What criteria must the caliphate of the Islamic State meet in order to be considered a State under international law? This article presents an analysis of this question by IDI experts on terrorism and democracy.
The Islamic State is a terrorist organization that developed under the auspices of al-Qaida. It is also know by the name ISIS (an acronym for “The Islamic State in Iraq and Greater Syria”), ISIL (an acronym for “The Islamic State in Iraq and the Levant"), and Daash (an abbreviation of the organization's name in Arabic, ad-dawla al-islamiyya fil-Iraq wa-sham). The Islamic State has succeeded in taking over large swaths of territory in Iraq and Syria and has declared a Muslim caliphate in the conquered territory, employing methods of fighting so brutal that even al-Qaida denounced the organization. As it enjoys new military successes and gains more supporters, the threat it poses to the Middle East region grows stronger with each passing day.
The Islamic State's methods of fighting involve infliction of severe harm to human life, physical integrity, and property resulting in systematic violations of human rights. This raises serious concerns within the international community and calls for a strong reaction against the Islamic State. About a month ago, the organization captured media headlines when it was accused of committing acts of murder, abduction, expulsion, rape, and other human rights violations against the Yazidi minority in Iraq. The plight of the Yazidi, who found temporary refuge on a mountaintop in the Sinjar region, prompted the United States to attack strategic targets of the organization. These attacks were also intended to prevent the organization's advance into additional areas in Iraq in which American citizens are present.
In response to the American attacks, some four weeks ago, the Islamic State released a video clip documenting the beheading of American journalist James Foley. In the last moments before his execution, Foley was forced to denounce the U.S. actions and to even accuse his brother, a pilot in the U.S. Army, of being directly responsible for his impending death.
The video also showed Steven Sotloff, another journalist held by the organization, and sent a warning to U.S. President Barack Obama that continued action against the Islamic State would seal the fate of other captive journalists and other American citizens throughout the world.
After continued attacks by the U.S. against Islamic State militants, an additional video was released, this time documenting the beheading of Sotloff. Just before his brutal murder, Sotloff too was forced to denounce the U.S. action against the Islamic State. In the video, the organization again showed another captive, this time a British citizen, David Haines, as a warning to other States against joining the U.S. in its fight against the organization.
Last week, the Islamic State released a third video, in which David Haines was executed, following Britain's decision to cooperate militarily with the United States. This time, Haines was forced to make accusations against Prime Minister David Cameron prior to being murdered, and the video showed another British captive held by the organization.
The activities of the Islamic State have taken campaigns of terror to new heights. Although the Islamic State has succeeded in generating headlines on a daily basis, it is still unclear how it will continue to evolve and how the international community will respond to its activities. Against this background, many questions have been raised concerning the organization's activities and its status. In this article, we will seek to address a basic legal question: What criteria must the caliphates of the Islamic State meet in order to be considered a State under international law, and why could its legal categorization as a State have a meaningful impact on the policy choice available to the international community in its fight against the Islamic State?
In recent years, international law has developed considerably and now includes broad recognition of the legal rights and duties of individuals, non-State actors, and other entities. Nonetheless, as in the past, States remain the most important actors in international law today, endowed with broader sets of legal rights and obligations that those available to any other international legal actor. Thus, discussing the question of whether an entity is considered a State under international law still has enormous legal significance.
The definition of what constitutes a State in international law has been influenced over the years by important developments, such as the decolonization of States in Latin America, Africa, Asia, and the Middle East, and the development of the right to self-determination. Other important developments include the dissolution of State blocs (such as the Soviet Union) and States (such as Yugoslavia), attempts to annex territories (such as Russia's activity in the Crimean Peninsula and in eastern Ukraine), and the need to cope with unique (sui generis) cases, such as the Palestinian- controlled territories. These developments have triggered extensive academic debate on how to define a State in international law, and almost every new development has led to new proposals for addressing the issue in a unique manner.
In this short article, we will focus on 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, and d) a capacity to enter into relations with other States. Beyond that, we will address two additional requirements that are customarily raised in relation to an entity seeking recognition as a State by the international community: independence and legitimacy. We will examine the possibility that these criteria can be fulfilled in the case of the Islamic State.
1. A Permanent Population
The requirement of a permanent population stems from the fact that a State is a means of realizing the shared aspirations of groups that have united due to cultural, religious, historical or other characteristics they have in common. There is no threshold of a minimum number of nationals necessary for a State. All that is necessary is a permanent population that identifies itself as citizens of the nation that makes up the State. This requirement is fulfilled when the population ties its fate to the place in which the entity has been established and exercises its power of governance.
It is still too early to determine whether the caliphate established by the Islamic State meets this requirement. After all, the citizens of Iraq and Syria who are now in territory controlled by the caliphate did not choose to tie their fate to that of the Islamic State; rather, they found themselves in their current situation because of the Islamic State's journey of conquest. Moreover, the citizens of Iraq and Syria who are under the organization's rule cannot oppose the organization without risking their lives; consequently, it is impossible to say that they chose to be citizens of the caliphate and that they are interested in realizing their shared aspirations within that State.
Another possibility that could result in the population requirement being met in the future is if the thousands of members of the organization, who identify completely with the caliphate, were to be considered the citizens of the new State. The depth of the identification of members with the caliphate can be seen both from symbolic acts that they have performed, such as burning the passports of their States of origin, and from more concrete actions, ranging from active participation in activities of the Islamic State through sacrificing their lives for the common cause. However, this possibility must be qualified because at this stage, the extent to which the members of the organization have chosen to permanently tie their fate to the fate of the territory under their control is unclear.
2. A Defined Territory
The interpretation of "defined territory" under international law is also quite flexible. The principal requirement of this condition is that the entity must exercise effective control over a particular piece of land. There is no minimum requirement for scope of territory, as we can learn from the fact that States with very small territory, such as Monaco, have been recognized as States. Permanent borders are also not necessary in order for the existence of a territory to be recognized; for example, although the borders of the State of Israel were not explicitly recognized when the State was established, and some of them remain in dispute until this very day, this does not detract from Israel's legal status as a State under international law.
In the case of the caliphate established by the Islamic State, it is clear that the organization is exercising control over a broad swath of land, which is likely to continue growing. However, if the boundaries of territory under the caliphate's control were to shrink or become unstable, this would diminish the chances that this requirement will be fulfilled. More importantly, the manner in which the Islamic State acquires territory—by use of force and gross violations of international law—is problematic with regard to the question of the State's legitimacy, as will be discussed below.
3. An Effective Government
While an effective government is required for State status, international law does not dictate a preferred form of governance. That is, both a democratic government and a dictatorial government can equally meet the requirement of effective government. From the perspective of international law, as long as the ruling entity exercises governmental authority within the territory, e.g., by collecting taxes and regulating the judicial system, this requirement is met.
The Islamic State uses tough and brutal means in order to establish its governmental authority in the territory it controls. These include beheading opponents and using extreme violence against those who refuse to accept the Islamic faith. The caliphate exercises governmental authority over varied facets of life in the territory it controls, ranging from regulating local businesses to impacting personal status. In addition, there are reports that in certain cases, the organization allows non-Muslims living under its rule to pay a poll tax (in Arabic: jizya) that enables them to continue living in the caliphate, albeit as second-rate citizens. It is reasonable to assume that the organization also collects other taxes from the general population.
Based on the above, it seems that the caliphate indeed exercises governmental authority in the regions under its control. If there are areas of life in which the Islamic State has yet to impose its authority, it is reasonable to assume that this will happen in the near future. While there are military forces that are fighting against the Islamic State for control of the territory, it seems that these forces are concentrating on the hostilities at the moment and are not exercising competing governmental authority in areas controlled by the Islamic State. The requirement of effective government may be even more clearly fulfilled in the near future if the caliphate succeeds in exercising governmental authority in a consistent and stable manner.
4. Capacity to Engage in Relations with Other States
The capacity to engage in relations with other States seems to be the least important requirement of the Montevideo Convention. This criterion pertains to the entity's ability to conduct foreign relations; it does not necessarily mean that other States agree to maintain diplomatic, economic, or other relations with it. In other words, a State that is not recognized by most States in the world can still theoretically meet this criterion. History has shown, however, that when a State is not recognized by most countries, such as in the case of Somaliland, the existence of the State becomes largely meaningless.
In the current context, it is not clear whether or not the caliphate seeks to conduct relations with other States. Similarly, it seems that the States of the world are not interested in recognizing the caliphate or in conducting any sort of relations with it. Nonetheless, in light of the considerable abilities the Islamic State has demonstrated in a number of areas, including military capability and measures designed to influence public relations, it appears that if it were to decide to do so, it would be able to establish relations that would be sufficient to meet this condition.
5. The Independence of the Islamic State
In addition to the four requirements of the Montevideo Convention discussed above, some international lawyers add another criterion: whether the State is independent. The requirement of independence refers to the State's ability to operate as a State within the international community. This independence could be, for example, economic or political.
While it has been argued that the Islamic State receives funding from certain States, its operational success is strengthening its economic independence with each passing day. Members of the organization, inter alia, plunder territories they invade, appropriating funds from banks and valuables from privately owned safe deposit boxes. The organization has also taken over oil fields in Iraq and Syria, and generates substantial revenue from the sale of natural resources. With regard to political dependence, it seems that the Islamic State does not see itself as subordinate to any other State, and that other extremist Sunni organizations, such as al-Qaida and Hamas, see it as a distinct entity that should be denounced.
The last requirement found in international law literature that we will address, which is one of the most important aspects of our discussion, is the requirement of legitimacy. In the past, especially in the decolonization of African States, entities were created that did not completely fulfill the conditions stipulated above, but the fact that they received international legitimacy and recognition from other States served as the basis for their legal status as States. On the other hand, there are entities such as Somaliland, which meet the criteria discussed above in a more substantial way, but have not received legitimacy since they were not established in accordance with international law principles, and have not been recognized by other States. As a result, such "illegitimate entities" cannot function as States in the international community by, for example, joining the United Nations.
Entities receive legitimacy when they are regarded as a form of realization of the right to self-determination of the people in the territory they control. For example, it has been claimed by some rebel groups that people in a particular region have the right to secede from a sovereign State in order to realize their right to self-determination. However, since the sovereignty of the State is a fundamental principle and cornerstone of international law, the ability of regional groups to realize the right to self-determination is generally limited by the overriding right of existing States to preserve their territorial integrity.
In the case at hand, we must determine whether the caliphate is a legitimate realization of a people's right to secede from an existing State, in particular from parts of Iraq and Syria. Generally speaking, secession from an existing State violates the sovereignty of that State, but in some cases it can be justified. Examples of such cases include situations in which a people is subject to colonial rule, cases in which there is a racist regime, or cases in which a people is suffering from severe and ongoing violations of basic human rights. There are also those who believe that secession from a State can be legitimate when the seceding group is excluded from participating in the exercise of national government and does not have access to means that will enable it to develop politically, economically, socially, or culturally.
In the case of the caliphate, it cannot be argued that the establishment of the State was based on one of the scenarios that would justify the secession of a group from a region that is under the sovereignty of Iraq or Syria. In fact, it seems that it is actually the new regime that is systematically violating the human rights of the people in the territory, including the right to life, the right to liberty, freedom of religion, and freedom of expression.
Another question related to the caliphate's lack of legitimacy is the way in which the Islamic State has established its control. Throughout history, States acquired territory through the use of force. A substantial part of the territory of the States of the world has been acquired in this way. Nonetheless, since the establishment of the United Nations, which enshrined a prohibition against the use of force between States in its charter, it has become customary to say that territorial acquisition is inadmissible through the threat or use of force. This rule has been invoked many times, for example in UN Security Council Resolution 242, which was adopted after Israel's Six Day War. This also clarified that sovereignty cannot be extended to territories conquered in war.
The caliphate of the Islamic State controls territory that was acquired using brutal force that is almost indescribable. Perhaps the international community would view the situation differently if the Islamic State had established its control via legitimate means, such as elections. However, the activity of the Islamic State is characterized by violations of international law, and specifically war crimes and crimes against humanity. Some argue that the organization's actions against the Yazidi minority constitute genocide or an attempt to commit genocide. In addition, the territories under the Islamic State's control are part of the sovereign territory of Iraq and of Syria; and so long as these States have not formally disintegrated or surrendered sovereignty over parts of their territory through one of the methods accepted under international law (such as an agreement), their right to sovereign integrity remains in force.
Accordingly, at this stage, the caliphate does not have international legitimacy and is not recognized by the States of the world. Even if the caliphate were to meet the aforementioned condition, it will find it very difficult to function as a State in the international community. A change in this situation could occur if Iraq or Syria officially dissolve, as was the case in the former Yugoslavia. The events in Iraq and Syria can actually be seen as the start of a process of dissolution; at the current stage, however, it seems that the international community is not interested in encouraging or recognizing such a process.
It is too early to declare that the caliphate established by the Islamic State meets the requirements of a State under international law. 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.
At present, there is no uniform and unified international response to the Islamic State. Clearly, the right to sovereignty, and probably also the right to self-defense, entitles Iraq and Syria to take military action against the organization. In addition, it appears that the United States is relying on Iraq's request for assistance in military activity aimed at reclaiming control of the territories captured by the Islamic State. The international community has refrained so far, however, from taking practical action against the atrocities that are being committed by the Islamic State.
On the practical level, since the Islamic State's actions violate international law, other States should not cooperate with the organization in a way that would legitimize its wrongdoings. Other States could justify military action against the Islamic State under the doctrine of humanitarian intervention, which seeks to stop severe and systematic violations of human rights or humanitarian law; this was the justification invoked by NATO for its military intervention in the former Yugoslavia. Further justification for military action against the Islamic State can be drawn from the "responsibility to protect" doctrine, which was recognized by the UN General Assembly in 2005 and was used to justify the international military intervention in Libya during the revolution against Qaddafi's regime. At the moment, it does not appear that there is a State or group of States that seek to base their action on this specific doctrine. Perhaps the Islamic State's advancement toward Jordan, Lebanon, or other States will lead to a change in this regard.
From an institutional perspective, it seems that the correct and proper course of action would be for any international intervention to be backed by a resolution of the UN Security Council, which is entrusted with maintaining peace and security in the world. The Security Council is authorized to determine that the Islamic State is a threat to peace, and, consequently, to impose economic sanctions on the organization and even approve the use of military force against the Islamic State in the name of the international community. Against the background of the severe damage to life and property, and together with the organization's growing military strength due to its achievements and the swelling ranks of those who wish to join it, it seems that the threat posed by the Islamic State transcends borders, religions, and cultures, and is becoming more serious every day. Therefore, decisive and united international response should be taken against it.
Prof. Yuval Shany is an IDI Senior Fellow and the Hersch Lauterpacht Chair in International Law at the Law Faculty of the Hebrew University of Jerusalem.
Prof. Amichai Cohen is a Research Fellow in IDI’s National Security and Democracy project, and is the Dean of the Faculty of Law at the Ono Academic College, where he is a Professor of International Law.
Adv. Tal Mimran is conducting research as part of IDI's National Security and Democracy project and is the co-author of IDI's Hebrew Terrorism and Democracy Newsletter.