MESOP ANALYSIS : The Legal Foundations of the Islamic State,” By Mara Revkin

December 17, 2014 for Syria Comment – Notoriously violent groups such as al-Qaeda, the Islamic State (IS), and the Taliban are widely assumed to be lawless organizations. Judge Abraham Sofaer, former Legal Adviser to the U.S. State Department, summed up this attitude when he stated in 1989, “Terrorists have no respect for law and no commitment to accept the rules of any legal system.” In this article, I explain why Sofaer’s claim is false. Evidence from recent and current insurgencies in the Middle East indicates that jihadist groups are in fact pre-occupied with the creation of law, justice, and order as a platform for state-building. Observers of Islamist insurgencies in Syria, Afghanistan, Libya, Yemen, and Mali, have noted that one of the first things that jihadist groups do when they take over new territory is to establish courts and other legal institutions that facilitate governance. In order to understand and effectively confront the dangers posed by violent Islamist groups, it is imperative that policymakers take seriously their internal legal infrastructure and state-building aspirations. Although IS and other insurgent groups are promoting a version of rule of law that is deeply incompatible with liberal democratic principles of justice and equality, studying jihadists’ legal systems is essential to understanding how they use law to create a foundation for political power and legitimacy. Examples of lawmaking by Islamist insurgent groups are abundant:

• The Taliban establishes courts and appoints judges in newly conquered territories. It has built a school system to train judges.
• IS’s  “caliph,” Abu Bakr al-Baghdadi, appealed to judges and fuqaha’ (experts in Islamic jurisprudence) to join the Islamic state as one of his first acts of statesmanship. This targeted recruitment of legal experts is evidence of the centrality of law in al-Baghdadi’s state-building project.
• IS deploys legal jurists known as shari’is alongside combatants in Syria to underscore the primacy of law. One of the functions of these embedded jurists is to advise military commanders on the legality of operations according to Islamic law, not unlike the role that American JAG lawyers play in monitoring and advising U.S. military commanders.
• IS has created accountability mechanisms that enable civilians to seek legal redress for their grievances. For example, in early December, IS issued a document in Aleppo stating that civilians are entitled to legal redress through IS courts for alleged violations of their rights by IS combatants or commanders. In this video, an elderly civilian man describes how he successfully brought charges against an IS emir, who was subsequently convicted in an IS court and sent to prison.
• IS’s concern with lawmaking is manifest in its publication of an 136-page document on December 6, 2014 that details ten Islamic rulings governing the (mis)treatment of prisoners of war. The rulings specify the conditions under which Muslim and non-Muslim prisoners may be killed, decapitated, tortured, enslaved, or mutilated. The rulings, which are scrupulously supported with Quranic verses, represents IS’s doctrine on the law of war and rules of engagement. While the document provides support for brutal practices that violate core principles of customary international humanitarian law – such as the absolute prohibition on torture – it nonetheless constitutes a detailed legal framework that regulates the conduct of IS fighters and imposes clear limits on permissible violence. mkluilso in December, IS distributed an illustrated pamphlet in Mosul clarifying the rules governing the treatment of non-Muslim female slaves. Although the pamphlet describes captured female slaves as “merely property” who can be bought, sold, beaten, and under certain conditions raped, the pamphlet does guarantee some very limited rights for captives. For example, a female slave can buy her freedom, a pregnant slave cannot be sold, and mothers cannot be separated from their children. The fact that IS would seek to impose any codified rules on the treatment of slaves – rather than allow their owners to exercise unlimited discretion – is another example of the many ways in which IS uses law to control populations in the territory it occupies.

The Paradox of Power and Constraint

Insurgent groups such as IS have the ability to wield violence and terror arbitrarily. Yet the examples above indicate that these groups frequently choose to create legal institutions and rules of warfare that restrict when and how they can they can use force against enemies. The fact that so many jihadist groups voluntarily tie their own hands by adopting legally binding rules of engagement suggests that insurgents derive strategic benefits – in terms of local support and legitimacy – when they establish systems of law and order. Legal scholars have long noted a paradoxical relationship between power and constraint, whereby leaders who voluntarily limit their own authority with self-imposed checks tend to enjoy greater popular support and therefore greater power. Insurgent groups that constrain themselves by establishing courts and other disciplinary institutions appear to be benefiting from this paradox.
An Islamist rebel group in Aleppo called “the Authority for the Promotion of Virtue and Supporting the Oppressed” reviews applications for aid on Feb. 25, 2013. In addition to handing out aid, the Islamist group says it is carrying out civilian administration in parts of Aleppo. Hamid Khatib/Reuters/Landov

Attorney Jamil Osman says he joined the court system because “it’s the religious ruling that Syrians want. The memories of the corrupt court system of the regime of President Bashar Assad are too fresh.” IS refused to join the Aleppo Sharia Council, but Shaykh Maqsuwd (الشيخ مقصود), who sits at the left with black headdress and serves as the head of the court, is an al-Nusra Judge. 

In Afghanistan, Yemen, and Syria, Islamist insurgencies have established justice systems that are widely perceived by civilians as more neutral, efficient, and committed to rule of law than state courts, which are frequently plagued by corruption, or in cases of extreme conflict such as Syria, have ceased to function at all. For example, in this video, a civilian resident of Idlib describes how the establishment of an IS court in the city has improved security and stability, and notes that residents prefer IS courts over the “corrupt courts” of the Assad regime. In another video, a Syrian civilian claims that IS courts have reduced crime by 90 percent. Although IS and other insurgent courts often inflict severe punishments and even torture, civilians may still view these courts as a fairer and more legitimate alternative to regime courts as long as their rulings – however punitive and harsh they may be – are administered according to consistent and transparent procedures.

There is strong historical support for the claim that law is an effective tool for legitimizing and maintaining political power in modern states, and if we think of insurgencies as “quasi-states,” “proto-states,” or even full-blown states – as IS purports to be – then we should expect to find that law plays as important a role in the formation of insurgent states as it did in the formation of modern bureaucracies.

The role of law in insurgent state-building is poorly understood, and this blog post will suggest some of the ways in which the creation of courts and justice systems may help insurgent groups to build legitimacy and consolidate power. In doing so, I draw on the history of legal institutionalization in modern Europe to argue that insurgent groups are using law to build political institutions in ways that are strikingly similar to processes of state formation that gave rise to Western industrialized bureaucracies.

The Legal Foundations of Insurgent States

Legal institutionalization has long been recognized as a critical phase in the consolidation of modern states, particularly in Europe, where Max Weber traced the origins of industrialized bureaucracies to a process of “legal-rational bureaucratization” in which traditional models of governance based on personal loyalty were gradually replaced by impersonal, “faceless” administrative institutions and objective legal rules. For those familiar with the history of bureaucratization in Europe, it should not be surprising that law is playing a similarly important role in the consolidation and expansion of the Islamic State. I outline below several of the ways in which IS, like any other state, is using law to strengthen its control over people and territory:

Legitimizing Violence

An essential criteria of statehood is the ability to claim a monopoly on legitimate violence that is justified by law. Islamist insurgent groups including IS appear to be more successful in gaining local support when they legitimize their use of violence through the establishment of a legal framework based on clear rules and procedures, as opposed to wielding violence arbitrarily. This claim is consistent with research suggesting that when insurgent groups resort to indiscriminate violence that is not disciplined by rules, civilians turn against them. As Jason Lyall has argued, “Indiscriminate violence can undermine an insurgent organization’s military effectiveness by driving a wedge between locals and insurgents.”

The alienating effects of arbitrary violence by Islamist groups were seen in the cases of Algeria (1990s) and Iraq (post-2001), where indiscriminate targeting of civilians by insurgent groups provoked a violent backlash. Al-Qaeda leaders later pointed to these unsuccessful insurgencies as cautionary lessons about the counterproductive consequences of unrestrained violence. For example, after the killing of former al-Qaeda leader Abu Musab al-Zarqawi, U.S. intelligence recovered a letter in his possession from an Algerian al-Qaeda official who urged him to avoid repeating the mistakes of his country’s Armed Islamic Group: “[In] Algeria between 1994 and 1995 when [the GIA] was … on the verge of taking over the government … they destroyed themselves with their own hands with their lack of reason, delusions, ignoring the people, their alienation of them through oppression, deviance and severity, coupled with a lack of kindness, sympathy and friendliness.” Similarly, a member of al-Qaeda’s affiliate in Yemen, Ansar al-Sharia, stated in an interview in 2012 that the group had “learned their lesson from Iraq,” and were focused on a “hearts and minds” campaign.

The cases of Iraq and Algeria suggest that one of the motivations underlying IS’s creation of an elaborate court system is to maintain discipline and cohesion within its own ranks and prevent the type of arbitrary violence that has undermined popular support for other Islamist insurgencies. Insurgencies are more successful when they develop internal regulatory mechanisms to ensure that violence – however extreme and brutal it may be – is only used according to well-defined rules and procedures, and IS is a clear example of this phenomenon. The practice of embedding jurists (shari’is) alongside combatants exemplifies the type of legal disciplinary mechanism that states create to justify and legitimize their monopoly on violence.

Discipline and Socialization

In addition to legitimizing violence, states have historically used law as a tool to discipline and socialize their citizens. Antonio Gramsci identified courts, along with schools, as the two most important instruments of state formation, citing the role of the “school as a positive educational function, and the courts as a repressive and negative educative function.” IS appears to be using judicial and law enforcement institutions in a similar manner to maintain discipline within its own ranks and to socially engineer the society that it aspires to govern. In a clear example of the disciplinary function of jihadist lawmaking, this video shows IS morality police (referred to as al-hisba) confiscating hundreds of containers of cigarettes, alcohol, and drugs, and lighting them on fire. IS also uses law as a disciplinary tool to regulate the behavior of its own fighters and leaders. For example, in October, IS executed two of its own fighters after they were tried and convicted on charges of banditry, spying, and embezzlement. In the same month, IS executed two of its own judges – both Kuwaiti nationals – after they were charged with spying. These examples illustrate how IS uses law to maintain internal discipline and obedience.

Contracts

Another way in which law facilitates state-building is by enabling the enforcement of contracts that are essential to regulating social and economic relations, including not only concrete agreements concerning the exchange of property or money, but also the abstract “social contracts” that provide a basis for reciprocal rights and obligations between rulers and citizens. Anthony Giddens’ account of state formation emphasizes the importance of a “centralized legal order permitting and protecting an expanding range of contractual rights and obligations.” The Islamic State appears to be using written contracts to organize economic and political activities in a similar manner. For example, IS drafts and signs written contracts governing the sale of smuggled oil – a lucrative black market industry that generates millions of dollars a day. The fact that IS goes through the trouble of formalizing oil sales with written contracts suggests that the group is actively trying to legitimize its activities to its followers and to the world.

Legal Pluralism and Fragmentation in Syria

While it is clear that IS and other Islamist insurgent groups in Syria are using law to consolidate political power and legitimacy, it is important to note that different factions are promoting competing and sometimes irreconcilable interpretations of Islamic law. IS’s understanding of shari’a is the most conservative and orthodox – based strictly on the text of the Quran – but some of the more moderate Islamist groups are open to more flexible interpretations of Islamic law. The rivalry and fragmentation between different insurgent justice systems has given rise to a situation that law scholars recognize as “legal pluralism” or the coexistence of multiple systems of order within the same territorial jurisdiction.

The sharpest dispute between IS and other Islamist factions is over the permissibility of codifying (taqnīn) the shari’a in a written code. The Islamic State, like most other Salafi jihadist groups, fundamentally rejects the validity of codified or “man-made” law as an illegitimate violation of the principle of absolute divine sovereignty (tawhīd). According to this view, the shari’a is a complete and comprehensive body of law that can be interpreted and applied by judges; codification would unnecessarily distort its original meaning by introducing fallible human judgment.

Arguing against the strict textualist approach favored by IS, other Islamist factions and even a Salafi group with alleged ties to al-Qaeda are supporting the adoption of the Unified Arab Code (UAC), a codified body of law developed by the Arab League in the 1980s that is based primarily on the shari’a. In August, the Islamic Sham Organization (a revolutionary Islamic scholarly association) published a document recommending the adoption of the UAC. Islamic Sham makes several pragmatic arguments for codification, summarized by Maxwell Martin, including the claim that a written code will make it easier for judges to apply the law and will provide a stable legal order until a unified national judiciary is established. The document points to the drawbacks of allowing a diverse and decentralized assortment of insurgent courts to interpret and apply the law as they see fit – a chaotic scenario that could be remedied by the adoption of a written code to which judges could look for guidance.

The debate over whether to codify the shari’a or instead allow judges to interpret it freely has important implications for legal stability and eventual post-conflict reconstruction in Syria. Interestingly, the arguments for and against codification are reminiscent of debates in European history concerning the design of legal systems under conditions of civil war, where the choice was between common law systems (where judges have broad discretion to shape the law according to independent interpretation) and civil law systems in which judges are constrained by a written code.

Edward Glaeser and Andrei Shleifer have argued that common law systems are easier to implement in peaceful contexts (citing the example of 12th-13th century England), whereas civil law systems are more appropriate for conflict-ridden states in which judges are likely to be subject to “bullying” and coercion (such as France). Under conditions of conflict, civil law systems supposedly insulate judges “from coercion by litigants through either violence or bribes.” This claim is relevant to the Syrian case, where a major obstacle to the establishment of a coherent and unified legal system will be the problem of distrust and infighting among rival factions.

The debate over the codification of Islamic law in Syria provides further evidence for my claim that insurgent groups use law to control people and territory in ways that are surprisingly similar to Western patterns of state formation. If Islamist insurgencies are understood as state-building projects, then it is logical to expect that law should play as important a role in the formation of IS’s caliphate as it did in the creation of Western bureaucracies. It is impossible to understand the rapid rise of the Islamic State without understanding the laws on which it is based.

Mara Revkin is a J.D./Ph.D. student in Political Science at Yale Law School/Yale University. She is on Twitter @MaraRevkin. Email mara.revkin@yale.edu

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