IS THE ISLAMIC STATE A ‘STATE’ IN INTERNATIONAL LAW?
The twenty-first century will see new difficulties for international law as it struggles to come to terms with how it deals with non-state actors and belligerent states. The issues surrounding the formation of the Islamic State and its declaration of statehood represents a prime example of the challenges of applying old doctrines to an ever-changing world.
‘Though in recent decades a proliferation of non-state actors has changed the landscape of the international community, the state itself remains a critical component of international law and international relations’. [1] This paper seeks to establish the legality, or otherwise, of the declaration of statehood by Islamic State in 2014.
A primer to Islamic State (IS)
The group formerly known as the Islamic State of Iraq and the Levant (‘ISIL’ الدولة الإسلامية في العراق والشام), and previously by other names,[2]conquered swaths of land in central and Northern Iraq. Building on Sunni resentment of Iraq’s Shia government and on instability in Syria, ISIL expanded now controls parts of Syria and Lebanon. Its territories now encompass some six and a half million residents.[3]
In 29 June 2014, after seizing the cities of Mosul and Tikrit, the Islamic State (‘IS’) proclaimed itself a caliphate, and its leader the chief political and religious authority over the ummah (the global community of Muslims). Its declaration stated:
Therefore, the shūrā (consultation) council of the Islamic State […] resolved to announce the establishment of the Islamic khilāfah, the appointment of a khalīfah for the Muslims, and the pledge of allegiance to [...] the slave of Allah, Ibrāhīm Ibn ‘Awwād Ibn Ibrāhīm [...] al-Badrī [...] al-Baghdādī [...]. Thus, he is the imam and khalīfah for the Muslims everywhere. Accordingly, the “Iraq and Shām” in the name of the Islamic State is henceforth removed from all official deliberations and communications, and the official name is the Islamic State from the date of this declaration. [4]
IS is facing military challenges by the Iraqi army, Shia militia groups, Kurdish rebel groups, the Syrian government, the Free Syrian Army. A coalition of 60 nations led by the USA have joined the battle and offered air strike support.[5]
Meanwhile, IS’ state-building project has been characterized ‘more by extreme violence than institution building.’[6] It has violated human rights at every turn and has publicly executed opponents and members of other tribes, such as the Yazidi tribe which was subject to murder, rapes, sex slavery and countless other crimes.
On Statehood
It has been well established that ‘the formation of a state is… a matter of fact and not of law,’[7] but what precisely is the fact upon which statehood turns is debatable.
The declaratory theory, assumes statehood to exist independent of recognition, would considers the underlying fact to be a legal question of fact, that is to say, to what extent does the state meet legal criteria for sovereignty. By this view ‘the criterion for statehood is not legitimacy but effectiveness.’[8] The state does not depend on others for recognition, nor is it required to prove legitimacy.[9] It simply is a state because it acts like one.
The constitutive theory, on the other hand, demands that a state be recognised as such before it has the rights and duties of statehood attached. By this view, the fact is one of recognition and consequently, legitimacy.[10] The question of statehood is resolved by diplomacy rather than facts on the ground, and as such the question of fact is one that is unrelated to law.
Whichever theory is adopted, the exclusive and general characteristics of a state would follow including the competence to perform acts or make treaties; to be exclusively competent to conduct their internal affairs; not be subject to compulsory international processes or jurisdiction; be regarded as an equal state and not in any be derogated from these principles.[11]
In determining whether IS meets the requirement for statehood in international law, the following questions must be answered:
- Does IS meet the Montevideo criteria? Is it independent?
- What effect does failure of recognition by others have on the aspiring state?
- Does the manner of its creation breach peremptory norms and international humanitarian law?
The Montevideo Criteria
The classical legal basis of state recognition and the most widely accepted definition of statehood is the Montevideo Convention of 1933,[12] which formulates duties and rights of sovereign states, stating:
‘[T]he state as an international person should possess the following qualifications:
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with other states'.
It is generally agreed that these conditions represent customary international law.[13] The criteria adopted in 1992 by the Arbitration Commission (the Badinter Commission) established by the European Conference on Yugoslavia are effectively identical defining a state as a ‘community which consists of a territory and a population subject to an organised political authority [and…] characterised by sovereignty.’[14]
A permanent population
The requirement for a population is not burdensome. There is no minimum number of inhabitants necessary but there is a requirement that the population be stable rather than nomadic.[15]
The territories within the control of IS in Syria and Iraq have a population of over 6 million inhabitants. The fact that the population within these boundaries waxes and wanes as IS gains and loses territories in the periphery is unlikely to be considered detrimental to this criterion (see: defined territory for a discussion on this point). However, populations in ISIS franchise provinces (in Libya, Egypt, Pakistan and Nigeria)[16] is unlikely to meet the requisite level of control. Similarly, the IS fighters themselves are likely to be considered nomadic and as such lack permanency.
The fact that the population are citizens of other nations – namely Iraq, Syria and Lebanon - is not terminal to this criterion, though this could depend upon the extent to which the original statehood is extinct of virtue occupation and loss of control. [17]
Accordingly, the requirement for the Islamic State to have a permanent population is likely to be met on a de facto basis until such time the territory is reclaimed by the original sovereign state.
A defined territory
The potential state has to have a defined area, ‘a consistent band of territory which is undeniably controlled’ by the aspiring state.’[18] The requirement of what is meant by effective control is not further defined, and some states, such as the Vatican, Monaco or Bhutan are recognized as states despite being dependent on other states for territorial control.[19]
The lack of definitively established borders is not in and of itself an impediment to statehood.[20] ‘What matters is the presence of a stable community within a certain area, even though its frontiers may be uncertain.’[21] As such, the state of Israel is not hampered by the fact that its final borders are disputed.[22] However, the declaration of a Palestinian state in 1988 cannot be regarded as valid as they did not control any territory claimed.[23]
A state once established does not lose its status by losing territory or effective control over territory unless the state becomes extinct. This could include merger, absorption, annexation (historically) or dismemberment.[24] Syria, Iraq and Lebanon are still sovereigns of the territories occupied by IS despite the fact that they have lost effective control of vast territories. However, the fact that some territories have been controlled by IS for some years may create a de facto situation which is distinguished for its application de juris. This is similar to the status of the Crimean peninsula following its Russian annexation.
Accordingly, this criterion can be said to be met on a de facto basis, though not de juris level. Accordingly, as soon as IS loses territory, the original state reinstitutes its sovereignty as was the case with Czechoslovakia following World War II.[25]
Effective government
This requirement of effective government requires control over population and territory. It is agnostic as to the form of government and will treat a democracy as it does a dictatorship, monarchy or religious state, so long as it exerts authority by collecting taxes and running a judicial system.[26]
In the early days of Finnish independence, the following was said by a Commission of Jurists as to its effective control of Åland Islands, stating:
[F]or a considerable time, the conditions required for the formation of a sovereign State did not exist. In the midst of revolution and anarchy, certain elements essential to the existence of a State, even some elements of fact, were lacking for a fairly considerable period. Political and social life was disorganized; the authorities were not strong enough to assert themselves; civil war was rife… This certainly did not take place until a stable political organization had been created, and until the public authorities had become strong enough to assert themselves throughout the territories of the State without the assistance of foreign troops. [27]
International norms have seen a lower bar set for states in the process of decolonization and likewise for states recognized by many other states, the effectiveness requirement may become less stringent.[28] When the Republic of the Congo (later Zaire; DRC) was given indepednece in 1960, it survived its quest for statehood, and was recognised as a fully-fledged state despite the turmoil state it was in depriving it of an effective government. The bar for effective governments has thus been lowered.[29]
IS, while lacking in democracy, does not lack for structure. The caliph heads the Emirate Council along with two generals, one overseeing Iraqi territories and one overseeing Syrian territories. Reporting to the Emirate Council are twelve provincial governors as well as the heads of the nine councils which cover religion; military operations; borderland security; courts and legal systems; international recruitment; propaganda and media; intelligence and financials including managing oil sales and other economic activity (including extortion; ransom; protection rackets; Infidel tax; sex slavery and antiquities dealing). [30]
As such, the criterion for effective government is clearly met by IS despite civil strife within its regions. Indeed, when declaring statehood, it appears as though its authors were making a bid to meet this criteria of the Montevideo Convention. The declaration states:
Here the flag of the Islamic State, the flag of tawhīd (monotheism), rises and flutters. Its shade covers land from Aleppo to Diyala. Beneath it, the walls of the tawāghīt (rulers claiming the rights of Allah) have been demolished, their flags have fallen, and their borders have been destroyed. Their soldiers are either killed, imprisoned, or defeated. The Muslims are honored. The kuffār (infidels) are disgraced. AhlusSunnah (the Sunnis) are masters and are esteemed. The people of bid’ah (heresy) are humiliated.
• The hudūd (Sharia penalties) are implemented – the hudūd of Allah – all of them.
• The frontlines are defended. Crosses and graves are demolished.
• Prisoners are released by the edge of the sword.
• The people in the lands of the State move about for their livelihood and journeys, feeling safe regarding their lives and wealth.
•Wulāt (governors) and judges have been appointed.
•Jizyah (a tax imposed on kuffār) has been enforced.
•Fay’ (money taken from the kuffār without battle) and zakat (obligatory alms) have been collected.
•Courts have been established to resolve disputes and complaints. Evil has been removed.
Capacity to enter into relations with other states
This fourth criterion has been criticised by Crawford[32] as being a consequence of statehood rather that a requirement thereof. Lapidoth[33] states that ‘recognition by other states is not a condition for statehood, but the fact that the entity has been recognized by many states can demonstrate that it has the capacity to enter into relations with other states’. The Turkish Republic of Northern Cyprus (‘TRNC’) is prevented from being considered a state as it lacks this criterion.[34]
IS has no embassies in other sovereign states and is has not been recognised by any other state. But what is required is not actual engagement with other states but the mere capacity to do so. Arguably, IS is engaging the world using international and social media as its platform for propaganda, and in establishing franchise-provinces throughout the Muslim world. However, this is unlikely to be sufficient. Further, the deceleration by IS that ‘the legality of all emirates, groups, states, and organizations, becomes null by the expansion of the khilāfah’s authority and arrival of its troops to their areas’ combined with its global ambitions is problematic as it dismisses the possibility of engagement with other states. One cannot be said to satisfy this requirement of being a state among equal states without recognising the sovereignty of all other states. Accordingly, IS has yet to meet this criterion, though this may change with time.
Other Considerations
Independence
While it is not specified in the Montevideo definition, independence is a pre-requisite irrespective of the definition of statehood.[35] Independence means ‘continued existence of [a state] within her present frontiers as a separate State with the sole right of decision in all matters economic, political, financial or other with the result that that independence is violated, as soon as there is any violation thereof, either in the economic, political, or any other field, these different aspects of independence being in practice one and indivisible’[36]. Arguably, it is implied in the criteria for effective government and capacity for international relations as dependence (e.g. TRNC) would be incompatible with this. As Judge Huber stated in the Island of Palmas arbitration:
Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organization of States during the last few centuries, and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations. [37]
Islamic State can be said to be no one’s puppet. While it receives significant funding from Qataris,[38] it does not do its bidding nor rely on its protection. IS clearly meets the requirement for independence.
Recognition
While international treaties and academic commentators have acknowledged the strong link between recognition and statehood, there has been much debate over the nature of this link.[39] The constitutive theorist would argue that without recognition, there can be no state. It is a necessary requisite of statehood. Other views see it as curing imperfections in a claim to statehood? (e.g. Congo). Meanwhile, the declaratory theorist would state that recognition is nothing more than a mere acknowledgment of an existing fact and is not necessary at all for the creation of states. On this note, Lapidoth states:
Does statehood depend on recognition by other states? Certainly not. The constitutive theory according to which recognition creates the new state has been discarded, and according to the prevailing opinion, recognition is declaratory only. [40]
With over 60 states now actively engaged in a coalition to dismantle IS, it is fair to say that IS has not achieved recognition, nor is it likely to that any acts of positive recognition will ever be made.[41] To the constitutive theorist, this would be the end for the IS quest for statehood. The declaratory theorist would disagree.
However, even the proponents of effectiveness would admit that recognition can serve to prove that the new state is capable of entering into relations with other states, though it is by no means the only way.[42] Considering the failure of IS to meet the fourth Montevideo criterion, to the extent to which IS has the capacity to enter into relations with other states fails insofar as it relies on recognition to prove this capacity.
Recognition need not be positive or express but can be implied by conduct.[43] It has been argued that British government’s consideration of charging British citizens who had sworn allegiance to IS under U.K.'s treason law, which dates back to 1361, could in and of itself amount to a form of recognition.[44]
Peremptory norms
Article 53 of the Vienna Convention[45] states that ‘no derogation is permitted’ from peremptory norms. This has been read to be wide enough to include acts other than treaties. Scheuner suggests three categories of peremptory norms, being rules protecting:
- the foundations of international order (eg. prohibition of genocide or use of force other than in self-defence);
- the peaceful cooperation in the protection of common interests (eg. freedom of the seas); and
- Fundamental human rights (eg. the protection of civilians in time of war).
Crawford[46] argues that self-determination should be added to this list, though that position is not universally accepted. For instance, the UK’s stated position is that:
An entity other than a State cannot be regarded as the same as the government of a State. A national liberation movement does not have the same ability as a government to provide the guarantee of good conduct and behaviour which a host country is entitled to require. [47]
This is not relevant to this case as IS cannot be said to be a group seeking self-determination in the way the PLO or IRA were.
Conclusion
One must careful as to distinguish between the sovereign state and an entity which share functions of statehood. IS clearly fails in establishing its case for statehood in constitutive theory. It does, however, come close to meeting the requirements of the Montevideo convention. It fails, however, since its capacity to enter agreements with other nations is unlikely while no nation recognises it as sovereign and while it fails to recognise any other state. The difficulty with this conclusion is that by disavowing IS of its rights of statehood, the attached obligations are also disavowed.
It is noteworthy to mention that IS does not claim the basis for its state to be founded in international law but rather in the dated concept of legitimism, that is that a sovereign is divinely or otherwise entitled to rule. This proposition was held by Egyptian Pharaohs and European princes alike and was largely laid to rest by the French revolution.[48]
International law must modernize to deal effectively with the non-state actor. In the meantime, the Islamic State, is sticking to its motto: ‘remaining and expanding’[49]
References
[1] Thomas Grant, 'Defining Statehood: The Montevideo Convention and its Discontents' (1999) 37 Colombia Journal of Transnational Law 403, 403.
[2] The Islamic State of Iraq and Syria (a-Shām) (2013-14); Da’ISH (ad-Dawlah al-Islāmiyah fīl-ʿIrāq wa-Shām); Islamic State of Iraq (2006–13); Tanzim Qaidat al-Jihad fi Bilad al-Rafidayn (al-Qaeda in Iraq) (2004–06); Mujahideen Shura Council (2006) and Jama'at al-Tawhid wal-Jihad (1999–2004).
[3] Safia Aoude, The State of Things to Some: The statehood of ISIS between practice, international law and religion (2014) Unpublished, Copenhagen University
[4]‘This is the Promise of Allah’ (2014) Al Hayat Media Centre.
(‘IS Declaration’).
[5] Zachary Laub, Background: The Islamic State (April 2015) Council on Foreign Relations.
http://www.cfr.org/iraq/islamic-state/p14811.
[6] Ibid.
[7]Lassa FL Oppenheim, International Law: a Treatise (Vol 1) (1st ed) 264.
[8] Aba Ebn, SCOR 34oth meeting, 27 July 1948, 29-30.
[9] Crawford, above n1.
[10] Ibid.
[11] Ibid, 41.
[12]The Montevideo Convention on the Rights and Duties of Sates, signed 26 December 1993, 135 LNTS 19 (entered into force 26 December 1934) (‘Montevideo Convention’).
[13]Ruth Lapidoth, When Is an Entity Entitled to Statehood? (2012) VI(3) Israel Journal of foreign Affairs, 77
[14]International Legal Materials, Vol. 31 (1992), pp. 1492–1497 (opinion no. 1).
[15]The Western Sahara Case, International Court of Justice Reports (1975), p. 12.
[16] Laub, Above n5.
[17] Malcolm N Shaw, International Law (Cambridge University Press, 6th ed, 2008).
[18] Ibid, 199.
[19] Aoude, Above n4.
[20] Security Council Official Records, 3rd year, 383rd meeting, p. 41.
[21] Lapidoth, Above n13, 78.
[22] Crawford, above n1, 48.
[23] Shaw, Above n19.
[24] Crawford, above n1
[25] Crawford, above n1.
[26] Ibid.
[27]The Aaland Islands Question (On the Merits), Report by the Commission of Rapporteurs, League of
Nations Council Document B7 21/68/106 (1921)
[28] Zounuzy Zadeh, International Law and the Criteria for Statehood: The Sustainability of the Declaratory and Constitutive Theories as the Method for Assessing the Creation and Continued Existence of States (Phd Thesis, Tilburg University, 2011)
[29] Ibid
[30] Aoude, above n4
[31] IS Decleration, Above 24
[32] Crawford, Above n1
[33] Lapidoth, Above n13, 78
[34] Ibid
[35] Crawford, above n1
[36] ‘Advisory Opinion No 41’, Customs Regime Between Germany and Austria (1931) PCIG Ser A/B No 41 (5 September) 12
[37]Island of Palmas Case (1928) 2 RIAA 829, 838
[38] http://www.washingtoninstitute.org/policy-analysis/view/qatar-and-isis-funding-the-u.s.-approach
[39] Crawford, above n1 [13]
[40] Lapidoth, Above n13, 79
[41] Andrew Coleman, 'The Islamic State and International Law: An Ideological Rollercoster?' (2014) Unpublished, Monash University
[42] Lapidoth, Above n13
[43] Shaw, Above n19
[44] Aoude, Above n4
[45]United Nations, Vienna Convention on the Law of Treaties (23 May 1969) Treaty Series, vol. 1155.
[46]Grant, Above n1.
[47] FD Berman on the Convention on the Representation of States in their Relations with International Organizations of Universal Character (7 December 1984) 55 BY 446.
[48] Grant, above n1.
[49] ISIS Deceleration, Above 24