The ISIS Crisis and the Development of International Humanitarian Law
Johan D. van der Vyver
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 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.
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). 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. 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 allocating to itself large sums of money, and receiving generous funding from wealthy donors in predominantly Sunni countries of the Persian Gulf. It lured into its ranks thousands of foreign volunteers, including some from the United States (U.S.) and the United Kingdom. In order to achieve its political objectives, the organization has embarked on horrific acts of terror violence.
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. 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, 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 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), and (b) individual and collective self-defense if an armed attack occurs (Article 51). 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.
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, a forerunner of Tanzim Al Qaeda fi Bilad al-Rafidayn, commonly known as al-Qaeda in Iraq. 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. In 2013, the group changed its name to ISIL. 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 against the Sunni faction of Islam. Until February 2014, ISIL had close ties with al-Qaeda, but following a power struggle, al-Qaeda cut all ties with the group. On June 29, 2014, ISIL, absent al-Qaeda support, was renamed to ISIS.
ISIL/ISIS strictly imposes Islamic punishments such as amputations, beheadings, and crucifixions, and it has become notorious on account of innumerable acts of extreme terror violence. The beheadings of American journalist James Foley, American/Israeli journalist Steven Sotloff, British humanitarian aid worker David Haines, American humanitarian aid worker Peter Kassig, British taxi driver and humanitarian aid worker Alan Henning, and Japanese journalist Kenji Goto, and the burning to death of Jordanian pilot Moath al-Kasasbeh, were videotaped and displayed on the Internet for the world to see. On February 15, 2015, ISIS publicly displayed the beheading in Libya of twenty-one Egyptian Coptic Christian fishermen. On March 29, 2015, a video was released showing the beheading of eight men said to be Shiite Muslims. ISIS was also responsible for the destruction of valuable religious shrines and works of art that were of special significance to rival Islamic factions.
In August 2014, the U.N. Security Council, acting under Chapter VII of the U.N. Charter, deplored and condemned “in the strongest terms the terrorist acts of ISIL and its violent extremist ideology, and its continuous gross, systematic and widespread abuses of human rights and violations of international humanitarian law.” In September 2014, the European Parliament in a similar vein condemned “the atrocities threatened or committed by ISIS against various groups not sharing their convictions, above all religious and ethnic minorities such as Christians, Yezidi, Shabak and Turkmen, but also Shiites and Sunnis,” and denounced “the odious assassination by ISIS of two American journalists and a British aid worker.”
ISIL/ISIS was proclaimed a terrorist organization by the United States (on December 17, 2004), Australia (on March 2, 2005), Canada (on August 20, 2012), Turkey (in October 2013), Saudi Arabia (on March 7, 2014), the United Kingdom (in June 2014), Indonesia (on August 1, 2014), the United Arab Emirates (on August 20, 2014), Israel (on September 3, 2014), Malaysia (on September 24, 2014), Egypt (on November 30, 2014), India (on December 16, 2014), the Russian Federation (on December 29, 2014), Kyrgyzstan (on March 16, 2015), and Pakistan (on August 29, 2015). ISIS is furthermore banned in Germany (since September 2014) and Switzerland (since October 2014). Switzerland’s ban prohibits propaganda in favor of, and financial support for, ISIS in Switzerland. The terrorist acts of ISIS in Iraq were also condemned by Syria, while Jordan in February 2015 made its condemnation of the organization known by launching airstrikes against ISIS targets.
It is perhaps important to note at the outset that although the militant group, absent al-Qaeda support, changed its name from ISIL to ISIS in June 2014, President Barack Obama and other spokespersons of the U.S. Department of State persist in referring to the group as ISIL. This is probably not due to lack of information on the part of spokespersons of the American government, but it can most likely be attributed to a special problem of the Obama Administration, namely that it has not received congressional approval for the airstrikes in the Middle East but relied on the congressional approval of the War on Terror that was sparked by the terrorist attacks of September 11th, which were orchestrated by al-Qaeda. Relying on congressional approval for the War on Terror and consequently referring to ISIL instead of ISIS will be alluded to later on in this Article.
II. Jus ad Bellum
“The history of humankind has been the history of wars.” This assessment of human history by Benjamin Ferencz, Chief Prosecutor in the Einsatzgruppen Case at Nuremberg in which twenty-two high-ranking Nazi officials were prosecuted and convicted for slaughtering more than a million innocent men, women, and children, can unfortunately not be faulted. As noted by Theodor Meron in his analysis of the (futile) attempts to apply human rights principles in situations of armed conflict: “To genuinely humanize humanitarian law, it would be necessary to put an end to all kinds of armed conflicts. But wars have been a part of the human condition since the struggle between Cain and Abel, and regrettably they are likely to remain so.” In more recent times, however, international humanitarian law was set on a course to limit the use of armed force as a means of settling international disputes as much as possible.
A. Limitation of the Use of Armed Force
Following World War I, the French Minister of Foreign Affairs, Aristide Briand, took the initiative in proposing a bilateral agreement between the United States and France to outlaw war between those two countries. U.S. President Calvin Coolidge and Secretary of State Frank B. Kellogg proposed instead that France and the United States take the lead in inviting all nations to join them in outlawing war between States. It was understood that the pact would only apply to acts of aggression and not to military actions taken in self-defense. On August 27, 1928, fifteen nations signed the Kellogg-Briand Pact, also known as the Pact of Paris. Besides France and the United States, the signatory States included Australia, Belgium, Canada, Czechoslovakia, Germany, India, Ireland, Italy, Japan, New Zealand, Poland, South Africa, and the United Kingdom. The signatories condemned recourse to war for the solution of international controversies and undertook to settle all disputes, without exception, by pacific means.
Frank Kellogg received the Nobel Peace Prize in 1929 for his contribution to the signing of the Pact of Paris. However, most regrettably, the pact did not achieve its noble objective. The 1931 Japanese invasion of Manchuria in mainland China denoted the first crack in the wall of peace, and the aggressive expansionism of Germany and Italy within that same time frame eventually culminated in World War II (1939-1945). Following World War II, renewed efforts emerged to maintain peace and security in the world.
The United Nations was founded in 1945 “to save succeeding generations from the scourge of war” and to that end, to unite the strength of its Members “to maintain international peace and security” and to ensure “that armed force shall not be used, save in the common interest.” It called on Member States to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” It recorded in Article 2, paragraph 4 of the U.N. Charter a commitment of all Member States to “refrain . . . 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.” Those purposes include a resolve
[t]o maintain international peace and security, and to that end: to take effective collective measures . . . for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means . . . adjustment or settlement of international disputes or situations which might lead to a breach of the peace.
In terms of the U.N. Charter, “parties to a dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”
The U.N. General Assembly and the Security Council have continuously reiterated the commitment of Member States to international peace and security. The U.N. Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations of 1970 recalled “the duty of States to refrain in their international relations from military, political, economic or any other form of coercion aimed against the political independence or territorial integrity of any State.” In 1999, the General Assembly adopted a Declaration on a Culture of Peace, which was to be achieved through education, sustainable economic and social development, the promotion of human rights and securing equality between women and men, fostering democratic principles and practices, advancing understanding, tolerance, and solidarity in society, supporting the free flow of information and knowledge, and general and complete disarmament. In 2004, the General Assembly published a report on challenges that confronted the international community in creating a more secure world, and it listed certain strategies for meeting those challenges, including better international regulatory frameworks and norms (mentioning by name the International Criminal Court as a strategy that might deter parties from committing crimes against humanity and war crimes), better information and analysis to facilitate early-warning indications of threatening conditions, preventive diplomacy and mediation, and early (preventive) deployment of peacekeeping forces. Earlier, the Security Council proclaimed the year 2000 to be the “International Year for the Culture of Peace.” The Security Council added its voice to the pursuit of peace by calling on U.N. Member States to support and develop a conflict prevention strategy, instructing the Secretary-General to convey to the Council his assessment of threats to international peace and security, and to keep potential conflict situations under close review so as to take early and effective action to prevent armed conflict. The Security Council reminded Member States of their obligation to settle their disputes by peaceful means.
It is fair to conclude that, “in the present development stage of international law, the prohibition to use force has established itself as a generally recognized customary and binding principle.” The U.N. Charter authorizes armed intervention in only two instances:
(1) Collective armed intervention under auspices of the Security Council as a means of putting an end to a situation that constitutes a threat to the peace, a breach of the peace or an act of aggression; and
(2) Individual or collective self-defense in cases where an armed attack occurred against a Member State of the United Nations.
This raises the question whether armed interventions other than those mentioned in the U.N. Charter are still, or have become, lawful within the confines of contemporary international humanitarian law.
B. Authorization of Armed Interventions Not Mentioned in the U.N. Charter
Convincing arguments can be presented for concluding that the U.N. Charter does not deal comprehensively with all instances of lawful armed interventions. The United Nations itself has gone beyond its own Charter provisions by affording legitimacy to instances of armed intervention not mentioned in the Charter, such as (a) affording to the General Assembly the competence to authorize armed interventions in very special circumstances, and (b) supporting the legitimacy of wars of liberation.
1. The Uniting for Peace Resolution
In 1950, when the Cold War was still in its infancy, the General Assembly adopted the Uniting for Peace Resolution, which provides:
[I]f the Security Council, because of lack of unanimity of the Permanent Members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or an act of aggression the use of armed force when necessary, to maintain or restore international peace and security.
The Resolution was adopted as a result of Russian responses to the Resolution of the Security Council that authorized an armed intervention to resolve the Korean crisis and culminated in the Korean War (1950-1953). The Resolution was adopted in the absence of a representative of the Union of Soviet Socialist Republics (Soviet Union), which boycotted the meeting of the Security Council to protest allowing Taiwan to represent China within the U.N.’s structures. In August 1950, after the return of the Soviet representative to the Security Council, the Soviet Union exercised its veto power to impede all further resolutions. Western countries, under the leadership of the United States, thereupon initiated the Uniting for Peace Resolution against the resistance of the Eastern Bloc to permit the General Assembly to resolve situations constituting “a threat to the peace, [a] breach of the peace, or [an] act of aggression.” Thus far, the Resolution has been invoked on ten occasions, mostly by the Security Council, to authorize “Emergency Special Sessions” of the General Assembly to deal with a variety of crisis situations. Although the authorization of armed force is legalized under the Uniting for Peace Resolution in cases of a breach of the peace or an act of aggression (not if the situation merely constitutes a threat to the peace), this power has thus far not been used by the General Assembly.
2. Wars of Liberation
Wars of liberation are confined to an armed struggle against colonial rule, foreign domination, and racist regimes, and the legitimacy of these (and only these) instances of militant action have also been endorsed by the General Assembly. The General Assembly was quite explicit in saying that the “legitimate struggle” includes the armed struggle of liberation movements. When Resolution 3314 (XXIX) of December 14, 1974 was adopted to define acts of aggression as guidance for the Security Council when called upon to exercise its Chapter VII powers, the General Assembly took special precautions not to adversely implicate wars of liberation. Article 7 of Resolution 3314 (XXIX) thus provides:
Nothing in this definition . . . could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter [of the United Nations], of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration.
The Resolutions of the General Assembly could find support in Protocol I to the Geneva Conventions of August 12, 1949, which proclaimed that wars of liberation―“armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination”―will be governed by the rules of international humanitarian law applying to international armed conflicts.
C. Other Instances of Armed Intervention Authorized by Contemporary International Humanitarian Law
The question whether the U.N. Charter provisions deal comprehensively with legally permissible armed interventions has mostly been debated in the context of (a) pre-emptive self-defense action, and (b) humanitarian intervention.
1. Pre-Emptive Self-Defense Action
Article 51 of the U.N. Charter provides in part: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”
Since Article 51 confines the right of Member States of the United Nations to take individual or collective self-defense action “if an armed attack occurs,” the question whether this provision precludes pre-emptive self-defense is in itself problematic. It stands to reason, though, that a State need not wait for the other side to strike the first blow if it is abundantly clear and absolutely certain that an armed attack is imminent. As noted by Sir Humphrey Waldock: “Where there is convincing evidence not merely of threats and potential danger but of an attack being actually mounted, then an armed attack may be said to have begun to occur, though it has not passed the frontier.”
Some analysts maintain that the reference in Article 51 to “the inherent right of individual or collective self-defense” could arguably include pre-emptive action. The inherent right to self-defense includes more than merely taking defensive action after an attack has occurred; reference to individual or collective self-defense “if an attack occurs” was intended “to list [merely] one situation in which a state could clearly exercise that right.”
The General Assembly of the United Nations endorsed a right to pre-emptive self-defense action, proclaiming, “a threatened State, according to established international law, can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate.” In its National Security Strategy of 2002, the United States also endorsed the right to pre-emptive self-defense action:
The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater the risk of inaction―and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.
It should be noted, though, that whereas the United States used the concepts of “pre-emptive” and “anticipatory” action interchangeably, the General Assembly made a distinction, defining the former concept as action “against an imminent or proximate threat” and the latter as action “against a non-imminent or non-proximate one.” Even though it could be argued “that the potential harm from some threats (e.g., terrorist armed with a nuclear weapon) is so great that one simply cannot risk waiting until they become imminent, and that less harm may be done (e.g., avoiding a nuclear exchange or radioactive fallout from a reactor destruction) by acting earlier,” international law requires “that if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if it chooses to.” And what if the Security Council, for whatever reason, should not authorize anticipatory defensive action? Then, said the General Assembly, “there will be, by definition, time to pursue other strategies, including persuasion, negotiation, deterrence and containment―and to visit again the military option.”
It is commonly accepted that pre-emptive self-defense must be confined to the circumstances specified by former U.S. Secretary of State Daniel Webster in a diplomatic communiqué to his British counterpart, Lord Ashburton, following the Caroline affair which resulted from the following fact scenario. During the nineteenth century, a group of rebels from Upper Canada (currently Ontario) revolted against British colonial rule.
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