No Plan For Prisoners:
Human Rights
Watch (HRW) estimate that more than 2,600 prisoners were taken in the Mosul
operation up until March 2017. The Associated Press (AP) estimate that a
further 1,150 prisoners were taken between March and June. Local sources
estimate that a further 300 prisoners were taken in the final week of the
battle alone.
The fact that I can only give you rough estimates really illustrates the problem. No real mechanism exists to count let alone process the prisoners taken.
In this type of operation it is inevitable that people who share their name with known ISIL fighters or look like known ISIL fighters will be wrongly arrested.
The type of confusion that exists on the battlefield is really illustrated by an event that took place over the course of last week. A young woman in her late teens was taken prisoner in the tunnel network ISIL have established underneath Mosul.
Initially this woman was identified as a well known Russian ISIL sniper. Then it was claimed that she was a Chechen who'd simply been married to an ISIL fighter. Next a Yezidi family came forward convinced the woman was their daughter who'd been kidnapped by ISIL several years ago. On Tuesday (18/7/17) it was finally confirmed she's Linda Wenzel a teenager who left Germany to join ISIL back in 2016 aged 16.
Therefore the first thing that the prisoner mechanism must do is quickly establish the difference between those who can reasonably be suspected of crimes and those who have simply been wrongly arrested out of mistaken identity. After all if you'd been wrongly arrested you certainly wouldn't want to spend months rotting in prison while the mistake is uncovered.
The prisoner mechanism’s next task is to distinguish between those who can be reasonably suspected but are in fact not guilty and those who are guilty. It must then decide how to punish the guilty.
At the top end
of the scale you have those who have taken a leadership role within ISIL. These
individuals are deeply ideologically committed to the group and have directed others to
commit crimes on behalf of the group.
These leaders are joined by the foreign fighters. These are people so ideologically committed to the group that they have gone to great lengths to travel large distances to commit the worst crimes imaginable on ISIL's behalf.
Both of these groups are simply to be executed. The scale of the crimes they have committed require the most severe punishment and there is little to no chance of them ever being rehabilitated.
At the other end of the spectrum you have local people who simply have the misfortune of being in Mosul when ISIL overran the city. These people have no ideological commitment to the group and did not commit the worst crimes instead only acting in a supporting role under threat that either they or their families would be killed.
These prisoners
can probably be dealt with by what in the UK is known as a Conditional
Discharge. This means the person is convicted of the offences but receive no
punishment beyond being given a verbal warning. Essentially they're told not to
do it again.
However the fact
that the person has been convicted is noted down in a file that can be accessed
by the police and security services. That means that if the person is caught
reoffending, say by being in possession of illegal weapons their previous
conviction is taken into account meaning they receive the most serious
punishment for any subsequent offences.
For prisoners
whose crimes are not that severe but are still too severe for a Conditional
Discharge type of punishment there should be the option of a Probation type
punishment. This means that the person is convicted but then set free only with
restrictions on their behaviour for a certain period of time.
So for example
they may be prevented from leaving their homes during certain times, prevented
from travelling to certain areas entirely and prevented from associating with
certain people such as others convicted of ISIL crimes.
During this time
they are closely monitored by a probation officer or the police who they have
to meet with regularly such as weekly or even daily. As part of the monitoring
process the police are allowed to search their homes and communications etc
without cause to make sure they're not at risk of reoffending.
This type of
punishment is probably most appropriate for the families of ISIL fighters.
Although these people may not have directly participated in violent acts they
are most certainly members of an illegal armed group and have provided support
services to those who have committed serious crimes. I don't think anyone
seriously believes that significant moral and ideological differences exist between say
husband and wife.
The majority of
the prisoners though will likely fit in between these the extremes. Their
crimes are not severe enough to warrant execution but still so serious that
they have to be punished. These people will be sent to prison for a length of
time determined by the exact nature of their offences.
With a very
large number of people being sent to prison it is then important to consider
the type of prisons they will be held in.
What the Iraqis
want to absolutely avoid is prisons like Camp Bucca. This was an internment
camp established by US forces close to southern city of Basra in 2003.
Camp
Bucca is seen as crucial in the formation of ISIL. It was there that senior
ISIL figures like Abu Bakr al-Baghdadi, Abu Muslim al-Turkmani and Abu
Abdulrahman al-Bilawi etc first met while mixing with former members of Iraq's
Ba'athist military.
The problem with
Camp Bucca is that it was so badly designed it barely qualified as a prison.
Rather than
being held in cells prisoners were held in large fenced off pens with
cinder block buildings and sometimes tents providing shelters. The guards rarely
entered these large pens where hundreds of prisoners were held instead opting
to only patrol the communal areas outside of the pens.
As a result the
prisoners were free to do more or less as they pleased within the pens. This
turned it into a sort of terrorist training camp.
The other
vitally important thing is that prisoners are held in humane conditions.
Under
the system I would operate if a person’s crimes are serious enough to warrant
life imprisonment they will simply be executed. As a result every person put
into prison will at some point leave prison.
The conditions
that currently exist in Iraq's prisons are simply not acceptable.
At one detention
facility close to Mosul 114 male prisoners were being held in a single cell
measuring 4 by 6 metres/yards. That cell has no windows nor ventilation meaning
that even in spring temperatures were above 40C (100F). The cell does not have a
toilet or washing facilities. As a result many of the prisoners are ill with
conditions like Scabies.
Neither the cell
nor anywhere else in the prison has electricity. If the prisoners want to be
fed then they have to arrange for someone outside of the prison to visit them
bringing with them enough food for everyone in the cell.
If you keep
people in these conditions for any length of time they are going to get angrier
and angrier. Particularly at the government and the country that has forced
them into those conditions. When they're released that anger is going to make
it much more likely that they will return to terrorism or turn to terrorism for
the first time.
The best way I
can think of to avoid these twin problems is to operate a prison in the style
of the one illustrated in the Australian TV show; "Wentworth Prison."
Obviously the prison shown in that fictional TV does not actually exist.
However it is modelled on the Australian prison system and the TV show is certainly a lot easier to access than the design plans of actual Australian prisons.
The prison
compound is divided into blocks. So A-Block, B-Block, C-Block etc. The blocks
are divided further into units.
Each of these
units contains either six or eight small cells - one for each prisoner. In the
centre of the unit there is a communal kitchen/lounge area. This contains a
sink/wetbar, a fridge and basic cooking facilities such as a hotplate and a
kettle. This allows the prisoners to prepare drinks and snacks they've
purchased in the prison shop. There are also chairs and a TV where prisoners
can gather.
Overnight or
during a security lockdown the doors to each unit are locked. However the
individual cells are not locked unless the prisoner chooses to lock them. This
allows the prisoners within the unit to freely associate with each other. This
small amount of autonomy is important for the prisoners sense of self-respect
and rehabilitation.
During the day the
units are unlocked and prisoners in all of the block can associated with each
other during mealtimes in a communal dining, a communal exercise yard or on
work/education placements.
The important
thing though is that the prison guards are free to enter both the units and the
cells whenever they like. That makes it quite clear who is running the prison.
Obviously
building and staffing new prisons from scratch requires time, planning and
money. All things the Iraqis don't have the luxury of at the moment. However it
should be possible to improve on an easy to build camp such as Camp Bucca by
incorporating those principles.
So for example
rather than having units built out of steel and concrete you have cinder block
or wooden huts which function as the unit. They're locked from the outside and
fenced off from each other. Then separately from the units you have communal
areas such as a dining room and exercise yard. The blocks are fenced off from
each other and the entire site is surrounded by levels of fencing.
It is important
though that the number of prisoners in each unit is kept to manageable size of
no more than ten. It is equally important that prison guards regularly and
freely enter the units. This prevents the prisoners forming large groups or
gangs in which they can radicalise and train each other while making clear that
it is the guards who run the prison.
If there are
particularly difficult prisoners they can be put into solitary confinement.
Alternatively there is a tactic known in the UK as; "Ghosting."
This involves
moving a prisoner between blocks within a prison and between prisons on a
regular, weekly or monthly basis. This prevents the prisoner from forming
relationships with other prisoners who may be at risk of radicalisation. It
also serves as a form of punishment by making it much harder for the ghosted
prisoner to receive visitors and letters from home.
Although the
absence of a plan to deal with prisoners is a significant failure in the
planning for the Mosul operation the Iraqis are currently trying to make the
best of a bad situation.
Currently
prisoners from Mosul are taken to one of three detention centres around the
city. From there they are brought in front of a civilian Magistrate for what is
essentially a Habeas Corpus hearing.
If the
Magistrate is shown probable cause to prosecute the individual - normally the
testimony of two independent witnesses - the person is transferred into the
civilian justice system where they'll await trial. If that probable cause
cannot be shown then the Magistrate orders the individual released.
The problem
however is that the detention centres are operated by the military over which
the civilian Magistrate as severely limited authority. As a result numerous
reports have emerged of the detention facilities simply refusing to release
individuals who the Magistrate has ordered set free.
Reports have
also emerged of bribery leading to people who can reasonably be suspected of
ISIL crimes simply buying their way out of detention. However I should point out
that just because an individual who Mosul residents have identified as an ISIL
member is released from detention is does not mean they have bribed their way
to freedom. The Magistrate may have ordered their release for entirely
legitimate reasons.
The problem with
this current approach is that although ISIL is an illegal military organisation
it is still a military organisation. Therefore its members should expect to be
tried by a military tribunal rather than a civilian Court.
What constitutes
a military tribunal is really up to the Iraqis to decide. However typically
cases tend to be tried in front of a panel of three Judges rather than a Jury.
The burden of
proof that a military tribunal requires to convict is also something the Iraqis
are free to decide. However it is extremely unusual for a military tribunal to
require the beyond all reasonable doubt standard typically used in civilian
criminal trials. Instead they tend to rely on the balance of probabilities standard used
in cases of civil and property law.
Within a
military tribunal the accused should still be granted an advocate to present
arguments and question evidence on their behalf. However they will be given
much less option to suppress evidence on technical grounds such as whether a
search warrant was issued.
The exception to
this is evidence obtained under torture. Torture is in itself a crime under
international law. Therefore evidence obtained under torture should be
automatically excluded. Knowing that torture can cause a prosecution to fail
should serve as a strong deterrent against the Iraqi security forces using
torture. Something that is to the benefit of all Iraqis.
However military
prisoners can and should expect to be subjected to enhanced interrogation
techniques that stop just short of torture. These include things like stress
positions, sleep deprivation, sensory deprivation (hooding, solitary
confinement etc) and physical violence of the nature of slapping rather than
punching. Evidence obtained by these methods should not be excluded.
The advantage of
military tribunals is that they can operate much more quickly than civilian
trials. There's no weeks of Jury selection for example.
Based on my
incomplete figures Iraq has in excess of 4,000 prisoners to process from Mosul
alone. The Iraqi legal system also has many other challenges to face such as
lost or destroyed documents and disputes over property ownership. As a result
many of those taken prisoner face lengthy delays of years in poor prison conditions
while awaiting their cases to be resolved.
This is
particularly bad news for the innocent.
Therefore it is
better for all Iraqis for cases relating to ISIL and its military activities to
be handled by appropriate military tribunals leaving the civilian legal system
to deal with the usual civilian crimes.
The two further areas I wish to look at are the lack of planning for civilians and the lack of planning for reconstruction. However as you can see these topics are getting more complicated.
17:00 on 20/7/17 (UK date)
Edited at around 15:20 on 21/7/17 (UK date) to add;
Throughout the Mosul operation I've been saying that a plan for prisoners needs to be drawn up. However I repeatedly failed to do that because the issue is so complicated. In writing this I still don't think I made myself clear.
By saying that ISIL prisoners are military prisoners who need to be tried by military tribunals I'm not saying that they should be granted Prisoner Of War (POW) status or Political/Special Prisoner status. This would be the worst thing to do.
Firstly granting special status gives ISIL's claimed cause undeserved legitimacy and provides a focal point for their supporters to rally around.
ISIL are not a group fighting against an oppressive regime or to free a nation from foreign occupation. In fact many of them are foreign invaders who have travelled to Iraq to pursue genocide, slavery and sexual slavery. Those are not legitimate political aspirations.
Secondly special status plays havoc with the way that a prison is run by exempting special status prisoners from normal prison rules. So for example they don't have to wear prison uniforms or do prison work. Also they have to be housed alongside special status prisoners from their own group. This creates a prison within a prison that the guards don't control.
So while ISIL prisoners should be tried by military tribunal they should be housed in normal prisons mixed in with regular prisoners.
This obviously creates the risk that they will radicalise other prisoners. However the idea of keeping them in small managable groups and using tactics such as ghosting is specifically to stop this happening.
No comments:
Post a Comment