Prosecuting ISIL Fighters in Iraq: The Available Judicial Mechanisms

This paper investigates the judicial options for the prosecution of ISIL fighters who are accused of perpetrating core international crimes of genocide, crimes against humanity and war crimes. Problematically, although prosecuting ISIL suspects ought to be understood as both a national and international issue to account for the ‘dual nature’ (i.e. both national and international) of ISIL’s offences, the judicial mechanisms currently being utilized have not achieved justice for ISIL’s victims, who have not received adequate reparations. None of the ISIL suspects have yet been tried before an international criminal tribunal with the competence to convict them for the commission of core international offences. They are tried inefficiently, and still, before the domestic courts under counterterrorism laws for committing terrorist crimes, not for perpetrating core international crimes. Methodologically, this paper uses a normative juridical research method to analyze the international and domestic criminal legal texts and then compares them with the situation on the ground. The paper is restricted to the core international crimes that were perpetrated against minorities and other civilians in Iraqi provinces under ISIL influence during the period when they were engaged in the armed conflict between 2014 to 2017 against Iraqi and Kurdistani regular armed forces (Peshmerga) and anti-ISIL international coalition forces. The main objective of this paper is to characterize the legal issues in question and to find one of the best prosecutorial options for intensifying internal and international judicial cooperation in order to hold perpetrators accountable for their crimes, bring a measure of justice to victims, apply the international criminal law effectively, and hopefully prevent the future recurrence of such heinous offences.