CYIL vol. 8 (2017)
CYIL 8 ȍ2017Ȏ THE USE OF FORCE AGAINST THE ISLAMIC STATE ȍ JUS AD BELLUM Is the Islamic State (IS) a State? The question in the heading of this section might seem paradoxical, provided that the entity – calling itself the Islamic State – uses the word “state” in its very name. 2 Yet, under current international law, an entity does not become a State simply by labelling itself as such. It has to meet certain criteria. Before we recall these criteria and apply them to the IS, it is important to consider why the legal qualification of an entity matters in our context. It is so, because current international law is state-centric and the legal status of States differs quite radically from that of non-state actors. The differences are particularly important in the areas lying close to the heart of sovereignty, such as those related to the use of force. States are prohibited from militarily intervening against other States, not from using force against non-state armed groups operating on their territory. Similarly, armed conflicts between States are subject to a different set of rules than those between States and non-state armed groups. Whether the IS is a State or not also delimits the strategical choices that the international community has with respect to this entity. In one scholar’s words, “identifying what ISIS is /…/ is needed in order to determine the basis on which states should, or can, engage with it, and how to strategize the response to its violent expansion in the Middle East”. 3 The criteria of statehood were codified in the 1933 Montevideo Convention on the Rights and Duties of States. Although the Convention is a regional instrument adopted within Latin America and has a limited number of State parties, the definition of the State, contained in its Article 1, is largely considered as customary and, hence, binding upon all States. 4 Article 1 reads as follows: “The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.” All the four criteria have to be met cumulatively. 5 Occasionally, additional criteria have been proposed by scholars. They include independence and legitimacy. 6 Although no consensus has so far emerged as to the legal status of these additional criteria, they seem to be gaining increasing support among States and scholars. 7 They will therefore be applied here alongside the four traditional Montevideo criteria. 1.1 Montevideo Criteria of Statehood A State needs to have a population living on its territory on a permanent basis, not as nomadic tribes. No minimum number of inhabitants is required, though it is generally 2 The name Islamic State has been used since the proclamation of the Caliphate in 2014. Previously, the IS called itself the Islamic State in Iraq and the Levant (2013–2014, or Daesh), the Islamic State of Iraq (2006–2013), the Organization of Jihad’s Base in Mesopotamia (2004–2006), the Mujahideen Shura Council in Iraq (2006) and the Organization of Monotheism and Jihad (1999–2006). 3 BELANGER-MCMURDO, Adele, A Fight for Statehood? ISIS and its Quest for Political Domination, E-International Relations Students, 5 October 2015. 4 For instance, the Badinter Commission established by the European Conference on Yugoslavia in 1992 defined a State as “a community which consisted of a territory and a population subject to an organized political authority and was characterized by sovereignty”, paraphrasing the Montevideo conditions . International Legal Materials , Vol. 31 (1992), pp. 1492-1497 (Opinion no. 1). 5 See CRAWFORD, James R., State, in Wolfrum, Rüdiger (ed.), Max Planck Encyclopedia of Public International Law, Vol. X, 2006, pp. 475-484. 6 See, for instance, SHANY, Yuval, COHEN, Amichai, MIMRAN, Tal, ISIS: Is the Islamic State Really a State?, Israeli Democracy Institute, 14 September 2014. 7 See GRANT, Thomas D., Defining Statehood: The Montevideo Convention and its Discontents, Columbia Journal of Transnational Law, Vol. 37, 1999, pp. 403-457. ASPECTSȎ
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