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The Islamic State (Isis) As a Case Study: Past, Present, and Future

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The Islamic State (Isis) As a Case Study: Past, Present, and Future LCB_23_1_Article_1_Khadem (Do Not Delete) 4/4/2019 1:58 PM WHY SHOULD LAW AND POLICY MAKERS UNDERSTAND EXTREMIST BELIEFS? THE ISLAMIC STATE (ISIS) AS A CASE STUDY: PAST, PRESENT, AND FUTURE by Ali Rod Khadem The overarching argument in this Article is that inadequate comprehension of extremist doctrines undermines efforts in law and policy. Selecting the Islamic State (ISIS) as a case study, this Article attempts to resolve three legal and policy dilemmas by exposing internal ISIS doctrine (i.e. by considering the perspectives of the movement itself). This focus on ISIS is justified, for despite the movement’s recent territorial decline, it is precisely its doctrine and ideology that will persist and enable the rise of 2.0 and 3.0 movements modeled after the prototype. In considering ISIS, the aim here is to demonstrate the general need for law and policy to be better informed by subject matter expertise within Middle Eastern and Religious Studies. * Ali Rod Khadem is a faculty member at Deakin University Law School (located in Melbourne, Australia), where he was recruited to enhance the University’s international and comparative law program. He has previously taught at UC Berkeley Law School, where he was also a fellow at the Miller Institute for Global Challenges and the Law. During that fellowship, he advised the Dean on a strategy for launching a program in Middle Eastern and Islamic Law and Policy and spearheaded the creation of a three-way partnership between the law schools of UC Berkeley, Peking University in China, and Koc University in Istanbul. Ali Rod Khadem holds PhD and MA degrees in Islamic Intellectual History from Harvard University, as well as JD and MA (Islamic law) degrees from UC Berkeley. 101 LCB_23_1_Article_1_Khadem (Do Not Delete) 4/4/2019 1:57 PM 102 LEWIS & CLARK LAW REVIEW [Vol. 23:1 Introduction .................................................................................................... 103 I. THE ISIS PRESENT: NON-STATE ACTORS AND THE QUESTION OF WESTPHALIA ........................................................ 106 A. The ISIS System of Governance (2014–2016) .................................. 108 1. Political Structure..................................................................... 108 2. Legal Structure ......................................................................... 113 3. Economic Structure ................................................................... 117 4. Social Structure ........................................................................ 120 B. Integration within the International Order of Nation-States .............. 124 1. The Standard Analysis .............................................................. 124 a. The Montevideo Requirements ............................................ 124 b. UN General Assembly Resolution 2625 ............................... 127 c. United States Case Law ..................................................... 128 d. Extra Legal Norms of Legitimacy ........................................ 129 2. Doctrinal Analysis: Can ISIS Accept Participation in the Nation-State System ................................................................. 131 a. Secular Nation-States are Essentially Heretical ..................... 132 b. Islamic Nation-States are Essentially Hypocritical ................ 134 c. The Very Concept of Nation-State is Essentially Un-Islamic.. 134 C. Conclusions Regarding ISIS Governance Practice and Possibilities of Integration within the Westphalian Order ........................................ 141 II. THE ISIS PAST: DOCTRINAL ORIGINS AND THE CONSTITUTIONALITY OF U.S. MILITARY ACTION ................. 143 A. Why is the OIR Debate Intractable? The Need for a New Analytic Standard ........................................................................................ 144 1. The Underlying Dispute: Are al-Qaeda and ISIS “Associated Forces”? .................................................................................... 144 2. The Problem of Empirically-Weak Standards ............................. 147 a. Deficiencies of the “Exogenous” Standard (The Obama Position) ........................................................................... 147 b. Deficiencies of the “Endogenous-Liberal” Standard .............. 152 3. Remedying the Deficiencies: Towards an “Endogenous- Conservative” Standard ............................................................ 156 a. The Default Rule of Association .......................................... 156 b. Exceptions to the Default Rule of Association ....................... 158 i. The Political-Violence Exception ................................. 158 ii. The Hostile-Doctrine Exception .................................. 160 iii. The Apostasy Exception .............................................. 160 LCB_23_1_Article_1_Khadem (Do Not Delete) 4/4/2019 1:58 PM 2019] THE ISLAMIC STATE (ISIS) AS A CASE STUDY 103 B. Applying the Endogenous-Conservative Standard to the al-Qaeda— ISIS Relationship ............................................................................ 161 1. The Outer Layer of the al-Qaeda—ISIS Relationship: Politics ..... 162 a. The Dispute ...................................................................... 162 b. Association or Disassociation? .............................................. 166 2. The Middle-Layer of the al-Qaeda—ISIS Relationship: Tactics ... 168 a. The Dispute ...................................................................... 168 b. Association or Disassociation? .............................................. 174 3. The Inner Core of the al-Qaeda—ISIS Relationship: Religious Doctrine .................................................................................. 176 a. The Dispute ...................................................................... 176 b. Association or Disassociation? .............................................. 180 i. The Political-Violence Exception ................................. 181 ii. The Hostile-Doctrine Exception .................................. 182 iii. The Apostasy Exception .............................................. 187 C. Conclusions Regarding the Legality of Operation Inherent Resolve ...... 189 III. THE ISIS FUTURE: ULTIMATE AIMS AND THE PROBLEM OF UTOPIA VS. DYSTOPIA ............................................................. 190 A. Axiomatic Foundation of the Final World Order .............................. 191 1. Modality .................................................................................. 191 2. Temporality ............................................................................. 193 B. Basic Structures of the Final World Order ........................................ 194 1. Political Structure..................................................................... 194 2. Legal Structure ......................................................................... 196 3. Economic Structure ................................................................... 198 4. Social Structure ........................................................................ 199 C. Conclusion Regarding the “ISIS Future” .......................................... 201 Conclusion....................................................................................................... 202 INTRODUCTION The overarching argument of this Article is that inadequate comprehension of extremist doctrines, and particularly the conflation of various extremist movements that are merely superficially similar, hamstrings the descriptive and prescriptive measures of American and international law and policy. While extremism takes re- ligious as well as secular forms, this Article focuses on the former, and selects the Islamic State (ISIS)—particularly during its heyday from 2014 to 2016—as a case study. This selection of ISIS is quite deliberate, for despite the movement’s later political and territorial decline, it is precisely its doctrine and ideology that will per- LCB_23_1_Article_1_Khadem (Do Not Delete) 4/4/2019 1:57 PM 104 LEWIS & CLARK LAW REVIEW [Vol. 23:1 sist and enable the rise of ISIS 2.0 and 3.0 movements modelled after the now de- clining prototype.1 In addressing the case of ISIS, this Article does not attempt an exhaustive survey of legal and policy concerns related to the movement, nor does it attempt to comprehensively account for the movement’s doctrines, both of which would be far beyond the scope of an article. Instead, this Article selects three ISIS- related problems in recent legal and policy discourse and attempts to resolve these problems by exposing ISIS’s own internal doctrine related to these specific areas only. This exposition of ISIS doctrine is done both through analysis of primary sources—some of which have been translated herein by the present author—as well as through citations of secondary source material.2 In so doing, the aim of the pre- sent author is to demonstrate, through the examples selected herein, the pressing need for legal and policy analysis to be better informed by subject matter expertise within the academic field of Middle Eastern and Religious Studies. Part I (the “ISIS Present”) considers ISIS in its capacity as a non-state actor that has been disrupting the Westphalian order of nation-states. Historically, nu- merous Islamist movements have, despite originating as non-state insurgencies, eventually modified their behaviors and have become incorporated within the ap- paratus of the nation-state (e.g., the Muslim Brotherhood, Hamas, etc.), or in some cases
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