BAGHDAD—There was no other way out. After months under siege in the Syrian city of Raqqa, the Belgian Islamic State member Bilal al-Marchohi decided to escape. He fled his post as a religious police officer at the break of dawn on August 29, 2017, and ran with his wife and son to the closest enemy checkpoint. With his arms up, he handed himself over to the Kurdish militants in the hope of eventually being repatriated to Belgium. The family was immediately separated, and his spouse and child were transferred to a nearby Islamic State relatives camp.
Along with other jihadi comrades, al-Marchohi was driven to a prison near the city of Tabqa, where he was interrogated by U.S. officials on his role in the organization, his closest companions, and on weaponry manufacturing. The 23-year-old jihadi told them he used to attend the Friday prayers at De Koepel mosque in Antwerp, whose imam, Youssef, ended up joining the fight in Syria. Al-Marchohi waited until he turned 18 to cross the Turkish-Syrian border with his girlfriend and other acquaintances, first joining the Nusra Front and later deserting to the Islamic State, after internal clashes erupted within the armed opposition brigades.
U.S. soldiers took him to Kobani in northern Syria and from there to Erbil in Iraqi Kurdistan by helicopter, he recalls. “I was alone. I stayed there for two months and I went crazy. It was very hard. … Because of the strong lights, I was not able to sleep,” al-Marchohi told Foreign Policy in an exclusive interview. The Belgian was one of the first jihadis transferred by the U.S. army from Syria to Iraq after the liberation of Raqqa, as part of a series of renditions, during which at least three other European citizens were handed over to the Iraqi judiciary, possibly in contravention of international law.
“I even met the Belgians there and I cooperated with them,” he said, referring to Belgian intelligence agents. “They told me: ‘We will take you to the local government now, and you will wait to see the judge and maybe you go back to Belgium, maybe not.’” But al-Marchohi wasn’t repatriated; instead he was escorted from Erbil to Baghdad, where he was delivered to Iraqi counterterrorism forces and subjected to a new, harsher round of interrogations.
Western governments are generally reluctant to facilitate the repatriation of Islamic State militants. After the departure of more than 5,000 European citizens, European countries don’t wan’t to deal with the returnees file. “Except Germany, no other European country is interested in the return of their citizens accused of being Daesh members,” claimed Hisham al-Hashimi, an Iraqi researcher who briefs officials on jihadi group dynamics. “Western countries don’t have a policy for jihadi returnees, they are not ready for their arrival. … And if they get a death penalty in Iraq, they will be thankful,” he says.
It’s a political matter more than anything; lawmakers won’t dare to defy public opinion. In France, 89 percent of respondents are against the return of adult jihadis; and 67 percent oppose the repatriation of children, according to a survey by Odoxa.
The issue of repatriation would also require consensus across the European Union from a security perspective. If a returnee enters the Schengen Area, all of that territory would be at risk because of free movement. A returned Belgian could strike in Spain.
Bringing Islamic State members back also exposes a judicial weakness; a lack of evidence could lead to short prison sentences, and jihadis might only serve three- to five-year jail terms before they are back on the streets. If a terrorist attack were perpetrated by a repatriated fighter in coming years, the political party that approved their return would face devastating consequences.
Bilal al-Marchohi in Baghdad this year. Pilar Cebrián for Foreign Policy
Al-Marchohi has become a pawn in this international political chess match—rejected by his own nation and subject to the judicial system of one where he has never lived. He claims Iraqi officers fabricated a confession to show he could therefore be tried under Iraqi jurisdiction. “They wrote that I got arrested in Mosul, and forced me to put my fingerprints on it,” he explains, despite the fact that he surrendered in Raqqa. An investigative judge examined this evidence and passed his case on to a criminal court.
It was not until a year later that al-Marchohi attended his first hearing, at Rusafa court in Baghdad. In front of three magistrates, confined in a wooden cage, the Belgian got a court-appointed defense lawyer with whom he couldn’t communicate before the trial. During the third hearing, with Belgian consular officials in attendance, he was sentenced to death by hanging for “belonging to a terrorist organization and his involvement in fighting against Iraqi forces in Mosul.”
The Iraqi Supreme Court later published a purported quote by Abu Fadel al-Belgiki (al-Marchohi’s Islamic State nom de guerre) following the formal resolution: “We fought fierce battles with Iraqi forces in Mosul and when the army began to advance and control most of the area, I fled towards Syria, but I could not escape and was arrested inside Iraqi territory.”
But there is evidence that contradicts this supposed confession. When al-Marchohi was interrogated in Syria, the information was compiled under Operation Gallant Phoenix by the U.S. Army, which gathers data and evidence on foreign terrorist fighters for the multinational mission there. His fingerprints were taken, and the U.S. military personnel took a picture of him looking exhausted and wild-haired. The classified tactical report establishes the place of detention as “Raqqah, Syria” on “29/0400/Z/AUG/17” (Aug. 29, 2017, at 4 a.m.), and doesn’t mention Iraq at all.
Nevertheless, this evidence wasn’t introduced during the court hearing. The confidential information is “provided only for intelligence purposes in an effort to develop investigative leads,” the report explained “and cannot be used in affidavits, court proceedings, subpoenas, or for other legal or judicial purposes.” But this doesn’t mean the Belgian authorities were not briefed. Indeed, “Belgian Military Intelligence and Security Service is always required before transmission of any information contained in this document,” according to the classified file.
Al-Marchohi was not the first European jihadi to be sentenced to death in Iraq. The Belgian Tarik Jadaoun received the same sentence a year earlier, as did 11 French men transferred from Syria in January 2019. Lamia K., a German national, faced the same fate until officials in Berlin insisted on Germany’s stance against capital punishment and, after the appeals process, her sentence was commuted to a 20-year jail term. So far none of them have been executed.
Belgian officials claim, like their counterparts in other European countries, that they will lobby, through diplomatic channels, against al-Marchohi’s death penalty if it is eventually imposed after the appeal process. “We always fight for the abolition of the death penalty, whether it is through international organizations and fora or in our bilateral relations in countries where it is still in vigor,” said Nadia Benini, the deputy spokesperson of the Belgian Ministry of Foreign Affairs. Nevertheless, they insist they respect Iraqi sovereignty and that they “try to remain discreet in consular affairs.”
Each EU member state addresses the returnees differently: The U.K. has stripped terror suspects of citizenship, as was the case with Shamima Begum, the London teenager who traveled to Syria at the age of 15. Under the 2006 amendment of the 1981 British Nationality Act, a person can be deprived of citizenship if it would be “conducive to the public good” and the person is eligible for another passport. The U.K. has made her stateless, an illegal act according to international conventions, because she never applied for her parents’ Bangladeshi nationality.
The U.K. “is not even considering sending the children back,” said Richard Barrett, a former director of global counterterrorism at the British foreign intelligence service MI6. “They say no to anybody and they’re not talking about it. It’s basically waiting for a crunch. Only if they escape and go back to Turkey, they might be sent back to the U.K. in a week.”
France and Belgium are examining fighters on a case-by-case basis, and have repatriated at least 27 children, some of them orphans, since the fall of the Islamic State’s last territory. But the return of adults is still unlikely. Lawyers in Baghdad have even suggested that there has been diplomatic interference in the judicial process, as was allegedly the case with the French jihadi Mélina Boughedir: “Between the first and the second session of the trial the French ambassador in Iraq had a meeting with the head of the [Supreme] Judicial Council Faiq Zidan,” claimed NasserAddin Madlool Abed, Boughedir’s Iraqi attorney. She was initially sentenced to a seven-month jail term, “but in the second hearing recess, the main judge left to a private room. He was on the phone for 15 minutes and when he came back … he gave her a life sentence,” he recalled.
Moreover, Germany, which has recently accepted four children from Syria, accepts there is not a strategy to bring foreign fighters back: “We examine case by case,” said a member of the German diplomatic service. “The cases come to us and not vice versa. … Because, is there a legal framework?” he asked rhetorically, pointing out the lack of extradition agreements.
The subject has even been a source of disagreement within the international coalition that fought the Islamic State. The United States has lobbied EU members to take their citizens back. “We are still trying to get the countries to repatriate them but first, they don’t want to do it; and second, if they do it they want to keep it entirely quiet. Which I don’t personally agree with,”said U.S. Col. Sean Ryan, a coalition spokesman.
The transfer of terrorist suspects from Syria to Iraq is being used as a mechanism to circumvent the judicial and political vacuum in northern Syria.
The Kurdish-led authority, derived from the postwar partition of Syria and administered by the Democratic Union Party (PYD), does not have international diplomatic recognition. This means Kurdish courts cannot prosecute foreign Islamic State convicts. Furthermore, European governments fear that imprisonment in an unstable territory might lead to a prison break—as happened in Derik prison near the Iraqi-Syrian border in April, when French detainees turned against their guards, although no one managed to escape—or encourage bribery.
The most publicized rendition transfer was the handover of the 11 French jihadis in January. During a subsequent visit by Iraqi President Barham Salih to Paris, French President Emmanuel Macron admitted that the operation had taken place, and disavowed responsibility by saying that it was up to the Iraqi authorities “to decide, sovereignly,” if captured jihadis had to be subjected to legal proceedings. “They are accused of having commanded operations against Iraqis,” added Salih. But although there is evidence that some of the 13 French detainees had previously entered Iraqi territory, there is no such evidence in the case of al-Marchohi.
The Iraqi judicial labyrinth, labeled by human rights defenders as “Guantánamo East,” does not grant the accused basic human rights and procedural guarantees. It seems to be the path favored by many European countries to prosecute the jihadis. The Americans took al-Marchohi out “because the U.S. unfortunately can do whatever they like to prosecute a foreigner,” explained Clive Stafford Smith, founder of the London legal-action charity Reprieve and a Guantánamo detainees’ lawyer who has been hired by some relatives of Western-born Islamic State members. “No European country can do it because under European law it’s illegal. Rendition is illegal,” he added. “You are rendering someone into a nonfair trial, to face the death penalty, which is also illegal … so the Americans have to be in charge of that.”
Iraqi prosecutors also lack proper evidence to prosecute foreign fighters, claimed Thomas Renard, a researcher at the Egmont Institute in Brussels and the author of a report on European jihadi returnees. “Some of them may not have been in Iraq … so what is the legitimacy of this country to prosecute them?” he asked. “The judicial system is not up to international standards either. We’ve witnessed trials with no lawyers, that last 15 minutes, where children of 12 years old or less have been tried,” he added. “And when they are convicted, they end up in Iraqi jails that are not meeting international standards of detention.”
Those who have been relocated from Syrian to Iraqi jails have hugely varied profiles: One of them is Lahcen Gueboudj, a 59-year-old French man who claims to have traveled to Raqqa in search of his son, and who is now serving life in prison; another is a 30-year-old Austrian of Afghan descent, whom the Iraqis accuse of being a fighter, although he insisted in an interview with Foreign Policy that he entered Syria to join his relatives and live under sharia rule. His trial is scheduled for October.
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An Iraqi judge, who presides over some of these proceedings and prefers to remain anonymous, sees it differently. “Even if the ISIS crimes have been committed abroad outside of Iraq, this group ISIS has destroyed our country, so we can sentence them here anyway,” he said in an interview. But universal jurisdiction can be exercised only after national legislation recognizes the relevant crimes. And the Iraqi penal code doesn’t define such offenses as sex slavery, mass executions, beheadings, or crucifixion of prisoners.
“Although this is a big burden for me … and also very expensive, some countries are not behaving properly,” he told Foreign Policy, suggesting that foreign fighters’ home countries are responsible for taking them back, but are unwilling to do so. “As a consequence, Iraq will become the cemetery of the remaining of Daesh,” he adds, using the Arabic acronym for the Islamic State.
In the meantime, men like al-Marchohi await justice or execution in Iraqi jails. It’s a situation that should make Belgian—and other European officials—think twice.
Belgium has seen a huge wave of Islamic State recruitment and became the No. 1 source of jihadis per capita in Europe; at least 413 traveled to Iraq and Syria, and 125 have returned so far. Deradicalization programs are often not effective, because of their voluntary nature. Attendance is optional and they don’t commute any part of the sentence. The only programs that seem to get good results are those carried out by imams, who teach deradicalization by deconstructing jihadi theology, as the imam Ahmed Zerdoua does in Antwerp prison.
The caliphate’s history suggests that recruits from Belgium were the vanguard of the European presence in the Islamic State. They even introduced technical advances to the battlefield, such as drones, rocket metalwork, and the development of anti-aircraft missiles equipped with a heat-sensor mechanism—a project that was halted by the military offensive in Raqqa, where the research center was located. Belgians even established their own checkpoints, forcing the local population to pay high taxes. But their crimes should not strip them of their European citizenship rights.
It’s a matter of security, too. The case of the Belgian Oussama Atar demonstrates that incarceration abroad is often a path to deeper indoctrination and international terrorism networking. Atar waged jihad in Iraq in 2004, in the ranks of al Qaeda, until his detention in Ramadi a year later. The captive ended up in Camp Bucca and Abu Ghraib jails, where he served a seven-year jail term with the future founders of the Islamic State.
It was likely there that he made the connections he used 10 years later in Syria to become one of the masterminds, according to French intelligence services, of the November 2015 Paris and March 2016 Brussels attacks that killed 130 and 32 people, respectively.
If Atar had been extradited to Belgium after his verdict, he’d have never spent countless hours locked with other extremist Iraqi jihadis, he’d have never established strong links with the leaders of the Islamic State, and he might have never adopted their hardcore terrorist mindset—a course of events that led him back to Belgium briefly in 2012 and then back to the battlefield in Syria in 2013, from where he helped plan two of the Islamic State’s bloodiest terrorist attacks on European soil.
This essay is excerpted and adapted from Pilar Cebrian’s forthcoming book El regreso a casa de los yihadistas europeos (The Repatriation of European Jihadis), funded by BBVA.
Correction, Sept. 17, 2019: France and Belgium have repatriated a total of at least 27 children since the fall of the Islamic State’s last territory. A previous version of this article mistakenly said they had repatriated 21.
