It’s Time Iraq Accepts Legal Responsibility for Its Iran-Backed Militias

The U.S. and the Iran-aligned Hashd al-Sha’abi (Popular Mobilization Forces, or PMF) brigades in Iraq have entered another cycle of violence. This was entirely predictable. In the aftermath of the Jan. 3 strike that killed Iranian General Qassem Soleimani and the Iraqi PMF commander Abu Mahdi al-Muhandis, the PMF’s Iranian-backed elements have expressed clear intent to push the United States and the counter-ISIS coalition out of Iraq.

These Iran-backed PMF militias have been launching low-level strikes against U.S. targets — a couple of missiles roughly every two weeks since January and then at an accelerated pace last week. The groups also have issued frequent threats of action. Harakat al-Nujaba, a PMF militia with especially close ties to Iran, has issued regular statements implying an intent to strike U.S. forces in March. Kata’ib Hezbollah, al-Muhandis’s militia and Iran’s longstanding go-to proxy in Iraq, set a March 15 deadline for U.S. withdrawal, after which coalition forces were to be treated as foreign occupiers. As the deadline passed, a new militia, Usbat al-Thaireen (League of the Revolutionaries) issued video messages threatening U.S. forces and demanding immediate withdrawal. This new militia is believed to be an amalgamation of combat elements of Kata’ib Hezbollah and a number of other Iran backed PMF militias. The most recent rocket attack on Baghdad’s Green Zone and the Camp Taji coalition airbase on March 17 brings to four the number of significant attacks against the coalition this week, including one March 16 on the Spanish component.

Meanwhile, the Iraqi Parliament has come under sustained pressure from the militias to pass a binding vote once it returns from recess this month to rescind the invitation to U.S. forces to operate on Iraqi soil. The March 11 missile attack on Taji camp that killed two American service members and one from the United Kingdom and injured 14 others represented a step change in the militias’ campaign to evict the coalition. The 18 missiles fired were intended to cause fatalities, and Iran and the militias will have known that a response would come.

This cycle of attack and retaliation makes it easy to lose track of what the PMF has become within the Iraqi state. The various offending militias are frequently — and correctly — identified as Iran-backed, trained, funded, and equipped. But since late 2016, they have legally been organs of the Iraqi state. This has ramifications for the legal basis for striking the militias — not only legal significance for the United States, but also for the institution to which the militias belong legally, the government of Iraq. This frequently overlooked status gives the militias enormous freedom and strength, but it also provides an opportunity to influence the groups’ behavior using non-kinetic means.

Militias Incorporated Into Iraqi Law

The Hashd al-Sha’abi is a fractious collection of militia groups, and various political and ideological divisions exist within the organization. However, the largest and most powerful element of the force comprises Iran-backed groups. Many of these date at least to the period after the 2003 U.S. invasion, when Iran used the units as proxies to attack American forces and participate in Iraq’s sectarian civil war.

The rise of ISIS, which claimed the mantle of Sunni Islam, gave these militias an enormous boost in 2014, as volunteers answered calls from both the Iraqi Prime Minister and the country’s Shi’ite clerical establishment to resist the terrorist group. The collection of (mostly Shi’ite) militias became grouped under the Hashd al-Sha’abi term, but at that time, they violated Article 9 of Iraq’s Constitution, which prohibits organized armed groups other than state security forces.

In late 2016, this problem was “solved” when parliament passed “Law Number 40 of the year 2016: the Law of the Hashd al-Shaabi Committee.” This formally brought the Hashd al-Sha’abi into the Iraqi armed forces, subordinating them to the Iraqi military chain of command and the Office of the Prime Minister, via a coordinating organization known as the Popular Mobilization Committee (PMC). Even at the time, the law was controversial. Parliament passed it with 170 of 328 possible votes, just over half, with many Sunni legislators objecting or abstaining.

Since then, they’ve become further embedded in the Iraqi state, as Prime Minister Haider al-Abadi and his successor Adil Abdul-Mahdi issued a series of Diwani Orders (the equivalent of U.S. presidential executive orders) that further incorporated them into the Iraqi Security Forces. The orders synchronized pay scales and rank structures, and partially reorganized the structure of the PMC.

The Iran-backed elements of the PMF used this newfound legal legitimacy, not to mention the significant political capital gained as the vanguard in the fight against ISIS, to consolidate power. The militias then illegally participated in the 2018 elections, in contravention of Article 9 of the Iraqi Constitution and Article 74 of Iraq’s Law of Military Punishments (No. 19 of 2007), which explicitly prohibit members of the armed forces from political activities. Militia members notably campaigned on behalf of Hadi al-Ameri’s (the head of PMF-affiliated Badr Organization) Fatah Alliance parliamentary bloc, gaining significant influence in the Iraqi Parliament in the process. That influence gave them a major role in choosing Abdul-Mahdi as prime minister, and allowed them to take control of a number of key ministries and governmental authorities.

But despite an ever-closer legal relationship with the Iraqi state, the PMF has shown little interest in following the Iraqi chain of command. As I wrote previously on Just Security, Iran-backed elements have committed a string of human rights abuses against peaceful protesters, refused to withdraw from territory when ordered by Baghdad, and deployed into Syria without authority from the chain of command. Meanwhile, the militias have used their creeping influence to develop a shadow state insubordinate to the elected government, with loyalties to Iranian interests over Iraq’s.

Organs of the Iraqi State Under International Law

So by today, there can be little doubt that the Hashd al-Sha’abi is an organ of the Iraqi state. International law of state responsibility tends to defer to domestic legislation when determining who or what is an entity of a given State. For example, the International Law Commission’s (ILC’s) Articles on the Responsibility of States for Internationally Wrongful Acts considers the “conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions.” Article 4 goes on to clarify that an “organ includes any person or entity which has that status in accordance with the internal law of the State.” States remain responsible (according to Article 7) even if an organ exceeds its authority or contravenes instructions.

This rule evolved in response to a need to ensure clarity in state relations. Rather than allowing states to avoid responsibility by simply disavowing their organ’s actions, international law supports the proposition (Article 7, paragraph 3 of commentaries, p.45) that “all Governments should always be held responsible for all acts committed by their agents by virtue of their official capacity.”

For the purposes of the Law of Armed Conflict (LOAC), the domestic incorporation of the Hashd al-Sha’abi into the Iraqi Security Forces was also sufficient to make the militias a part of the Iraqi Armed Forces. Iraq is a State Party to Additional Protocol I to the Geneva Conventions (API). API’s Article 43 defines a nation’s military as consisting “of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates…. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.”

The 2016 law and subsequent Diwani Orders placed the militias under the control of the commander-in-chief of the Iraqi Armed Forces, and created a command structure and rank system that nominally ensures internal discipline. Iraq law has also made the formation “subject to the military laws in force in all respects, with the exception of conditions relating to age and education levels.”

These formal procedures of incorporation under Iraqi national law have had the effect of ensuring the Hashd al-Sha’abi and its constituent militias will be understood as the Iraqi armed forces for purposes of LOAC.

Time for Iraq to Act on Its Militias

So what? As I’ve outlined previously at Just Security, this means attacks by the U.S. government on the Hashd al-Sha’abi are — at least technically under international law — armed attacks on the state of Iraq. And while the United States does have the right to self-defense, serious questions must continue to be raised about the present situation. The U.S. remains in Iraq at the invitation of the government of Iraq, and its coalition has provided significant — beneficial — support to Baghdad throughout the ongoing operation to defeat ISIS.

Meanwhile, the government of Iraq has been unable to prevent militias for which it has legal responsibility from attacking — and now killing — those coalition forces operating as guests of Iraq. Nor has Baghdad shown the ability to hold to account militia leaders and associated politicians who have repeatedly incited violence against the coalition and against Iraqi anti-corruption protesters. And questions must also be raised about how groups on the Iraqi government payroll and able to make use of many of the resources of the Iraqi state are apparently able to use those funds and materiel against Iraq’s allies.

It’s time for Iraq to care more. In addition to the Iranian intervention in Iraq’s sovereignty and the creeping capture of the functions of the state by militias, the State of Iraq is now legally responsible for the killing of U.S. and British service personnel. A senior U.S. State Department official essentially made that point on March 20, saying the United States is “enormously disappointed” that the Iraqi government has failed to fulfill its obligation to protect coalition forces operating inside the country, according to Reuters.

At a minimum, Iraq is responsible based on the international law of state responsibility. With the Hashd al-Sha’abi so clearly an organ of the Iraqi state, Iraq owns their conduct. Iraq can’t rely on the — accurate — claim that the militias are acting in an “excess of authority or [in] contravention of instructions.” True as this is, it’s irrelevant under Article 7 of the ILC’s articles of State responsibility. The United States, the United Kingdom, and Iraq are not in an armed conflict, and so (for the avoidance of doubt) an armed attack on coalition service personnel by Iraqi state organs violates both international law and domestic Iraqi law.

Iraq now has a number of obligations under the law of state responsibility to the United States, the United Kingdom, and any other member states of the Combined Joint Task Force that suffer losses (e.g. the strike by PMF affiliates this week on the base hosting the Spanish forces). The government of Iraq is under an obligation to make full reparation for injuries caused. Under Article 31 of the ILC’s articles, “injury” includes any damage, “whether material or moral,” caused by the internationally wrongful act, and so likely includes payment for any damaged equipment, in addition to reparations and compensation for the families of the dead and injured. This may include payments to the wronged States to cover medical costs, as well as lost earnings (per Article 36).

Iraq is also required to cease the violations and to offer appropriate assurances and guarantees that they won’t be repeated (Article 30 of the Articles of State Responsibility). This means Iraq is obliged under international law to assure the coalition it will not allow its state organ (the Hashd al-Sha’abi) to conduct further attacks. There are a number of ways it can do this: it could amend its legislation, disincorporating problematic militias that refuse to obey the chain of command. Alternatively, it could take steps to bring the formation under its effective control, appropriately punishing those who violate international law or Iraq’s domestic laws and Military Penal Code. While these steps will come with political costs, they would not be without support from within Iraq, and would ensure Iraq is not liable for further violations.

Potential Civil Actions in Allied Courts

American service personnel victims or their families also could bring claims against Iraq in U.S. courts. In recent years, families of killed and wounded military personnel have brought claims against Iran in the U.S. federal courts. In one case, Timothy Karcher, et al., v. Islamic Republic of Iran, former veterans and families brought civil action under the Foreign Sovereign Immunities Act for injuries inflicted by its proxies in Iraq between 2004 and 2011. That case names militias such as Kata’ib Hezbollah, Badr, and Asa’ib Ahl al-Haqq, which today make up the core of the Iranian aligned component of the Hashd al-Sha’abi.

But similar actions by the same militias after November 2016 will open Iraq to similar civil suits. And that risk will remain so long as Iraq continues to include designated Foreign Terrorist Organizations within its official ranks while failing to appropriately control them.

Reducing Liability With Security Sector Reform

 Iraq has an obligation under international law to fix this problem. The United States should prioritize supporting Iraqi officials and lawmakers in bringing about effective security sector reforms. Degrading the legislative and political power structures currently empowering these violent militias will ultimately have a far greater and more lasting effect than retaliatory air strikes.

U.S. strikes against relatively low-level members of the PMF brigades and weapons dumps have a limited deterrent effect, at best. So long as the Hashd al-Sha’abi brigades have access to State funding streams and equipment caches, occasional hits won’t blunt the militias’ ability to act.

If the United States really wants to deter the Hashd al-Sha’abi using kinetic means, it would have to hit leaders — and not in a 24-hour window after a strike, but as the targets are identified. In the aftermath of any PMF attack, militia leaders will know to take cover, hiding among civilians or over the border inside Iran.

But many of these leaders are, in effect, officials of the Iraqi state. Moreover, targeting these leaders kinetically risks further escalation with the militias and their sponsor, Iran.

There is widespread support for reducing the Iran-backed PMF’s grip on power from within Iraq. The ongoing protest movement against government corruption has frequently focused its outrage at the Hashd al-Sha’abi and Iranian influence in government, and protesters and journalists have been attacked and killed by PMF militiamen.

Meanwhile there have been calls from political leaders over recent months for PMF reform. And many Iraqi politicians have moved to condemn the PMF’s attack on Taji this week, although the subsequent U.S. strikes have also drawn criticism. There is even concern from within the wider PMF about the growing power of the Iran-backed militias. In short, there is likely to be political support from a broad coalition of Iraqis to see political and military reform of the PMF.

Cutting the bad-faith militias out of the Iraqi armed forces wouldn’t just be a case of rebranding. Doing so would begin to deprive the groups of some of the legitimacy and power networks they have been able to accrue as government “servants,” not to mention a loss of government salaries. Doing so also would open a path to prosecution of individuals attacking Iraq’s allied guests.

Further, removing the offending militias from the official armed forces would remove a legal ambiguity for targeting purposes. The U.S. government refers to PMFs as “SMGs” (Shi’ite militia groups) when referring to hostile PMF militias, indicating an awareness of the difficult truth of the PMF’s legal status as an organ of an allied state. If Iraq instead elects to maintain the status quo, it is likely the militias will still continue to attack coalition forces. In that event, the coalition will almost certainly exercise its right to self-defense, placing Iraq in an increasingly difficult position and risking escalation at a time when the Islamic State is attempting to revive itself.

It’s clear that there is a mismatch between the legal reality of the Hashd al-Sha’abi’s position as part of the Iraqi state, and the factual realities of its role as an Iranian proxy leading the resistance against the U.S.-led counter-ISIS coalition. It is also clear that only the militias and Iran benefit from maintaining this legal status quo.

While it is up to Iraqis to resolve matters of domestic Iraqi law, Iraq must find a way to meet its international legal obligations arising under the laws of state responsibility. That includes finding a way to bring its militias under control, or disincorporate them. Meanwhile, the U.S. should encourage Iraqi lawmakers to begin security sector reforms, and provide long-term assurances of support, if requested, as Iraq undertakes this project. Legal reform of the Hashd al-Sha’abi will have a more durable effect on these hostile militias than a few air strikes.

IMAGE: A picture taken on March 13, 2020 shows destruction at Karbala airport in the Iraqi shrine city, one of the areas targeted by US military air strikes against a pro-Iranian group in Iraq following the deaths of two Americans and a Briton in a March 11 rocket attack on a US base in Taji. (Photo by MOHAMMED SAWAF/AFP via Getty Images)

 

About the Author(s)

Crispin Smith

Crispin Smith is a researcher focusing on Iraqi security and law of armed conflict issues, and is a serving officer in the British Army Reserve. Any opinions expressed are his alone.