The “Islamic State” and international law. The Holy See’s perspective.*

by ANTONINO PRATTICÒ**

TABLE OF CONTENTS: 1. Introduction – 2. The position of the Holy See on terrorism and ISIS – 3. Use of force under International Law – 4. The Islamic State and use of force: towards a new perspective.

1.!Introduction The atrocious crimes being perpetrated by the “Islamic State” (IS), formerly known as ISIS or ISIL

(Islamic State of Iraq and Syria or Levant), represent a serious challenge to the solidity of the international system.

The reason of this “dramatic evolution in the nature of the terrorist threat”1 does not just lie in the fact that the Islamic State is an violent, extremist, armed movement: they want to assert themselves as a State at the cost of killing, maiming and displacing any civilian who stands in their way. “Those groups ruthlessly hijack religion to control territory and vital economic resources. They brutalize women and girls. They target and slaughter minorities. They are the enemies of faith.”2

The United Nations and the collectivity of States have regarded the IS as a terrorist movement. The United States already took drastic measures against it – meeting the dissent of those who claim bombing attacks not being consistent with international humanitarian law. But what is the Holy See’s approach to this issue – being that among the victims of the IS there are thousands of Christians, the majority of which have been forced to flee for their lives to Kurdistan?

The aim of this essay is to retrace the position of the Vatican with respect to the IS problem through the statements of the Holy Father and His staff, connecting them to the solutions outlined by international law and doctrine.

2.!The position of the Holy See on terrorism and ISIS In the UN forum, the Holy See Mission is to “assist [the United Nations] in its realization of peace,

justice, human dignity and humanitarian cooperation and assistance.”3 Being realization of peace one of the principal aims of the international mission of the Holy See, there’s no wonder that up until the present day it has always adopted a more ‘diplomatic’ approach, distancing itself from those who claimed that the use of force was the only way to stop terrorism.

«Violence is not conquered with violence. Violence is conquered with peace!» said Pope Francis I after his Angelus on 20 July 2014,4 but as the Islamic State solidifies control over a broad swath of territory that bridges Syria and northern Iraq, the Holy See is responding to very different circumstances that call for immediate action.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!* The present essay was commissioned by the Chair of International Law at LUMSA University as a 2,000 words written assignment. ** Student in Law at LUMSA University – International Program (PI-LMG/01) 1 UN Secretary General in S/PV.7272 - 24/09/2014 2 Id. “As Muslim leaders around the world have said, groups like ISIL – or Da’ish -- have nothing to do with Islam, and they certainly do not represent a state. They should more fittingly be called the “Un-Islamic Non-State”. 3 “About the Holy See Mission”, available at: http://www.holyseemission.org/about/index.aspx 4 Pope Francis, Angelus - St. Peter’s Square (Sunday, 20 July 2014), available at: http://w2.vatican.va/content/francesco/en/angelus/2014/documents/papa-francesco_angelus_20140720.html

The last statements made by the Pope and his representatives, in fact, are clear evidence of the Holy See taking a slightly different path.

On August 9, the Pope wrote a letter to the UN Secretary General, Ban Ki-Moon, concerning the situation in northern Iraq:

«In renewing my urgent appeal to the international community to take action to end the

humanitarian tragedy now underway, I encourage all the competent organs of the United Nations, in particular those responsible for security, peace, humanitarian law and assistance to refugees, to continue their efforts in accordance with the Preamble and relevant Articles of the United Nations Charter. […]

The tragic experiences of the Twentieth Century, and the most basic understanding of human dignity, compels the international community, particularly through the norms and mechanisms of international law, to do all that it can to stop and to prevent further systematic violence against ethnic and religious minorities.»5 (emphasis added)

Nine days later, on August 18, during an in-flight press conference from Korea to Rome, Pope Francis

answered to some questions regarding the American bombing in Iraq and the possibility for the Holy See to endorse a military intervention to stop terrorists:

«Alan Holdren: “[…] As you know, United States military forces have just begun to bomb

terrorists in Iraq in order to prevent a genocide, to protect the future of minorities […]. Do you approve of this American bombing?”

Pope Francis: “[…] In these cases, where there is an unjust aggression, I can only say that it is licit to stop the unjust aggressor. I emphasize the word: “stop”. I’m not saying drop bombs, make war, but stop the aggressor. The means used to stop him would have to be evaluated. Stopping an unjust aggressor is licit. […] One nation alone cannot determine how to stop an unjust aggressor. After the Second World War, there was the idea of the United Nations: that is where discussion was to take place, to say: Is this an unjust aggressor? It would seem so. How do we stop him?” […] To stop an unjust aggressor is a right of humanity, but it is also a right of the aggressor to be stopped in order not to do evil.

[…] Jean-Louis de la Vassière: “[W]ould Your Holiness, be prepared […] to support a military

intervention on the ground in Iraq in order to halt the jihadists? […]” Pope Francis: “[…] The first question I have already answered: I agree that when there is in

fact an unjust aggressor, he must be stopped.”»6 (emphasis added) On the one hand, the Pope strongly condemns the American bombing in Iraq for one nation alone is

not allowed to determine how to stop the aggressor. On the other hand, the Pope seems to be encouraging a military intervention in Iraq in accordance with the norms and the mechanisms of international law.

3.!Use of force under international law The starting point for any examination of this issue under international law is the prohibition of the use

of force contained in Art. 2(4) of the UN Charter:

ART. 2(4): «All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.» (emphasis added)

This provision has caused much debate among States as well as scholars: what is intended by use of

force? Are all uses of force prohibited for the purposes of Art. 2(4)? Are there any exceptions to this prohibition?

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!5 Pope Francis, Letter of the Holy Father�to the Secretary General of the United Nations organization�concerning the situation in Northern Iraq, available at: http://w2.vatican.va/content/francesco/en/letters/2014/documents/papa-francesco_20140809_lettera-ban-ki-moon-iraq.html 6 In-flight press conference of His Holiness Pope Francis�from Korea to Rome (Papal Flight, Monday, 18 August 2014), available at: http://w2.vatican.va/content/francesco/en/speeches/2014/august/documents/papa-francesco_20140818_corea-conferenza-stampa.html

Leaving the pressing doctrinal debates aside, in order to depict the exceptions to Art. 2(4) outlined by international law, we should divide our examination into two parts.

3.1.!Individual use of force.

The first and most widely accepted exception to Art 2(4) allowing for the use of armed force by individual states or groups of state acting on their own initiative is self-defense.7

A definition of self-defense is provided by customary law, more precisely by The Caroline Case: use of force is lawful as long as (1) it follows from an immediate threat, (2) which could not be avoided by any other means, and (3) the degree of force used is proportionate to the threat. This is a flexible definition, which allows for wide derogations from the prohibition set out in Art 2(4). Applicability of self-defense against terrorism, where the threat does not come from a state but from groups of individuals, has not been “decisively rejected by the international community.”8

Amongst the other exceptions justifying an individual use of force, we can number: collective self-defense, invitations, protection of nationals at home and abroad, humanitarian intervention. Extensive analysis of these exceptions is not necessary for the purposes of this paper.

3.2.!Collective use of force

Not to be mistaken with collective self-defense, collective security is the use of force – authorized by the United Nations and other international organizations – on behalf of the community at large, if there’s an actual need to maintain international peace and security for the purposes of Art. 1(1) of the UN Charter.

The main character acting for collective security is, indeed, the Security Council. Art. 39, in fact, provides the following:

ART. 39: «The Security Council shall determine the existence of any threat to the peace, breach

of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.»

Once established how the Security Council has to behave when international peace is threatened, Arts.

41 and 42 prescribe what kinds of act the SC can adopt in those cases:

ART. 41: «The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.» (emphasis added)

ART. 42: «Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.» (emphasis added)

The original intent of the drafters of the Charters was to have the Security Council intervening

directly, but, in practice, since the SC does not have a military force of its own, it just authorizes member States to use force.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!7 UN Charter, Art. 51: «Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.» 8 M. Dixon, “Textbook on International Law” Oxford University Press (2013), chapter XI.

4.!The Islamic State and use of force: towards a new perspective. According to what has emerged from Pope Francis’ statements in §2 and the very brief review of the

UN Charter articles dealing with the use of force in §3, we might assume that the solution preferred by the Holy See with respect to the IS problem is that of collective use of force on the basis of pondered discussions within the Security Council, instead of individual armed attacks. Accordingly, on October 21, Archbishop Bernardito Auza9 quoted Pope Francis in his statement to the UN at the Security Council Open Debate on The situation in the Middle East:

«This unfair situation [in the Middle East] requires, other than and in addition to our constant

prayers, an adequate response by the international community.»10 Military intervention, however, is not enough. The outcome of the Meeting of the Apostolic Nuncios

in the Middle East of October 2-4 has been clear:

«The resolution of the problem cannot be entrusted solely to a military response; the problem must be dealt with more radically by addressing the root causes which are exploited by fundamentalist ideology. Religious leaders, both Christian and Muslim, should play an important role by cooperating together in promoting dialogue and education for the fostering of mutual understanding, and in denouncing clearly the instrumentalization (sic) of religion to justify violence.»11 (emphasis added)

It follows that that of the Holy See is a very peculiar position. Stopping the aggressor is a right of the

aggressor himself (see supra §2), so military intervention ex Art. 42 is necessary but, still, not sufficient (as a solution of last resort should be). It has to be ‘backed’ by other non-violent measures such as cutting-off of supplies and, above all, diplomatic and religious dialogue ex Art. 41.

Conclusively, according to this perspective, these provisions are not to be seen one as the consequence of the ‘failure’ of the other, they are simultaneous; they do not mutually exclude each other, they are cumulative.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!9 Permanent Observer of the Holy See to the United Nations. 10 Statement of the Holy See to the U.N. in New York at the Security Council Open Debate on The situation in the Middle East, including the Palestinian question (New York, 21 October 2014), available at: http://press.vatican.va/content/salastampa/it/bollettino/pubblico/2014/10/29/0801/01695.html 11 Press Release: Meeting of the Apostolic Nuncios in the Middle East with some superiors of the Roman Curia, available at: http://press.vatican.va/content/salastampa/it/bollettino/pubblico/2014/10/04/0707/01563.html