Non-State Courts: Illegal or Conditional? The Case of Da’esh Courts

Journal of International Humanitarian Legal Studies, Vol. 10, Issue 2, 2019, pp. 240-264.

Posted: 8 Jul 2020

See all articles by Pouria Askary

Pouria Askary

Allameh Tabataba’i University

Katayoun Hosseinnejad

Graduate Institute of International and Development Studies (IHEID)

Date Written: November 01, 2019

Abstract

The Islamic State of Iraq and Levant (Da’esh) has put in place a governance system encompassing judicial structures to justify its grotesque violence. This paper seeks to evaluate the legitimacy of these courts under two complementary perspectives. Whereas establishing courts by an insurgent group during armed conflict should meet the requirements of international humanitarian law (ihl), because Da’esh claims to ground its laws on Islam, these courts should also follow the requirements of Islam as its constituting law. The paper starts with analyzing whether international law entitles armed groups to establish their courts. It argues that although such courts are not prohibited at first glance under international law, they should meet the requirements of being regularly constituted while respecting minimum judicial guarantees. Since Da’esh has sought to found its legitimacy on Islam, the paper argues that Da’esh’s interpretation of Islam is not compatible with any major schools of Islamic thought.

Keywords: International Humanitarian Law; Islam; Non-International Armed Conflict; Non-State Actors; Islamic State (Da’esh); Courts; Judicial Guarantees

Suggested Citation

Askary, Pouria and Hosseinnejad, Katayoun, Non-State Courts: Illegal or Conditional? The Case of Da’esh Courts (November 01, 2019). Journal of International Humanitarian Legal Studies, Vol. 10, Issue 2, 2019, pp. 240-264., Available at SSRN: https://ssrn.com/abstract=3626380

Pouria Askary (Contact Author)

Allameh Tabataba’i University ( email )

Iran

Katayoun Hosseinnejad

Graduate Institute of International and Development Studies (IHEID) ( email )

PO Box 136
Geneva, CH-1211
Switzerland

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