THE ISLAMIC STATE AND INTERNATIONAL

IDEOLOGICAL ROLLERCOSTER?

LAW:

AN

BY Dr Andrew Coleman
Introduction
On 10 June 2014 Sunni extremists captured Mosul, the capital of the Nineveh
Province and Iraqs second largest city. These Sunni militants that now
threaten to take over Iraq and Syria called themselves the Islamic State (IS).
Then 19 days later the leader of these militants, Ibrahim ib Awwad ibn Ali ibn
Muhammad al-Badri, or as he is more commonly known and referred to in
Western media Abu Bakr al-Baghdadi, announced that IS had established a
Caliphate of which he declared himself the Caliph.
Whilst the world gasped in sheer astonishment official videos began to
appear on YouTube and social media often uploaded by the members of the
Islamic State organisation itself. Gruesome images of Western journalists and
aid workers being beheaded, hundreds of Iraqi security forces being tortured
and executed, thousands of Christians and Yazidis fleeing in panic.
accompanied horrific tales of forced marriages, rape,1 and execution of
essentially anyone opposed to the IS and its ideology or those who refused
conversion to ISs brand of Islam.
The sudden emergence of a Caliphate that was so drenched in blood had the
world, in the words of one journalist, wondering: Where did these hell
hounds come from?2
As we shall see IS and al-Baghdadi did not suddenly appear like some jinn
from the desert.3 The group that recently renamed itself simply the Islamic
State had existed under various names and in various guises since the early
1990s. And its story is the story of how modern terrorism has evolved from a
political and religious ideal into a death cult.
The emergence of the Caliphate an Islamic State and the alleged
criminal actions associated with this emergence raise a number of important
issues in international law, namely: the concept of a state, recognition, the
concept of a failed state, the Articles of State Responsibility, cultural property,
international humanitarian law- including the issue of humanitarian

Dr Andrew Coleman, LLM, LLB, BA (Monash), PhD (University of Melbourne) is a Senior

Lecturer with the Department of Business Law and Taxation, Monash University, Caulfield
Campus.
1 Elise Hilton, ISIS: Genocide By Rape and Torture, (Action Institute PowerBlog, Tuesday
2nd September 2014) <http://blog-action.org/archives/72050-isis-genocide-rapetorture.html >accessed 28 October 2014.
2 Bobby Gosh ISIS: a Short History, (The Atlantic, 14 August 2014)
<http:/www.theatlantic.com/international/archive/2014/08/isis/-a-shorthistroy/376030/?single_page=true> accessed 30 September 2014.
3 A jinn is a supernatural creature from Islamic and pre-Islamic Arabic mythology, they
together with human and angels are recognized in the Koran as the three sapient creatures of
God.

1
Electronic copy available at: http://ssrn.com/abstract=2516605

intervention, the responsibility to protect, and the use of force. More

importantly, these events raise the question of the purpose of international
law- what is it good for to paraphrase a line from a popular song during the
Vietnam War.4
This Working Paper canvasses issues raised by the Islamic State by placing the
discussion in the context of the purpose and philosophy of international law.
It is hoped that by doing so the Working Paper will generate and encourage
subsequent discussion aimed at achieving protection and enforcement of
international law rather than abuse it. The Working Paper will begin with
some background examining the origins of ISIS before turning to an analysis
on the problematic socio-political and international mosaic that IS has
created.
Background
The group known as IS began more than two decadesa mission by a Abu
Musab al-Zarqawi, Jordanian who had arrived in Afghanistan seeking to be a
mujahideen (Holy Warrior) in 1989, too late to fight the Soviet Empire. The
Soviets had withdrawn and the Taliban (an Islamic fundamentalist
movement) was in charge and had formed a government, ruling as the Islamic
Emirate of Afghanistan from 1996 until 2001. The fall of the Taliban in 2001
forced Zarqawi to flee to Iraq. Despite his linkage to Al-Qaeda on account of
his stay in Afghanisatan, Zarqawi was a free agent keen to create his own
organization to further his efforts in creating a puritanical organisation based
on distorted interpretations of Islam. Shortly after the U.S.-led invasion of
Iraq in 2003, he set up the forerunner to todays Islamic State: Jamaat alTawhid wal-Jihad (the Party of Monotheism and Jihad).
Although initially this group was not officially part of al-Qaeda it was
renamed by al-Zarqawi as al-Qaeda in Iraq in 2004. This association with alQaeda was short lived as the group became increasingly uncontrollable, and
Ayman al-Zawahiri, Osama bi Ladens second in command, chastised alZarqawi, for targeting civilians. Instead of complying with this criticism from
al-Qaedas central leadership al-Zarqawi and his group became increasingly
more ambitious, with the leader seeing himself more than just a battlefield
commander, but as a political leader. He thus began to govern the areas
under his control by introducing his interpretation of Sharia law by brutally
suppressing any opposition to his worldview, including established Sunni
tribal leaders. His actions created a backlash that led to the Anbar
Awakening- where local Sunni tribal leaders sickened by the policies of al-

The song is War by Edwin Starr a Motown release 10 June 1970 (Universal Music Group).
The full lyrics for the first verse are:
War!
Huh, good God
What is it good for?
Absolutely nothing.
Say it, say it, say it.
4

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Electronic copy available at: http://ssrn.com/abstract=2516605

Zarqawi united to fight as the Sons of Iraq with US forces against al-Qaeda
in Iraq resulting in serious reversals for al-Zarqawi, and his group.
In 2006 Al-Zarqawi was killed in a US bombing. His death combined with the
pressure from the Anbar Awakening caused the group to fade away, literally
into the desert, until 2011 when the US withdrew from Iraq. 5 The US
withdrawal, the Syrian Civil War and the policies of the Shiia dominated Iraqi
government, provided an opportunity for the group, now led by al-Baghdadi,
to not only reappear, like the proverbial jinn, but to prosper. They emerged
significantly enhanced in numbers, capability, and ambition.6 As Emir (short
note what this means) of the renamed Islamic State in Iraq Al-Baghdadi
began operations in the civil war in Syria, and as his ambitions increased even
further he again renamed his organization the Islamic State in Iraq and the
Levant.7 It was as the Emir of the Islamic State of Iraq and the Levant that alBaghdad subsequently announced the formation of the Islamic State (IS).
The Working Paper now turns to an analysis on the problematic socio-political
and international mosaic that IS has created.
The Islamic State: when is a State a State?
At a recent seminar at Monash university examining the challenges posed by
IS Professor Greg Burton in response to a query clarified that having a
State is a very important objective for IS.8 As mentioned above Abu Bakr alBaghdadi, announced the establishment of the Islamic State, a Caliphate. This
announcement raises a number of interesting issues concerned with the
definition of a State, and how statehood is determined. Secondly, what is the
import of describing this entity as a Caliphate. Is it a different category of a
State? How does the title or status as a Caliphate affect or interact with the
answers to the above initial questions?
Many of these questions are problematic to answer, and difficult to do so in
the space available. For example, when will a State be considered a failed
State? Do Iraq and Syria qualify as failed States? If so what are the
consequences? In order to start the discussion at the baseline, so that
(hopefully) more detailed answers will follow in subsequent editions, lets turn
to the first issuethe definition of a State, and how statehood is determined. A
working definition of a State can be found in article 1 of the Montevideo
The Anbar Awakening was the name given to the agreement that united local Sunni tribal
leaders, sickened by the policies of al-Zarqawi, to fight with US forces against al-Qaeda in
Iraq resulting in serious reversals for al-Zarqawi and his group.
6 There is little room to fully discuss the flaws, and sheer stupidity of the Shiia dominated
Iraqi government, but one relevant point is the government reneged on several promises
made to the Sunni tribal leaders made to enlist their support during the Anbar Awakening.
Thus after 2011 many of those same tribal fighters swore allegiance and joined al-Baghdadis
forces swelling his numbers considerably with experienced, well-armed, loyal and highly
motivated fighters.
7 Also known as or Islamic State in Iraq and Syria (ISIS) or al islamiyye fil iraq wal sham in
Arabic.
8 Professor Greg Barton, Director of the Centre for Islam and the Modern World, The Islamic
State Movement: Challenges at Home and Abroad, School of Social Sciences, Faculty of Arts,
Monash University, Thursday 16 October 2014 Monash University, Caulfield Campus.
5

Convention of 1933 on the Rights and Duties of States.9 Not all commentators
accept the criteria in article 1 as identifying all the characteristics of
statehood.10 However, the Montevideo criteria are generally accepted as a
convenient normative basis for the definition of statehood,11 and thus will
serve here as the basis for a definition of a State. The four criteria and thus the
four characteristics of a State are as follows: (1) a permanent population; (2) a
defined territory; (3) a government; and (4) a capacity to enter into relations
with other States.12
International treaties as well as academic commentators have long
acknowledged the importance of the link between recognition and statehood.13
However, there has been much debate over the nature of this link. In
summary how important is the act of recognizing statehood? Is it a necessary
part of the process of determining statehood? Does it create a State, or does it
cure imperfections in a claim to statehood? Or is it a mere acknowledgment of
an existing fact- in which case it really is not necessary at all. The debate is
expressed through two central theories of recognition- the constitutive theory
and the declaratory theory. James Crawford defines the declaratory theory as
...the theory that statehood is a legal status independent of recognition... and
the constitutive theory as the theory that the rights and duties pertaining to
statehood derive from recognition only.14 Most commentators today would
argue that the declaratory theory is correct.15

The Montevideo Convention on the Rights and Duties of Sates, signed 26 December 1993,
135 LNTS 19 (entered into force 26 December 1934) (Montevideo Convention), was adopted
by a total of 16 (the US and 15 Latin American States) States at a meeting of the 7 th
International Convention of American States held in Montevideo.
10 See for example: Thomas D Grant, Defining Statehood: the Montevideo Convention and its
Discontents (199899) 37 Columbia Journal of Transnational Law, 43457; Oyvind
Osterud, Sovereign Statehood and National Self-Determination: A World Order Dilemma in
Marianne Heiberg (ed), Subduing Sovereignty and the Right to Intervene, (Pinter Publishers,
1984), 212; James Crawford, The Creation of States in International Law (2nd ed, Clarendon
Press, 2006) 313; David Rai, Statehood and the Law of Self-Determination, (Kluwer Law
International 2002,), 24; Ian Brownlie, Principles of Public International Law, (5th ed OUP,
1998), 70.
11 David Harris, Cases and Materials in International Law (5th ed, Sweet & Maxwell, 1998)
102; Crawford, (n 10), 45; Grant, (n 10), 414, and the list of refines in his note 51 at 425.
12 There are other important factors as well, for example, independence: namely that it is not
subordinate to, or under the legal authority of, another state: Crawford, (n 10), 61-63, 66.
13 See for example: Sir Hersch Lauterpacht, Recognition in International Law (1947) 1, 90;
Lauterpacht, Recognition of States in International Law, above n 19, 385; Franck, The Power
of Legitimacy, above n 131, 112; PK Menon, The Law of Recognition in International Law:
Basic Principles (1994) 27; Hillgruber above n 15, 492, and Article 10 of the Bogota Charter
of the Organisation of American States, open for signature 30 April 1948, 119 UNTS 48
(entered into force 13 December 1951) (Bogota Charter).
14 Crawford, (n 10), 4. Other commentators have similar definitions see for example: Sir
Hersch Lauterpacht, Recognition in International Law: (CUP, 1947), 42533; I A Shearer,
Starkes International Law (11th ed, Butterworths 1994) 120; Thomas D Grant, The
Recognition of States, Law and Practice in Debate and Evolution, (Praeger West 1999), 24.
15 Grant, (n 14), 4; John Dugard and David Rai, The Role of Recognition in the Law and
Practice of Secession in Marcelo G Kohen, Secession, International Law Perspectives, (CUP,
2006) 94, 99; Opinion No 1 Badinter Commission (29 Nov 1991), [1(a)], as cited in the
Appendix to Alain Pellet, The Opinions of the Badinter Arbitration Committee: A Second
Breath for the Self-Determination of Peoples (1995) 3 European Journal of International
Law 178. This position was restated in [2] of Opinion No 8, Badinter Commission (4 July
9

With over 47 States now either actively or indirectly participating in a

coalition to dismantle IS, the so-called network of death,16 it could be
perhaps inferred that few if any acts of recognition will ever be made.
However, if the declaratory theory, as defined above, is correct- this collective
outrage is simply irrelevantor is it? One commentator, David Raic, argues
that statehood is determined through a two-step process: resolving the
Montevideo criteria, before determining whether the creation of the entitys
statehood breached international law.17 If so who determines this two-step
process? The 47 States who seek to destroy IS, the UN?18
History is littered with acts of recognition motivated by purely pragmatic
political considerations.19 What indeed is the purpose of recognition, does it
determine statehood, or is it more a diplomatic process? Or is there a genuine
requirement to ensure respect for the values and norms of human rights, or a
process to ensure that new States will exist in harmony with the
international community? The answer to these questions are not as obvious as
it first appears when it is considered that many of the norms of international
law have been developed by the West and it could be argued that even nonwestern practitioners or members of the International Court of Justice (ICJ)
bench are still influenced by the doctrinal influence of Western legal systems.
ISs actions are as much about rejection of Western influence and
interference as they are about anything else.
Moving on to the second tier of issues-what is a Caliphate?
A simple look at Wikipedia reveals the following definition: A caliphate is an
Islamic State led by a supreme religious and political leader. Conceptually, a
caliphate represents a sovereign state of the entire Muslim faithful, ruled by
a caliph under Islamic law (sharia).20 What does this mean, how does a
Caliphate fit within the existing political-legal structure of the current
international community? Will a sovereign entity that lacks democracyAlBaghdadi was effectively a self-appointed Caliph be considered a State?
Does a State that imposes a legal regime that ignores human rights, render
itself illegal? Essentially then, in addition to the two-step process Raic
1992) 92 ILR 199, 201. And yet it could be argued that the Badinter Commission took a
constitutive approach.
16 In the words of President Obama in a speech made to the United Nations.; Mark Landler In
U.N. Speech, Obama Vows to Fight ISIS Network of Death, The New York Times, 24th
September 2014, <http://www.nytimes.com/2014/09/25/world/middleeast/obama-syriaun-isis.html?_r=0
17 David Rai, Statehood and the Law of Self-Determination, (Kluwer Law International,
2002), 154; John Dugard and David Rai, The Role of Recognition in the Law and Practice of
Secession in Marcelo G Kohen, Secession, International Law Perspectives, Cambridge:
Cambridge University Press, 2006, p. 98.
18 Dugard makes this suggestion- he refers to it as collective recognition through UN
Membership: John Dugard, Recognition and the United Nations (Grotius Publications
Limited, 1987).
19 I have argued this point many times see for example Andrew Coleman Resolving Claims
to Self-Determination (Routledge, 2014) and will do so again, hopefully in an article that will
be accepted for subsequent publication.
20 en.m.wikipedia.org/wiki/Caliphate (accessed 6 October 2014)

mentions above, is there a third post facto requirement that States after
their creation comply with human rights instruments and accepted norms in
order to remain States? This issue refers to the criterion of permanent
government in the Montevideo Criteria, and asks the question: whether it
must be of a particular type? Should it be a democracy- more importantly a
secular government? Or is this just evidence of Western thinkingassumptions of the superiority of Western norms? After all Iran could be
described as a theocracy and Saudi Arabia as an autocracy. Are their
statehoods in doubt?21
Conclusion
Writing about IS historian John Bew from Kings College, London, describes
the challenges posed by IS to the global community.
The dilemma thrown up by the collapse of the Ottoman empire is the
same as it ever was. Second-guessing the future and anointing the
would-be leaders of the next phase of Middle Eastern history has
proved to be beyond the gift of western policymakers for a hundred
years. Yet shutting the door on the region, and hoping they just get on
with it, is no sort of solution at all.22
The implications of recognizing -or not recognizing- ISs statehood are
significant to say the least. What does ISs statehood mean for the Kurds and
their claim for statehood? How would recognizing IS statehood impact on the
current norms of international law? What message would recognizing IS
statehood send to extremists in other States who seek to overthrow the
current regime in favour of a theocratic one dominated by Sharia law? If noone is held to account for the human rights abuses what impact will this have
on the credibility of the ICC and the whole international humanitarian law
regulatory regime? And there are important socio-political questions raised as
well. A Sunni extremist State would have a major impact on the power balance
in the new cold war between the Sunni and Shiia powerbrokers, Saudi
Arabia and Iran.23 Will IS be the trigger of a greater conflict between the two
major sects within Islam: an Islamic reformation and counter reformation?
Bews comment above stresses that something must be done, and perhaps he
is right. If international law is to have any credibility in the twenty-first
century it must be able to deal with the challenges posed by IS: the question is
what, and how?
It is hoped that this humble introduction to the various issues surrounding IS,
and its infamy, provide an opportunity, as tragic as it may be, to consider the
important fundamental underpinnings of our international community and
the laws that regulate it. It is planned that a broader discussion of these
Gregory Treverton, The New Cold War, Iran Versus Saudi ArabiaHow Far will it Go?,
Prospect, February 2014, 22, 26.
22 John Bew, The Tragic Cycle, from Sykes-Picot to the Rise of ISIS the Western Powers and
the Middle East NewStatesman, 15-21 August 2014, 23, 27
23 Treverton, (n 21), 22.
21

issues will take place in a forthcoming issue of the Journal of the Philosophy
of International Law.
Anybody seeking to contribute to this discussion should contact the editor-inchief Dr Jackson Maogoto at jacksonmaogoto@aol.com . More information
can
be
found
at
the
journals
website:
https://www.electronicpublications.org/catalogue.php?id=47 submissions
can be made electronically at JPIL@electronicpublications.org,JPILsubmissions@mail.com