Written Evidence Submitted by:

Dr Anna Marie Brennan,

Lecturer in Law,

School of Law and Social Justice,

University of Liverpool,

Mulberry Court,

Mulberry Street,

Liverpool,

L7 7EZ

Email: Anna.Marie.Brennan@liverpool.ac.uk

Executive Summary:

• Respect for the rule of law and all relevant branches of international law is of utmost importance when examining issues of such significance as UK military operations against ISIL in Syria.

• ISIL is a complex terrorist organisation that is comprised of a highly professionalised core that directs and manages its activities and provides leadership to its broader based of support.

• The UK Government should seek guidance and advice on the law regulating operations against ISIL at the international level.

• The UK Government should carefully consider the military capabilities and organisational structure of ISIL and its obligations under international law when determining what military action to undertake in the region.

• Accountability for crimes and misconduct is critical to public confidence in and international credibility of UK military and counter-terrorism action in Syria. 

• Therefore, the evidence and legal advice relied upon to rationalise military action in Iraq and Syria should be made available to the public. There also needs to be an independent accountability mechanism to ensure that the UK’s obligations under International Law are being observed.

Introduction

• The Defence Select Committee’s Inquiry into UK military operations in Syria and Iraq is timely and important. This written evidence is submitted to the Committee by Dr Anna Marie Brennan (‘the author’) in her personal capacity. She is a lecturer in law in the School of Law and Social Justice at the University of Liverpool where she teaches the Law of Armed Conflict. In addition, she researches and is published in the fields of international criminal law (ICL) and the Law of Armed Conflict (LOAC).

• In 2014, the author was a visiting professional at the International Criminal Court providing assistance to Judge Sylvia Steiner with drafting the final judgment in the Jean-Pierre Bemba Gombo case. She has also worked on the defence team of Radovan Karadzic who stands trial at the International Criminal Tribunal for the Former Yugoslavia on genocide, crimes against humanity and war crimes. Charges. She has undertaken research on the military capabilities of transnational terrorist groups such as ISIL including how they are regulated under the LOAC and ICL. Publications resulting from this research include:

1. Anna Marie Brennan, “Exploring the Accountability of Leaders of

Armed Opposition Groups under International Law” [2010] 23 The Hague Yearbook of International Law 221.

2. Anna Marie Brennan, “Holding Members of Transnational Terrorist Groups Accountable under Article 25 of the Rome Statute: Effectiveness, Legitimacy and Impact” [2013-2014] 18 Spanish Yearbook of International Law 115.

3. Anna Marie Brennan, “Historical Reflections on the Criminalisation of Terrorism under International Law from the League of Nations to R. v. Mohammed Gul: How Britiain has Swollen the Tide of Obscurity” in J. Gauci and R. McCorquodale, British Influences on International Law (Leiden: Brill/Martinus Nijhoff, forthcoming in 2016).

• The reason for this submission is to provide some thoughts on the military capabilities of ISIL and how International Law would apply if the decision is taken for the UK to extend airstrikes into Syria. This submission will consist of two parts: an overview of the military capacity and organisational structure of ISIL and a brief discussion of the hostilities involving ISIL as an armed conflict situation within the meaning of International Law.

Military Capability of ISIL in Syria and Iraq

• Modern non-state armed groups are complex and dialectical organisations with some having a hybrid organisational structure containing both network and hierarchical characteristics. The organisational structure of such groups has gradually evolved over time from a relatively loose organisation with both hierarchical and network features such as al-Qaeda to a more decentralised movement such as Jemaah Islamiyah.

• Even though this decentralised organisational structure has preserved multi-level coordination and some hierarchical features its decentralised network-based structure makes transnational terrorist groups more flexible and mobile allowing them to better adapt to changing circumstances.

• The network structure of such transnational terrorist groups is exemplified by “the effective, multi-level coordination of multiple cells’ activities exercised through generally formulated strategic guidelines.” (Stepanova, p. 128).  Thus, the cells may lack a direct operational link to the centralised command but they nevertheless act and regard themselves as a part of the overall group (Stepanova, p. 26).

• So the organisational structure of some transnational terrorist groups is uniquely different to the organisational structure of both state armed forces and armed opposition groups that have a clear-cut hierarchical structure which enables subordinates to receive orders from the centralised command. For a transnational terrorist group to constitute a network all of its constituent cells must regard themselves as part of the wider network and be prepared to act as a network (Anna Marie Brennan, p. 40).

• The major difference between armed opposition groups that operate within the territorial boundaries of a state and a transnational terrorist group such as ISIL which has the capacity to operate in more than one state is the capricious level of connexion between network and hierarchical characteristics (Anna Marie Brennan, p. 40). Nevertheless, because of their network-based organisational structure some transnational terrorist groups face difficulties making strategic, political and military decisions because the network cells may lack the capacity to communicate effectively with each other (Anna Marie Brennan, p. 40). As a result, transnational terrorist groups sometimes lack the organisational structure necessary to ensure that decisions are implemented by the cells (Anna Marie Brennan, p. 41). .

• Nevertheless, the high number of crimes committed by some transnational terrorist groups would suggest that considerable intra-organisational coherence is required when planning and perpetrating such acts. Indeed, some transnational terrorist groups are not a strict network and like armed opposition groups and state armed forces they may exhibit some hierarchical characteristics (Anna Marie Brennan, p. 42). For example, ISIS, which operates in Syria and Iraq, has both a centralised command and network cells. This type of structure enables ISIL to reinforce its strengths and compensate for its weaknesses. However, this hybrid structure does not sufficiently explain how self-governing cells orchestrate terrorist attacks in an effective and coordinated manner in keeping with the overall strategy developed by the group’s leaders (Anna Marie Brennan, p. 43).

• ISIL needs considerable resources if it plans to sustain a prolonged campaign. However, a fundamental problem for collective movements such as ISIL is gaining access to the resources necessary to conduct its activities. So far, the strategy of ISIL has been to carry out attacks in more than one state so therefore, it requires the regular recruitment of members. Unfortunately, ISIL has had very little difficulty in overcoming this challenge despite law enforcement’s best efforts (Anna Marie Brennan, p. 44).

• After cutting ties with Al Qaeda, ISIL claimed in 2014 that its organisation had achieved the goal of forming a caliphate in the territories it occupied in Iraq and Syria. ISIL proclaims that it has direct command over its fighters in Iraq and Syria, although its capacity to control its members outside these territories is unclear. For example, in March 2015, ISIL affiliates claimed responsibility for the attack on the Bardo Museum in Tunis but law enforcement officials have questioned whether the ISIL leadership in Iraq and Syria coordinated the attacks (Glenn).

• In conclusion, ISIL is comprised of a highly professionalised core that directs and manages it activities, acquiring resources and providing leadership to its broader base of support (Beck, p. 1569). Indeed, ISIL has endeavoured to exercise control over large swathes of territory in Syria and Iraq by establishing court systems, schools and local governments. Evidence therefore suggests that ISIL members occupy many of the top administrative posts in the caliphate and have ordered the torture and killing of civilians.

ISIL and the Law of Armed Conflict

• There are two basic types of armed conflict under the LOAC: an international armed conflict and a non-international armed conflict. The basic laws applicable to these armed conflicts are set out in the Geneva Conventions 1949 as supplemented by the Additional Protocols 1977 setting out the rules concerning the use of force which is permitted during armed conflict situations to which the UK is a party.

(i) International Armed Conflict

• The hostilities involving ISIL could be classified as an international armed conflict. Common Article 2 to the Geneva Conventions as supplemented by Additional Protocol I provides that an international armed conflict exists under the LOAC where there is protracted violence between two or more states.

• As a result, the legal classification of a violent situation as an international armed conflict is dependent on states engaging in violence against each other or where a state uses irregular armed forces against other states as outlined in Article 4(2) of the Third Geneva Convention 1949. The provision refers to “organised resistance movements”, “militias” and “volunteer corps” but also includes non-state armed actors such as insurgents, guerrillas, paramilitaries, private military corporations and terrorists. So what is pivotal is whether pursuant to Article 4(2) all hostilities against the armed forces or the territory of one state are under the direction or control of another state. In other words, an armed conflict exists between the state from whose territory the non-state armed group operates and the state which has endured the violence of that group.

• So the hostilities are not the result of the cross-border violence by the non-state armed group but instead, are because of the use of force carried out by the victim state on the territory of the state from which the group is operating. The fact that there are no hostilities between those two States would seem to be irrelevant.

• However, a number of important consequences arise from classifying hostilities involving ISIL as a non-international armed conflict. First of all, if ISIL does not belong to a state within the meaning of Article 4(2) of the Third Geneva Convention its members would be classified as civilians under Article 51 of Additional Protocol I to the Geneva Conventions.

• Transnational terrorist groups can only be targeted by states in a military action “for such time as they take a direct part in the hostilities.” (Article 51(3) of Additional Protocol I to the Geneva Conventions). As a result, the perpetration of am initial terrorist attack by ISIL cannot be categorised as a war crime when at the time of that attack there was not yet an armed conflict situation. Since the transnational terrorist group is not obliged to comply with the laws of armed conflict in the initial terrorist attack before the state utilised force this attack cannot be classified as a war crime.

• Aside from contorting how the hostilities in Syria are being conducted, classifying the situation as an international armed conflict would also undermine the utilisation of the right to self-defence pursuant to Article 51 of the UN Charter since it would limit the capacity of the victim state to target members of ISIS to such time as they took a direct part in the hostilities (Kreb, page 254 and Schondorf, page 305 et seq).

• Such an approach is completely insufficient to deal with sporadic terroristic activity such as the Paris attacks and indeed is not accepted State practice. Although Yoram Dinstein acknowledges that there can be a “lapse of time” between the initial armed attack and the state’s exercise of self-defence he does not consider how the exercise of the right to self-defence can be balanced with the law regulating international armed conflict (Dinstein, page 233) So it seems quite contradictory to subject the state which conducts a self-defence operation to the law of armed conflict while at the same time omitting the initial terrorist attack carried out by ISIL.

(ii) Non-International Armed Conflict

• Classifying hostilities involving transnational terrorist groups as a non-international armed conflict situation is much more uncomplicated. Common Article 3 to the Geneva Conventions as supplemented by Additional Protocol II was drafted on the premise that non-international armed conflicts were principally conventional civil wars by rebel groups fighting against government forces within the territorial boundaries of that state.

• In the aftermath of the 9/11 attacks there was much uncertainty about whether the conflict classification scheme of the LOAC was sufficient to regulate the challenges of contemporary armed conflicts waged by a state against a transnational terrorist group (Pejic, p. 195). The U.S Supreme Court took a straightforward approach in Hamdan v. Rumsfeld by concluding that Common Article 3 applies to any armed conflict not occurring between two states irrespective of the location it takes place. The conflict between the United States and Al-Qaeda in Afghanistan was consequently classified as a non-international armed conflict situation. The Supreme Court thus dismissed the United States Government’s contention that the ‘war against terror’ in Afghanistan fell into a legal void in IHL, as neither an international armed conflict nor a non-international armed conflict. Instead, it expanded the “minimum humanitarian protections of [C]ommon [A]rticle 3 … to non-citizen ‘terrorists’ on a foreign battlefield.” (Saul, page 6).

• Since on the facts of the case it was not necessary for the Court to deliberate on whether there was a distinct international armed conflict between the United States and the government of Afghanistan (the Taliban), the predominant view was that this was the case. The armed conflict ended upon the establishment of an autonomous Afghan government, which subsequently became embattled in a non-international conflict with the vestiges of the Taliban and Al-Qaeda.

• The Hamdan decision nevertheless can be challenged for not taking into consideration the widely accepted Tadić criteria of intensity and organisation in ascertaining the existence of a non-international conflict situation under Common Article 3 to the Geneva Conventions. It also did not consider whether Common Article 3 assumes that the non-state armed actor has the capacity to comply with LOAC in view of their complex structure and organisation (Bianchi and Naqvi, pages 106-107). The Court’s classification of the armed conflict situation between a state and a non-state armed actor on the territory of another state as a non-international armed conflict is odd given that the state is engaging in combat operations on foreign soil.

• Nevertheless, the correct categorisation of the situation ultimately depends on how Common Article 2 and Common Article 3 to the Geneva Conventions should be construed in light of one another. Common Article 2 clearly states that an international conflict is one arising “between two or more of the High Contracting Parties.” The Supreme Court in the Hamdan case understood this to imply that in order for a situation to be classified as an international armed conflict the hostilities must occur between the armed force of two or more states and this would seem to be the majority understanding of the provision (Hamdan, pages 41-42).

• Another view is that the phrase also includes situations where one state conducts hostilities against a transnational terrorist group on the territory of another state without the latter’s permission. Pursuant to this approach, such situations are categorised as an international armed conflict between two High Contracting Parties, rather than a non-international armed conflict between a state and a transnational terrorist group. In particular, Common Article 2 specifically refers to armed conflict between “High Contracting Parties” namely, the legal entity of the state and its territory and is therefore not limited to armed conflict between state armed forces (Hamdan, pages 41-42).

Recommendations

It is submitted that the Committee should make the following recommendations to Government:

• The structure and organisation of ISIL is very different to other types of non-state armed actors. As a result, they have the capacity to evolve their strategy quite easily.

• Indeed, ISIL arguably has a hybrid organisational structure containing both network and hierarchical organisational features. As a result, network cells can perpetrate attacks in an impromptu manner without receiving formal orders from the centralised command. This in turn could lead to evidential difficulties in determining whether such attacks constitute an international crime.

• The classification of hostilties involving ISIL is a highly contentious issue. Therefore, the UK needs to seek further interpretive guidance on the application of the Law of Armed Conflict to the situation.

• Any future military operations conducted by the UK must comply with the fundamental principles underlying the Law of Armed Conflict.

• The UK estbalishes an independent oversight mechanism that would ensure that the UK is in compliance with its obligations under International Law in repsect of any military operations undertaken.

References

• Common Article 2 as supplemented by Additional Protocol I to the Geneva Conventions.

• Common Article 3 as supplemented by Additional Protocol II to the Geneva Conventions.

• Bianchi and Y. Naqvi, International Humanitarian Law and Terrorism (Oxford: Hart Publishing, 2011).

• A. M. Brennan, The Accountability of Transnational Armed Groups under International (University College Cork: PhD Thesis, 2015).
• C. Beck, “The Contribution of Social Movement Theory to Understanding Terrorism” (2008) 2 Sociology Compass 1565.
• Y. Dinstein, War, Aggression and Self-Defence, 5th ed. (Cambridge” Cambridge University Press, 2011).
• C. Glenn, “Al-Qaeda v. ISIS: Leaders and Structure” (The Wilson Center: 28 September 2015) available at: https://www.wilsoncenter.org/article/al-qaeda-v-isis-leaders-structure (date accessed: 10 January 2016).

• Hamdan v. Rumsfeld, 548 US 557 (2006) available at: http://www.supremecourt.gov/opinions/boundvolumes/548bv.pdf

• C. Kreb, “Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts” (2010) 15 Journal of Conflict and Security Law 245.
• J. Pejic, “The Protective Scope of Common Article 3: More than Meets the Eye” (2011) 93 (881) International Review of the Red Cross 189.

• B. Saul, “Terrorism and International Humanitarian Law” in B. Saul, ed., Research Handbook on International and Terrorism (Cheltenham: Edward Elgar, 2014).

• R. Schondorf, “The Targeted Killings Judgment: A Preliminary Assessment” (2007) 5 Journal of International Criminal Justice 305.
• E. Stepanova, Terrorism in Asymmetrical Conflict: Ideological and Structural Aspects (Oxford: Oxford University Press, 2008).