June 20, 2014

This is the most dangerous moment for Iraq since 2003. Faced with a marauding terrorist group and a collapsing army, Prime Minister Nuri al-Maliki has called for raising a reservist army and is integrating into government forces members of Shia militias known for horrible abuses. By some reports, the government has released prisoners convicted of serious crimes and armed them to fight.

The reliance on abusive Shia militias and Maliki’s general call to arms has pushed Iraq one step closer to civil war, if it’s not there already. But how should the Iraqi government confront a ruthless group like ISIS, which has shown itself unbound by the limits of decency or law? And how can the US and other governments assist Iraq when parts of its security forces were overrun or ran away?

As a matter of law and good policy, the Iraqi government’s military response needs to protect civilians. The Indiscriminate attacks we’ve seen the Iraqi military unleash since January in and around Fallujah, and the executions of prisoners, as security forces reportedly committed this week at a police station in Baaquba, will drive more Sunnis into ISIS hands.

At the same time, no counter-insurgency campaign will work without a fundamentally altered political approach that bridges the sectarian divide. The government needs to convince moderate Sunnis that they have a place in the future Iraq.

President Obama apparently understands the importance of a new political approach. The US will not back military options “that support one side or sect over another,” he said in a June 19 speech. At the same time, his message was mixed, as he promised to send the government additional military equipment and advisors, and said the US is considering military strikes.

The pressure and obligation for the US to help Iraq confront ISIS is intense. But action without conditions of military lawfulness and political reform would prove a tragic mistake.

The US government is also bound by the “Leahy law,” which makes it illegal for the US to provide aid to units of foreign security forces with a proven record of human rights abuses. In Iraq, some of the well-documented offenders are the most likely recipients of US aid, including the SWAT and Counterterrorism services and the units that are supposed to lead the operations to retake Mosul, which fell to ISIS on June 10. Several units, including the notorious 56th brigade, answer directly to Prime Minister Maliki, and are now fighting alongside the Iran-backed Shia militias Asa’ib Ahl al-Haqq and Kita’ib Hezbollah.

Given these constraints, the US and other governments can urge the Iraqis to take some immediate steps in parallel to its military effort. These include:

  1. Remove army, federal police, SWAT and counterterrorism force commanders with a well-documented record of abuse;
  2. Close secret jails run by brigades that answer exclusively to Maliki;
  3. Free detainees held without charge for protracted periods, some of whom have judicial orders for their release;
  4. Amend the Anti-Terrorism Law, particularly Article 4, whose overbroad and ambiguous provisions have been used to target Sunnis disproportionately;
  5. Amend the criminal procedure code to end the use of secret informants and coerced confessions;
  6. Ensure swift trial for the large number of detainees, who have been charged but detained without trial for long periods, in some cases years.

US Secretary of State John Kerry should use his trip to Iraq this weekend to stress these points. The changes will help curb abuses and contribute to the reconciliation process with Sunnis that is needed to pull Iraq from the abyss.