ISIS PROJECT HUMAN RIGHTS

The scenario

Since August 2014, the United States has carried out 20,000 bombing and cruise
missile attacks against ISIS targets in Iraq and Syria.

Iraq consented to the air strikes in its territory, but Syria didn’t. And Russia blocked
the United Nations Security Council from authorizing force against ISIS in Syria.

For two years, the United States was virtually alone in its efforts. Russia, China and
even the United States’ staunchest ally, the United Kingdom, felt that the United
States could not justify its bombings under existing international law.

The United States government initially invoked several different legal arguments in
arenas such as the U.N. and U.S. Congress to justify airstrikes against ISIS in Syria.

NOTE: (AFOREMENTIONED IS THE BACKGROUND OF THE MATTER

AND BELOW IS WHAT WE CAN INCLUDE IN THE PROJECT)

These included the right of humanitarian intervention (controversial without a UN

Security Council resolution), the right to use force in a failed state
(equally controversial) and the right of “hot pursuit” (usually used to justify pursuing
ships in international waters). None of these had a solid grounding in international
law that would have justified violation of another country’s sovereign territory.

Finally, the US officials settled on a novel argument under the rubric of self-defence.
Even in the aftermath of the al-Qaida attacks in the United States on 9/11, the use of
force in self-defense against terrorists within another sovereign nation had not been
viewed as lawful unless the terrorist organization was under the effective control of
that nation. This is a position that had been repeatedly reaffirmed by the International
Court of Justice.
But the United States argued that such force can be legally justified where a
governing authority is unable or unwilling to suppress the threat operating within its
borders.

The shift

That view was not initially accepted by Russia, China or even the United Kingdom.
However, their position changed in the aftermath of the ISIS attacks on the Russian
jetliner and on the Paris stadium and theater. This, in turn, led to the unanimous
adoption of a UN Security Council resolution calling on nations to use “all necessary
measures” to fight ISIS in Syria. UN Security Council Resolution 2249, adopted in
November 2015, does not clearly endorse a particular legal justification.

But despite its ambiguity, it will likely be viewed as confirming that use of force in
self-defense is now permissible against “nonstate actors” such as terrorists when the
territorial state is unable to suppress the threat that they pose. In the aftermath of the
adoption of the UN Resolution, Russia and the United Kingdom joined the United
States in bombing ISIS targets in Syria. Today, 66 nations, according to Secretary of
State John Kerry, are united to fight ISIS.

Implications for the future

The implication of this newly accepted change in the international law of self-defense
is that any nation can now lawfully use force against deadly nonstate actors in another
country if the government of that country is unable or unwilling to suppress the threat
within its borders.

However, use of force under this new approach is still subject to limits imposed by
what is known as customary international law, or the practices that the international
community of states customarily follows from a sense of legal obligation. More
specifically:

 Only an armed attack can trigger the right to use force in self-defense. Mass
terrorist attacks that result in hundreds of deaths meet that threshold. Smaller-
scale incidents would not.
  The use of force must be targeted against a terrorist organization and not
against the nation where the terrorist group exists, or that nation’s military,
unless the nation is shown to be effectively in control of the offending group.

 Military action must still meet the international law principles of necessity,
proportionality and discrimination.

While this new authority will certainly prove useful against ISIS, there is a likelihood
that it will ultimately be used against a much broader group of threats. Such threats
could include a variety of terrorist groups, as well as rebels, pirates or drug cartels.

The number of candidates for such self-defense action is quite large. The US
Department of State, for example, maintains a list of terrorist organisations that pose a
significant threat to the United States and its allies around the world. This list includes
58 terrorist groups headquartered in 35 different countries (in addition to ISIS in
Syria/Iraq).

With so many potential targets in so many countries, one must ask whether the
possibility of abuse will ultimately outweigh the benefits of weakening ISIS.

NOTE: STATISTICS FROM UN ON THE ATROCITIES BY ISIS (WE WILL

HAVE TO RELATE IT TO UDHR AND CUSTOMARY INTERNATIONAL
LAW)

GENEVA – A U.N. report published Thursday (November 2) concludes that the so-
called Islamic State of Iraq and Syria (ISIS/Daesh) perpetrated serious and systematic
violations that amount to “international crimes” during the nine-month military
campaign to liberate Mosul City in Iraq.

The report, by the U.N. Assistance Mission for Iraq (UNAMI) and the Office of the
U.N. High Commissioner for Human Rights (OHCHR), is based on direct witness
testimony, and documents mass abductions of civilians, the use of thousands as
human shields, the intentional shelling of civilian residences, and the indiscriminate
targeting of civilians trying to flee the city.
A total of 2,521 civilians are estimated to have been killed, and 741 by ISIS
execution, during the fight between ISIS and the internationally backed Iraqi Security
Forces (ISF) that ended in July, the U.N. rights office said in a report.
“During the course of the operation to retake Mosul City thousands of civilians were
subjected to shocking human rights abuses and clear violations of international
humanitarian law,” said the U.N. High Commissioner for Human Rights Zeid Ra'ad
Al Hussein. “The execution-style killing of civilians, the suffering inflicted on
families, and the wanton destruction of property can never be tolerated in any armed
conflict, and those responsible must answer for their heinous crimes.”

Mosul, Iraq's second city was captured by ISIS in 2014 and became the capital of the
group's self-styled "caliphate" in the country. The fighting, the report said, displaced
more than 824,000 people. The Special Representative of the U.N. Secretary-General
(SRSG) for Iraq, Ján Kubiš, said “Daesh’s [ISIS] reign of terror has spared no one,
inflicting untold suffering on unarmed residents whose only guilt is that they lived in
the areas under ISIS’s control. Their evil acts did not stop at killing and terrorizing
residents, as they wantonly destroyed cultural and religious monuments, including the
city’s iconic leaning minaret Al-Hadba, in total disregard of history and Islam, the
religion this terrorist organization falsely claimed to represent.”

The report also noted that at least 74 mass graves, created since 2014, have been
discovered in areas previously held by ISIS in Iraq. The number of bodies in these
locations varies greatly, from a few bodies to possibly thousands. The U.N. called on
the Government of Iraq to protect these graves [according to law], to preserve
evidence of the crimes committed to assist in identifying the perpetrators [as well as
the victims].

With regard to ISF and associated militia forces, UNAMI/OHCHR recorded several
instances of alleged violations and abuses of human rights by them. The investigative
team has advocated with Iraqi authorities for prompt and thorough investigations to
be carried out and for those responsible to be brought to justice but the outcome is not
yet clear in those cases.
So far the investigative team has recorded 461 civilian deaths as a result of airstrikes
during the most intensive phase of the ISF-led offensive from 19 February. In almost
all cases, UNAMI/OHCHR could not determine who specifically responsibility for
those strikes was, but the report urged that all civilian casualties [potentially caused
by international forces] be thoroughly investigated and the results made public.
The reports note “Iraqi courts do not have jurisdiction over international crimes
committed in Iraq. Additionally, Iraq is not a Party to the Statute of the International
Criminal Court and has not accepted the jurisdiction of the Court under article 12(3)
of its Statute. The Government is currently examining national and international
mechanisms to address international crimes committed by ISIL.”
The U.N. rights office urges the Iraqi government to invite the International Criminal
Court to investigate the country's situation "as an immediate step."
The U.N. human rights investigators believe that "by prosecuting those responsible
for 'international crimes' in Mosul the Iraqi authorities would be sending a message to
the people of Iraq who have suffered, no matter when or where, that justice is
eventually delivered.”