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Possible Effect of Granting ISIS The Status Of a Privileged Belligerent

Recent times have been a testimony to the capacity of human beings to think up new ways to kill one another - beheading of American journalists James Foley, Steven Sotlof and many others, “truck terrorism”, destruction of cultural heritage sites, accusations of ethnic cleansing in Iraq and the shocking “how to” guides in Rumiyyah magazine has instilled in the hearts of people a fear that grows because of a highly extremist ideology of the group that perpetrates such terror. The Islamic State of Syria and Iraq, more commonly known as ISIS or the Arabic word “Daesh” has gained prominence in the last 6 years although they have been around for a long time. This was the group whose ideology was too extreme for even Al Qaeda, whom they broke out off.

ISIS, by its very name, suggests that it has a stronghold over a significant part of the territory and people in large parts of Syria and Iraq. They have claimed themselves to be the worldwide caliphate and as such proclaim that they have political and military control over all Muslims in the world. By imposing their unique (see, extreme or incorrect) interpretation of Sharia law they have given root to a terror like no other. ISIS has been recognized as a terrorist organization by the UNSC, the European Union, and many other States. The brutal actions of ISIS have shocked the conscience of humanity and have essentially made them hostis humanis generis – enemy of all of the mankind much like the pirate in traditional international law, prompting many to ask what is the applicability of the International law to the ISIS.
This question, I believe should be examined in the light of ISIS’ role in the Syrian conflict, particularly because of the unique way in which the participation of ISIS has changed the landscape of the Syrian crisis.
The role of ISIS in the Syrian conflict
In February 2014 ISIS, an Al Qaeda affiliate broke out of the Free Syrian Army rebel group. ISIS is not fighting Assad but instead is fighting the other rebel groups on the ground in Syria. ISIS is not affiliated to Assad either, however, Assad largely ignores the activities of ISIS and even tolerates them.
ISIS as a Non-State Actor
ISIS operates as a Non-State Actor (“NSA”) in the Syrian conflict. An NSA is technically any player in the international arena that is not a sovereign state. They can be peaceful, like Amnesty International and Human Rights Watch that act as the vanguards of human rights and humanitarian law and then there can violent NSAs (“VNSA”) like the Al Qaeda and Taliban. VNSAs are generally born out of weak state governance.
NSAs have in recent times challenged the traditional Westphalia sovereignty model and introduced players onto the international plane that is not sovereign nations. Their increasing economic power, political influence, and widespread territorial presence have made them a force that must be reckoned with and if the situation demands – fight against. ISIS is a prime example of a VNSA. However, could certain benefits arise out of giving them the status of “privileged belligerents” – how this would happen and its potential fallout, is a question I seek to explore.
ISIS as a privileged belligerent
Granting ISIS, a blanket belligerent privilege is an idea that could invite much controversy. In order to claim such privileged status, it must be determined whether the ISIS are lawful combatants or not, i.e., do they pass the test of Article 4 GCIII, whether they would qualify as prisoners of war? But, assuming for a moment that ISIS does pass the test of Article 4 what is the after effects of such a recognition?
An individual entitled to the “belligerent privilege” is immune from criminal prosecution for “those warlike acts that do not violate the laws and customs of war, but that might otherwise be crimes under municipal law” and can also claim POW status. But, such recognition also means that the acts of the recognized actor are binding on them in international law – that they are bound by the obligations of the laws of war an argument that could prove to be the biggest selling point of granting them such a status. However, most importantly, what mustn’t be forgotten is that granting such a status gives their organization and their violent acts a degree of legitimacy – and this would be the main reason that States reject this notion. HRH Prince Turki bin Faisal Al Saud of Saudi Arabia, in a 2015 summit was of the opinion that they should no longer be called Daesh but instead Fahish which is the Arabic word for “obscene” as calling them Daesh gives them a certain legitimacy that is undeserved. Further, Governments involved in a civil conflict are not too keen to accord any kind of legitimacy to a group that opposes them.
But then again, without granting belligerent status, the Government would not be bound to treat insurgents according to the law of international armed conflicts and therefore subject them to savage and inhumane incidents.
Now to examine the question as to whether ISIS would qualify as a privileged belligerent. They most certainly do not fall within the ambit of State military, voluntary corps, or civilians. However, where certain controversy would arise would be “organized resistance movements” and members of armed forces professing allegiance to unrecognized authorities. If ISIS is to benefit as a resistance movement under the Convention, it must abide by the conditions laid down under article (a) to (d) of Article 4(2) which is similar to Article 1 of the 1907 Hague Regulations.
The procedure to be followed when ISIS is not given a blanket “privileged belligerent” status
Granting the status of belligerent would either happen in express or implicit form by the state on whose territory the internal armed conflict takes place or by third states. However, in cases where a captured combatant’s claim to prisoner of war status is in doubt, the individual must be given the benefit of a trial before an Article 5 GCIII tribunal. “The purpose of an Article 5 tribunal is to determine whether an individual is entitled to prisoner of war status in cases of doubt.”
The relevance of granting belligerent status in modern times
Much talk has been done about the effect of granting a “privileged belligerent” status to ISIS but it is also important to address whether granting the status of belligerent is relevant in modern IHL anymore. “Common article 3 of the Geneva Conventions contain minimum rules applicable to all persons taking no active part in hostilities, not of an international character and thus provides for some protection rendering, so far, a recognition of belligerency unnecessary.” The international community has allowed for triggering certain minimum standards of humanitarian law when an internal armed conflict erupts without waiting for governments to recognize belligerent. Further, “All parties to armed conflicts in which non-State entities are parties, irrespective of their legal status…have the obligation to respect the international humanitarian law as well as fundamental human rights.” ISIS has been appropriately called upon by the International community to respect human rights and humanitarian norms especially when it “exercises significant control over territory and population and has significant political structure.”

The situation on the ground in Syria is highly complicated and up until President Donald Trump’s authorization of air strikes on Syrian air bases as a response to the sarin gas attack on the civilian population, the US was primarily engaged in fighting ISIS. Recent changes have again altered the dynamic of the Syrian conflict and whether the granting of belligerent status is a relevant question or not anymore it may still have certain advantages. Giving way to such a high degree of legitimacy to a VNSA under international law has certain benefits and the permanence of international humanitarian law is our last line of defense in a world that continues to become smaller.
> Ethnic cleansing on a historic scale”: Islamic State’s systematic targeting of minorities in Northern Iraq. (2014). Amnesty International.
> Syria's war: Who is fighting and why [updated]. (2017). [video] Vox: Youtube
> Article 4, Geneva Convention III – Prisoners of War
> Jackson, R. (1987). The Terrorist as a belligerent under International Law. The Judge Advocate General's School, United States Army.

> Mideast Proxy Wars: The Role of Non-State Actors in International Security. (2015). [video] Youtube: Concordia.

> ICRC Commentary on Article 4, GCIII

> Wolfrum, R. and Phillip, C. (2006). The Status of the Taliban: Their Obligations and Rights under International Law. Max Planck Yearbook of United Nations Law, 6

> Jackson, R. (1987). The Terrorist as a belligerent under International Law. The Judge Advocate General's School, United States Army.

> Wolfrum, R. and Phillip, C. (2002). The Status of the Taliban: Their Obligations and Rights under International Law. Max Planck Yearbook of United Nations Law, 6

> Allision, E. and Goldman, R. Crimes of War – Belligerent Status. [online] Available at: [Accessed 9 Apr. 2017].

> ‘‘The Application of International Humanitarian Law and Fundamental Human Rights, in Armed Conflicts in which Non-State Entities are Parties’’, resolution adopted at the Berlin Session, 25 August 1999, Article II.

> Clapham, A. (2006). Human rights obligations of non-state actors in conflict situations. International Review of the Red Cross, 88(863).

About the Author:

Surabhi Sharma is a 4th year law student at Symbiosis Law School, Pune. She particularly enjoys International Criminal Law and International Humanitarian Law and wishes to pursue a career in academia and research in the field of ICL.She also loves to read biographies of celebrities (shout out to Mindy Kaling!). Surabhi enjoys reading the works of David Luban and Kevin Jon Heller and hopes to sit in their classrooms one day.



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