Islamic State Is Not a State

Opinio Juris

A couple of weeks ago, a group of Yezidi women kidnapped, enslaved, and raped by the Islamic State (IS) lost what could have been a landmark case at the New South Wales Civil and Administrative Tribunal. The women sought damages from an Australian-born IS fighter, Khaled Sharrouf, under the terms of New South Wales’ victim compensation scheme. Sharrouf himself is believed to have been killed in Syria in 2017.

Long before the decision, Ben Saul explained why the case always faced an uphill battle:

“New South Wales, like many states in Australia, has a no-fault, victims-of-crime compensation scheme which allows people who have been a victim of a serious offence to get some sort of remedy,” he said.

“But the problem is that it is limited to offences which occur here in NSW or more generally in Australia, so it does not give any joy for victims of overseas crime, including international crimes like war crimes, crimes against humanity, genocide or torture.”

As Ben predicted, the Civil and Administrative Tribunal dismissed the case precisely on jurisdictional grounds.

The Tribunal also appears, however, to have made a rather shocking comment concerning the illegality of the Yezidi women’s enslavement. Here is what The Lotus Flower, a UK-based NGO that helps support female victims of IS, said in its press release decrying the Tribunal’s decision to dismiss the case:

[T]he New South Wales Civil and Administrative Tribunal this week rejected the claim, suggesting that Sharrouf may not technically have committed crimes under IS’ own laws. The Tribunal finding stated: “No basis has been put forward upon which this Tribunal could find as a matter of fact that the actions of Khaled Sharrouf towards the applicants amounted to an offence or offences in Syria or Northern Iraq.”

[snip]

Meanwhile, a spokesman for Hogan Lovells said: “We are very disappointed in the decision of the NSW Civil and Administrative Tribunal. We are concerned that the judgment appears to imply that slavery and rape were not crimes in Iraq and Syria at the time the offences were committed by the Australian perpetrator. In our view the Islamic State in its various forms (IS) was a criminal enterprise, and proscribed terrorist organisation, not recognised by Australia or any other jurisdiction as a State able to enact law… As far as we are concerned the pronouncements on the permissibility of rape and slavery were unlawful and contrary to the law of Syria and Iraq at the time not to mention contrary to international criminal law.

Needless to say, the outrage is warranted. As Hogan Lovells noted, all of Sharrouf’s acts were equally illegal under international criminal law (ICL) and both Iraqi criminal law and Syrian criminal law. ICL applies to all individuals regardless of location, and domestic criminal law applies (at a minimum) to all individuals who commit criminal acts on a state’s territory. And that includes members of non-state actors (NSAs) such as IS.

How could the NSW Civil and Administrative Tribunal possibly suggest otherwise? I think Hogan Lovells points us toward the answer: the tendency to treat IS as a state-like entity with the kind of international legal personality that permits it to enact legislation, convene courts, prosecute offenders, etc. Empirically, some NSAs do all of those things. But that does not mean the “law” adopted and enforced by even state-like NSAs has any legal status. On the contrary, as as Heike Krieger recently noted:

Armed groups challenge the state and its institutions through an illegal use of force. Such groups contribute to dissolving the public order and to diminishing the state’s capabilities. Therefore, governments consider armed groups as illegal as well as illegitimate. The characteristics of armed groups exclude them from any formal source of legitimation available for state actors, in fact, from any form of legitimacy based on legality. International law does not grant armed groups formal legal status unless states have legally recognized them as belligerents or national liberation movements.

There is no question that scholarship treating NSA penal law not only as legitimate in the sociological sense but also as legal is well-intentioned — normally seeking to encourage NSAs to comply with IHL. But in addition to being legally problematic — I don’t think there is a state on earth that would recognize the legal right of even the most state-like NSA to, say, prosecute and execute one of its soldiers — treating NSAs as capable of enacting and enforcing penal laws is likely to lead to precisely the kind of appalling comments made by the NSW Civil and Administrative Tribunal in the Sharrouf case.

Simply put: NSAs are not states, no matter how state-like they might be. And we should not treat them as such.

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