CYIL vol. 8 (2017)

VERONIKA BÍLKOVÁ

CYIL 8 ȍ2017Ȏ

Introduction The emergence of the so called Islamic State (hereafter the IS) in the Middle East has constituted a serious challenge to several well-established categories of international law and has given rise to difficult legal dilemmas. This symposium focuses on the challenges and dilemmas relating to the use of force against, and partly by, the Islamic State. Since the early 2010s, the IS – under the various denominations it has assumed over the years – has been actively engaged in the armed conflict(s) raving in Iraq and, later on, in Syria. It has fought against its “host” countries as well as against various armed opposition groups operating in the area. Over this time, moreover, several States from the Middle East and from outside the region have resorted to the use of force against the IS. The first contribution to this symposium assesses the legality of these instances of the use of force. It deals with the jus ad bellum aspects of the conflict with the IS, scrutinizing the legal justifications provided for military actions against the IS by intervening States as well as those put forward in the scholarly literature. The second contribution adopts the jus in bello perspective. It discusses the legal nature of the armed conflict(s) with the IS and identifies the rules applicable to this(ese) conflic(s) under international humanitarian law and international criminal law. It is well known, and well documented, that both in the battlefield and on the territories under its control, the IS has engaged in numerous atrocities, killing civilians in the most inhuman ways, taking hostages, torturing prisoners or practicing slavery. It has deliberately violated the most fundamental norms that the international community adheres to. While these acts have made the IS into an outlaw entity, they have not placed it outside or above law. The second contribution reveals what this law says and which consequences its violations may have for the IS and its fighters. The third contribution to this symposium looks at the IS from a very different angle. Its prime interest lies not in the area of the IS external interactions but, rather, in that of the IS internal mode of operation. The paper unveils the various ways in which the IS secures finances and material resources for its actions and discusses the relationship between legal rules applicable to the fight against terrorism and those directed against money-laundering. The first contribution unfolds in several steps. First, it demonstrates that the Islamic State, despite its title, is not a State but, rather, an armed non-state actor. This determination is crucial for the legal analysis both at the jus ad bellum and the jus in bello level. In the next step, the paper gives a factual background on the military interventions against the IS and on the regulation applicable to the use of force under current international law. In the third step, the paper discusses, one by one, all the different legal grounds that have been invoked, by intervening States or by scholars, to justify the military interventions against the IS (UN collective actions, intervention by invitation, self-defence and humanitarian intervention). The paper demonstrates that whereas some of these interventions can be legally justified (the US in Iraq, Russia in Syria), the legality of others (Turkey in Iraq, the US in Syria) is questionable, either because the legal grounds provided for them are not generally accepted as valid, or because the application of these grounds in the case at hand gives rise to doubts. The paper was submitted for publication on 30 May 2017 and it does not take account of events that have occurred since that date.

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