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International Law Best Ground for Regional Cooperation to Stop ISIS

Tuesday, August 5, 2014

Mohsen Baharvand
Expert on International Law

It is somehow difficult to give a legal description of such groups as the Islamic State of Iraq and Syria (ISIS). A review of the common international literature that is applied to other groups will show that a group like the ISIS can be hardly called a merely terrorist group. Terrorist activities are usually covert, instantaneous and temporary actions. However, in addition to embarking on terrorist activities, this group has opened separate war fronts in such countries as Syria and Iraq and has officially waged a relentless war against governments of those countries. Therefore, such groups can be called illegal armed groups. From the viewpoint of international law, legal armed groups are those groups that take up weapons and embark on armed conflict in order to legitimately defend their country against the aggression by a foreign enemy or to liberate their occupied territories. The ISIS is neither defending its motherland, nor has its homeland been already occupied by a foreign enemy to prompt the group to launch such an armed conflict against regional countries.

Despite the aforesaid difficulty for describing individual identity of such groups, it is not difficult to find a good description for the situation that they have created in such countries as Syria and Iraq. The situation in those countries, from a legal viewpoint, is considered as armed hostility. The mere recognition of this situation will require some rules of the international law to be enforced. After enforcement, those rules should be observed by all warring factions and those groups that violate the rules, would be prone to criminal liability.

As time goes by and in a gradual manner, some ordinary rules of the international law are turned into “preemptory or compelling” norms of the international law, which are alternatively known as jus cogens. These rules impose universal obligations on all governments. Universal obligations are those obligations that every country shoulders with regard to the entire international community without having acceded to any specific international treaty or having previously indicated its consent to such obligations. In short, universal obligations cannot be abandoned or suspended under any conditions, circumstances, and pretext. Committing some types of crimes is considered an instance of the violation of preemptory rules of the international law. Prominent examples of these crimes include war crimes such as killing of civilians or imposing undue suffering on them; killing prisoners of war, or other forms of crime against humanity such as torture, persecution of followers of other religions and faiths because of their conviction, killing the followers of a religion or faith, or killing the followers of a political conviction for ideological reasons with the purpose of eliminating all of them, and similar crimes. At present, the ISIS and other groups similar to it have turned into a complete collection of such crimes. As a result, all those people, who from a legal viewpoint, have ordered, carried out, or assisted with these crimes are liable to criminal responsibility and all countries are duty-bound to cooperate in order to both prevent further crimes to be committed by them, and also to bring their perpetrators to justice. Silence in the face of crimes committed in Libya has led to their repetition in Syria and then Iraq. Of course, that silence indicates lack of willingness on the part of other countries to fulfill their obligations. However, the international silence on these crimes should by no means prevent the government of Iraq from collecting documents related to these crimes and ask other countries, especially its neighboring states, to fulfill their international obligations. In addition, in case these groups go unpunished for their crimes, it is quite possible that similar incidents will take place in a domino-like manner in the future and will lead to repetition of their crimes in other regional countries as well. No regional country should be happy with such crimes, even when they are committed by their closest allies or against their most formidable enemies. To fight these crimes calls for widespread cooperation at regional and global levels. This is not merely a choice, but an obligation emanating from the international law and is, therefore, imperative for all countries.

Another important issue, which can be taken as a basis for regional and international cooperation aimed at fighting such illegal armed groups as the ISIS, is crimes committed against international peace and security as well as the threat that such groups are currently posing – and will continue to pose in the future – to international peace and security.

Perhaps, one may claim that protecting international peace and security has been the most important task for the international system and contemporary international law following the end of the World War II. According to Article 1 of the Charter of the United Nations, the world body has been established to achieve four goals: two main goals include maintaining “international peace and security,” and taking “effective collective measures for the prevention and removal of threats to the peace.” Another goal is the promotion of human rights while the fourth goal is “to be a center for harmonizing the actions of nations in the attainment of these common ends.”

It seems that measures taken by such illegal armed groups as the ISIS in Iraq and Syria can not only be considered crimes against peace, but can be also analyzed within framework of a war of aggression. According to classic international law, only governments can wage a war of aggression. However, now we can assert that measures taken by illegal armed groups with huge capacities such as that we are currently witnessing in the Middle East, also amount to a full-fledged war of aggression. The effects that measures taken by these groups have on such concepts as territory, sovereignty, and enforcement of sovereign rights by governments – in addition to other damages done to countries where these groups are operating – are no different from a war of aggression. The only difference is that such measures are taken within framework of a proxy war waged by an armed group lacking independent sovereignty. Therefore, the fact that these groups are not governments, cannot bar their measures from being legally described as threats against peace or waging a war of aggression.

It seems that the mechanisms and goals of war and aggression have changed in many cases. During the past two centuries, countries were mostly bent on gaining strategic supremacy over other states by invading territories of other countries, conquering new lands and, as a result, expanding their own territory. At present, an opposite trend is obviously visible in which countries are trying to provide grounds for disintegration of other countries and making them, including their own neighbors, smaller in order to make up for their own strategic weakness by creating a new balance of powers. In this way, some small countries, which have been awash with huge revenues or those which look upon everything from traditional viewpoint of balance of powers, are trying to make bigger countries smaller in size. On the other hand, from the viewpoint of major world powers, a number of small and independent countries are less powerful than a united, populous, and big one. Therefore, various countries share common interests in efforts which aim to make countries smaller as a result of which a proxy war has been waged against big countries in the region.

Assuming that measures taken by the ISIS and other groups similar to it amount to a direct threat against regional and international peace and security, then it follows that according to Article 39 of the Charter of the United Nations, the Security Council “shall determine the existence of” this threat and “make recommendations, or decide what measures (including the use of armed force) shall be taken … to maintain or restore international peace and security.” However, it appears that for any reason, including political reasons, the Security Council has not been so far willing to make a serious decision in this regard. The inaction of the Security Council, however, should not be an obstacle on the way of collective measures to be taken by other countries. Perhaps regional countries feel the threat posed by these groups more than any other country.

According to Article 51 of the Charter of the United Nations, if an armed attack occurs against a Member of the United Nations, “nothing in the present Charter shall impair the inherent right of individual or collective self-defence” for that country. Such a measure can be taken at regional level. In addition, Chapter VIII of the Charter has provided legal grounds for the establishment of regional arrangements aimed at peaceful or forceful dealing with any kind of armed actions that are considered an outright threat to international peace and security. Article 52 of the same chapter of the UN Charter has even specified that when dealing with such threats, priority should be given to regional arrangements.

According to the aforesaid brief explanation, there are a lot of legal grounds to be used as a basis for collective confrontation with the threat posed by such groups as the ISIS. However, no powerful political will has been so far present to take such a decisive step. Nonetheless, to create adequate political motivation for doing this, strategists from major regional countries such as Turkey, Egypt, Saudi Arabia and Iran should give suitable answers to the following three questions:

- Can the existence of a stable Syria and Iraq be considered a threat against regional peace and security?

- Has the emergence of illegal armed groups such as the ISIS bolstered peace and security in the region and reduced threats? And

- Is strengthening of such groups and their continued presence in Syria and Iraq a source of potential threat against other regional countries or not?

If the answer to these questions is that the ISIS and other groups like it pose a threat to peace and stability across the region, then all regional countries should set aside biased views and admit that efforts made so far to bolster these groups have been a mistake. Afterwards, they should join hands to eliminate such threats and postpone pursuit of their own political demands to a later time. The arrangements made to confront this threat can be temporary arrangements under Chapter VIII of the Charter of the United Nations, which should be made by Iraq and Syria as well as all their neighboring states. However, there may be still parties in the region which erroneously believe that measures taken by such groups pose no threat to them, and will even guarantee their interests in the long run. In that case, despite existence of needed legal grounds for making anti-terror regional arrangements, no regional cooperation will take place in practice. At any rate, only future developments can determine which course of action will be taken by regional countries.

Key Words: International Law, Regional Cooperation, Iraq, Syria, Charter of the United Nations, Illegal Armed Groups, War of Aggression, United Nations, the Security Council, Turkey, Egypt, Saudi Arabia and Iran, Baharvand

Source: Iranian Diplomacy (IRD)
http://www.irdiplomacy.ir
Translated By: Iran Rreview.Org

*Photo Credit: RT

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