The (Legal) Battle against the Islamic State

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In the article below, three IDI experts on terrorism and democracy discuss the key points of the UN Security Council resolution that condemns the abuse of human rights by the Islamic State, and note two points that they believe are missing from the resolution.

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In our previous article on the Islamic State (ISIS), we addressed the legal status of the Muslim caliphate that this terror organization has established in the territories under its control and concluded that it is still early to determine whether the caliphate meets the conditions for a State under international law. Regarding the military action taken by the international community in response to the actions of the Islamic State, we explained that from an institutional perspective, any international action should be backed by an invitation either from the State where the action is being conducted or by a resolution of the UN Security Council, which is entrusted with maintaining world peace and security.

In the short time since the publication of our article, there have been additional military developments, as many States decided to launch air strikes against the activists and facilities of the Islamic State and these attacks succeeded in stopping the advance of the Islamic State on some fronts. In response to the attacks, the Islamic State released a fourth video clip showing the execution of Alan Henning, a British aid worker.
Recently, there has been a development in another arena:  the legal one. This development resulted from a resolution by the UN Security Council on the fight against terrorism in general and against the Islamic State in particular. In this article, we will discuss the key points of that resolution and will note two important aspects we believe are missing in the resolution.

Resolution 2170 (2014) of the UN Security Council, which condemns "gross, systematic, and widespread abuse" of human rights by the Islamic State, was adopted under Chapter VII of the UN Charter, which gives  the Security Council broad operative authority including the authority to use force when there is a threat to international peace and security. Despite the fact that the use of force against the Islamic State is intensifying, the Security Council resolution does not address the issue at all; rather, it focuses on restricting the activists of the organization and limiting the ability of new activists to join its ranks.

The resolution addresses the fight against international terrorism in general, and therefore cites other Security Council resolutions on combating terrorism that were adopted in the past and that defined mechanisms for fighting terrorism, such as the imposition of economic sanctions. The resolution also reiterates that terrorism is one of the most serious threats to international peace and security. It addresses the negative impact of the terrorist organizations operating in Iraq and Syria in general and of the Islamic State organization in particular, citing the need to protect civilian populations in such situations. The resolution also authorizes financial sanctions against terror organizations and their activists and imposes travel restrictions on six Islamic State members.

The resolution centers on the need to contend with “foreign fighters”— that is, people who travel to somewhere other than their state of nationality or place of residence, in order to plan or carry out terrorist activity or to assist or participate in such activity. The resolution also considers people who travel in order to undergo training for future terrorist activity to be "foreign fighters."

The resolution denounces the participation of foreign fighters in the Islamic State and other organizations, noting that this exacerbates the armed struggle being waged in Iraq and Syria, and calls upon UN member States to take steps to stem the increasing flow of foreign fighters. It also calls upon UN member States to prosecute people involved in the activities of the Islamic State or other terrorist organizations such as al-Qaida. In recent years, this call has appeared repeatedly in UN Security Council resolutions related to the war on terrorism, along with other measures such as travel restrictions and the freezing of assets.

On the practical level, the prosecution of Islamic State activists in the courts of UN member States can be conducted in the framework of internal criminal proceedings in States that have judicial authority to prosecute such activists; for example, in the terrorist’s State of nationality. States can also initiate criminal proceedings against foreign citizens under the principle of universal jurisdiction, which enables states to prosecute individuals for international crimes that are committed anywhere in the world, regardless of the existence of traditional avenues of jurisdiction in criminal law (such territorial or personal jurisdiction).
In addition, the resolution tasks UN member States with working to prevent ideological extremism that leads young people to join the ranks of terrorist organizations. To achieve this goal, it is essential to work with the local communities and their leadership, to educate against incitement, and to confront the challenges posed by the Internet, including the dissemination of ideology via social networks and websites.

Finally, it should be noted that the need to adhere to the rules of international law in the fight against terrorism is reiterated throughout the resolution, as it was in previous resolutions on the war on terror adopted by the Security Council. The resolution emphasizes that actions taken must correlate with international law and especially international human rights law, refugee law, and international humanitarian law.

The UN Security Council resolution is an important step in the international community's creation of a uniform and unified front against terrorism in general and against the Islamic State in particular. However, the resolution neglected to address two important issues in this fight.

  1. The Use of Military Force Against the Islamic State

    When the UN Security Council resolution was adopted, several States—including permanent members of the Security Council, such as the U.S. and the United Kingdom—had already exercised military force against the Islamic State. This makes the Security Council’s failure to address the question of the use of military force against the Islamic State problematic. While Iraq invited international assistance against the Islamic State, which means that the military action in its territory can be justified legally, the military action against the Islamic State recently expanded into Syrian territory and Syria, to the best of our knowledge, has not requested international assistance. As a result, military force is being used in Syrian territory without Syria's clear approval.

    It is possible to try to justify the attacks against the Islamic State either under the doctrine of humanitarian intervention, which aims to end severe and systematic violations of international human rights or international humanitarian law, or under the doctrine of the responsibility to protect, which was recognized in 2005 by the UN General Assembly. Syria’s weak response to the military strikes in its territory may be seen as indicating quiet consent to the offensive. However, these justifications are controversial, both legally and factually. Had the Security Council recognized the need to use military force and the legality of using force, and had it perhaps even ordered the use of military force against the Islamic State, it would have strengthened the international legitimacy of the action and provided suitable legal justification for the attacks.

    At this stage, there is substantial legitimacy for military action against the Islamic State. This legitimacy, however, could weaken in the future. Indeed, some criticism of the legal justification for the attacks against the Islamic State has already been voiced in the United States. President Obama has promised in the past to limit the authority to intervene militarily that was granted by a congressional resolution entitled Authorization for the Use of Military Force in September 2001, in the wake of al-Qaida’s combined attack against the United States; however, he decided to rely on precisely the same congressional resolution in carrying out attacks against the Islamic State. According to the American administration, there is a sufficient connection between the Islamic State and al-Qaida to justify applying the congressional resolution authorizing the use of force against al-Qaida to the Islamic State. Some commentators have criticized Obama for this, arguing that it is an unjustified expansion of the authority to use force that contradicts his earlier promise.

    Moreover, if attacks by the international coalition against the Islamic State cause substantial injury to civilian non-combatants or create other humanitarian concerns in the future, this would diminish the legitimacy of the military action. Therefore, when such issues arise, it is likely that the legal basis for using military force against the Islamic State will be called into question.

    The Security Council’s support for military action against the Islamic State is thus of great importance. Its decision to ignore this issue—apparently due to political disagreements among its permanent members—is regretful. Although the fact that the Security Council did not adopt a resolution on this matter does not block other possible action, it does weaken the legitimacy of current and future military action against the Islamic State.

  2. Bringing Activists of the Islamic State to Trial in the International Criminal Court

    The Security Council’s decision also failed to address the possibility of bringing active members of the Islamic State and other terrorist organizations to trial at the International Criminal Court in The Hague (hereinafter: the ICC). In a previous article on the IDI Hebrew website, we discussed whether it is possible to use the ICC to indict terrorists, in accordance with its judicial authority and the crimes that fall within its purview (war crimes, crimes against humanity, and genocide). We concluded that it is definitely possible to prosecute terrorists in the ICC, especially if the cases involve war crimes and crimes against humanity. Prosecuting terrorists in the ICC would have several advantages. In particular, such prosecution would convey an important message: the international community is united in its effort to contend with the phenomenon of terrorism.

    Syria and Iraq are not parties to the Rome Statute of the International Criminal Court. Accordingly, the ICC has no judicial authority regarding the activities of the Islamic State. The Court would acquire such authority, however, if the Security Council were to refer a specific incident in which alleged crimes were committed to the Court’s prosecutor for investigation. This has been done in the past regarding crimes committed in Sudan and Libya. Thus, the Security Council resolution could have taken an additional step against Islamic State terrorists by referring specific incidents to the ICC for prosecution, but it chose not to.

    It should be noted that the International Criminal Court is only authorized to discuss the Islamic State’s activities if additional conditions exist. For example, there must be no other state with the judicial authority, interest, and capability of prosecuting a particular person. Similarly, the crimes involved must be the most egregious crimes facing the international community. In the case of the Islamic State, however, it seems that it would not be difficult to determine that the required conditions for prosecution in the ICC indeed exist.

    On the substantive level as well, in many of the actions of the Islamic State it is possible to identify international crimes that fall within the judicial authority of the International Criminal Court. The Islamic State’s methods of fighting, which include executions of prisoners and civilians held hostage by the organization, involve severe harm to human life and property. The organization has also been accused of murder, abduction, expulsion, rape, and violation of other human rights of the Yazdi minority in Iraq and other groups. These actions constitute war crimes, since they are taking place within the framework of an armed conflict. These actions are also considered crimes again humanity according to the ICC’s Rome Statute, because they are being conducted as part of a broad and systematic assault against a civilian population. If these actions are accompanied by an intention to destroy an ethnic or religious group, they can even be considered to be genocide. In light of this, it seems that there was just cause to weigh the possibility of referring the conflict to the ICC prosecutor for investigation.

There is no doubt that the actions taken by a growing number of States against the Islamic State may be justified by the need to reduce the scope of the atrocities committed by this group. The fact that the Security Council convened and adopted a resolution seeking to thwart the Islamic State is very important, as it creates a legal and political basis that will help in the struggle against this terror organization.

However, the Security Council did not contend with one of the important questions in the fight against the Islamic State: the legal basis of the military attacks against the organization. These attacks are taking place in the territory of two sovereign states, and there is considerable doubt regarding the consent of one of those two states to the military activity taking place in its territory. It is therefore regrettable that the Security Council did not take advantage of the opportunity to build the necessary legal foundation that would contribute to the legitimacy of this activity.

Similarly, the Security Council instructed UN member States to prosecute foreign fighters who are participating in the activities of terrorist organizations in general and the Islamic State in particular. At the same time, however, it refrained from referring the conflict to the International Criminal Court for investigation. Referring the conflict to the ICC is important because it would create an additional channel for indicting the activists of the Islamic State, while conveying the message that the international community is united in its efforts to fight terrorism in general and the terrorism of the Islamic State in particular.

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.

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.