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Dave A.

Public International Law



We declare Fallujah as an Islamic state, and we call on you to be on our side! We are
here to defend you from the army of Maliki and the Iranian Safavids! Islamic State
fighter (then Islamic State of Iraq and Syria) on the podium at the declaration of
statehood in Fallujah, January 3, 2014.

The Islamic State is not only a terrorist group. It is a political and military organization
that holds a radical interpretation of Islam as a political philosophy and seeks to impose
that worldview by force on Muslims and non-Muslims alike. Expelled from Al-Qaeda for
being too extreme, the Islamic State claims to be the legitimate ruler of all Sunni
Muslims worldwide. They have established what they regard as a state which includes
large swaths of territory in Syria and Iraq, governed from Raqqa in Syria.

It advances a number of theological opinions to support its claims. Its adherents hold
that they are merely practicing Islam fully, pronouncing those who disagree with them
takfir (heretics). This designation is used as religious justification for killing the Islamic
States opponents, typically slaughtering them wholesale.

Originally founded by Abu Musab al-Zarqawi and known as Al-Qaeda in Iraq (AQI), what
is now the Islamic State participated in the Iraq War fighting against American forces
after the fall of Saddam Hussein. In 2013 they joined the Syrian Civil War, but rather
than focus on defeating the regime of Bashar al-Assad, they focused on building their
Islamic state.

On June 29, 2014, the Islamic State declared the establishment of an Islamic caliphate
with its leader being Abu Bakr al-Baghdadi, the caliph.

What is now the Islamic State began as a group called Jamaat al-Tahwid wa-i-Jihad
(JTWJ), founded in 1999 by Abu Musab al-Zarqawi. Initially it focused on attempting to
effect regime change in Jordan, although Zarqawi rst gained experience as a jihadi in
Afghanistan. He met Osama Bin Laden in 1999 and the two always had a fractious
relationship, partly based on personal differences and partly on class differences.
Zarqawi was brash, abrasive and from a poor background, whereas Bin Laden was
from a wealthy background and did not feel the need to always be on the front lines.

After the 2003 invasion of Iraq by the United States, Zarqawi became prominent in the
insurgency against American forces there. In particular he was known for his ferocity
and personal brutality as well as for his battleeld successes. His personal hatred for
Shiites is well documented and remains an integral part of Islamic State ideology. He
called them a sect of treachery and betrayal ... the lurking snake, the crafty and
malicious scorpion.

Among JTWJs high prole terrorist attacks were an August 2003 attack on the UN
compound in Baghdad that killed 22, including UN Special Representative Sergio Vieira
de Mello, then considered the most likely successor to UN Secretary General Ko

In February 2004 the group killed 150 people in simultaneous attacks in Baghdad and
the Shiite holy city of Karbala during the Ashura festival. 7 Zarqawi was also known for
personally carrying out beheadings, such as those of hostages Eugene Armstrong
(American), Jack Hensley (American) and Kenneth Bigley (British) in September 2004.

In 2004 JTWJ formally became an Al-Qaeda afliate when Zarqawi performed bayah,
the oath of fealty, to Bin Laden.

The group changed its name to Al-Qaeda in the Land of the Two Rivers (the Tigris and
the Euphrates). It was more commonly known as Al-Qaeda in Iraq, or AQI.
Al-Qaeda in Iraq built up its own network of supporters and ghters during the Iraq
insurgency. Although it was technically subordinate to Al-Qaeda central, in practice it
was autonomous and able to develop its own ultraviolent brand of jihad. This created a
generational difference between jihadists more aligned with Osama Bin Laden who
fought in Afghanistan and those who fought with Zarqawi in Iraq, such as current Islamic
State leader Abu Bakr al-Baghdadi.

In 2006, Zarqawi subsumed several smaller Iraqi jihadi factions under AQI leadership
under the banner of Majlis Shura al-Mujahedin (MSM). Under the guidance of Al-
Qaedas central leadership he focused on developing the infrastructure necessary to
enforce sharia law as a state.

Zarqawi was killed by a United States airstrike in 2006.

After the death of Zarqawi, AQI was led by Abu Ayyub Al-Masri and then by Abu Omar
al-Baghdadi. The two were killed by a tank shell in 2010.

In 2006, the group changed its name to the Islamic State in Iraq (ISI), signaling its
intention to focus on conquering Iraqi territory as a means of creating a sharia-based
state there. The group concentrated its efforts on gaining territory in the desert region of
Anbar province, where discontent among the Sunni population was rife.

However their brutal attempts to enforce sharia law turned the local population against

Supported by American forces, tribal militias called Sahwat al-Anbar (Anbar

Awakening), or alternatively Abna al-Iraq (Sons of Iraq), pushed ISI out of Fallujah and
the rest of Anbar in bloody ghting. 14 Founded in 2005, Sahwat al-Anbar supported the
American troop surge of 2007 and were able to all but defeat ISI. 15 Following victory,
they were not integrated into the Iraqi military by the Shiite Prime Minister Nouri al-
Maliki, instead being targeted as a potential threat to Shiite majority rule.

Many of them have now joined the Islamic State.

In 2010, Abu Bakr al-Baghdadi took over ISI after the deaths of al-Masri and the
previous al-Baghdadi. He was able to rebuild some of the popular support that had been
lost under the groups two earlier leaders. He also began to develop the organizations
strength and stage a comeback with his expansion into the Syrian Civil War in 2013,
renaming the organization the Islamic State in Iraq and Syria (or the Islamic State in
Iraq and Levant ISIL). Baghdadis decision to move into Syria provoked friction with
Al-Qaedas ofcial afliate in Syria, Jabhat Al-Nusra. Baghdadi attempted to take over
Jabhat Al-Nusra, prompting rebuke from Nusras leader and Al-Qaeda central
command. After multiple failed attempts at mediation by various leading sheikhs in the
global jihadist community, the two groups split permanently when the leader of Al-
Qaeda central formally repudiated ISIS.

Apart from the power struggle between the leaders of ISIS and Nusra, the groups differ
in their methodology. Nusra favors a more gradualist approach that is willing to work
with other factions and attempt to build an Islamic state later, whereas ISIS favors a
more direct approach, seeking to seize territory, build a state and enforce sharia

Throughout late 2013 and early 2014, ISIS built its power base in Syria, establishing its
stronghold in Raqqa, where it was able to seize total control after ousting all other rebel
groups. Despite a counterattack by other factions sparked by its brutal tactics, ISIS was
able to hold its positions and consolidate its power base. They effectively imposed
control over areas by empowering their allies and crushing their enemies. Policies of
divide and rule in fractious tribal areas helped them to sustain their hold on territory. 20

But ISIS never forgot about Iraq. In January 2014, they took parts of Fallujah and
Ramadi in Anbar province. In early June, ISIS shocked the world, storming across
northern Iraq and capturing Mosul, Iraqs second largest city, with the help of an uneasy
alliance of ex-Baathists, tribesmen and other Sunni rebel forces.
On June 29, 2014, the rst day of Ramadan, ISIS declared itself a caliphate and Abu
Bakr al-Baghdadi as Caliph Ibrahim, calling for the immediate loyalty of all Muslims
throughout the world.


The ideology of the Islamic State is that of Salast-jihadism.23 It is important to

remember that for them there is no distinction between religion and state. All decisions
are based on a hardline interpretation of sharia (Islamic law), which is brutally enforced
in the areas controlled by the Islamic State.

The ideology is almost exactly the same as that of other groups such as Al-Qaeda and
the Taliban. It differs in its approach to the proper timing and the conditions necessary to
establish a caliphate. Groups such as Jabhat Al-Nusra (Al-Qaedas ofcial afliate in the
Syrian Civil War) believe that although the long term goal is to establish an Islamic
caliphate, the time is not yet right for such a move.

Salast thought is based on the idea of returning to the supposedly pure form of Islam
practiced by the successors to the founder of Islam, Mohammed, and the earliest
Muslims. They reject any later additions as bidah (innovation) and un-Islamic. Their
doctrine allows them to proclaim as takr (heretics) Muslims who deviate from their
strictly dened interpretation of Islam. The penalty for heresy is death. There is an
ideological split within the Salast community based on engagement in the political
process and the acceptability of the use of violence.


The Islamic State has short, medium and long term goals.

Its short term goal is to consolidate the areas it already controls and capture more
territory in Syria and Iraq.

One of its central tactics it has used to advance its goals has been to precipitate all out
sectarian war in Iraq between Sunnis and Shiites, which it tries to achieve by
massacring civilian populations of Shiites whenever and wherever it can. This
methodology is used partly due to their view of Shiites as heretics deserving of death
and it is also a tactic aimed at causing reprisal attacks from Shiite militia groups, thus
driving Sunnis into the arms of the Islamic State.

The Islamic States medium term goal is to consolidate and expand its control of
territory in Iraq and Syria and in the next stage to advance into neighboring Sunni

It seems that Saudi Arabia and Jordan will be the next targets. Both countries have
large populations of discontented young men and both are authoritarian monarchies
that emerged from the Arab Spring relatively unscathed.

Advancing in this way is in keeping with the Islamic States current practical approach of
consolidating power in a contiguous territory in order to build a manageable and
defensible state.

Ultimately the group aims at nothing short of total world domination.

Is ISIS a state?

The most accepted requirements for determining the existence of a State in

international law the criteria stipulated in the 1933 Montevideo Convention on the Rights
and Duties of States.

The four criteria of this Convention are:

a) a permanent population,

b) a defined territory,

c) an effective government,

d) a capacity to enter into relations with other States.

Two additional requirements that are customarily raised in relation to an entity seeking
recognition as a State by the international community: independence and legitimacy.

The concept of a state and the Islamic State

Currently ISIS is estimated to comprise of 25 000 30 000 persons.

Contrary to the proclamations of the Islamic State about being a State and an Islamic
Caliphate, many functionaries of international law do not recognise ISIS as a state. This
is partly owed to the criteria on the definition of a state in article 1 of the Montevideo
Convention, but judged from factual information, to some extent successfully argue that
ISIS does in fact possess:

a permanent population (those who are under occupancy of ISIS in Iraq and

a defined territory (occupied areas by ISIS in Iraq and Syria),

a government (the proclaimed caliphate)

and even an ability to enter into relations with other states.

For a thorough analysis we must delve into questions of effective control, consent,
durability of conditions and the declaratory and constitutive theory of recognition.

Effective control and consent

With the notions of consent-of-the-people and the consent of-the-previously-reigning

government, there seems to be divided opinions on whether either of the two forms of
consent exists in Iraq and Syria, but as concerns the consent-of-the-people dynamic,
shows that support for ISIS in these countries is growing dimmer.
Stabilisation of conditions and the declaratory and constitutive
theory of recognition

The primary barrier the caliphate faces, and apparently will continue to face in the near
future, is its lack of legitimacy in the eyes of the international community and the
unwillingness of States to recognize the Islamic State as a State under international law
and to conduct political, economic, cultural, or other relations with it.

It would be in place to reassert that ISIS still is not a state when viewed through the lens
of international law

The Development in the justification on the attack on ISIS

Article 2(4) of the United Nations Charter
All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations.
Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace and
security. Measures taken by Members in the exercise of this right of self-defence shall
be immediately reported to the Security Council and shall not in any way affect the
authority and responsibility of the Security Council under the present Charter to take at
any time such action as it deems necessary in order to maintain or restore international
peace and security.

It is intended that no derogation occur from the prohibition of threat or use of force in
UNC article 2.4. This renders it a jus cogens character.

Emergence of non-state actors

The emergence of new non-state actors such as ISIS, who by some, are considered
capable of carrying out the sort of armed attack mentioned in UNC article 51, raises the
question of whether non-state actors by themselves and alone can cause the activation
of the rights in UNC article

2.4 and 51. This question is important because it allows us to gauge if intervention by
victim states to combat non-state actors in a not guilty host state at the expense of UNC
article 2.4 concords with international law.
The host states right to continue to be protected by the provisions of UNC article 2.4
vis--vis the victim states rights are at stake here.

State-to-state interaction a restrictive view on the use of force against ISIS?

ICJ reiterated that it is an armed attack of one state, which legitimizes the victim states
right to self-defence.

The result of application of this theory on ISIS rules out the use of force in Iraq and
Syria as adhering to international law, as ISIS according to traditional legal theory is not
a state.

The initial US justifications of bombing ISIS

1. Humanitarian Intervention
2. Failed State
3. Hot Pursuit

1. Humanitarian Intervention
The first U.S. argument was that airstrikes against ISIS were justified under the right of
humanitarian intervention in the context of efforts to save 30,000 Yazadis trapped on
Mount Sinjar. The United States could have cited as precedent for this the NATO
airstrikes against Serbia in an effort to prevent ethnic cleansing of Kosovar Albanians in
1999. But, the United States has been reluctant to advocate a general right of
humanitarian intervention, and has instead argued that the NATO airstrikes were sui

It was about to become a norm of customary international law but failed for two reasons

first because the ambiguity of the initial manifestation of opinio juris that accompanied
the acts of the NATO States. The participating NATO States were not comfortable with
the idea that the bombing campaign would create a new rule of customary international
law justifying a broad notion of unilateral humanitarian intervention for it was too open

Second 2004 High-Level Panel Report, which was endorsed by the UN Secretary-
General, and the 2005 World Summit Outcome Document, which was endorsed by the
General Assembly and Security Council, were written to reflect a much narrower
conception in which humanitarian intervention is only lawful when authorized by the
Security Council.
2) Failed State

A second U.S. argument was that airstrikes against ISIS are in a part of Syria that is
currently outside the authority of the Syrian government and thus in our eyes, a legal
no-mans land.258 The Chairman of the Joint Chiefs of Staff said ISIS has to be
addressed on both sides of what is essentially at this point a nonexistent border.259
This proposition is based on the view that limited use of force in the territory of a failed
State would not violate the states territorial integrity because a failed state by definition
does not exercise meaningful control over its borders or territory

The U.S. argument constituted a radical departure from the traditional view that a
States legal personality, rights, and responsibilities do not evaporate when it loses
control over parts of its territory, as during periods of civil war, insurgency, or
governmental collapse.261 The United States quickly recognized that the failed state
argument would prove problematic to U.S. interests and global stability. A new rule of
customary international law that would allow states to invade their neighbors whenever
they deem that state failure has occurred would create a legion of loopholes in the
U.N. Charter,262 and create substantial potential for abuse.

3. Hot Pursuit

Thought to be the most ill-conceived of the U.S. arguments was put forth by Secretary
of State John Kerry, who testified before the Senate that since ISIS attacks Iraq from
and then retreats to Syria, a right of hot pursuit could provide a basis for military force
against ISIS in Syria If accepted, this land-based hot pursuit rationale could create a
slippery slope, leading to frequent border violations by many other states around the

Self-defence against ISIS

A. Definition of Terrorism

In 2011 the Appeals Chamber of the Security Council through Special Tribunal of
Lebanon declared the customary international law definition of terrorism consist of
the following elements:

1. Perpetration of a criminal act (kidnapping, murder, hostage taking, arson etc)

2. Intent to spread fear among the population (entails creation of public danger) or
directly coerce a national or international to take some action, or refrain from
taking it
3. When act involves transnational element

B. Effect of such definition

Removed the one obstacle to use force against terrorist. Specifically the argument
that one mans terrorist was another mans freedom fighter.

The Grotian Moment

In the aftermath of the ISIS bombing of a Russian jetliner over the Sinai desert on
October 31, 2015, and ISIS attacks on a Paris stadium and concert hall on November
13, 2015, the U.N. Security Council unanimously adopted Resolution 2249, which
determined that ISIS is a global and unprecedented threat to international peace and
security, and called for all necessary measures to eradicate the safe haven [ISIS]
established in Syria.

It showed that ISISthe richest and most technologically advanced terrorist

organization in the world was no longer confining its objectives to territorial acquisition
in Syria and Iraq, but had adopted the tactics of other terrorist groups, focusing on
attacking vulnerable targets outside the Levant.

Resolution 2249 did not provide a new stand-alone legal basis or authorization for use
of force against ISIS in Syria.271 Unlike past Security Council resolutions that have
authorized force, Resolution 2249 does not mention Article 42, or even Chapter VII, of
the U.N. Charter, which is the Article and Chapter under which the Security Council can
permit States to use force as an exception to Article 2(4) of the U.N. Charter. Nor does
the Resolution use the word authorizes or even decides in relation to use of force.
These textual differences led Mark Weller, Professor of International Law at the
University of Cambridge, to conclude that this language suggests that the resolution
does not grant any fresh authority for states seeking to take action.

The use of force against al-Qaeda and ISIS during the past fourteen years has given
rise to a so-called Grotian Moment: an instance of rapid formation of a new rule of
customary international law, in this case recognizing the right of States to attack non-
state actors when the territorial State is unable or unwilling to suppress the threat they
pose. Such a right would constitute a radical change from the prior-existing rule, which
had required effective control of the non-state actors by the territorial State as a pre-
condition to the use of force against them.

Both al-Qaeda and ISIS are widely viewed as representing a new kind of threat, in
which a non-state actor possesses many of the attributes of a State: massive wealth,
sophisticated training and organization, and access to destructive weaponry. To respond
to the fundamental change presented by these uber-terrorist groups, the United States
has argued that it is now lawful to attack such non-state actors when they are present in
States that are unable or unwilling to curb them.