countries
Legal basis for prosecution
Luma Fadhel Naif, head of research and studies at the Supreme Judicial Council’s National Center for International Judicial Cooperation, told Rudaw that foreign suspects will be prosecuted under Iraq’s Penal Code No. 111 of 1969.
The law - often referred to as the “Mother of Penal Laws” in Iraq - establishes the general principles governing crimes and punishments. Authorities are relying particularly on Article 6, which allows Iraqi courts to try foreign defendants for crimes committed outside Iraq if those crimes harmed Iraqi national security.
“The law encompasses all crimes committed outside Iraq that have a direct impact on Iraqi national security, such as terrorist crimes or joining armed organizations that pose a threat to Iraq’s security,” Naif said. “Therefore, Iraqi law applies to perpetrators when they are present within Iraq, even if the principal perpetrator of the crime is abroad.”
She added that defendants will also be subject to Iraq’s Counter-Terrorism Law No. 13 of 2005.
What is Counter-Terrorism Law No. 13 of 2005?
The Counter-Terrorism Law No. 13 of 2005 is one of Iraq’s strictest security laws. Although it consists of only six articles, its impact is sweeping.
While the law does not explicitly reference foreign nationals, it operates alongside the general penal code. Under Iraq’s legal framework, ISIS is classified as a terrorist organization that directly targeted Iraqi security. As a result, anyone who joined the group - regardless of nationality or where the act occurred - can be prosecuted under Iraqi law if their actions harmed Iraq’s national security.
The law imposes severe penalties and makes no distinction between those who carried out attacks and those who provided logistical or material support. Convictions can result in life imprisonment or the death penalty.
Public trial guarantees
Addressing concerns about due process for defendants from 61 different countries, Naif stated that Iraqi courts are bound by the legal guarantees outlined in the Code of Criminal Procedure.
Under Article 61/C, an interpreter must be provided if a defendant or witness does not understand the language used in court. Defendants also have the right to legal representation. If they cannot afford a lawyer, the court will appoint one at no cost.
Additionally, Article 152 stipulates that trial hearings must be public.
Rights of victims, including Yazidis
Naif emphasized that Iraqi law protects the rights of victims to file complaints and seek compensation if crimes committed against them are proven.
“According to Article 10 of the Criminal Procedure Code, anyone who has suffered material or moral harm has the right to file a complaint to claim their personal rights against the accused,” she said.
She also highlighted Law No. 8 of 2021, known as the Yazidi Survivors Law, which provides material and moral compensation to Yazidi survivors of ISIS atrocities and seeks to ensure a dignified life for victims.
Victims may register their testimonies as witnesses or complainants before investigative judges and courts.
Regarding the potential extradition of foreign fighters, Naif said there is no legal barrier to transferring suspects to their home countries if those governments formally request their return - provided the individuals did not commit crimes against Iraqis on Iraqi soil.