British Isis prisoners may end up in Iraq, where death sentences are handed down without due process

On a busy day, Judge Ahmed might send several men to their deaths before lunchtime.

At the Baghdad court where he works, he has presided over more than a thousand trials of suspected Isis members.

Prisoners accused of belonging to one of the world’s most brutal terror organisations shuffle through the hallways wearing bright orange jumpsuits. They wait silently outside his courtroom and listen to those who go before them.

The judge, who declined to give his name for security reasons, has seen before him unrepentant radicals and hardened killers, liars and psychopaths. He has also heard from defendants who say they joined the group just to survive.

He has seen young men from Europe, who travelled thousands of miles to join the jihadi group at the height of its power and survived long enough to see its fall. And for some time now, he has been readying himself to deal with the small number of British prisoners currently held in Syria, whose fate has been the subject of controversy.

There have been talks, he said, between Iraq and the UK government, about what to do with them.

“I am following their cases in the media, in case they are sent here. That way I know who they are,” he added during an interview with The Independent in June.

The judge listed some of the names from among the roughly 10 British men and 30 women currently being detained in Syria by Kurdish forces. Most of them were captured there in the final days of the caliphate, which fell in March last year.

The British government, fearing that the alleged Isis members pose a serious security threat, do not want their citizens to return to the UK. But the Syrian Democratic Forces (SDF), a mostly Kurdish militia that fought alongside the US and UK in the battle against Isis, says it cannot hold them forever.

One solution being pursued behind closed doors by the government and other European states is to allow for the prisoners to be sent to face trial in Iraq. In May last year, seven French citizens were sentenced to death in Baghdad after being transferred from Syria.

This solution is being pursued despite legal and human rights concerns that arise from sending prisoners to a country where they are likely to face the death penalty or be tortured.

A new report released by the United Nations last week found further evidence of major flaws in the trials of suspected Isis members in Iraq.

The Iraqi justice system has been overburdened by the sheer number of Isis-linked cases in the past few years. From January 2018 to October 2019 alone, the judiciary processed more than 20,000 terrorism-related cases, with thousands more pending as of today.

The UN investigation found evidence of an “overreliance on confessions, with frequent allegations of torture that were inadequately addressed”.

After monitoring nearly 800 trials between 1 May 2018 and 31 October last year, it said that violations of fair trial standards “placed defendants at a serious disadvantage compared to the prosecution – with ineffective legal representation and limited possibilities to present or challenge evidence”. Detainees made allegations of torture in nearly half of the terrorism cases that were monitored. And in some 59 percent of cases, defendants withdrew confessions they had made during questioning.

The report further alleged that prosecutions focused on “membership of a terrorist organisation”, without distinguishing between those who participated in violence, committed international crimes, and those who joined Isis for survival or through coercion.

The UK government has, according to some sources, sought to protect itself from the legal problems that might arise should its citizens be sent to these courts, probably in order to avoid a repeat of previous War on Terror-era cases in which it faced legal issues for alleged complicity in the torture of British citizens.

In 2010, Britain paid millions of pounds in an out-of-court settlement to former detainees of Guantanamo Bay, the US military prison in Cuba, after being accused of complicity in their torture.

In negotiations with Iraqi officials, the UK and European allies have sought assurances from Iraq’s president, Barham Salih, that he would not sign the death warrants of its citizens, according to an Iraq analyst with knowledge of the talks, and who asked not to be named. Such an agreement, it is hoped, would mean UK prisoners could be sent to Iraq without the risk of facing the death penalty.

Those negotiations have stalled in the wake of mass protests that have paralysed Iraq, and amid a harsh crackdown by security forces, the analyst said.

A government spokesperson declined to comment on the meetings, but told The Independent: “Our priority is the safety and security of the UK and the people who live here. We continue to work closely with international partners to address issues associated with foreign terrorist fighters, including the pursuit of justice against participants in terrorism overseas.

“Those who have fought for or supported Daesh [Isis] should wherever possible face justice for their crimes in the most appropriate jurisdiction, which will often be in the region where their offences have been committed.”

The spokesperson added that UK “has been clear that any justice mechanism must respect human rights and the rule of law as well as ensure fair trials and due process”.

But these talks were ongoing while serious concerns were being raised over how the Iraqi judicial system was handling the Isis trials.

A number of trials of Isis members witnessed by The Independent in June lasted for no longer than 10 minutes.

In one, a 24-year-old Iraqi named Mustafa Khalaf stood before the judge to proclaim his innocence. The court heard how he was arrested by the SDF in Baghouz, Syria, where Isis made its last stand.

The prosecution produced a report from Iraq’s intelligence service that said he was from an extremist family, and had been an active member of Isis. His name, they said, was in a central database which noted the salaries of Isis members – he was listed as a fighter.

The prosecution also presented a confession from the accused, which Khalaf denied giving. He claimed that he was trapped in Isis territory and that he had handed himself into authorities.

He was sentenced to death by hanging.

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Belkis Wille, a senior researcher at Human Rights Watch who authored several major reports on the Isis trials, found the same pattern of problems that the UN discovered.

“These trials haven’t been about accountability, they have been about revenge,” she says. “They simply do not comply with any fair trial standards.”

If they are sent to these courts, British prisoners could expect much of the same. The trials of the French citizens transferred from Syria offered some clues of how things might proceed.

“Broadly speaking, the French raised the same concerns that Iraqis were raising. What these proceedings taught us is that just because you’re a foreigner, you’re not going to get better treatment in Iraq’s system.”

For now, while discussions between the Iraqi and British government have been put on hold, European diplomats are said to be exploring the possibility of allowing the Isis prisoners to fall into the hands of the Syrian government.

Another option is the formation of an international tribunal in Syria – a solution favoured by the SDF. This faces significant roadblocks, however, due to the Russian government’s unwillingness to allow the ceding of any authority from its ally in Damascus.

The final option, advocated by rights groups and the UN, is for European countries to bring home their citizens to face justice. This is not something the British government is believed to be considering.

At a jail in northeast Syria in December, The Independent interviewed a number of British Isis prisoners who said they had not had any contact with the British authorities.

Aseel Muthana, 22, and Ishak Mostefaoui, 27, are currently being held at a jail for Isis suspects in Hasakah. Neither were aware that they had been stripped of their citizenship, and were unaware of what would happen to them.

Muthana, who was 17 when he joined Isis, said he believed he should be allowed to face justice in the UK.

“Honestly, I understand. Looking from their perspective, them not seeing what was happening inside Syria, I can understand why anybody wouldn’t want us to come back. Me, for example, being in Syria for six years, coming back, you don’t know what I’m gonna come back with, what he’s been taught, what he’s capable of,” he said.

“But then, they should be understanding too. When it comes to rapists or murderers or people who commit major crimes that the UK is more than happy to help them rehabilitate or reconcile their lives, fix things, make things better again, give them a second chance.”

It is more likely, still, that he will find himself before Judge Ahmed than in a British court.