The Battle of Mosul that began last October is becoming increasingly deadly for the civilians still trapped in the city. At least 200 civilians have been killed in recent coalition bombings; and the bombing of a mosque in Syria that killed at least 42 civilians have led to questions about the level of scrutiny potential targets are given before being attacked. Further afield, the growing death toll also raises questions about criminal accountability for these civilian deaths —  both now and in the future.

The Battle of Mosul is the most important battle fought so far by the US-backed international coalition against ISIS in northern Iraq. As the second largest city in Iraq, it serves as an important hub for trade in and out of neighboring Syria and Turkey. When ISIS took the city in 2014, the group made Mosul its de-facto Iraqi capital. If coalition forces are able to fully capture the city, it would be a huge blow against the dominance ISIS has had in northern Iraq and limit the options the group has in carrying out its cross-border caliphate ambitions.

However, the city has largely been closed off since its fall in 2014. The large civilian population, lack on on-the-ground intelligence, the densely packed urban environment and ISIS’s use of human shields means any military offensive there is fraught with risks of civilian casualties. The taking of East Mosul, on the comparatively less fortified side of the Tigris River, took three months of heavy fighting. Now that Iraqi and coalition forces are battling for the more difficult West Mosul – including the Old Town part of the city that is filled with narrow medieval streets and alleyways – casualty numbers are drastically increasing.

None of this is surprising. But what is gaining attention is the sense that some of these deaths could be easily avoided and a growing suspicion that the international coalition – especially US airpower – is getting cavalier with its targeting. Whether or not either of those things is true, they are two issues that need to be addressed not just for legal reasons, but for Iraq’s long term stability as well.

One question casting a shadow on these casualty numbers is whether the US has changed the rules of engagement in Mosul. As a candidate, President Trump spent 18 months arguing that rules for limiting civilian casualties should be changed to allow the military a freer hand in fighting ISIS. Shortly after coming into office, the White House released a presidential memo that called upon the Pentagon to issue “recommended changes to any United States rules of engagement and other United States policy restrictions that exceed the requirements of international law regarding the use of force against ISIS.” This attitude, coupled with the growing number of civilian casualties and questionable targets, is leading many to conclude that there has been a change in battlefield rules that puts civilians at additional risk than before.

This is refuted by the Pentagon, which claims that no changes to the rules of engagement have occurred with the higher death toll attributable to the phase of the battle rather than any change in conduct. This is supported by the fact that casualty numbers began to spike in December after then-President Obama approved the ability of ground commanders to call in airstrike, often limiting the amount of time each target is considered before approved. But the growing number of civilians killed – since January alleged civilian deaths in the region attributed to coalition forces outnumber those attributed to Russian strike for the first time since Russia entered the Syrian civil war in 2015 – have left many people skeptical with growing allegations of potential war crimes by organizations such as Amnesty International.

To The Hague They Go?

When questions like this come up, one of the first responses is the need for further investigating and a mechanism to hold potential violations of international law accountable. In Iraq, that is problematic. Since the country is not a member of the International Criminal Court, the court has no jurisdiction over US or Iraqi actions there without a referral by the Security Council. Some members of the international coalition are ICC member states and some ISIS foreign fighters are probably citizens of members states which would give the court jurisdiction. But with most ground actions being taken by Iraqi forces and most air attacks conducted by the US, such an asymmetrical approach to justice is not appealing to almost everyone involved.

Similar issues exist in relation to Syria. Fed up after five years of stalling by the Security Council to take action, the UN General Assembly passed a resolution to establish an independent mechanism dedicated to “collect, consolidate, preserve and analyze evidence of violations of international humanitarian law and human rights violations and abuses” for such time when domestic, regional or international jurisdiction over crimes in the country could be established. Working with the International Inquiry on Syria established by the UN Human Rights Council, this new mechanism helps lay the groundwork for accountability in the future.

The resolution makes no mention of Iraq but the two conflicts tend to go hand in hand. “The direct routes for accountability in Syria are still blocked but the mechanism established by the General Assembly creates a source for centralized investigations,” Jennifer Trahan, clinical associate professor at NYU’s Center for Global Affairs, told UN Dispatch this week. “It suggests they are serious about an eventual Syrian tribunal, and if there’s one for Syria then it’s hard to see them not including Iraq.”

However one potential hiccup in that plan is the high level of international involvement in Iraq. The more countries who are potentially exposed to investigation through military participation, the more resistance a referral to the ICC or an ad hoc tribunal will generate.

This has already been seen in Iraq. When the US helped create the Iraqi High Tribunal in 2003 to prosecute international crimes committed in the country, it limited the jurisdiction only to Iraqi nationals, thus exempting international forces from its purview. Likewise, numerous human rights groups both inside and outside the country have lobbied Iraq to join the ICC like Afghanistan did, but international pressure against such a move and domestic concerns over the potential liability of Iraqi government troops has prevented any progress on that front.

But the slow moves towards an eventual accountability mechanism for the region’s conflicts serves as a potential warning. With the Battle of Mosul the actions taken today can have long lasting repercussions, both legally and beyond. President Trump and other coalition members would be wise to keep this in mind.

“We started with more relaxed rules in Afghanistan and then moved to much stricter rules of engagement for US troops,” noted Professor Trahan. “It became a hearts and minds issue. The military had to balance outcomes with perceptions if they were going to win the war.” With Mosul being perhaps the most critical battle in Iraq since the 2003 invasion, and being just one step towards the taking the group’s main capital of Raqaa, keeping in mind the consequences of civilian casualties is paramount in preventing the rise of another ISIS in the future.

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