Absolute impunity: International Law and the conduct of militias in Iraq

Amnesty International, 2014

International humanitarian law (IHL, the laws of war) applies in situations of armed conflict. In Iraq, there is currently a non-international armed conflict involving Shi’a militias clearly operating with the consent of the central government and in cooperation with government armed and security forces and the armed group calling itself Islamic State (IS). The rules of IHL therefore apply and are binding on all parties to the conflict, including Shi’a militias. These rules and principles seek to protect anyone who is not actively participating in hostilities: notably civilians and anyone, including those who were previously participating in hostilities, who is wounded or surrenders or is otherwise captured. They set out standards of humane conduct and limit the means and methods of conducting military operations.

The deliberate and summary killing of people in captivity – be they civilians, suspected members of  armed groups or combatants captured on the battlefield – is a flagrant and serious violation of international humanitarian law and constitutes a war crime.[1] Torture and cruel treatment, rape and other forms of sexual violence, hostage taking, and arbitrary deprivation of liberty are also serious violations of IHL and also constitute war crimes.[2]

Under IHL, individuals, whether civilians or military, can be held criminally responsible for war crimes. Leaders and commanders of militias and armed groups must be particularly diligent in seeking to prevent and repress such crimes. Military commanders and civilian superiors can be held responsible for crimes committed by their subordinates if they ordered such acts or if they knew, or had reason to know, such crimes were about to be committed and did not take necessary measures to prevent their commission, or to punish crimes that have already been committed.[3] Individuals are also criminally responsible for assisting in, facilitating, aiding or abetting the commission of a war crime.[4]

Unlike IHL, which applies only to situation of armed conflict, international human rights law continues to bind the conduct of states in all situations. As a state party to the International Covenant on Civil and Political Rights, Iraq has a duty to respect, protect and fulfil the rights to life, to freedom from torture and other ill-treatment, and to liberty and security of the person. [5] By allowing and even encouraging the creation and growth of unaccountable militias and failing to prevent and remedy unlawful killings, abductions and torture by these militias, Iraq is violating its legal obligations and can be held responsible for these gross human rights abuses.[6]

Excerpts from ‘Absolute impunity: Militia rule in Iraq’

AI index: MDE 14/015/2014

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