BEYOND THE LIMITS OF INTERNATIONAL LAW: TERRORISM AND THE CONDUCT OF STATE AND NON-STATE ACTORS. Bengi KADIOĞLU*

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1 BEYOND THE LIMITS OF INTERNATIONAL LAW: TERRORISM AND THE CONDUCT OF STATE AND NON-STATE ACTORS Abstract: Bengi KADIOĞLU* Since the last couple of decades new threats to international peace and security worry international lawmakers. The root cause of this concern is the entry of non-state actors to the field of international relations, traditionally occupied by sovereign territorial states. The most prevalent threat to international security today is terrorism, leading to the loss of states monopoly to use force and to the creation of asymmetric warfare. International law fails to formulate a coherent response to challenges posed by non-state armed groups who claim to use illegitimate force. The paper addresses the issues related to conditions set forth by international law in waging war against the non-state armed groups and the limits of the conduct of parties to the warfare through the case study of the Islamic State of Iraq and al-sham (ISIS). The first part focuses on the justification of use of force against non-state armed groups and the problems related to jus ad bellum. The next part reviews the relevance of jus in bello in armed conflicts with non-state armed groups. The last part provides a specific focus on the ISIS, under the previous discussions. This paper argues that state practice based on relative power capabilities creates customary international law so long as the United Nations fails to take collective measures to contain nonstate armed groups, which develop as potential new subjects of international law. Introduction Our notion of security is going through a substantial change since the last couple of decades, with the emergence of new issues under the field of international relations. The twentieth century saw armed conflicts between territorial sovereign states that differ in terms of their relative power and resource capabilities. However the states are no longer the only threats to the existence of each other. Emergence of non-state armed groups not only challenge international security but also intensifies the asymmetry of power among the actors of the international scene. International law, as another fellow discipline of international relations, envisages confronting these new challenges to international security. It was not until the twentieth century that a genuine international law on war was elaborated. In the post-world War Two period, liberal institutional arrangements such as the United Nations (UN) pioneered to set out rules governing the legitimacy and the conduct of war in addition to instruments such as the Hague and Geneva Conventions. The main assumption of international law was that the legitimate use of force resided in states. However, the September 11 attacks and the rise of non-state armed groups put this Westphalian logic into question by undermining the idea that international wars were struggles between territorial sovereign states (Falk 2006, 727). Since the 1970s, non-state armed groups produce terrorism as a mechanism to threaten modern territorial states. The emergence of terrorist groups thus poses a serious challenge to the international law in two respects. First, these unrecognized actors in international law pose in *Ph.D. Candidate in Political Science and International Relations, Bahçeşehir University, Istanbul 1

2 question the scope of international law to apply in times of armed conflict. Secondly, the inability of international law to provide for a genuine and coherent response to terrorism reflects the divergence in the conduct and interests of nation states. This paper aims to discuss the issues related to international law in relation to non-state armed groups in two respects. First, limits and difficulties of states in waging a war against non-state armed groups will be considered. This section will focus on the justification of use of force against non-state armed groups and the problems related to jus ad bellum due to divergent conduct of states vis-à-vis the self-defense mechanism. The next part will briefly review the relevance of jus in bello in armed conflicts with non-state armed groups. The last part will provide a specific focus on the Islamic State of Iraq and al-sham (ISIS), under the previous discussions. The main argument of this paper is twofold. Firstly, international law is unable to provide for a coherent mechanism to maintain international security under the threat posed by non-state armed groups. Rather, the conduct of states, determined by their relative power and interests, produce customary rules. As displayed throughout the paper, the UN employs the self-defense option against the non-state actors and refrains from adopting a uniform approach against terrorist acts. Secondly, de facto use of force by non-state armed groups generates an inquiry on the conduct of the asymmetric warfare between state and non-state actors. It is shown that there is a gap in international law both in terms of justification in entering into armed conflict with a non-state actor and the conduct of actors during the conflict. The case of conflict with the ISIS demonstrates these contradictions in international law. Non-state Armed Groups in International Law International law of war sets out two situations with respect to armed conflicts. The first one is related to the rationale for going to war or entering into an armed conflict, the jus ad bellum. This principle defines the extent to which entering a war is justifiable and on what conditions a war can be initiated. It relates to the question of who is allowed to use force and in what circumstances, and hence can be used to describe the legal rules regulating resort to force by states (Kolb and Hyde, ). The second principle, jus in bello, is related to the conduct of war and sets out rules on how the war should be fought. It is associated with the law of armed conflict and comprised of the rules responsible for regulating and limiting the phenomenon of armed conflict by spelling out the rights and duties of the belligerents and third states not participating in the armed conflict (Kolb and Hyde 15). Given these definitions, the belligerents recognized by the international law on armed conflicts are states based on the principal assumption of international law that the monopoly of use of legitimate force belongs to states. The non-state actors are in principle disregarded to be treated and bound by international law. In terms of conflicts with non-state actors, there is inevitably a gap in international law in maintaining security of not only nation states but also of individuals. The present paper focuses on the practice of jus ad bellum in terms of conflicts with non-states armed actors, and provides a brief discussion on the problems related to jus in bello during armed conflicts with these groups. 2

3 Armed conflicts with non-state armed groups Although rules of international law on armed conflicts were codified in the early twentieth century in separate instruments, principles regarding the preservation of international peace and security were drafted right after the Second World War under the United Nations (UN) setting. The United Nations Charter, which was adopted in 1946, is the main instrument that incorporates the use of force among member states. The principal canon is the prohibition of the use of force. According to article 2(4) of the Charter, all members are required to refrain from the threat or use of force against the territorial integrity or political independence of any state. An act could violate the principle of non-interference in two different categories of cases: when a state exercises acts of public authority or enforcement such as the arrest of certain persons on the territory of another state without its consent, as if the latter did not exist as a sovereign state; and when that act has the effect of bending the will of the other state in order to force it to act in a certain manner against its will (Clapham 2010, 40). Consequently, in substance, the Charter prohibits the use of force, which would affect the territorial integrity of a state. In Articles 42, 43 and Article 51, the Charter recognizes two exceptions to this prohibition: the forcible enforcement measures within the framework of the organization s collective security system, and the right of self-defense against armed attacks (Tams 2009, 360). In accordance with the aim to preserve international peace and security, Chapter VII of the Charter allows use of force under Article 42 on the appreciation of the Security Council. There are three situations when states can resort to force: when there is a threat to peace, breach of peace or an act of aggression. In terms of jus ad bellum, use of force is justifiable when one of the three situations arise. On the other hand, Article 51 protects the inherent right of individual or collective self-defense when an armed attack occurs against a member state until the Security Council takes a measure to restore international peace and security. Consequently, in times of a breach of international peace, use of force is legitimated either through a Security Council Resolution or through the practice of selfdefense of member states. Under the spirit of the UN Charter thus, and in parallel with the Weberian logic, only a state has the monopoly to use legitimate violence (Guillaume 2004, 548). By the late 1980s, we reached a broad consensus that the prohibition against the use of force was comprehensive in scope, and that it declared every use of force in the international relations of a state to be prima facie illegal (Tams 364). However, this understanding does not respond to current challenges to maintain international security. New security threats since 1980s such as terrorism involve use of force by non-state actors, which is a priori illegitimate. Non-state armed groups have acquired significant importance in contemporary world politics in so far as they contest the legitimacy of state monopolization of organized violence more than ever before (Mulaj 2010, 24). In international law, there is no established definition of terrorism. Although the UN draws the framework for the preservation of international peace and security it failed to adopt a comprehensive anti-terrorism convention. Rather, separate sectoral conventions on specific types of terrorist activities were ratified (Tams 363). As a generally accepted notion, terrorism indicates perpetration of certain acts of violence capable of causing death, very severe physical injury, fear or intimidation by an organized individual or collective enterprise to achieve a specific goal (Guillaume 540). First definition of terrorism in international law was provided in the Convention on the Suppression of Financing of Terrorism as any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate 3

4 a population, or to compel a government or an international organization to do or to abstain from doing any act. The objective element of terrorism is the commission of a crime, whereas the subjective element is the intention of the perpetrators, which is intimidation (Walter 2002, 6). Thomas et al. provide the most updated definition of terrorism as the deliberate creation and exploitation of fear through the use or threat of collective violence against innocents in the pursuit of political change (Thomas et. al 2005, 177). States that are party to the 13 international legal conventions on terrorism, agree to cooperate and criminalize actions regulated by these conventions and prevent certain terrorism-related activities (Bailes and Nord 2010, 463). In national law, cases of terrorism are considered to be criminal acts. Whereas in international law, the generally applied rule for internationally committed crimes is aut dedere, aut judicare for the author of this crime. This implies that the suspect is prosecuted in a state when no other state has requested extradition. Although this principle ensures that there is not any jurisdictional gap in the prosecution of the suspect, in terms of non-state armed groups international law leaves many gaps. The acts of violence perpetrated by the state itself may be called informally as state terrorism, but it is often assumed that terrorist acts are committed by armed non-state actors, who are not on an equal footing with states in international law. Thomas et. al describe terrorism as the ultimate form of asymmetric informal war (Thomas et. al 159), though it was once qualified as a crime. Virtually all forms of terrorism are prohibited by one of the 12 international counter-terrorism conventions, international customary law, the Geneva Conventions of the Rome Statutes (Corten 2010, 165). There are two implications drawn from this phenomenon. Through international law, we are applying formal rules on an informal warfare. As a crime, terrorism would be punished. However as an informal war, terrorism can now be fought back, creating a kind of reciprocity between the parties of the conflict. Secondly, parties of the war possess an unequal standing. Asymmetric warfare involves belligerents whose military power, strategy or tactics differ significantly. The non-state armed groups are those that resort to organized violence as a tool to achieve their goals (Mulaj 2003). Terrorist groups are the most prominent and popular of those. Although terrorism is not a totally new phenomenon, its scope has been extended in the recent decades. Terrorist organizations such as Action Directe, Brigate Rosse, IRA, FARC etc. have limited cross border links and foreign support, whereas recent entities like al-qaida and ISIS have ambitions to reach beyond a single country (Sunga 2015), raising concerns over international security. These latter organizations perpetrate acts in other parts of the world and gather both financial and physical support in terms of arms and human resources from other countries. Subsequently, the terrorist acts of non-state actors have been a relevant subject of international law. Law is not a static discipline and it is in constant evolution. Rules and principles can thus adapt to changing conditions created by today s conflicts, in particular by terrorism. As a response to this dynamic security threat, many achievements were made at the international level. The main producer of anti-terrorist legislation at the international level is the UN (Laos 2000, 181), which was a product of this post-world War Two construction. The Security Council has set up a special anti-terrorism committee, it has ordered member states to freeze bank accounts of terror suspects, to prosecute specific terrorist acts, and to extradite terror suspects, and it has even assumed the role of a legislator fast-tracking the usual, and cumbersome, treaty-making process but has not so far authorized the use of anti-terrorist force as a military sanction, leaving room for 4

5 military sanctions and operations (Tams 377). However, the use of military force was permitted under self-defense, which took the form of a unilateral action. Terrorism started to be treated as war after September 11 attacks from a mere crime (Thomas et al. 176). Since September 11, some scholars have claimed that the scope of application of the prohibition of the use of force has been extended to the activities of private groups characterized as terrorists, by considering that the article 51 of the Charter could be invoked against them (Corten 161). In the resolutions 1368 and 1373, the Council expressly noted that the attacks of September 11 had triggered a right of self-defense. The recent practice demonstrates that the recognition of non-state armed groups pose some challenges to international law. Armed non-state actors pose two challenges in terms of international law of war. First one is related to recognition challenging jus ad bellum. The proper interpretation of provisions of international law for different cases involving non-state armed actors is uncertain and contested (Hakimi 2015, 2). Traditionally, they are not recognized as legitimate actors in international law, which constitutes a set of rules agreed among states. In addition, they use force illegitimately. The principle contradiction considers thus the qualification of the persona and the acts of these non-state armed groups who are not recognized by international law. Secondly, related with jus in bello, these non-state armed groups do not necessarily comply with the rules set forth by the international law. A majority of terrorist groups acting beyond nation state borders claim to be hostile to the liberal world order, which was constructed during the post-world War Two period. The outcome of self-defense being binding against terrorist groups is that it promotes them from the status of common criminals to being subjects of international law with a degree of legal capacity of their own. This idea is identified as manifestly unreasonable by Corten (Corten 173). The first issue to examine is whether the terrorist acts of a non-state actor can be deemed an armed attack under international law. While the Article 2(4) of the UN Charter mentions specifically that prohibition of use of force refer to states, Article 51 does not mention the nature of party responsible for the attack (Lubell 2010, 31). The member states of the UN are sought as the parties to the armed conflict, although there is no clear explanation as to the party that poses a threat to international peace and security, commits a breach to peace or an act of aggression. In this respect, the party, which commits these acts, can be a non-state actor. Indeed, the Caroline case of 1837 shows that an armed attack needs not to emanate from a state (Greenwood 2002, 308). In this case, the Britain used her right to self-defense against a Canadian rebel group using a US merchant vessel as a base for attacks against the British in Canada. However, a link between the non-state armed group and a state is usually sought, like in the Nicaragua case 1. The new government of Nicaragua, formed following a coup led by the Sandinistas, alleged that the US committed attacks to overthrow the Nicaraguan government. Whereas the US claimed to act in defense of El Salvador, Honduras and Costa Rica claiming that Nicaragua was committing armed aggression against these countries. In this case, the US was convicted on the basis that it provided assistance to the armed rebel group, the Contras, in Nicaragua by bombing the Nicaraguan soil. In the Nicaragua case, the ICJ assessed whether the acts of the Contras could be attributed to the US. The Court introduced the effective control test, satisfied when a state had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. Before September 11 attacks, despite the destructive effects, international terrorism 1 International Court of Justice. Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua vs United States). 27 June

6 of non-state actors did not constitute a use of force within the meaning of law if not sponsored by a state (Sharp 2000, 46). After the September 11 attacks, non-state armed groups were perceived as de facto parties to the conflict. So it was not the personality but the imminence of the threat posed by the terrorist groups that determined whether to qualify their acts as an armed attack or not under international law. The second issue is to see when the use of force is permitted against a non-state armed group. Hakimi proposes three interpretations in international law on jus ad bellum (Hakimi 4): the absolute prohibition of use of force against a non-state actor harboring in a state s territory; grounds for defensive action; and enhanced limitations. In terms of absolute prohibition, in the 2004 advisory opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ plainly stated that Article 51 applies in the case of an armed attack by one State against another State. In the 2005 Armed Activities case between Uganda and the Democratic Republic of the Congo (DRC), the Court saw attribution of an armed attack to a state necessary. Grounds for defensive action includes ungoverned space standard and unable or unwilling test. Daniel Bethlehem also proposes that a state may use force in self-defense, if the harboring state is unwilling or unable to address the armed activities of the non-state actor (Bethlehem 2013, 5). Use of defensive force was justified when the territorial state actively harbors or supports the non-state actors, or lacks governance authority in the area from which they operate, which constitutes the ungoverned space standard. Examples include France attacks on al-qaida in Mali, or Israel s use of force against Lebanon, which harbored Hezbollah. The use of force was also legitimated when the territorial state is unable or unwilling to address the threat that the non-state actors pose, as in the case of Turkey s attacks in Iraq against the PKK and Russian use of force in Georgia against Chechen rebels in 2002 and 2007, asserting that Georgia was violating Security Council Resolution 373 by harboring Chechen terrorists. Third interpretation employs enhanced limitations on the use of defensive force, which is permitted only if the initial attack is especially severe and imminent. Last but not least, states may use force only after the territorial state is given a meaningful opportunity to cooperate with the operation. These latter interpretations are highly dependent on the practice and the appreciation of states. Given different interpretations on jus ad bellum, there is not any single rule on when to use force against a non-state armed group. Many states seem unsure about the correct legal standard or uncommitted to advancing a particular legal standard (Hakimi 21), making the formulation of jus ad bellum in the case of conflicts with non-state actors hard to achieve. Rather, the rules succeed states practices. The prominent practice following the September 11 attacks has been the invocation of self-defense. The war in Afghanistan subsequent to the September 11 attacks targeted Taliban alongside al- Qaida. Taliban has been the de facto government in Afghanistan. Hezbollah have a similar authority in Lebanon over the Shiite population. Groups such as Taliban and Hezbollah possess a personality more than a mere terrorist organization. They claim certain legitimacy in their respective territory, forming a quasi-state. However, their inherent right to use legitimate force is highly doubtful operation was supported by a great number of member states as UN Security Council Resolutions 1368 and 1373 considered September 11 attacks an imminent threat to international peace and security, independent of the personality of its author. One conclusion drawn from the September 11 attacks is that the armed attack in Article 51 has undergone a 6

7 revolutionary change so that now it extends to attacks by non-state actors without state complicity (Gray 2008, 199). When a terrorist act is recognized as an armed conflict under international law, the next issue to consider is the justification of use of force against the non-state actor committing an armed attack. In the event of inefficiency of measures taken in compliance with Article 42 of the UN Charter, self-defense invoked under Article 51 of the Charter becomes the primary justification used by states. The imminence of the ongoing threat posed by the challenger is an important measure to justify self-defense. In order to claim self-defense there are some conditions to meet. Customary international law requires that use of force be necessary for either individual or collective self-defense and that the use of force be proportional to the severity of the threat (Sharp 2000, 42). However the necessity and proportionality of the use of force is often left to the appreciation of individual states. With reference to the jus ad bellum, developments during the last two decades indicate that the law is capable of adaptation. Tams argues that readjustments of the jus ad bellum are not deduced from some legal principle, but borne out by the actual practice of states, which at least during the last two decades has recognized the right of states to use antiterrorist force if this served to avert threats and no other means seemed available (Tams ). Self-defense can take two separate forms. On the one hand, it may target the non-state actors and their bases of operation independent of the state of origin. On the other hand, an act based on self-defense may target the state from whose territory the non-state actor operates (Trapp 2007, 142). This was what happened in 2001, when the international community for the first time viewed both the terrorist organization (al-qaida) and the state (Afghanistan) as legitimate targets of defensive force, by invoking indirect responsibility of the state through harboring and supporting the terrorist organization (Przybylska-Wang 2012, 29). In the ISIS case, as will be explained in the next part, although the intention of the US and the coalition of states is to fight the ISIS, it has been questioned whether the Bashar al-assad government was also at stake during operations. Last but not least, Gazzini argues that self-defense can be a mechanism to punish ex post facto those responsible for the armed attacks and to deter the commission of another attack (Gazzini 2005, 184). In this respect, terrorist attacks are considered constituting a crime and, at the same time, an informal warfare. Another important measure in the use of force through self-defense against a state harboring armed non-state actor is acquiescence of the harboring state, as in the case of Afghanistan in Armed attack of a terrorist group may be attributed to a state, because of its unwillingness or negligence to avoid the attacks. In this respect, attributability and acquiescence can form a basis of use of force against a state harboring a terrorist organization military campaign in Afghanistan targeted both non-state actors and Afghanistan, due to the reason explained above. It was the only case in which international community accepted a state s right to use force against both non-state terrorist actors and the state whose territory that terrorists operate (Trapp 2007, 152) due to harboring of al-qaida in Afghanistan. The practice of international law evolves on a case-by-case basis in relation to the conflicts involving a non-state armed group as a party and where the right to self-defense was invoked. In 1998, following the attack on US Embassies in Kenya and Tanzania, in response to unwillingness of Afghanistan and Sudan to cooperate, the US sent cruise missile attacks in Afghanistan and in 7

8 Sudan, on the basis that both countries were providing assistance to Bin Laden (Sharp 245). The US attacks raised high criticisms of some UN members. In 2006, when Israel attacked Hezbollah on the soil of Lebanon, she claimed self-defense. However, from a Eurocentric perspective, Israel strikes were viewed as extra-judicial killings violating principles of international humanitarian law (Byers 2005, 68). In 2001, following the September 11 attacks in New York and Washington D.C., the United States invoked self-defense to support military operations in Afghanistan against al-qaida. In this case the US could have intervened through a consensual invitation of Afghanistan, through seeking explicit authorization of the Security Council or by claiming a right of humanitarian intervention (Byers 2005, 65). However, the United States opted for the right to self-defense, but also received support of a Coalition on the basis that use of force was necessary and proportional. On the other hand, Olivier Corten demonstrates two cases, which could be interpreted as a real invocation of self-defense against non-state actors: Turkish military intervention against the PKK in northern Iraq in 2007 and 2008; and Colombian military action of 2008 in Ecuador to combat FARC terrorists (Corten 185). As the non-state actors trigger use of force against a member state, from the territory of another member state, the territorial integrity of the latter state would be in question. In order not to breach the territorial integrity and political independence set forth in Article 2(4) of the UN Charter, consent of the legitimate government on whose soil a non-state actor commits armed attacks should be taken before using force. However, in practice, it is not always possible to take the consent of the harboring state. In this respect, there is a problem of legitimacy of the use of force under international law. A member state attacks the soil of another member state, although the latter is not responsible for the breach of international peace. The UN Security Council has been cautious to call for military action under the framework of Chapter VII against non-state actors. In its resolution 1368 and 1373 after the September 11 attacks, although it considered that acts of terrorism are threats to international peace and security, it has not made express reference to Chapter VII (Gray 227), which seeks measures to be taken by the Security Council, including military intervention. In 1990, the Security Council had treated the invasion of Kuwait as a breach of peace and ordered eventually military measures against Iraq (Greenwood 2002, 307). However, in 2001, the Security Council recognized the right of self-defense considering that the terrorist attacks of September 11 constituted armed attacks for the purpose of Article 51. Moreover, failure to refer to self-defense in some cases can be taken as an indication that the right to use force in self-defense against past terrorist acts should remain exceptional (Gray 228). In the absence of an explicit measure sought by the Security Council, self-defense practice resides with the conduct of the state, which could be supported or criticized by the international community. Consequently, acts of non-state actors become an object of international law so long as they constitute a threat to international peace and security, which the UN seeks to preserve. However, in most of the cases discussed above, the right to self-defense was claimed against an action of a non-state actor, because Article 51 does not expressly states that conflict should emanate from a state. As Tams argues the extraterritorial use of force remains prima facie illegal, but justification seems much more readily available than 20 years ago. In theory, UNSC can authorize use of force against terrorists, but as far as forcible measures are concerned, the contemporary strong international policy against terrorism therefore has been implemented outside the Security Council framework (Tams 392). 8

9 There are therefore different interpretations in terms of use of force against a non-state actor. Rather, international law considers the situations case by case. While the attacks of Israel were condemned by some states, September 11 attacks have been an important turning point in justifying use of force against non-state armed groups by member states through invoking selfdefense. Tams views the new practice more than a response to the September 11 attacks, as international community has widely accepted the use of force against terrorist groups and an expanded doctrine of self-defense has been invoked compared to its classical use (Tams 392). The states that supported operation Enduring Freedom usually emphasized the responsibility of Afghanistan, rather than the origin of threats posed by al-qaida as a non-state actor (Corten 183). In more recent years, the Security Council has had no hesitation in treating acts of international terrorism as threats to peace (Greenwood 2002, 306). However, changes to the jus ad bellum resulting from the post-september 11 practice disguised aggressive force as self-defense in the war on terror (Trapp 155). After the attacks, non-state origin of the attack attracted little attention, given the immediacy and the extent of the threat. There has been growing concern that Operation Enduring Freedom overstretched the limits of self-defense (Tams 378). The United States 2002 National Security Strategy went well beyond these claims; it famously asserted a right of pre-emptive self-defense against non-imminent threats, in particular those by terrorist organizations (Tams 381). The scope and the intensity of the destruction is one that in the past has only rested within the power of a nation state, and should qualify the attacks as an act of war (Yoo and Ho 2003, 4). However today, acts of non-state actors are qualified armed attacks. September 11 attacks and the subsequent reaction have led to the emergence of a new law on the use of force, authorizing states to use force on foreign territory in the face of grave acts of violence regardless of any link between the organized group and the state (Guillaume 2004, 546). However, international institutions such as the UN are cautious to authorize military intervention in such cases due to concerns over territorial integrity of the states whose soil is attacked. It rather prioritizes claim of self-defense and leaves the conflict management to the appreciation of the states in compliance with international law. In this respect, the UN gives the responsibility to the state claiming selfdefense. The case of the ISIS represents a similar perspective of the UN. The shortcomings of the normative framework should not extend the scope of application of the jus contra bellum, but to reinforced repression of terrorist behavior in the conventional domain. Olivier Corten argues that invoking self-defense against terrorist organizations should not lead to recognize them as actors of international law. Jurisprudence does not provide jus ad bellum for private groups to use force but recognize their acts as armed attack. If we invoke jus contra bellum to non-state actors, that would mean to recognize them as actors of international law (Corten 166). If we can assert jus ad bellum for non-state actors, then jus in bello can also be invoked for the armed conflict with a non-state armed group. Conduct of the armed conflict with non-state armed groups The conduct of warfare once the hostilities have begun is the subject of jus in bello. It is usually used with the term international humanitarian law (IHL). International humanitarian law limits the use of violence in armed conflicts by a) sparing those who do not or no longer directly participate in hostilities; b) limiting the violence to the amount necessary to achieve the aim of 9

10 the conflict (Kolb and Hyde 15). There are some principles of IHL such as prohibition of attacking those hors de combat, inflicting unnecessary suffering, principles of necessity and proportionality etc. as well as defining the rules relating to the status of prisoners of war, civilians and combatants. In order to mention jus in bello, it is assumed that an armed conflict is taking place between parties recognized by law. Traditionally, jus in bello apply to international armed conflicts between nation-states. According to Quenivet and Shah-Davis, international humanitarian law only applies to groups that are hierarchically structured (Quenivet and Shah-Davis 2010, 9). Loose networks without a chain of command do not qualify for a hierarchically structured organization. The ISIS, for instance, can be considered a structured organization, however for Quenivet and Shah-Davis, illegal networks have flat organizational structure, although they might have entered in grave acts of violence as in the case of FARC in Colombia (Quenivet and Shah-Davis 15). Next, the combatants should distinguish themselves from the civilian population. To be a prisoner of war, a combatant must be part of a chain of command, wear a "fixed distinctive marking, visible from a distance", bear arms openly, and have conducted military operations according to the laws and customs of war. Conventionally, a non-state actor, almost never qualifies for prisoner of war status (Dunlap 2016, 2). However, the al-qaida fighters at Guantanamo were subject to customary international law requirements of humane treatment (Greenwood 2002, 317). If an armed conflict is recognized as such under international law, international humanitarian law should also apply to such conflicts. According to Magliveras, warfare related to international terrorism must be conducted in conformity with international humanitarian law, whereas International Court of Justice has failed to properly address the role of non-state actors in contemporary international law (Magliveras 2010, 338). Although there is no agreement whether armed non-state actors could qualify prisoner of war, they should be treated in accordance with humanitarian considerations. There is therefore a dilemma in jus in bello, in terms of treatment of non-state actors. Under international law, if a party has obligations, it also enjoys some rights. When an entity has legal personality, it possesses rights as well as obligations (Zarei 2014, 4). If an entity is accorded obligations under humanitarian law, then it is also accorded legitimacy. In order for international law to apply it is important to determine whether the situation involving a non-state actor rises to the level of an armed conflict through crossing of a certain threshold of violence (Yoo and Ho 7). Once that threshold achieved, IHL, which is a sub-field of international law should also be considered. However, international law hesitates if non-state actors can be lawful belligerents (Yoo and Ho 8) due to its controversial nature. There is therefore a gap in terms of the application of international humanitarian law on non-state armed groups. In the previous part, it was argued that terrorist acts are qualified as a form of asymmetric and informal warfare, creating reciprocity between its belligerents. In terms of reciprocity, it is hard to bind a non-state actor with rights and obligations created by states. The main problem is the fact that the terrorist groups such as the ISIS have been emerged as a reaction to the Westerncentered order and do not consider themselves to be part of this setting. Therefore, they would accept neither rights nor obligations accorded to them by such a system. International law has its entire edifice based on the consent of the party, which is hard to attain with non-state armed groups. If the aim is to treat all parties to unequal conflict equally, exclusionary clauses that may allow the treaties against terrorism to apply to some parties, but not to others, because of their 10

11 status rather than their actions, should be interpreted and applied narrowly (O Donnell 2006, 879). In this respect, not only there is an asymmetric warfare but law that regulates the conflict is asymmetric. Consequently, the conflict involving the non-state actors represents the insufficiency of the international law. Rather the consent of the parties is essential. For instance, non-state armed groups in Sudan, Kosovo and Afghanistan etc. publicly committed themselves to banning the use of landmines and have indicated their willingness to abandon mines on the condition of reciprocity (Magliveras 345). Including non-state and even terrorist groups a part of this system may be necessary under a different arrangement in international law. Westphalian system and the liberal Western idea were based on the role of international institutions in solving disputes. During the Westphalian era the law was shaped according to the priorities of the Eurocentric world, based on a statist logic that accepted force, war and hierarchy as rational instruments of statecraft (Falk 735). The terrorist acts since the last decades including the ISIS challenged the Westphalian world order. There are views in academia that are increasingly supportive of the application of jus in bello for non-state armed groups. According to some, the international law must respond to the challenge that nonstate actors pose by recognizing them as legal actors (Howley 1) and that the non-state actors should not be treated as traditional objects of international law, but as potentially new subject of it (Zarei 3). However, recognizing such groups may lead to legitimize their use of violence. Second Protocol of the Geneva Convention admitted the direct responsibility of rebels, terrorist and armed opposition groups in humanitarian law (Zarei 7). According to Ryngaert, in terms of jus in bello, all armed groups active on a state territory to international humanitarian law may be subject to it (Ryngaert 2008, 3). Armed groups can be bound by international humanitarian law conventions because treaties can create obligations for third parties based on article 35 of the Vienna Convention on Law of Treaties (Ryngaert 5). Though treated as a subject to such instruments, non-state actors can claim rights to be treated according to international humanitarian law, but it is difficult to claim that they are subject to obligations without their consent. There is therefore a legitimacy deficit that international law suffers in relation to nonstate actors (Ryngaert 11). At the UN level, there are some reservations in according rights and obligations to non-state armed groups. One important development on the question of non-state actor accountability for human rights was the adoption of Resolution on Consequences of acts of Violence Committed by Irregular Armed Groups and Drug Traffickers that Affect the Enjoyment of Human Rights by the UN in Tayler points out that the resolution avoids the term human rights violations, and instead uses the phrase affect the enjoyment of when speaking about human rights problems (Tayler 2010). In the event of using the term human rights violations, the IHL could be invoked. Tams proposes some alternatives in dealing with terrorism at the international level (Tams 395). Firstly, international cooperation could be reinforced to include enhanced duties to criminalize and prosecute terrorist activities, arrangements for cooperation in criminal matters, as well as in the fight against financiers of terrorism, which would require a more responsible and active Security Council. Secondly, the states may tend towards retaliatory defense, a protean jus ad bellum and disregard constraints of the Charter in defense of community goals. Last but not least; we may witness the emergence of a regime of international enforcement jurisdiction over terrorists (Tams 395). 11

12 Some argued that attempts to hold non-state entities accountable to international law might dilute the claim that upholding human rights was primarily a responsibility of states (Tayler). Magliveras suggests that in any deliberations that might take place, not only usual stakeholders like states, intergovernmental organizations etc., but non-state actors of terrorist type should also be included (Magliveras 339). The international law should therefore move into a direction to bring non-state armed groups at the same table with states if not to the same status. Magliveras proposes to either amend Geneva Conventions of 1949 so as they would apply to armed conflicts involving acts of terrorism or to conclude a brand new multilateral treaty regime addressing specifically acts of terrorism related warfare (Magliveras 352). However, though possible in theory, both suggestions have two difficulties. First, it would not be realist to expect states that are potential victims of a terrorist act to accept to sit on the same table with terrorists, which would mean recognition of these actors. The invocation of IHL with regards to terrorist organizations would mean to treat the terrorists humanely, whereas their acts are recognized as atrocities. Secondly, it would be even harder to make terrorists sit at that table, especially those with cross-border activities organized to counter the established world order based on liberal values. However, all depends on the expectations of and negotiations of the parties involved. International law should be particularly reformed in terms of asymmetric warfare, which includes parties on unequal footing in terms of power, goals, recognition and support. Given the violence created by terrorist acts, a framework that civilize warfare between state and non-state actors in order to protect not only parties to the warfare but also those who do not have direct participation in hostilities is necessary. We witnessed the emergence of a new customary international law based on recent state practice in terms of jus ad bellum for an armed attack against a non-state armed group following the September 11 attacks. The same could take place with jus in bello. Such necessity manifests itself currently in the case of the armed conflict with the ISIS. International Law and the ISIS The Islamic State of Iraq and al-sham (ISIS) has been one of the most dangerous entities that pose serious challenges to international peace and security over the last five years. Many observers see ISIS at best as an organized crime syndicate, at worst a terrorist group so viciously anti-shiite that even al-qaeda has disowned it, but with an ambition to become a state (Ahram 2014). The organization was originated from Iraq and expanded in Syria. It was emerged from the Islamic State of Iraq (ISI) in April 2013 when the group's leader Abu Bakr al-baghdadi declared a short-lived union of ISI and Syria's al-qaida branch, Jabhat al-nusra (Narwani 2015). The ISI had emerged in a post-saddam state, which is described by Herring as a fragmented state, in which there is some authority but a great deal of dispute over the locations of that authority and over means of resolving disputes (Herring 2010, 183). The war in Iraq in 2003 had an important impact on the development of the ISIS. Following the US withdrawal from Iraq, the already established violence of Shiite militias' on Sunni groups was joined by the sectarian policies of the al-maliki government intended to marginalize Sunnis and undercut their power in Iraq (Stewart 2014). In the meantime, civil war in Syria erupted and a number of Syrian Sunnis joined the ISIS. The formal links between al-nusra in Syria as well as al-qaida and the ISIS were disrupted and the ISIS grew as a separate organization in the region. Since 2013, the terrorist 12

13 organization has had a considerable presence in the region and rules over some six million to eight million people in Iraq and Syria (Birke 2015). However, after the airstrikes of the US-led coalition, the ISIS has lost 10% of territory under its control in Syria and 40% in Iraq in the last one year, the latest being Fallujah (Koren 2016). Although the ISIS is not a recognized state under international law, it is labeled as a state and has an ambition to establish an entity with greater territorial aims. Mohamedou explains the transformation and mutation of al-qaeda from a non-state armed group to a regional and international dynamic which tries to achieve and prosper open-endedly. This makes counterterrorist measures hard to take (Mohamedou 2010, 230). The ISIS today moves on with the same strategy. The ISIS has distinct characteristics compared to other non-state armed groups discussed above. Today, terrorist acts are perpetrated by well-structured organizations with considerable financial resources (Guillaume 2004, 542). Besides having an organized structure and strong financial resources, the ISIS has a state-like organization. A state as a natural entity can exist if it has a people, a territory and a self-existent legal order. Its capacity to behave politically, economically and militarily viable and to destabilize balances of power also needs to be considered (Laos ). Although not recognized as a state in the Weberian formula, the ISIS has been established over a substantial territory covering Iraq and Syria with a substantial population. The organization had established its own institutions: courts, police, medical services etc. and also has its own army. Under international law, a state should possess a permanent population, a defined territory, a government and capacity to enter into relations with other states (Shaw 2003, 178). The ISIS has control over a population and a territory and established institutions similar to most governments. It also enters into economic relations with other actors, such as oil trade. Moreover, it has some other novelties than other terrorist organizations. Individual grassroots jihadists from around the world have flocked to Iraq and Syria to fight, and grassroots networks have been set up in the United States, Europe, Asia and the Middle East to send men, funds and weapons to support the ISIS (Stewart 2014). ISIS has sought out alliances with tribes on the Syrian and Iraqi sides of the Jazeera desert and has become a hydraulic state with dams, canals and reservoirs as a weapon. It has control over water resources (Ahram 2014). Although not a state in traditional sense, the ISIS has set up a de facto rule over the territory under its control, independent of being recognized by others. Prior to the September 11 attacks, although not recognized as the government of Afghanistan, the Taliban had controlled most of its territory and established a de facto government and its actions should be treated as the actions of the state of Afghanistan (Greenwood 2002, 313). The ISIS has established a similar presence in Iraq and Syria but the legitimate governments of Iraq and Syria are also in a combat against the ISIS. In the case of Afghanistan, Taliban claimed authority to use force as an Afghan structure. Taliban forces were regarded as the armed forces of Afghanistan and the conflict had turned to be between Afghanistan and the US (Greenwood 2002, 314). But in the case of ISIS in Syria, there is a tri-party conflict between the US-led coalition, the ISIS and the Assad government, involving other forces on the ground such as Democratic Union Party (PYD), Free Syrian Army and Al Nusra. Consequently, the ISIS has emerged and proliferated in a stronger way than any other terrorist organization, but also poses a more complicated situation in the region. The de facto rule of ISIS has in its region as a non-state actor, does not provide it with the right to use legitimate force. The attacks of the organization therefore would be considered illegitimate according to international law. Moreover, the organization is employing terrorist attacks as well 13

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