Independent Without Independence: The Iraqi-Kurdish Peshmerga in International Law

34 Pages Posted: 20 Jul 2017 Last revised: 9 Jan 2019

See all articles by Crispin Smith

Crispin Smith

Harvard University, Law School, Students

Date Written: June 4, 2017

Abstract

The Iraqi Kurdish Peshmerga has become increasingly important in the coalition fighting 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 article 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.

This conclusion raises tensions and problems, which are explored in the article. Iraq has responsibility for an armed group which is alleged to have committed significant IHL violations during the conflict against ISIS, and has previously deployed (without Iraq’s permission) into Syria. This, despite Iraq currently having no factual control over the Peshmerga, or any ability to prevent or punish. Meanwhile, Western nations which 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 the break up of Iraq.

Keywords: Iraq, Kurd, Kurdish, Kurdistan, Peshmerga, Armed Forces, Law, International Law, International Humanitarian Law, Law of Armed Conflict, Classification, ISIS, ISIL, Syria, independent, independence

JEL Classification: K33

Suggested Citation

Smith, Crispin, Independent Without Independence: The Iraqi-Kurdish Peshmerga in International Law (June 4, 2017). Harvard International Law Journal, Vol. 59, No. 1, 2018. Available at SSRN: https://ssrn.com/abstract=3003644

Crispin Smith (Contact Author)

Harvard University, Law School, Students ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

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