ISIS and the challenge to international law

MLS recently welcomed two leading experts in political Islam and international law, Professor of Practice Naz Modirzadeh (Director, Harvard Law School Program on International Law and Armed Conflict) and Professor Andrew March (Political Science, Yale).

Professor Modirzadeh and Professor March are Visiting Professorial Fellows with the Laureate Program in International Law for 2016. The Laureate Program, which is directed by Professor Anne Orford, has established a major project entitled Civil War, Intervention and International Law. This will explore whether it is lawful for external actors to intervene in support of parties to a civil war and, if so, under what conditions.

With jihadist militant groups such as ISIS now waging war in Syria, Iraq and other parts of the world, an important issue for the Laureate Program to consider is what impact, if any, these groups have on international law. ISIS, for example, categorically rejects international law and instead promulgates its own legal system based on Islamic law.

“ISIS is explicitly saying we will never apply international law,” Professor Modirzadeh says. “The way I would put it is: if ISIS ever applies international law, it is no longer ISIS. I consider their rejection of contemporary positive law part of the essence of what they are.”

Professor Modirzadeh says the existence of powerful, non-state armed groups that, as part of their identity, reject international law raises important questions for international lawyers.

“What, if anything, is the implication for international law, in particular the laws of war,” she says, “if an enemy as significant as ISIS – and by significant I mean controls territory and population and has significant weapons and troop numbers – categorically rejects international law?”

According to Professor Modirzadeh, “one answer to this question could be that it doesn’t matter at all.” If a state is engaged in an armed conflict with a non-state armed group that rejects international law – including international humanitarian law that seeks to limit the effects of war and protect civilians – this has no impact on the state’s own obligations under international law. A state cannot, in other words, disregard its obligations under the law just because its enemy does not follow the rules.

Professor March agrees. “Why should international lawyers regard this as a challenge? In many ways, I don’t think they should,” he says.

What, if anything, is the implication for international law, in particular the laws of war, if an enemy as significant as ISIS – and by significant I mean controls territory and population and has significant weapons and troop numbers – categorically rejects international law?

Nonetheless, fighting militant Islamic groups like ISIS and Al Qaeda has produced legal quandaries, for United States policymakers and international lawyers alike.

“This is the entire dilemma of law since 2001,” Professor March says. “If you don’t recognise [militant jihadist groups] as legitimate state or military actors, what law do you apply to them? What legal obligations do you have in terms of detention, targeting, torture, and what is the basis for that?”

While groups like ISIS may not be a serious challenge to international law, Professor Modirzadeh wonders what the long-term impact might be on states if they become engaged in a drawn-out conflict with an enemy that consistently violates international norms.

“There is a presidential candidate in the United States that has been able to – not without protest and not without key members of his party speaking out against it – articulate a proposal of committing systematic war crimes, and that’s kind of a stunning thing,” she says, referring to Republican presidential nominee Donald Trump who earlier this year said the United States needed to “fight fire with fire” to defeat ISIS.

“Maybe this tells us there is a sense of fatigue with the idea that the law requires you to restrain yourself when fighting with this kind of enemy. I don’t want to read too much into it, but I wonder what that might tell us.”

On the subject of the Laureate Program, Professor Modirzadeh says Professor Orford’s research project is taking a novel approach to the issues around civil war and international law.

“Many of the programs that are dealing with issues of civil war or international armed conflict, including my own at Harvard Law School, focus on law applicable during the armed conflict (international humanitarian law), or focus on the law regulating the use of force, what we call the Jus ad bellum.”

The Laureate Program, however, explores how different bodies of law relate to one another in shaping how we think about intervention and civil war. This research, Professor Modirzadeh says, “is really important and will contribute significantly to scholarship and practice in the area”.

Professor Modirzadeh met Professor Orford more than 10 years ago at a conference Professor Orford hosted at MLS, which was attended by other distinguished MLS scholars including Professor Hilary Charlesworth, Associate Professor Shaun McVeigh, Professor Dianne Otto and Associate Professor Peter Rush. The Harvard Law Professor says it’s exciting to have Professor Orford leading the Laureate Program.

“One of the things I have always admired about Professor Orford is that she strikes me as simultaneously a critical thinker about international law and the way it works, and very much committed to the project of international law,” Professor Modirzadeh says. “Her energy is a constructive one and that is very exciting for students and young scholars.”

More information about the Laureate Program in International Law can be found at: lpil.org