After ISIL: Justice and Protection for Children in Iraq
In 2014, a child suicide bomber attacked the funeral ceremony of a tribal leader from Anbar, Iraq.[i] The boy was one of thousands of the “Lion Cubs of the Caliphate”—children recruited and exploited by the Islamic State in Iraq and the Levant (ISIL). Throughout its military campaign, ISIL websites and social media showed children serving in a wide range of operations, from conducting street patrols to acting as paid informants and, in many cases, serving as combatants or suicide bombers.[ii] [iii]
ISIL recruited children through a variety of means, including abducting children from orphanages and hospitals, or offering to pay parents hundreds of dollars a month in exchange for each child’s attendance at military training. Additionally, child soldiers were often taken from particular ethnic groups or religious communities, such as Yazidis and Christians, as a means to terrorize these groups.[iv][v]
Since the territorial collapse of ISIL began in 2017, many of these child soldiers have defected; some fled ISIL territory and are living anonymously in Europe while others returned to their home countries. Debates about how national legal systems should handle these former child soldiers have arisen in all of these jurisdictions. In Iraq, which has dealt with a particularly large number of former ISIL child soldiers, there have been concerns about the national justice system’s capacity to adequately address the prosecution and rehabilitation of ISIL’s former child soldiers.
Iraq’s legal mishandling of former child soldiers
The Iraqi government is overwhelmed by the high volume of suspected ISIL members and affiliates, which has led to improper legal handling of former child soldiers and numerous human rights violations. In 2015, the United Nations (UN) Committee on the Rights of the Child reported that child relatives of ISIL suspects had been “illegally arrested, held without charge or charged with covering up terrorist acts.”[vi] Human Rights Watch reported that many children charged under the counterterrorism law were “being held in Baghdad for months in adult counterterrorism facilities…while at the same time the primary juvenile facility in the city was holding more than double its capacity of child detainees.”[vii] Children detained for terrorism-related crimes “lack access to education and to appropriate psychosocial or specialized care.”[viii] There have also been reports of children detained in extrajudicial facilities of the National Intelligence Service, living in harsh conditions without adequate food, sanitation and ventilation.[ix] Recent reports indicate that children charged with terrorism–related crimes were being transferred to death row upon turning 18 years old; often their families unaware that the child was even detained.[x]
Iraq does have some legal measures in place to handle children who have committed felonies. However, due to the sheer number of cases these measures have not been properly followed. According to the Third Edition of the Iraq Penal Code, juveniles between 15 and 18 are considered to be “a young person” and not a child. A child who commits a felony should be confined to a “reform school” for two to five years for a felony normally punishable by a death sentence or life imprisonment.[xi] Additionally, it states “no person between the ages of 18 and 20 at the time of committing an offense can be sentenced to death.”[xii]
Furthermore, Iraq’s Juvenile Care Law of 1983 established a Council of Juvenile Welfare that “provides the legal framework for investigating, adjudicating, and rehabilitating juveniles in contact with the law,” with an emphasis on preparing youth for their release and reintegration.[xiii]
These legal commitments have not been enforced in areas outside of government control in Iraq. Even in areas within its jurisdiction, the government has implemented laws haphazardly and without adequate funding. Moreover, as Iraq is not party to the Rome Statute of the International Criminal Court (ICC), international crimes defined under this statute, such as war crimes or genocide, are not criminalized under domestic law.
Support from the United Nations
Efforts to hold accountable those who committed crimes under ISIL are progressing. The UN Security Council recently formed an investigation team to support the Iraqi government’s efforts to hold ISIL responsible for war crimes, crimes against humanity and genocide.[xiv] This team will assist the fact-finding mission of the Office of the High Commission for Human Rights to Iraq.[xv]
Since May 2015, the Iraqi Parliament has partially implemented UN Security Council Resolution 1325 that “established a coordination mechanism to recover victims exploited by [ISIL] and provide survivors with protection, rehabilitation, compensation, and other forms of support.”[xvi] According to the US government, Iraq used this compensation program to provide financial assistance to 700 Yezidis who had been ISIL captives.[xvii]
The United Nations is also working with Iraqi authorities to establish an Inter-Ministerial Committee on Grave Child Rights Violations.[xviii] This Committee will provide “a forum for dialogue, to promote preventative action and to provide response to issues related to children and armed conflict.”[xix] As Iraq is not party to the ICC, suspected perpetrators of war crimes, such as conscripting or enlisting children under 15 years old, are primarily being held and tried under the national counterterrorism law, which does not account for the gravity of some of the suspected crimes committed under ISIL.
Pursuing restorative justice mechanisms
ISIL violated international, national, regional and tribal law when it recruited children to participate in its armed conflict. With ISIL’s loss of territory in Iraq, the rush to enact justice against perpetrators of these abuses has overlooked the status of children and the need to tailor treatment specifically to child soldiers who survived a brutal occupation.
Restorative justice measures, such as mediation or community-based restitution, may be more effective methods for prioritizing reconciliation, acknowledging the individual circumstances of each child, preventing further stigmatization, preserving the dignity of the child, and targeting the underlying causes of the conflict.
More robust transitional justice mechanisms for children associated with armed groups have had some success in countries like Liberia and Uganda. Liberia employed a Truth and Reconciliation Commission (TRC) that emphasized both local ownership and children’s participation throughout its processes, such as awareness-raising workshops, voluntary child-statement taking, national institutional hearings and a children’s gallery displaying their writings and artwork.[xx]
In Uganda, transitional justice systems were used to enhance accountability and community reconciliation for children associated with the Lord’s Resistance Army. Uganda combined several layers of judicial and non-judicial means for achieving reconciliation for children above the age of criminal responsibility (12 years old), including amnesty for some and a traditional reconciliation ceremony for others. The process included “confession, mediation and payment of compensation,” and had some success at decreasing stigmas against these children. [xxi]
Similar transitional justice initiatives may be successful in Iraq, particularly in some semi-urban and rural areas where customary Sunni tribal law is more prominent and has established dispute resolution mechanisms.[xxii]
However, there are numerous challenges these initiatives would have to overcome. First, retributive actions have been common in areas where the Iraqi government’s capacity to enforce the law is tenuous. In lieu of government protection, several tribal agreements have sanctified extrajudicial justice and reparations against families associated with ISIL through killing, property confiscation or destruction.[xxiii] Second, anti-ISIL forces and paramilitary units have also reportedly employed child soldiers, leading to inevitable asymmetries in the application of restorative justice. Third, guaranteeing confidentiality and neutral justice for children, a challenge faced by non-judicial proceedings in Uganda[xxiv], would also be difficult given the stigma already attached to families associated with ISIL and the gravity of some of the children’s actions. Finally, the continued mass displacement of communities occupied by ISIL complicates the application of community restorative justice for children.
If Iraq hopes to pursue these community-level transitional justice mechanisms, Iraq’s leaders must first address the aforementioned challenges. Additionally, they must expend the political capital required to convince communities that restorative justice will be more effective than retribution in breaking the cycles of violence associated with ISIL. Given its gaps in capacity and the upcoming national elections, the government’s willingness to invest in these more ambitious transitional justice mechanisms appears implausible.
Reforming the national justice system to better protect children
In lieu of pursuing full-fledged transitional justice mechanisms, the Iraqi government must strengthen protections for children within its national justice system. This includes funding separate facilities for children suspected of terrorism, ensuring these children receive psychosocial assistance and counseling, providing them with easy and immediate access to legal assistance, and using detention as a last resort. Detention areas with children must be transparent and accessible to human rights groups, and the government must disseminate specific data about the numbers of children detained and their accused crimes. The arbitrary detention of children affiliated with ISIL, but not accused of serious crimes, must end, particularly if their detention is only due to familial connection with the terrorist group. The Iraqi government must work with tribal leaders to ensure children associated with ISIL are not subject to exile or discrimination.
The Iraqi government must also take into account international law and guidance regarding the rights of children. The government must adhere to international law and its own penal code to prohibit the death penalty or life imprisonment for persons who committed crimes below the age of 18. Alternatives to the prosecution and detention of children must be considered, in line with the need for social reintegration mechanisms advised in the UN Convention on the Rights of the Child.
The Iraqi government must also strengthen protection and accountability systems for children impacted by internationally recognized crimes under ISIL, such as war crimes and genocide. National initiatives must be reinforced to support mental health, psychological, medical, and legal assistance for these children.[xxv] Furthermore, clarification on Iraq’s anti-trafficking laws is needed to ensure trafficking victims are not punished for crimes such as child soldiering. Specialized child sensitivity and awareness training must be improved and provided to all actors engaging with child victims of abuse under ISIL, including humanitarian agencies and NGOs, lawyers and judges, and law enforcement.
Ultimately, to hold ISIL’s perpetrators of child soldier recruitment accountable and to fully protect the child victims over the long term, the Iraqi government must dedicate more financial and technical resources to implementing its national and international legal obligations. With persistent international scrutiny and support, the best interests of the Iraqi children impacted by ISIL’s ruthless regime may yet be achieved.
[i] “Report of the Secretary-General on Children and Armed Conflict in Iraq,” November 9, 2015. http://www.un.org/ga/search/view_doc.asp?symbol=S/2015/852&Lang=E&Area=UNDOC.
[ii] “Mosul_report 17Oct2016-10Jul201731 October_2017.Pdf,” accessed January 23, 2018, https://reliefweb.int/sites/reliefweb.int/files/resources/Mosul_report%2017Oct2016-10Jul201731%20October_2017.pdf.
[iii] “Children of the Caliphate – Foreign Policy,” accessed January 23, 2018, http://foreignpolicy.com/2014/10/24/children-of-the-caliphate/.
[iv] Please note that for brevity, this paper will be using the term “child soldier” to refer to UNICEF’s term: “children associated with armed forces”. “Child Recruitment by Armed Forces or Armed Groups | Child Protection from Violence, Exploitation and Abuse | UNICEF.” UNICEF.org, March 22, 2011. https://www.unicef.org/protection/57929_58007.html.
[v] Pamela Engel, “‘Sometimes the Gun Is Taller than the Kid’: How ISIS Uses Schools to Indoctrinate Children,” Business Insider, accessed January 23, 2018, http://www.businessinsider.com/how-isis-recruits-and-indoctrinates-children-2015-12.
[vi] United Nations High Commissioner for Refugees, “Concluding Observations on the Report Submitted by Iraq under Article 8, Paragraph 1, of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict,” Refworld, accessed January 23, 2018, http://www.refworld.org/docid/562de3404.html.
[vii] Human Rights Watch | 350 Fifth Avenue, 34th Floor | New York, and NY 10118-3299 USA | t 1.212.290.4700, “Flawed Justice | Accountability for ISIS Crimes in Iraq,” Human Rights Watch, December 5, 2017, https://www.hrw.org/report/2017/12/05/flawed-justice/accountability-isis-crimes-iraq.
Avenue, York, and t 1.212.290.4700, “Flawed Justice | Accountability for ISIS Crimes in Iraq.”
[viii] Ibid. Refugees, “Concluding Observations on the Report Submitted by Iraq under Article 8, Paragraph 1, of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.”
[ix] Ibid. Refugees, “Concluding Observations on the Report Submitted by Iraq under Article 8, Paragraph 1, of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.”
[x] Ibid. Refugees, “Concluding Observations on the Report Submitted by Iraq under Article 8, Paragraph 1, of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.”
[xi] “Iraq – Law No. 28 of 2012 Combating Trafficking in Persons.,” accessed January 23, 2018, http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=94253&p_country=IRQ&p_count=232&p_classification=04&p_classcount=6.
[xii] Ibid. “Iraq – Law No. 28 of 2012 Combating Trafficking in Persons.”
[xiii] Ian Catlett, “Juvenile Justice in Transition: Past Challenges and New Opportunities in Post-Conflict Iraq | The Journal of Humanitarian Assistance,” accessed January 23, 2018, https://sites.tufts.edu/jha/archives/787.
[xiv] “Investigating Conflict-Related Sexual and Gender-Based Crimes—lessons from Iraq and Syria,” ReliefWeb, October 26, 2017, https://reliefweb.int/report/syrian-arab-republic/investigating-conflict-related-sexual-and-gender-based-crimes-lessons.
[xv] Ibid. “Investigating Conflict-Related Sexual and Gender-Based Crimes—lessons from Iraq and Syria.”
[xvi] “Iraq: 2017 Trafficking in Persons Report.” U.S. Department of State: Office To Monitor and Combat Trafficking in Persons. Accessed February 1, 2018. http://www.state.gov/j/tip/rls/tiprpt/countries/2017/271208.htm.
[xvii] Ibid. US Department of State.
[xviii] UN Assistance Mission for Iraq, “Briefing to the Security Council by SRSG for Iraq Ján Kubiš, New York, 22 November 2017 [EN/AR],” ReliefWeb, November 22, 2017, https://reliefweb.int/report/iraq/briefing-security-council-srsg-iraq-j-n-kubi-new-york-22-november-2017-enar.
[xix] Ibid. UN Assistance Mission for Iraq.
[xx] Parmar, Sharanjeet, Mindy Jane Roseman, Saudamini Siegrist, and Theo Sowa, eds. “Children and Transitional Justice.” UNICEF, March 2010.
[xxi] Ibid. Parmar.
[xxii] UN Aassistance Mission for Iraq, “Briefing to the Security Council by SRSG for Iraq Ján Kubiš, New York, 22 November 2017 [EN/AR],” ReliefWeb, November 22, 2017, https://reliefweb.int/report/iraq/briefing-security-council-srsg-iraq-j-n-kubi-new-york-22-november-2017-enar.
[xxiii] Refugees, United Nations High Commissioner for. “Tribal Conflict Resolution in Iraq.” Refworld, January 15, 2018. http://www.refworld.org/docid/5a66f84f4.html.
[xxiv] Ibid. Parmar. Page 280.
[xxv] Parmar, M. Roseman, J. Mindy, S. Siegrist, T. Sowa /eds.), Children and Transitional Justice: Truth-Telling, Accountability and Reconciliation, Chapter 1, Harvard University Press, 2010. https://www.unicef-irc.org/publications/587/