The assassination of prominent and respected Iraqi security analyst Hisham al-Hashimi on July 6 placed Iraq’s Popular Mobilization Forces (PMF) back in the global spotlight. Most commentators and analysts believe members of the Iran-backed Kata’ib Hezbollah, one of the PMF’s most prominent units, were behind the attack, demonstrating (once again) the contempt that these Iran-supported elements have for the rule of Iraqi law. But lately, the militias have at last been coming under much-needed pressure from Baghdad.
On the night of June 25, Iraq’s Counter Terrorism Service (CTC) detained 14 members of Kata’ib Hezbollah (KH). This was the moment that elements of these militia groups — specifically those brigades loyal to Iran — feared would come, after Iraqi Prime Minister Mustafa al-Kadhimi won parliamentary support to take office in May. And while the short-term consequences of those arrests now appear to be limited (the detainees were quickly transferred to the PMF’s Security Directorate, essentially releasing all but one of them immediately), the long-term legal effects could be far-reaching. It has implications for Iraq’s security sector, its militias, and for the United States and Iran: a more assertive posture towards these forces by the government has the potential to transform power dynamics. Meanwhile, political and popular backlash resulting from Hisham al-Hashimi’s death also provides a glimmer of hope that this time, the government of Iraq may have the resolve and support to take necessary action.
Iran-backed militias are the largest and most powerful of the fractious PMF, known as the Hashd al-Sha’abi. Many of those 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 Hashd al-Sha’abi later built political and legal legitimacy fighting the Islamic State, evolving from illegal militias that were banned under Article 9 of Iraq’s Constitution to a core organ of the Iraqi armed forces when parliament passed “Law Number 40 of the year 2016: the Law of the Hashd al-Sha’abi Committee.”
Since then, the Iran-backed elements used the PMF’s legal legitimacy to consolidate power. In 2018, the militias illegally participated in Iraq’s elections, in contravention of the Constitution’s Article 9 and of Article 74 of Iraq’s Law of Military Punishments (No. 19 of 2007), which explicitly prohibit members of the armed forces from political activities. Their political influence and the parliamentary seats won by some of their members gave the militias a major role in choosing Adil Abdul-Mahdi as prime minister in 2018. This in turn allowed them to take control of a number of key ministries and governmental authorities.
But 2020 has been a year of setbacks for the PMF. On Jan. 3 local time, a U.S. air strike in Iraq killed not only Qassem Soleimani, the Iranian general heavily involved in coordinating the various militias’ efforts next door, but also the PMF’s operational commander, Abu Mahdi al-Muhandis (who was also the founder and head of KH). Meanwhile, the Hashd al-Sha’abi has been the subject of growing popular anger from Iraqi protesters opposing government corruption and creeping Iranian influence. Those same protesters forced Abdul-Mahdi from office this year. In May, he was finally replaced by al-Kadhimi, the head of the Iraqi National Intelligence Service, and a politician with a well-known desire to reform the militias and bring them under the Iraqi government’s control.
Exposing the Facade
Since Soleimani’s death, Iraqi militias have launched regular missile strikes on U.S. military bases and the Baghdad International Zone. In March, one of those missile attacks killed two Americans and one British Army soldier. These strikes continue to the present and are widely believed to be the work of elements of the Iranian-backed Hashd al-Sha’abi militias including (though not limited to) Kata’ib Hezbollah. Though KH is a U.S.-designated foreign terrorist organization and often acts against the interests and wishes of Iraq’s elected government, it also is part of the Hashd al-Sha’abi and therefore still a part of Iraq’s armed forces (making up the PMF’s 45th Brigade).
In order to avoid jeopardizing its lucrative and politically valuable position within the Iraqi armed forces, the Iranian-backed brigades launched the missile strikes under the guise of new and ostensibly unaffiliated brand names. Previously unheard-of units like Usbat al-Tha’ireen (League of the Revolutionaries) and Ashab al-Kahf (People of the Cave) claimed credit for attacks, and disseminated threatening messages across social media. It is widely believed that the groups were set up as front organizations to allow Iran-backed PMF units to continue to engage in kinetic action against the United States while protecting themselves from legal and political repercussions.
But the June 25 raid blew a significant hole in that facade. Michael Knights at the Washington Institute for Near East Policy has detailed how the Iraqi Intelligence Services and the Counter Terrorism Service (CTS), both elements of the security services that are firmly loyal to the new prime minister, generated the evidence needed to secure a search-and-arrest warrant for the raid. The CTS used its in-house judicial mechanism to produce a legal order on the argument that it was necessary to prevent a planned rocket attack and detain any suspects at the site. According to Knights, this is the first time the Iraqi government has tried and succeeded in foiling such an attack based on preemptive intelligence. The detainees were all members of Kata’ib Hezbollah, providing further evidence that the Iranian backed PMF brigades are behind the ongoing rocket campaign. Had the June 25 attack not been foiled, it almost certainly would have been claimed by a “facade organization.” The most recent missile attack on Baghdad’s Green Zone (on Sunday) was quickly claimed by Usbat al-Tha’ireen.
Applying Iraq’s Laws to the PMF
The legal ramifications for both Iraq and for Kata’ib Hezbollah and its affiliates are significant. Iraq likely has international legal liability for missile attacks on the United States and its allied partners, because the Hashd al-Sha’abi was incorporated under Iraqi domestic law as an organ of the state. Iraq must therefore own any wrongful conduct, cease any violations, and offer guarantees that they won’t be repeated. The June 25 arrests signaled that Iraq may be serious about doing so.
But Kata’ib Hezbollah and the wider Hashd al-Sha’abi should also face domestic legal consequences. After they were incorporated into the Iraqi armed forces in 2016, the then-Prime Minister Haider al-Abadi issued an Executive Order in 2018 that explicitly brought the formation under the “Law of Military Punishments No. 19 of 2007” and the “Law of Military Criminal Procedure No. 22 of 2016” (amongst others).
The 2007 Law of Military Punishments provides a comprehensive list of crimes and punishments for Iraqi service personnel. Notably, in light of the last few month’s rocket campaigns and some PMF brigades’ resistance to the official chain of command, Article 28(1) provides for punishment for those who seek to usurp the government’s rule or place part of Iraq under the control of a foreign government. Meanwhile, Article 29(8) sanctions those who fail to carry out their duties, act without authority, or act to obstruct the government, categories that could apply to killing or intending to kill a member of the military, an allied military, or a civilian. The code allows for capital punishment for violations.
The statute also provides explicit protection for foreign allied forces. Article 5 stipulates that “crimes committed against troops belonging to the Army of an allied country while carrying out joint military operations shall be considered a crime against Iraqi troops when that country has enacted a reciprocal agreement with the Republic of Iraq.”
In short, by explicitly connecting Kata’ib Hezbollah to the ongoing missile campaign, the government of Iraq has begun to demonstrate a willingness to apply the rule of law to these groups, and has legislative cause to hold them to account.
Of course, the 2007 law doesn’t only apply to instances where Iraqi personnel disobey orders or attack foreign troops. Service personnel are barred from participating in politics under Article 74 — itself a codification of the Constitution’s same prohibition — and sets a five-year prison sentence as punishment for violations. Meanwhile, members of the Iraqi Security Forces are prohibited from various kinds of profiteering under Chapters 9 and 10 of the law. Article 61 imposes a 10-year prison sentence on those who would misuse their military authority to seize the funds of others or collect money without authorization.
Despite this legal code (not to mention Iraq’s civilian laws), political interference by the militias has become a fact of life in Iraq, even as many units have become rich in recent years through a combination of illicit businesses, extortion, and rent-seeking behavior. But if al-Kadhimi is serious about reform, he has a wealth of grounds to prosecute militias.
For the U.S. and allied countries, Iran-backed Hashd al-Sha’abi units like Kata’ib Hezbollah are mainly viewed through the lens of their attacks on coalition forces and embassies, or their myriad violations of international human rights laws. But their flagrant violation of Iraq’s own laws are more likely to be their undoing. Extortion and rent-seeking, kidnappings, attacks on protesters, and rejection of the official chain of command all have consequences for the lives of ordinary Iraqis. And even before these raids, the Hashd al-Sha’abi had been losing popular influence. Last month, four of the formation’s most popular (albeit less powerful) units, the “shrine militias” or “Ataba” split away, after months of frustration at the growing dominance of Iran-backed units.
The Response: Attacks on Iraqi Protesters, Journalists
But rather than accept the need to reform, the Iran-backed militias seem committed to preserving their current position. They and their political wings view the recent developments as an existential threat. Hostile to al-Kadhimi from the start, the June raid (carried out by his most loyal security sector elements) confirms the militia’s worst fears that he is seeking to reform the PMF, forcing them to respect the rule of Iraqi law and obey the wishes of the legal chain of command.
This would find popular support among Iraq’s anti-corruption campaigners, who have been targeted repeatedly – along with journalists and other vocal activists — for attack and detention by the militias and their supporters (Hisham al-Hashimi’s assassination is but the latest in a string of killings of protesters and critics derided by Iran-backed units and their supporters). In return, protesters have become more vocal about their opposition to the militias, burning down their headquarters in the south, and calling for investigations into the secret detention centers.
Hashd al-Sha’abi media channels and affiliated politicians have jumped to portray the June raid as (variously) a misunderstanding, an example of unacceptable political overreach by the prime minister, a case of false imprisonment, and part of a sinister plot against the Hashd al-Sha’abi driven by the United States. And militias continue to link al-Kadhimi and his supporters to the United States in the hope that this will discredit his actions. Nevertheless, the raid was planned and executed by Iraqis, and al-Kadhimi has subsequently defended its legitimacy.
In addition to Hashd al-Sha’abi concerns about the prime minister’s reformist intentions, some brigades also are likely to be concerned about their future electoral chances. As a result of the political challenges facing Iraq (not to mention the social and economic challenges arising from the coronavirus pandemic and the collapse in oil prices), it is likely that required elections will be postponed until next year. But for those PMF militias that have focused efforts on building up political bases (such as the Badr Organisation and Asa’ib Ahl al-Haq), further negative publicity threatens their electoral prospects. The political wings will almost certainly continue to run information campaigns intended to discredit government attempts to hold the kinetic units accountable, but in private there is likely to be frustration that the KH has created an embarrassing distraction from wider political goals.
Meanwhile, the threat of more widespread violence looms. On the night of the CTS raids, KH pulled together a company of over 100 fighters and drove to the International Zone in order to intimidate government officials into releasing the detainees. Their gambit worked, as it resulted in the compromise under which the 14 KH men were released to the KH-run PMF Security Directorate. In the short term, the government’s decision to back down was sensible — Iraq does not need an extra conflict. But the compromise creates the specter of militias resorting to direct and open force against the government in the event of future law enforcement operations. (And arguably this has already begun: analysts like myself believe Hisham al-Hashimi’s murder was a deliberate challenge and threat to the Prime Minister.) Moving forward, al-Kadhimi and his allies will have to prepare for how to navigate future violent backlash to further reforms and investigations.
Supporting Iraq on its Militia Problem
Iraq has an international obligation to prevent attacks on coalition forces operating inside the country at the government’s invitation. Al-Kadhimi has taken a significant political risk by trying to honor this commitment, and that should be applauded and supported. Coalition countries also should look to the militias’ many instances of domestic legal violations, and assist the Iraqi authorities in exposing crimes and international human rights violations.
The militias’ hypocrisy in trying to benefit from their position as a state organ, while repeatedly violating the laws of the state and the rights of its citizens should also be repeatedly highlighted. This will force the militias to either clean up their act and submit to reform, or risk prosecution on the one hand, and electoral disaster in eventual elections on the other — destroying their political gains of recent years.
Coalition member states also should consider applying sanctions to the worst violators, as the United States has already done, designating KH and Asa’ib Ahl al-Haq as Foreign Terrorist Organizations, and sanctioning leaders using the Global Magnitsky Human Rights Accountability Act. Iraq’s other allies should consider doing the same, using similar instruments (such as the UK’s new Global Human Rights Sanctions Regulations). Actions like these would not only limit the resources available to the militias, but also would send a clear message of support to those in Iraq working to protect the rule of law.