What is the standing of ISIS under international law?: Examining the Islamic State’s locus of political authority

Introduction

In modern geopolitics, the locus of political authority requires meeting the demands of territoriality, bureaucracy and legal recognition. ISIS intended to establish an Islamic caliphate and claimed historical continuity by proclaiming the end of territorial demarcation. Its political structure was organized hierarchically and centralized, with a bureaucratic system in levels of wilayaat and Qitahaat that in many ways reflected a modern state. It involved councils such as Sharia and Shura and administrative departments under al Baghdadi—the caliph and Wali—the provincial governors. ISIS had security and intelligence wings to oversee functions such as finance, media and legal disputes. It promoted an administrative system under Islamic law. There are indications that ISIS, to some extent, governed the territory of Iraq and Syria with credible signs of bureaucracy. ISIS existed in a permanent state of emergency with de facto authority to create and uphold law.

Background

The territoriality of ISIS was itinerant. One example is its operation in January 2014. While ISIS seized the province of Anbar in Iraq, it had to withdraw from multiple regions of Syria, though lately it has attempted to hold Raqqa. Likewise, it prioritized keeping a number of cities under control, particularly those close to the Turkish border, such as al-Bab and Manbij. ISIS also claimed territorial sovereignty through symbols. The excessive use of symbols in filming and hoisting the ISIS flag on buildings in Mosul and Palmyra was a strategy to create the mise-en-scène of state power, i.e. the state of post-modernity or a ‘simulacrum’ of statehood as described by Jean Baudrillard.

In this context, while ISIS proclaimed a new territorial demarcation of the Middle East, it also attempted to create an alternative to the modern state using the moral framework of fundamentalist Islam. In 2014, when ISIS declared statehood, it did so through the adoption of specific symbols such as the flag of tawhīd [monotheism], appointments of Wulāt [plural of wālī or ‘governors’], and the enforcement of Jizyah [a tax imposed on kuffār]. Fay’ [money taken from the kuffār without battle] and zakat [obligatory alms] have also been collected. Further, courts were established to resolve disputes. This indicates ISIS’ motive to provide an alternative model of modernity, rather than viewing it as an anti-modern movement. It also indicates that ISIS wanted to create the narrative of a way forward by following Islamic revolutionary theory, drawing on thinkers such as the Egyptian philosopher and political theorist Sayyid Qutb. Although one could argue that ISIS at some point succeeded in establishing a de facto state, considering ISIS as the locus of political authority depends entirely on one’s understanding of ‘state’.

ISIS: Conceptualised as legal entity (state)

In examining ISIS’ claim to statehood, the principles of ex factis jus oritur (law arises from facts) and ex injuria jus non oritur (laws do not arise from injustice) must be satisfied. Although there has been no universal acceptance of a legal definition of statehood, the best-known formulation is the 1933 Montevideo Convention on Rights and Duties of States (Montevideo Convention), which provided criteria based on the principle of ex factis jus oritur. Even if it is assumed that ISIS satisfies the Montevideo requirement, which is subject to debate, satisfying ex injuria jus non oritur relies on the fact that in satisfying the Montevideo requirement no peremptory norms were violated. However, there is evidence that in forming a caliphate in Iraq and Syria, ISIS conducted serious offences, such as mass killings, summary execution, acts of torture and sexual enslavement, and beheadings of humanitarian workers and journalists, that violate peremptory norms. For ISIS, recognition as a ‘global and unprecedented threat to the international security and peace’ and for ‘continued gross systematic and widespread attacks directed against civilians, abuses of human rights and violations of international humanitarian law, including those driven on religious or ethnic ground, its eradication of cultural heritage and trafficking of cultural property […]’ would not satisfy the principle of ex in juria jus non oritur.

ISIS also breached the peremptory norm on the prohibition of use of force, as prescribed in Article 2(4) of the UN Charter. However, the question arises whether modern law regulates the creation of a state to any greater degree in a situation that involves the illegal use of force? Tsagourias notes that although ISIS was not bound by the UN Charter, it was bound by customary international law, which prohibits the use of force between all international actors. He notes ‘although NSAs are not endowed with legal personality in the sense of being capable of possessing international rights and duties international law is obliged to recognize NAS for certain purposes because of their actorness’. These must accord with Article 53 of the Vienna Convention on Law of Treaties, which prescribes that no treaty provision shall be in effect if it violates the peremptory norm, which is reaffirmed by ILC and includes the Montevideo Convention.

ISIS: Conceptualised as belligerent community

Although ‘belligerent community’ has a legal personality and differs from ‘rebellion group’, there is difficulty conceptualising ISIS as such for two reasons. First, to consider ISIS as a belligerent community, the state must recognise that there has been a civil war between the state and the people within its territorial boundaries. ISIS had no civil war against the Iraqi government; there were only terrorist attacks by the jihadi group to form the caliphate in Iraq. Second, according to Oglesby, there is no longer an established practice in recognising belligerent community. Nonetheless, according to Cassese’s framework, ISIS could be recognised as a belligerent community if it demonstrates effective control over the territory and civil commotion has reached a certain degree of intensity. Regardless of these requirements, it is for the states to appraise, grant or withhold the status, and ISIS has never been recognised as such.

ISIS: Neither state nor belligerent community

With ISIS neither recognised as a state nor recognised as a belligerent community, it is categorized as a ‘special type of personality’; hence, no international rules restrict someone from being a subject, particularly when the individuals can appear in legal discourse. However, according to the Permanent Court of International Justice (PCIJ) in Polish Postal Service in Danzig,treaties could provide individual rights and obligations to be adopted and enforced. Judge Pinto de Albuquerque summarized this view in Al-Dulimi and Montana Management Inc. v. Switzerland before the European Court of Human Rights. The same approach was taken by international criminal law, which prescribes that any individual—state agent or NSA—who perpetrates genocide, war crimes and crimes against humanity can be punished under the treaty provisions. However, bringing ISIS to justice on an international level is not possible: International Criminal Court (ICC) jurisdiction stagnated by the non-membership of Iraq and Syria, and Russia vetoed the UNSC resolution referring jurisdiction to the ICC. The only viable option is for domestic courts to prosecute ISIS members. However, this indicates that conceptualizing ISIS as a composition of individuals does not grasp its authority but merely notes that its members can be individually liable for criminality.

Conclusion

Based on the above analysis, this article concludes that under the provisions of international law conceptualizing ISIS as a state or belligerent community is not possible; therefore, it may be categorized as a special type of personality. The article also illustrated the difficulties with conceptualizing ISIS as a special type of personality, however, because under international humanitarian law or international criminal law grasping the authority of ISIS is unlikely. The inability to conceptualise ISIS as a collective legal personality (a legal body) and its status as an NSA that lacks legal definition under international law makes the application of international law on armed attack against ISIS problematic.

Photo: Mideast Syria Islamic State, 2015, by massacritica-foto via Flickr. License under cc

Disclaimer: Any views or opinions expressed in articles are solely those of the authors and do not necessarily represent the views of the NATO Association of Canada.

About Janakan Muthukumar

Janakan Muthukumar a Senior Research Fellow at the NATO Association of Canada. He is also the lead researcher of the NATO Research Group based at the Munk School of Global Affairs and Public Affairs at Trinity College in the University of Toronto. He holds an LL.M in Public International Law from the University of London and a Master in Human Rights and Democratization from the University of Sydney, Australia. Muthukumar has written widely on contemporary politics and international law related to armed conflicts. His research focuses on the temporality of international law, collective defense and counter-terrorism. He is a former Chevening Scholar (2017), Asia Pacific Scholar of the European Union (2015) and a Legislative Fellow at the United States Department of State (2014).