France, Terrorism (2): NATO Article 5

Separately on Twitter I have been sparring with Phillip Blond of ResPublica on an interesting issue or two: is ISIS effectively a state for international law purposes, and if so does that make it easier for France to mobilise effective military action under NATO’s famous Article Five?

You’ll have to check out my Twitter timeline for the whole exchange. It started here:

In some ways an Article 5 declaration by France has genuine credibility as it is an attack by one state (IS) on a NATO member France

And so on, at some amusing and informative length with other Twitterati chipping in. I win.

So, let’s look at some questions arising here in more detail than even Twitter allows.

Is ISIS a state or controlling one?

Phillip makes a reasonable claim. ISIS has (more or less) unchallenged control over various tracts of land in what is usually known as Syria and Iraq. It raises taxes, sells oil, does run state-like services and certainly has a considerable capacity to inflict violence on people living in those areas. So does it qualify under the 1933 Montevideo Convention on Statehood to be regarded as a state (and so a subject of international law) even though no country recognises it as such?

Complex issues of law and principle here. Try this handy gallop through them.

I as both lawyer and practitioner take the ‘constitutive’ approach, namely that an essential aspect of statehood is indeed recognition by other states:

Quite simply, it is necessary that a State have certain characteristics. It must have a territory, population, government and the ability to interact with other States. In addition, because the State is an entity that belongs to a wider community, it must be accepted, recognized at least to some extent, by that community.

ISIS and its territory do not meet that test. All sensible precedents work against it becoming one any time soon (although let’s never say never). So it is not a state at the moment – more a weird bandit-territory temporarily ruled by cruel gangsters and lunatics, utterly unworthy of recognition by any other state and indeed not getting it. Simples.

If ISIS is (or is not) a state, does that make NATO Article 5 action against it led by France more likely to succeed?

No.

Most people think that NATO Article 5 (of the Washington Treaty setting up the Alliance) simply means that ‘an attack on one is an attack on all’. You hit X. X’s closest friends therefore are obliged to defend X by hitting you! What could be simpler than that?

Not so simple. Read Article 5 here with my emphasis added:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

Yes, an armed attack on one NATO member is ‘considered’ (sic) an attack against them all. But then each NATO member will then decide for itself how best to assist by taking such action as it deems necessary. That may include armed force. Or it may not.

Note that there is no requirement that an armed attack against a NATO member must come from a state. Indeed, that’s why Article 5 was invoked after 9/11 to allow the USA and its allies to exercise their right to self-defence and go after Al Qaeda.

It therefore does not matter whether ISIS purports to be a state or not. France has declared that an act of war has been committed by ISIS against itself, and France is entitled to ask NATO allies to use Article 5 in the name of collective self-defence to go after ISIS targets. As of the evening of 14 November 2015, France has not done so.

Phillip argues on Twitter (busily yanking the goalposts to and fro) variously that “IS statehood makes them more easily the subject of armed force … the point of IS being a state is that armed collective military action has a range of state like targets … IS’s claim to be a state makes it vulnerable to attack”. 

The confusion here comes from running together points of fact and points of law (and points of policy). But in a nutshell, it does not matter what ISIS calls itself or whether it has state-like targets: if the Syrian/Iraqi authorities are unable to stop ISIS madness emanating from within their legally recognised territory, France (with or without its allies) is entitled to use military action to hit back according to the normal rules of war (proportionality, avoiding civilian casualties wherever possible, etc). ISIS’ vulnerability (or not) is a matter of fact, not of law: nothing in its international status makes it more or less ‘vulnerable’.

It may be (as a matter of cynical political calculation in some capitals) that IF France asks NATO partners for Article 5 support, the fact that ISIS boldly asserts its right to be treated as some sort of state makes some allies more inclined to join the action.

Or (much more likely) allies don’t care tuppence about what ISIS calls itself, but start to mull over how best to blow ISIS to smithereens, pseudo-state structures and all, while weighty Russian forces are busy trying to do a bit of the same. Will even more NATO-led military mayhem in and around Syria prompt even more refugees to try to force their way into Europe?

These are policy/judgement issues with slabs of law lurking in the background. As are targeting/proportionality and so on. Nothing whatever to do with statehood and what it represents.

NB too that part of the whole point of ISIS is that it rejects the argument that it is a modern state in the ‘Western’ Westphalian idiom. It wants to be a caliphate in an ancient Islamic tradition – something radically different. Read this superb account of what drives ISIS ideology:

Baghdadi spoke at length of the importance of the caliphate in his Mosul sermon. He said that to revive the institution of the caliphate—which had not functioned except in name for about 1,000 years—was a communal obligation. He and his loyalists had “hastened to declare the caliphate and place an imam” at its head, he said. “This is a duty upon the Muslims—a duty that has been lost for centuries … The Muslims sin by losing it, and they must always seek to establish it.” … The caliphate, Cerantonio told me, is not just a political entity but also a vehicle for salvation.

Conclusion?

Yes, ISIS offers all sorts of different but plump military targets because (unlike AQ) it has explicit territorial pretensions and associated structures. But no, that does not mean in itself that it is ‘easier to defeat’ or somehow more ‘vulnerable’. ISIS’ way of organising its business might make some reasonable people more cautious, others more prone to go for it.

There is only one policy issue for France and the rest of us. What if giving ISIS the pitiless blasting it richly deserves simply create more problems than it solves?

Currently ISIS is indeed mainly one big fat nasty thing you can see, and not (yet) in Europe in any mass organised sense. What if it is smashed easily enough by a drastic full-on military campaign, but like fractured mercury turns into countless tiny dangerous blobs shooting in all directions? And huge new numbers of refugees, maybe containing ISIS fanatics, start banging on the door or climbing over the fence, or simply knocking down the door and pouring in?

Then what?