CYIL vol. 8 (2017)

VERONIKA BÍLKOVÁ CYIL 8 ȍ2017Ȏ the lack of serious violations of international law during the establishment of the entity. 18 An entity which aspires to statehood may not come about through a process involving an unlawful use of force [Article 2(4) of the UN Charter] or serious violations of human rights. International practice reveals some instances in which entities have been denied to be treated as States due to their failure to meet the legitimacy criterion (Bantustans in South Africa during the Cold War; Turkish Republic of Northern Cyprus, the Republic of Nagorno Karabakh or Transnistria now). 19 The IS would clearly score very poorly on this criterion, as its establishment has taken place in total disrespect of the wish of the inhabitants and it has involved massive, systematic and serious violations of the most fundamental human rights. 1.3 The IS is not a State but a Non-State Actor In light of the analysis presented above, the question asked in the title of this section – whether the IS is a State under international law – has to be answered in the negative. The IS, despite its name, fails to meet, in total or in part, at least two of the four Montevideo criteria – those of (effective) government and of the capacity to enter into international relations. In addition, it does not satisfy the criterion of legitimacy, which, though it may not yet emerged as an autonomous criterion of statehood, has an impact upon the way in which a certain entity is treated. While it might still be true that “the formation of a state is /…/ a matter of fact and not of law”, 20 non-factual aspects such as the human rights record of the entity or the respect for the principle of self-determination, are not (or no longer) irrelevant. This is mainly so in extreme cases of entities seeking to establish their statehood in violation of the most fundamental norms of international law. If, moreover, such entities show no willingness to embrace these norms and no wish to become decent members of the international community, considering them as States would be not only legally incorrect but also politically and morally unwise. That the IS is not a State seems to be largely agreed upon. 21 What it is then, is, however, more controversial. The US president Barack Obama declared in 2014 that the IS was “a terrorist organization, pure and simple”. 22 For the security issues expert Audrey Kurth Cronin, “if ISIS is purely and simply anything, it is a pseudo-state led by a conventional army” . 23 The international law expert Zeray Yihdego, on his turn, considers that “the IS is neither a terrorist group, a quasi-state, nor a classic armed group, it is simply a regional extremist criminal organisation (RECO) with an army, territory /…/ and a capability to sustain the commission of grave international crimes”. 24 The UN Security Council, which has dealt with the IS in several 18 Occasionally, it is claimed that a State seriously violating international law might lose its statehood. This claim lacks support in international practice. See CRAWFORD, James, op. cit., p. 483. 19 Most of these entities fail to meet some of the other conditions of statehood (for instance independence) as well. See PEGG, Scott, De Facto States in the International System, Institute of International Relations, University of British Columbia, 1998. 20 OPPENHEIM, Lassa, International Law, 1st Edition, D. McKay, 1955 p. 544. 21 See BELANGER-MCMURDO, Adele, op. cit.; Bernstein, Eli, op. cit.; Shany, Yuval, Cohen, Amichai, Mimran, Tal, op. cit. 22 President Obama: “We Will Degrade and Ultimately Destroy ISIL”, White House , 10 September 2014. 23 CRONIN, Audrey Kurth, ISIS Is Not a Terrorist Group. Why Counterterrorism Won’t Stop the Latest Jihadist Threat, Foreign Affairs, March/April 2015, online at https://www.foreignaffairs.com/articles/ middle-east/isis- not-terrorist-group (13 May 2016). 24 YIHDEGO, Zeray, The Islamic ’State’ Challenge: Defining the Actor, E-Internationa Relations, 2015.

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