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IS – a threat to the structure of international law?

The theological and ideological basis for IS’s struggle visualizes this as a fight against the spiritual power centre of European public international law: Rome.

June 2014. Following significant military conquests in Iraqi and Syrian territories, Abu Bakr Al Baghdadi decides to give his movement a new name. What was previously known as ISIS, Islamic State of Iraq and Sham, shall now be called al-Dawla-al-Islamya, or, in English, the Islamic State. Simultaneously, al Baghdadi proclaims the Caliphate.

The change of name marks a shift in the movement’s aspirations. Gone is the reference to Iraq and Sham, (the whole of Syria or a part of it). Its ambitions are now visibly universal. Al Baghdadi wants his audience to know that his movement is not only of regional relevance, but is also a player in the international arena.

What is the ‘Islamic State’ (IS) from the perspective of international law? IS has declared itself a ‘State’ by drawing up new territorial frontiers, as visualized professionally in its video on ‘The end of Sykes-Piquot’. It controls a population larger than that of Denmark or Finland, and a territory roughly the size of the United Kingdom.

Nevertheless, legally speaking, this is not enough to constitute a State. What IS lacks is recognition by other States. Formally, IS cannot enter into relations with other States, which is one of the three criteria for statehood in international law. IS is, despite its name, a non-State actor, and, moreover, it is on the UN’s list of terrorist organizations subject to an extensive sanctions regime.

The Al-Qaeda challenge

IS forms part of a tradition that last caught the attention of the west after the events of 9/11 and the appearance of Al-Qaeda on the world stage. A phenomenon such as Al-Qaeda was something new; it employed the structures of ‘a State’ but only opportunistically so.

It had global political ambitions beyond the territorial confines of statehood. If Afghanistan turned out to be too dangerous to hold, Al-Qaeda would be ready to move on to somewhere else, without losing the legitimacy that loss of territory must necessarily have entailed for a State.

Bin Laden was of the view that the time for the building of Islamic States had not yet come. Instead, he tried to build his caliphate as a decentralized and robust network of violent entities. Since the foundation of a state was never the goal, the norm system of international law never really captured the phenomenon of Al-Qaeda. Conversely, the movement embodied a fundamental challenge to the system of international law.

The US and some of its allies made the logic of Bin Laden their own. Guantánamo and so called signature strikes or population support overlays in Afghanistan are examples of state violence operating beyond the norm structures of international law. Hostility breeds similarities.

International law kicks in

Isn’t it surprising that IS abandons the strategic advantage that Al-Qaeda so efficiently employed, that is, operating beyond the limitations of territorial frontiers, in the spirit of globalization? IS, on the other hand, has established itself in a certain area, and does not wish to be mobile in the way Al-Qaeda strives for. The contemporary Al-Qaeda supports the idea of lone-wolf attacks in western states, whereas IS presses the point that all Muslims should emigrate to its territory.

The emphasis on a territory, however, implies an emphasis on statehood, and with statehood, international law kicks in. Within the system of international law, IS has everything to lose. IS is violating the laws of war and it is violating human rights. The resistance it meets from coalition forces is legal, at least within Iraqi territory.

If, unlikely as it seems, IS were ever to be recognized as a State, it would be held legally accountable for all the violations of international law it had committed prior to recognition. On top of that, the leaders and members of the movement who have committed crimes to which the Statute of the International Criminal Court applies, can be held personally accountable for those crimes.

My conclusion is that IS poses a much smaller threat to international law than Al-Qaeda did in 2001. Yet international law is a threat to IS. So why is IS making use of the concept of statehood and the acquisition of territory, when both practices entail such risks?

In my answer, let me disregard for now the concrete advantages of territorial presence, such as the control of oilfields and other economic resources.

Karl-Ludwig Poggemann/Flickr/Some Rights Reserved

Universal norms

Why do we have nation states today? To suppress the extremely violent confessional civil wars that followed the Reformation and the counter-reformation.

Was there no such thing as international law before the seventeenth century? Indeed there was. However its structure was quite different. In the Holy Roman Empire, the Pope’s auctoritas ruled together with the Emperor’s potestas, in an order known as Respublica Christiana. The relation between international law and theology is not only a matter of historical concern. All attempts to universalize norms, human rights being the prime example, have brought with them a metaphysics that reproduce theological structures.

These are the metaphysical, underlying structures of international law that IS engages in controversy. The theological and ideological basis for IS’s struggle is thoroughly, and in a theologically ambitious way, explained in the movement’s journal Dabiq. Dabiq visualizes this as a fight against the spiritual power centre of European public international law: Rome.

After all, the spiritual power of the Pope constituted the justification for the crusades against Islam. In IS’s view, modern international law must be but a historical parenthesis, a means to stop the inter-Christian conflict between Catholicism and Reformation. Whereas IS, on the other hand, refers to the pre-modern conflict between Christian Europe and the Pagan world. This pre-modern conflict is pre-eminent in IS’s publications. The story told by modern international law is cast aside by this narrative. Instead, focus is on the fight between Islam and the infidels. From this perspective, the phenomenon of IS opens itself to our comprehension.

Wishful thinking?

However, one may object, the coalition fighting on Syrian territory includes non-western members such as Bahrain, Qatar, The United Arab Emirates and Saudi-Arabia. Isn’t that a sign that the Caliphate is purely wishful thinking? Does not the conflict on Syrian territory suggest that there are but a plethora of Islamic coalitions, some of which are even acting under US command in the armed conflict against IS. Nevertheless, I am not sure that this is the only way to understand the conflict. IS portrays itself primarily as a theological phenomenon. It only describes itself as a state secondarily. A country such as Saudi Arabia, on the other hand, is perceived as a state within an international legal order that to the greatest extent is Eurocentric and rooted in Christianity. Saudi Arabia, one might think, subordinates theology to statehood. According to IS, such hybrids are polytheists and thus illegitimate.

IS communicates its worldview through the journal Dabiq, named after a town near Aleppo in Syria, which aspires to reach a global readership. In the first pages of the first edition, a famous hadith about the end times is highlighted, according to which a great battle between ‘Romans’ and ‘Muslims’ is predicted to take place close to the town of Dabiq.

The texts in Dabiq repeatedly criticize nationalism. What IS wants is a territory of theological significance, a state transcending nationality, for all Muslims. This state is full of promises: of ‘housing for all’, stability, the protection of private property, a well-functioning market, and low rates of criminality. In other words, capitalism with a touch of the welfare state, however, of course only for the faithful. This is the exact opposite of the rootlessness that Al-Qaeda embodies.

End times and waiting times

Al-Qaeda acts based on the historical-theological premise that there is still a long time left until the end times, and on the assumption that the time for a state-like Caliphate has not yet come. IS opposes this view of Al-Qaeda’s and claims that a form of Armageddon is imminent, where the infidels and the faithful will meet in a battle in which the latter will be victorious.

As mentioned, it draws on a prophetic hadith underlining the very location for this battle. IS’s narrative has turned out to be more accessible than Al-Qaeda’s, not least because of the former’s military success, which is read as a sign of divine benevolence. Furthermore, the waiting time is considerably shorter for IS’s caliphate, than it is for Al-Qaeda’s competing product.

IS is not alone in believing that the end times are close and that the final battle between the infidels and the faithful is approaching. The study of the end times is called eschatology, a term that has its origin in the Greek word eschatos, meaning ‘last’. How we imagine the future affects how we act in the present. This equally applies to individuals, states and to outlaw-movements such as IS. For example, Stanley and Munro Price have argued that the Christian conservatives’ significant support for the state of Israel is rooted in an eschatological conception according to which the Jews must return to Zion before they and the world can be saved (The Road to Apocalypse, 2011).

Carl Schmidt redivivus

In The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (Der Nomos der Erde im Jus Publicum Europaeum des Völkerrechts, 1950), the German legal scholar Carl Schmitt conceptualizes public international law as a katechon. A katechon is an actor whose theological function is to keep those powers at bay that are destroying order. Which order? The order that shall rule whilst we are awaiting the end times.

Schmitt could indeed easily be dismissed as someone who, after renouncing the Catholic faith, willingly let himself be used by the National Socialists. Such a dismissal, however, overlooks the fact that his thoughts went through a renaissance in the beginning of the twenty-first century, not least with the contra-terrorist international law politics of successive US administrations. Furthermore, it overlooks the fact that every attempt to argue for the existence of universal norms presupposes a doctrine on the meaning of history. In other words, it presupposes an eschatology.

Contemporary international law too is based on an eschatological premise, although an unconscious one. It assumes that the state of history in which we now reside will continue, eternally. This, I believe, is the danger with the portrayal of IS as normless barbarians and the west as opposing katechons. This kind of conceptualization can only strengthen the coherence in IS’s understanding of the world. Moreover, it contributes to our own intellectual laziness.

This article is translated from the Swedish by Sara Bengtson, to whom thanks. 


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