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THE ISLAMIC STATE AND INTERNATIONAL LAW: ANIDEOLOGICAL ROLLERCOSTER?

BY Dr Andrew Coleman

Introduction

On 10 June 2014 Sunni extremists captured Mosul, the capital of the NinevehProvince and Iraqs second largest city. These Sunni militants that nowthreaten to take over Iraq and Syria called themselves the Islamic State(IS).Then 19 days later the leader of these militants, Ibrahim ib Awwad ibn Ali ibnMuhammad al-Badri, or as he is more commonly known and referred to in

Western media Abu Bakr al-Baghdadi, announced that IS had established aCaliphate of which he declared himself the Caliph.

Whilst the world gasped in sheer astonishment official videos began to

appear on YouTube and social media often uploaded by the members of theIslamic State organisation itself. Gruesome images of Western journalists andaid workers being beheaded, hundreds of Iraqi security forces being torturedand executed, thousands of Christians and Yazidis fleeing in panic.accompanied horrific tales of forced marriages, rape,1 and execution ofessentially anyone opposed to the IS and its ideology or those who refusedconversion to ISs brand of Islam.

The sudden emergence of a Caliphate that was so drenched in blood had theworld, in the words of one journalist, wondering: Where did these hellhounds come from?2

As we shall see IS and al-Baghdadi did not suddenly appear like some jinnfrom the desert.3The group that recently renamed itself simply the IslamicState had existed under various names and in variousguises since the early1990s. And its story is the story of how modern terrorism has evolved from apolitical and religious ideal into a death cult.

The emergence of the Caliphate an Islamic State and the allegedcriminal actions associated with this emergence raise a number of importantissues in international law, namely: the concept of a state, recognition, theconcept of a failed state, the Articles of State Responsibility, cultural property,international humanitarian law- including the issue of humanitarian

Dr Andrew Coleman, LLM, LLB, BA (Monash), PhD (University of Melbourne) is a SeniorLecturer with the Department of Business Law and Taxation, Monash University, CaulfieldCampus.1Elise Hilton, ISIS: Genocide By Rape and Torture, (Action Institute PowerBlog, Tuesday2ndSeptember 2014) accessed 28 October 2014.2Bobby Gosh ISIS: a Short History, (The Atlantic, 14 August 2014) accessed 30 September 2014.

3Ajinn is a supernatural creature from Islamic and pre-Islamic Arabic mythology, theytogether with human and angels are recognized in the Koran as the three sapient creatures ofGod.

http://blog-action.org/archives/72050-isis-genocide-rape-torture.htmlhttp://blog-action.org/archives/72050-isis-genocide-rape-torture.htmlhttp://blog-action.org/archives/72050-isis-genocide-rape-torture.htmlhttp://blog-action.org/archives/72050-isis-genocide-rape-torture.htmlhttp://blog-action.org/archives/72050-isis-genocide-rape-torture.html

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intervention, the responsibility to protect, and the use of force. Moreimportantly, these events raise the question of the purpose of internationallaw- what is it good for to paraphrase a line from a popular song during the

Vietnam War.4

This Working Paper canvasses issues raised by the Islamic State by placing thediscussion in the context of the purpose and philosophy of international law.It is hoped that by doing so the Working Paper will generate and encouragesubsequent discussion aimed at achieving protection and enforcement ofinternational lawrather than abuse it. The Working Paper will begin withsome background examining the origins of ISIS before turning to an analysison the problematic socio-political and international mosaic that IS hascreated.

Background

The group known as IS began more than two decadesa mission by a AbuMusab al-Zarqawi, Jordanian who had arrived in Afghanistan seeking to be amujahideen (Holy Warrior) in 1989, too late to fight the Soviet Empire. TheSoviets had withdrawn and the Taliban (an Islamic fundamentalistmovement) was in charge and had formed a government, ruling as theIslamicEmirate of Afghanistan from 1996 until 2001. The fall of the Taliban in 2001forced Zarqawi to flee to Iraq. Despite his linkage to Al-Qaeda on account ofhis stay in Afghanisatan, Zarqawi was a free agent keen to create his ownorganization to further his efforts in creating a puritanical organisation basedon distorted interpretations of Islam. Shortly after the U.S.-led invasion of

Iraq in 2003, he set up the forerunner to todays Islamic State:Jamaat al-Tawhid wal-Jihad(the Party of Monotheism and Jihad).

Although initially this group was not officially part of al-Qaeda it wasrenamed by al-Zarqawi as al-Qaeda in Iraqin 2004. This association with al-Qaeda was short lived as the group became increasingly uncontrollable, and

Ayman al-Zawahiri, Osama bi Ladens second in command, chastised al-Zarqawi, for targeting civilians. Instead of complying with this criticism fromal-Qaedascentralleadership al-Zarqawi and his group became increasinglymore ambitious, with the leader seeing himself more than just a battlefieldcommander, but as a political leader. He thus began to govern the areasunder his control by introducing his interpretation of Sharia law by brutallysuppressing any opposition to his worldview, including established Sunnitribal leaders. His actions created a backlash that led to the Anbar

Awakening- where local Sunni tribal leaders sickened by the policies of al-

4The song is War by Edwin Starr a Motown release 10 June 1970 (Universal Music Group).The full lyrics for the first verse are:

War!Huh, good God

What is it good for?

Absolutely nothing.Say it, say it, say it.

http://en.wikipedia.org/wiki/Islamic_Emirate_of_Afghanistanhttp://en.wikipedia.org/wiki/Islamic_Emirate_of_Afghanistanhttp://en.wikipedia.org/wiki/Islamic_Emirate_of_Afghanistanhttp://en.wikipedia.org/wiki/Islamic_Emirate_of_Afghanistan

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Zarqawi united to fight as the Sons of Iraq with US forces against al-Qaedain Iraqresulting in serious reversals for al-Zarqawi, and his group.

In 2006 Al-Zarqawi was killed in a US bombing. His death combined with thepressure from the Anbar Awakening caused the group to fade away, literally

into the desert, until 2011 when the US withdrew from Iraq. 5 The USwithdrawal, the Syrian Civil War and the policies of the Shiia dominated Iraqigovernment, provided an opportunity for the group, now led by al-Baghdadi,to not only reappear, like the proverbial jinn, but to prosper. They emergedsignificantly enhanced in numbers, capability, and ambition.6As Emir (shortnote what this means) of the renamed Islamic State in IraqAl-Baghdadi

began operations in the civil war in Syria, and as his ambitions increased evenfurther he again renamed his organization the Islamic State in Iraqand the

Levant.7It was as the Emir of theIslamic State of Iraq and the Levantthat al-Baghdad subsequently announced the formation of theIslamic State (IS).

The Working Paper now turns to an analysis on the problematic socio-politicaland international mosaic that IS has created.

The Islamic State: when is a State a State?

At a recent seminar at Monash university examining the challenges posed byIS Professor Greg Burton in response to a query clarified that having aState is a very important objective for IS.8As mentioned above Abu Bakr al-Baghdadi, announced the establishment of the Islamic State, a Caliphate. Thisannouncement raises a number of interesting issues concerned with thedefinition of a State, and how statehood is determined. Secondly, what is the

import of describing this entity as a Caliphate. Is it a different category of aState? How does the title or statusas a Caliphate affect or interact with theanswers to the above initial questions?

Many of these questions are problematic to answer, and difficult to do so inthe space available. For example, when will a State be considered a failedState? Do Iraq and Syria qualify as failed States? If so what are theconsequences? In order to start the discussion at the baseline, so that(hopefully) more detailed answers will follow in subsequent editions, lets turnto the first issuethe definition of a State, and how statehood is determined. A

working definition of a State can be found in article 1 of the Montevideo

5The Anbar Awakening was the name given to the agreement that united local Sunni triballeaders, sickened by the policies of al-Zarqawi, to fight with US forces against al-Qaeda inIraqresulting in serious reversals for al-Zarqawi and his group.6There is little room to fully discuss the flaws, and sheer stupidity of the ShiiadominatedIraqi government, but one relevant point is the government reneged on several promisesmade to the Sunni tribal leaders made to enlist their support during the Anbar Awakening.Thus after 2011 many of those same tribal fighters swore allegiance and joined al-Baghdadisforces swelling his numbers considerably with experienced, well-armed, loyal and highlymotivated fighters.7Also known as orIslamic State in Iraqand Syria (ISIS)or al islamiyye fil iraq wal sham inArabic.

8Professor Greg Barton, Director of the Centre for Islam and the Modern World, The IslamicState Movement: Challenges at Home and Abroad, School of Social Sciences, Faculty of Arts,Monash University, Thursday 16 October 2014 Monash University, Caulfield Campus.

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Convention of 1933 on the Rights and Duties of States.9Not all commentatorsaccept the criteria in article 1 as identifying all the characteristics ofstatehood.10 However, the Montevideo criteria are generally accepted as aconvenient normative basis for the definition of statehood,11 and thus willserve here as the basis for a definition of a State. The four criteria and thus the

four characteristics of a State are as follows: (1) a permanent population; (2) adefined territory; (3) a government; and (4) a capacity to enter into relations

with other States.12

International treaties as well as academic commentators have longacknowledged the importance of the link between recognition and statehood.13However, there has been much debate over the nature of this link. Insummary how important is the act of recognizing statehood? Is it a necessarypart of the process of determining statehood? Does itcreatea State, or does itcure imperfections in a claim to statehood? Or is it a mere acknowledgment ofan existing fact- in which case it really is not necessary at all. The debate is

expressed through two central theories of recognition- the constitutive theoryand the declaratory theory. James Crawford defines the declaratory theory as...the theory that statehood is a legal status independent of recognition... andthe constitutive theory as the theory that the rights and duties pertaining tostatehood derive from recognition only.14Most commentators today wouldargue that the declaratory theory is correct.15

9The Montevideo Convention on the Rights and Duties of Sates, signed 26 December 1993,135 LNTS 19 (entered into force 26 December 1934) (Montevideo Convention),was adoptedby a total of 16 (the US and 15 Latin American States) States at a meeting of the 7th

International Convention of American States held in Montevideo.10See for example: Thomas D Grant, Defining Statehood: the Montevideo Convention and itsDiscontents (199899) 37 Columbia Journal of Transnational Law, 43457; OyvindOsterud, Sovereign Statehood and National Self-Determination: A World Order Dilemma inMarianne Heiberg (ed),Subduing Sovereignty and the Right to Intervene, (Pinter Publishers,1984), 212; James Crawford, The Creation of States in International Law(2nded, ClarendonPress, 2006) 313; David Rai, Statehood and the Law of Self-Determination, (Kluwer LawInternational 2002,), 24; Ian Brownlie, Principles of Public International Law, (5thed OUP,1998), 70.11David Harris, Cases and Materials in International Law (5thed, Sweet & Maxwell, 1998)102; Crawford, (n 10), 45; Grant, (n 10), 414, and the list of refines in his note 51 at 425.12There are other important factors as well, for example, independence: namely that it is notsubordinate to, or under the legal authority of, another state: Crawford, (n 10), 61-63, 66.

13See for example: Sir Hersch Lauterpacht, Recognition in International Law (1947) 1, 90;Lauterpacht, Recognition of States in International Law, above n 19, 385;Franck, The Powerof Legitimacy, above n 131,112; PK Menon, The Law of Recognition in International Law:Basic Principles(1994) 27; Hillgruber above n 15, 492, and Article 10 of the Bogota Charterof the Organisation of American States, open for signature 30 April 1948, 119 UNTS 48(entered into force 13 December 1951) (Bogota Charter).14 Crawford, (n 10), 4. Other commentators have similar definitions see for example: SirHersch Lauterpacht, Recognition in International Law: (CUP, 1947), 42533; I A Shearer,Starkes International Law (11th ed, Butterworths 1994) 120; Thomas D Grant, TheRecognition of States, Law and Practice in Debate and Evolution,(Praeger West 1999), 24.15 Grant, (n 14), 4; John Dugard and David Rai, The Role of Recognition in the Law andPractice of Secession in Marcelo G Kohen, Secession, International Law Perspectives, (CUP,2006) 94, 99; Opinion No 1 Badinter Commission (29 Nov 1991), [1(a)], as cited in the

Appendix to Alain Pellet, The Opinions of the Badinter Arbitration Committee: A SecondBreath for the Self-Determination of Peoples (1995) 3 European Journal of InternationalLaw 178. This position was restated in [2] of Opinion No 8, Badinter Commission (4 July

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With over 47 States now either actively or indirectly participating in acoalition to dismantle IS, the so-called network of death,16 it could beperhaps inferred that few if any acts of recognition will ever be made.However, if the declaratory theory, as defined above, is correct- this collective

outrage is simply irrelevantor is it? One commentator, David Raic, arguesthat statehood is determined through a two-step process: resolving theMontevideo criteria, before determining whether the creation of the entitysstatehood breached international law.17 If so who determines this two-stepprocess? The 47 States who seek to destroy IS, the UN?18

History is littered with acts of recognition motivated by purely pragmaticpolitical considerations.19 What indeed is the purpose of recognition, does itdetermine statehood, or is it more a diplomatic process? Or is there a genuinerequirement to ensure respect for the values and norms of human rights, or aprocess to ensure that new States will exist in harmony with the

international community? The answer to these questions are not as obvious asit first appears when it is considered that many of the norms of internationallaw have been developed by the West and it could be argued that even non-

western practitioners or members of the International Court of Justice (ICJ)bench are still influenced by the doctrinal influence of Western legal systems.ISs actions are as much about rejection of Western influence andinterference as they are about anything else.

Moving on to the second tier of issues-what is a Caliphate?

A simple look at Wikipedia reveals the following definition: A caliphate is an

Islamic State led by a supreme religious and political leader. Conceptually, acaliphate represents a sovereign state of the entire Muslim faithful, ruled bya caliph under Islamic law (sharia).20 What does this mean, how does aCaliphate fit within the existing political-legal structure of the currentinternational community? Will a sovereign entity that lacks democracyAl-Baghdadi was effectively a self-appointed Caliph be considered a State?Does a State that imposes a legal regime that ignores human rights, renderitself illegal? Essentially then, in addition to the two-step process Raic

1992) 92 ILR 199, 201. And yet it could be argued that the Badinter Commission took a

constitutive approach.16In the words of President Obama in a speech made to the United Nations.; Mark Landler InU.N. Speech, Obama Vows to Fight ISIS Network of Death, The New York Times, 24thSeptember 2014,

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mentions above, is there a third post facto requirement that States aftertheir creation comply with human rights instruments and accepted norms inorder to remain States? This issue refers to the criterion of permanentgovernment in the Montevideo Criteria, and asks the question: whether itmust be of a particular type? Should it be a democracy- more importantly a

secular government? Or is this just evidence of Western thinking-assumptions of the superiority of Western norms? After all Iran could bedescribed as a theocracy and Saudi Arabia as an autocracy. Are theirstatehoods in doubt?21

Conclusion

Writing about IS historian John Bew from Kings College, London, describesthe challenges posed by IS to the global community.

The dilemma thrown up by the collapse of the Ottoman empire is thesame as it ever was. Second-guessing the future and anointing the

would-be leaders of the next phase of Middle Eastern history hasproved to be beyond the gift of western policymakers for a hundred

years. Yet shutting the door on the region, and hoping they just get onwith it, is no sort of solution at all.22

The implications of recognizing -or not recognizing- ISs statehood aresignificant to say the least. What does ISs statehood mean for the Kurds andtheir claim for statehood? How would recognizing IS statehood impact on thecurrent norms of international law? What message would recognizing IS

statehood send to extremists in other States who seek to overthrow thecurrent regime in favour of a theocratic one dominated by Sharialaw? If no-one is held to account for the human rights abuses what impact will this haveon the credibility of the ICC and the whole international humanitarian lawregulatory regime? And there are important socio-political questions raised as

well. A Sunni extremist State would have a major impact on the power balancein the new cold war between the Sunni and Shiia powerbrokers, Saudi

Arabia and Iran.23Will IS be the trigger of a greater conflict between the twomajor sects within Islam: an Islamic reformation and counter reformation?Bews comment above stresses that something must be done, and perhaps heis right. If international law is to have any credibility in the twenty-first

century it must be able to deal with the challenges posed by IS: the question iswhat, and how?

It is hoped that this humble introduction to the various issues surrounding IS,and itsinfamy, provide an opportunity, as tragic as it may be, to consider theimportant fundamental underpinnings of our international community andthe laws that regulate it. It is planned that a broader discussion of these

21Gregory Treverton, The New Cold War, Iran Versus Saudi ArabiaHow Far will it Go?,Prospect, February 2014, 22, 26.

22John Bew, The Tragic Cycle, from Sykes-Picot to the Rise of ISIS the Western Powers andthe Middle EastNewStatesman, 15-21 August 2014, 23, 2723Treverton, (n 21), 22.

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issues will take place in a forthcoming issue of theJournal of the Philosophyof International Law.

Anybody seeking to contribute to this discussion should contact the editor-in-chief Dr Jackson Maogoto at jacksonmaogoto@aol.com . More information

can be found at the journals website:https://www.electronicpublications.org/catalogue.php?id=47 submissionscan be made electronically at JPIL@electronicpublications.org,JPIL-submissions@mail.com

mailto:JPIL@electronicpublications.org,JPIL-submissions@mail.commailto:JPIL@electronicpublications.org,JPIL-submissions@mail.commailto:JPIL@electronicpublications.org,JPIL-submissions@mail.commailto:JPIL@electronicpublications.org,JPIL-submissions@mail.commailto:JPIL@electronicpublications.org,JPIL-submissions@mail.com