“The Islamic State” and a Challenge to Postwar International Order
“The sound of the bell of Gionshoja echoes the impermanence of all things,” begins The Tale of the Heike. The postwar international order established by the UN Charter is now shifting. The on-going conflict with the “Islamic State” is just one phenomenon of a series of territorial changes in the shifting of the postwar international order; China’s unilateral declaration of the South China Sea as its territorial sea and its claims for Russia’s Vladivostok and its Maritime Province, Japan’s claims for the Northern Territories wrongfully occupied by Russia, and Russia’s open annexation of Crimea and invasion of Ukraine are just a tip of this global seismic movement. .
The Berlin Wall fell in 1989. Notwithstanding the mighty coercive state apparatus of East Germany, the “State” could not stop citizens from walking over the other side of the Wall. And the Soviet Union, the bastion of Orwellian “Big Brother,” was not able to control people’s aspirations for a better life and to contain such growing expectations within its own garrisons. The Soviet Union disintegrated from within in 1990-1991. These dramatic changes all affirm one cardinal truth: The will of the people shall be the basis of the authority of government, not a metaphysical abstraction called the State. The empirical basis for such authority is individuals’ demands for security, respect, freedom, and so on. They make a move, on their own volition, to modify or destroy the State to secure their preferred interests.
With the Tiananmen Square Massacre of 1989 still fresh in its memory, I suspect that China is concerned with the implications of the dramatic territorial changes that took place in Europe and the Soviet Union 1989 and 1990. These changes have in effect “demolished part of the basis of the postwar settlement and the cold war,” as Professor Bruce Cumings of the University of Chicago said. Even though these changes themselves have not directly impacted East Asia yet, they will sooner or later, because the postwar territorial settlement about China, Russia, Japan and Koreas, not to mention the South China Sea, is equally “a regional expression of war settlement that can be compared across the globe.” China knows, for the first time in 70 years, that we are in a period when any of these States may redefine its position in the postwar international order. That is China’s major concern that must have prompted President Xi Jinping to pursue “the realization of the Chinese dream of the great national renewal”.
A similar dramatic conflict is now taking place in another regional expression of war settlement closer to Europe. The brutal campaigns for territorial expansion across state boundaries in the Middle East indicate the same attempt to redefine the territorial boundaries drawn by the victors as a result of the postwar settlement. What distinguishes the present conflict from all other conflicts threatening the postwar international order is that party to the present conflict, the “Islamic State” of Iraq and the Levant (ISIL), is a non-state organization which, by classic definition, cannot be considered a subject of international law.
Though self-styled as a “State,” ISIL is merely a group of private individuals. Nevertheless, that this private entity is by brutal and heinous campaigns re-drawing the territorial boundaries of these States which were born out of the Sykes-Picot Agreement of 1916 between France and the United Kingdom. ISIS entered a territorial space not controlled by the failed State, be it Syria or Iraq.
It is a fundamental challenge to the principle of uti possidetis that allowed newly de-colonized independent States to inherit the original boundaries of the colonies drawn by their respective colonial metropolitan powers as in South America and Africa. And more recently the same principle was applied to Yugoslavia and the Soviet Union.
What radically distinguishes the ISIL’s brutal and abhorrent campaigns for territorial acquisition from any recent application of the uti possidetis principle is that the ISIL wants to restore the territorial boundaries of the Ottoman Empire! That is the reverse application of the principle. In other words, the ISIL wants to establish the status quo ante bellum (the state existing before the war), i.e., prior to World War I.
Curiously, however, the ISIL is acquiring territories by force and intends to maintain them on the basis of the original meaning of uti possidetis, that is, parties to the war each retains whatever territory and other property it holds at the end of the war.
The use or threat of force against the territorial integrity and political independence of any State is prohibited under the UN Charter, as a corner stone of the postwar international order. The ISIL’s brutal and heinous campaigns are not only against that basic principle, but more fundamentally they violate every single principle of human rights enshrined in the Universal Declaration of Human Rights of 1948, which is now customary international law. The ISIL’s brutal, cruel, heinous, and abhorrent conduct is threatening the most basic foundation of the postwar international order.
The ISIL’s professed goal is to re-establish a Caliphate by erasing the territorial boundaries drawn by the Sykes-Picot Agreement. Some territorial boundaries established as part of the postwar international order will not remain permanent, but the process to achieve that goal must conform to the principles of international law, which have historically been used as a tool to mediate between different civilizations, religions and cultures. Contemporary international law has incorporated human rights principles as part of the common standard of conduct. The human rights regime is part of the postwar international order today. The ISIL denies it as the proponents of the life of Caliphate of hundreds of years past. There is no place for such Caliphate in today’s world. As the UN Security Council stated, “ISIL must be defeated.”
And yet, when any hostage is involved, the government involved in the hostage crisis is forced to deal with them. We become their instrument to broadcast their propaganda in the midst of competing and conflicting views of domestic political processes regarding the government’s approach to the crisis unfolding. And criticisms tend to be directed not so much to the cruelty of the ISIL’s crimes as the manner of the government’s dealing with the ISIL’s heinous crimes. That is exactly the ISIL wants us to do. Let us not forget that the ISIL is nothing but a private, organized group of thugs, criminals, abductors, extortionists, terrorists, and murderers. The ISIL must be brought to justice.
✳ Professor of Law, the Ateneo Law School, Manila, Philippines