Showing posts with label Islamic State of Iraq and Syria. Show all posts
Showing posts with label Islamic State of Iraq and Syria. Show all posts

Tuesday, August 11, 2015

First ISIS Detainee Turned Over to Iraqi Kurds for Trial

News broke late last week that ISIS detainee Nasrin As’ad Ibrahim (alias Umm Sayyaf) was handed over to the Kurdish Regional Government in Iraq.  U.S. forces captured Umm Sayyaf in May during a raid in which her husband, Fathi ben Awn ben Jildi Murad al-Tunisi - a powerful ISIS leader involved in oil and gas development - was killed.  The Wall Street Journal reported that Umm Sayyaf "provided valuable insights into Islamic State’s financial operations and leaders" during questioning in the 3-month period she was detained by American forces.

In July, the Washington Post reported that federal prosecutors were preparing charges against Umm Sayyaf.  The Post also noted that "[a] prosecution of Umm Sayyaf for her suspected role in taking Mueller hostage would be the first publicly known FBI case involving an alleged senior figure in the Islamic State."   Reports indicate that the decision to transfer her to Iraq's Kurdish regional government, rather than bring her back to the United States to face charges, stemmed in part from the fact that Iraq does not extradite its citizens.

U.S. Secretary of Defense Ash Carter speaks to reporters about the operation that led to Umm Sayyaf's capture (Source: WSJ)


This begs the question: what is the current status of U.S.-Iraqi extradition agreements?  This is not merely an academic question.  If the United States continues to conduct military operations against ISIS forces within Iraqi territory, will it be unable to bring ISIS terrorists to trial in the United States?  Once a prisoner is in the U.S., the U.S. has tools at its disposal to try him or her for material support of terrorism.  Specifically, 18 U.S. Code 2339A and 2339B criminalize the material support of terrorists and terrorist organizations.  Though not heavily publicized, the FBI and U.S. Attorney's Offices have been making domestic arrests for material support of terrorism -- often when an individual is at the airport on his way to Syria to join ISIS.  Moreover, the U.S. has jurisdiction over conduct violative of its "material support" statutes even when that conduct occurs outside of the geographic bounds of the United States.  For example, 2339B contains an entire "Extraterritorial Jurisdiction" section that states there is jurisdiction for a material support of terrorist organizations offense if "after the conduct required for the offense occurs an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States."  Thus, were Umm Sayyaf or another high-profile ISIS member captured and brought into the United States, the appropriate U.S. Attorney's Office could charge and prosecute said ISIS member.

In order to get said ISIS member to the U.S., however, one might have to deal with the issue raised by the Iraqis in the present case: extradition.  The United States in fact has a still-existing extradition treaty with Iraq that dates back to 1936.  That treaty lays out the charges and procedures under which either party can request extradition of an individual located within the geographic bounds of the other party.  Reviewing the treaty, terrorism is not mentioned but "murder" and "kidnapping" are charges in which Umm Sayyaf may have been a participant and therefore potentially charged in the United States.  One hurdle, however: Article VIII of the treaty notes that "neither of the High Contracting Parties shall be bound to deliver up its own citizens."  Therefore, Iraq would not be bound to turn over an Iraqi citizen to face charges in the U.S., but nothing in the treaty prohibits Iraq from voluntarily doing so.  The treaty was used most recently in 2014, when Iraq extradited a U.S. citizen back to the U.S. to face fraud charges related to defense contracting.

However, there is another, newer hurdle to extradition: the Iraqi Constitution.  Article 21 of the Constitution of Iraq states that "[n]o Iraqi shall be surrendered to foreign entities and authorities."  This is a much more explicit prohibition that the more discretionary language of the 1936 extradition treaty.  As the U.S. continues to wage military operations against ISIS, one must wonder if the Umm Sayyaf incident has led American and Iraqi military and political personnel to discuss creative ways to comply with the Iraqi Constitution and also bring ISIS detainees to the United States.  What if, for example, a high-level ISIS commander known to have been involved in killing American citizens is captured by U.S. military personnel?  At some point, the American government would justifiably want to see certain ISIS detainees brought to the U.S. to face trial.  Indeed, the decision to hand Umm Sayyaf over to the Kurdish regional government rather than the central government may have reflected a reluctance to turn her over to the central Iraqi government (of course, it could have also been a strategic decision to avoid placing the Shiite government in charge of an important ISIS detainee).

One possible solution would be to establish clear U.S. custody of a detainee from the moment of capture.  If the Arabic version of the Iraqi Constitution is interpreted the same as the English version, that constitution prohibits the surrendering of Iraqi citizens to foreign authorities.  If Iraq never has custody over a detainee, the thinking would go, there would be no constitutional violation because Iraqi authorities never had custody of the detainee.  This is one way in which both governments could work together to help respect the integrity of the Iraqi Constitution while also aggressively pursuing ISIS terrorists.

Sunday, January 11, 2015

New Series: The Changing World of Territorial Sovereignty (ISIS Edition)

Welcome to a new series on the Changing World of Territorial Sovereignty, where Illexum will explore the ways in which the traditional views of territorial sovereignty have transformed or eroded.  When discussing threats to traditional statehood, the focus is usually on globalization and other new developments that decrease the functions of the traditional state.  However, less attention is paid to the erosion of the traditional view of territorial sovereignty -- in other words, the ways in which states, media, scholars, and public opinion view and analyze territorial sovereignty.

To say that this issue is broad and lends itself to a wide array of sub-topics is an understatement; such topics include direct state-on-state military action, state-on-nonstate action, prolonged military activity vs. limited military strikes, the extent to which states can permit other states to engage in extensive military operations against their own non-state actors, and the extent to which active support from one state toward non-state actors of another states infringes upon the latter's sovereignty.  This is far from an exhaustive list, but it merely underscores the difficulty in analyzing the topic.  Illexum will, of course, place a higher degree of focus on examples from today's news.  We will include some historical analyses as well, however, because those are also instructive on how we will view territorial sovereignty going forward.

The first topic that we will explore is ISIS - specifically, how U.S. military action against ISIS (and other groups, such as al-Nusra) affects traditional notions of territorial sovereignty.  ISIS is a good example of the erosion of territorial sovereignty, given that it currently controls territory in both Syria and Iraq.  Thus, from the outset, the challenge of containing or rolling back ISIS necessarily involves a different approach to the issue of territorial sovereignty.  Moreover, the nation-states in which ISIS operates have very different relationships with the United States.  While the Iraqi government invites U.S. military assistance in fighting ISIS, the Syria's President Bashar al-Assad is not so eager to invite U.S. military involvement.

Brief Background: U.S. Military Action Against ISIS

Unsurprisingly, therefore, the first U.S. action against ISIS took place in Iraq.  First, on August 7, 2014, the U.S. dropped aid packages to displaced Iraqis who had been forced to evacuate to the mountainside in light of ISIS advances.  Specifically, the U.S. launched airstrikes on August 8, 2014, against ISIS artillery that was being used to attack Kurdish forces.  The humanitarian aid drops continued throughout August, as did the airstrikes against ISIS.

The two questions that plagued the United States political and military leadership, however, were 1) whether the U.S. would put troops on the ground and 2) whether military operations would expand to the civil war-ravaged Syria.  As to the first question, President Obama initially declared (in early August 2014) that the United States would not be sending troops back to Iraq to fight ISIS;
As Commander in Chief, I will not allow the United States to be dragged into fighting another war in Iraq, so as we support Iraqis as they take the fight to these terrorists, American combat troops will not be returning to fight in Iraq because there is no American military solution to the larger crisis in Iraq,
Of course, a few hundred American troops already had started returning to Iraq in June 2014, albeit as "advisers" to Iraqi and Kurdish military  forces.  As the airstrikes ramped up in August 2014, the U.S. sent 150 more advisers to Iraq, with Defense Secretary Chuck Hagel emphasizing that this was not a "combat boots on the ground" type situation.  In November 2014, President Obama authorized sending a total of 3,100 troops to Iraq - still, he claimed, in an advisory and training capacity.  The latest update is that President Obama will soon request authorization from Congress for military action against ISIS (despite claiming that the 2001 Authorization of the Use of Military Force (AUMF) already gives it the authority to engage in action against ISIS).

As to the second question, the United States did indeed expand its war against ISIS to Syria, launching airstrikes within Syria's borders in September.  Incidentally, the strikes were not limited to ISIS; in September, the U.S. launched strikes against the shadowy Khorosan Group and in November, it attacked the al Qaeda splinter group Jabbat al-Nusra.  Of course, some analysts say that the Khorosan Group is merely a subset of al-Nusra, and that the Obama administration played up the Khorosan Group in order to build up public support for its military action in Syria.  The strikes against ISIS have continued into the new year, with the U.S. launching strikes against ISIS in Iraq and Syria just this past weekend.

Smoke rises over Kobane, Syria, after a U.S. airstrike against ISIS on December 25, 2014 (Source: The Guardian)


Implications for the Erosion of Territorial Sovereignty

The traditional notions of territorial sovereignty have eroded in recent years, especially in those regions where borders or entire regions are out of government control.  Over the last twenty years, this has been especially pronounced in the context of U.S. counter-terrorism.  Airstrikes have been a go-to American response to terrorism, whether it be a response to the 1998 embassy bombings or the prolonged drone war in Pakistan.

There are two common scenarios for drone strikes against militants (though, of course, one can certainly imagine other situations) - those in which the host state expressly or implicitly condones the military action, and those in which the host state opposes such action.  How, one might ask, does such military action fit within the international legal framework for military action?  The United Nations charter prohibits military action that violates territorial sovereignty: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state."  The notable exceptions to the use of force against another state are Security Council-authorized actions and "individual or collective self-defence if an armed attack occurs against a Member of the United Nations."  Typically, the United States presents its military actions as self-defense in response to the armed attack of 9-11 (or, in the case of Iraq, anticipatory self-defense).  Moreover, in those cases where a state invites U.S. action as part of its own counter-terrorism efforts, one might legitimately describe such action as "collective self-defense."  What is unclear in this scenario is whether such a country must formally request assistance in self-defense, or whether secret, behind-the-scenes discussions suffice.  For example, current U.S. military action in Iraq is done with the knowledge and cooperation of the Iraqi government.  The U.S. drone war in Pakistan, meanwhile, was done behind closed doors; Pakistan would often openly condemn U.S. strikes while secretly providing intelligence and targeting information to the U.S. for those very strikes.

When a state openly opposes military operations by a third party within its borders, the legal basis for such action becomes unclear.  In Syria, for example, the United States has taken action against ISIS and al-Nusra.  It has not taken open military action against President al-Assad's forces, although it has provided weaponry, training, and other support for anti-Assad forces.  What presents the United States with a distinct legal challenge, however, is how to justify its invasion of sovereign territory by airstikes and special forces operations.  There is no collective self-defense, as can be argued in Iraq and potentially in Pakistan.  The claim of self-defense is a stretch, given that the U.S. has had to make the dubious claim that ISIS is part of al Qaeda in order to justify such action under the AUMF and the theory that 9-11 constituted an armed attack against which the United States is still engaged in self-defense.  Another theory that has found its way into legal scholarship is that states that cannot control their own borders, or engage in atrocities against their own people, "waive" any claim to territorial sovereignty.  This theory, known as "involuntary sovereignty waiver," has been put forth to justify military action in Iraq in 1991 and Serbia in 1999.

The United States has not directly put forth a coherent legal theory for its military action in Syria, and it may well not want to.  General norms of international law disfavor unilateral or mostly-unilateral military action, which is why the U.S. is always eager to garner multinational support to buttress the legitimacy of its actions.  Even where those actions are multilateral, however, the legal underpinnings for the military action remain the same.  The only difference is the political distinction between the world's sole superpower engaging in unilateral military action and that same superpower working with other states to thwart the spread of ISIS.  Like most other international norms, the sanctity of territorial sovereignty is often the product of the prevailing political viewpoints -- or whatever the current military and political realities dictate.  The United States does not want to be perceived as engaging in numerous military actions that violate territorial sovereignty.  At the same time, its words and actions have made it clear that the United States views territorial sovereignty as subservient to its own defense needs, whether those needs be real or perceived.  The very notion of a "global war on terror," by its very name, suggests that territorial sovereignty is not as resolute or finite as it was once perceived to be.

As the United States gets dragged into yet another military conflict on foreign soil, however, one must ask -- if Syria doesn't want us there, and the country is in the midst of a devastating civil war, what will further military engagement in the area accomplish?  Will the United States continue its mission creep and deploy forces (either alone or in concert with Iraqi, Kurdish, or other military forces) ever closer to the Syrian border?  Will we engage in ground operations in Syria, and if so, will we have the logistical base to do so?  This is what happens when you engage in military action in a hostile country, and why the violation of territorial sovereignty matters -- what sort of environment does the United States expect to find, in such a deeply divided country?  It would face enemies on multiple fronts, and its scarce allies hold very little territory right now.  If the United States deepens its military involvement, it risks getting to the point where the only way to protect its own forces would be a large-scale deployment - something the country hardly has the stomach for.

Wednesday, January 29, 2014

Homebrew: the Islamic State of Iraq and the Levant

Growing out of the chaos of Middle Eastern insurgencies, the al Qaeda-linked Islamic State of Iraq and the Levant (ISIL), also referred to as the Islamic State of Iraq and Syria (ISIS), has built its presence and spread fear throughout the region. Often viewed as one of the more violent terrorist groups in the Middle East, ISIL has taken over towns in Iraq - the first time insurgents have controlled these towns since 2003 - and is contributing to infighting among opposition fighters in Syria.

ISIL fighters have been careful, focusing on political aims to establish themselves, only to later identify with more fundamental positions. When necessary, socioeconomic and political arguments are employed to attempt to garner support among the locals. Once established, their strength limits the options to opponents, both civilian and military, as is the case in Syria. In a sense, entrenched positions are difficult to change.

ISIL's origins remain somewhat shrouded, and its role in the region has become unclear. Some reports suggest that ISIL is linked to Bashar al-Assad, Syria's President, as an attempt to fracture and debase the opposition. Others suggest that ISIL is little more than a concept Syria developed to change the face of its civil war. The BBC, though, has ISIL's formation pinned down to April 2013 as an independent terrorist organization. Analysts tend to tie it to insurgents previously known as al Qaeda in Iraq (AQI), which may be best described as an evolutionary step in that organization's history. There is much information floating around, but most of it only lightly touches on why there was an outgrowth across borders. Why did the influx of fighters into the regional coalesce into much more coherent organizations than previously? Why are they more successful now? (apart from the withdrawal from Iraq, for that can't be the reason for everything)

Countries in the region continue to grow wary. Jordan has gone so far as to note that ISIL does not operate within its borders and that the terrorist group is "no threat." This is a surprising statement given ISIL's operations in two of Jordan's neighbors. Meanwhile, ISIL has threatened to attack Turkish cities over a disputed closed border crossing. It seems that ISIL's reach may yet expand.

Looking ahead, the horizon for ISIL is unclear. Expansion opens up new fronts, builds enemies, and attracts attention. Showing its face in Syria has increased its exposure and has proven of little benefit. At the same time, there is concern for a large lawless region in northwest Syria controlled by ISIL turning into another Afghanistan. Regional powers are keen to get it all under control though, and it is unlikely for a large power vacuum to redevelop, given recent history. This homegrown movement may not get much bigger, but might redouble its efforts where it already controls the land.