Legal Framework

The Iraqi government has both downplayed the militias’ role in the conflict with ISIS and sought to justify their participation.'>[40] The circumstances of the conflict, as detailed in this report, indicate that irregular militias are actively participating in armed conflict and targeting civilian objects with impunity.

The laws of war governing the methods and means of warfare in non-international armed conflicts are primarily found in the Hague Regulations of 1907 and the First Additional Protocol of 1977 to the Geneva Conventions (Protocol I).[41] Most of their provisions, moreover, are considered reflective of customary international law.[42]

Central to the laws of war is the principle of distinction, which requires parties to a conflict to distinguish at all times between combatants and civilians. Operations may be directed only against combatants and other military objectives; civilians and civilian objects may not be the target of attack.[43]

Civilian objects are all objects that are not military objectives. Military objectives are those objects that “by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” Civilian objects remain protected from attack unless and only as long as they become military objectives.[44]

While Iraqi government forces may have destroyed property for military reasons in some cases, Human Rights Watch found that the large-scale destruction of property by pro-government militias in the cases detailed in this report appear to violate international law.

The laws of war prohibit deliberate, indiscriminate or disproportionate attacks against civilians and civilian objects. In the conduct of military operations, parties to a conflict must take care to spare the civilian population and civilian objects from the effects of hostilities.[45]

The Geneva Conventions prohibit, as a grave breach, the “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”[46] Human Rights Watch found that in the incidents investigated in this report, the destruction meted out did not meet the requirements for military necessity.

In the instances detailed above, it appeared militias destroyed property after fighting had finished in the area and when combatants from ISIS had fled from the area. Therefore it suggests their justification for the attacks may have been for punitive reasons; or in order to prevent Sunni residents from returning to the areas from which they fled, effectively creating demographic change in areas that had been mixed-sect or majority Sunni. International humanitarian law prohibits collective punishment.

International human rights law, including the right to housing, governs the lawfulness of eviction of a population and the destruction of homes.[47] Those threatened with eviction outside of active hostilities are entitled to adequate notice, genuine consultation, and adequate compensation or alternative housing.[48]

Serious violations of international humanitarian law committed with criminal intent are war crimes. During non-international armed conflicts, war crimes include “[d]estroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict,”[49] and collective punishment, all of which have been documented in Human Rights Watch investigations cited in this report.[50]

Forced displacement can both be a war crime, and if carried out as a state or organizational policy in a widespread or systematic manner, a crime against humanity.

Both customary international human rights law and treaty law, including the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, prohibit torture and cruel or inhuman treatment at all times, even during armed conflict and states of emergency.[51]

The UN Committee Against Torture, which reviews states’ compliance with the convention, has made it clear that “those exercising superior authority—including public officials—cannot avoid accountability or escape criminal responsibility for torture or ill-treatment committed by subordinates where they knew or should have known that such impermissible conduct was occurring, or was likely to occur, and they failed to take reasonable and necessary preventive measures.”[52]

No exceptional circumstances can justify torture. States are responsible for having effective systems in place for addressing victims’ complaints, and prosecuting torturers, those who order torture, and those in positions of authority who fail to prevent or punish torture.

Under international humanitarian law, states have a duty to investigate war crimes allegedly committed by members of their armed forces and other persons within their jurisdiction. Those found to be responsible before courts that meet international fair trial standards or transfer them to another jurisdiction to be fairly prosecuted.[53] The laws of war also provide for a state to make full reparations.[54]