Islamic State, the United Nations and the Fragility of the Rule of Law

Abstract

The rule of law is in crisis. The crisis’ epicenter is in Iraq and Syria, but it also sends shockwaves into the international legal order and in national legal systems further afield. The crisis escalates rule of law challenges from the initial ‘war on terror’ after the attacks in the United States on 11 September 2001. These challenges are direct insofar as organizations such as Al-Qaida or Islamic State reject the existing system of government at national and international levels. The challenges are indirect insofar as the reaction of the international community may itself undermine the rule of law. The first part of this paper gives an account of the rule of law. It describes three dimensions of the rule of law: the existence of a state of legality; the adherence to modal principles of legality; and the promotion of a culture of legality. Each of the three dimensions is useful to assess the rule of law in a given jurisdiction and to consider direct and indirect challenges. The second, third, and fourth parts of the paper set out the ways in which the rise of Islamic State, and the UN Security Council response, pose challenges to the rule of law. In direct terms, Islamic State’s seizure of territory challenges the existence of the (national) state of legality in Iraq and Syria and also the international state of legality in the Middle East. In indirect terms, the UN Security Council response does not respect the modal principles of legality that constitute the second dimension of the rule of law. Two principles illustrate the point: that laws should be clear and understandable; and that they should reflect natural justice. The culture of legality in and across states may also come under challenge in both direct and indirect ways as a result of action by Islamic State and by the UN Security Council. A full assessment of this final challenge would require a lengthier examination of legal culture than is possible here. On this point, therefore, the paper merely postulates the challenge for further exploration. The paper’s conclusion is that the escalation of the crisis caused by Islamic State renders vulnerable the stabilization of collective power to which the rule of law is central. This potential destabilization requires us to consider the fragility of the rule of law in the ‘wars on terror’ in the twenty-first century. The prospective longevity of current conflicts on cultural, ideological, and religious grounds may reverse the narratives of progression in national law and in international law and relations since World War II. The danger is not of a return to anarchy but to a state in which the law serves to legitimize exercises of power but does little to constrain that power.