ISIS in Iraq and International Law’s Rebel Forces Issues

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Blog post contributed by Seán Butler (PhD candidate and Government of Ireland IRC PhD scholarship awardee). 

ISIS in Iraq and International Law’s Rebel Forces Issues

The disaster of the civil war in Syria has since its inception been compounded by fears that the conflict could destabilise its neighbours and spur a much larger regional conflagration. The activities of the Syrian rebels expanded into conflict with Hezbollah in Lebanon in mid-2012, and now the stuttering attempts to build a stable post-Saddam state in Iraq have been significantly hindered by the activities of the terrorist group styling themselves the Islamic State in Iraq and the Levant (ISIS). The group claim sovereignty over the entire Levant region, incorporating Iraq, Syria, Lebanon, Israel, Palestine, Jordan and Cyprus, as well as portions of Turkey (the Hatay province) and Egypt (the Sinai), in which they wish to establish a caliphate. ISIS was previously allied to al-Qaeda, but was expelled from the latter in February for excessive brutality in its actions and a political disagreement over control of the Syrian rebel group known as the al-Nusra front.

In early June, ISIS scored a major victory in taking control of Iraq’s second largest city, Mosul, and currently controls approximately 35% of Iraqi territory in the north and west of the country. Their actions have caused a surge in violence in Iraq, leading to over 2400 deaths in June and severely damaging the position of Prime Minister Nouri al-Maliki. It has additionally led to a substantial drop in Iraqi oil production, threatening global crude prices, and spurred a movement towards a referendum on total independence by Iraqi Kurdistan, which would include the oil-rich city of Kirkuk. The Iraqi government has requested help from the international community to deal with the crisis, which so far has come in the form of a shipment of warplanes from Russia and the dispatch of some three hundred military advisors from the US. Earlier in June, Pentagon officials were discussing possible military action in the form of airstrikes, but the US government has since backed away from this position. An airstrike was conducted against the ISIS-controlled city of al-Qaim on 24 June, but the US denied involvement, and it is strongly speculated that it was undertaken by the Syrian government, who are also fighting ISIS.

The rise in influence of ISIS and the involvement of international players in the crisis has generated some notable impacts in politics and law. Politically, the situation threatens to shuffle the deck in the ongoing Sunni-Shia ‘Cold War’, with Iraq pushing closer to Shia-dominated Iran in the absence of American military involvement and Sunni-dominated Saudi Arabia likely to fill the vacuum of oil supply being vacated by Iraq. As such, the situation in the Middle East could accelerate towards a state of greater instability and even a potential possible ‘heating’ of this ‘Cold War’. Such fears could force greater US involvement if the crisis does not abate in the future, as military action in Iraq would be (politically) less controversial than similar action in Syria.

A relative lack of political controversy over such a move does not mean that the situation is legally cut-and-dried, however. When the possibility of US military engagement was mooted last month, a number of bloggers questioned whether the move would be legal under domestic US law. The 2001 Authorisation for Use of Military Force Against Terrorists, restricted to those responsible for the 9/11 attacks and their allies, may not apply to ISIS due to its severing of ties with al-Qaeda, while the 2002 statute permitting action against Iraq to deal with its supposed “weapons of mass destruction” would also not apply.

Additionally, Deborah Pearlstein has argued in a post for Opinio Juris that US military action in Iraq may violate international law also, specifically that it would violate Article 2(4) of the UN Charter and Iraq’s human rights obligations, if an armed force conducts military operations on foreign soil absent a state of armed conflict, a Security Council authorisation or an act of self-defence. The primary issue of contention here is whether the US government can target individuals on foreign soil if said individuals cannot be said to be combatants in a conflict, a question with added salience given the US’ continuing drone campaign against militants in Pakistan.

As some have commented under Pearlstein’s piece, the question is largely moot as it is likely that the Iraqi government are in a state of armed conflict with ISIS, even if it would be politically inconvenient for them to admit to this fact. The issue does however raise further questions. As I raised in a previous post on this blog concerning French action in Mali, to what extent should a government be permitted to request or consent to foreign military intervention in regions of its country over which it does not have de facto control? The Iraqi government now essentially comprises one side of a civil war, and its requests for foreign intervention ultimately amount to an attempt to drag the US into the war on its side. The situation is further complicated by the fact that a truly effective counterattack against ISIS would probably involve attacking targets inside Syria as well.

Due to the prominence of sovereignty in international law, particularly post-1945, the law sides with the de jure governments to a strong degree. The ICJ’s famous Nicaragua judgment declared foreign assistance to rebel forces to be a violation of that state’s sovereignty, yet assistance to the government forces is legal. ISIS declared the establishment of a caliphate in the areas of Syria and Iraq that it controls, yet this new ‘state’ is not recognised under international law as it was a unilateral declaration (similar to the declarations recently undertaken by forces in Crimea and eastern Ukraine). Should ISIS gain control of Baghdad, however, it could potentially become the de jure government of Iraq and thus US action against it in favour of the deposed democratic government would ostensibly be illegal. In such a situation, it would become a matter of political wrangling as to what constituted the legal government of Iraq, and thus who foreign states could support.

The complexity of this situation is just another example of contemporary international law’s difficulties dealing with the reality of non-state actors. The brutality of ISIS means its status as a pariah in international law will garner them little sympathy, yet the law which applies to it equally would apply to the more popular secular forces also fighting the Assad regime in Syria. This issue was also relevant in the disagreement over the interpretation of Security Council Resolution 1973, as to whether the targeting of pro-Gaddafi forces in Libya was a necessary component of NATO’s mandate of civilian protection or a violation of the law (see my Mali post for a brief discussion of this). The law needs further clarification and congruence in this area, so that the legal battlefield can better match the requirements of the physical one.