The Islamic State Isn’t: A Legal Examination

July 10, 2014
ISIS Records

On June 10, the Islamic State of Iraq and the Levant (ISIL) overran Mosul, Iraq’s third largest city. A string of smaller cities, including Tikrit, and Iraq’s largest oil refinery fell to ISIL in the ensuing week. These victories capped ISIL’s successful conquest of Fallujah early this year. At the same time, ISIL has done battle with forces loyal to the Bashar al-Assad regime in Syria and contested territory controlled by other Syrian rebel groups. It now controls cities spanning 500 kilometers across both Iraq and Syria, as well as a wide swath of territory de jure administered by either the Republic of Iraq or the Syrian Arab Republic. ISIL has set its sights on Baghdad and revealed an even broader agenda by renaming itself simply the “Islamic State” and claiming the establishment of a new Caliphate. These successes, and the group’s regional and even larger ambitions, led some to ask whether ISIL has in fact established a new state spanning portions of eastern Syria and western Iraq.

Statehood is more than men under arms, carrying a common banner, and forcing erstwhile authorities from the territory they administer. Statehood is the international legal personality that comes with the sovereign exercise of authority over a defined territory and defined population. The Montevideo Convention on the Rights and Duties of States identifies four objective criteria of statehood: a permanent population, a defined territory, government, and the capacity to enter into relations with other states. In practice, these criteria are often melded into two interrelated questions that determine whether a putative state is a state. First, is the putative state in fact independent? And second, does the putative state exert effective control over the population and territory it claims? However you approach the question of this group’s statehood, the answer is almost assuredly, no, the Islamic State is not a state.

The territory and population that ISIL controls is ill defined and shifting. While it has made significant gains in Iraq in recent weeks, its footprint in Syria decreased between January and May. Importantly, the territory and population it does control are only a fraction of what it claims. Although contested borders and imperfect control have never been fatal to statehood claims, entities making such claims must be able to exert control over substantial amounts of the territory they claim. In this case, ISIL faces not just contested borders, but exclusion from thousands of square miles and the bulk of the population it claims.

Even if ISIL only claimed the territory it actually occupies to date, the degree of governmental control it exercises is almost certainly insufficient for statehood purposes. The legal threshold for statehood demands effective control over people and property within the territory a putative state claims. Signs of such control include at least the ability to levy and collect taxes, institute laws, and to mete out justice, however it is locally defined. Often states demonstrate their sovereign control through other activities, like issuing currency or identification papers, policing territory, or collecting customs or duties. ISIL has solidified its control over al-Raqqa in Syria — there, it is appointing foreign preachers to mosques, levying and collecting taxes, and imposing and enforcing a draconian interpretation of Sharia law. ISIL has even pretended to some of the trappings of statehood by unveiling an Islamic State passport prototype. But ISIL’s ability to exert similar, necessary control over the parts of Iraq it occupies is questionable. For example, although ISIL “took control” of Fallujah in January, it was three months before it was capable of disarming local rivals. Likewise, according to public reporting, ISIL shares control of Mosul with as many as 15 other militias. Moreover, despite strict edicts concerning implementation of Sharia law it issued upon arrival in Mosul, ISIL is unable to enforce these throughout the city and is forced to contest authority with local actors, including former Baathists, who have established a governing council. For example, cigarettes continue to be smoked in parts of Mosul despite being officially banned by ISIL in an edict issued when it seized control on June 10. Similarly, even ISIL’s control of captured Iraq-Syria border crossings is reportedly challenged both by rival armed groups and the Syrian regime. Of course, there are well-known historical examples — Zaire is one — of entities achieving statehood despite substantially defective control over the territory ascribed to them. These, however, occurred primarily within the decolonization context and within borders that conformed to the principle of uti possidetis juris. Statehood for ISIL on the territory it presently controls, straddling Iraq and Syria, would grossly violate this important norm of state creation, as well as the prohibition against using force to redraw international frontiers. As such, ISIL’s highly limited governmental control in the territory it has captured represents a significant defect in any claim it has to statehood.

ISIL also shows little ability or inclination to engage in foreign relations other than the waging of war, largely with light infantry and terrorist cadres. ISIL has not been recognized by any foreign states. There is no evidence of it opening diplomatic missions abroad or receiving foreign emissaries. Indeed, ISIL has already violated the most fundamental prerequisite of foreign relations. When it captured Mosul, ISIL was presented with a signal opportunity to behave like a state — it was suddenly in custody of a foreign diplomatic mission. However, rather than respect the sanctity of the Turkish consulate, it kidnapped the Turkish consul-general and 48 members of his staff.

None of the foregoing is meant to suggest that ISIL’s advance toward Baghdad is anything other than alarming. Indeed, the threat ISIL poses to the security and stability of Iraq and the wider region is obvious and grave. But the bundle of rights, responsibilities, and privileges that come with international legal personality are significant and far reaching, sufficiently so that the statehood label should be invoked judiciously and appropriately. States are jealous of their own sovereignty and loathe to disrupt the international order by recognizing new states, particularly new states with revolutionary borders. Numerous putative states with substantially better claims to statehood have gone unrecognized, and the vast majority of these have eventually collapsed. There is no reason to jump to conferring on ISIL a status it does not satisfy.


Ben Farley earned a JD, with honors, from Emory University School of Law, and an MA from George Washington University. He is a Presidential Management Fellow at the U.S. Department of State. The opinions and views expressed are those of the author alone. They do not represent the views of the U.S. Department of State or the U.S. Government.


Image: ISIS video