The New York Times’ leading reporter Maggie Haberman wrote on Friday, “This is the thing that hasn’t fully penetrated for people – Soleimani was part of the state.” She was building off a statement by retired General David Petraeus, who outlined the significance of the General’s position in the Iranian government. But there’s another thing that hasn’t fully penetrated, if at all. The other person that U.S. officials celebrated killing in that same strike was part of another state: Iraq. What’s more, the members of the Iranian-backed militia group that the U.S. killed a few days earlier—an action that triggered the storming of the U.S. embassy—were also part of the Iraqi military forces.

If these dimensions of the unfolding events are not properly understood by U.S. decision makers and the media, the currently highly volatile situation—between the United States, Iran, and Iraq—is even more likely to spiral out of control.

As I will explain in detail below, the militia group Kata’ib Hezbollah (KH) is legally a part of the Iraqi armed forces, and has been since the tail end of 2016. Despite its close links to Iran, and limited willingness to obey the Iraqi chain of command, the Hashd al-Sha’abi (Popular Mobilization Forces) militias — to which KH belongs — were incorporated into the Iraqi military by a series of laws and Prime Ministerial orders. The U.S. airstrike on Dec. 29 was aimed at members of KH, leaving around 25 fighters dead. The U.S. airstrike launched at dawn on January 3 that killed Qassem Soleimani also killed KH’s founder and leader, Abu Mahdi al-Muhandis. Along with the strong condemnation of the U.S. attacks by the Government of Iraq, it is highly doubtful that the airstrikes were undertaken with Baghdad’s consent. As such, the United States has not only launched an armed attack on Iran, but in effect it has also attacked the Republic of Iraq—twice in five days.

[Note: As this article was going to press, the New York Times reported that the United States knew Muhandis had come into the target site when conducting the strike, even though it was Soleimani who was the target of the attack. What’s more, the Times, paraphrasing an anonymous U.S. official, said that the strike would have been called off if Soleimani was meeting with “Iraqi government officials allied with Americans.” Most readers might miss the qualifier. It suggests if Soleimani was meeting with Iraqi government officials who were not “allied with Americans,” the attack could possibly still be carried out. And, indeed, the U.S. official told the Times that Muhandis was considered a “‘clean party,’ meaning members of the Kataib Hezbollah.” In short, the United States considered the attack that would kill an Iraqi government official a clean shot. That said, it’s unclear to what extent U.S. military planners and senior U.S. officials understood Muhandis’ position within the Iraqi military. Indeed, that lack of understanding is part of the problem this article attempts to resolve.]

What is Kata’ib Hezbollah and the Hashd al-Sha’abi?

The Hashd al-Sha’abi or Popular Mobilization Forces (PMF) is a collection of militias that formed in 2014 to counter the Islamic State (ISIS). As ISIS forces encroached on Baghdad, the then Prime Minister Nouri al-Maliki and Iraq’s chief Shi’ite cleric Ali al-Sistani each issued calls for the people to rise up against the threat. Thousands of Iraqis answered this call forming a range of militias which came to be known collectively as the Hashd al-Sha’abi. Broadly, these militias fell into three categories. Those militias in the first category tend to be organized around local or ethnic minority affiliation. The other two categories are Shi’ite-majority units. Of these Shi’ite units, the militias (broadly speaking) are either loyal to the Baghdad government and relatively moderate Shi’ite leaders such as Sistani, or are loyal to Iran with links to the Iranian Revolutionary Guard Corps. The Iran-backed militias tended to have existed for many years, having formed during or before the U.S. invasion in 2003. Such militias are completely illegal under Iraq’s constitution, which prohibits non-state armed groups under article 9. However, the 2014 calls to arms allowed formerly illegal Iranian proxies to enjoy at least tacit legitimacy and greatly swelled ranks.

The target of the late December U.S. strike, Kata’ib Hezbollah, is one of those pre-existing Iranian-linked militias, founded in 2003 by Abu Mahdi al-Muhandis — a dual Iraqi-Iranian national. He was killed on Friday alongside Qassem Soleimani. From its inception, his group took a prominent role attacking U.S. and coalition forces in Iraq during and after the 2007 “Surge,” and KH remains on the U.S. State Department list of Foreign Terrorist Organizations, having been listed in 2009. Despite those facts, and despite KH’s existence having been a clear violation of Iraq’s constitution, KH has remained prominent, buoyed by Iranian training and equipment, and in 2014 it became one of the preexisting militias that formed the core of the Hashd al-Sha’abi movement. Abu Mahdi al-Muhandis took on a prominent role in the overall leadership of the Hashd al-Sha’abi, and was, until his death, the Deputy Chairman of its governing committee. KH’s strong position within the Hashd al-Sha’abi has increased the group’s influence — and through the Hashd al-Sha’abi it has become a de jure (even if not de facto) part of the Iraqi state. How so? Through formal incorporation.

How were the militias incorporated into the Iraqi military?

The Hashd al-Sha’abi were hugely successful and played a significant role in turning the tide against ISIS. This success boosted their domestic popularity and political influence. But the militias were still illegal under Iraq’s constitution which outright bans militias outside of the framework of the armed forces. That changed at the end of 2016, when the Iraqi Parliament passed “Law Number 40 of the year 2016: the Law of the Hashd al-Sha’abi Committee.” This formally brought the Hashd al-Sha’abi into the Iraqi armed forces, subordinating them to the Iraqi military chain of command and the Office of the Prime Minister, via a coordinating organization known as the Popular Mobilization Committee (PMC). Even at the time, the law was controversial. Parliament passed it by 170 out of 328 possible votes, with many Sunni legislators objecting or abstaining.

Since the passage of that 2016 law, Prime Minister Haider al-Abadi and his successor Adil Abdul-Mahdi have issued a series of Diwani Orders further incorporating the Hashd al-Sha’abi militias into the Iraqi Security Forces, synchronizing pay scales and rank structures, and partially reorganizing the structure of the PMC.

However, both PMs found these militias to be difficult to control. While some units willingly accepted orders from Baghdad, many others — particularly those linked with Iran — refused to submit. A July 2019 Diwani Order issued by Prime Minister Abdul-Mahdi attempted to force all elements of the militias under Iraqi Armed Forces command, or else force them to disband. However, the changes were not fully implemented, and almost all of the old de facto command structures remain in place. Iran-backed militia groups like KH and others were particularly resistant.

In several prominent cases, militias such as Kata’ib Hezbollah and the Badr Brigades refused to withdraw from captured territories, or deployed into Syria without permission from the official chain of command. At the same time, Sunnis and minorities in northern Iraq alleged a range of human rights abuses by Hashd al-Sha’abi militias, ranging from extortion, violence, and forced displacement to extrajudicial killings.

Hashd al-Sha’abi involvement in politics and recent protests

The growing power of the Hashd al-Sha’abi was particularly apparent in 2018, when several militias openly attempted to influence Iraq’s elections, despite clear constitutional prohibitions against military involvement in politics. The Fatah Alliance political bloc was effectively a Hashd al-Sha’abi alliance, formed from a coalition of Iranian backed militias and headed by Hadi al-Ameri (a prominent militia leader, al-Ameri has now been appointed by the Iraqi Army as Abu Mahdi al-Muhandis’ replacement within the PMC). Prime Minister Abdul-Mahdi was eventually appointed as a compromise candidate deemed acceptable to all parties, including the militias. However, his government has proved unpopular. Over the last three months of 2019, Iraq has been paralyzed by anti-corruption protests — particularly in Shi’ite areas. These protests have been aimed at the government, but protesters have also expressed anger at the role of militias and Iranian influence in Iraq. Iraqi Security Forces — particularly elements linked to the Hashd al-Sha’abi — have repeatedly opened fire on protesters. The U.S. announced sanctions on a number of Hashd al-Sha’abi officials under the Global Magnitsky Act in early December in response to human rights abuses, and the violence against peaceful protesters has been condemned by senior Shi’ite leaders. Despite its designation as a Foreign Terrorist Organization, KH has been able to use its legitimized position within Iraq to access U.S. equipment and arms intended for the Iraqi Security Forces.

Against this backdrop, and following the death of a U.S. contractor and injury of four U.S. service members in a rocket attack reportedly carried out by KH in late December, the United States likely saw an opportunity to strike at a militia it has long viewed as a growing threat.

If these dimensions of the unfolding events are not properly understood by U.S. decision makers and the media, the currently highly volatile situation—between the United States, Iran, and Iraq—is even more likely to spiral out of control.

The status of the Hashd al-Sha’abi in international law

From an international law perspective, the Hashd al-Sha’abi was an organ of the Iraqi state following the adoption of the Law of the Hashd al-Sha’abi Committee in late 2016. International Law of State Responsibility tends to defer to domestic legislation when determining who or what is an entity of a given State. For example, the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts considers the “conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions.” Article 4 goes on to clarify that an “organ includes any person or entity which has that status in accordance with the internal law of the State.” States remain responsible (according to Article 7) even if an organ exceeds its authority or contravene instructions. This rule evolved in response to a need to ensure clarity in state relations. Rather than allowing states to avoid responsibility by simply disavowing their organ’s actions, international law supports the proposition that “all Governments should always be held responsible for all acts committed by their agents by virtue of their official capacity.”

For the purposes of the Law of Armed Conflict (LOAC) the domestic incorporation of the Hashd al-Sha’abi into the Iraqi Security Forces was also sufficient to make the militias a part of the Iraqi Armed Forces. Iraq is a State Party to Additional Protocol I to the Geneva Conventions (API). API’s Article 43 defines a nation’s military as consisting “of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates…. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.” The 2016 law and subsequent Diwani Orders placed the militias under the control of the commander-in-chief of the Iraqi Armed Forces, and created a command structure and rank system that nominally ensures internal discipline. Iraq law has also made the formation “subject to the military laws in force in all respects, with the exception of conditions relating to age and education levels.” These formal procedures of incorporation under Iraqi national law have had the effect of ensuring the Hashd al-Sha’abi and its constituent militias will be understood as the Iraqi armed forces for purposes of LOAC.

Implications of U.S. attacks on Kata’ib Hezbollah

Kata’ib Hezbollah forces have long been known to operate as Iranian proxy forces within Iraq, and its affiliates are believed to have been behind a number of attacks on U.S. and allied forces in recent months. Nevertheless, the decision to strike appears to have been hasty, and may not have taken into account the militia’s place within the current Iraqi State. Through its place as part of the Hashd al-Sha’abi, KH is an organ of the Iraqi State and part of the Iraqi military. Striking KH must therefore be understood as an armed attack on the state of Iraq, and a violation of the UN Charter’s prohibition on the use of force against other states. The anger expressed by the Government of Iraq in response to the strikes implies a lack of consent on the part of Iraq, and so it is difficult to view the strike as anything other than an attack by the United States on its long-term defense partner. Kata’ib Hezbollah and the Hashd al-Sha’abi Committee also both released a statement condemning the December strikes, with the latter confirming KH’s position as a part of the formation.

Abu Mahdi al-Muhandis’s role as Deputy Chair of the Hashd al-Sha’abi Committee also makes the United States’ killing him especially significant. The Committee was created by the 2016 legislation, and the position of Deputy Chair established by a Prime Ministerial order dated March 8, 2018. As mentioned above, the day after his killing, the Iraqi Armed Forces appointed another influential leader of an Iran-backed militia to fill the now vacant position. Despite Abu Mahdi al-Muhandis’ position as head of a designated FTO, it is hard to interpret the operation, if deliberately targeting him, as anything other than the assassination of an Iraqi government official.

There are additional complications here to be sure, including who fired the first shot. For example, under international law (codified in the Articles of State Responsibility), the Iraqi government is responsible for the actions of Hashd al-Sha’abi and its subsidiary militia. Hence, Iraq appears responsible for the attack that killed the American contractor and injured for U.S. service members. What’s more, if KH is under the de facto control of Iran to such an extent that Iran is responsible for KH’s actions (under Article 8 of the Articles of State Responsibility), then the responsibility traces back to Tehran.

How the United States has responded and continues to respond to the situation may yet prove a political and legal misstep, most especially if U.S. decision-makers and those who influence their decisions do not understand the relationships between Hashd al-Sha’abii, KH, and the Iraqi state.

It is highly likely KH and similar Iran-backed militias will now attempt to avenge Soleimani and Abu Mahdi al-Muhandis. Moving forward, U.S. interests would be best served lobbying for an amendment to the incorporation legislation. However, the United States’ extraordinarily aggressive actions taken without Iraqi consent may well have incinerated any remaining U.S. diplomatic influence in Baghdad.

Nevertheless, Iraq is currently responsible for a group of militias which fail to accept the legitimacy of the command chain and the rule of Iraqi law. These militias are credibly accused of historic and ongoing human rights violations against civilians in recaptured territories and peaceful anti-corruption protesters. Leaders like Abu Mahdi al-Muhandis place greater stock in their loyalty to Iran than to Iraq’s elected government. Their actions are a discredit those units of the Iraqi Security Forces and Hashd al-Sha’abi which fought to defeat ISIS and defend Iraq and its people, and which continue to submit to the chain of command and rule of Iraqi and international law. And if Hashd al-Sha’abi militias escalate attacks on the United States into open conflict, Iraq may find itself legally in war with the United States.

There are solutions here.

Iraq should disaffiliate itself from those units which commit violations or fail to obey Baghdad. Iraq must also work to bring violators of human rights law to justice, and demobilize, disarm, and reintegrate affiliates of these militias.

The United States and other countries should assist with these efforts wherever appropriate. At the same time, the U.S. should think very, very hard before launching attacks on its own defense partners (no matter how repugnant and problematic the target may be). In addition to violating an ally’s sovereignty, such incidents damage the U.S.’s credibility in Iraq with the Iraqi people, weakens its position within Baghdad diplomatically, and shatter U.S. credibility on the world stage as an upholder of international norms. The U.S. Defense and State Departments must also continue to work with the Iraqi Ministry of Defense to ensure arms and equipment supplied to the Iraqi Security Forces do not end up in the hands of known human rights abusers. The United States has invested too much in Iraq’s future to fail to identify the legal and political complexities arising from the Hashd al-Sha’abi’s incorporation. At the same time, those complexities arise from legislative decisions taken by Iraqis, and must ultimately be resolved by Iraqis. The solution may be to uphold international legal norms while trusting and empowering the many Iraqis already striving for political and legal change. If the United States wants to remain a successful player in the Middle East, and wants to combat and counter Iran it cannot afford to fail to understand its own allies.

Image: Left: Abu Mahdi al-Muhandis attends the funeral procession of Hashd al-Sha’abi’ fighters in Baghdad on Dec. 31, 2019, who were killed on the weekend in US air strikes on a base in western Iraq near al-Qaim, on the border with Syria. (Ahmad Al-Rubaye/AFP via Getty Images); Right: Remnants of the U.S. airstrike that killed Soleimani and al-Muhandis on Jan. 3, 2020 outside the Baghdad International Airport.