Why does ISIS claim to be Islamic
by RALPH JANIK
The military successes of the “Islamic State” (ISIS / IS) prompt us once again to take a critical look at traditional thinking about statehood in the (international) legal sense. If such structures are not to be regarded as a state, more is needed than state territory, state authority and state people.
More than half a year ago, the “Islamic State” (ISIS / IS) declared the “restoration of the caliphate” in the areas it controls in Syria and Iraq. 20,000 to 31,500 fighters are said to be in its ranks (for comparison: Germany has 182,704 active soldiers) and have been able to hold their own despite months of air strikes - "it will take time to eradicate a cancer like ISIL [IS / ISIS]" “US President Barack Obama emphasized in September 2014.
ISIS / IS challenges our thinking about statehood and international legal personality in many ways. On the one hand, it is about more than controlling state authority in an existing state or splitting off an area to establish a new state. Rather, a terrorist group of unprecedented strength would like to bring an entire region under their control. On the other hand, it shows that effective statehood cannot automatically be linked to the rights and obligations applicable to states.
Ex factis ius non oritur?
It is precisely in such extreme examples that the strictly right-wing positivist view of the state as a fact reaches its limits. Ultimately, it can be argued that IS / ISIS fulfills the three classic state elements - state territory, state people and state authority. IS / ISIS operates independently of other states, has a monopoly on the use of force internally and in the controlled areas could definitely enjoy the backing of a significant proportion of the population who can be described as a state people in this way. At most it could be said that ISIS / IS - as a partial aspect of the existence of state authority - lacks durability. The importance of this criterion can be assessed in different ways. On the one hand, it can be seen as a mere indicator of the existence of effective state authority. On the other hand, durability is particularly important when the interests of other states (primarily Syria and Iraq) are directly affected.
But even if one attaches such importance to durability, that would ultimately only mean that ISIS / IS would have to be designated as a state at least after a certain period of time (although it is unclear how long this should be). From the point of view of declarative theory, the inner constitution, the observance of human rights or the targeted killing of minorities play just as little role as the resulting refusal of any recognition. At most, because of this isolation, you would only get from one de facto-Regime that is nonetheless entitled to the protection of the ban on violence (at least as soon as ISIS / IS would cease its military ambitions) and its territory not as terra nullius can be appropriated.
On the importance of recognition
From this perspective it could sometimes be argued that the actual formation of a state, at least in the course of armed conflicts, is not necessarily linked to the acquisition of rights and obligations with regard to the preservation of the rights of the states concerned. For example, an armed group with effective control over a state territory may not be recognized as a state or supported on this basis as long as a reconquest by the state concerned cannot be ruled out.
However, this blurs the boundary to constitutive theory, since a strictly declarative approach would at least allow such an approach if the part controlled by the armed group becomes the victim of an armed attack. On closer inspection, for this reason alone, the old insight that neither of the two theories can adequately answer the question of a satisfactory concept of the state is confirmed again and again.
A qualified concept of the state?
One way out of the tiresome debate between constitutive and declarative theory is, of course, to define a qualified concept of the state that requires certain minimum standards with regard to compliance with human rights internally and peaceful behavior externally. In any case, in clear-cut cases such as ISIS / IS, it would also be irrelevant whether, with regard to the inner dimension of sovereignty, one ties in with newer concepts such as the duty of conduct formulated in the principle of the responsibility to protect or with the minimum level of civilization that has recently been increasingly brought up again would. A far more serious problem would be to apply a much higher standard to newly emerging states than to existing ones. Consistently thought, one would have to deny existing unjust regimes their statehood from the perspective of a qualified concept of the state. The famous statement by Augustine that a state without law and justice is nothing more than a large band of robbers applies to all states - regardless of whether they are old or new.
Structures such as IS / ISIS also question our thinking about the subjectivity of international law: an extremist group, viewed from the outside, fully fulfilling the three traditional criteria of statehood, whose military activities extend beyond the territory of a single state. These successes show us once again that our thinking about statehood requires continuous adaptation to new developments and must go beyond focusing on effectiveness. If the law does not want to fall into the disrepute of misunderstood objectivity, one must not shrink from the need for certain minimum standards. Its concrete formulation is of course just as much a different matter as the consequent necessity of fundamentally questioning the status of the state of long-standing injustice regimes.
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