Could U.S. Military Support for Iraqi Kurdistan End?

(Photo: Iraqi Kurdistan Presidency)

On February 9, 2024, President Joe Biden issued a Presidential Memorandum to condition U.S. military aid on respect for international protection for civilians. While the impetus for Biden’s move was frustration with the destruction in Gaza resulting from Israel’s air and ground campaign against Hamas, the wording of Biden’s memorandum is expansive and does not directly mention Israel. Instead, the order with the force of law, declared:

The Secretaries of State and Defense are responsible for ensuring that all transfers of defense articles and defense services by the Departments of State and Defense under any security cooperation or security assistance authorities are conducted in a manner consistent with all applicable international and domestic law and policy, including international humanitarian law and international human rights law.

Regardless of Biden’s intent, then, the Memorandum sets a precedent. It could apply to Turkey, which both uses American weaponry to perpetuate an occupation of Cyprus and to bomb the Iraqi Kurdistan region more often killing civilians than terrorists. Even as some Kurdish lobbyists and advocates urge the U.S. military to redeploy to Iraqi Kurdistan should authorities in Baghdad force a withdrawal due to anger at recent U.S. airstrikes on Iraqi militia leaders, the Memorandum and a recent lawsuit might combine to prevent any such enhanced partnership with Iraqi Kurdistan so long as the current Kurdish leadership remains.

Iraqi Kurdistan Prime Minister Masrour Barzani had a three-week period to review the lawsuit before its formal filing in the U.S. District Court for the District of Columbia. While he reportedly told immediate family members of the suit, he did not bother to inform other defendants. Instead, he appears to assume that he can get the most recent case dismissed on sovereign immunity grounds, much as he did in a separate case filed against him in Virginia. In this, he gambles. Unlike the Shnyar Anwar Hassan vs. Masrour Barzani case, Kurdistan Victims Fund et al. versus the Kurdistan Regional Government et al. rests upon a broader legal foundation and specific precedents from within the District of Columbia District Court. Even if Barzani believes he can claim sovereign immunity, many of his top aides have no such ability, nor does Barzani’s claim make sense so long as he wishes to keep his U.S. residency.

Barzani may also believe he can have the intelligence community, State Department, or Pentagon weigh in to derail the case. Here, he errs for two reasons. First, his assessment of his own reputation in Washington is delusional. His representatives have consistently reported flattery rather than reality. That Kurdish representatives were unaware about the case as lawyers and researchers assembled the case for two years reflects the representatives’ isolation in Washington.

Second, had Masrour actually attended class at American University when a student there, he might realize that the three entities whose intercession he might seek are not parties to the suit and so they have no standing. The United States is not like the Kurdistan Regional Government: the independence of the judiciary is real.

Whatever the disposition of the Kurdistan Victims Fund case in U.S. District Court, the information that serves as its base will remain in the public realm. It already appears likely that the evidence included in the case could be used as a basis for a Congressional investigation into criminality in Iraqi Kurdistan.

For the sake of the Biden Memorandum, paragraph 292 of the Kurdistan Victims Fund lawsuit is key. It alleges:

Defendants Masoud Barzani, Masrour Barzani, and Waysi Barzani and their associates and subordinate agents, including Barzani family members and family members by marriage, in order to enrich themselves and hold onto political, civil, and governance power…admittedly, and willfully, directly and indirectly, sanctioned and deployed willful murder and extrajudicial killing, willful hostage taking, kidnapping, and enforced disappearances, willful causing of great suffering, abducting and sequestration, and attacks against the civilian population, as an unsanctioned and unallowed tool of power and governance, for suppression of human rights, for silencing journalists and political opponents and those who present perceived threats to Defendants’ political, economic, and commercial power….

The case also cites reports by the United Nations Human Rights Council Special Rapporteur, the New York–based Committee to Protect Journalists, and witness testimony, some of which appears to include insiders to the Barzani family and close associates who cut deals to remain outside prosecution.

If any victim of such a crime testifies that the Barzani’s security forces or Peshmerga used American weaponry during their detention or wore American gear during interrogation or torture, then pressure would increase immensely to immediately sever further assistance. While Biden’s Memorandum calls upon the State and Defense Departments to make such a determination, the State Department’s human rights reports, many of which are critical of the Kurdistan Regional Government’s practices, will undercut any effort by the Secretary of State to greenlight weapons sales and assistance to the Barzanis.

The Kurdistan Regional Government is weak in Washington, and the chance of a mandatory termination of aid is now larger than the Kurdistan Regional Government might realize or acknowledge. Biden’s Memorandum provides a new tool for both progressives and conservative Republicans who embrace an inward-looking isolationism that seeks to reduce American commitments abroad. If the outcome to debates about provision of assistance to Ukraine are uncertain, the assumption that Congress would automatically fund a far more corrupt Iraqi Kurdistan is delusional.

Sometimes, there is no substitute for accountability and corruption. If Barzani wants to continue the tight U.S. relationship with Iraqi Kurdistan, there can be no substitute for clean government. It is time to pay salaries, return stolen money, and compensate those Kurds victimized by what amounts under U.S. law to a grand criminal conspiracy.