Between 2013 and 2019, an estimated 40,000 citizens from countries beyond Iraq and Syria joined the Islamic State armed group (ISIS), drawing from Europe and Sub-Saharan Africa, South East and Central Asia and as far as the US and Australia. When thousands ended up captured in the final territory of the defeated caliphate, a jurisdictional nightmare was created that nation states have mostly spent years seeking to ignore.
As the US Central Command (CENTCOM) facilitates the mass transfer of up to several thousand alleged ISIS affiliates from Syrian Democratic Forces (SDF) custody into the Iraqi judicial system, however, and as Baghdad operates without external political mediation for the first time in over two decades, these serious legal and humanitarian questions finally deserve an answer. These developments present a profound tension – Iraq is asserting itself as a normal sovereign country at last, yet arguably its judiciary is being used to sweep a major international human rights crisis under the carpet.
Iraq has so far received 2,225 detainees, according to the head of the security information cell attached to the prime minister’s office. The Supreme Judicial Council (SJC) has established extradition will not be considered until Iraq’s domestic legal requirements are fully satisfied, effectively placing thousands of foreign nationals – estimated at 42 nationalities - under the exclusive jurisdiction of the Iraqi state for the foreseeable future. According to the SJC’s National Centre for International Judicial Cooperation, the detained include perpetrators of international crimes, including genocide and crimes against humanity – but as Iraq has yet to incorporate these core international crimes into its domestic legislation, it is difficult to see how they could be prosecuted as such.
Following the closure of UNITAD in 2024 and the end of the UN Assistance Mission (UNAMI)’s mandate in December 2025, the operation leaves Iraq as the sole arbiter of a legal black hole the rest of the world has spent a decade failing to face. While it could hardly have expected its judiciary would have to deal with thousands of non-Iraqis, the transition is further complicated by a political paralysis in Baghdad. With Nouri al-Maliki bidding for a return to the premiership, there is a risk that oversight of these transfers could move from formal judicial institutions towards the same sectarian security structures that defined his previous tenure, and the very policies that many argue originally fuelled the rise of ISIS.
Rendition as mitigation
For years, human rights organisations have raised alarms about detention facilities in North-East Syria. A 2024 Amnesty International report detailed systematic torture and a staggering lack of due process within the SDF-run system of detention. Reporting also highlighted how the US government, through its support of these facilities, was already deeply entangled in a system of arbitrary detention.
In this light, the 2026 transfers represent a tactical evolution of this entanglement. Although some narratives frame developments as Iraq’s triumph of sovereignty and regional stability, the driver appears not to be a pursuit of justice but rather the US military’s retreat from North-East Syria. Fearing prison breaks and a resurgent ISIS, the US has effectively decided to offshore up to 7,000 human beings to Baghdad to prevent them from becoming a renewed liability.
The physical reality is Iraq shares a 600-kilometre border with Syria, where ISIS activity is reportedly on the rise. While the US State Department welcomed Iraq’s “bold initiative” (to respond to its own actions), under international law the transfer of individuals across a sovereign border to a jurisdiction where they face a risk of torture or the death penalty – both of which remain features of the Iraqi counter-terrorism courts, with recent executions documented by human rights groups – is a violation of non-refoulement obligations. In January 2026, UN Special Rapporteurs expressed concern that these mass renditions, reportedly well-funded by the US, lack a transparent screening process.
This transfer of ISIS detainees serves as the high-stakes backdrop for a Global Coalition against Daesh meeting in Riyadh, on Monday 9 February, attended by the UK’s Minister for the Middle East Hamish Falconer, as confirmed to Justice Info by the Foreign Commonwealth and Development Office (FCDO). The United States is expected to lead a major diplomatic offensive, pressuring third-party states to finally fulfil their repatriation obligations rather than allowing their nationals to remain a long-term Iraqi burden – and perhaps also a legal risk to themselves.
A record of mass abuse
In the brutal aftermath of the territorial defeat of ISIS, Iraq was confronted with a justice dilemma of immense proportions – and its primary legal tool for ISIS prosecutions has relied on the 2005 Anti-Terrorism Law, a broadly defined statute that criminalises vague forms of association, from direct participation in acts of violence to associated conduct, such as logistical support to affiliation, often defined so broadly to include civilians living under ISIS rule. This definition fails to distinguish between ideological fighters and coerced affiliates, low-level members, and even entirely uninvolved family.
Mass trials under have resulted in the imprisonment of over 20,000 people, primarily Sunni men, in trials lacking sufficient guarantees. Reports by Human Rights Watch and Amnesty International set out these systemic abuses, and how thousands have been convicted in trials often lasting less than two minutes based on ISIS-affiliation, rather than individual criminal conduct, many on the basis of confessions obtained under torture or from secret informants. “Given Iraq's track record of flawed trials and use of torture-tainted evidence in terrorism related trials that has sent thousands to death row, of course there are concerns,” Razaw Salihy, Amnesty International's Iraq Researcher, told Justice Info. “As we are at the investigative stage, according to the SJC statement, this is an important moment for Iraq to break from this pattern and uphold their duty to victims of IS by holding perpetrators of IS crimes accountable in fair trials without recourse to the death penalty.”
Iraq has been repatriating its nationals over recent years, however an Amnesty investigation into the Al-Jada’a rehabilitation centre in Iraq, found that even those deemed eligible for reintegration are subjected to enforced disappearance, arbitrary arrest and torture. Overcrowding, tuberculosis outbreaks and poor sanitation are already rampant in the Iraqi carceral system, and there is a possibility, too, that among the individuals transferred are or were children at the time of their detention.
Jurisdiction and amnesty laws
The jurisdictional wonder of the current situation is most visible in the nationality of the detainees, with initial reports indicating that out of the first thousand plus transfers, only a handful of returnees are Iraqi nationals. The rest are a mixture of Syrians and third-country nationals from states including Tunisia, Tajikistan and Kazakhstan.
Under Iraqi law, the judiciary lacks the specific codes to prosecute foreign nationals for crimes committed outside of its borders. To circumvent this, the state may rely on the continuous crime loophole within the Anti-Terrorism Law, defining membership of ISIS as an ongoing affiliation and a crime that continues regardless of geography. This creates a dubious basis to try foreign nationals for actions committed elsewhere, potentially bypassing the need for evidence or relying on the low evidentiary threshold of affiliation which has previously seen coerced supporters and children included.
Lately, however, Iraq’s legal system has tried to improve, as is clear in recent General Amnesty Law debates. Iraq has implemented several amnesty laws as part of a national reconciliation effort following the 2003 US-led invasion. The 2008 Amnesty Law was a key demand from the Sunni bloc to rejoin the government. US pressure led to an amendment excluding any insurgents involved in killing US or Iraqi security forces, limiting its impact. This was followed by a 2016 Amnesty Law, intended to benefit followers of Moqtada al-Sadr, a leading Shia political leader and cleric. Unlike 2008, the 2016 law included a provision allowing retrials for those who claimed their confessions were extracted under torture or false information, demonstrating a shift towards addressing injustice during the years of sectarian conflict. The law was further amended in 2017, and on 21 January 2025, Iraq’s MPs amended the General Amnesty Law to expand the eligibility again. By early July 2025, around 28,000 individuals had been released from the country’s prisons. As of February 2026, they were around 41,300.
Many families of detainees, though unconnected to ISIS crimes, have been forcibly disappeared or tortured – and on the lesser scale, may have still faced property confiscation and social ostracisation with their claims to victimhood denied, in contrast to other more palatable communities. In the same way that the creation of Iraq’s Martyrs’ Foundation in 2005 marked the formalisation of victim recognition within the post-2003 state, Iraq’s Law No 20 of 2009 shows how even seemingly inclusive legislation often reproduces hierarchies of victimhood when implemented in a partisan system. The systemic inability to deliver nuanced, survivor-centred justice under these conditions, is also evident by the fact that UNITAD's evidence is not usable in Iraq's legal system.
No role for the UN
UNITAD was established by the UN Security Council in 2017 and tasked with collecting evidence of ISIS crimes in Iraq, with an emphasis on core international crimes – genocide, crimes against humanity, and war crimes. By the time the Investigative Team concluded its mandate in September 2024, it was blamed for having failed survivors. As part of the same body, coordination between the National Centre and the Iraqi judiciary is more streamlined than the previously fraught relationship the latter had with UNITAD. The National Centre, housed in the former UNITAD building in Baghdad, was established to inherit the digitised evidence repository collected in the project that cost the international community hundreds of millions of dollars. However, while the National Centre holds some digitised records of atrocities, the investigations for the transferred detainees are being led by Iraq’s counter-terrorism and intelligence agencies.
UNITAD’s evidence had been intended to support the prosecution of ISIS members by the Iraqi legal system. However, significant challenges arose regarding the transfer and use of its evidence domestically. The national system still lacks the statutes to prosecute international crimes, meaning that the UNITAD team contributed to no domestic trials and only a handful of foreign prosecutions. Even when UNITAD was based in Baghdad, the absence of Iraqi domestic provisions always meant that most of their evidence was inadmissible in Iraqi courts. While Iraq failed to pass the needed laws, UNITAD never found a way to engage meaningfully with the legal system it was supposed to support. In a post UNAMI and UNITAD Iraq, there is very little the UN can do in Iraq – whatever happens next will be a consequence of failings before, or a new opportunity for Iraq to step up.
The way forward…
Without the legislative tools to move beyond the Anti-Terrorism Law, even the best intentioned judges will remain part of a system designed for security elimination as opposed to atrocity recognition. In a statement released last week, the Criminal Justice Working Group of the Coalition for Just Reparations (C4JR), an alliance of Iraqi organisations, expressed concern that detainees will be prosecuted “exclusively under Iraq’s counter-terrorism legislation,” and for the jurisdictional challenges this raises. While counter-terrorism frameworks can facilitate swift convictions for membership, they “cannot reflect the full gravity and systematic nature of ISIS committed crimes, amounting to war crimes, crimes against humanity and genocide,” C4JR warns. For survivor communities, a sentence based on affiliation risks erasing the atrocities – enslavement, executions and displacement – that define the ISIS legacy.
C4JR continues to call for the passage of the International Crimes draft law, currently stalled in Iraq’s State Council. Should the draft law incorporate principles of universal jurisdiction, which would allow Iraq to lawfully and credibly prosecute individuals for the most serious crimes regardless of their nationality or where the crime occurred, the coalition believes Iraq has an opportunity to align its justice system with international human rights standards. Without moving to focus on these core international crimes, the coalition warns that Iraq risks falling short of the “highest standards” it has committed to uphold upon its recent election to the UN Human Rights Council.
Is there an ethical way out? There are no easy answers in Baghdad. In a final irony, this rendition might also inadvertently provide the only path to protection for foreign detainees as established embassies, faced with their nationals in Iraqi custody rather that North-East Syria.
The US transfers to Iraq show the contradictions and harms of their approach to post-conflict accountability – namely, an inconsistent, politically selective, commitment to justice – and how international law’s preference for prosecutions and resistance to amnesties may be ill-suited to contexts like Iraq, impacted by legacies of occupation. Societies do not rupture in a vacuum, and the emergence of ISIS is part of a continuum following the 2003 invasion. It emerged out of the violence of sanctions, invasion, occupation, and global complicity in Iraq’s destruction.
The challenges of post-conflict justice in Iraq, therefore, also exposes the fundamental tension between imposed Western legal models and local agency. Time and time again individuals have been accused of ISIS-affiliation, or seen as too close to perpetrators, and were excluded from justice processes, documentation – and sympathy. These latest transfers present Iraq a chance to change this.
