Humanitarian intervention in response to the attacks by ISIS

Abstract

Since ISIS started its campaign in 2014, it has contributed to the deaths of thousands and the displacement of millions of people in Iraq and Syria. Its methods, tactics and objectives, and its ability to openly confront state armed forces have complicated the classification of this group in terms of the categories existing under international law. ISIS cannot be classified as a rebel group, insurgency movement or a liberation movement. By comparing the structure, organisation and functioning of this group to those of an internationally recognised terrorist group, Boko Haram, it can be determined that ISIS can also not be classified as a terrorist organisation. For that reason, the international counterterrorism framework will not be effective in eradicating this group. The members of this group can be prosecuted for committing international crimes if it is found that International Humanitarian Law (IHL) has been violated. IHL is applicable if a situation reaches the threshold of an armed conflict. It strictly distinguishes between international and non-international armed conflict, to which different conventions, rules and provisions apply. However, as is evident in the conflicts occurring in Iraq and Syria, a particular situation may contain mixed elements of both categories of conflict, and it will therefore not be possible to classify them as either international or non-international in character. Consequently, the stringent distinction between the two kinds of armed conflicts needs to be eradicated. Although article 2(4) of the United Nations (UN) Charter prohibits the use of force in response to armed conflict, there are exceptions. After Iraq requested assistance from the United States (US), the US-led coalition commenced with airstrikes against ISIS in Iraq on the basis of collective self-defence. However, the extension of this campaign to the territory of neighbouring Syria on the basis of individual self-defence is much more controversial, as the US has not been a victim of an armed attack. Consequently, the airstrikes launched in Syria can easily be seen as acts of aggression. The legal status of humanitarian intervention in response to the attacks by ISIS is investigated. At first humanitarian intervention was a controversial issue as it disregards the concept of sovereignty, there is a lack of consent and it does not find a legal basis in international law. Nevertheless, after the Kosovo intervention the international community became more tolerant of this response, as it resulted in the conclusion of a peace agreement and terminated the continuous suffering and human rights violations which had been occurring in Kosovo. As a result, an International Commission was created in order to establish a framework and guidelines for the legitimate use of humanitarian intervention in response to armed conflict. The ICISS established the Responsibility to Protect (R2P) doctrine which entails that a state is responsible for protecting its people against human rights violations. However, where a state is unable or unwilling to do so, this responsibility shifts to the international community. Sadly, the ICISS included the requirement of UN Security Council (SC) authorisation. As is evident in the atrocities that occurred in Rwanda, Srebrenica and Kosovo, the UN SC is reluctant to authorise the use of force. The reason for this reluctance is due to the fact that such proposals are constantly vetoed by two of the permanent members namely Russia and China. These two members have already vetoed proposed referrals of Syria to the International Criminal Court (ICC) and it is therefore most likely that a proposal for the authorised use of force in Syria will also be vetoed. For that reason, this paper concludes that non-authorised humanitarian intervention should be used as a response to the attacks by ISIS. Although non-authorised humanitarian intervention is even more controversial than authorised humanitarian intervention, it is true that the international community has become more tolerant of this response where it results in the terminating of continuous suffering and human rights violations. Hence the saying by Professor Dugard: "humanitarian intervention is like euthanasia: it remains unlawful but tolerated in genuine cases."1 By comparing the situation in Syria with the circumstances which existed in Kosovo during the 1990's, and by assessing against a range of criteria established by different actors, it is clear that Syria provides "a perfect model for humanitarian intervention."