Acceso usuarios
Crispin Smith
The Iraqi-Kurdish Peshmerga has become increasingly important in the coalition fighting the Islamic State of Iraq and Syria (“ISIS”). Despite its prominence, its legal status in international law can seem ill-understood. Conflicting statements from Kurdish and Iraqi officials, in addition to obfuscation and divergent understandings by states supplying the Peshmerga are the norm. In popular discourse the Peshmerga is generally treated as a separate Kurdish armed force, unrelated to Baghdad and the Iraqi armed forces, a position echoed by Kurdish officials. The confusion is compounded by the complexities of the political situation in Iraq, with the Kurdistan Region and its Peshmerga functioning almost entirely independently from the Iraqi federal government.
Despite these factual complexities and the apparent divergence in understandings as to the Peshmerga’s legal status, this Note argues that the answers provided by international law are quite simple, if politically controversial. As a matter of law, Iraq not only has State responsibility for the Kurdish Peshmerga, but in fact the Peshmerga must be understood to be a part of the Iraqi armed forces under international humanitarian law (“IHL”).
This conclusion raises tensions and problems, which are explored in this Note. Iraq may have legal responsibility for an armed group (the Peshmerga) which is alleged to have committed significant IHL violations during the conflict against ISIS, and has previously deployed (without Iraq’s permission) into Syria. Despite this, Iraq currently has no de facto control over the Peshmerga, nor any ability to prevent or punish illegal actions. Meanwhile, Western nations that directly supply the Peshmerga may be doing so in some cases based on flawed interpretations of the Peshmerga’s status under IHL. By arming and training the Peshmerga as a separate entity to the Iraqi armed forces, they ultimately risk harming their own stated policies opposing breaking up Iraq
