Insurgency in Iraq: Legal, Political and Security Implications for the Region
Ali Asghar Kazemi*
This short paper attempts to address briefly the problem of continued turmoil and insurgency in the post-Saddam Iraq and its possible repercussions for the region with particular emphasis on Iran.
As a Shiite state neighboring Iraq, with a long history of rivalry, hostilities and war, Iran’s national interests are very much tied to all political, strategic and structural changes in Iraq. The collapse of the Baath regime, through the American military intervention, has created a number of challenges and opportunities for the Islamic regime in Tehran. How Iranians perceive the present volatile situation? How they react to eventual threats? Are they apt to benefit from the potential opportunities? The main argument here is that Iran’s national interests are best served by a stable, democratic and free Iraq with a legitimate strong government willing to cooperate with its neighbors in the promotion of regional calm and security. The outcome of the presidential elections in Iran will have no effect on the political landscape and Iranian policy towards Iraq.
The paper is divided into four sections: After this introduction, the next section gives some clarification on the use of term ‘insurgency’ and its legal implications. In the following sections, the wider implications of instability in Iraq for the region and the apparent shifting American attitude vis-à-vis Iran and other problems of the Middle East will be discussed. The final section is devoted to the prospects for the future of Iran-Iraq relations
Insurgency or Terrorism? A point of Caution!
When we speak of insurgency and insurgent group in a given state, we implicitly recognize a legal status for those who for some legitimate causes fight against an occupying power with the objective of liberating their territory, or with a view to overthrow the incumbent authority or de jure government or some other political aspirations. Insurgent groups in domestic conflicts come under the protection of humanitarian law and the 1977Additional Protocols to the 1949 Geneva Conventions. Whereas terrorism and terrorist activities are considered as crimes against humanity, and subject to universal jurisdiction; that is to say, a terrorist should be prosecuted and punished wherever is found, disregard of the place he/she committed the act or his/her nationality. It is not quite clear whether there was any intention behind using of the term ‘insurgency’ in this Conference and whether the media and American authorities have a clear understanding about the legal consequence of such term from international humanitarian law perspective.
Since the start of the sporadic resistance through staged and coordinated violence in Iraq, it was referred to as ‘terrorist attacks’ carried essentially by a group of Moslem militants connected to Al-Qaeda. They were also considered as mobs, criminals and rebels who perform their carnage without political objectives. But as soon as we refer to these groups as insurgents, they might be entitled to some privileges similar to that accorded to belligerents during armed conflicts. In such circumstance, American and Iraqi offensives against these insurgents should comply with the provisions of the Geneva Conventions and the 1977 Additional Protocols, covering internal conflicts and civil wars. Otherwise, offensive operations such as the ones carried recently in western Iraq near the Syrian borders or in Fallujah would be considered unlawful and a breach of the provisions of the above Protocols.
As a general rule, foreign states are forbidden to give help to the insurgents fighting against the established authorities. There is even a UN General Assembly resolution 2131(XX) which declares that “no state shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another state, or interfere in civil strife in another state” (Yearbook of the UN, 1965, p.94). This rule has been endorsed and reaffirmed by the International Court of Justice ICJ in the case of Nicaragua vs. USA. (ICJ Reports, 1986).
However, an exception to this rule probably exists, when the established authorities are receiving foreign supports from another state. For instance, after the Soviet intervention in Afghanistan at the end of 1979, Egypt, Saudi Arabia and later the United States started providing weapons and training for Moslem insurgents fighting against the Soviet backed government. Apparently, this is called ‘right of counter-intervention.’
The ICJ in the case of Nicaragua v. USA described another case of possible exception to the prohibition against giving help to insurgents. As we might recall, the United States admitted aiding the ‘contras’ insurgents who were fighting against the government of Nicaragua, but argued that it was justified as a form of collective self-defense, because Nicaragua has been supplying weapons to insurgents in El Salvador. The Court rejected the argument of self-defense by U.S., since it was not subject of an armed attack, and thus U.S. plea failed in that case.
The current insurgency in Iraq has indeed regional and international repercussions. This is especially true with respect to neighboring states whose economic, trade, political and social interactions with Iraq are totally disrupted and the border security has become quite vulnerable.
To sum up with the legal and political implications of recognition of insurgency status for terrorist operations in Iraq, it seems fair to suggest that these groups be referred to as simple law-breakers and rebels. Since if states decide to recognize them as ‘insurgents’ this would change the legal premise of coping with them through the use of force. However, I shall continue to refer to the term ‘insurgency’ for simplicity, leaving aside the legal connotation.
The Wider Implications of Insurgency in Iraq
It has now become quite evident that American military planners failed to anticipate or prepare for any serious resistance and insurgency after the downfall of Saddam Hussein and perhaps less so after his miserable capture. Still now the intelligence about the identity of peoples who willingly kill themselves in suicide attacks are very vague and unreliable. Even Iraqi officials have little understanding of the relative strength of Iraqi nationals and foreigners among fighters and the probable connections between the two groups.
Since the beginning of the heightening of violence and bloodshed in Iraq, especially after the elections and the establishment of the new provisional government, Iraqi officials tried to put the blame on ‘extremist groups from abroad that merely objected to the presence of Americans and other foreign troops in this country.’ It was also claimed that these groups are out to set ‘a sense of permanent violence to intimidate people and turn them against the government.’
The Iraqi officials believe that these so-called ‘insurgents’ “ do not have a political plan, neither they have a long term strategy, and are only to fight US forces wherever they can find them. These insurgents have been described as “virus that come from abroad and has started to spread to Iraqi youth. An Iraqi government spokesman explicitly pointed his finger to Jordan, Syria and Saudi-Arabia and even Palestinians nationals to be behind these suicide attacks. Fortunately, contrary to widespread accusations outside Iraq, Iran was not included in this list. This may means either that Iran is eventually following a strategy of non-interference, which best serves its long-term national interests vis-à-vis Iraq, or the Shiite majority government is reluctant, at this juncture, to point the finger at their longtime friend, which provided them sanctuary and assistance during their years of exile in Iran.
From a realistic point of view, Iran has every reason now to support the established government in Iraq and try its best to promote the delicate balance and stability there. I would like to underline the word now because at the beginning of U.S. military intervention in Iraq, Iranian leaders were quite furious and believed that a quick victory in Iraq would bring the Americans in a face-to-face confrontation with the objective of toppling the Islamic regime. But now, after two years of harsh violence and bloodshed, Iran has gained some sort of assurance that the Americans would not venture another gamble whose outcome is quite uncertain.
As a point of clarification, we should remember that since the beginning of U.S. intervention in Iraq, Iran has followed a clever policy that may be termed as a ‘two pillar strategy’ with respect to Iraq. On the one hand, it condemned American military intervention as an unlawful and aggressive act against a Moslem country, on the other it considered the downfall of Saddam Hussein and the Baath regime as a God blessing.
In fact, the downfall of Iran’s archenemy and longtime hostile produced a number of challenges and opportunities for Iran. The most threatening challenge was and still is the presence of American forces all around Iran, which virtually encircle Iran’s strategic position on land and at sea. This dimension of U.S. intervention in Iraq and Afghanistan could have been very alarming if Americans had succeeded to a quick round up in Iraq and did not encounter serious challenge by insurgents.
Thus apparently, it seems that the continued turmoil and insurgency in Iraq has an immediate benefit for Iran, since the United States may not be tempted to use hard power against Iran in the foreseeable future. But, at the same time, if chaotic situation continues, it would be counterproductive for all neighboring states and the region as a whole. This proposition is especially true with respect to Iran, which has a lot of common interests with the newly established Shiite majority in Iraq. Therefore, it is fair to suggest that Iran should rationally do everything in its power to attenuate the ethnic, religious, sectarian and tribal conflicts in Iraq; since, it is itself very vulnerable on these matters.
Iraq’s Experience: American Changing Attitude
Despite recent US harsh assault against insurgents in west Iraq, there are some signs that Americans are contemplating to revise their defense strategy followed after September 11, 2001. The new strategy goes beyond the doctrine of ‘preemptive military strike’ aiming at ‘protecting the sovereignty of nation states’ (Washington Post, March 19). The focus of the revised strategy is to determine what kinds of actions are needed to be taken now to shape an international environment for crises prevention. This includes combating terrorism and preventing the use and proliferation of WMD, as some of the core problems. This new attitude which is being reflected in the revised US defense strategy, would supplement the existing doctrine of reshaping the polarized Moslem states, both Arab and non-Arab, could lead to greater success throughout the Middle East and beyond.
Americans have now realized that the use of force to cope with situations that they dislike or otherwise do not promote their worldwide interests may not necessarily be achieved by hard power. Fortunately, very recently the new U.S. approach to a number of cases, including Iran’s nuclear affair, show that the United States is somehow leaning towards the use of soft power, diplomacy, economic and trade incentives, in order to promote its interests and manage crises which are susceptible to escalate and endanger peace and stability in the world and the Middle East. Recent easing of embargo against Iran and letting Iran to apply for WTO, along with a number of other encouraging actions are vivid indications of the emergence of a new approach to critical problems of the Middle East.
At the present time, Iranian leaders do not seem to worry much about an eventual American intervention; nevertheless they continue to reject foreign presence in Iraq and consider the prevailing chaotic situation and continued insurgency as a consequence of the United States interference in this country.
A democratically elected government in Iraq is in favor of Iran’s interests, since the outcome would always benefit the majority Shiites. Of course, we should recognize that not all Moslem shi’as are necessarily in line with the Islamic regime in Iran. For this reason, Iran has some preoccupation with the power structure in Iraq’s new constitution and form of government. For instance, a unitary versus federal political structure, meaning a direct democratic election (one man one vote), or a sort of regional autonomous government, for certain ethnic population such as Kurds Shiites or Sunnis, may change the whole landscape of the new Iraq.
Looking to the Future
Although the volatile situation in Iraq does not permit a realistic conclusion at this juncture, we may at least wrap up this analysis by speculating on Iran-Iraq future relations and the probable requisites for establishing a just and durable peace between the two states.
While Iran seems eager to open normal relations with the new established government in Iraq, It also has some reservations about the final outcome of power structure in this country. Iran would eventually not endorse an autonomous Kurdish state, contiguous to its western borders, which could instigate Iranian Kurds to ask for similar treatment. Turkey also has always had similar concerns.
On the other hand, an equitable distribution of power among various ethnicities and regions, which leads to long-term stability, would also benefit Iran’s national interests. This in turn will hopefully pave the way to transform Iraq from a perennial rival and hostile to a friendly cooperative neighbor, provided that the following outstanding issues are settled once for all with the new legitimate government:
1- Given the fact that Iran and Iraq have not yet signed a formal peace treaty after the cessation of active hostilities at the end of war, from a legal and technical point of view they are still in cease-fire status, established by the U N resolution 598. Therefore, the most important and urgent action would be to conclude a treaty officially terminating the state of war between the two states,
2- As a complement to the above, the settlement of war damages and reparations should take place according to paragraph 6 of United Nations Resolution 598, which obligates the initiator of war of aggression to make adequate compensations,
3- The official reconfirmation of the 1975 treaty between Iran and Iraq, which has been abrogated by Saddam Hussein at the beginning of its aggressive war against Iran in 1980,
4- The final settlement of all outstanding issues regarding border demarcations on land and in the Shatt-al-Arab.
The outcome of presidential elections will most probably not change the political landscape in Iran. That is to say, no matter who is elected he will surely follow the overall policy so far pursued by the Islamic regime. This include eventually the nuclear policy and the establishment of normal relations with the United States.
With respect to Iraq, with the coming into power of the legitimate government in this country, the overall atmosphere appears quite apt for the two Moslem states to resolve once for all their historic and perennial disputes and engage in mutually cooperative relations. This will hopefully help to promote peace and security of the region and would frustrate all ill wishers, including Moslem militants and fundamentalists to continue their violence in Iraq and elsewhere in the region. Iran would be the prime benefactor of such stability and its interests will best be served in such an environment. As a matter of fact, almost all important Iraqi personalities and leaders have personal good ties with Iran where they have spent several years in exile during the Baathist regime. They all have friendly sentiments towards Iran, share the same culture and above all, speak Persian. There is no doubt that the insurgency will subside sooner or later after Iraq regains its full sovereignty and the legitimate government is established. In such conditions, there would be no longer need of foreign troops being stationed in a free Iraq.
*Ali Asghar Kazemi: Professor of International Relations, Dean of the Graduate School of Law and Political Science (GSLPS), Islamic Azad University, Science and Research Campus, Tehran- Iran
Presented to: The Regional Security Conference, UCLA Burkle Center for International Relations, June 16-20, 2005 Athens- Greece
 In a separate paper I presented to the previous cession of The Regional Security Conference in December 2003, I have tried to categorize various groups who are making trouble in Iraq. Below is a section of the paper with the following title: Mounting Challenges to the U.S. Military Presence in Iraq and the Rising Costs of Occupation, December, 2003
“It is safe to say that those challenging the U.S. occupation of Iraq come from various backgrounds and do not pursue the same objectives and interests. One possible set of groups is as follows:
1. A faction made up of average, unemployed, and desperate people who feel humiliated by foreign occupation, have no hope for the future, and think that the Americans are not able to restore law and order in Iraq. This group is not necessarily pro-Saddam and does not wish to see the old Ba’ath regime revitalized, but nonetheless has a great desire to regain national identity. These people are most susceptible to manipulation for political protests. They are not prepared to take arms for any large-scale uprising or revolt against Americans. They are easy to handle and would be satisfied by material rewards and attention, if provided to them directly by the Americans or through Iraqis in charge of welfare. These people are not inherently harmful, but other opportunistic groups can use them in mass demonstrations against U.S. presence in Iraq.
2. The remnants of the old Ba’ath regime and the special Republican Guard, who are still devoted to the ousted tyrant. They are hated by the average Iraqi, and have no future or choice other than to fight the occupying forces, since they have nothing to lose. These groups believe that they failed to perform their sacred duty of resisting the invading forces during the U.S. intervention: by saving their heads, they lost their honor and prestige. They want to make up for their betrayal.
3. Muslim fundamentalists from a wide range of backgrounds, who oppose foreign infidels taking over the lands of Islam. These zealous Islamists may range from the remnants of al-Qaeda to other extremists, mainly Sunni and orthodox factions of the Muslim devout. These are not in favor of democratic elections in Iraq, which may lead to Shi’a majority rule in Iraq. Among these Muslim zealous we may find citizens of Saudi Arabia, Egypt, Syria, Sudan, and other Vahabi Sunnis in the region.
4. Arab (Iraqi) Shi’a militants, who are supposedly supported by Syria and Iran (the Badre Army) through sophisticated connections, apparently unchecked even by authorities in power. As some claim, these groups are responsible for a number of well-planned and sophisticated acts of sabotage in Baghdad and other major cities such as Najaf and Karbala, causing extensive casualties and damage. This latter group has long been the subject of U.S. suspicion and apparently some of its members have been disarmed by the U.S. military. Whether the group is capable of conducting such well-executed and organized attacks is subject to question.
5. More recently, it has been said that hundreds of Islamic militants who had fled Iraq during the war have returned home and are planning major resistance and attacks against U.S. forces. They include members of Ansar-Al-Islam, a militant group allegedly linked to the al-Qaeda terrorist network, which escaped into Iran and have since returned. Many car-bomb blasts in Baghdad are believed to be the work of this group.
6. There are some who believe that the young (and much less learned) cleric Moqtada Sadre, whose father was killed by the Ba’ath regime, has been active recently among Shi’a devout against the Anglo-American invasion and occupation . This group is arbitrarily put into a separate category of Muslim Shi’a challenging the U.S. presence and occupation of Iraq, since their objectives differ from those who oppose the principle of Velayat Faqih. Whether this young activist has any future in Iraq’s political arena is not certain. The tactics and slogans this group are using are very immature and do not lead to credible, serious resistance. Furthermore, people who have gathered around the young Sadre seem not to take his leadership seriously. Therefore, this group may not cause much trouble for Americans in Iraq. Nonetheless, they have to be checked and contained, if the United States wants to clear impediments on the road of the Iraqi transitional power.
7. Though it may sound like fantasy, it is worth mentioning another theory on the invisible hands behind the organized terrorist attacks in Iraq. The idea is based on a conspiracy theory that sees the hands of Israeli intelligence in these sporadic, yet sophisticated, operations. By doing this, they theorize, Israel can further push the Americans to go along with its longtime strategy of neutralizing the threat of Hezbollah and other Muslim militants in Lebanon and Syria and instigate American sentiment against the Islamic regime in Tehran. There seems to be no credibility in this scenario, apparently fabricated by anti-Jewish circles that use every possible angle to prove that Zionism is benefiting from terrorist attacks aimed at destabilizing Iraq.
The speculations further refer to a new Israeli strategic vision that would prepare the ground to rid the Israelis of their Palestinian problem, give them “breathing space,” and revitalize the Zionist dream of a greater Israel. In this view, Israel is capable of reshaping the strategic environment in the Middle East, in cooperation with Turkey and Jordan, through weakening and containing Syria and rolling back its influence in Lebanon. This whole scenario (of course with the help of the United States) would draw a new road map for making the Middle East a safe place for Israel. Some anti-war groups in the United States go along with this argument, though it is highly speculative.”