Iraq’s Legal Responsibility for Militia Attacks on U.S. Forces: Paths Forward

In the space of less than a month, coalition forces in Iraq have endured four separate rocket barrages. These attacks have killed and wounded coalition personnel and Iraqi civilians. Meanwhile, a campaign of bombings targeting Iraqi trucks – alleged to be carrying supplies to the coalition – has increased in intensity, while larger Iraqi militias have apparently launched attacks on Saudi Arabia in potential coordination with Yemen’s Houthis. All of these attacks were carried out by Iraq’s Iranian-backed militias – which collectively refer to themselves as “al-muqawama al-islamiyya” (Islamic Resistance). But while Iran has significant control over the militias, Iraq also bears legal responsibility for illegal militia attacks against the coalition. This is because the militias, despite routinely operating without regard for the rule of Iraqi law, are ultimately organs of the Iraqi state. Iraq has a duty to prevent further attacks, and may bear some liability for harms created by these “semi-non-state” actors.

The Recent Attacks in Context

The attacks – though becoming more frequent – are the latest in a spiral of violence since 2019. The violence greatly intensified in early 2020 after the killing of Iranian commander Qassem Soleimani and Iraqi militia leader Abu Mahdi al-Muhandis. But in October, Kata’ib Hezbollah (KH, one of the most powerful Iran-backed groups) announced a ceasefire (widely understood to have been imposed by Iran), which led to a fall in rocket attacks. Not all militias supported this ceasefire: Asa’ib Ahl al-Haq (AAH), another prominent militia, made clear its opposition, and occasional rocket attacks continued to occur throughout the period (leading to fierce criticism from KH leaders, and online spats between militia online influencers).

Increasingly, the militias – though themselves Iranian proxies – also operate their own proxies of a sort: “facade groups” that exist on paper to claim responsibility for controversial actions and to obfuscate attribution. A host of new groups have emerged over the last twelve months to claim attacks (mostly through online statements), only to disappear and be replaced by a new name. Their organizational titles have included Usbat al-Tha’ireen (“League of the Revolutionaries,” which claimed early attacks, including a lethal attack on Taji in March 2020), Ashab al-Kahf (“People of the Cave,which has claimed numerous convoy strikes, along with a rocket attack on the U.S. embassy in November), Saraya al-Awliya al-Dam (“Companies of the Guardians of Blood,” which claimed the Erbil attack in February), “Qasim al-Jabbarin” (“Defeaters of Arrogance,” which also frequently claims convoy attacks), and al-Liwa Wa’ad Al-Haq (“True Pledge Brigades,” which claims attacks on Saudi Arabia). These groups, and others like them, exist to muddy attribution, slow adversaries’ decision making, and introduce enough uncertainty to make effective reaction difficult. Plenty of evidence exists in both open and closed source that proves them to be mere facades, acting as fronts for larger (real) militia such as KH, AAH, Harakat Hezbollah al-Nujaba (HN), and Kataib Sayyid al-Shuhada (KSS).

Some arrests relating to rockets have occurred. KH personnel were arrested (though all-bar-one were released) for attacks by Usbat al-Tha’ireen in June. An AAH fighter was detained in December for his role in the November rocket attack claimed by Ashab al-Kahf. Most recently, Kurdish authorities arrested KSS-linked individuals connected with the February Feb. 15 Erbil attack. But convictions have been limited, and arrests remain the exception – not the norm.

The Most Recent Cycle: “A New Page”

The Feb. 15 attack on Erbil was the first time in months that militias targeted a U.S. military installation (although many of the rockets landed in civilian areas of downtown Erbil). Days later, the U.S. launched an airstrike on militia positions on the Syrian side of the Iraqi-Syrian border near an unofficial militia-run crossing point. Two militias were hit: KSS, a group known to operate near Erbil, and which had been linked to the attack, and KH. Only one KH fatality was acknowledged by the groups, though initial reports by the Syrian Observatory for Human Rights at least initially recorded a much higher number. U.S. officials also suggested that going forward  further U.S. military strikes for militia attacks are potentially in the offing.

In response to the U.S. strike on Feb. 25, the muqawama militias placed themselves on a war footing. On March 3 a militia (this time highly likely to have been KH) launched an unusual early morning, daylight rocket attack on a major U.S. installation. A subsequent set of statements made through semi-official channels indicated an end to the “ceasefire” and the lull in major attacks undertaken by KH. A statement by the Iraqi muqawama’s “Coordinating Council” made their stance explicit: “We are facing a new page from the pages of the resistance, in which the weapons of the muqawama will reach all occupation forces and their bases in any part of [Iraq]. The muqawama has the legal and national right and popular support for doing this… The muqawama sees confrontation as the only option.”

Militia Attacks Against the Coalition Violate Iraqi and International Law

The militias frequently make quasi-legal arguments or reference international law to justify targeting coalition forces. The coalition is portrayed as an occupation force violating Iraq’s sovereignty with the claim that Iraqis support (discriminating) militia attacks against the military forces of the occupiers. Attacks against this “occupier” are therefore, per the militias, legal. This is false. The coalition operates on Iraqi soil at the invitation of successive elected Iraqi governments, and is tasked with supporting local forces in combating ISIS (a group that, though much diminished, remains a threat to stability). Since the sovereign state of Iraq has consented and continues to consent to the U.S. and coalition presence, there can be no occupation (in Iraq). Attacks are also not discriminate: militias have targeted the U.S. embassy, civilian airports, and private (civilian) companies associated with coalition forces. Hence, clear violations of the law of armed conflict. Rockets and IEDs frequently also miss their targets and kill civilians. And polling suggests Iraqi Shi’ites are not particularly supportive of the groups and their goals: recent polls indicates over 85 percent of Iraqis, including 82 percent of Shia, believe Iran plays a negative role in Iraq.

In short, militia attacks are attacks on forces present as guest of the Iraqi government, and are unjustified either as a matter of international or domestic law.

Iranian Control

The muqawama’s allegiance to Iran is unquestionable. Senior militia leaders frequently hold coordinating meetings in the country, and have close ties with the Islamic Revolutionary Guard Corps and its elite Qods force. Iran has long trained and equipped the militias, and some militias – such as KH – have become especially trusted partners. Others – like AAH and its ambitious leader Qais al-Khazali – appear to have defied Iran on occasion. But anyone doubting Iran’s ultimate control over Iraq’s militias need only look to the beginning of this year for evidence: despite months of promises to avenge the deaths of Qassem Soleimani and Abu Mahdi al-Muhandis on the anniversary of their killing, and despite repeatedly proving their ability to hit coalition targets, when the anniversary came no major attacks materialized. The most likely reason: President Trump’s threats to hold Iran responsible. In one tweet, for example, he stated “our embassy in Baghdad got hit Sunday by several rockets, guess where they came from: IRAN.” “Now we hear chatter about additional attacks against Americans in Iraq … Some friendly health advice to Iran: If one American is killed, I will hold Iran responsible. Think it over.” While the former President’s approach to diplomacy helped escalate the current cycle of violence in the first place, his threats seem to have forced Iran to demonstrate its overall control of militias.

Meanwhile the muqawama do not hide their allegiance.  Their propaganda channels are strident in their praise for the Islamic Republic, its Supreme Leader, and Iranian-centric interpretations of wilayat al-faqih. Decisionmakers must continue to grapple with this close relationship.

Iraq’s Legal Responsibility for Militia Attacks

But despite their actions, and their close ties to Iran, there is another side to the militias. KH, AAH, KSS, HN, and other major muqawama groups are all officially and legally organs of the Iraqi state through their membership of the Hashd al-Sha’abi (Popular Mobilization Forces, or PMF), an umbrella organization comprising mostly Shi’ite groups that rose up in 2014 to join the fight against ISIS.

At the end of 2016, Iraq’s parliament passed “Law Number 40 of the year 2016: the Law of the Hashd al-Sha’abi Committee.” The law formalized a governing body for the militias (the “Popular Mobilization Committee” or PMC), while incorporating the Hashd al-Sha’abi into the Iraqi armed forces. The law also formalized a command structure, with the PMC and subordinate brigades answering directly to the Iraqi Prime Minister as Commander in Chief of the Armed Forces under country’s Constitution. A series of Prime Ministerial Orders built upon that law over the subsequent years to regulate the militias by formalizing pay structures, a rank system, and the applicability of Iraqi military laws and regulations.

The result is that many of the key militia groups responsible for attacking the coalition also draw Iraqi government salaries while operating as official members of the security forces. KH, a U.S. designated terrorist organization, is also the 45th, 46th, and 47th PMF Brigades. AAH, also designated and likely responsible for rocket attacks in November and December owns the 41st, 42nd, and 43rd Brigades. KSS operates the 14th PMF Brigade. Of course, in reality these units rarely take orders from the Prime Minister; any government coordination comes from Abu Fadak, the acting deputy chairman of the PMF and a former KH intelligence officer. Though he holds a senior Iraqi government role, Abu Fadak was designated for terrorist activities under Executive Order 13224 on Jan. 13, 2021.

While militias benefit greatly from their status, the Government of Iraq bears liability for their illegal actions. International law of state responsibility defers to domestic legislation when determining who or what is an entity of a given State. In this case, Iraq has very clearly elected to incorporate the PMF, and must own their conduct.

And according to Article 7 of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts Iraq must remain responsible even when its state organ (e.g. a PMF militia) 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.” This most certainly extends to the killing and maiming of allied personnel operating in Iraq at Iraq’s request.

Iraqi Responsibilities Give Rise to Iraqi Obligations

Iraq now has several 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.

The government of Iraq may be under an obligation to make 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 might include 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).

● Cease and Desist. Iraq is also required to cease militia 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 that it will not allow its state organ (PMF affiliates) to conduct further attacks. One option to achieve this outcome would be to amend its legislation, disincorporating problematic militias that refuse to obey the chain of command.

● Leverage Iraqi Law. Alternatively, Iraq could take steps to bring these militia forces under its effective control, appropriately arresting and punishing those who violate international law or Iraq’s domestic laws and Military Penal Code. 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 months 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 steep penalties including capital punishment. The statute also provides explicit added protection for foreign allied forces when engaged in joint military operations with Iraq. 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.”

● Arrests – and Convictions. Prime Minister Kadhimi has made efforts to arrest perpetrators of attacks – but too often suspects have been released after militias pressured authorities. And too often the chain of attribution is not followed all the way to more senior commanders and political figures. If no accountability exists for attacks, they are unlikely to cease.

● Hold Iran Responsible. While Iraq may have legal responsibility for the militias, Iran has significant control and likely has the power to prevent attacks. If Iran will not rein in its proxies, Iraq should publicly expose the linkages between the militias, their leaders, and the Islamic Revolutionary Guard Corps.

Iraq’s Partners Have Responsibilities Too

The reality is that reforming the PMF and holding the muqawama accountable is really hard. Arrests in June of last year led to KH storming Baghdad’s International Zone and besieging Prime Minister Kadhimi’s house. Militias routinely kill journalists who expose their crimes, and send mobs to the houses of politicians who insult or otherwise oppose them. In the next Iraqi elections, militias will again run for office, and may well strengthen their political hand despite almost two years of protests against their corruption. There are actions the United States and other foreign capitals can take to help.

● Kinetic Isn’t the (Only) Answer. The militias have become used to occasional airstrikes. Israeli jets have hit their positions in Syria and (occasionally) Iraq for years. Indeed, the area of February’s U.S. airstrike is a popular site for Israeli attacks. The groups almost certainly factor limited strikes into their strategies. But militias are much more sensitive about their social credibility, their domestic support, and, yes, their legal legitimacy. They become defensive when accused of violating the law, and hold regular conferences to discuss legal matters and lawfare. This is at least in part because their ultimate goal is state capture, which requires a level of popular support and legitimacy. As a result, the muqawama are particularly sensitive to efforts to expose their legal and human rights violations, indiscriminate attacks, and criminal enterprises. International actors should work to investigate and publicly expose these actions, and where possible assist the legitimate authorities in bringing perpetrators to justice.

● Publicly Attribute Attacks and Violations. The muqawama thrives in uncertainty and fear evidence. Coalition forces and investigators should publicize (where classifications permit) evidence linking individuals, militias, and state-actors to specific harms. This will help local investigators bring claims in the future, while forcing militias to take ever more complex steps to mask their identities and, as a result, reducing their freedom of action. The United States could also build credibility. For example, it would be beneficial to substantiate the Pentagon’s claim that KH was linked to the Feb. 15 strike, especially given the group’s announced ceasefire beforehand, Iran’s greater control over the group, and the preceding lull in such attacks.

● Targeted Designations. Legislation like the U.S. Global Magnitsky Act and the U.K. Global Human Rights Sanctions Regulations allows states to narrowly target individuals and groups linked to human rights violations. Designations under this type of legislation has weight, not only because it limits the assets of abusers, but also because it hurts militia leaders’ credibility as potential future political leaders. Sanctions are not taken lightly by Iraqis: many remember the (blanket) sanctions of the Saddam Hussein years that inhumanely hobbled the whole country. It is wrong to think of these instruments as “soft” – targeted sanctions can have more of a political and social effect than the occasional military strikes, for example. 

● Support Iraq’s Judiciary. Michael Knights of the Washington Institute argues that “international players should scour their rule of law budgets and programs to find tangible, fast-track assistance options that can bolster Iraq’s special counterterrorism and anticorruption judges.” So long as Iraq’s judiciary is not fully protected and funded, holding to account rogue militias (which often operate similarly to organized criminal enterprises) will be difficult. Lessons of success and failures, advantages and pitfalls could be identified from U.S. experiences in convicting organized criminal groups, or from U.K. experiences convicting terrorists in Northern Ireland during the troubles. 

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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.