Iraq’s “Popular Mobilization Forces” (PMFs), or Hashd al-Sha’abi, were thrust onto the world stage this month, when the United States launched a series of strikes against Kata’ib Hezbollah, a militia group that operates under the Hashd al-Sha’abi umbrella organization, prompting a retaliatory storming of the U.S. Embassy in Baghdad. Just days later, a further U.S. strike killed Iranian Quds Force General Qassem Soleimani, along with Kata’ib Hezbollah commander Abu Mahdi al-Muhandis. Iran responded with a barrage of missiles against U.S. forces in Iraq, while Shi’ite militia groups around the region issued threats against the United States and allies.
All of this has played out in the context of increasing protest movements and unrest in both Iraq and in Iran against their respective governments. But the boiling over of Iran’s shadow war with the United States has served to invigorate a counter-protest backlash in support of Iranian interests. Both countries are now increasingly volatile, and in Iraq, clashes between groups of protesters and with security forces are darkly reminiscent of the buildup to previous rounds of sectarian unrest. And another rocket attack on the U.S. Embassy in Baghdad on Jan. 26, this time resulting in injury, illustrates the persistent threat to the U.S. presence in Iraq as well.
Observers, policymakers, and Iraqis should rightly be wondering what might happen next. Regardless of how the situation unfolds, the Hashd al-Sha’abi militias are playing a key role in events on the ground and will greatly influence Iraq’s future. There is a real risk that Iran-backed militias are now driving Iraq back towards conflict. And the power of these problematic armed groups is greatly enhanced by their legal status as organs of the Iraqi state, a result of legislation passed in 2016. This legal status must be reviewed if Iraq is to maintain stability and avoid becoming an Iranian client state.
What is the Hashd al-Sha’abi?
In short, the Hashd al-Sha’abi is a coalition of Iraqi militia groups operating in Iraq and (more controversially) Syria. The militias formed in 2014 to counter the Islamic State (ISIS) after it routed the regular Iraqi army in northern Iraq. The militia groups quickly became a key pillar of the counter-ISIS forces, growing in popularity and political power, and today wielding significant political influence.
But the strongest and most successful militias were closely linked to Iran and the Iranian Revolutionary Guard Corps’ Quds Force. These militia units frequently operated counter to the Iraqi government’s interests and wishes, and soon transitioned from a counter-ISIS role towards securing political power and influence while targeting United States and allied forces operating in Iraq at the invitation of the government of Iraq.
This return to anti U.S. and coalition efforts set the stage for the series of U.S. strikes earlier this month, and is a dynamic that will continue to play out in the coming weeks and months. Expect an increase in militia activities aimed at disrupting U.S. interests and reasserting Hashd al-Sha’abi – and Iranian — influence in and around Iraq.
But this isn’t the whole story. Unsurprisingly in such a religiously, ethnically, and politically vibrant country as Iraq, behind the headlines about the Hashd al-Sha’abi is a complex and fractious organization. Popular discourse tends to lump all of the militias into one monolithic group. Policymakers will often refer to “PMFs” (Popular Mobilization Forces) or “SMGs” (Shi’ite Militia Groups) and so on. Some distinctions are made for Iranian-backed militias such as Kata’ib Hezbollah, but in general, nuance is lost.
Broad divisions within the Hashd al-Sha’abi
From its inception, differences existed within Iraqi leadership circles as to what the Hashd al-Sha’abi was meant to be. Initially, its formation was legitimized by a fatwa issued by the revered Iraqi Shi’ite leader Ayatollah Ali al-Sistani, and a call to arms by the then-Prime Minister Nouri al-Maliki. Both men sought fighters to counter the ISIS threat, but where al-Sistani had called for fighting-age men to join the Iraqi armed forces, al-Maliki encouraged the flood of volunteers to join non-state militias. Fearing a lack of loyalty from the official Iraqi military, al-Maliki had turned a blind eye to Iran-backed militias for a number of years, despite a clear prohibition against non-state militias in article 9(b) of the Iraq Constitution.
Over time, the Hashd al-Sha’abi came to be comprised of over 60 separate “brigades.” Though each militia has its own identity, varying in size, ability, geographic recruitment area, and so on, they can be understood broadly in terms of three broad types.
Of least concern are smaller, geographically or ethno-religiously focused brigades. Some of these militias comprise locals banding together to protect a specific hometown. Others may be groups of Christians or Yezidis (for example) who have armed themselves to protect their people, though these militias sometimes are criticized by members of those same communities as either not really belonging to that ethno-religious group, or for allegedly having been brought in by Baghdad or Iran.
A second type comprises largely Shi’a militias loyal to certain establishment Iraqi Shi’ite figures. Members of these brigades may have answered Ali al-Sistani’s call to arms, respecting his position as leader of Shi’ites in Iraq, while fearing the destruction of the Iraqi state and Shi’ite holy sites at the hands of ISIS. Alternately, they may be followers of Moqtada al-Sadr, a historic enemy of U.S.-led coalition forces in Iraq who has moderated in recent years and become a prominent advocate for Iraq nationalism, rejecting both the Iranian and American presence in Iraq while seeking to build an anti-sectarian coalition. These brigades have tended to respect the wishes of the Baghdad government and civilian leaders. (Since the killing of Soleimani and al-Muhandis, al-Sadr has become much more vocal as an advocate for expelling the U.S. from Iraq, and has met with pro-Iranian Hashd al-Sha’abi leaders in Iran. It is possible that he and his followers are moving closer to the pro-Iran faction. A unification would almost certainly be harmful to U.S. interests in the region, while advancing Iranian goals.)
The third — and most infamous — “faction” comprises Iranian-backed militias. These militias generally predated the 2014 call to arms. Following the 2003 U.S. invasion, these groups formed as Iranian proxies, attacking U.S. and coalition forces, while participating as key actors in Iraq’s vicious sectarian civil war. They subscribe to the Shi’ite concept of Wilayat al-Faqih (a version of which underpins the Iranian system of government and the authority of the Iranian Supreme Leader). As these groups were already established long before 2014, and enjoyed training and equipment from the Iranian Revolutionary Guard Corps and its elite Quds Forces, the creation of Hashd al-Sha’abi served to legitimize the previously illegal armed groups while bolstering their ranks, allowing them to become the most effective and powerful units within the new formation.
As the ISIS threat diminished, these Iran-backed militias turned their attention to politics, and returned to working against the traditional enemies of revolutionary Iran. Hashd al-Sha’abi brigades such as Kata’ib Hezbollah, Asa’ib Ahl al-Haqq, Kata’ib al-Imam Ali, the Badr Organization, and Harakat al-Nujaba began attacking forces of the U.S.-led coalition, issuing threats against Israel, and deploying into Syria, apparently without authority from the Iraqi government to do so. Reports also emerged from religious and ethnic groups around Iraq about a range of human rights abuses by militia members against civilians.
This last type of Hashd al-Sha’abi brigades is of most concern, both for coalition leaders seeking to protect their forces deployed to combat ISIS, and for the Iraqi government seeking to maintain stability. Understanding the nuances and differences provides opportunities for policymakers seeking to limit the influence of bad actors while minimizing popular backlash. But for all concerned parties, there is a snag: all of the militias, Iran-backed or otherwise, are currently legally part of the Iraqi state.
Why is the Hashd al-Sha’abi part of the Iraqi state?
At the end of 2016, Iraq’s parliament passed “Law Number 40 of the year 2016: the Law of the Hashd al-Sha’abi Committee.” The law formalized a governing body for the militias (the “Popular Mobilization Committee” or PMC), while incorporating the Hashd al-Sha’abi into the Iraqi armed forces. The law also formalized a command structure, with the PMC and subordinate brigades answering directly to the Iraqi Prime Minister as Commander in Chief of the Armed Forces under country’s Constitution. A series of Prime Ministerial Orders built upon that law over the subsequent years to regulate the militias by formalizing pay structures, a rank system, and the applicability of Iraqi military laws and regulations.
On the surface, the passage of the Law of the Hashd al-Sha’abi Committee solved a significant legal controversy surrounding the militias: under the Constitution, armed groups outside of the Iraqi security services are banned. But even at its passage, the legislation was criticized by Sunni and Kurdish lawmakers, passing parliament by a narrow majority and relying on Shi’ite votes.
Opposition concerns were well-founded. Since 2017, Hashd al-Sha’abi militias have often ignored Baghdad’s authority, while engaging in human rights abuses across northern Iraq, deploying into Syria, threatening Israel, and targeting coalition forces. In 2018, militias ignored a prohibition in the Iraqi Constitution against members of the armed forces engaging in politics, running as parliamentary candidates or campaigning for others. Hashd al-Sha’abi candidates ultimately formed one of the most powerful electoral coalitions, the Fatah bloc, winning 48 seats to become the second largest party in the Iraqi parliament. Fatah continues to dominate parliament, and is currently headed by Hadi al-Ameri, leader of the Badr Organization militia and a prominent Hashd al-Sha’abi official.
Despite this bad behavior, the militias are firmly part of the Iraq state under international law, and Iraq must bear responsibility for their actions. As I’ve highlighted previously, the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts considers the “conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions.” Article 4 goes on to clarify that an “organ includes any person or entity which has that status in accordance with the internal law of the State.” States remain responsible (according to Article 7), even if an organ exceeds its authority or contravenes instructions.
In other words, international law defers to domestic legislation when considering whether or not an actor belongs to a state. In this case, Iraq has very clearly elected to incorporate the Hashd al-Sha’abi, and must own their conduct.
What does this mean for Iraq and for United States interests there?
Recent events will test this contradiction between factual realities on the ground and Iraq’s law. Uncooperative militias are likely to continue to disregard orders from Baghdad, particularly with regard to American forces or Iranian interests. Unsurprisingly, Iran-backed militias around the region have reacted with anger to the targeted killing of Soleimani, al-Muhandis, and other militia members in recent weeks. Public responses from leadership figures suggest that Iran’s missile strikes on the U.S. on the morning of Jan. 8 were only a symbolic first step in avenging Suleimani, and that the real, long-term approach will be a systemic effort to drive the United States and its allies out of Iraq, Syria, Lebanon, and the wider region. In Iraq, leaders of Iran-backed Hashd al-Sha’abi militias have suggested an intention to allow the government of Iraq a window to expel the United States diplomatically, after which they will target the United States as a foreign occupier (notwithstanding that many of these groups have been doing so for some time).
Within all of this, the ideal end-state for the Iraqi militias and their Iranian backers is 1) the expulsion of the United States from Iraq (remember, Iraq makes up much of Iran’s western border); 2) the installation of an acceptable candidate as Iraqi prime minister; 3) the quelling of anti-Iranian and anti-militia movements in recent Iraqi protests, and 4) securing the status of Iranian-backed Hashd al-Sha’abi units as legitimate actors within the state of Iraq, thereby giving them the freedom to act as they wish, while providing them the resources and formal backing of the state.
Should Hashd al-Sha’abi militias continue to pursue these objectives aggressively, a number of avoidable legal and political risks are likely to arise for which the government of Iraq is, at present, liable. These risks are all caused or exacerbated by the formation’s current legal status as an organ of the Iraqi state.
The first risk arises from likely further attacks on U.S. and coalition forces by Hashd al-Sha’abi militias affiliated with Iran. The status of the Hashd al-Sha’abi Committee — and all of the brigades subordinate to it — as an organ of the Iraqi state per Iraq’s domestic law means that Baghdad is liable for any actions carried out by those units.
A series of issues fall out of this simple but frequently overlooked point. First, attacks by (for example) Kata’ib Hezbollah and Asa’ib Ahl al-Haqq on the United States are, for purposes of international law, armed attacks by Iraq on the United States. Conversely, U.S. strikes on those units will be armed attacks on Iraq. Second, Iraq may in fact be liable for damages caused by its rogue armed forces.
The government of Iraq should look with concern at efforts by the families of killed and injured servicemen and women in American courts to hold Iran liable for damages resulting from proxy-force actions during the decade following the U.S. invasion of Iraq in 2003. The main proxy force named in those cases is Asa’ib Ahl al-Haqq and its leader Qais Khazali (designated a terrorist by the United States). Asa’ib Ahl al-Haqq now forms several Hashd al-Sha’abi brigades, and is still led by Khazali. Kata’ib Hezbollah is also listed in the cases as an Iranian proxy alleged to have carried out attacks on U.S. personnel. The claims in these cases all predate the 2016 incorporation, but as the militias revert to an anti-coalition posture, it is a matter of time before claims will be leveled against the Iraq government in U.S. federal courts.
Iraq is also liable, under international law on state responsibility, for human rights abuses committed by its armed forces — Hashd al-Sha’abi or otherwise. As violence at protests escalates, this will become increasingly pertinent. There has been violence on both sides of the protests to date. Anti-corruption protesters have set the Iranian consulate in Najaf on fire (twice) and have attacked Iran-backed militia headquarters. At the same time, largely peaceful pro-democracy protesters have been attacked and killed in a large number of incidents linked to Hashd al-Sha’abi units. Legally, the Iraqi government may be on the hook for these abuses.
Militias are able to draw political cover and benefits from their legal status. As a part of the Iraqi armed forces, groups like Kata’ib Hezbollah have been able to access Iraqi government weapons and other military supplies. Since at least 2016, Iranian-backed militias have been observed using, for example, M1A1 Abrams Main Battle Tanks delivered by the United States for the use of the Iraqi Ministry of Defense.
Iran-backed militias can hide behind their status as Iraqi armed forces despite a persistent unwillingness to submit to the legitimate chain of command. The crackdowns on protests are one example of this: it is difficult to distinguish security forces acting at the behest of the Baghdad government to ensure stability from more malign elements attempting to secure and preserve Iranian or militia interests. The effect further discredits the government in Baghdad, gives cover for ongoing human rights violations, and permits actors hostile to the interests of the Iraqi government and rule of law to set the conditions for their future success.
What is likely to happen next?
It’s easy to forget amidst the recent chaos that Iran is facing severe domestic problems, a result of an economy bowing under sanctions, and growing opposition protest movements. Iran and its IRGC are likely viewing ongoing events as an existential threat to the revolution. This attitude is likely to filter down to proxies across the region.
At the same time, the loss of the militia’s primary handler, Soleimani, along with more general Iranian distraction, may make it harder for Iran to maintain a tight leash on its militias in Iraq, many of which are now keen to avenge fallen comrades and drive out the Americans. Regardless of Iran’s public position towards the United States, proxy attacks should be expected to increase if the United States remains in region in coming months.
Additionally, should protests continue in Iraq (and particularly if they maintain an anti-Iran flavor), then an increase in violence against protesters and public officials should be expected. If Iran cracks down violently against its own domestic protests, it’s possible that its proxy forces will follow suit in order to maintain their position within Iraqi society.
The Hashd al-Sha’abi militias are already playing a role in the clashes between groups of protesters. Since last year, counter-protesters and armed men linked to the Iran-backed militias have attacked anti-corruption protesters that expressed anger towards Iranian intervention in Iraq, even killing some protestors. In October, the PMC chairman stated that the PMF stood ready to prevent a “a coup d’etat or a rebellion.” In December, the United States imposed sanctions under the Global Magnitsky Act on a number of PMF militia leaders for human rights abuses. Immediately after the first U.S. strikes against Kata’ib Hezbollah in December, crowds linked to the Hashd al-Sha’abi stormed the U.S. Embassy. And since the January strikes that killed Soleimani and al-Muhandis, a disturbing trend has developed of violence against groups of protesters.
What should Iraq and the United States do?
To mitigate these risks, Iraq must either bring errant militias firmly under its chain of command, or it must disincorporate them in its domestic law. Iranian-backed Hashd al-Sha’abi brigades have indicated through their pattern of behavior and public statements that they are unlikely to accept orders from Baghdad that do not coincide with their own ideology and objectives. In light of this, Iraq must begin to look to disincorporation options.
Disincorporation is beneficial for a number of reasons. First, by stripping bad actors of the legal and political cover of being organs of the Iraqi state, Iraqi law enforcement and policymakers will have more options to counter problematic militias. Groups like Kata’ib Hezbollah and Asa’ib Ahl al-Haqq would lose the legal authority to act as armed groups, reverting to being illegal armed groups under the Constitution. Should Iran-backed militias continue to target U.S. or coalition forces with missiles, legal disincorporation removes legal ambiguities surrounding any subsequent self-defense-based response.
Iraqi officials, of course, fear a militia-led backlash were the government to move to disincorporate the Hashd al-Sha’abi. But in reality, some of the armed groups are already leading a backlash against peaceful protesters, Iraqi stability, and foreign forces that remain (at least for now) invited to help counter ISIS.
Disincorporation need not affect all Hashd al-Sha’abi units, nor does it need to detract from their vital role in defeating the Islamic State. Rather, Iraqi lawmakers should focus efforts on rogue militias, more loyal to the IRGC and the Supreme Leader of Iran than the government and rule of law in their own country. Militias can be given a choice: They can be fully and practically integrated into the Iraqi armed forces (meaning obeying the government of Iraq), or they can demobilize, disarm, and reintegrate into society. Militias unwilling or unable to do so must be disincorporated and face legal consequences for being unconstitutional armed groups.
Such a legislative move is likely to draw political support, considering the thousands of Iraqis who have protested in the streets against (among other issues) the role of Iranian-backed militias in Iraq. These protests have been largely Shi’ite led, suggesting a growing anti-sectarian movement. Sunnis, Kurds, and other minority groups have long expressed concerns about abuses carried out by Iran-backed brigades.
Successive prime ministers have attempted to craft executive orders that bring militias under government control. Though publicly the outgoing prime minister, government members, and Shi’ite legislators express support for the Hashd al-Sha’abi, there are clearly concerns about their power and uncontrolled actions. Still, Shi’ite leaders may find it difficult to publicly criticize the groups for fear of angering pro-Iranian constituencies of the country.
The United States should tread carefully with Iraq on this knife edge.
Ultimately, Iraqi legislative reforms must be Iraqi-developed and Iraqi-led. But the United States should reassure Iraqi leaders — in public and in private — that if they make the difficult decision to carry out legislative reform of the Hashd al-Sha’abi law, then the United States will support Iraq in maintaining security and (where appropriate) support the necessary reforms and subsequent processes of demobilization and reintegration.
The United States also must think hard about how its mission in the region is going to evolve over the coming months and years. Despite triumphant statements by the president, ISIS remains a threat, and will use regional instability (particularly if sectarian) to make a comeback. Iraqis leaders know this, and privately many will not wish to see the departure of the United States and its support, at least not yet.
But if Iraqi and American leaders are to avoid falling into the traps of previous operations in Iraq, then coalition forces must look to build a politically secure and prosperous state. Iraqi security sector reform — starting with the Hashd al-Sha’abi — is a necessary element.
Source » justsecurity