The Legal Position of the Islamic State in International Law - Legality of the Use of Force against the Islamic State

Abstract: ISIS is not a state. Legal considerations point at that ISIS is a non-state actor and a terrorist organisation. Out of the declaratory theory of recognition, effective control, rule through consent, stabilisation of national conditions and the constitutive theory of recognition ISIS quite convincingly fulfils the first two criteria. In UNC article 2.4 we find a prohibition on the use of force. The use of force in Iraq and Syria to combat ISIS is predominantly justified by foreign actors through the pillars of self-defence (UNC article 51), humanitarian intervention, consent of the host states and the need to protect own nationals. In this context, attribution of ISIS’ actions to the state of Iraq and Syria becomes relevant, to which we answer negatively. The use of collective self-defence could serve as a solution. Leniency towards the accumulation of events theory is more understandable than the anticipatory use of force. Necessity and proportionality are two important elements of self-defence, of which at least the prior can to a larger degree be established in our case. The consent of the Iraqi and Syrian government plays an important role in the legality of the use of force against ISIS. Conclusively, some questions regarding the practical difficulties of an eventual lawful use of force against ISIS arise such as previous downfalls of external actors in the Middle East and resentment among the masses. Diplomacy and methods specifically targeted at confining the territorial strengths are suggested as careful solutions to the problem.