The operations of the Islamic State and the relevance of international humanitarian law.

• Author: Bott, Gregory

Abstract

A number of scholars have suggested the existence of a predetermined set of laws to which terrorism, terrorist groups, and the members of such groups are to be subjected. Taking a critical approach to the literature, I contend that such an overarching predetermination oversimplifies the phenomenon, often resulting in an inaccurate application of the law. The determination of whether a terrorist group is subject to international humanitarian law, non-international humanitarian law, or either domestic or international criminal law is more complex than is typically suggested in the literature. Rather, as terrorism is a social phenomenon, not only is it difficult to define, the laws of which are to be applied must be determined on a case-by-case basis. In order to demonstrate such complexity, I draw upon a contemporary case study--the conflict against the Islamic State. Drawing on a number of recent activities by the Islamic State, I demonstrate whether such acts can constitute an armed conflict, when such conflicts are of an international nature, what violations of law have been committed, and what rights and obligations members of terrorist groups must be afforded. The results of this analysis demonstrate that no such sweeping predeterminations--as often suggested in the literature--can be made, but rather that 'it depends'.

I Introduction

In this manuscript, I examine the operations of terrorist groups, and the responses of the international community, through the lens of international humanitarian law. International legal scholars have not been successful in defining terrorism. This suggests that an exercise attempting to place terrorism into a neatly delineated framework of international law would be unsuccessful. Terrorism is not a homogeneous phenomena, nor is it a static concept. Even within a particular 'terrorist' organization, motivations, command structure sophistication, access to weaponry, and enemy response--for example--inevitably evolve over time. It is therefore more fruitful to think of terrorism as a 'social phenomenon with many aspects which vary from case to case.' (1)

Despite this, a number of authors have suggested the existence of a predetermined set of laws to which terrorism, terrorist groups, and the members of such groups are to be subjected. I contend that such an overarching predetermination oversimplifies the phenomenon. The determination of whether a terrorist group is subject to international humanitarian law, non-international humanitarian law, or either domestic or international criminal law is more complex than is typically suggested in the literature. Throughout this manuscript, I demonstrate such complexity throughout by highlighting a number of decision points of which armed forces, armed groups, courts, and legal scholars need to be aware. In order to properly assess which laws apply, a number of elements must be considered with regard to the facts of each act of terrorism. Only through a close examination of such facts can a determination be made.

In order to demonstrate the complexity, I draw upon a contemporary case study--the (internationalized armed) conflict against the IS (Islamic State). The activities of the IS have garnered both attention and responses from a number of state and non-state actors. For example, within Syria, the IS faces armed responses from the Assad regime, its invited Russian counterpart, and a number of non-invited state actors. Within Iraq, the IS has faced armed responses from the Iraqi government and the invited coalition forces, most notably the US.

Members of the IS continue to perpetuate countless atrocities. Examples of these activities include the kidnapping of women and children, acts of rape and other sexual violence, and the beheadings of foreign nationals, including journalists. (2) The group has been accused of enslaving women and of killing them for refusing to have sex with its fighters. The group often releases videos online, showing outrages against personal dignity, people being beheadings or burned alive, or soldiers being forced to kneel in front of tribal leaders. The IS has further claimed responsibility for a number of occurrences that have taken place outside of the region, including the direct attacks on civilians in Paris, France, at the end of 2015, and in Brussels, Belgium, this past month. The recent attacks in Paris and Brussels were said to have been carried out in retaliation against the countries that have challenged the IS. (3)

The body of this manuscript is divided into five sections: armed conflict or domestic disobedience, international or non-international armed conflict, violations of customary international humanitarian law, are fighters of the IS combatants, and the treatment of fighters from the IS. In order to delineate the rights and obligations of each party to the conflict, I start by characterizing the conflict. In the first section, I examine whether the IS's activities and the responses of the domestic and international communities constitute an armed conflict. If they do not, then the related activities of the parties are not subject to international humanitarian laws. While I demonstrate that the criteria for an armed conflict are often met, I contend that case studies must be examined on the facts, and disagree with those authors who suggest the pre-determined the classification (either as an armed conflict or a domestic disturbance) of acts by terrorist groups as a general phenomenon.

Whether the actions of the IS constitute an international or non-international armed conflict, and whether such acts are legal under international humanitarian law are addressed in the subsequent sections. Such distinctions are necessary in order to determine which sets of international humanitarian laws apply. Armed with this knowledge, I am able to examine the separate operations of the IS through the lens of customary international humanitarian law. I draw upon a number of recent attacks by the IS in order to demonstrate how each holds up against the relevant international humanitarian laws.

In the latter sections, I examine treaty and customary international humanitarian law to determine when IS fighters are to be classified as combatants, and afforded the related privileges, an when they are to be considered common criminals. In the latter case, such persons are not only subject to domestic (or international) criminal law, but, more importantly, they are to be afforded the rights normally recognised in the domestic judicial systems of liberal democracies, such as that of a fair trial. I am especially critical of legal scholars who attempt to suggest the members of that armed groups engaged in terrorism can never meet the criteria needed to be classified as combatants.

II Delineation of the Type of Conflict

A Armed conflict or domestic disobedience

International humanitarian law applies to armed conflicts--'from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached.' (4) If there is no armed conflict between identifiable parties, then such event is not covered by international humanitarian law. It is not surprising then, that there cannot be a war or an armed conflict, generally speaking, against terrorism. (5) Terrorism is a broad and ill-defined phenomenon. Rather, in order to determine whether an armed conflict exists, one must examine the characteristics of each terrorist group, and the facts of each individual scenario.

In the Tadic case, the judge took a broad definition of armed conflict, noting that it can extend to 'whenever there is a resort to... protracted armed violence between governmental authorities and organized armed groups.' (6) The level of violence involved, which suggests that the threshold is quite low, (7) 'distinguishes situations of serious tension from internal disturbances.' (8) After a review of recent international case law, Sassoli further found that the following factors have been used to determine whether an armed conflict exists: 'intensity, number of active participants, number of victims, duration and protracted character of the violence, organization and discipline of the parties, capacity to respect IHL, collective, open and coordinated character of the hostilities, direct involvement of governmental armed forces (vs. law enforcement agencies) and de facto authority by the non-state actor over potential victims.' (9) In reference to the Tacid case, Akande also noted the following further factors: 'the ability of the group to gain access to weapons, other military equipment, recruits and military training,' (10) among others.

It is therefore clear that a number of the activities coordinated by the IS fulfil the definition of an armed conflict. The IS has expanded its control over large areas of North-Western Iraq and North-Eastern Syria and commands de facto authority over the citizens within such areas. (11) As of mid-2015, the IS controlled 'a territory that includes several major cities and covers a third of each of Iraq and Syria'--a territory with a population of over 4.6 million residents. (12) The 'number of active participants' on the side of the IS has been estimated to be greater than 25,000, (13) with the ability to recruit upward of 31,000. (14)

In this conflict, in which the IS is in direct conflict both with domestic governments (Syrian and Iraq) and international governments (e.g., the US and Russia), the IS 'continues to commit systemic and widespread violence' (15) against the government and also against victims of select ethnic and religious groups. The group's hierarchical structure, populated by former officers of Saddam's military, (16) further meets the 'carefully planned, coordinated and executed' (17) criteria in the nature of its attacks. The group 'fields tanks, heavy artillery, mortars and armed vehicles by the dozen, reconnaissance units...