Written by Daphné Richemond-Barak, F.B, and Daniel J. Schuster. First published in Zeit Online (In German)
The Islamic State or ISIS is profoundly hostile towards Western ideology. This hostility has often been interpreted as challenging or weakening the foundations of the world order – borders, sovereignty, and statehood. Although ISIS is commonly viewed as a threat to the system of nation-states born out of the Westphalian peace treaty, we argue that ISIS in fact strengthens this system by using similar methods as states do to assert authority and legitimacy. By embracing the core attributes of statehood, albeit with fluid and ever-expanding borders, ISIS reinforces the tenets of a system it seeks to destroy.
Ever since the proclamation of a worldwide Islamic Caliphate in the summer of 2014, ISIS has been described in near-apocalyptic terms by many commentators – from a challenge that questions "the very base”, “organizing principles" and "legitimacy of the prevailing order" to an attempt "to overcome the [Westphalian] system completely".
ISIS and the Westphalian legal order could hardly seem further apart. ISIS gives religion the upper hand in defining, conceptualizing and interpreting the world-system and in legitimizing power and authority. International law, on the other hand, being areligious, relegates religion to a place of irrelevance for doing precisely that. ISIS seeks to conquer all other states or state-like entities that claim to have no higher authority above them (except with their explicit consent), while international law seeks to establish peaceful coexistence and a balance of power between such states and entities. ISIS advocates a hierarchical world system with the caliph on the very top defining the laws using a top-down approach, whereas international law advocates the equality of states with a law between territorially defined states, not above them. ISIS views the caliphate as the vehicle to world domination, while international law views the nation-state as the vehicle to the coexistence of equals. The gap is so wide that ISIS has been said to seek the abolishment of the Sykes-Picot borders and the destruction of the sovereign state system.
While accurate in its interpretation of ISIS' goals and declarations, the "apocalyptic" analysis does not adequately portray the consequences of ISIS on our conception of world order. This is because it overlooks the growing resemblance between ISIS and the Western state model à la Weber, characterized by the combination of the rule of law, capitalism and bureaucracy. To put it differently, the widespread intuitive analysis which views ISIS as a challenge to statehood and sovereignty gives more weight to ISIS' far-reaching intentions than to the methods used by ISIS to assert its power.
In territory under it controls ISIS actively maintains and builds up domestic state-structures resembling modern states. ISIS fighters reportedly do not destroy state, civilian or administrative institutions and buildings upon conquering territory. Rather, these institutions are used to build up a modern bureaucratic state infrastructure instead. What ISIS destroys is human resistance and religious symbols considered un-Islamic – not objects of civilian or military functional use.
The anatomy of ISIS similarly exposes sophisticated hierarchical internal structures with which the group seeks to administrate territory. Besides having divided its reign into two regions (Syria and Iraq) each controlled by a certain number of governors, it has established a range of committees responsible for civilian and administrative tasks. These hierarchical bureaucratic state structures bear strong resemblance with our ministries. But perhaps most importantly, ISIS has brought a semblance of order to parts of Iraq and Syria. As Hassan Hassan explains in the New York Times, "they feel like there is a functioning state."
ISIS introduced its own currency and utilizes the existing network of banks for transfers, cashing proceeds of oil exports, and paying its fighters monthly wages. The Financial Times reported that ISIS encourages and provides tax-breaks for “start-ups”. ISIS even has a consumer protection body. As ISIS works towards abolishing the existing economic system, it aspires to establish its own.
Perhaps most importantly, ISIS' insistence on norms and norm-enforcing institutions suggests that it has embraced much of the system it claims to undo. The concept of law is fundamental to the structure and the operations of ISIS. A central feature of ISIS is its claim to be based upon divine law. In its first Dabiq issue ISIS directly attacks the “tyrant ruling by manmade law” and calls upon every Muslim to "guard the landmarks of this religion and implement the Shari'ah (law) of Allah”. Regardless of the cruel aspects of some of the laws – the recent attempts at codifying rape are particularly chilling – an implementation of Sharia provides a degree of predictability, calculability, and rationalization inherent to any normative system.
Early on, al-Baghdadi called on judges and fuqaha’ (experts in Islamic jurisprudence) to join the Islamic State. ISIS has established courthouses and embeds jurists, shari’is, alongside combatants. It has published a penal code listing crimes punishable by amputation, stoning and crucifixion. Beyond law and Islamic jurisprudence, expertise is also sought in engineering and medicine, suggesting that ISIS wishes to create an institutionalized, hierarchical, bureaucratic, and specialized organization. Order is maintained by the Sharia Council, ISIS' most powerful body, which ensures party discipline and supervises ISIS courts and police.
Law is indeed an effective tool for legitimizing and maintaining political power – as ISIS knows. By abiding to a pre-determined set of rules and procedures, as opposed to wielding violence arbitrarily, the group is able to legitimize its use of violence. The adoption of self-constraining guidelines and the creation of a court system enforcing them also help in maintaining discipline and cohesion within the group's own ranks. There is little doubt that ISIS' emphasis on the law has played a significant role in building political legitimacy, attracting new followers, and, ultimately, deepening control over both people and territory.
This is not to say that we support the values upon which ISIS' authoritative ruling system is based or that the sophisticated bureaucracy established by ISIS actually works. Neither are we arguing that ISIS has, or will, become a state in the meaning of international law. But we wish to push back on the idea that ISIS threatens the pillars of the international order as we know it.
This conclusion finds support in how international law itself has rationalized challenges to world order. International law has long rejected the idea that violations of a norm necessarily weaken such norm. The prohibition on the use of force is arguably the most oft violated international norm. Do these repeated violations weaken the norm? According to the International Court of Justice, they do not: "if a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule." Violations do not weaken the norm so long as they are framed using international law constructs – irrespective of the validity of the claim in question under international law or the state’s deference to the international legal system more generally. ISIS, in other words, need not acknowledge the existence of a normative system in order to unwittingly strengthen such system. When “instances of State conduct inconsistent with a given rule” have “generally have been treated as breaches of that rule”, anomalous behavior actually has the effect of reinforcing the rule.
ISIS' reliance on the concept and methods of statehood, no matter how flawed or hypocritical, can and does validate this concept under international law. The intuitive interpretation which regards ISIS as a threat to sovereignty and world order flies in the face of how international law itself contends with anomalous behavior. As ISIS further resembles Weber's bureaucratic state, it will not only "look a lot more like a real state", it will also strengthen the roots and potency of the concepts of nation-state, borders and sovereignty as fundamental principles of international law reflecting the structure of the international system.
 Mohammed Nuruzzaman, The Challenge of the Islamic State, 1 Global Affairs 1(2015), at 1.
 Andrew Phillips, The Islamic State's Challenge to International Order, 68 Australian Journal of International Affairs 495 (2014), at 496.
 Moritz Mihatsch, Welcome to the Post-Westphalia Dystopia, Mada Masr (21 August 2014).
 Matsumoto Futoshi, The World Order and a New “Behemoth”, 22 Asia- Pacific Review 177 (2015), at 181.
 Tim Arango, Isis Transforming into Functioning State that Uses Terror as Tool, New York Times (21 July 2015).
 Andrew March and Mara Revkin, Caliphate of Law: ISIS’ Ground Rules, Foreign Affairs (15 April 2015).
 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment. I.C.J. Reports 1986, p. 14, para. 186.
 Aymenn al-Tamimi, The Evolution in Islamic State Administration: The Documentary Evidence, 9 Perspectives on Terrorism 117 (2015), at 124.
 Rein Müllerson, The Interplay of Objective and Subjective Elements in Customary Law, in International Law: Theory and Practice: Essays in Honor of Eric Suy 162, 173(Karen Wellens, ed.) (Martinus Nijohff, 1998).
Dr. Daphné Richemond-Barak is Assistant Professor at the Lauder School of Government, Policy and Strategy at IDC Herzliya, and Head of the International Humanitarian Law Desk at the International Institute for Counter-Terrorism (ICT).
Daniel James Schuster has a Bachelor degree in Philosophy from the Karl-Franzens University of Graz, Austria, and is currently finishing his Masters degree at the IDC Herzliya, Israel.