From Apology to Functionalism: A Retrospective Look at the Military Campaign against the Self-Declared Islamic State
Israel Law Review, Volume 53(3), 2020
Hebrew University of Jerusalem International Law Forum Working Series [07-20]
38 Pages Posted: 8 Jun 2020 Last revised: 14 Nov 2020
Date Written: May 10, 2020
This article discusses the military campaign against the "Islamic State" (Daesh), in an attempt to illustrate the gaps in the international legal framework that regulates the use of force when it comes to dealing with a challenge as the one presented by the Islamic State. This case study was challenging given the need to reconcile state-centred rules with a diverse reality which includes several players, and particularly nonstate armed groups in control of territory and population. In order to deal with this challenge, this article proposes the invocation of a functional approach, compared to a binary approach, that is suitable in cases where several players exercise power in the same territory. In particular, it suggests that the Islamic State could have been treated functionally as a state for the purposes of self-defense or collective security measures, instead of invoking legal doctrines of unclear status which might end up undermining the international legal system they are invoked to protect.
Keywords: laws of war, islamic state, security council, unwilling or unable
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