Iran’s Strikes on Kurdish Parties: CCF’s Unenforceability as a Sign of Structural Inequality in IHL

[Arez Rizgari is an Iranian scholar. The author is writing under a pseudonym because they are concerned that this post will subject them to political retaliation or restrictions on their academic freedom by Iranian authorities.]

The Islamic Revolutionary Guard Corps (IRGC) has repeatedly targeted Rojhilat (Iranian Kurdistan) parties based in the Kurdistan Region of Iraq (KRI) with missile and drone strikes in recent years, the latest phase of a confrontation between Iran and these parties dating back to 1979. These attacks intensified following the start of the conflict between Iran and the US-Israeli coalition on 28 February 2026. During one such strike on 17 July 2026 targeting the reception area of the Komala Party of Iranian Kurdistan’s headquarters, at least ten Peshmerga were killed and a number wounded. Komala’s statement described the dead as “Peshmerga recruits who were preparing to join the ranks of Peshmerga forces.” Although Komala’s statement is an interested source, it broadly aligns with more independent human rights reporting, specifically Hengaw’s report that a significant portion of these individuals were volunteers undergoing the party’s admission process, and Hana’s report that several of these individuals had recently been recruited without any verified evidence of continuous combat function or direct participation in hostilities.

Setting aside the fundamental critique of an international legal order that has produced stateless nations — the Kurds foremost among them, fragmented, minoritised, and denied recognition as a “national liberation movement” (NLM) — as well as the question of the strike’s illegality under jus ad bellum, this piece assesses Iran’s strikes under jus in bello. It does so by relying on the concept of “Continuous Combat Function” (CCF), introduced in the ICRC’s 2009 Interpretive Guidance and on the “presumption of civilian status.” Mere recruitment of individuals in “Non-State Organised Armed Groups” (OAGs) does not, by itself, establish CCF — the operative criterion for converting OAG members into military objectives — and that in cases of doubt, the presumption of civilian status governs.

The 17 July case, alongside the patterns documented below, is not only strong evidence of unlawful targeting and a violation of IHL, but also a window onto a far larger structural gap: in a state-centric international legal order, both law-making and enforcement remain contingent on state consent. CCF/DPH doctrine is a case in point: international courts — the non-state institutions best placed to help close that gap — have yet to engage with it as a determinative standard, and even a clear finding of a CCF violation would still largely depend on the belligerent state’s consent to be enforced.

The CCF/DPH Doctrine

IHL is formed within a state-centric international legal order and is primarily designed to regulate relations between states; therefore, it faces gaps in its application to OAGs. There have been efforts to make these rules more applicable to non-state actors; for example, the ICRC’s 2009 Interpretive Guidance has proposed the concept of CCF, to close the operational imbalance that extending the “revolving door” to OAGs would have created relative to state armed forces (status-based criteria though workable for state forces, were considered neither desirable nor practicable for OAGs), and thereby operationalising the “principle of distinction” (PI, Art. 48, CIHL, Rule 1) in NIACs.

By distinguishing organisational affiliation (status-based) from CCF (function-based), it identifies two military targetable categories in NIACs: individuals losing their protection solely during specific acts of “direct participation in hostilities” (DPH), and members possessing a CCF, who remain military objectives at all times. Under this framework (pp. 32–33), at the collective level an OAG refers solely to the “armed/military wing” of a non-state party and support wings (such as political and humanitarian wings) remain civilian; within the armed wing itself, individual membership is determined by the CCF criterion. The application of the CCF to OAGs has accordingly a temporally expansive (rendering CCF-holders continuously targetable) and a classificatorily restrictive (confining targetability to actual CCF-holders rather than the group’s membership at large) aspect.

However, as Yip and Permanasari have shown, the approach of states in dealing with CCF is heterogeneous, accepted as a basis for targeting in Germany’s Mir Ali case but rejected in the US Al-Bihani detention litigation, and some states have progressively degraded the standard in practice by explicitly rejecting its restrictive aspect; as with Israel’s shift from a geographically-qualified membership approach (2010) to an explicit “membership per se” standard (2014) instead of CCF. 

To the extent this piece has been able to ascertain, international courts have also not applied CCF as a determinative criterion for adjudicating an individual’s targetability under IHL, since this functional membership construct lacks both explicit treaty grounding and the consistent state practice required to solidify as customary international law. This is a stalemate that judicial silence on the matter only entrenches further, foreclosing the case-by-case clarification (e.g., of CCF’s pre-first-act threshold) that sustained application could otherwise provide. International criminal tribunals focus on individual criminal responsibility through the “direct/active participation” or “status” of victims rather than evaluating preventive targeting logic based on membership or CCF. This mismatch is compounded by the contested nature and conceptual vulnerabilities inherent in the CCF construct.

Furthermore, according to Peretko, human rights courts, even when adjudicating targeting-related disputes, largely bypass the CCF framework. Evaluating such operations through IHRL’s “absolute necessity” standard, they reach conclusions that offer significantly greater protection to OAG members than a membership-based targeting approach would allow. The ICJ, too, confined to consent-based disputes between states under its Statute (Arts. 34(1) and 36(2)), has never engaged this issue either; OAGs have no standing before it, and even in cases where the Court has evaluated IHL violations between states, such as in DRC v. Uganda (paras. 208–211), its findings operate at the level of patterns of conduct rather than case-specific determinations of individual status. This has, in turn, impeded CCF’s crystallisation into a settled customary rule.

State Responsibility and the Presumption of Civilian Status

The axis of analysis here is state responsibility for violations of IHL obligations (the operational level) rather than individual criminal responsibility. At this level, unlike the criminal law standard — under which the burden of proof rests with the prosecution and “doubt” is construed in the accused’s favour (Rome Statute, Art. 66) — the presumption of civilian status (API, Art. 50(1)), as confirmed by the ICRC official Commentary and Interpretive Guidance (Sec. VIII), governs in cases of doubt as to a person’s status. The Guidance (pp. 75–76) extends this presumption a fortiori to cases of doubt about an individual’s membership of OAGs (and hence the establishment of CCF). Furthermore, under ARSIWA (Arts. 2 & 4), attributing wrongful acts to a state requires no proof of fault or mens rea. The ICJ confirmed this objective standard in DRC v. Uganda (paras. 213–214). Similarly, informational ambiguity does not preclude state responsibility; under the principle of “precautions in attack” (PI, Art. 57, CIHL, Rules 15–21), an information deficiency can itself constitute a failure of due diligence. While the failure to observe the principle of precaution and firing under conditions of doubt may, due to the elevated threshold of criminal proof and the interpretation of doubt in the accused’s favour, not result in a commander’s conviction before a court, that conduct still constitutes a violation of the state’s obligation.

Analysis of the CCF Status of the Newly-Recruited Forces

Several key assumptions underlie the analysis that follows. First, it takes CCF as the basis of analysis. A broader critique is set aside here: that IHL’s own categories already presuppose the state/non-state inequality interrogated here, extending to OAGs (including NLMs unrecognised as such, which is not equated here with terrorism) a burden of continuous targetability that treaty law reserves for combatants, without the correlative status it there confers. The analysis instead proceeds by way of an immanent critique, showing that even on CCF’s own terms, the newly-recruited forces fail to qualify as CCF-holders. Despite the criticisms leveled at the concept, ranging from doctrinal ambiguity in determining the onset and cessation of membership, to claims that it lacks a clearly defined threshold of application, to more fundamental proposals that it be replaced altogether with an approach that determines targetability by assessing membership and active participation in hostilities, decoupled from DPH, and notwithstanding its uncertain status as a customary rule independent of treaty language, CCF’s qualified proponents, such as Hofmann, present it as standing between the unworkable extremes of an unqualified revolving door and treating mere membership in an armed group as tantamount to continuous direct participation in hostilities. Without endorsing or rejecting this ranking, the analysis below proceeds on CCF’s own terms to develop an immanent critique. Second, the armed conflict between Iran and the Kurdish parties in KRI is a cross-border NIAC that meets Tadić’s “organisation” and “intensity” thresholds (para. 562): Komala and Democratic Party of Iranian Kurdistan’s (PDKI) organisation is evidenced by indicators identified in ICTY jurisprudence such as Haradinaj case (para. 60), synthesised by the ICRC (pp. 13-14). The indicators supported by the material set out here are: the existence of headquarters, a demonstrated capacity to recruit and train personnel, an identifiable leadership structure, and the capacity to issue authoritative statements on the group’s behalf. Intensity is independently satisfied by the sustained pattern of Iranian strikes against these parties documented below — spanning drone and missile attacks on party headquarters, training facilities, and residential encampments between 2017/2018 and 2026, and resulting in dozens of confirmed fatalities — which, given the organisation established above, suffices under the ICRC’s 2024 Opinion Paper even in the absence of reciprocal engagement by the targeted party (p. 14). The presumption of civilian status in Article 50(1) — formally an IAC provision — applies here as a customary rule. Third, in the face of the state’s likely argument premised on “military objective by purpose or use”, this analysis, while acknowledging that the precise structural character of the “reception area” cannot be established from available sources, argues that the causal link between the admission process and combat-related harm remains indirect. Fourth, the presumption of civilian status is not incompatible with a systematic pattern; repeated resolution of doubt against civilians evidences a structural failure of precaution, not its absence, though the precise share of each victim attributable to the admission or training stage remains unascertainable from available sources. 

According to the Interpretive Guidance (pp. 33–34), CCF is a functional criterion, and organisational affiliation or honorific party titles are not, in themselves, proof of it. Per the Guidance (p. 34), CCF requires lasting integration into an OAG’s armed forces and a continuous function involving the preparation, execution, or command of acts amounting to DPH, neither of which the available sources establish for individuals still within the admission process. To the extent others had progressed further along this admission-to-induction continuum, the same conclusion follows. The Guidance’s clarification of this continuous-function requirement for the period before a first hostile act (p. 34) does not assist them either: an individual can establish CCF even before a first hostile act only where recruited, trained, and equipped — all three, conjunctively — for continuous participation in hostilities. Even sympathetic commentators concede that this breaks the link between loss of protection and hostile activity. Of these three conditions, available records indicate at most recruitment, and do not support training and equipping. This evidentiary gap matters even more given growing scholarly criticism that even the ICRC’s test is too permissive, since it can attribute CCF absent any evidence of repeated engagement in hostile acts.

An alternative evidentiary pathway to CCF, established either through the open display of uniforms, distinctive signs, or weapons, or through conclusive behaviour in the form of a demonstrated pattern of repeated hostile acts (p. 35), is likewise unsupported by the available record, which discloses no report of these individuals having borne arms or insignia, or engaged in any hostile act, prior to the strike. Nor, in the alternative, could the training process itself be characterised as an act of DPH: the Guidance further clarifies (p. 53) that, while the recruitment and training of personnel are vital to a party’s military capacity, the causal link to harm inflicted on the opposing party generally remains indirect; only where individuals have been specifically recruited and trained for the execution of a predetermined hostile act can such activities be regarded as an integral part of that act, and therefore as direct participation in hostilities. No such predetermined hostile act has been reported. It might be argued, relying on the practice of certain states such as Israel, that mere organisational accession to an armed group makes an individual continuously targetable. However, the sensitive point of the present case is precisely that the extension of the status-based doctrine to OAGs possessing complex political and administrative wings and a protracted admission process effectively dissolves the boundary between civilian and combatant and reduces the foundational principle of distinction to a legal formality. Regardless of where along this continuum each individual in fact stood — a distinction the reporting to date does not allow to be drawn with precision — CCF cannot be established on the available record.

Under the presumption of civilian status — which, as noted, extends to doubt as to the establishment of membership, and hence CCF — doubt or the insufficiency of evidence establishing CCF places the burden of proof on Iran, and operational doubt is construed in favour of these individuals’ civilian status.

On what is publicly known, the demonstrated inability or unwillingness to distinguish individuals lacking CCF from legitimate military objectives raises a strong presumption of an indiscriminate attack, in serious conflict with the foundational IHL principles of distinction and precaution in attack.

Reinforcing Patterns

A review of IRGC strikes on Kurdish party positions reveals three distinct patterns of IHL violations:

Individual Targeting

A prime example of this pattern is the missile strike of 8 September 2018 on the PDKI/KDPI positions in Koya, which killed 11 to 16 people. This strike occurred during a party leadership’s plenum, and among those killed were six members of the leadership (Hengaw, citing the party’s official statement). The IRGC itself confirmed the missile operation against “the headquarters and a meeting of leaders of a criminal grouplet and a center for training affiliated terrorists”; Long War Journal (LWJ) likewise states that the targets the IRGC announced through Fars News were “KDP-I’s political bureau, PDKI’s training center, and a Peshmerga complex.” Even fully accepting the Iranian side’s claim, the political leaders present at the meeting do not, by mere presence in that mixed-use complex, establish CCF; the IRGC’s argument might, at best, justify the targeting of the training section, not the targeting of the entire complex without functional differentiation among the individuals present in each section.

Absence of Military Presence

This pattern concerns locations in which essentially no military element has been established at all. HRW, in its October 2022 report, based on interviews with local witnesses, recorded that some of the attacks’ targets were in towns and villages where the parties had no military activity. HRW also documented, in 2010, artillery strikes on villages in connection with the Free Life Party of Kurdistan (PJAK), where no confirmed military presence existed at all. Unlike the first pattern, in which at least one plausible military objective (the training section) stood alongside individuals lacking CCF, here the issue is the misidentification of the objective itself as military.

Mixed-Use Locations

This pattern concerns sustained strikes on camps that house families and refugees and that may also host an identifiable military element. Under the definition of military objectives (PI, Art. 52(2), CIHL, Rules 8), the mere presence of a few armed personnel in a corner of a camp does not convert the whole of it into a unified military objective; targeting the entire complex rather than the severable military section is itself, in the first instance, a violation of the principle of distinction (PI, Art. 48 & 52, CIHL, Rules 7), not merely a shortfall in proportionality. LWJ has recorded drone strikes on the Girdechal and Sourdash camps (May 2026), and PDKI has described Girdechal as “a residence of members’ families”; Hengaw has separately listed Sourdash among targeted “civilian camps and residential areas hosting families.” This pattern is not new: HRW and UNHCR documented it in 2022, and KHRN since 2017, most recently corroborated by the UK Home Office (May 2026). Even accepting that targeting the military section was legitimate, the attacking state remains bound by the principles of proportionality (PI, Art. 51(5)(b), CIHL, Rule 14) and precaution to avoid excessive civilian harm.

The IHL Enforcement Gap in Asymmetric Conflicts

IHL is founded on the principle of “equality of belligerents.” However, in the existing state-centric international legal order, there are profound inequalities between states and OAGs (here & here), including the IHL enforcement gap in NIACs which makes “legal symmetry” illusory, and hollows out targeting standards like CCF, even where they are correctly applied on the ground. Although the lack of “combatant privilege” in the NIACs includes both the state and the OAGs, state alone wields sovereign power to criminalise mere participation in hostilities; moreover, the international mechanisms available to enforce IHL compliance remain consent-based, ill-suited to asymmetric conflict, or politically foreclosed.

This failure can be considered in four layers: First, due to the obstacle noted above, the ICJ is unlikely to engage with this issue; the IHFFC’s (PI, Art. 90) ad hoc consent requirement also deters both sides — states persistently withhold consent, while armed groups (as with Sri Lanka’s LTTE) lose interest once a state counter-request looms. The ICRC Commentary’s reading (para. 3618) adds to this inertia by limiting the initiation of enquiries to states alone; Sivakumaran criticises this restriction as “one-sided [and] disadvantageous to the armed group.” Second, “special agreements” (Common Art. 3) are rarely concluded in practice; as Sivakumaran notes, proposals to conclude them have at times been dismissed by states as “interference” with their position, and even ICRC-brokered attempts have gone unanswered. The “securitization” of these groups under counter-terrorism frameworks arguably deepens this pattern today. Third, despite the ICC’s pursuit of individual responsibility, UNSC vetoes, non-accession, and dependence on state cooperation for arrests, alongside the practical limits of universal jurisdiction, continue to foreclose prosecution of state officials. Finally, absent formal enforcement, IHL compliance depends on self-application, yet “reciprocity”, a factor contributing to such self-application in symmetric conflicts, is significantly undermined in asymmetric conflicts due to the absence of equal vulnerability and parallel interests (e.g. here & here). 

IHL is thus caught in a foundational contradiction: it prescribes identical obligations for both parties while its enforcement levers remain overwhelmingly in state hands.

Conclusion

The structural inequality favouring states within IHL has minimised their legal restraint in suppressing OAGs. The 17 July case is a rendering of this inequality: the newly-recruited Komala forces, absent evidence establishing CCF, were presumed civilian under IHL’s default rule, and their targeting, without apparent verification or functional differentiation, constitutes a violation of the principles of distinction and precaution in attack. This aligns with the recurring pattern of prior IRGC strikes and shows that the IRGC, relying on this structural inequality, has repeatedly targeted Kurdish parties in strikes that violate IHL. These strikes are themselves a symptom of the multi-layered enforcement gap across the entire architecture of IHL in asymmetric conflicts.

Beyond the present case, CCF remains the dominant interpretive framework through which the targetability of OAG members is assessed. Where states have departed from CCF, that departure has moved in one direction only, towards more permissive standards (as with Israel’s shift to “membership per se”) rather than a more protective one. This trend suggests these departures reflect an interest in expanded targeting authority rather than principled disagreement. And, as shown above, the same consent-based structure that has kept CCF from crystallising into a binding norm of international law also governs the enforcement of any violation found, and reproduces the very initial inequality this section has described. The 17 July case, in line with the other patterns documented above, depicts precisely the human cost of that impasse; an impasse treated here as part of, not a substitute for, the broader critique set aside at the outset.

In the absence of more effective enforcement instruments, non-consent-based international investigations are the least that remain available at the level of international institutions — not as a path to a definitive finding of responsibility within the current order, but as a necessary documentation that may later serve any accountability mechanism that eventually emerges.