On February 19th, the Orebro District Court of Sweden convicted 38-year-old Kurda Bahaalddin H Saeed to 15 months in prison for his involvement in the desecration and filming of bodies of Islamic State in Iraq militants.
The desecration of dead bodies constitutes a war crime according to Article 8(2)(b)(xxi) and (c)(ii) of the 1998 ICC Statute, which state that “[c]ommitting outrages upon personal dignity” constitutes a war crime in both international and non-international armed conflicts. A later document, the ICC Elements of Crimes, specifies that this includes the desecration of dead bodies. Despite admitting to being in pictures which showed him desecrating the bodies, Bahaalddin denied that he had committed war crimes.
This decision reiterates the reality that war crimes, even when committed against ISIS members, who have engaged in countless criminal acts themselves, are still war crimes. It also contrasts with some troubling trends within Iraq and the broader international community regarding the treatment of extremist groups.
A reporter from the New Yorker met with a senior Iraqi intelligence official who detailing patterns of battlefield executions, murders in detention centers, and coverups organized by the state. This pattern has carried over into the courtrooms, where thousands of individuals have been tortured into confessing affiliation to ISIS and hundreds have been hanged. The magnitude of the problem is even greater than that, as these numbers reflect only a small number of total detainees.
Mistreatment of insurgents is not purely an Iraqi Armed Forces phenomenon, as multiple Navy Seals have been charged with severe crimes against ISIS fighters, including one officer, Chief Special Warfare Operator Edward Gallagher, who underwent his reenlistment ceremony while posed with the corpse of a teenage ISIS fighter he killed. He was also accused of shooting two civilians and firing indiscriminately into crowds while deployed in Iraq. On February 19th, Gallagher’s trial was postponed three months so that the defense would have more time to review new evidence from the prosecution. His official trial date is now May 28th.
Although only individual soldiers have been tried, to date, the previous evidence of the Iraqi situation makes it clear that a culture exists which implicitly justifies widespread abuses both against civilians and ISIS members in Iraq. An Amnesty International report published in 2018 claims that over 1,000 civilians were killed by Coalition and affiliate forces during the 2017 Raqqa offensive in Syria. The report concludes with the not-so-subtle claim that “states have an obligation to investigate allegations of war crimes by their forces or nationals.”
The question becomes: Is there hope that US or Iraqi war criminals will be broadly brought to justice? The answer, it seems, is no. To begin, neither Iraq nor the United States have ratified the Rome Statute of the International Criminal Court, meaning that any international attempt to try war criminals in Iraq may be doomed to failure from the onset. Sweden was only able to try Bahaaldin because he arrived in the country with his family as a refugee, and given the recent opposition in the West to repatriating the large numbers of captured ISIS fighters, it may fall on the governments of Iraq and Syria to mete out “justice” to these captured individuals. Further, thousands of ISIS fighters are being held by the Syrian Democratic Forces, who were a large part of the previously mentioned Raqqa offensive, and who may become judge, jury, and executioner if no agreements are made to repatriate captives. Previous concerns about the Iraqi justice system and the SDF reveal the potential for widespread abuse which exists in the present moment.
Perhaps the larger concern here is that the violence committed against supposed members of these extremist groups will create a cycle of violence. A CIA officer, commenting on the indiscriminate executions undertaken by the Iraqi government, said that “Of course [ISIS] came back…What do you expect? You literally killed their dads.” The previously mentioned Iraqi intelligence officials noted a similar concern, saying that the indiscriminate arrests and killings of Sunnis fed into the narrative that Sunnis could not live safely in Iraqi society. This contributed heavily to ISIS recruitment and to implicit support for the group among terrified Sunni populations across the country.
This case is undoubtedly important, given that it should, in combination with cases like Edward Gallagher’s, begin to establish norms of accountability regarding war crimes committed against war criminals. Further, it provides a blueprint for countries fighting with terrorist groups by which they can punish war criminals justly within the bounds of international law and avoid becoming criminals themselves in the process.
Evan Schleicher is an Editorial Intern with the International Enforcement Law Reporter. He is also an MA candidate in Security Policy Studies at George Washington University’s Elliott School of International Affairs.