The applicability of the humanitarian intervention "exception" to the Middle Eastern refugee crisis: why the international community should intervene against ISIS.

• Author: Sterio, Milena

1. INTRODUCTION

   The refugee crises in Iraq and Syria, which has been evolving over the past decade as a result of both ongoing conflict in these countries and the recent surge of Islamic State-led violence, has morphed into a true humanitarian catastrophe. (1) Tens of thousands of refugees have been subjected to violence and have been dispersed and forced to live under dire conditions; such massive population flows have destabilized the entire region and have threatened the stability of neighboring countries. (2) The United States and several other countries have been engaged in a military air strike campaign against the Islamic State, but the international community has otherwise not authorized a multilateral military action against the Islamic State in order to alleviate refugee and other humanitarian suffering. (3) This Article will argue that in light of such a tremendous humanitarian crisis, reflected in the current refugee crisis, international law authorizes states to intervene through the paradigm of humanitarian intervention. This Article will argue that if international law embraces the concept of humanitarian intervention as an evolving norm of customary law, then this norm encompasses intervention in situations of a humanitarian refugee crisis, such as the one that has unfolded in Iraq and Syria.

   In Part II, this Article will provide background on the Islamic State, and on its recent operations in Iraq and Syria. In Part III, this Article will briefly describe the ongoing refugee crises in Iraq and Syria, caused by Islamic State-led warfare in the region. Part IV of this Article will focus on the use of force under international law, and Part V will discuss the evolving concept of humanitarian intervention. Part VI will propose a legal framework for the evolving norm of humanitarian intervention, including humanitarian intervention to assuage a severe refugee crisis. This Article will conclude that international law can, and should, develop in order to embrace a new normative framework for humanitarian intervention, which can then apply to situations of severe refugee crises causing humanitarian suffering. States which are unable and unwilling to address humanitarian catastrophes, including significant refugee crises, should be subject to external intervention by other states acting to halt such humanitarian suffering.

2. THE RISE OF THE ISLAMIC STATE AND ITS SUCCESSFUL EXPANSION IN IRAQ AND SYRIA

   The Islamic State in Iraq and Syria (ISIS), also known as the Islamic State and the Islamic State of Iraq and the Levant (ISIL), started as an Al Qaeda splinter group in Iraq in 2004. (4) The group, first known as Islamic State in Iraq, attempted to merge with the al-Nusra Front in Syria in 2013, to form the so-called Islamic State in Iraq and the Levant. (5) Although the al-Nusra leadership rejected the merger with Islamic State in Iraq, by 2014, Islamic State in Iraq had overtaken large swaths of territory in both Iraq and Syria and announced the creation of a caliphate that would efface all state borders, turning Islamic State's leaders into the self-declared authority over the world's estimated 1.5 billion Muslims. (6) In 2014, the group also announced a name change to the Islamic State (IS). (7) Its fighters are mostly comprised of former Iraqi soldiers, who are unable to serve under the new Iraq government after Saddam Hussein's military was disbanded. By 2014, the Central Intelligence Agency (C.I.A.) had announced that ISIS fighters totaled somewhere between 20,000 and 31,500--an estimate far greater than many analysts had originally predicted. (8) Its aim is to establish an Islamic state or caliphate in the Sunni areas of the Middle East, which encompasses large parts of both Syria and Iraq. ISIS currently controls hundreds of square miles; it has a presence from Syria's Mediterranean coast to south of Baghdad. ISIS funds itself through oil production and smuggling as well as through ransoms from kidnappings, selling stolen artifacts, extortion and controlling crops. ISIS "is a transnational Sunni Islamist insurgent and terrorist group that has expanded its control over areas of northwestern Iraq and northeastern Syria since 2013, threatening the security of both countries and drawing increased attention from the international community." (9)

   ISIS rules by Sharia law. It is known for killings thousands of people, carrying out public executions and punishing all those perceived as disrespecting Sharia law. (10) In addition, ISIS fighters have destroyed numerous valuable antiquities in the area. (11) Moreover, ISIS fighters have driven tens of thousands of Syrians and Iraqis out of their homes, thereby causing a tremendous refugee crisis in the Middle East. (12) By December of 2014, the United Nations reported that an estimated 3 million refugees in the area were in need of humanitarian assistance. (13)

   One of the reasons that ISIS has been able to operate with such success in areas of Iraq and Syria, and has been able to cause the displacement of as many individuals, is because of the already volatile situations in both of these countries. Both Iraq and Syria have experienced ongoing internal conflict over the past decade--Iraq since 2003 and Syria since the Arab Spring. (14) Both of these countries have a history of instability and internal unrest and were fertile ground for the rise of the ISIS terrorist organization. The section below will briefly describe the current refugee situations in Iraq and Syria as massive flows of refugees have overwhelmed the Middle East and provoked a true humanitarian catastrophe. This Article will analyze whether third states have the right to militarily intervene in places, such as Iraq and Syria, in order to appease humanitarian suffering inherent in a refugee crisis.

3. ISIS IN IRAQ AND SYRIA AND THE ONGOING REFUGEE CRISIS

   "The humanitarian situations in Iraq and Syria have been described as a 'mega crisis' in part because displacements and movement of populations are intertwined between the two countries." (15) Estimates indicate that "17.4 million people living in either Iraq or Syria are affected by conflict and in need of humanitarian assistance. (16) In addition, more than 3.3 million Syrians and nearly 0.2 million Iraqis are displaced as refugees." (17)

   Iraq has experienced an urgent humanitarian crisis, with an estimated 5.2 million people in need of humanitarian and protection assistance since January 2014. In addition, reports indicate that over 2.1 million people in Iraq are Internally Displaced Persons (IDPs), that 1.5 million are in areas under the control of armed groups, such as ISIS, or impacted by the conflict, and that 0.2 million are Syrian refugees. (18) Close to half of the newly displaced persons are believed to be children. (19) "As of late October 2014, of the 2.1 million IDPs, an estimated 850,000 were seeking shelter in Iraq's Kurdistan region, mainly in Dohuk governorate, while increased movements to central and southern Iraq were straining the response capacities of host communities in these areas." (20) In addition to IDPs in Kurdistan, it is estimated that over 700,000 persons are displaced in the central region and 200,000 in the south. (21)

   The conflict situation in Iraq, coupled with the rise in sectarian violence, has exacerbated the refugee crisis. "An estimated 3.6 million Iraqis reside in areas under the control of the IS and other armed groups. Of these, 2.2 million are thought to be trapped in conflict-affected areas." (22) These IDPs, living in conflict areas, lack access to basic health services as well as food, water, and other supplies, and are considered to be in urgent need of humanitarian assistance. (23)

   The ongoing conflict in Syria has equally created a serious humanitarian crisis. (24) As of November 2014, more than half of the population in Syria was in need of humanitarian assistance (12.2 million people). (25) According to the same reports, 7.6 million Syrians have been displaced inside the country. "In addition, more than 3.3 million Syrians are displaced as refugees, with 97% fleeing to countries in the immediate surrounding region, including Turkey, Lebanon, Jordan, Iraq, Egypt, and other parts of North Africa." (26) According to a troubling United Nations statistic, in 2014, an average of more than 90,000 Syrians per month have been registering as refugees in countries in the region. (27) This number continues to increase as the political and military situation worsens; humanitarian needs of all such refugees are tremendous and increase daily. In addition to registered and registering refugees, many Syrians are estimated to be living in remote areas that have been besieged by either the Government of Syria or various opposition forces at different points in the conflict. (28) In areas under siege by the Syrian government, reports have surfaced about intentional policies of starvation, attacks against civilians and indiscriminant use of heavy weapons, as well as "a weak health infrastructure that is often under deliberate attack" by government forces. (29) It thus appears that many Syrian civilians are living under dire conditions and are in obvious need of humanitarian assistance. Last but not least, some Syrians appear to be living as de facto refugees.

   Experts recognize that some Syrians have not registered as refugees, presumably from fear or other reasons, and have chosen instead to blend in with the local population, living in rented accommodations and makeshift shelters, particularly in towns and cities. The U.N. Office for the Coordination of Humanitarian Affairs (UNOCHA) estimates that more than 80% of Syrian refugees are living outside camps in mostly urban settings. (30) The Syrian refugee crisis has negatively impacted neighboring countries, including Lebanon, Jordan and Turkey, whose governments have expressed concerns about the potential political implications of allowing...