A/HRC/38/44/Add.1
international armed conflicts (Additional Protocol I), and the Convention on the Prevention
and Punishment of the Crime of Genocide. It is not party to the Protocol additional to the
Geneva Conventions of 12 August 1949, and relating to the protection of victims of noninternational armed conflicts (Additional Protocol II). Iraq is also not signatory to the Rome
Statute of the International Criminal Court, nor has it made a declaration accepting the
jurisdiction of the Court in relation to the conflict.
14.
All parties to non-international armed conflict that meets the threshold of intensity
and organization,5 including armed non-State actors, are bound by common article 3 of the
Geneva Conventions, which establishes fundamental rules from which no derogation is
permitted. It requires humane treatment for all persons in enemy hands, without any
adverse distinction, and specifically prohibits under (1) (a) violence to life and person, in
particular murder of all kinds, mutilation, cruel treatment and torture, and under (1) (d) the
passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all judicial guarantees.
15.
In addition, all parties, including those that provide air or other support to any of the
warring sides, are also bound by other relevant rules of customary law applicable to noninternational armed conflicts. They must at all times abide by the principles of distinction,
proportionality and precaution in attack, and may not under any circumstance, inter alia,
carry out attacks on civilians or civilian objects, wantonly destroy property, plunder or
pillage, or use chemical weapons or resort to collective punishment.
16.
The Government bears responsibility for all violations of international humanitarian
law committed by its armed forces or those acting under its direction or control. 6 Under
customary international law, the Government has to investigate all violations of
international human rights and humanitarian law, and ensure full reparation for loss or
injury caused by the State.7
Legal framework applicable to ISIL and other armed non-State actors8
3.
17.
The labelling of armed groups as “terrorist organizations” does not alter the
application of international humanitarian law or the obligations placed on the parties to the
conflict. As highlighted above, international human rights law continues to apply during
armed conflict. While armed opposition groups cannot become parties to international
human rights treaties, they are increasingly deemed to be bound by certain international
human rights obligations, including, at the minimum, those considered to be peremptory
international law (jus cogens). The Special Rapporteur has also argued that armed non-State
actors are bound by a range of human rights obligations determined by the extent and
nature of their capacities to exercise territorial control and governance functions (see
A/HRC/38/44). Armed non-State actors, exercising de facto authority over a specific
territory as a result of having displaced the legitimate State, are bound by the State’s treaty
obligations.9
18.
ISIL waged war on Iraq from 2014 until its defeat in December 2017. At the height
of its power, it seized as much as 40 per cent of the territory. It proclaimed itself a caliphate
with exclusive theological and political authority over the world’s Muslims and saw itself
as “an all-encompassing entity, one that eventually is meant to shoulder all the
responsibilities of traditional state”.10 In the territories it controlled, the group took on a
5
6
7
8
9
10
International Committee of the Red Cross (ICRC), 2016 Commentary on the First Geneva
Convention, para. 484.
Art. 8 of the articles on responsibility of States for internationally wrongful acts, General Assembly
resolution 56/83 of 12 December 2001, annex; ICRC, Customary International Humanitarian Law,
Volume I: Rules, rule 149.
ICRC, Customary International Humanitarian Law, Volume I: Rules, rules 144, 150, 157 and 158.
For United Nations practices supporting the obligations of armed groups to make reparations, see also
rule 150.
The Government provided a divergent analysis (A/HRC/38/44/Add.4, sect. 1).
See, for instance, A/HRC/8/17, para. 9.
See www.understandingwar.org/report/isis-governance-syria.
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