Published: 25 March 2021 Author: Stefan Talmon
On 1 October 2019, large protests started in southern and central Iraqi cities, including Baghdad. Thousands of protesters, mostly young Shias, demonstrated against the Shia-led political establishment and called for a new government. The protesters voiced their opposition to the deteriorating economic situation, sectarian politics, and rampant corruption in the country. They also expressed their anger at neighbouring Iran, which has great influence in Iraq, inter alia, through the Popular Mobilisation Forces (PMF), a pro-Iranian militia. After two months of violent anti-government protests, on 1 December 2019, Prime Minister Adel Abdul-Mahdi resigned, but stayed on temporarily in a caretaker capacity until a new government was formed. By the time of his resignation almost 400 protesters had been killed and 16,000 wounded in clashes with security forces and militias. More than a dozen members of the security forces had also died in the clashes.
On 7 November 2019, Germany commented on the anti-government protests in Iraq, saying that it stood firmly on the side of Iraq but that it strongly condemned excessive use of violence and demanded freedom of the press, adding “Internet cuts are wrong!”. When, on 28 November 2019, Iraqi security forces shot dead 40 protesters and wounded many more in a single day, the Federal Foreign Office issued a long statement on the ongoing protests and violent clashes in Iraq which read in part:
“The Federal Government condemns the disproportionate use of live ammunition and tear gas canisters as well as targeted attacks on medical personnel. The right to peaceful protest, as enshrined in the Iraqi Constitution, must be guaranteed. We call on all sides to exercise restraint and to refrain from violence. We are calling once again for a full investigation into all cases of violence. While we welcome the efforts that the Iraqi Government has made so far in this regard, these measures must now reach a swift conclusion and those responsible must be brought to justice.
The actions taken by the Iraqi authorities against a number of television and radio stations in the course of the protests and repeated attacks on journalists by unidentified persons are a cause of great concern for us. This represents a worrying deterioration of the freedom of the press. In the Federal Government’s view, a free press forms the basis of an open, public discourse, which is also a precondition for lasting stability and development. […].”
This statement was echoed by the German representative on the UN Security Council during a Council meeting on the situation in Iraq on 3 December 2019. The German representative deplored “the excessive use of force by security forces against protesters” and called for respect for the “principles of necessity and proportionality”. He stated that there were reports about “the targeting and abduction of medical personnel in the context of the protests”. Such acts, if they had indeed occurred, would in Germany’s view constitute “clear violations of international humanitarian law and numerous resolutions of the Security Council.”
On 6 December 2019, armed militiamen, widely thought to belong to the PMF, attacked peaceful protesters in central Baghdad, killing at least 15 people and wounding more than 60. The incident laid bare the inability of the Iraqi Government to exert control over the PMF and other armed militias. Although these militias were supposed to integrate into the Iraqi armed forces, they continued to operate independently and often as proxies of Iran. The next day, the German Embassy in Baghdad tweeted: “We condemn the heinous attack against protestors near Tahrir last night. The authorities must bring those responsible to justice and protect peaceful protesters.” The incident led the ambassadors of France, Germany and the United Kingdom to seek a meeting with the acting Iraqi Prime Minister, Abdel Abdul-Mahdi. After the meeting on 8 December 2019, the Prime Minister’s media office issued a statement saying that during the meeting, the demonstrations taking place in Iraq were discussed and that the ambassadors had expressed their “concern about the targeting of demonstrators by vandals” and had stressed the importance of preventing any attacks against protesters and security forces. The Iraqi Prime Minister was said to have affirmed Iraq’s commitment to human rights principles, including the protection of the right to peaceful demonstrations and the right to life. The embassies of the three countries, however, also issued their own press statement following the meeting which read as follows:
“Today the Ambassadors of Britain, France and Germany met Iraqi Prime Minister Adel Abdulmehdi The Ambassadors condemned the killing of peaceful Iraqi protesters since 1 October, including the killing of over 25 protesters in Baghdad over the weekend.
They urged the Prime Minister, as Commander in Chief of the Armed Forces until a new Prime Minister takes office, to ensure the protection of the protesters, and to urgently investigate and hold accountable those responsible for the killings. No armed group should be able to operate outside of the control of the state. In this regard, they encouraged the government to ensure that its recent decision to order the Popular Mobilisation Forces to stay away from locations, and to hold accountable those who violate this order, will be implemented.”
The next day, the Iraqi Foreign Ministry summoned the diplomatic representatives of the three countries to protest against the joint statement issued by the embassies. In a press statement, the Iraqi Ministry of Foreign Affairs said:
“The Undersecretary expressed the Foreign Ministry’s rejection of the implications of the statement, considering that it represents interference in the internal affairs of Iraq, and a clear violation of Article I of the Vienna Convention to regulate relations between countries.
The Undersecretary stated that the mission of the Ambassadors in Baghdad is to strengthen relations, and build common interests without interfering in its internal affairs, and he stressed that if there is a need to issue a statement on Iraq, coordination with the Foreign Ministry is required, and it is in place by other missions in Iraq. […]
The Undersecretary concluded by affirming that Iraqis over the past years, and with their experiences, have proven that they are highly mature people, and no one has the right to interfere in its affairs, or imposing guardianship and that all accredited missions in Baghdad must adhere to diplomatic standards that organize relations between countries and promotes cooperation.”
The case of the protests in Iraq calls for two observations. First, the German representative on the Security Council was mistaken when he described “the targeting and abduction of medical personnel in the context of the protests” as a “clear violations of international humanitarian law”. The application of international humanitarian law is a question of jus in bello. This body of law applies only in situations of armed conflict. A non-international armed conflict requires hostilities between the armed forces of a State and organized armed groups or between such groups. Hostilities must be of a certain intensity and the groups involved must show a certain level of organisation. None of these conditions were fulfilled during the protests in Iraq. There was thus no question of the application of the rules of international humanitarian law to the protests in Iraq.
Second, the Iraqi Foreign Ministry was equally mistaken when it labelled the alleged interference in Iraq’s internal affairs by the three countries’ ambassadors as a “clear violation of Article I of the Vienna Convention to regulate relations between countries”. Article 1 of the Vienna Convention on Diplomatic Relations (VCDR) contains the definition of terms. The relevant provision here would have been the second sentence of Article 41(1) VCDR which provides that diplomats “have a duty not to interfere in the internal affairs” of the receiving State. A similar duty applies to the sending State itself under customary international law. Interference, unlike intervention, does not require an element of coercion and may include public statements on domestic political issues and events. While it was clearly within their diplomatic functions to present the sending States’ views on the protest to the government of the receiving State in a private meeting with the Prime Minister, the same may not necessarily be said about the ambassadors’ subsequent public press statement. The ambassadors’ statement considerably diverged from the statement issued by the media office of the Prime Minister both in content and tone and may thus be considered as undermining the position of the Prime Minister. For example, the ambassadors “condemned” rather than “expressed concern” over the killing of protesters. They also adopted a rather one-sided position, focussing only on the killing of “peaceful protesters” and not mentioning the attacks on and killing of members of the security forces. The ambassadors also publicly addressed quite forcefully specific demands to the Iraqi Prime Minister, “urging” him to protect the protesters, conduct investigations and hold those responsible for the killings accountable.
The ambassadors’ press statement was concerned with the human rights situation in Iraq and, in particular, the violation of the protesters’ human rights. This is confirmed by the Prime Minister himself, who affirmed Iraq’s commitment to human rights principles, including the protection of the right to peaceful demonstrations and the right to life, in the meeting with the ambassadors. The human rights situation in a country, however, is no longer a purely internal affair. As the International Court of Justice (ICJ) pointed out in the Barcelona Traction case, “the principles and rules concerning the basic rights of the human person” give rise to obligations towards the international community as a whole. By their very nature these obligations are the concern of all States. The ICJ continued: “In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.” Any State is entitled to invoke the responsibility of other States violating obligations erga omnes. The right to invoke the responsibility also includes the right to claim from other States that they cease and prevent human rights violations, investigate such violations and bring the perpetrators to justice.
That the human rights situation in the context of the protests in Iraq was of international concern can also be seen by the fact that on 13 December 2019 the UN Security Council issued a press statement on the situation in Iraq which read in part:
“The members of the Security Council expressed grave concern at the loss of life of those demonstrating and at the killing, maiming and arbitrary arrests of unarmed demonstrators. The members of the Security Council acknowledged the right to peaceful assembly in Iraq and called for Iraqi authorities to promptly conduct transparent investigations into the violence against those demonstrating. They expressed concern over the killing or maiming of unarmed demonstrators and security forces. The members of the Security Council expressed concern over the involvement of armed groups in extrajudicial killings and kidnappings. The members of the Security Council called for maximum restraint and urged all to refrain from violence or the destruction of critical infrastructure.”
Article 2(7) of the UN Charter prohibits the United Nations from intervening in the domestic affairs of the member States, unless adopting enforcement measures under Chapter VII of the Charter. In this context, intervention and interference have been used interchangeably. As the Security Council did not act under Chapter VII when issuing the press release, it must be concluded that Council members did not consider their press statement an interference in the internal affairs of Iraq. This raises the question of whether the same is true for the ambassadors’ press statement. It has been argued that public statements by diplomats on the human rights situation in the receiving State can now be considered part of the diplomatic function of representing the sending State in the receiving State. While the practice of a small group of Western States, including Germany, supports this view, the overwhelming majority of States continue to maintain the traditional position and regard such statements and criticism of the human rights situation by foreign diplomats as interference in the internal affairs of the receiving State contrary to sentence 2 of Article 42(1) of the VCDR.
Category: Diplomatic and consular relations