Five Guidelines to Promote Respect for International Law in Combatting ISIS

On March 22, 2017, US Secretary of State Rex Tillerson will host the foreign ministers of the Global Coalition combating the Islamic State, known as ISIS. This meeting will be the first meeting of the full coalition, now at 68 members, since December 2014.

Human Rights Watch has in the past raised concerns with US, Iraqi, and other local forces regarding alleged violations of international humanitarian and human rights law during military operations against ISIS. The below memorandum highlights five areas of concern related to the upcoming operations against ISIS, and offers some recommendations to coalition members in light of alleged violations we have documented so far.

1. Take all feasible precautions to avoid civilian casualties; investigate alleged unlawful strikes

Human Rights Watch has documented several missile and aerial attacks carried out by US-led coalition forces which caused civilian casualties. In the Syrian city of Manbij, Human Rights Watch documented six possible US-led coalition airstrikes that killed at least 24 civilians, including 15 children. In one coalition airstrike on the Syrian village of Tokhar, Human Rights Watch collected the names of 97 civilians, including 62 children, who died. No information regarding the investigation into these attacks has been made public yet.

According to official coalition statistics, its strikes have killed at least 220 civilians since the start of the anti-ISIS campaign, known as Operation Inherent Resolve. However, the true casualty figures for civilians are likely higher. Airwars, an organization that tracks allegations of civilian deaths in detail, reports that at least 2,590 civilians were likely killed in coalition strikes. Amnesty International examined 11 coalition airstrikes in Syria that they estimated killed some 300 civilians in ISIS-controlled areas.

Underreporting of civilian casualties by military official sources are due to various reasons. Coalition members do not have the same policies when it comes to reporting strikes and investigating allegations of civilian casualties. For example, many coalition partners, including Saudi Arabia, Jordan, the Netherlands, Belgium, and Denmark, do not report in any detail the dates and locations of their airstrikes, making any investigation impossible. For countries that do report their airstrikes, such as the US, the process of investigating allegations of civilian casualties tends to be dominated by internal, air-only assessments – processes which tend to dismiss or sideline ground reports of non-military origin. This discrepancy was clear in a Washington Post investigation that found that at least eleven civilians died in a May 2015 strike in Iraq – mostly women and children – in an attack the US claimed had only killed four. The discrepancy was due to the way the US had conducted its initial assessment by solely relying on what was visible from the air.

International law requires compensation for civilian victims in the event of violations of international law. Warring parties have also instituted programs, such as in Afghanistan, to provide payments for loss of civilian life and property without a showing that a violation has occurred, – often known as condolence payments. In Iraq and Syria there is no clear mechanism for civilian victims or surviving relatives to obtain any form of compensation. In 2015, the US government agreed to set aside $5 million for the Defense Department to use in Iraq if the US military harms a civilian or destroys their property. However, it was not made clear how victims can lodge a complaint or seek compensation and this fund did not seem to extend to victims in Syria. To date, it is not known if any Iraqi or Syrian victim has been able to obtain any compensation for strikes conducted under Operation Inherent Resolve.

The need for more robust mechanisms to protect civilians is made more urgent by the intensification of the fight against ISIS and a push by the new US administration to potentially loosen rules of engagement. On January 28, President Trump signed a national security memorandum directing the military to give him a plan to defeat ISIS. It said the plan should include “recommended changes to any United States rules of engagement and other United States policy restrictions that exceed the requirements of international law regarding the use of force.” The push for looser rules is taking place at the same time as US Marines have deployed to Syria reportedly to operate artillery units in support of the battle for Raqqa.

Human Rights Watch urges coalition members to:

  • Take all feasible precautions to avoid civilian casualties when conducting attacks;
  • Establish baseline public reporting and investigation standards for all members of the coalition;
  • Publicly disclose information about civilian casualty figures;
  • Promptly and thoroughly investigate credible allegations of civilian casualties from military operations and report on findings. Investigations into casualties should include engagement with external independent casualty monitors.

2. Don’t support abusive groups

Coalition forces support local forces on the ground and in turn rely on them for targeting information. Human Rights Watch has documented widespread violations committed by ground forces battling ISIS. These violations include summary executions, beatings, and torture of men in custody, as well as arbitrary detention, enforced disappearances, destruction of civilian objects, use of child soldiers, and mutilation of corpses by government forces.

Of particular concern are screening procedures and detention of men and boys fleeing ISIS areas. Groups within the military are screening and subsequently sometimes detaining men fleeing Mosul, including in unidentified locations where they are cut off from contact with the outside world.

The Popular Mobilization Forces (known as the PMF or Hashd al-Sha'abi) are apparently screening the men for suspected involvement with ISIS. Given these groups’ lack of training in screening, the irregular nature of these screenings and detentions, and the detainees’ lack of contact with the outside world, the detained men are at heightened risk of abuse, including arbitrary detention and enforced disappearance.

There are also concerns about revenge attacks against alleged families of ISIS members. Sunni tribal groups in Iraq (known as the Hashad al-`Asha'ri) within the PMF, and Iraqi soldiers recently forced at least 125 families who were accused of having some familial ties to ISIS out of their homes. Human Rights Watch also previously documented security forces from Iraq’s Kurdistan Regional Government unlawfully destroying large numbers of Sunni Arab homes, and sometimes entire villages, in areas retaken from the ISIS.

Some of the local allies of coalition forces have been guilty of recruiting and using child soldiers, including two Iraqi government-backed tribal militias (Hashad al-Asha`ri) as well as Kurdish groups participating in the fight against ISIS.

Human Rights Watch urges coalition members to:

  • Cease coordination with or assistance to armed groups or parties that commit widespread or systematic abuses, including those who recruit and fail to demobilize child soldiers;
  • Develop mechanisms to investigate allegations of abuse by local armed groups;
  • Implement vetting procedures to curtail abuses by local armed groups;
  • Work to ensure that only bodies with a screening mandate can screen people and ensure that anyone detained is detained under clear provision of Iraqi law, held in a recognized detention center accessible to independent monitors, and granted all due process rights enshrined in Iraqi and international law, including being brought promptly before a judge. The authorities should also promptly notify the families of detainees of the whereabouts of their relatives and publish overall numbers of detainees.

3. Provide safe passage to fleeing civilians, provide sufficient support to displaced

The government of Iraq has reported that 180,000 civilians have fled western Mosul since mid-February, when military operations to retake the western districts of the city began. Humanitarian agencies are bracing for the possibility that an additional 300,000-320,000 civilians may flee in coming weeks. People fleeing have reported grave dangers in trying to escape. The UN Humanitarian Coordinator for Iraq has reported that humanitarian agencies are operating “at their limit.”

Humanitarian workers have expressed similar concerns with regards to any future offensive on Raqqa. According to the Office for the Coordination of Humanitarian Affairs (OCHA), as a result of a Raqqa offensive, more than 360,000 people will be in need of humanitarian assistance in Raqqa district, including more than 160,000 displaced persons. Staff from humanitarian organizations working to meet the needs of those affected by fighting in Raqqa have told Human Rights Watch that civilians there will require access to healthcare, especially sexual and reproductive health for women and girls, food assistance, and access to potable water. They anticipate that health facilities and water pumping stations may have been severely damaged due to airstrikes and will need to be repaired or alternatives found, and that there is likely a shortage of medical professionals in the city.

Human Rights Watch urges coalition members to work with local forces to:

  • Ensure there is a clear and coordinated plan for civilians to flee areas of fighting for safety and to access humanitarian aid;
  • Protect civilians fleeing and in camps from attacks or any form of revenge;
  • Allow freedom of movement for all displaced persons in areas under their control, including those displaced persons who wish to reside or travel outside of formal camps. Movement restrictions should only be imposed if “provided by law…and necessary to protect national security, public order, public health or morals, or the rights and freedoms of others,” and where the restrictions are proportionate in terms of time, extent, and impact on people’s lives, as outlined in the International Covenant on Civil and Political Rights.

4. Commit to justice for victims

There has been considerable media attention to the grave crimes in violation of international law committed by ISIS, but little by way of concrete plans on how to provide justice for these crimes. Victims of ISIS are often left with little assistance or support, and in some cases are even perceived suspiciously by fellow Iraqis or Syrians given that they were in the custody of or lived under the control of ISIS.

In March 2015, Iraq’s Council of Ministers declared ISIS crimes against Yezidis to be genocide, but Iraq has no provisions in its domestic law for war crimes, crimes against humanity, and genocide. A “Genocide Committee” in Dohuk, a major city in the Kurdistan Region of Iraq, which was established by the Kurdish government, is attempting to document these crimes but so far it appears that there have been no judicial investigations against captured ISIS members for war crimes or crimes against humanity. The primary exception to lack of trials has been patently unfair trials, in July 2015 and February 2016, each lasting all of two hours, that convicted at least 36 men for the mass killing a year earlier of up to 1,700 Shia military cadets.

Investigating and prosecuting grave abuses presents real challenges. But this can be overcome by developing a concrete and comprehensive plan that would support victims, provide expertise to collect and preserve evidence, assist in local and international investigations, and push political leaders to prioritize justice.

Human Rights Watch has repeatedly urged that the International Criminal Court (ICC) be given jurisdiction over the situations in Iraq and Syria, either through the Iraqi government becoming a member of the ICC or through a Security Council referral in the case of Syria. This would allow for possible prosecution of war crimes, genocide, and crimes against humanity by all parties to the conflicts. A move by the Iraqi authorities to join the court would be a powerful signal of their commitment to justice for grave abuses – no matter the perpetrator. International involvement can also help in establishing a credible system that could independently and impartially investigate grave abuses. Beyond the atrocities that ISIS has committed, other actors who have also committed grave abuses in both countries will need to be held to account.

Overall, coalition partners fighting ISIS should place comprehensive and meaningful justice for victims at the center of their strategies. Ensuring fair and transparent proceedings will be essential to the stability of the region in the future.

Human Rights Watch urges coalition members to:

  • Publicly commit to making justice a key pillar in their fight against ISIS;
  • Support local and international efforts to investigate grave crimes, including through the collection, preservation, and analysis of potential evidence;
  • Press Iraqi authorities to commit to relevant legislative reforms, including by incorporating war crimes, crimes against humanity and genocide into its domestic law;
  • Provide support, including medical and psychological support, to victims of grave abuses.

5. Increase efforts to survey and clear landmines and explosive remnants of war (ERW)

Explosive ordnance used by ISIS forces and the ERW created during the conflict pose a significant danger to civilians and hinder recovery efforts in areas that were under ISIS control. UN Mine Action Service (UNMAS) officials have estimated that it could cost $50 million to remove mines, which are often referred to as victim-activated improvised explosive devices or booby traps, from in and around the Iraqi city of Mosul. In Syria, UNMAS estimates that more than 6.3 million people including 2 million children live in mine and ERW contaminated areas after nearly six years of war.

Improvised mines laid by ISIS have killed and injured hundreds of civilians returning to their homes, including children. For example, Human Rights Watch collected the names of 69 civilians, including 19 children, killed by improvised mines in schools, homes, and on roads during and after the fighting over control for the city of Manbij. Local hospital staff said that they had treated hundreds of people injured by improvised mines in that town alone.

Mine clearance efforts should be prioritized to ensure the safe return of civilians.

Human Rights Watch urges coalition members to:

  • Support efforts to raise awareness and conduct mine risk education among those returning to territory formerly controlled by ISIS;
  • Develop capacity to survey and rapidly clear mines and ERW from homes and residential areas to facilitate the return of the civilian population;
  • Countries bordering Syria should facilitate access for humanitarian demining organizations and for assistance to survivors.