Ceasefire Centre for Civilian Rights and Minority Rights Group International – Mosul after the Battle: Reparations for civilian harm and the future of Ninewa

This report aims to assess the current state of reparations in Iraq for victims of the conflict with ISIS, focusing on Mosul as a testing ground for the future of transitional justice in Iraq. So far, the responsibility to provide individual reparations has primarily been assumed by the Government of Iraq, which enables natural and legal persons to claim reparations for the losses suffered as a result of the armed conflict. Members of the international coalition supporting the Iraqi government in the military campaign to recapture Mosul have, instead, been reluctant to provide reparations for civilian casualties or property damage and have consistently claimed that the sole responsibility lies with Iraq.

Law No.20 on ‘Compensating the Victims of Military Operations, Military Mistakes and Terrorist Actions’

Iraq’s Law 20 on ‘Compensating the Victims of Military Operations, Military Mistakes and Terrorist Actions’ allows civilians to access monetary compensation for personal or property damage suffered as a result of armed conflicts. As of November 2019, 35,000 claims for deaths, injuries or loss of property have been lodged with the Iraqi government, which appears unable to cope with the high number of applications. Not only is the national mechanism set up by Law 20 overloaded, the cumbersome procedure, which is marred by delay, obstacles to access and allegations of corruption, have caused growing resentment among the Iraqi population.

The Law 20 framework also contains significant gaps. First, while it covers physical harm and property damage, it does not address psychological harm or enable victims to access mental health care. Second, it is silent on many categories of violations that occurred as part of the recent conflict, including torture, enforced disappearances and other international crimes. Third, the existing mechanism for compensation does not adequately acknowledge the full responsibility of the Iraqi government and the US-led international coalition for violations against civilians. The high level of destruction and civilian casualties during the battle for Mosul raise questions over the application of IHL during military operations. There are reasons to believe that all parties to the conflict in Ninewa (i) were responsible for failures to meet the international humanitarian law obligation to take precautions to avoid or minimise incidental loss to civilian life, injury to civilians and damage to civilian objects and (ii) may have committed unlawful attacks that might amount to war crimes. Notwithstanding, members of the international coalition against ISIS have consistently denied that violations of international law have ever occurred in the course of the armed conflict

Recognition of international crimes

Several categories of violations are not being addressed adequately or at all in the current transitional justice framework in Iraq, either by the reparation mechanism set up by Law 20 or by Iraq’s existing criminal laws. The Iraqi Criminal Code does not recognize the systematic and targeted crimes perpetrated by ISIS against Iraqi minority communities, hence denying victims the right to truth, justice, and remedy. With suspected ISIS members currently being tried under Iraqi terrorism laws, there is a failure by the government to acknowledge the gravity of the crimes committed. The lack of an explicit legal basis for the prosecution of war crimes, crimes against humanity, and genocide at the domestic level also hampers the effectiveness international efforts to hold ISIS accountable. As a matter of fact, while the UN Security Council has established an Investigative Team to Promote Accountability for Crimes Committed by Daesh, under Resolution 2379 (2017), the impact of the team’s work is ultimately limited by the lack of courts or tribunals in which alleged perpetrators can be held accountable.

This report recommends:

● Strengthening the mechanism established under Law 20, including by easing evidentiary requirements for compensation,

● Combining compensation with restitution, rehabilitation, satisfaction and guarantees of non-repetition,

● Legislating to recognize war crimes, crimes against humanity and genocide under Iraqi criminal law and making provisions for the effective investigation, prosecution and punishment of perpetrators,

● Creating a comprehensive reparations program or fund to address the harm inflicted by international coalition action within the anti-ISIS campaign.