Humanitarian intervention in response to the attacks by ISIS LA LOUW 22866639 Dissertation submitted in partial fulfilment of the requirements for the degree Master of Law in International Aspects of Law at the Potchefstroom Campus of the North-West University Supervisor: Dr HJ Lubbe November 2016 ACKNOWLEDGEMENTS I have to agree with Harvey Mackay who stated that: None of us got to where we are alone. Whether the assistance we received was obvious or subtle, acknowledging someone's help is a big part of understanding the importance of saying thank you. With this borne to mind, I would like to give thanks to my Study Supervisor, Dr Hein Lubbe. His constant professional assistance, guidance, support and motivation enabled me to successfully complete my dissertation. To Schalk Nel as well as Jacques and Charl Louw thank you for your encouragement, understanding and patience. My parents, thank you for providing me with the opportunity to enrol for my Master's Degree and for constantly reminding me to stay positive and to believe in myself. i LIST OF ABBREVIATIONS AAJ Australian Army Journal AGLR Albany Government Law Review AILJ Australian International Law Journal AJIL American Journal of International Law ALF Amsterdam Law Forum AQ Al-Qaeda AQI Al-Qaeda in Iraq AU African Union AULR American University Law Review CLR Columbia Law Review CLTLB Columbia Journal for Transnational Law Bulletin CTC Counter Terrorism Committee CTITF Counter Terrorism Implementation Task Force DIIA Danish Institute of International Affairs DJILP Denver Journal of International Law and Policy ECOWAS Economic Community of West African States EIA Ethics and International Affairs EJIL European Journal of International Law FFWA Fletcher Forum of World Affairs FILJ Fordham International Law Journal FSA Free Syrian Army ii GA General Assembly GLJ Georgetown Law Journal GWILR George Washington International Law Review HRLR Human Rights Law Review HRW Human Rights Watch HSR Homeland Security Review IAEA International Atomic Energy Agency IAPL International Association of People's Lawyers ICAO International Civil Aviation Organisation ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICISS International Commission on Intervention and State Sovereignty ICJ International Court of Justice ICLQ International and Comparative Law Quarterly ICRC International Committee of the Red Cross ICRP International Responsibility to Protect ICTY International Criminal Tribunal for former Yugoslavia IDMC Internal Displacement Monitoring Centre IHL International Humanitarian Law IICK Independent International Commission on Kosovo ILR Iowa Law Review ILS International Law Studies ILSA JICL ILSA Journal of International and Comparative Law iii IRRC International Review of the Red Cross IS Islamic State ISI Islamic State of Iraq ISIL Islamic State of Iraq and Levant ISIS Islamic State of Iraq and Syria JAN Jabhat al-Nusra JCSL Journal of Conflict and Security Law JICJ Journal of International Criminal Justice JNSLP Journal of National Security Law and Policy JPE Journal of Political Economy JPR Journal of Peace Research JRE Journal of Religious Ethics JTF Joint Task Force JTLP Journal of Transnational Law and Policy JUFIL Journal of the Use of Force and International Law MEP Middle East Policy MJIL Melbourne Journal of International Law MJILT Maryland Journal of International Law and Trade MLR Marquette Law Review MYILS Michigan Yearbook of International Legal Studies NATO North Atlantic Treaty Organisation NSLB National Security Law Brief NULR Northwestern University Law Review iv OAG Organized Armed Group OHCHR Office of the High Commissioner for Human Rights PILROC Pace International Law Review Online Companion PPR Police Practice and research R2P Responsibility to Protect RILP Review of International Law and Politics RIS Review of International Studies SC Security Council SCJIL Santa Clara Journal of International Law SDLP Sustainable Development Law and Policy SJILC Syracuse Journal of International Law and Commerce STLR Suffolk Transnational Law Review TWQ Third World Quarterly UBCLR University of British Columbia Law Review UK United Kingdom UMNSACLR University of Miami National Security and Armed Conflict Law Review UN United Nations UNDP United Nations Development Programme UNESCO United Nations Educational, Scientific and Cultural Organisation UNHCR United Nations High Commissioner for Refugees UNODC United Nations Office on Drugs and Crime UNSCOM United Nations Special Commission v US United States VJIL Virginia Journal of International Law VJTL Vanderbilt Journal of Transnational Law WYAJ Windsor Yearbook of Access to Justice YJIL Yale Journal of International Law vi ABSTRACT Title: Humanitarian intervention in response to the attacks by ISIS Key terms: ISIS; terrorism; International Humanitarian Law; armed conflict; self-defence; authorised and non-authorised humanitarian intervention 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 vii 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 viii 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." 1 Dugard International