Jihadists in the East: the case of French citizens
facing the death penalty in Iraq
For several years, individuals from all over the world have joined the ranks of the Islamic state in the Levant region, particularly in Syria, in tens of thousands.
France is by far the European country with the most jihadists in the Levant, followed by others, such as the Netherlands, Sweden, Germany, Belgium and Great Britain.
According to the French authorities, there are now 318 men, 200 women and more than 300 alleged minors living in Syria. According to the International Committee of the Red Cross, there are about 490 French people still in Syria.
Since the end of 2017, ECPM has repeatedly denounced the risk of the death penalty for French jihadists in the Levant region and the lack of a clear position of the French authorities on the issue.
Thus, in early 2018, ECPM sent several advocacy letters and met with the French authorities with the main demand being to ask France to clearly and publicly express its opposition to the application of the death penalty in all circumstances and to implement its obligations under international law. From March 2018, ECPM issued several press releases and information notes reviewing the situation of the French in Iraq and the position of the French authorities, reversing the conviction of French and Germans who fought in Le Levant. ECPM also made an oral statement at the 37th session of the UN Human Rights Council following the report published by the Special Rapporteur on the protection of human rights while countering terrorism. Since the beginning of 2019, ECPM has issued two press releases, the first reminding European states of their opposition to the death penalty in all circumstances and the need to repatriate and try their jihadist nationals in Le Levant to their countries of origin; the second, dated 28 May, follows the death sentence imposed on French nationals by the Iraqi authorities.
In February 2019, thirteen people were transferred from Syria to Iraq. One of these persons was released without proceedings against him, another is a Tunisian national with a residence permit in France and eleven are French nationals. Today we return to the death sentences handed down by the Iraqi courts against the eleven jihadists.
10 questions to better understand the situation of the French citizens sentenced to death in Iraq
Eleven Frenchmen were sentenced to death by the Iraqi courts between 26 May and 3 June 2019. They were part of a group of 280 people arrested by the Syrian Democratic Forces (FDS, Kurds), allies of the international coalition against Daech (Islamic State). In October 2018, the authorities of Rojava (Syrian Kurdistan) called on the international community to repatriate their nationals arrested in Syria, citing their lack of institutions and means to keep them in detention and to try them properly. "We are not calling on France to repatriate them as we are doing for other countries," said Khaled Issa, North Syrian representative in Paris. In February 2019, the FDS therefore handed over the French jihadists to the Iraqi authorities in a "coordinated operation between the international coalition and Iraqi intelligence services", according to a source close to the case. They were then tried and sentenced to death by a Baghdad court. They now have the possibility to appeal against their conviction within 30 days, before it becomes final.
Most of these French people are in their thirties, and joined Syria, often with their families, in 2013-2014. However, not all of them have exactly the same profile and did not occupy the same role within the organization. Some had been active for a long time before joining Syria, particularly in propaganda and mobilization networks on the Internet, and known to the intelligence services. Some were prosecuted and/or sentenced in France in their absence to several years in prison. They often maintained close relations with other French jihadists who had participated in the organization of terrorist attacks in France. Others claim to have had a more subordinate role in the Islamic state (e.g. as an "administrative official" or "care assistant") and to have regretted having joined Syria without being able to leave it; several have surrendered themselves to the Syrian Kurdish forces (including one in 2017, on the advice of the DGSE).
Hundreds of French people (including women and children) remain detained in Iraq and Syria by the FDS. Their situation and future are still unknown.
1] Allan Kaval, "Les Kurdes demandent le départ des djihadistes étrangers détenus en Syrie", Le Monde, 8 October 2018.
2] Madjid Zerrouky, "Iraq will judge thirteen alleged French jihadists captured in Syria", Le Monde, 25 February 2019.
3] Le Monde with AFP, "Who are the eleven French jihadists sentenced to death in Iraq? ", Le Monde, June 3, 2019.
The French who joined Daech's ranks often left with family members (close relatives, women, children), or founded one there. The French authorities have stated that the repatriation of women and especially children will be carried out "on a case-by-case basis". Only six children were repatriated in March 2019. Faced with the French State's reluctance to repatriate others, the National Consultative Commission on Human Rights launched a formal appeal for their return to be speeded up and the case brought before the European courts. On 9 June 2019, the Kurdish authorities handed over to a French delegation about ten children of French jihadists presumed orphans. Among them are reportedly two children of one of the French nationals sentenced to death.
In addition, the (French) families of French jihadists suffer a double penalty in France. They are most often helpless, without news of their relatives for several years, with enormous difficulty in obtaining information on their situation from the French authorities. These families are very isolated: they cannot tell anyone (often not even their relatives).
Despite representations made to the Human Rights Defender, Members of Parliament, the Ministry of Foreign Affairs or the Presidency of the Republic, they have received little attention and information from the authorities.
They are often not psychologically cared for, and do not always have the means to pay for a lawyer, particularly the lawyer's travel expenses to Iraq. These families are therefore also victims of the situation and must be able to be supported.
1] Le Monde with AFP and Reuters, "The return of French jihadists and their families will be examined on a case-by-case basis," says Macron, Le Monde, November 9, 2017.
2] Hélène Sallon, "Il y a danger de mort pour ces mineurs": la France exhortée à rapatririer les enfants de djihadistes, Le Monde, 29 May 2019
3] Luc Mathieu and Frédéric Autran, "Douze enfants de jihadistes rapatriés en France", Libération, 10 June 2019.
The eleven French nationals sentenced to death were arrested in Syria by the Syrian Democratic Forces, allied Kurdish forces of the international coalition fighting the Levant against the Islamic State. These forces do not belong to an independent state and therefore have no legitimate institutions capable of prosecuting members of the Islamic state. As for Syria, it is in the grip of several armed conflicts on its territory. France has cut off all diplomatic relations with Syria since 2012 and no longer recognizes its institutions. Its institutions have neither the legitimacy, nor the capacity, nor the will to judge the French jihadists arrested in Syria.
Iraq and its institutions are recognized by France and more broadly by the international community. The French authorities have established as a matter of principle the fact that French nationals transferred to Iraq will not be repatriated and will therefore have to be tried in Iraq, under Iraqi territorial jurisdiction over crimes committed on its territory. This principle has been reaffirmed on several occasions by the French authorities, in particular by Jean-Yves Le Drian, Gérard Collomb and Florence Parly.
1] Hélène Sallon and Elise Vincent, "Captive jihadists, the impossible return? ", Le Monde, n°22672, December 4, 2017, p. 8.
2] Hervé Gattegno, Stéphane Joagny and David Revault d'Allonnes, "Gérard Collomb on the terrorist threat: "We are better armed than in 2015", lejdd.fr, 11 November 2017.
3] Grégoire Biseau, Pierre Alonso and Luc Mathieu, "Florence Parly : "There are those who are ready to give their lives for their country and others", Libération, 14 January 2018, pp. 12-13.
While Iraq can be considered competent to judge foreign jihadists, this does not mean that France should ensure that all its international obligations towards its nationals are respected.
Under the 1963 Vienna Convention on Consular Relations, ratified by France and Iraq, French nationals detained in Iraq are entitled to what is known as consular protection (or assistance). Under European Council Directive (EU) No. 2015/637 of 20 April 2015, every European citizen should be entitled to consular protection by a Member State of the Union if he is not represented by the country of which he is a national.
In practice, this means that the Iraqi authorities have an obligation to notify the detention of French citizens, and to ensure their right to be in contact with the French consular authorities. The latter are entitled at all times to ensure respect for the fundamental rights of their nationals, in particular respect for minimum standards of detention conditions and the fair conduct of judicial proceedings; to provide them with access to a lawyer and an interpreter; or to prevent and facilitate contact with (and possibly visits from) their families and French lawyers.
The French authorities have assured that they have put in place consular protection for French nationals detained in Syria and Iraq, including the eleven who have been sentenced to death. Nevertheless, they have been very cautious about passing on information to their French lawyers and especially to the families of jihadists, whom they have only met very recently.
In addition, France has ratified many international and regional human rights instruments that commit it to promoting the abolition of the death penalty. In particular, it has ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (OP2), which provides in its article 1 that "No person within the jurisdiction of a State Party to this Protocol shall be executed. 2. Each State Party shall take all appropriate measures to abolish the death penalty within its jurisdiction. It has also ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms and its 13th Additional Protocol, which prohibits the death penalty in all circumstances. France has also been a leader in the fight for the universal abolition of the death penalty for many years. It has made numerous commitments to support the Iraqi authorities in strengthening human rights and abolishing the death penalty, in particular in the context of the cooperation agreement between the European Union and Iraq voted by the European Parliament in 2018.
Finally, it is important to note that France does not respond to any extradition request when there is a risk of a death sentence, regardless of the person's nationality, in particular in accordance with the case law of the European Court of Human Rights. It therefore seems rather paradoxical that it accepts the transfer and trial of its own nationals in a country practising and applying the death penalty.
1] United Nations, Vienna Convention on Diplomatic Relations, Treaty Series, vol. 596, 24 April 1963, p. 261.
2] Article 11 of Decree No. 2016-680 of 25 May 2016 publishing the Partnership Agreement for Cultural, Scientific and Technological Cooperation and Development between the Government of the French Republic and the Government of the Republic of Iraq, signed in Paris on 16 November 2009: "As part of the reforms implemented by the Iraqi Government, cooperation actions shall be implemented, at the request of the Iraqi Party, in the field of support for democratic governance, the rule of law and the modernisation of the public sector. These actions can take the form of training sessions, exchanges of visits and technical partnerships. They may also take the form of expertise contributing to the definition and implementation of sectoral public policies".
3] Soering v. the United Kingdom, European Court of Human Rights, No. 14038/88, 7 July 1989.
Internationally guaranteed, the right to a fair trial is based in particular on the principle of the presumption of innocence, the independence and impartiality of judges, adversarial debate - i.e. during which all parties are heard and all arguments clearly discussed; and respect for the rights of the defence and in particular access to a lawyer at all stages of the proceedings (from arrest to trial) and in possession of all the necessary means to defend themselves.
This fundamental right of everyone has been enshrined in the Universal Declaration of Human Rights (Article 10), the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6) and the International Covenant on Civil and Political Rights (Article 14) - a binding instrument ratified by France and Iraq.
The Universal Periodic Review (UPR) is a process that aims to assess, on a periodic basis, the human rights situation in each UN Member State by the Human Rights Council (HRC). Since its first UPR, the human rights situation in Iraq has deteriorated.
On 3 November 2014, Iraq's second UPR was held in Geneva. On this occasion, many States expressed their views on Iraq's violations of the right to a fair trial. Switzerland, supported by Norway and the United Kingdom, deplored these systematic violations by calling on Iraq to fully ensure the right to a fair trial.
Although Mr. Jean-Yves Le Drian, Minister of Foreign Affairs, recently described the trials at the end of which the eleven French were sentenced to death as "fair", the Permanent Representative of France in Geneva had himself, on the occasion of the November 2014 UPR session, issued recommendations to Iraq: Establish a moratorium on the death penalty with a view to its abolition; ensure access to fair judicial procedures for all Iraqis; reform the security and prison systems; put an end to extrajudicial executions, arbitrary detentions and the practice of torture; ratify the Optional Protocol to the Convention against Torture.
Many reports from NGOs, the United Nations and lawyers report significant violations of human rights and specifically the right to a fair trial, particularly during trials for membership of the Islamic State. Judges cannot act in complete independence, and do justice in fear of reprisals in the event of a verdict deemed inadequate by the rest of the population. This is all the more true for defence lawyers, who are subject to numerous threats. Accused persons are therefore provided with a lawyer, most often appointed under duress, who is present only at the trial but absent during the arrest and investigation. Lawyers often did not know about the case or the clients before the trial and therefore have no opportunity to prepare. Trials are usually very short, without presenting all the elements and arguments of the defence. Judges impose sentences on the basis of confessions rather than corroborating evidence, even though confessions can be obtained under torture, the regular use of which has been reported in many NGO reports. This was also confirmed by the testimony of a Frenchman sentenced to death.
It is also necessary to recall that, under Iraqi law, the mandatory death penalty is imposed on any person who has committed, incited, planned, financed or assisted in any way in the commission of a terrorist act. There is therefore no gradation of facts and penalties: a nurse working in a hospital controlled by the Islamic State may be sentenced to death on the same basis as a member in the field. Thus, despite their claims that they had never participated in the fighting itself, several Frenchmen were sentenced to death.
In summary, the death sentences of jihadists were handed down on the basis of allegations of facts that were not clearly stated, discussed or proven, following trials that were usually expeditious and did not respect a number of the defendants' fundamental rights. These procedures are therefore contrary to all the international instruments ratified by France and Iraq.
1] French Ministry of Justice, The Right to a Fair Trial.
2] Alkamara, "Iraq: 229 UN Recommendations to Address Serious Human Rights Violations""
These recommendations only reiterate those already made at the Iraq UPR in February 2010. Indeed, in the context of the Report of the Working Group on the Universal Periodic Review of Iraq of 15 March 2010 (A/HRC/14/14), several States issued recommendations on respect for the right to a fair trial. Some States have recommended that Iraq adhere to international standards for fair trials (Ghana); others have acknowledged or expressed concern about the failure of courts to comply with minimum fair trial standards (Austria, Slovakia); and the latter recommend the elimination of violations related to the right to a fair trial and the implementation of all necessary measures to guarantee and ensure this right (Australia, Netherlands, Bosnia and Herzegovina, Norway).
4] See in particular: Human Rights Watch, "Flawed Justice: Accountability for ISIS Crimes in Iraq", December 2017; Amnesty International, "Report 2017/18, The State of the World's Human Rights", p. 232.
5] Pierre Bouvier, "Les procès des djihadistes français soulignent les failles du système judiciaire irakien", Le Monde, 6 June 2019.
6] Simona Foltyn, "Inside the Iraqi courts sentencing foreign Isis fighters to death", The Guardian, 2 June 2019.
7] Le Monde with AFP, "Who are the eleven French jihadists sentenced to death in Iraq? ", Le Monde, June 3, 2019.
In order to ensure them a fair trial and to avoid the application of the death penalty, contrary to France's commitments at the international level and towards its citizens, many NGOs, families of jihadists but also families of victims of terrorist attacks are asking for their repatriation to France. Indeed, in addition to its international obligations (see above), France has a moral obligation to protect human rights and to combat the death penalty, particularly with regard to its nationals, including in the context of the fight against terrorism. Moreover, although Iraq is entitled to try any person, regardless of nationality, for crimes committed on its territory, France also has jurisdiction over its nationals. On the one hand, the suspects are of French nationality (active personal jurisdiction of France provided for in Article 113-6 of the Criminal Code). On the other hand, some of the offences have started in France (France's territorial jurisdiction allowing it to open numerous investigations against many of its nationals). Finally, French law applies to acts of terrorism committed by a Frenchman abroad (article 2 of the 2012 Anti-Terrorism Act and article 113-13 of the Criminal Code) and article 689 of the Code of Criminal Procedure provides that terrorist acts are offences that can be tried by France, even committed abroad. Under the Second Optional Protocol to the International Covenant on Civil and Political Rights, France is therefore under an obligation to take action against the death penalty and, a fortiori, the execution of its nationals, who fall within its jurisdiction.
In addition, the French judiciary has an adequate legal arsenal to prosecute and convict its nationals, especially since French judges probably have more evidence to support cases than their Iraqi counterparts, as Marie Dosé, a lawyer for families of French citizens detained in Syria, points out. Finally, a trial in France would make it possible to hear and possibly understand and learn about the motivations of these French people who have left to join the ranks of the Islamic State, as well as about the functioning of the organisation and any other useful information in the context of the fight against terrorism.
1] France has several specialized courts: the anti-terrorist prosecutor's office, the crimes against humanity and war crimes unit of the Paris Tribunal de grande instance and the Special Assize Court on terrorism.
2] Pierre Bouvier, "Les procès des djihadistes français soulignent les failles du système judiciaire irakien", Le Monde, 4 June 2019.
The trials in Iraq as they are taking place can never provide the victims of terrorism with the truth, confrontation, responsibility, recognition of their status as victims or even a space for them to understand the horror they have experienced and to obtain answers. The current situation of French jihadists sentenced in Iraq is thus opposed to the demands of the victims and associations. This situation does not guarantee the need to establish truth and justice for the whole society. Whether they are French, European, Syrian, Kurdish, Yezzidi, the victims want above all to understand, to know and to see justice done.
A large proportion of the victims, including Guillaume Denoix De Saint-Marc, director of the French Association of Victims of Terrorism (AFTV), is hostile to the death penalty for those Frenchmen convicted in Iraq. On 29 May, he expressed the wish that the death penalty be "commuted to life imprisonment". The same association called for the trial and sentencing of jihadists while respecting their fundamental rights and recalled its "deep opposition to the death penalty", which considers this punishment "barbaric" and has no dissuasive effect. According to Guillaume Denoix De Saint-Marc, certain values should not be abandoned "on the pretext that they have been plundered" by jihadists.
Guillaume Denoix De Saint-Marc specified that the victims would like the individuals to be heard by the French authorities, that the trials take place in France, in particular because these persons are also cited in cases on which the Association has filed a civil claim. As AFTV has pointed out, "Many grey areas remain to be clarified in many attack procedures in France and against French people abroad"; "Executing these jihadists will not allow our societies and the victims of terrorism to understand the reasons for their departure and the ramifications of their organisation". If the executions took place, even though international arrest warrants had been issued against certain French jihadists tried abroad, this would prevent French justice from functioning, from obtaining answers as to the participation of these individuals and from understanding the "system" of the movement to which these jihadists belong.
Like the Special Tribunal for Lebanon, the only international criminal court competent to try terrorist crimes, the creation of an international tribunal is increasingly being discussed at European level. This idea is far from simple to implement. Indeed, in addition to being very costly, the establishment of such a jurisdiction would probably take several years and would require a more precise definition of terrorist crimes at the level of international law, even though there is no consensus on the concept. In addition, the question of its location is extremely complicated to resolve. To be as close as possible to the places where the abuses were committed, to the victims and witnesses, an international tribunal should sit in the Levant region. As Syrian Kurdistan is not a recognised state and Syrian institutions are not in a position to do so, only Iraq remains. However, Iraq does not currently have the stability and the necessary means to receive it, especially since such an exceptional jurisdiction is prohibited by the Iraqi Constitution. The possibility of an international tribunal in Iraq is therefore far from being established, and can under no circumstances respond to the urgency of the situation.
In addition, France, being a party to the Rome Statute which gives jurisdiction to the International Criminal Court (ICC) to try international crimes, has contributed, together with the European Union and the Office of the United Nations High Commissioner for Human Rights, to calling on Iraq to ratify the said Statute. Under certain conditions, such ratification would allow the ICC to prosecute French jihadists. As the crime of terrorism does not fall within the jurisdiction of the ICC, it should be possible to reclassify the abuses committed as a crime against humanity or a war crime. Nevertheless, Iraq is not yet ready to become a party to the Rome Statute.
These death sentences, resulting in part from a totally paradoxical position of principle on the part of the French authorities, cannot have any beneficial consequences. They have been denounced by several groups, bringing together families of French jihadists, but also families of victims of terrorism.
They testify to a variable geometry discourse by the French authorities concerning the treatment of its French nationals - Jean-Yves Le Drian reaffirmed in April 2019 that the French State had an obligation "to ensure the safety of the French, wherever they may be, including in extreme conditions abroad" - and to its commitments to respect fundamental rights and the fight against the death penalty - France is positioning itself as a leading country in this area. If executions were to take place, it would mean that French citizens, citizens of a country in which the death penalty has been abolished in all circumstances, would be put to death without France having used all its capacity for action. As 45 lawyers pointed out in an article published on 3 June 2019, this would constitute an "extraterritorial implementation of the death penalty". These possible executions would indelibly damage France's legitimacy and credibility on the international scene, both in bilateral dialogue and in international bodies, particularly within the European Union, but also vis-à-vis third countries wishing to join the EU, since the abolition of the death penalty is a condition for accession to the European Union. This would set a dangerous precedent that could permeate any future discussion on human rights or the treatment of French nationals prosecuted by the courts of another country, even though the French authorities have an important role to play at this level.
For the fight against terrorism
These death sentences deprive the French authorities, the families of terrorists, the families of victims and society as a whole of a certain amount of information and answers, which could be useful for a better understanding of the phenomenon of radicalisation and terrorism in France.
Finally, even if the Iraqi State accedes to the French people's requests to commute their sentences, there is no guarantee that they will be able to do so. A commutation would mean their detention for life in a country that does not have the material means to bear the cost of such imprisonment. Iraqi prisons are overcrowded and corrupt, which makes it easier to escape.
1] Communiqué of the United Families Collective on the death sentences of French nationals in Iraq, United Families Collective, 0 May 2019
2] Mobilisation of associations for convicted French jihadists..., Reuters, 28 May 2019
3] AFP, Otages: "the State's duty is to ensure the safety of the French," says Le Drian, Le Point, 11 May 2019
4] "It would be an immense disgrace for our country": the appeal of 45 lawyers against the death sentences of nine French people in Iraq, France Info, 3 June 2019
5] Iraq has also asked France for about two million dollars per capita for the maintenance of its nationals sentenced to life imprisonment.
The Iraqi state is one of the most executed states in the world. While foreigners sentenced to death for terrorism in Iraq have not yet been executed, there have been more than 177 executions in the past two years. The number of death sentences quadrupled in one year, from at least 65 in 2017 to 271 in 2018.
Although the French authorities have requested that the death penalty not be applied to the French, there is no indication that the Iraqi authorities will accede to these requests; the authorities have even denied an agreement with Paris on this subject. In view of these figures and elements, it does not seem unlikely that the Iraqi authorities will enforce the sentences handed down against French nationals.
A possible transfer to France?
The transfer of convicts is a procedure allowing a French national to serve in France a prison sentence for which he or she has been sentenced abroad.
To be implemented, different conditions must be met. In particular, the States concerned must have signed a bilateral transfer agreement. Failing this, a specific agreement between the two States is necessary, but the conviction must result from a final decision of the foreign court. Therefore, applied to French jihadists convicted in Iraq, transfer would be possible if Iraq and France established an agreement, but also if the decision of the Iraqi courts were final, which implies that there is no appeal or that it has been made.
The decision to transfer is a political and not a judicial matter since it is decided by the Minister of Justice.
What about the question of the death penalty, a sentence not recognized by France?
The sentence served in the context of the transfer is in principle not subject to change. However, when the sentence imposed abroad is not a sentence compatible with French law, the French courts are competent to substitute the foreign sentence for the French sentence that most closely corresponds to the original sentence. It should also be noted that this commutation does not justify a reduction in sentence because the initial sentence is too severe.
Finally, with regard to a possible retrial of the French sentenced in Iraq, no prosecution would be possible for facts that have already given rise to a conviction. France would itself enforce the sentence as part of the transfer. However, prosecutions are possible for acts that have not been tried in Iraq and in particular those committed on French territory.
1] Amnesty International, World Report on Convictions and Executions - 2018, p. 50
2] AFP, "Iraq: Justice denies an agreement with Paris to reduce the sentence of death row inmates", L'Orient-Le Jour, 11 June 2019.
3] For more information: Didier Rebut, "Condemnation of a French national abroad: what are the conditions for a transfer? ", June 4, 2018.
"Using the death penalty against terrorists is, for a democracy, making their values its own."
Robert Badinter, lawyer and former Minister of Justice, Honorary President of ECPM
Jihadists in the Levant: the eye of the media
1] ECPM, "Raising French Nationals in the Levant: a complex situation... to a certain extent", 2 March 2018
2] ECPM, "Editorial: French and German sentenced to death in Le Levant: A death penalty by proxy! ", March 1, 2018
3] ECPM, "Intervention at the UN: Foreign jihadists arrested in Le Levant and facing the death penalty", 1 March 2018
4] ECPM, Press release, "Europeans sentenced to death in Le Levant", February 2018.
5] ECPM, Press release "Six French nationals sentenced to death in Iraq", May 2019
6] The Tunisian national was also sentenced to death by the Iraqi courts on 29 May 2019
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