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Report on the Protection of Civilians in the Non International Armed Conflict in Iraq: 5 June – 5 July 2014; Human Rights Council Resolution S-22/1; & Security Council Resolution 2170, 2178

Published online by Cambridge University Press:  20 January 2017

Jonathan P. Worboys
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Extract

The United Nations (UN) Report on the Protection of Civilians in the Non International Armed Conflict in Iraq (Office of the High Commissioner for Human Rights and UN Assistance Mission for Iraq), UN Security Council Resolutions 2170 and 2178, and UN Human Rights Council Resolution S-22/1 (UN Documents) form a key part of the international community’s efforts to resolve, manage, and document the ongoing non-international armed conflict in Iraq.

Type
International Legal Materials
Information
International Legal Materials , Volume 54 , Issue 2 , April 2015 , pp. 306 - 346
Copyright
Copyright © American Society of International Law 2015

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References

* This text was reproduced and reformatted from the text available at the Office of the High Commissioner for Human Rights website (visited March 23, 2015), http://www.ohchr.org/Documents/Countries/IQ/UNAMI_OHCHR_POC%20Report_FINAL_ 18July2014A.pdf.

* This text was reproduced and reformatted from the text available at the Office of the High Commissioner for Human Rights website (visited March 23, 2015), http://www.ohchr.org/EN/HRBodies/HRC/SpecialSessions/Session22/Pages/22ndtSpecialSession.aspx.

* This text was reproduced and reformatted from the text available at the United Nations website (visited March 23, 2015), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2170%20(2014).

* This text was reproduced and reformatted from the text available at the United Nations website (visited March 23, 2015), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2178%20(2014).

1 Even though the armed conflict in Iraq has seen foreign military intervention, the conflict remains non-international for the purposes of international law. See generally Dapo Akande, Legal Concepts, in International Law and the Classification of Conflicts 32–49 (Elizabeth Wilmshurst ed., 2012).

2 Iraq: US Air Strike on Islamic State Militants in Iraq, BBC News, Aug. 8, 2014, available at http://m.bbc.co.uk/news/world-middle-east-28709530.

3 UN Office of the High Comm’r for Human Rights & UN Assistance Mission for Iraq, Report on the Protection of Civilians in the Non-International Armed Conflict in Iraq (2014), [hereinafter OHCHR Report], available at http://www.ohchr.org/Documents/Countries/IQ/UNAMI_OHCHR_POC%20Report_FINAL_ 18July2014A.pdf.

4 Id. at 2.

5 Iraq Crisis: Islamic State Accused of Ethnic Cleansing, BBC News, Sept. 2, 2014, available at http://m.bbc.co.uk/news/world-middle-east-29026491.

6 For an overview of the responsibility to protect, see Paul R. Williams, J. Trevor Ulbrick & Jonathan Worboys, Preventing Mass Atrocity Crimes: The Responsibility to Protect and the Syria Crisis, 45 Case W. Res. J. Int’l L. 473 (2012).

7 Iraq Crisis: Maliki Quits as PM to End Deadlock, BBC News, Aug. 15, 2014, available at http://m.bbc.co.uk/news/world-middle-east-28798033.

8 Iraq Government Reaches Deal with Kurds on Oil Exports, BBC News, Dec. 2, 2014, available at http://m.bbc.co.uk/news/world-middle-east-30289955.

9 For the scale of foreign fighters traveling to Iraq, see, Spencer Ackerman, Foreign Jihadists Flocking to Iraq and Syria on ‘unprecedented scale’ – UN, the Guardian, Oct. 30, 2014, available at http://www.theguardian.com/world/2014/oct/30/foreign-jihadist-iraq-syria-unprecedented-un-isis.

10 See S.C. Res. 1973, U.N. Doc. S/RES/1973 (Mar. 17, 2011).

11 S.C. Res. 2170, pmbl., UN Doc. S/RES/2170, at 2 (Aug. 15, 2014); OHCHR Report, supra note 3, at 6.

1 Wherever possible, UNAMI sought to cross-check the information contained in this report directly with witnesses and primary sources, or via two or more independent sources. Where circumstances, such as the security situation or other constraints did not allow this, it is indicated in the text. When different sources agreed on an incident but differed on casualty figures, for example. UNAMI used the most credible figures.

2 In resolution 1770 of 10 August 2006, the UN Security Council, at paragraph 2(c) specifically requested the UNAMI to “promote the protection of human rights and judicial and legal reform in order to strengthen the rule of law in Iraq;. . . “ UNAMI’s mandate was extended in the same terms for 2013/2014 by Security Council resolution 2110 of 24 July 2013. In accordance with its mandate, UNAMI Human Rights Office conducts a range of activities aimed at promoting the protection of civilians in armed conflict, including undertaking independent and impartial monitoring of, and reporting on, armed violence and its impact on civilians and violations of international humanitarian law and international human rights law.

3 ISIL grew out of a number of Islamist extremist insurgency and terrorist groups, most importantly ‘al-Qa’eda in Iraq’ ( “AQ-I “); it was known formerly as the Islamic State of Iraq ( “ISI “), and also as the Islamic State of Iraq and Syria ( “ISIS “). ISIL root organisation (AQ-I) was established on 15 October 2006, originally as an umbrella organization composed of and supported by a variety of insurgency groups operating in Iraq, including its predecessor, the Mujahideen Shura Council, al-Qa’eda, Jeish al-Fatiheen, 2015] REPORT ON THE PROTECTION OF CIVILIANS IN THE NON INTERNATIONAL ARMED CONFLICT IN IRAQ: 5 JUNE – 5 JULY 2014 329 Jund al-Sahaba, Katbiyan Ansar Al-Tawhid wal Sunnah, Jeish al-Taiifa al-Mansoura, and other Sunni based groupsIts field of operations were originally in the Iraqi governorates of Baghdad, al-Anbar, Diyala, Kirkuk, Salah id-Din, Ninawa, and parts of Babil and Wasit, etc. ISIL is led by Abu Bakr Al-Baghdadi, who is believed to have been born in Samarra in Iraq. He emerged as the leader of AQ-I in 2010, succeeding the founder of Jamaat al-Tawhid wa al-Jihad Abu Musab al-Zarqawi. ISIL claims to have fighters from the UK, France, Germany and other European countries, as well as the US, the Caucasus, as well as a large number of Arab and Islamic countries. ISIL operated largely independently from other Islamist radical terrorist and insurgent groups, most importantly Jabhat al-Nusra (al-Nusra Front), which is the official al-Qa’eda affiliate. The organisation was believed to have received substantial financial support from wealthy individuals from the Gulf and Saudi Arabia, but its coffers have been considerably swelled by its seizure of oil fields in eastern Syria and Iraq and the reserves of the Iraqi Central Bank held in Mosul when the city fell to ISIL and its associated groups on 10 June 2014. ISIL is on the al-Qa’eda Sanction List of the Security Council in resolutions 1267 of 1999, and 1989 of 2011 which imposes financial sanctions, arms embargo and a travel ban on its members.

4 As of 3 July, UNAMI had conducted 150 interviews with IDPs in areas where they have concentrated, including: Khazir camp, al-Hamdaniya; Gwer, Makhmur; Erbil; Avapiroz Camp, al-Sheikhan; Garmawa camp, near Dohuk city; al-Qosh and Salih Agha in Sulaymaniyah. Interviews were conducted with families and individuals, including women, members of minorities and children, as well as members of ISF who have sought safety in the Kurdistan Region. UNAMI has also interviewed six detainees in the Asayish detention facility in Erbil to get information on specific cases of human rights violations.

5 The following background outlines the main events that have taken place between the end of December 2013 and 5 July 2014. It does not purport to be a comprehensive description or analysis of those events or its root causes.

6 The 1920 Revolution Brigade is a Sunni militia group operating in Iraq that is composed mostly of former Iraqi Army soldiers that had been disbanded by the US Forces in 2003. Its aim is for an ‘independent Iraqi State on an Islamic basis’. Its name refers to a nationalist uprising against the British in 1920. It is believed to be anti-ISIL and anti-al-Qa’eda with Ba’athist and Islamic tendencies more along the lines of the al-ikhwaan (Muslim Brotherhood).

7 The JRTN is the main front for Ba’athist insurgents and remnants of the former regime of Saddam Hussein. The leader of the group is Saddam Hussein’s former right-hand man, Izzat Ibrahim al-Douri. The JRTN espouses a combination of Ba’athist Party ideology and Naqshbandi Sufi Islam, while utilizing the language of jihad so as to bolster its religious legitimacy. The JRTN has established a number of front groups of Ba’athists, unified as the “General Military Council for Iraq’s Revolutionaries “ ( “GMC “). While it is known to be working with and supporting ISIL, the JRTN does not mention ISIL by name – and there are significant ideological differences between the two groups.

8 The IAI, despite its title, is not salafist but is an Islamic organization with a nationalist Iraq agenda that, while predominantly Sunni, also has a small number of Shi’a supporters. It was founded in 2003 following the US and Coalition forces invasion and occupation of Iraq with the aim of freeing Iraq from foreign forces and influences. The organization, led by Ishmail Jboury, is anti al-Qa’eda and on occasion has attacked that organization and its associates in Iraq and in Syria. In 2011 following the withdrawal of US forces from Iraq, the group announced it was demobilizing to form an activist group called the Sunni Popular Movement (or Hirak), which is opposed to the Government led by Nouri al-Maliki. The group reactivated its militia in the fighting in northern Iraq from early June, but is mainly operating in Salah id-Din and Diyala governorates. The group has announced that once the Government of Nouri al-Maliki falls it will attack and destroy al-Qa’eda, ISIL and other affiliates.

9 Tal Afar is located 50 kilometres west of Mosul and some 60 km from the Iraqi border with Syria. The town has a majority Turkmen population.

10 Available online accessed 21 January 2011.

11 JAI is an Islamic extremist group which is struggling to establish a Sunni Caliphate in Iraq. The group is opposed to ISIL’s claim that it represents a state, as opposed to simply being a group, and during 2013 it was known to have been fighting against ISIL. The group is based primarily in Ninewa (Mosul), Kirkuk and Salah id-Din. The group claims to be influential in Fallujah and to be involved in Tikrit – although there are reports that ISIL members have been targeting and killing members of JAI, particularly in Mosul.

12 The JAM is predominantly Sunni-based armed militia, which similar to the IAI, has an Islamic Iraqi nationalist agenda. The group is strictly opposed to al-Qa’eda in Iraq and ISIL, promoting Shari’a law but not takfiri practices. The group is a founding member of the Jihad and Reform Front, which also includes the IAI and reportedly the 1920 Revolution Brigade, although this has not been confirmed.

13 “The Honored City’s Brigades “ is a Sunni based militia that emerged in early 2004 that was opposed to the US forces in Iraq. Its main objective is the establishment of a Sunni Caliphate. The group operates ‘independently’ and is not officially aligned with any front or umbrella group. Following the withdrawal of US Forces in 2011, the group allegedly focused on training fighters and operations in Syria and parts of Iraq. From early 2014 the group has been fighting with ISIL and other groups against the Government of Iraq, although its activities appear to be confined largely to Anbar governorate and the areas around Ramadi and Fallujah.

14 Geneva Convention (I) for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, (entered into force on 21 October 1950) 75 UNTS 31 ( “Geneva Convention I “); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, (entered into force on 21 October 1950) 75 UNTS 85 ( “Geneva Convention II “); Geneva Convention (III) Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, (entered into force on 21 October 1950) 75 UNTS 135 ( “Geneva Convention III “); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, (entered into force on 21 October 1950) 75 UNTS 248 ( “Geneva Convention IV “). 330 [VOL. INTERNATIONAL LEGAL MATERIALS 54:

15 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature on 8 June 1977, 1125 UNTS 3 ( “API “); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature on 8 June 1977, 1125 UNTS 609 ( “APII “).

16 Rome Statute of the International Criminal Court, A/CONF.183/9, Adoption:

17 July 1998 (entered into force on 01 July 2002). 17 Uhler et al., The Geneva Conventions of 12 August 1949 – Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War , p.35.

18 ICRC, Customary International Humanitarian Law, ed. Jean-Marie Henckaerts and Louise Doswald-Beck (CUP/ICRC, Cambridge 2005)

19 Customary international law applicable in both international and non-international armed conflicts defines war crimes as serious violations of international humanitarian law for which there is individual criminal responsibility: see Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge University Press 2010) pp. 301–303. See also article 8 (2) (c) (i) of the Elements of Crime, Rome Statute of the International Criminal Court. War crimes include serious violations of the laws and customs of war applicable in non-international armed conflicts (based primarily on Article 3 common to the four Geneva Conventions of 1949, their Additional Protocol II of 1977, the 1999 Optional Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, the 1989 Convention on the Rights of the Child, the 1994 Convention on the Safety of United Nations and Associated Personnel, the Statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia, and the Statute of the Special Court for Sierra Leone). See War Crimes under the Rome Statute of the International Criminal Court and their source in International Humanitarian Law Comparative Table, ICRC Advisory Service on International Humanitarian Law.

20 United Nations General Assembly resolution A/60/1 of 24 October 2005, available online _http://www.un.org/womenwatch/ods/A-RES-60-1-E.pdf

21 International Court of Justice, DRC v. Uganda, para. 216.

22 16 December 1966, 999 UNTS 171; Iraq signed 1969, ratified by Law 193 of 1970, published in the Official Gazette, Issue 1926 of 7 October 1970, entered into force on 23 March 1976. Iraq has not signed the first optional protocol giving the right to individual petition to the Human Rights Committee nor has it signed the second optional protocol aimed at the elimination of the death penalty.

23 Signed 1969, and ratified by Law no. 193 of 1970, published in the Official Gazette, issue 1926 of 7 October 1970, entered into force on 3 January 1976.

24 Signed 1969, ratified 1970, entered into force on 12 February 1970.

25 Acceded 1986, entered into force on 12 September 1986.

26 Acceded 1994, entered into force on 15 July 1994.

27 Ratified by Law no. 23 of 2007.

28 Ratified 23 November 2010.

29 International Legal Protection of Human Rights in Armed Conflict, OHCHR, 2011, at 24–27.

30 A crime against humanity involves the commission of certain acts, such as murder, torture, rape, sexual slavery, persecution and other inhumane acts. The types of conduct amounting to inhumane acts largely overlap with those recognized as constituting gross human rights violations. The inhumane acts most relevant for present purposes are: extermination; murder; persecution on ethnic grounds; torture; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; rape and gender-based persecution; enforced disappearance of persons; other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. The inhumane acts listed above do not amount to crimes against humanity if they constitute isolated or sporadic events. Instead, they must form part of a larger attack against a civilian population. This attack must be either widespread or systematic. An attack is widespread if it involves “massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims. “ Tadic ICTY T.Ch. II 07.05.1997, para. 468; Kunarac ICTY T.Ch. II 22.02.2001, para. 429. The Rome Statute of the International Criminal Court, article 7(2)(a), also requires that the attack must be directed against a civilian population and be pursuant to, or in furtherance of, a state or organizational policy. A systematic attack requires “organized action, following a regular pattern, on the basis of a common policy and involves substantial public or private resources. . . there must exist some form of preconceived plan or policy “: Akayesu ICTR T. Ch.I, 02.09.1998 para. 580.

31 Because of lack of direct access to a range of sources in Anbar governorate, casualty figures for the governorate are not collected and verified by UNAMI but are provided by official sources. As they have not been verified according to the methodology employed by UNAMI, these figures are listed separately.

32 Wherever possible, UNAMI sought to verify the information contained in this report directly with eye-witnesses and primary sources, or via at least two independent sources. There were circumstances whereby the security situation in Iraq or other constraint did not allow this, as indicated in the text. When different sources agreed on an incident but differed on casualty figures for example, UNAMI used the most credible figure.

33 Figures for Anbar may well be under-reported. Owing to the security circumstances, UNAMI has not been able to verify this information systematically.

34 There are in addition 225,475 Syrian refugees in Iraq. All figures are cited from OCHA, Iraq IDP Crisis: Situation Report No. 1 (as of 4 July 2014).

35 In the days immediately following the attack on Mosul on 6 June, it is estimated that some 500,000 individuals had fled Mosul fearing for their safety. An IOM rapid assessment and response team confirmed this estimation. Of the 500,000, according to authorities in the Kurdistan Region 100,000 individuals had entered Erbil and 200,000 individuals had entered Dohuk. The remainder had relocated to Baghdad or other areas of Iraq. Additionally, it was reported that approximately 25,000 individuals had been displaced within Mosul city

36 OCHA, Iraq IDP Crisis: Situation Report No. 1 (as of 4 July 2014).

37 ibid.

38 These figures are as at 4 July 2014 – the situation is entirely fluid with more families and individuals arriving on a daily basis while some have been relocated or left these camps.

39 ibid.

40 In March 2014, the Commission of Inquiry for Syria accused ISIL of committing crimes against humanity in the northern Syrian provinces of Raqqa.

41 In this report, where the status of a deceased individual as a civilian or a member of the State security forces or as a fighter from ISIL or associated armed groups, the victims is presumed to have been a civilian.

42 In this report, the term ‘prisoner’ is used to denote persons who have been formally convicted of a criminal offence by a properly constituted court under the Iraq’s criminal laws and are being held in prisons as part of the sentence. The term ‘detainee’ refers to persons who have been detained and are awaiting trial but have not been formally convicted or to people who have been arrested or otherwise detained, including persons detained by ISIL and other associated armed groups.

43 Badush prison held both convicted prisoners and (separately) detainees awaiting trial. Given this, UNAMI refers to ‘prisoners’ in reporting this incident, although the exact status of the victims as ‘prisoners’ or ‘detainees’ is unknown.

44 There is no information whether these policemen were engaged in the hostilities or were conducting civilian policing duties. Irrespective of their status as civilians or engaged as part of the States security forces in the conduct of hostilities, the execution/killing of detainees constitutes a serious breach of IHL (a war crime) and of IHRL.

45 Currently the city is controlled by the tribal leaders, including some members of the security forces. ISIL reportedly has fled. 46 This has also been reported as four women committing suicide when their families were requested to marry them under jihad al-nikah, or Sexual Jihad to ISIL fighters, whereby women are temporarily married to Jihadist fighters to provide sexual services. 47 See http://www.reuters.com/article/2014/06/20/uk-iraqsecurity-shrines-idUSKBN0EV1JF20140620.

48 UNAMI has been in contact with numerous sources within the Sunni communities of the main two districts where Sunnis live in Basra (al-Zubair and Abu Khaseeb) and can report that no Sunnis have been killed or suffered physical violence since the crisis began. UNAMI has also contacted Sunni communities in the other three governorates but has not received any reports of killings or persecution.