09 Oct Islamic State Is Not a State
A couple of weeks ago, a group of Yezidi women kidnapped, enslaved, and raped by the Islamic State (IS) lost what could have been a landmark case at the New South Wales Civil and Administrative Tribunal. The women sought damages from an Australian-born IS fighter, Khaled Sharrouf, under the terms of New South Wales’ victim compensation scheme. Sharrouf himself is believed to have been killed in Syria in 2017.
Long before the decision, Ben Saul explained why the case always faced an uphill battle:
“New South Wales, like many states in Australia, has a no-fault, victims-of-crime compensation scheme which allows people who have been a victim of a serious offence to get some sort of remedy,” he said.
“But the problem is that it is limited to offences which occur here in NSW or more generally in Australia, so it does not give any joy for victims of overseas crime, including international crimes like war crimes, crimes against humanity, genocide or torture.”
As Ben predicted, the Civil and Administrative Tribunal dismissed the case precisely on jurisdictional grounds.
The Tribunal also appears, however, to have made a rather shocking comment concerning the illegality of the Yezidi women’s enslavement. Here is what The Lotus Flower, a UK-based NGO that helps support female victims of IS, said in its press release decrying the Tribunal’s decision to dismiss the case:
[T]he New South Wales Civil and Administrative Tribunal this week rejected the claim, suggesting that Sharrouf may not technically have committed crimes under IS’ own laws. The Tribunal finding stated: “No basis has been put forward upon which this Tribunal could find as a matter of fact that the actions of Khaled Sharrouf towards the applicants amounted to an offence or offences in Syria or Northern Iraq.”
[snip]
Meanwhile, a spokesman for Hogan Lovells said: “We are very disappointed in the decision of the NSW Civil and Administrative Tribunal. We are concerned that the judgment appears to imply that slavery and rape were not crimes in Iraq and Syria at the time the offences were committed by the Australian perpetrator. In our view the Islamic State in its various forms (IS) was a criminal enterprise, and proscribed terrorist organisation, not recognised by Australia or any other jurisdiction as a State able to enact law… As far as we are concerned the pronouncements on the permissibility of rape and slavery were unlawful and contrary to the law of Syria and Iraq at the time not to mention contrary to international criminal law.
Needless to say, the outrage is warranted. As Hogan Lovells noted, all of Sharrouf’s acts were equally illegal under international criminal law (ICL) and both Iraqi criminal law and Syrian criminal law. ICL applies to all individuals regardless of location, and domestic criminal law applies (at a minimum) to all individuals who commit criminal acts on a state’s territory. And that includes members of non-state actors (NSAs) such as IS.
How could the NSW Civil and Administrative Tribunal possibly suggest otherwise? I think Hogan Lovells points us toward the answer: the tendency to treat IS as a state-like entity with the kind of international legal personality that permits it to enact legislation, convene courts, prosecute offenders, etc. Empirically, some NSAs do all of those things. But that does not mean the “law” adopted and enforced by even state-like NSAs has any legal status. On the contrary, as as Heike Krieger recently noted:
Armed groups challenge the state and its institutions through an illegal use of force. Such groups contribute to dissolving the public order and to diminishing the state’s capabilities. Therefore, governments consider armed groups as illegal as well as illegitimate. The characteristics of armed groups exclude them from any formal source of legitimation available for state actors, in fact, from any form of legitimacy based on legality. International law does not grant armed groups formal legal status unless states have legally recognized them as belligerents or national liberation movements.
There is no question that scholarship treating NSA penal law not only as legitimate in the sociological sense but also as legal is well-intentioned — normally seeking to encourage NSAs to comply with IHL. But in addition to being legally problematic — I don’t think there is a state on earth that would recognize the legal right of even the most state-like NSA to, say, prosecute and execute one of its soldiers — treating NSAs as capable of enacting and enforcing penal laws is likely to lead to precisely the kind of appalling comments made by the NSW Civil and Administrative Tribunal in the Sharrouf case.
Simply put: NSAs are not states, no matter how state-like they might be. And we should not treat them as such.
Dear Kevin, Thank you for the stimulating post. While I tend to agree with most of your points, I would add one caveat: from a certain perspective, it might make sense to treat ISIS as subjects of international law for the purpose of ensuring that no liability for its actions is attributable to, say, Iraq and Syria (which are, in a sense, its “predecessors” – i.e., those States which have been replaced by another subject of international law in the administration of a territory – and “successors”, once they regained the territory). This would be an elegant way to explain why Iraq and Syria are not liable for actions taken by ISIS when the former were not actually exercising their authority over large portions of their territory (although they were of course still claiming jurisdiction over them). In other words: responsibility under international law requires international subjectivity of one kind or another, and clearly ISIS should be deemed liable under international (in addition to domestic) law when it has violated international norms. In this sense, ISIS is more akin to a state as a subject of international law than to an individual – since ISIS had a territorial basis, and… Read more »
I think the Tribunal’s statement has a simpler explanation. Based on my reading of the Tribunal’s decision, it appears that the Tribunal did not have any evidence before it that would have allowed it to make the findings Kevin suggests it ought to have made. There was no evidence before the Tribunal that IS is not a state, or that its proclamations are of no legal effect. There was no evidence that the law of Syria or Iraq was the applicable law. Nor was there evidence of the content of Syrian or Iraqi law. Evidence as to the content of foreign law is a question of fact (not a question of law) in a domestic Australian court or tribunal. It is up to the parties to place that factual evidence before the Court. It is not the role of a Court or Tribunal to do its own research on questions of fact (as distinct from questions of law). The Tribunal’s decision does not refer to any evidence that (a) Syrian or Iraqi law was the governing law; or (b) the content of that law. Given the thoroughness with which the Tribunal engages with other aspect of the evidence, it seems… Read more »
I look forward to the next time an Australian prosecutor introduces proof in a criminal trial that Australian law applies on Australian territory.
Kevin, the tone of your response is regrettable. I was simply suggesting, based on my experience both as a prosecutor and defence counsel in Australia, that there might be an evidentiary reason why NCAT made that comment. The situation before NCAT was obviously different to proof of Australian law in an Australian court – that is a matter of law and does not require proof. In contrast, proof of foreign law (including its content) is a question of fact and must be proved by evidence. The position was summarised in the opening paragraph of a 2011 speech by a NSW Court of Appeal judge, which states: “foreign law is unable to be known by a judge until it is pleaded and proved by a party. In contrast to the position with the laws of other states, and those of New Zealand, our courts cannot take judicial notice of foreign law.” (see http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/Pre-2015%20Speeches/Brereton/brereton160511.pdf). That means that NCAT required proof of the law that applied to Sharrouf’s conduct – most commonly, that is done by someone put on an affidavit explaining what the applicable law is. It would not be enough to simply submit, without evidence, that the act occurred in Syria,… Read more »
My apologies — I should not have been so snarky. Your point is well taken. The case doesn’t seem to have been well argued by plaintiffs’ counsel.