Published by The Lawfare Institute
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Editor’s Note: U.S. influence in Iraq, uneven in the best of times, often suffers from a lack of leverage. As a result, the United States has found it harder to counter Iran’s influence, fight terrorism, improve governance or achieve other goals. Douglas Ollivant of New America finds a new bright spot in the U.S. effort. By using the Magnitsky Act, designed to counter corruption and human rights abuses, the United States is discrediting some of the country’s worst actors and thus indirectly empowering local U.S. allies.
The Trump administration has zealously applied various forms of sanctions and restrictions on individuals, organizations and countries, including attempting to change Iranian regime behavior on nuclear policy by designating the Quds Force and targeting countries that are insufficiently committed to combating human trafficking. Many of these approaches are seen as heavy handed, counterproductive or of dubious influence, but with the imposition of targeted penalties against Iraqi human rights abusers as authorized by the Magnitsky Act, the United States may have opened up a key avenue to tip the Iraqi government toward being more politically responsive.
The United States has always struggled to translate power into influence within the Iraqi political system. Despite the U.S. role in establishing it, the inherent corruption of what is essentially an ethno-sectarian spoils system (muhassasa) has defied U.S. attempts to check malignant actors working within it. The U.S. weakness in this regard has had regional implications. For years, the United States has worked at a disadvantage when competing with Iranian influence. Put simply, while Iran has very little to offer Iraq as a nation (save some electricity and gas), it has a great deal to offer individual Iraqis. If the Iranians approve of an Iraqi’s project or approach, they can give him (or occasionally, her) money, a network and political protection. Conversely, while the United States has had much to offer Iraq (including access to the World Bank and International Monetary Fund, trade deals, technical capacity, airpower, and high-end military training and equipment), it has had nothing of real value to offer individual Iraqis, save a pat on the back and perhaps some assistance with visas—neither of much use in the hardball environment of Iraqi politics.
The recent invoking of the Magnitsky Act in Iraqi cases has added an arrow to the U.S. quiver. While the United States still cannot offer anything to individual Iraqis, it has clearly demonstrated that it can take actions against the enemies of our friends. This could change the calculus in Iraq, as friends of America—and the West more generally—begin to realize that they may not be left alone after all.
The Magnitsky Act was signed into law by President Barack Obama in 2012 in response to the case of Sergei Magnitsky, a Russian lawyer who died in Russian state custody in 2009. Magnitsky was brave—or foolish—enough to sue the Putin regime for hundreds of millions of dollars on behalf of his client, who allegedly had been defrauded by Putin cronies. The Magnitsky Act allows the U.S. government to attack the assets—and to a lesser extent, travel privileges—of individuals who are “human rights abusers, corrupt actors, and their enablers.” Magnitsky designations provide a tool against those who enjoy impunity from corruption and human rights abuse charges at home but who also wish to interface with the West. As of last month, the act had been used primarily against Russian oligarchs and enablers, Burmese generals involved in the Rohingya massacres, the Saudi killers of Jamal Khashoggi, and (temporarily) the Turkish ministers of justice and interior involved in the Pastor Andrew Brunson affair.
On July 18, the U.S. government enacted its first designations of Iraqi nationals under the Magnitsky Act. The designation of four Iraqi individuals—two Hashd (Popular Mobilization Forces, or militia) leaders and two former provincial governors—sent shock waves through the Iraqi political class. While the activities of these four individuals certainly fall under the Magnitsky Act’s intent (individuals operating with relative impunity at the intersection of financial corruption and human rights abuses), at least a surface reading is that they were selected precisely to do real damage to Iran’s allies in and around the Nineweh Plain, having the net effect of assisting America’s allies.
For example, the designation of the militia leaders, Waad Qado (a Shabak) of the 30th Brigade and Rayan Kaldani (a Christian) of the 50th Brigade, has the net effect of greatly empowering Cardinal Louis Sako, who is generally seen as sharing the U.S. interest in a strong, federal Iraqi state that can stand against Iranian interference, while also setting conditions for the return of Sako’s Christian “flock” to Iraq. Again, the United States has few ways to directly empower Sako, but this “addition by subtraction” has just made his life considerably easier. The direct lines are harder to draw with regard to the two former governors of Nineweh and Sal-al-Din provinces, both of whom are Sunni Arabs, but their designation empowers their opponents—who are more Western leaning.
The Magnitsky Act is a particularly powerful tool because of the looser, or at least different, criteria for inclusion, which makes it easier to use to advance U.S. interests in Iraq in a way that other “lists” have not accomplished. So, for example, while inclusion of Kataib Hezbollah and (more recently) Hakarat Hezbollah al-Nujaba on the foreign terrorist organization (FTO) list is certainly unobjectionable, it is not clear what it accomplished in terms of U.S. interests. For both groups, being on the same list as Lebanese Hezbollah is probably a point of pride, and neither group has significant ties with Western institutions that could be impeded by the FTO restrictions. But the Magnitsky Act carries an entirely different connotation—it’s hard to take pride in being part of state corruption.
With this opportunity, it is important that the United States now enforce the sanctions in the act with some gusto. This will benefit both the public and Iraq’s elites. The United States needs to work hard to make the lives of these four designated individuals—and their personal, political and business networks—as miserable as possible as an example to others. The United States also needs to demonstrate the full force of its power to block designated individuals from interacting not only with the United States but also with its allies and other friends. For example, the United States should work with regional partners to ensure that those designated not only are denied U.S. visas but also find themselves unable to travel to more local havens, such as Amman, Dubai and Istanbul. Having flouted international norms, these individuals should find themselves denied international travel.
It will also be interesting to see how known associates of the designees are treated. What happens to lower level commanders in the 30th and 50th Brigades? And one of the two designated former governors—Ahmed al-Jubouri, or “Abu Mazen,” of Sal-al-Din—is a significant midlevel player in Iraqi politics. He has a well-known “downline” of political officeholders, both locally in the province and nationally in Baghdad. What is their future? Can and should they be isolated in some way as well?
Strong enforcement may well alter the behavior of individuals who might see themselves at risk for the next round of sanctions. One senior official described these first four designations as “a pebble dropped in a pond—and now we are seeing where the ripples go.” There will be discovery learning on both sides. But the implementation of this first round of designations will set the terms for succeeding rounds.
These designations in and around the Nineweh Plain may show the United States at its most subtle in Iraq. The Nineweh Plain has a sizable U.S. presence, and while hard numbers are difficult to come by, most estimates suggest there are several hundred U.S. civilians and small but significant detachments of U.S. government officials and military advisers. The U.S. presence in this area is robust, and the United States has a high level of situational awareness in Nineweh. Unfortunately, the U.S. understanding of Anbar and Baghdad is considerably less granular, and its understanding of the southern power centers of Najaf, Karbala and Basra almost nonexistent, especially since the closure of the U.S. consulate in Basra in September 2018.
Matching the subtlety demonstrated in this first round of designations will be much more difficult outside of the Nineweh Plain. In particular, the U.S. government should be careful not to aim too high with future designations. The four individuals selected in the first round should be the model: midtier figures who pose a threat to U.S. interests or friends in Iraq. It is not difficult to envision a situation in which a designation of a too-prominent individual could backfire; if a designated person could survive these sanctions and still remain an Iraqi power broker, the U.S. diplomatic, military and business presence might be forced to accommodate him, undercutting the effectiveness and credibility of this tool. Trying to remove a powerful force in Iraq and failing would be worse than not trying at all.
Nonetheless, the United States has demonstrated that, at least under optimal circumstances, it can use Magnitsky designations effectively. Just how effectively will be determined by the follow-through on the current four designated individuals, as well as successive rounds of designations in Iraq. This may well be a tool that can help root out malign influences in Iraq, striking against both the corruption and human rights abuses the act was designed to address and significantly improving the position of the United States and its fellow travelers.