What are the prospects of Baghdad hauling the US administration before the United Nations?

Several days ago, Iraq’s Ministry of Foreign Affairs expressed its disavowal and condemnation of the latest in a series of violations of Iraq’s sovereignty by US forces in their bombing of the headquarters of the army, the police, and the PMF (popular mobilisation forces or al- Hashed), who together comprise Iraq’s national forces that have defended and continue to defend Iraq and its unity, and who have fought long and hard to prevent the proliferation of Da’esh (Islamic State) not only in Iraq but also into other countries of the region.  US forces also bombed a civilian airport, currently under construction, on the outskirts of Karbala, a city that is widely respected and sanctified by the Iraqi people; resulting in a number of civilian deaths and wounded, as well as incalculable material damage.[1]

The Ministry of Foreign Affairs further stated that this violation represents a serious deterioration in Iraq’s national security at a time when all efforts should be galvanised towards sweeping away the remnants of the IS terrorist gangs; to enhance security and to bolster stability. Moreover, this latest incident undermines the agreement between Iraq and the international coalition which is supposed to provide Iraq with support in its war against terrorism.[2]

For his part, Iraq’s president, Barham Salih, announced that any repetition of such violations could result in Iraq reverting to being a failed state and opening the door for Islamic State’s return.

In the aftermath of the incident, on Friday, 13 March 2020, US ambassador to Iraq, Matthew H. Tueller, was summoned by the Ministry of Foreign Affairs, to be handed a diplomatic note, protesting the violation of Iraq’s sovereignty, and to inform him that the Iraqi government intends to submit to the UN, through its UN delegate, two separate but identical complaints; one to the UN Security Council and one to the Secretary-General of the United Nations. It was also made clear that Iraq would be exploring all available diplomatic channels with other UN member states in order to gain support for its position on the issue.[3]

Methods of legally documenting the sources of information

Iraq must follow the correct legal procedural rules for the documentation of all the relevant sources of information and data handling in order to achieve the best possible outcomes before any of the international tribunals. For this reason, it should focus primarily on the damage and losses caused by the missile strikes to infrastructure and on the death or injury of Iraqi citizens.

It is self-evident that collecting and collating information of this nature can prove extremely useful on many fronts, however, there are particular instances when such information or data can prove critical and even have a major influence on political discourse, general diplomacy and international relations, and perhaps not more so than in the legal arena. The main purpose of gathering these documents is to file a lawsuit before the international courts, but what is extremely important in this whole affair is the highlighting of the illegality of the US attacks on these particular sites.

Accordingly, the unwarranted US missile strikes against these sites, which were conducted without the prior knowledge or approval of Iraq’s government, and contravened both international law and international diplomatic norms, require the building of a broad-based international legal consensus amongst the UN member states for the shouldering of responsibility by the US administration.

However, it is anticipated that the United States will invoke in its defence an argument already adumbrated by US Central Command commander, Kenneth F. McKenzie Jr, that US forces targeted facilities used by the Hezbollah Brigades in Iraq to target coalition forces in the Taji camp north of Baghdad[4], where three soldiers were killed: two Americans and one British. These allegations may be addressed from two perspectives: the first; the targeting by the US of Iraq’s national security forcesand the bombing of the headquarters of the army, the police, and the PMF, are an indefensible violation of Iraq’s sovereignty. The second perspective is that the targeting of private and public sector assets, such as Baghdad International Airport and Karbala Airport, are tantamount to the destruction of vital national infrastructure and this is also indefensible under international norms.

The argument that Iraq’s sovereignty has been indefensibly violated may also be addressed through legal channels, which include taking measures through the International Court of Justice (ICJ), the principal legal organ of the United Nations, as provided for by Article 38 of the Statute of the International Court of Justice. This article, describing the law to be applied by the ICJ when deciding cases within its jurisdiction, is generally considered to be the most authoritative enumeration of the sources of International Law:

“1. The Court, whose function is to decide in accordance with international law

such disputes as are submitted to it, shall apply:

  1. international conventions, whether general or particular, establishing

rules expressly recognized by the contesting states;

  1. international custom, as evidence of a general practice accepted as law;
  2. the general principles of law recognized by civilized nations;
  3. subject to the provisions of Article 59, [.e. that only the parties bound by the decision in any particular case,] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

 Thus, in the event of any dispute arising over the interpretation or application of an international legal instrument, custom or norm or and in the event, that the dispute cannot be resolved through negotiation or within forum of the United Nations itself, it may be referred to the ICJ[5]. In view of the fact that both Iraq and the USA are parties to the Statute of the International Court of Justice, they have in effect acquiesced to the jurisdiction of the ICJ for the resolution of their dispute. Therefore, it is incumbent upon the responsible state organs in Iraq to document the evidence, to specify the charges against the USA and to submit them to the International Court of Justice to provide the Iraqi people with the most effective means for realising their rights.

[1] Ministry of Foreign Affairs hands the US ambassador a diplomatic note and summons his British counterpart – http://www.alliraqnews.com/modules/news/article.php?storyid=87942.

[2] Ibid.

[3] Ibid.

[4] US army warns Iran’s proxies in Iraq: ‘You will pay the cost’- https://www.middleeastmonitor.com/20200314-us-army-warns-iran-agents-in-iraq-you-will-pay-the-cost/

[5] STATUTE OF THE INTERNATIONAL COURT OF JUSTICE –  https://www.icj-cij.org/en/statute#CHAPTER_II