The ISIL phenomenon poses profound lessons and challenges for maintenance of international law and order. Although recent, ISIL has its roots in the deep anomalies and double standards of the global system itself. The policies of Western governments have contributed lavishly to this lawless dynamic. Without discernable effort to repair those fatal policy flaws, more ISILs may be in the offing.
Most concerned observers and analysts have deplored the phenomenon known as ISIL, a movement in the Middle East asserting a particularly abominable form of governance that deviates majestically from the norms of international law and world order, while calling itself a “state.” The prevalence of ISIL has wide-ranging consequences and implications for us all in the interstate system.
ISIL’s tactics have been condemned roundly by victims in and around the ISIL-claimed territories, as well as concerned parties abroad. At the same time, the evolution of ISIL holds a plethora of lessons about the radicalization of people in the form of a political movement asserting a common sectarian affiliation, excluding all others. ISIL’s adherents explain their movement in the vocabulary of retribution for their foregoing persecution as a religious group. But they also heap similar harm and suffering on undeserving others within the territory of their effective control. That inhumanity ultimately negates the legitimacy of both the movement and its proclaimed political entity.
Functions and fundamental questions
The now-familiar pattern of the ISIL phenomenon exhibits a repertoire of behaviors that have come to characterize the state that its supporters claim to constitute. That claim also raises fundamental questions about the criteria of a state in the international system.
The single legal instrument that specifies the requisites of statehood is found in the American states’ Montevideo Convention on the Rights and Duties of States (1933). It provides that a bona-fide state is an administrative entity composed of (1) a defined territory (land and territorial waters) (2) a constituent population (of a people or peoples) and (3) institutions of government capable of conducting international relations and international cooperation. That personality also bears a complement of rights (vis-à-vis other states), as well as individual, collective, domestic and extraterritorial obligations.
In the ISIL case, however, the acclaimed state is constructed not of indigenous peoples or populations but by demographic manipulation, carved out of territory belonging to other states and peoples through prohibited military and other means. That has taken place within currently ambiguous, constitutionally undefined and effectively unrecognized state borders. This contradiction prevails in breach of the sacrosanct international law principal of uti possidetis, which, since Roman times, has prohibited the partition or recolonization of territory belonging to peoples entitled to, and in the process of exercising independence (their self-determination).
Manipulating peoplehood, flouting the Law
In proclaiming its “state” ISIL also has had to construct/invent the requisite constituent people criterion of a state by globally marshaling recruits who conflate adherence to a particular faith with a unique “nationality” status and set of material privileges as a measure toward promised redemption. The rights and privileges bestowed on those belonging to ISIL’s super-nationality are not shared by persons of other faiths within the ISIL-controlled territory.
By recruiting and transferring mercenaries from the Middle East region and abroad, the ISIL phenomenon has offered effective “citizenship” automatically upon recruitment to its statist project. By recruiting the citizens of other sovereign states, regardless of the immigrants’ actual origin or pertinenza, ISIL also violates one the most-fundamental norms of the law of nations, namely, that states mutually recognize the domestic responsibilities and allegiance of their respective citizens.
ISIL recruitment may rely partially on indoctrinating disaffected and otherwise impressionable youth in distant countries. However, it also disaffects youth by having them commit to participation in an illegal situation that contravenes long-established civilizational norms.
Meanwhile, ISIL institutions incite compliance with the illegal situation as a “religious duty” to join it both ideologically and by physical immigration to the acclaimed state, as well as to serve it from abroad. Among the devices applied in the ingathering of reliable men and women to its cause, ISIL lures them to projects that promise also to restore the perceived glory of a foregone era. This primordial call to action grounds ISIL’s religio-national identity (however ahistorical or irrelevant that nostalgia may—or should—be).
By institutionalizing this faith-based interpretation of “nationality,” ISIL constitutes a theocracy that consequently divides religions locally, regionally and globally, despite the overwhelming commonalities between and among them all. At the same time, ISIL’s recruits—including some of its most-zealous constituents—do not necessarily possess deep knowledge of their own religion, but rather use scriptures selectively and opportunistically to rationalize their acquisitive program.
ISIL has become widely identified with acts of lethal violence within its territory of effective control, as well as in the jurisdictions of other states, not least through bombings and assassinations in extraterritorial cities. This pattern naturally breeds deep contempt among much of the international public toward ISIL perpetrators and collaborators. The tactical objective of such terror remains obscure, except to fulfill ISIL’s dire prophesy that “they,” in the wider world, are inherently against “us” members of the ISIL movements.
Such a predisposition begets the renowned practice of institutionalized, material discrimination against those “others” who precede ISIL in its captured territories. For example, ISIL has become the notorious author of the grave crime of population transfer.
Since its prosecution at the Nuremburg Trials, population transfer is also known by a variety of other terms, including: ethnic cleansing, forced eviction, mass exodus, forced displacement, involuntary resettlement or forced removals. As legally defined, the crime against humanity and war crime of population transfer commonly involves both push and pull factors such as dispossession and expulsion of indigenous locals, as well as the implantation of settlers, to achieve demographic manipulation and territorial conquest. Typically there is also are demolition and depopulation of entire villages and cities under ISIL’s purview.
Thus, ISIL constructs a “national” identity unencumbered by the complications of indigeneity, human diversity, human rights and serial civilizations on the ISIL-coveted/claimed lands. ISIL’s destruction of centuries-old heritage has become legend in its pursuit of a territorial monoculture. Precious historic treasures and a mosaic of cultural endowment are forever lost under ISIL, in order to give way for a homogenized alternative and authorized religio-nationalist narrative with an essentially acquisitive raison d’état.
The disposal of artifacts from this diverse heritage forms one of the lucrative means and dubious financial dealings that fund ISIL projects. Investigators have revealed how, operating extraterritorially also, ISIL affiliates even have used tax-exempt charitable institutions to transfer funding to its population-transfer and plunder program. In addition to the exploitation of seized real property and natural resources in its acquired territory, ISIL also relies on generous funding from other states in its network to finance its weapons acquisition and maintain war-time trade.
At the community level, ample reports demonstrate how ISIL typically occupies the homes and properties of those indigenous people dispossessed and displaced in its field of operation. Consequently, many housing units are given over to accommodate the incoming recruits and settlers as partial remuneration for their service to the new-state project. In this way, refugees and displaced families end up involuntarily subsidizing their own colonization.
ISIL and the interstate system
Despite its ambitious claims to statehood, the ISIL phenomenon fails at every level to comply with the established criteria of a state, in particular the obligations and purposes enshrined in the United Nations Charter and related norms in our unitary system. Like the Montevideo criteria, those UN Charter-based purposes ( maintaining peace and security, forward development and human rights ) remain among the theoretical standards of statehood in the contemporary interstate order.
While many of its operations are strictly banned under peremptory international law norms and numerous treaties, ISIL has become the specific subject of international condemnation by legal and judicial bodies. This includes extraordinary UN Security Council resolutions deploring ISIL’s practices and reiterating the self-executing obligation of all states not to recognize, cooperate in, trade or transact with the resulting illegal situation.
Despite international law prohibition against its transgressions, including specific provisions of the Rome Statute of the International Criminal Court and International Court of Justice, the ISIL phenomenon has witnessed the contrasting ineffectiveness of law enforcement organizations and judicial mechanisms to thwart or adjudicate its violations, crimes and grave breaches.
In the light of international norms, a felonious legacy disqualifies the ISIL phenomenon as a claimant to statehood in the interstate system. ISIL’s original sins (grave breaches) logically would disqualify it also in perpetuity.
These manifestations and dire consequences of the ISIL phenomenon pose profound lessons and challenges for the regional and international maintenance of law and world order, and for ISIL’s own future within it. The breakdown of international law and its consequent lessons are not a new feature of failed statecraft and foreign policies, particularly in and toward the Middle East region. The foreign policies of Western governments have contributed lavishly to this lawless dynamic. Without discernable effort to repair those fatal policy flaws, more ISILs may be in the offing.
However it may be perceived as recent, the ISIL phenomenon ironically has its roots in deep anomalies and double standards of the interstate system itself. This is only symbolically reflected in the contemporary acronym of ISIL, which corresponds with the abbreviation for the so-called “Islamic state” (IS) joined to the binomial code for the State of Israel (IL). This coincidence of acronyms completes the analogy of the respective Jihadist and Zionist movements and their common attributes at the expense of indigenous Middle East peoples. Just as one follows the other in time, the participants in the former-named (IS) may be counting on the same seamless impunity long enjoyed by its latter-cited predecessor (IL).
In either case, the dual ISIL phenomenon in the Middle East increasingly tests the integrity of the interstate system and the international law standards as developed. Through this comparative lens, we can begin to face the indispensable questions before us and, ultimately, address these mutually shared characteristics through current preventive and remedial norms. Those corrective measures remain obvious and available.
* Joseph Schechla is coordinator of the Housing and Land Rights Network of Habitat International Coalition, based in Giza, Egypt.