The Fog of War Against ISIS

BELKIS WILLE — Uncertainty regarding proper screening, detention, and civilian return procedures threatens future instability in Iraq.

During the preparation for and execution of operations to liberate Mosul from ISIS, the Iraqi government voiced its desire to work within a human rights framework — in terms of, for example, military operations, screening, and treatment of freed populations. Yet, beyond public statements or near-term conduct, has Baghdad truly embraced human rights protection as a strategic or operational priority?

On the military side, the concept of prioritizing the protection of civilians as part of military strategy was mostly understood and followed during the operations in East Mosul. The Iraqi military was incredibly well-behaved in that context, and did ensure that it minimized civilian harm throughout that phase of the battle. In West Mosul, however, the armed forces have not taken the same care. For example, one of the key commitments made by the Iraqi military in terms of civilian protection was to avoid the use of heavy artillery. Now, the armed forces are using such weapons, and also firing indiscriminate rockets (IRAM) into civilian neighborhoods.

When it comes to the screening and subsequent detention process, the government made certain commitments that it has since maintained, the most important of which is avoiding the separation of families for extended periods of time. This policy is critical for preventing abuses against liberated populations. For example, when 1,200 men went missing in Fallujah last year — approximately half of which have never been found — they had been separated from their families and had therefore had become more vulnerable to disappearance and other abuse. In Mosul, Iraqi government forces are making a commendable effort to avoid similar mistakes, keep families together as much as possible throughout the screening process, and prevent individuals from being isolated.

Yet, the government also promised to officially notify families of individuals who had been detained, as well as provide information regarding the location of the detention facility to which that individual would be taken. Unfortunately, government forces have failed to follow through on these commitments. Since the beginning of operations to liberate Mosul in October 2016, both the Kurdistan Regional Government (KRG) and Iraqi Government have had seemingly no interest in upholding this obligation. Human Rights Watch (HRW) has investigated over 80 instances of families being separated from a loved one at a screening center, checkpoint, mustering point, inside an internally displaced persons (IDP) camp, or within a local community, and receiving no information regarding the fate of this loved one.

Some families have been brave enough to seek clarification from the authorities, but their inquiries have all been rejected or blocked. Although this problem has been raised repeatedly in Baghdad, the Iraqi government remains unwilling to take on the obligation of providing information to families of detained individuals. It has also refused to publish an official number of individuals who have been detained as part of the screening process, something that could help minimize the likelihood that these people become victims of abuse and forced disappearance.

There are multiple reasons for this obstinacy. Baghdad is overwhelmed by the number of people its security forces must screen and government forces have limited capacity to meet this high demand. However, if Iraqi leaders genuinely wanted to prioritize informing families, they could do so. For example, IDP camp management authorities could act as a conduit for information to families of detained individuals; local police could also help pass on such information from national interlocutors. When it comes to the lack of an official figure regarding the numbers of those detained, the situation is trickier. There is a multitude of armed groups conducting security, screening, and other military operations in Iraq today, many of which do not officially have a mandate to detain civilians. It is unclear whether anyone in Iraq knows the true number of detained individuals, even at the senior-most levels of the government.

In your February 2017 Al Jazeera article, you describe how “none of the camps housing Mosul’s displaced allow for free movement.” In many cases, families have been separated, and left without means of communication or reunification. Is there political will in Baghdad to address these concerns, amid ongoing military operations in Mosul — how will these conditions of displacement impact future processes of return, rehabilitation, and reconstruction post-ISIS?

Baghdad has no interest in engaging on the issue of free movement of IDPs and separated families. The Minister of Migration and IDPs has told HRW that it is entirely up to local authorities to decide what the necessary security regulations for IDPs should be in any given community. He said that the Iraqi government’s role is limited to providing funding to build and service IDP camps, and that it does not set any rules for those kept inside these facilities. Many of the local actors now responsible for governing these camps are, perhaps understandably, wary of the growing IDP populations in their communities, and have very little incentive to change the regulations regarding movement or access. Baghdad, as well as the international humanitarian community, are ultimately unwilling to prioritize this issue, instead arguing that the IDPs housed in these camps will be returning to their homes in the near future.

Regardless of whether these assessments are true, there are various authorities and leaders within Iraq who seek to bring about demographic changes, thereby strengthening their communal and political positions in a given area. This desire has been made even more immediate during the lead-up to the 2017 provincial elections, scheduled for September. The fight against ISIS has displaced communities in a way that — if local authorities wish to enact certain policies to this effect — will make it very difficult for them to return home. Today’s IDP camps are setting the standard for what more permanent camps may look like in the future.

For example, there is a camp outside Tikrit that is being used to house 125 families of ISIS members. Local communities do not want these families to return, and as a result have forcibly relocated them to what is essentially an open-air prison: this camp does not allow visitors, cellphones, or the right for its inhabitants to move freely. Because the international community has sanctioned such behavior by providing services and supplies to this camp and others with the same stringent regulations, there is nothing to stop authorities from managing it and other facilities in a similar fashion moving forward. In Iraq, temporary displacement ultimately has a way of becoming a permanent state for many people.

Since the launch of operations in Mosul, thousands of civilians have remained in their homes — many more than initially estimated. How does this situation impact the ability of Iraqi Security Forces to fairly and humanely screen civilians for ISIS affiliation — is it more difficult to monitor actions from non-state actors, including Popular Mobilization Forces (PMF) operating inside the city?   

For civilians who leave Mosul, the screening process is complicated by the fact that there are multiple screening locations, each manned by an equally varied array of armed actors. Some of these actors have a mandate to screen, others are without such a mandate. Each of these groups has a different database against which it is screening civilians, leading to confusion and lack of systematized information, as well as a lack of clarity about the fate of those who are detained. Inside Mosul, a similar lack of systematization handicaps the screening process. Additionally, state and non-state armed actors that have entered the city to maintain law and order are now continually screening local communities, similar to the way screening is conducted inside IDP camps. It is difficult to assess which of these two processes is less problematic from a human rights standpoint.

Nevertheless, it is important to herald the fact that the majority of those who have gone through the screening process — but who were not detained — do not allege any ill-treatment or harsh forms of interrogation, particularly those who remained inside Mosul. According to testimony from Moslawis, the way in which security actors inside the city conducted their screening seems remarkably painless. Local residents did not feel that they were at the mercy of armed groups. These actions present a positive and fundamental difference to what has been seen in nearly every other Iraqi counter-ISIS operation until now, particularly in terms of screening.

The procedure by which a civilian is screened ultimately depends entirely on whether that individual is handed over to the proper authorities. Theoretically, it does not matter which security force initially detains an individual, as the policing force is obligated to hand that individual to either the National Security Service (NSS) or the Ministry of Interior intelligence. The Ministry of Interior is the only government body within the screening context that has the legal authority to detain, carry out interrogations, and prepare a file that can be brought before an investigative judge. This process is well-maintained, well-tracked, and clearly defined, although it is also slow due to the lack of trained interrogators, and the prison conditions for the men and boys undergoing interrogations are horrific.

The real problems in this process emerge when an individual is not handed over to the requisite authorities. At that point, it is impossible to determine what happens next to people detained in this way. The PMF are categorically prohibited from detaining and screening civilians, and yet — particularly in western Mosul — HRW has shown that they are performing these functions. There is no clarity or enforcement mechanism with regards to PMF actions.

In the first months of battle, men and boys of 15 years and above were reportedly being automatically separated from their families for screening, a process defined, in some instances, by revenge-seeking, corruption, or inexact methodology. Is the screening process for displaced civilians indeed so ad-hoc?

In this context, there are two different authorities that are conducting screening for individuals: the KRG forces, and the Iraqi authorities. On the Kurdish side, there have been many reports of blanket-screening for men and boys 15 years and above. These individuals are often taken to a specific screening site, are held there for sometimes excessive periods of time, and remain separated from their families. Very few of those held by Kurdish forces have ever come before a judge, and instead remain in detention for many months. International human rights observers have severe concerns regarding the way this process is being managed from Erbil.

Within the Iraqi context, however, the screening time is often much shorter — sometimes only a few hours. This efficiency means that families are separated only briefly. Of course, the number of screening sites that have been constructed since October 2016 has fallen short of the planned-for amount, and these locations are constantly shifting as the battle’s frontline moves. As a result, they are difficult to continually monitor.

Iraqi criminal procedure legally allows for individuals suspected of ISIS affiliation to be detained for up to 24 hours, a period that can be extended up to nine months by a judge. Yet, many people have been held for longer periods in poor facilities. What challenges will this detention process pose for Iraq’s judicial and security services in terms of capacity and humanitarian consideration?

One of the most concerning aspects of the detention process is a lack of clarity regarding the rules by which it is governed. In Baghdad, the Ministry of Justice and lawyers working on cases being brought to trial under the counterterrorism law say that the above-mentioned regulations — chiefly the 24-hour detention limit and the right to have communication with one’s family — are suspended when it comes to ISIS terrorism cases. Yet, this exception is not written anywhere in Iraq’s legal code, and the counterterrorism law does not state that certain rights granted under the country’s penal code are to be abridged because of the nature of the suspected crime. Even judges do not have a clear understanding of which rules apply or do not apply in these cases.

Regardless of what detention rules apply, a detained individual is supposed to be promptly brought before an investigative judge who can assess whether there is sufficient evidence to transfer that individual to Baghdad, where he will be charged. It is at this point in the process that severe delays have developed, largely due to a lack of interrogators, judges, and the difficulty producing evidence for these kinds of crimes. If policies of arbitrary or lengthy detentions continue or increase, as this current operational realities allow, unfortunately there will never be an end to ISIS. Defeating ISIS requires not only military solutions, but a concerted effort to address the push factors that fueled its rise. The problems at Iraq’s detention facilities and justice institutions is thus not only a legal one, but a practical one, as well.

Since June 2014, several monitoring organizations and analysts have documented instances of forced displacement and blocked returns, ostensibly changing the social and demographic character of affected regions. In Kirkuk, for example, HRW claimed that “Kurdish forces [were] ejecting Arabs in the province.” How can analysts and researchers quantify allegations like these — at what point do reports of abuse constitute international alarm?

Regarding the Kirkuk allegations specifically, our decision to outline abuses was due to the scale of abuse seen. If, for example, HRW had heard about one Arab village in Kirkuk being displaced or destroyed, such actions would not have prompted a full report like the one that was released. However, an extensive survey of satellite imagery from Kirkuk showed how widespread such actions were, with identifiable incidents in 83 villages in Kirkuk and Zummar areas. Analysis of this imagery showed that forced displacements and property destruction was happening across the province, in purely Sunni Arab villages and in Sunni Arab neighborhoods within mixed communities. It is ultimately very hard to quantify the number of people who have been displaced by the policies seen in Kirkuk.

More generally, allegations of abuse must be based on more than merely satellite imagery. Once such initial surveys indicate large-scale abuse, it is important to then determine whether there had been military necessity that precipitated the destruction. Many of the places documented in Kirkuk, for example, were close enough to the battlefield, so that armed groups could claim the observed damage had been an unfortunate but required part of the battle to expel ISIS. This part of the investigation is most critical and time-consuming, as it requires extensive interviews with eyewitnesses, locals, and neighboring villagers — some of whom are now living in IDP camps across the region. Once these testimonies are gathered and a clearer narrative begins to emerge, it is then possible to question government officials and armed actors accused of wrongdoing. In Kirkuk, HRW’s investigation found that the destruction took place well after the area was out of the hands of ISIS, when there was no longer any military necessity.

What is, ultimately, the threshold between “fog of war” and incidents of actual abuse, especially in active combat zones? Mistakes happen in wartime; the current conflict in Iraq is one of the largest urban war in military history. Military commanders on the battlefield often do not have all the requisite information to prevent certain incidents from occurring. Keeping these realities in mind, HRW will rarely issue a report saying that an instance of alleged abuse represents categorically an unlawful attack; the organization might itself only have a small part of a broader picture, based on civilian testimonies, photos, and tele-imagery.

Given these limitations, it is more useful to instead call on relevant armed forces or government monitors to investigate any instance deemed concerning, and to call attention to events that might otherwise go unnoticed. In a military sense, there are certain weapons and munitions that are inherently indiscriminate, and should never be fired in civilian-populated areas. In West Mosul, the Federal Police are using indiscriminate mortars and IRAMs; these actions are fundamentally different to tactics employed in other areas. These weapons clearly are inappropriate for urban combat, and cross the “threshold” mentioned above. Use of indiscriminate artillery, while not inherently unlawful, is problematic, as well. Within the available arsenal, it is important for military commanders to choose the most precise weapons possible. 

A general lack of transparency within the Iraqi government ultimately means that it is difficult for monitoring groups like HRW to engage with decision-makers regarding alleged abuses such as these. Within the Iraqi government, there is a serious lack of information-sharing between different ministries and institutions. Baghdad has also not prioritized certain human rights issues, and does not make a serious effort to gather relevant information on potential abuse. As a result, it is extremely difficult to verify official positions regarding any incident that is under investigation. This lack of communication between Iraqi officials, as well as between monitors and Baghdad, is extremely frustrating.

***

BELKIS WILLE is a senior Iraq researcher in the Middle East and North Africa division at Human Rights Watch. 

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