Recent events concerning the Islamic State (IS), especially those which had a broader media coverage – as the atrocious beheadings of civilians, be them journalists, cooperants or tourists – contributed to the spreading of a common position on these combatants: they are terrorists, and as such they should be treated. As already occurred in 2001 with Al Qaeda and the Taliban, we are caught in a debate whose answer seems unilaterally given and calculated on emotional basis. It is just easy to say ‘they are terrorists’, is it not?[1] Once again, international law has been set aside, and this lack of consideration will have a much bigger impact in the future than one would think.

The US administration, and president Obama in particular, have authorized the bombings of IS bases in accordance to the principle set forth by the Authorization for the Use of Military Force (AUMF) already used in 2001 and 2002. By doing so, Obama could avoid the Congress to act. Worthy of a note, is also the absence of any mandate by the UN Security Council; as a consequence it did not take long for China and Russia to report this circumstance. How did Obama justify this stretching? The AUMF authorizes the use of force against those responsible for the 9/11 attacks and those harboring them. In these years it has been used against Al Qaeda, the Taliban and their ‘associated forces’. Previous links between the IS and Al Qaeda – the IS was, in its former denomination, Al Qaeda in Iraq – seem sufficient to re-use the very same congressional authorization signed by Bush to begin the ‘war on terror’. Unfortunately, this decision was criticized not only by political and congressional rivals, but also by eminent scholars and human rights lawyers. The IS and Al Qaeda are now enemies, and to consider the previous links, as the rationale of this same ‘legal pattern’ seems to jeopardize not only the whole system of checks-and-balance of the American power, but the International system as well.[2]

That being said, let us try to look at the problem that IS combatants bring about in accordance to international laws. In order to do so, I will consider as parameters Geneva Conventions and relevant laws of war.

Starting with the Geneva Conventions of 1949, they are, as a matter of common knowledge, the foundations of the International humanitarian law. At the core of this codification there are in fact provisions on prisoners of wars, civilians and the protection that engender from it. However, what is often underrated is their symmetrical role in the creation of common standards also for lawful belligerence. Article 4 of the third Convention set forth six principles for being considered prisoners of war, and so as a reflex, to be a lawful combatant: 1) to be organized; 2) being commanded by a person responsible for his subordinates; 3) being member of the armed force of a Party to the conflict; 4) having fixed distinctive sign recognizable at a distance; 5) carrying arms openly; 6) conducting operations in accordance with the laws and customs of war[3].

Taking a closer look at these requirements we can already imagine which ones are the more troublesome with reference to the IS: namely, numbers 3 and 6. That is because organization, command, recognizability, and the carrying of arms openly are, all things considered, respected. As for number 3 – being member of the armed force of a Party to the conflict – one caveat is necessary. Geneva Conventions were the result of a Westphalian approach to International society. Meaning that only States are the actors and players at the International level. The reason of this is simply told: Geneva was used, in the aftermath of WWII, as an occasion to limit as much as possible irregular fighters from gaining any form of legitimacy. In retrospective, the ink was still drying on paper, and Geneva was already outdated. War was never going to be the same after that experience.

Moving back to the IS, they are not fighting in the name or under the authority of the Syrian or the Iraqi government; quite the opposite, they are fighting them to establish a new State, as they call it, a Caliphate. So, although both countries – Syria and Iraq – are, legally speaking, parties of the Geneva Convention, in the sense that they signed and ratified them respectively in 1954 and 1956, the Islamic State is not. And since there is to date no war declared against Iraq (the government asked explicitly for International help) nor against Syria (although this last aspect would require a whole different analysis), this requirement is not respected by IS combatants. To make this evidence even more appalling, IS goal has no consideration of territorial integrity or previous borders.

The same thing can be said for number 6, which is the one concerning the respect of the laws and customs of war. However, to claim if these standards are or are not respected is a bit more complicated than it might appears. On the one hand, the Islamic State is raging civilians with brutality. Hundred of thousand, from different minorities, have been displaced and stranded on the mountains in north Iraq; while many are entering Turkey from the Syrian border. In addition to that, to make this consideration even more solid, the recorded murders of prisoners, like in the case of international journalists and cooperants, mark a point of no return. These acts are unjustified and heinous in every single way, and no further explanation is really needed. IS members who are responsible of these acts are not respecting the basic laws of war, and so they should be treated like war criminals[4].

On the other hand, a whole different issue is to analyze the remainder of the actions carried on by the IS, which is the fight against the army of Syria and Iraq. A fight under more ‘classic’ circumstances. More specifically, it is interesting to answer this question: how should they be treated in case of detention? Before jumping to conclusions, it should be noted that the standards above mentioned, those outlined in Geneva, were modified in more recent times. The Additional Protocol of 1977, had at its basis the necessity to modify an instrument that, although useful, was too much of a photography of the post-World War II era: “Geneva Conventions are premised on a world in which combatants generally qualify for prisoners-of-war status and in which civilians do not regularly engage in hostilities. Neither of these assumptions is true in conflicts with non-State actors”.[5] And the Islamic State is clearly something different from what we saw in the past, even in the most recent.

However, the strongest novelty introduced by this Protocol was the attempt to include within the network of protections also non-State actors, even those not recognized by the other part[6]. This element makes definitely a bell ring. The IS and its combatants are really something that comes close to this definition, as debatable as it might be. The most critical voice against the Protocol was and still is that by its ratification, States run the risk of legitimizing practices of terrorism by guaranteeing belligerence and consequently the status of prisoner of war also to members of non-State actors. In fact, the Protocol does nothing but adapt the International law to the new reality of war, especially the one of the last 50-60 years. The Protocol does not justify either terrorism or terrorist organizations. Its purpose is to extend the obligations and protections of the International humanitarian law also to a limited group of non-State actors, providing that they are able to justify such privileges with their actions during a conflict[7].

In short, to justify rights and duties of a legitimate belligerence not on mere membership to a group, but on the actions of these. IS members, the day they are sized and imprisoned, should be considered responsible in the light of their single action and not on membership. This means that some of them, probably many of them, should not be granted the rights of legitimate prisoners of war, since their code of behavior was not deserving of this safeguard. On the other hand, in the case that no evidence of heinous and war crimes is proved for that single combatant, they should be treated in accordance to International humanitarian law and Geneva III. As strange as it might seem, the Islamic State is not Al Qaeda. They are as a matter of fact an effective, well-equipped, and well-funded army, with statehood aspirations, and whose numbers and military success concur in setting them aside from the terrorism we experienced in the last decades. It is in our own interest to understand this difference and the consequences it engenders.

It is unfortunate that a great number of States did not ratify this Protocol, since it guarantees some minimum protection to all, but still in doing so, it marks a strong difference with lawful combatants. This issue is even more important in a context where the exclusion from Geneva Conventions was often interpreted as a ‘green-light’ for torture. If we really want to win this battle against extremism, we should do it by the law, and not only by the use of drones. Almost 15 years of stretching of International standards did not work that well for Western societies and their allies. To some extent, it is even possible to say that the young generations that are now fighting for the IS, are also those influenced by images of abuse and torture in Guantanamo, Abu Ghraib and so forth. This is especially the case of the thousands of foreigners who have joined this sick cause. Extremism has found feeble minds to manipulate here. It is our responsibility to draw a line between us and them, and the only way to do so is to respect the International law, and to keep our standards as high as possible.

 

MARCO QUAGLIA

Master of Arts in International Relations (LUISS “Guido Carli”)

 

 


[1] M. Bothe, K.J. Partsch K.J., W.A. Solf, New rules for victims of armed conflicts. Commentary on the two 1977 Protocols additional to the Geneva Conventions of 1949, Martinus Nijhoff Publishers, The Hague-Boston-London, 1982.

[3] Third Geneva Convention, 1949.

[4] G. Draper, The status of combatants and the question of guerilla warfare, “British Yearbook of International Law”, 45, 1971.

[5] J.B. Bellinger III, V.M. Padmanabhan, Detention operations in contemporary conflicts: four challenges for the Geneva Conventions and other existing law, “American Journal of International Law”, Vol. 105, No. 2, April 2011.

[6] Protocol I, 1977.

[7] J. Callen, Unlawful combatants and the Geneva Conventions, “Virginia Journal of International Law”, 44, 2004.