The Isis Crisis and the Development of International Humanitarian Law

• Jurisdiction: United States,Federal
• Citation: Vol. 30 No. 4
• Publication year: 2016
• topic: Constitutional Law

The ISIS Crisis and the Development of International Humanitarian Law

Johan D. van der Vyver

Emory University School of Law

THE ISIS CRISIS AND THE DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW

Johan D. van der Vyver^*

Abstract

This Article is focused on efforts to accommodate, within the confines of international humanitarian law, militant responses to acts of cross-border terror violence, as exemplified in most recent times by atrocities committed by the Islamic State of Iraq and Levant (ISIL) and its successor, the Islamic State in Iraq and Syria (ISIS). Since World War I (1914-1918), the international community of States sought to commit itself to settle international disputes by peaceful means and not through the power of the sword. The Charter of the United Nations (U.N. Charter) seemingly confined legitimate armed interventions to those authorized by the Security Council to bring to an end situations that constitute a threat to the peace, a breach of the peace, or an act of aggression (Article 42), and instances of self-defense where a Member State has been attacked (Article 51). However, over time jus ad bellum has extended legitimate armed interventions well beyond the confines of the U.N. Charter to also include armed interventions authorized by the General Assembly in very special circumstances—wars of liberation, pre-emptive self-defense action, and humanitarian intervention. It has also come to be accepted that a government confronted by insurgents can invite other States to come to its assistance. Iraq has indeed done so, and therefore the airstrikes against ISIS strongholds by, for example, American forces in Iraq, are lawful under the norms and customs of contemporary international humanitarian law.

However, the United States has also launched airstrikes against al-Qaeda and ISIS targets in Syria while not having been requested by the Syrian government to do so. In order to afford legality to those airstrikes, members of the Obama Administration have proposed a new rule of humanitarian law, the "unwilling or unable rationale," proclaiming that armed forces of State A can take military action against terrorist groups located in State B if the government of State B is either unwilling or unable to prevent its territory from

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being a launching pad for acts of terror violence. Although some proponents of the unwilling or unable rationale attempted to bring the legality of such military action within the confines of self-defense action or humanitarian intervention, this Article argues that the unwilling or unable rationale does not fit the standard conditions of legitimate self-defense or the essential objectives of humanitarian intervention. The Article concludes that the unwilling or unable rationale is a new norm of jus ad bellum in the making.

A side issue of the Article addresses the question of why spokespersons of the Obama Administration persist in referring to ISIL in spite of the fact that the organization in June 2014 changed its name to ISIS. It is noted that al-Qaeda was part of ISIL but is not part of ISIS, that the Obama Administration did not receive congressional approval for the airstrikes in the Middle East, and that the Obama Administration relies on congressional approval of the post 9/11 war against terror that was focused on the Taliban and al-Qaeda forces in Afghanistan and the 2003 invasion of Iraq to afford constitutional legality to the airstrikes in Iraq and Syria. Since al-Qaeda was part of ISIL but not of ISIS, referring to ISIL is most likely intended to bring these airstrikes within the reach of the congressional approvals of yesteryear.

Introduction

The international community was shocked in the extreme in recent years by acts of profound barbarism committed by a militant Muslim group, initially called the Islamic State of Iraq and the Levant (ISIL) but who changed its name in June 2014 to the Islamic State in Iraq and Syria (ISIS).¹ The organization is committed to the dictates of a certain brand of the Sunni faction of Islam and strives toward bringing most traditionally Muslim-inhabited States—besides Iraq and Syria—under its political control, including Jordan, Israel, Palestine, Lebanon, cyprus, and Southern Turkey.² It acquired considerable financial resources by gaining control of oil fields in the eastern province of Deir-al-Zour in Iraq, taking control of bank institutions and

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allocating to itself large sums of money, and receiving generous funding from wealthy donors in predominantly Sunni countries of the Persian Gulf.³ It lured into its ranks thousands of foreign volunteers, including some from the United States (U.S.) and the United Kingdom.⁴ In order to achieve its political objectives, the organization has embarked on horrific acts of terror violence.⁵

A key question for purposes of this survey is what military action can be taken by the international community of States, or by individual sovereignties, to combat the threat emanating from the crime of aggression and the acts of terror violence committed by proponents of ISIL/ISIS. We shall see that existing norms of jus ad bellum do not unconditionally authorize military intervention across national borders against ISIS strongholds. However, international humanitarian law is currently in the making of what has come to be denoted as the "unwilling or unable" paradigm, which is aimed at authorizing military action by State A against terrorist groups located in State B if the government of State B is either unwilling or unable to prevent its territory from being used as a launching pad for acts of terror violence.⁶ Although proponents of the unwilling or unable paradigm sought to bring the military response against the perpetrators of terror violence under the rubric of the right to self-defense,⁷ this Article will show the implementation of the paradigm is not confined to situations that warrant defensive military action.

A particular focus of this Article is airstrikes by military forces of the United States against selected targets in Iraq and Syria, which have come to be justified on the basis of the unwilling or unable paradigm. There are very special reasons why (a) the American airstrikes are not only confined to ISIS strongholds in Iraq but also include al-Qaeda targets in Syria, and (b) spokespersons of the Obama Administration continue to refer to ISIL, as the

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terror group called itself before it changed its name to ISIS in June 2014. It will be argued in this Article that both (a) and (b) stem from the fact that the Obama Administration did not obtain congressional approval for the airstrikes in the Middle East as required by the U.S. Constitution and maintained that the airstrikes are covered by, amongst other things, the congressional approval of a military response to the terror attacks of September 11th orchestrated by al-Qaeda. From this Article, it will emerge that al-Qaeda was a component of ISIL but not of ISIS, and therefore the Obama Administration had to include armed attacks against al-Qaeda, and kept on referring to ISIL, to afford credence to its reliance on the congressional approval of an armed response to the War on Terror sparked by the acts of terror violence of 9/11.

Following a brief historical synopsis in Part I of this Article on the emergence of ISIL/ISIS and of its evil deeds, we shall in Part II deal with the current dictates of jus ad bellum signifying the confines of lawful armed interventions. It will be pointed out that the Charter of the United Nations (U.N. Charter) confined the use of armed force to (a) U.N. Security Council authorizations of action by air, sea, or land forces as a means of maintaining or restoring international peace and security (Article 42),⁸ and (b) individual and collective self-defense if an armed attack occurs (Article 51).⁹ However, this Article argues that efforts to confine armed conflicts to the instances specified in the U.N. Charter have fallen behind the times, and the international community of States has consequently come to afford legality to the use of armed force in situations other than those specified in Articles 42 and 51, such as preemptive self-defense measures, wars of liberation, and humanitarian interventions.

In Part III, this Article pays special attention to the ISIS crisis and the shortcomings of international humanitarian law in counteracting terrorism of the kind and on the scale orchestrated by ISIS. This Part focuses especially on: (a) the airstrikes by U.S. armed forces against al-Qaeda and ISIS targets in Iraq and Syria; (b) problems affording legality to those airstrikes within the confines of U.S. constitutional law and of jus ad bellum; and (c) the evolution of a rule of international humanitarian law to accommodate an offensive against the perpetrators of terror violence if the government of the country from which they operate is either unwilling or unable to take action to combat the acts of terror violence.

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I. Historical Background

The history of the Sunni insurgent group, commonly referred to as the "Islamic State" (IS), or more precisely over time as the "Islamic State of Iraq and Syria" (ISIS), the "Islamic State of Iraq and Levant" (ISIL), or DAESH (an abbreviation of the Arab name of ISIL), can be traced back to 2004, the year in which it originated under the name of Jama 'at al-Tawhid wal-Jihad,¹⁰ a forerunner of Tanzim Al Qaeda fi Bilad al-Rafidayn, commonly known as al-Qaeda in Iraq.¹¹ The organization made great progress in 2006 when it joined other Sunni insurgent groups to form the Mujahideen Shura Council, which over time consolidated into the Islamic State of Iraq, and had acquired a substantial presence in Al Anbar, Nineveh, and Kirkut.¹² In 2013, the group changed its name to ISIL.¹³ ISIL made great progress under the leadership of Abu Bakr al-Baghdadi, largely due to political practices that many of its followers regarded as discrimination...