First ISIS Detainee Turned Over to Iraqi Kurds for Trial

News broke late last week that ISIS detainee Nasrin As’ad Ibrahim (alias Umm Sayyaf) was handed over to the Kurdish Regional Government in Iraq.  U.S. forces captured Umm Sayyaf in May during a raid in which her husband, Fathi ben Awn ben Jildi Murad al-Tunisi - a powerful ISIS leader involved in oil and gas development - was killed.  The Wall Street Journal reported that Umm Sayyaf "provided valuable insights into Islamic State’s financial operations and leaders" during questioning in the 3-month period she was detained by American forces.

In July, the Washington Post reported that federal prosecutors were preparing charges against Umm Sayyaf.  The Post also noted that "[a] prosecution of Umm Sayyaf for her suspected role in taking Mueller hostage would be the first publicly known FBI case involving an alleged senior figure in the Islamic State."   Reports indicate that the decision to transfer her to Iraq's Kurdish regional government, rather than bring her back to the United States to face charges, stemmed in part from the fact that Iraq does not extradite its citizens.

U.S. Secretary of Defense Ash Carter speaks to reporters about the operation that led to Umm Sayyaf's capture (Source: WSJ)

This begs the question: what is the current status of U.S.-Iraqi extradition agreements?  This is not merely an academic question.  If the United States continues to conduct military operations against ISIS forces within Iraqi territory, will it be unable to bring ISIS terrorists to trial in the United States?  Once a prisoner is in the U.S., the U.S. has tools at its disposal to try him or her for material support of terrorism.  Specifically, 18 U.S. Code 2339A and 2339B criminalize the material support of terrorists and terrorist organizations.  Though not heavily publicized, the FBI and U.S. Attorney's Offices have been making domestic arrests for material support of terrorism -- often when an individual is at the airport on his way to Syria to join ISIS.  Moreover, the U.S. has jurisdiction over conduct violative of its "material support" statutes even when that conduct occurs outside of the geographic bounds of the United States.  For example, 2339B contains an entire "Extraterritorial Jurisdiction" section that states there is jurisdiction for a material support of terrorist organizations offense if "after the conduct required for the offense occurs an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States."  Thus, were Umm Sayyaf or another high-profile ISIS member captured and brought into the United States, the appropriate U.S. Attorney's Office could charge and prosecute said ISIS member.

In order to get said ISIS member to the U.S., however, one might have to deal with the issue raised by the Iraqis in the present case: extradition.  The United States in fact has a still-existing extradition treaty with Iraq that dates back to 1936.  That treaty lays out the charges and procedures under which either party can request extradition of an individual located within the geographic bounds of the other party.  Reviewing the treaty, terrorism is not mentioned but "murder" and "kidnapping" are charges in which Umm Sayyaf may have been a participant and therefore potentially charged in the United States.  One hurdle, however: Article VIII of the treaty notes that "neither of the High Contracting Parties shall be bound to deliver up its own citizens."  Therefore, Iraq would not be bound to turn over an Iraqi citizen to face charges in the U.S., but nothing in the treaty prohibits Iraq from voluntarily doing so.  The treaty was used most recently in 2014, when Iraq extradited a U.S. citizen back to the U.S. to face fraud charges related to defense contracting.

However, there is another, newer hurdle to extradition: the Iraqi Constitution.  Article 21 of the Constitution of Iraq states that "[n]o Iraqi shall be surrendered to foreign entities and authorities."  This is a much more explicit prohibition that the more discretionary language of the 1936 extradition treaty.  As the U.S. continues to wage military operations against ISIS, one must wonder if the Umm Sayyaf incident has led American and Iraqi military and political personnel to discuss creative ways to comply with the Iraqi Constitution and also bring ISIS detainees to the United States.  What if, for example, a high-level ISIS commander known to have been involved in killing American citizens is captured by U.S. military personnel?  At some point, the American government would justifiably want to see certain ISIS detainees brought to the U.S. to face trial.  Indeed, the decision to hand Umm Sayyaf over to the Kurdish regional government rather than the central government may have reflected a reluctance to turn her over to the central Iraqi government (of course, it could have also been a strategic decision to avoid placing the Shiite government in charge of an important ISIS detainee).

One possible solution would be to establish clear U.S. custody of a detainee from the moment of capture.  If the Arabic version of the Iraqi Constitution is interpreted the same as the English version, that constitution prohibits the surrendering of Iraqi citizens to foreign authorities.  If Iraq never has custody over a detainee, the thinking would go, there would be no constitutional violation because Iraqi authorities never had custody of the detainee.  This is one way in which both governments could work together to help respect the integrity of the Iraqi Constitution while also aggressively pursuing ISIS terrorists.

Return to the Concept of a Three-State Solution in Iraq

Any "defeat" of ISIS, however one defines it, would certainly include re-taking ISIS-controlled areas of Iraq and holding them.  Part of the problem is that, similar to the "Anbar awakening" in 2007, such a strategy necessarily involves a serious and committed effort by local Sunnis to expel a distasteful group.  There is one key difference, this time.  In 2007, the U.S. military paid local Sunni groups to fight and expel al Qaeda.  This time, the Iraqi government is nominally in control of ground operations and put simply, there is little Sunni appetite to participate with a Shia-led government that has turned a blind eye to atrocities against Sunnis, used violence to break up Sunni protest camps, and has directly participated in the political disenfranchisement of Sunnis.  While many Sunnis bravely risk their lives to oppose ISIS control of their lands, there is a very understandable reticence to work side by side with the government that has spent much of its time oppressing and vilifying them.

Iraqis flee the city of Ramadi as ISIS forces take over after an 18-month fight with the Iraqi military (Source: CNN)

=

In short, Sunnis need to be invested in the future of their government.  They are certainly not invested in the current form of Iraqi government, and its history since the U.S. departure has suggested that they don't have much reason to support and be invested in such a government.  The Obama administration acknowledges that there must be meaningful Sunni participation in any Iraqi government.  However, that was already the plan when the United States was deeply involved in developing Iraq's governmental structure.  The plan was for a Sunni vice president and protections of Sunni citizens.  Obviously, that plan has not transpired, with the Sunni vice president arrested and expelled from the government soon after the U.S. departure.

How does one rebuild trust in a participatory Iraqi government?  One step in the right direction was the ouster of Prime Minister Nouri Maliki, whose name toward the end of his tenure had become synonymous with Sunni oppression.  However, the changing of the guard has not translated to better relations between Sunni and Shia; rather, Shia militia rage through Sunni areas unabated, committing atrocities.

There has been a little discussion lately -- but not much -- of a three-state solution or some autonomy-heavy federalism in Iraq.  Indeed, the timing of such a discussion might seem ludicrous as ISIS controls vast swathes of what would be a Sunni state.  However, a few things should be kept in mind.  First, a three-state solution or heavily decentralized state was more widely discussed during the early years of the insurgency in Iraq.  The very reason is the same that warrants discussing it now: getting Sunnis invested in their own future.  Second, there is no reason that a discussion of a three-state solution must concede ISIS control over northwestern Iraq.  One could suggest, for example, that a northwestern Iraq referendum on independence or decentralized government occur only after Iraqi forces retake ISIS-controlled territory.

For those worried about the possibility of a Sunni state becoming a haven for terrorism: keep in mind that ISIS already controls much of the territory, and that the inability of Iraq's Shias and Sunnis to make political peace has in large part led to the lack of a united front to combat ISIS.  Indeed, so long as Iraq's Shia leaders fail to include and indeed openly oppress the Sunni, there is no incentive for Sunni to fight for such leaders.  Fighting for their own state, or own self-controlled region within a partitioned state, might give more Sunnis a real reason to expel ISIS and hold any territory it takes from the terrorist organization.

Of course, the political partition of Iraq needn't necessarily be a "three-state" solution.  One possibility, for example, is a two-state solution: an independent Kurdish state and a "federal" Sunni-Shia state with a weak central government and significant autonomy to the two federal regions.

Any type of devolution or partitioning of Iraq would involve the tricky issue of oil revenues.  Indeed, some people see oil revenue as overriding other concerns and thereby necessitating a strong central government.  Ultimately, however, any central government in Iraq is doomed if it is not ready to cede significant political autonomy to Sunni regions.  Moreover, control over their own future might be the only incentive significant enough to bring Sunnis to the fore of the fight against ISIS.

Libya's East Side Story

Flying under the radar in late 2013, leaders in the eastern half of Libya, which holds 60% of the nation's oil production, declared an autonomous government. Libya has the world's ninth largest oil reserves, and other energy resources aplenty. This declaration came about two years after Libya's Civil War ended, which also ended the 42-year reign of Muammar Gaddafi. Gaddafi's dictatorship largely held in check a nation that had a history of regional autonomy. The political subdivisions throughout Libya's history are Tripolitania, Cyernaica, and Fezzan, with most of the population residing in Tripoliatania and Cyernaica.

Libya's Subdivisions (Source: Fragile States Resource Center)

The recent announcement was certainly a blow to the centralized leadership in Tripoli, but reading the events carefully helps add details to the story. Proponents would like the return of the three-state Libya, last extant under King Irdis in 1951, and one that existed, at times, throughout Libya's history. Although this certainly could lead to a break-up of the country, leaders from the region did not explicitly declare independence, or even self-determination. Leaders seem to be seeking a status closer to the experience of the Kurdish region of Iraq following the Iraq War (though even that status is still debated).

Much like in Iraq, it may boil down to natural resources, regional access, and service delivery. The eastern shadow government is offering up oil to foreign buyers and is promising to open the region's energy resources under its own terms. The central government, meanwhile, has indicated that it will use force, if necessary, to prevent any circumvention of its authority. It has already fired toward a Maltese tanker in order to force it to deviate from an eastern port. Meanwhile, regional access and governmental service delivery are both hampered by protests and a burgeoning insurgency that has blocked off the region for months. These issues sound familiar and are a formula for bigger problems.

Infighting, and possibly even open warfare, will continue to be a risk unless the structure of Libya indicates more clearly how the central government will work with regional authorities. While levels of autonomy are integral to regional function in a territory as large as Libya, it is important that those levels are determined wisely and with both sides in agreement. Nonetheless, all sides must recognize that central governance, to some extent, is necessary. 

Growing Pains in Iraq: Reconciling Federalism

Few people believed that Iraq was magically reborn following the departure of the remaining U.S. troops from Iraq in late 2011. After all, that withdrawal was years in the making, both politically and militarily. Even then, there was debate over how Iraq would be shaped, in 2012 and beyond. It was surmised that a Sunni-Shia rift would continue, fueled in part by insurgents pushing the boundaries of Iraqi security forces. At the same time, concerns about Iraq's president Nouri al-Maliki's (who is Shia) leadership also existed, in light of clear pro-Shia favoritism.

It seems that "messy democracy" is the favorite description of Iraq over the years; however, this description is really just an easy way to not say anything at all. It's a way to say Iraqi democracy is not the democracy of Norway (ranked #1 in the Democracy Index), but is also not the democracy of Zimbabwe (ranked #148). It is clear that Iraq is somewhere in the middle (#113 in 2012). But what direction is that democracy headed toward - Norway or Zimbabwe?

This is not a question that has an easy answer. Iraqi federalism has been discussed over and over gain. How will the country look? It has been debated whether Iraq can even hold itself together as a single unified country, given its history, colonially drawn borders, and somewhat diverse populations. What power-sharing structures will exist? That entails whether Iraq function as an open democracy where one viewpoint transitions power to another bloodlessly, or would a constitutional requirement for a constant mix of viewpoints be necessary. As well, the level of autonomy given to individual provinces - should Iraq even be a federation or a confederation? And in the end, who will fight who over what, and will that fighting be political or physical? To gain some insight into some of the issues that prevail today, from insurgent fighting in the West to Kurdish self-determination in the North, it helps to take a look at the political and religious boundaries in Iraq:

Religious makeup of Iraq (Source: NPR)

Political makeup of Iraq (Source: Wikipedia)

One province stands out in a grand manner: Al-Anbar in the West. On the one hand, al-Anbar is far larger than any other political division in Iraq, taking up as much as a third of the country. On the other hand, the province is sparsely populated and includes significant desert acreage. 

Al-Anbar is also the source of some of the worst fighting during the Iraq War, including the First Battle of Fallujah and the Second Battle of Fallujah. More recently, it is the location of Sunni protests, and the takeover of Iraqi cities (Ramadi, the capital of Al-Anbar, and, to some extent, Fallujah) by the Islamic State of Iraq and the Levant (ISIL), which is associated with al-Qaeda.

In the past, gerrymandering was a possibility. This likely would have been an option early on when the politics of Iraq were still up for debate. However, with a Shia-led government that seemingly continues to clamp down on Sunni politics, this idea is likely off the table, or we will end up with the worst of American democratic traditions married to military conflict.

Within federalism, there exists some level of equality on a national scene, at least in the sense that everyone can, at some point, attain a leadership role and participate in national politics. Without that, there is no purpose to being part of a federalist structure. Both alienating a component of the national population and simultaneously allowing the growth of their own sub-state cannot lead to a solution.

It will take crucial and careful leadership to lead Iraq out of its federalist quagmire. It can't hurt to use the American example here as well: the United States operated under the Articles of Confederation between 1777 (informally) / 1781 (formally) until 1789, when the Constitution took effect. It took years to figure out a better way for the system to operate, and it may take years in Iraq. Focusing on the politics, and the compromises that come with politics, while avoiding warfare and open conflict, are key tenets that could lead to Iraq reconciling its federalism for a lasting state.