It is Time to View ISIS as a Legal State for Purposes of Criminal Liability

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ISIS fighters in Iraq. Courtesy Wikipedia.

ISIS fighters in Iraq. Courtesy Wikipedia.

While the Islamic State of Iraq and al-Sham (ISIS) has established itself as a force within geopolitics, the question of legal statehood determination for the group has yet to be fully developed.  International organizations have increasingly raised claims that ISIS has been committing various war crimes as they seek to establish an independent Islamic State.  Given the legal significance of a statehood determination for war crimes, a determination of statehood could have a significant impact on how the international community approaches ISIS going forward.

Under international criminal law, many war crimes may only be committed in the context of an international armed conflict.  Under the Geneva Conventions, for an international conflict to exist, the armed conflict must exist between two states.  Additionally, the recognition of statehood broadens liability theory and increases the overall responsibility of a recognized organization in interacting with the rest of humanity.  Legal recognition of statehood places obligations on the state itself, as well as on those functioning as state actors under the doctrine of state responsibility.  The recognized state will be held responsible for the actions of its agents.  Given the resources available to states and state-like apparatuses, there should be a heightened level of scrutiny on their actions.

Under the Montevideo Convention, which has subsequently been accepted as customary law, a state has: a permanent population, defined territory, government, and the capacity to enter into relations with other states.  ISIS already meets many of these requirements.  The landmass currently controlled by ISIS is larger than many already recognized states, has a controlling and complex governmental organizational structure that rules over a defined portion of the world’s population, and while war might not be considered a traditional method of interaction between nations, ISIS has forced the international community to direct military action against its discrete holdings.  The vast majority of the estimated 10,000-40,000 members of ISIS come from very specific geographic areas, creating a commonality among the membership.

Courts in the United States have used an even more relaxed standard for determining the existence of statehood for legal liability than the above Montevideo criteria analysis.  In Kadic v. Karadžić, the Second Circuit found a self-proclaimed ruling party over a discrete portion of land, responsible for the traditional obligations of a State.   The case concerned the self-proclaimed Bosnian–Serb republic, sometimes referred to as ‘Srpska,’ which claimed to exercise lawful authority, and did in fact exercise actual control, over large parts of the territory of Bosnia–Herzegovina.”   The court found that as the self-proclaimed president of the republic, Radovan Karadz̆ić possessed “ultimate command authority” over armed forces alleged to have committed “systematic human rights violations . . . carried out by the military forces under [his] command.”   The Court found the determinative standard upon which to base liability of such an organization to be “whether a person (within the organization) purporting to wield official power has exceeded internationally recognized standards of civilized conduct, not whether statehood in all its formal aspects exists.”  Importantly, this standard is solely for establishing statehood in order to satisfy the international conflict requirement underlying the crimes alleged.

Many of these same qualities the Court highlighted with regards to Srpska (creating a basis for liability) are present with regard to ISIS.  The group is currently run by a complex hierarchical governmental structure effectively in control over various parts of territory within the Middle East.  The military council controls an armed force capable of causing great destruction.  It is clear from the organizational structure that ISIS views itself as a State within the international community capable of becoming a full-functioning player in international politics.  It would be perverse to preclude criminal liability for the actions of the organization due to the international community’s political decision not to recognize the statehood of ISIS.

Identity politics provide a further argument for the legal recognition of ISIS as a state.  As noted sociologist Charles Tilley has observed, an organization reaches the level of statehood when it can demonstrate “the production of political identities.”  ISIS coalesces around the idea of a State controlled by religious (Islamic) law, a recognized legitimate basis for a political identity of a nation.  ISIS controls a targeted portion of land as well as a significant segment of a population in agreement with its political and religious views.  The recognition of the establishment of an Islamic State, while not necessarily a political objective of most international actors, is nonetheless reflective of the situation on the ground.

Importantly, a legal determination of statehood—for the purpose of establishing criminal liability—does not require “States and governments . . . [to] recognize each other” in the context of an international armed conflict.  This means that categorization of ISIS as a state for international criminal liability should not be viewed as a political endorsement of statehood for ISIS.  Countries can continue to solely recognize the political legitimacy of Iraq, Syria, and Libya within the territory ISIS presently inhabits, while still recognizing ISIS statehood for legal prosecution.  As such, since ISIS has met the legal requirements of statehood, the international community should permit international criminal law to hold ISIS accountable for their actions without worrying about the effects of political recognition of ISIS’ legitimacy.

An organization holding itself out as a state, and acting as such, should be subject to the obligations traditionally imposed on states.  The international community must recognize that claiming the rights associated with statehood should also place upon the entity the corresponding obligations.  Both the ICC and the ICJ have statutory limitations that require State action before criminal prosecution for certain crimes can proceed. The international community needs to look past the political implications of a declaration of statehood and accept ISIS as a State in the purely legal context.

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