Seizing Human Rights through Terrorism: Defining and Exploring Challenges of ISIS Prosecution

I. Introduction

Human Rights

The late US President John F. Kennedy once rightly said “the rights of every man are diminished when the rights of one man are threatened.” According to the United Nations human rights can be defined as the “rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights, without discrimination”, ergo, human rights are those rights that are conferred upon every human being by the virtue of being a human. The concept of human rights is novel to humanity. The origins of human rights can be traced back to ancient Greece and Rome where natural law was ubiquitous. Natural rights were subsequently derived from natural law. From the works of acclaimed philosophers like Aristotle and St. Thomas Aquinas it was evident that natural law contained more of duties than rights and as a result it legitimised inter alia enslavement, bondage and other severe human rights violations as perceived in today’s scenario. Natural rights began to take shape in the early 13^th century where subjects of the monarchs failed to uphold the principles laid down in the natural law and the prejudiced religious “duties”. In 1215, the Great Charter of Freedom, popularly known as the Magna Carta was drafted by King John of England laid the cornerstone to the modern human rights. It was prima facie drafted to protect the barons from being prosecuted and against archaic taxes and ensures rights for speedy justice. The Charter of Forest also known as the Carta Foresta drafted by King Henry III that provides access to the free-men to the royal forest followed suit in the year 1217. Major changes took place in the renaissance era with the signing of the Petition of Right in 1628 and of the English Bill of Rights in the year 1689 in England. French and American revolutions both resulted in the drafting of Declaration of the Rights of Man and of the Citizen and the United States Bill of Rights laid down individual rights based on natural rights. All these events subsequently moulded the modern human rights.

The world witnessed the horrific events that took place during World War II when the Nazi Germany conducted mass genocide of Jews, homosexuals, senile and disabled people in a preposterous quest to make Germany a strong Aryan led country under the Reich. As part of the Holocaust it is estimated that the Nazis killed around ten million people and among them six million were Jews. The Allied forces defeated the Axis in the year 1945 marking the end of World War II. It was during and after the war that the Allied forced started discovering gas chambers and prison camps were people the Reich considered to be “racially inferior” were kept. The dreadful conditions where these prisoners were kept shook the humanity to its core. Evidence of these started pouring out towards the world. As a result of which a call for an international organization emerged and the United Nations (UN) was born. For the purpose of promoting human rights globally the United Nations Commission for Human Rights (UNCHR) was established in a year after the establishment of UN 1946 as a subsidiary of the United Nations Economic and Social Council (ECOSOC). In 1948, the Universal Declaration of Human Rights (UDHR) was drafted which discloses the various human rights and freedoms available to an individual by the UNCHR. UNCHR was later replaced by the United Nations Human Rights Council in the year 2006.

Terrorism

The word ‘terrorism’ in today’s context is not news to everyone. Every day incidents of terrorist activities around the globe has made general population aware of the rising tensions that revolves around their nation. Terrorism in a nutshell means inflicting terror on people for the purpose of achieving a personal or collective motto of an organization. The aftermath of terrorism results in the death of innocent lives, toppling governments and waging war against the world nations. From a general outlook the incident that may pop up in most of the people when reminded of terrorism would be the devastating attack on the World Trade Centre in the United States, famously known as the 9/11 attack. The attack was planned and carried out by the Al-Qaeda. The attack was the brainchild of their infamous founder and leader Osama bin Laden. Spilling bloods of Americans on American soil emanated the Bush administration to commence ‘War on Terror’ against the terror forces responsible for the attack. War on Terror doesn’t end as more and more terrorists and terrorist organizations are on the rise.

India has witnessed its share of terrorist attacks during the siege of the Golden Temple in 1984. Sikh extremists who founded the Khalistan movement forcefully occupied the premises of the Golden Temple and accumulated weapons to wade off the armed forces of India. This resulted in executing two major internal military operations of the country- Operation Blue Star and Operation Black Thunder which successfully removed the militants from their occupations killing the leader of the movement in the process. Another major attack on India was the Mumbai terrorist attack in the year 2008, popularly known as 26/11 where Pakistani terrorists wreaked havoc managing to create heavy civilian and military casualty. Operation Black Tornado was initiated by the National Security Guards (NSG) that resulted in the death of nine terrorists and the capture of one who was later made to stand trial and found guilty and sentenced to death. Similarly, around the world a hike in terrorist activities has been reported and world nations have been working hand in hand sharing informations that would lead to prevention of possible terrorist plots and capturing terrorists before they carry out their vicious plans.

Terrorist organizations like the Al-Qaeda, Jaish-e-Mohammed, Lashkar-e-Taiba, Islamic State (IS) has a common objective- to capture or conquer and establish a Muslim Sharia state. To attempt to define the word “terrorism” is an arduous and disconcerting process since either any Government or International Organizations have given a conclusive definition for the same. Let’s discuss the various such attempts made to define the word “terrorism”.

North Atlantic Treaty Organization (NATO): The North Atlantic Treaty Organization (NATO) has defined the term “terrorism” as “The unlawful use or threatened use of force or violence, instilling fear and terror, against individuals or property in an attempt to coerce or intimidate governments or societies, or to gain control over a population, to achieve political, religious, or ideological objectives.”²

Prevention of Terrorism (Temporary Provisions) Act, 1974: According to this British proviso “terrorism means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear.”³ This definition is too wide in view of the fact that it also inserts local protests and riots.

Federal Bureau of Investigation (FBI): According to the US’s federal investigation agency the definition of terrorism is two-fold: i) Domestic and ii) International.

i) Domestic Terrorism: Perpetrated by individuals and/or groups inspired by or associated with primarily U.S.-based movements that espouse extremist ideologies of a political, religious, social, racial, or environmental nature. For example, Las Vegas shooting on June 8, 2014, during which two police officers inside a restaurant were killed in an ambush-style attack, which was committed by a married couple who held anti-government views and who intended to use the shooting to start a revolution.

ii) International Terrorism: Perpetrated by individuals and/or groups inspired by or associated with designated foreign terrorist organizations or nations (state-sponsored). For example, a shooting in San Bernardino, California on December 2, 2015, that killed 14 people and wounded 22 which involved a married couple who radicalized for some time prior to the attack and were inspired by multiple extremist ideologies and foreign terrorist organizations.⁴

All these lists are either inconclusive or incomplete. Even international organization United Nations (UN) failed to arrive at a conclusive definition for terrorism. Different countries draw up their own definitions to include matters that satisfies the interest of their respective nation.

It can be said that modern terrorist organizations are mostly religion based. An example of early religious based terrorism was the infamous Gunpowder Plot where conspirators led by Robert Catesby decided to kill the protestant King John I by blowing up the Parliament of England by detonating large quantities of gunpowder below the Parliament building. The person in charge of accumulating and detonating the gunpowder was Guy Fawkes. The plot was discovered by the English authorities and successfully foiled the whole plot. Robert Catesby died in a shootout with the police and Guy Fawkes was captured among others and were executed later on. November 5th is celebrated by the English to commemorate the incident by fireworks display and burning effigies of Guy Fawkes.

II. Islamic State (IS)

One of the major modern religion based terrorist organization is the Islamic State (IS). Formerly known as the Islamic State of Iraq (ISI) and Islamic State of Iraq and Syria (ISIS), it is fundamental to comprehend the history of events that led to the ultimate formation of this terrorist group.

Soviet Invasion in Afghanistan

In 1979 the Soviet Union invaded the Afghanistan in support of the puppet leader against rebel groups. Afghanistan was experiencing a series of coups and civil unrest during the period. As a result of the Soviet invasion many young men from the middle-east joined the rebel groups in Afghanistan to wade off the Soviet invasion. Most of these men considered the fight against the Soviet as a religious struggle known as Jihad and the men who participate in the Jihad are known as the Mujahideen and subsequently many of them started developing extremist views. These Mujahideen were funded by the West mainly the United States of America and the United Kingdom. Among these men who flocked from the middle-east was a young and educated Saudi national, Osama bin Laden who later on went on to form the infamous terrorist group known as Al-Qaeda. Also, in Afghanistan a Jordanian and former street thug Abu Musab al-Zarqawi is said to have joined the fight against the Soviets at the end of the invasion who was later credited to be the founder of the modern IS. Both bin Laden and Zarqawi left Iraq when the Soviets withdrew. Bin Laden left to Saudi Arabia and formed the Al-Qaeda and continuously tried to expand its operations throughout the world and simultaneously carried out the Jihad against Islam’s enemies. Zarqawi was sent to the prison when officials found weapons and ammunition from his home in Jordan. It was during his time in prison that he started to develop radicalized thoughts and was a strong antagonist to the structure of the current regime. According to various reports, bin Laden and Zarqawi did not get along too well.

Attack on the United States

In the late 1990s, both bin Laden and Zarqawi returned to Afghanistan where the Taliban was headquartered. On 9 September 2001, America was attacked by the Al-Qaeda which resulted in the deaths of around 3000 and injuring more than 25,000 Americans. Within less than a month the US along with the UK launched Operation Enduring Freedom and invaded Afghanistan. Upon the American invasion of the Afghanistan, bin Laden fled to Pakistan and Zarqawi curled into the remote parts of Iraq. In 2003, the US invaded Iraq and toppled the dictatorship of Saddam Hussein and disbanded the Iraqi army. US invaded Iraq because of its alleged connection with terrorism and Weapons of Mass Destruction (WMD). Outraged and unemployed many of the members of the Iraqi army joined the Sunni Islamic insurgency. These insurgency groups saw this as the repeat of the Soviet invasion of the Afghanistan. As a result of which many people again flocked into join the jihadist group in Iraq to fight the Western armies.

Zarqawi became popular during the American invasion of the Iraq and formed a group of jihadists and was considered to be the most ruthless of all. He directed his attacks on the Shia which created feud between the Sunni and Shia communities in the region. In 2004, Al-Qaeda was weakened by the Western forces decided to join forces with Zarqawi’s group which later on known as Al-Qaeda in Iraq (AQI). In 2006, Sunnis began to rise up against Zarqawi, and he was eventually killed during an American airstrike. By 2011, America left Iraq hoping it has stabled the region from insurgencies by establishing a democratic government.

The Arab Spring

In 2010, many protests took place around the middle-eastern regions which was later known as the Arab Spring against the Arab regimes due to inadequate living conditions of the people and oppressive nature of the regime. The Arab Spring has been spread to the neighbouring country of Iraq, the Syria. Syria was ruled by the dictator Bashar al-Assad, and he conducted violent suppression against these protestors by either imprisoning the protestors or by executing them. Violent clashes between the protestors and the security forces ensued. The security forces were ordered to open fire on protestors in many part of the country leading to a civil unrest in the country. These clashes led to the forming of rebel groups in the country. Assad was afraid that the international community would intervene into this issue and in order to paint himself innocent he released jihadists from Syrian jails and made these rebel groups look like extremist groups. This made international communities from backing the rebel groups.

Expansion to Syria

Zarqawi’s group was still linked with Al-Qaeda and was conducting insurgencies in Iraq. They were now known as the Islamic State in Iraq (ISI). By this time ISI was being led by Abu Bakr al-Baghdadi who is a highly educated religious scholar. In 2012, Baghdadi sends his top lieutenant to Syria to establish a branch of Al-Qaeda in Syria in support of the rebels known as Jabhat Al-Nusra also known as Al-Qaeda in Syria. This was in defiance of the orders of the then Al-Qaeda leader Ayman al-Zawahiri to stay out of Syria. The branching out to Syria resulted in the breaking of the alliance between Al-Qaeda and ISI. In order to gain manpower to meet the requirements of its expansion to Syria, Baghdadi ordered the attacks in several prisons in Iraq to free former jihadists and actively recruited new members into their terrorist organization. In 2013, Baghdadi announced that he is taking control of all the Al-Qaeda allied forces in Syria and Iraq. By this, ISI has become Islamic State of Iraq and Syria (ISIS) announcing the establishment of their operations in Syria. Al-Qaeda was exasperated by Baghdadi’s decision of his power grab. In 2014, Al-Qaeda formally exiles Baghdadi and ISIS and Al-Qaeda and ISIS waged war against each other.

ISIS grew powerful in Syria and one of the major reason is that its operations were allowed by Assad in Syria. The reason why Assad tolerated its rise had dual effects- divides his enemies within the country and the world attention would be on ISIS now as opposed to him. The same year ISIS has built an army of terrorists and invaded Iraq. Plagued by corruption, low morality, and loyalty to the country to fight the ISIS, the Iraqi army surrendered to ISIS. Many Sunnis were tired of the Shia rulings in Iraq and partly welcomed ISIS into Iraq. ISIS has now control of at least two thirds of Iraq and a considerable part of Syria by mid-2014 including Iraq’s second-largest city, Mosul. ISIS declared themselves to be a caliphate and Baghdadi was made the caliph. They have stolen hundreds of millions of cash by robbing banks and this eventually made ISIS the richest terrorist organization in history. The size of the region controlled by ISIS is often compared to the size of London. This time not only Muslims from the middle-east flocked to join the ISIS but also from around the world. Inspired by the propaganda of the ISIS many self-proclaimed members of the ISIS began conducting attacks especially in the western countries of Europe and in the United States. Most of the people joined ISIS because of religious reasons whereas many others were merely angry and disillusioned with the fact that ISIS helps them to seek answers to their questions and provide them a purpose in life. Another major reason why there was a lot of foreign fighters joining the ISIS is that unlike Al-Qaeda it has established a territory of its own and has formed a caliphate which is based on extreme interpretation of Islamic law. ISIS actively publishes their propaganda videos and materials online to spread their extremist values attracting not only men but also women and children and sometimes as a family to join them.

Kurdish Attack

In August 2014, ISIS tried to expand its territories in Iraq and Syria by invading the Kurdish held regions. This resulted in a counter-attacks by the well-organized Kurdish forces. The backlash in these regions by the Kurdish forces to the ISIS resulted in them slaughtering Iraqi Yezidi and in the process abducts and beheaded American journalist James Foley who was freelancing for a news agency in Syria. Foley’s beheading was recorded and circulated by ISIS resulted in a series of airstrikes by America in strategic locations of the ISIS. America’s continued airstrikes and the counter-attacks of the Kurdish forces made ISIS to lose more than a fifth of their territory. The continuing onslaught provoked ISIS to conduct terror attacks internationally starting with bombing Kuwait. This was followed by bombing Tunisia, Paris, Beirut, Sinai, Saudi Arabia etc.

Losing Territory

With the backing of the United States, Russia, and the United Kingdom, local forces have been able to fight back ISIS expansion. In Iraq, the Iraqi armed forces along with allied militias conducted a continued operation to recapture Mosul from ISIS. Mosul has become a caliphate stronghold and a strategic location for the ISIS. In 2017, Mosul was recaptured by the Iraqi forces from ISIS in the Battle of Mosul. In Syria, Syrian Democratic Forces (SDF) was formed to wade off ISIS insurgents. SDF is mainly a Kurdish militia backed by US, UK, France, and other countries that have experienced terror by the ISIS. The Battle of Baghouz in 2019 conducted by the SDF and allied forces resulted in the capture of their final stronghold. Even though ISIS has been deprived of territory and both Syrian and Iraqi governments declaring that ISIS has been defeated, analysts are sceptical that they have been completely defeated. They still hold pockets of regions throughout the middle-east as of now.

III. Human rights violation by the isis

ISIS is infamous for its brutal and hideous way of advancing into capturing territories. On making such advancements they have committed numerous atrocities on civilians and the armed forces. Brutal killings of civilians including women and children has been reported against ISIS militants. These unwarranted killings of civilians have attracted ISIS to have committed war crimes according to international law. They have been accused of carrying out mass genocide of Shiites; brutal torture of civilians and armed forces personnel; kidnapping foreign nationals and demanding ransom; raping civilians; and slavery, especially sex slavery. This constitutes major human rights violation by the ISIS. Apart from the mentioned atrocities committed by the ISIS in territory that they held women were forcefully married off and raped numerous times by several men. Mutilating the bodies of the dead and severing body parts have also been reported by several international agencies. Not to mention the numerous beheading of foreign nationals and streaming the same online. The following are certain gross human rights violations that was committed by ISIS:

1. Mass Genocide

ISIS is a Sunni terrorist organization and one of the reasons why it rose to prominence is due to the minority Shia ruling over Sunnis in an autocratic manner. ISIS is notorious for slaughtering hundreds of Shiites. The word genocide means systematic destruction of people belonging to a certain ethnic group, nationality, or race. Genocide has been considered to be one of the most heinous crimes that can be done to the humanity. The genocide by the ISIS of Shiites is quite similar to the Holocaust carried out by the Nazi Germany in exterminating millions of Jews. Not only Shiites, as mentioned earlier the Iraqi Yazidi were also brutally killed in masses by the ISIS. Yazidi were massacred, raped, and forcefully converted to Islam. They were gruesomely tortured, slaved, and shot multiple times. In certain cases they were run over by vehicles back and forth. Civilians were taken hostage and men and boys were rounded up and executed. The invasion of Sinjar forced many locals to displace to other parts of the country.

2. Sex Slavery

Women and girls were often abducted and traded by the ISIS. They were either forcefully married off to unmarried ISIS militants or would be made to be a sex slave. Accounts of numerous women who escaped ISIS from sex slavery. It was also reported that Yazidi women have also undergone many physical and mental agony such as forced conversion and abortion. One of the major massacre of Yazidi happened during the taking over of Sinjar district in Iraq. Women and girls were raped and abducted for the purpose of sex slavery. One of such women was the Nobel Peace Prize winner Nadia Murad. She was a Yazidi minority at Sinjar when ISIS captured the region she was abducted to be sex slave. She was raped brutally, tortured, beaten up, and burned by cigarettes. Furthermore, she finally escaped the place when her captor forgot to lock the place up. Likewise, she was later on smuggled out to a refugee camp. Similar accounts of rape and sex slavery was reported by women and girls by the ISIS.

3. Destruction of Cultural Sites

ISIS conducted a cultural cleansing by destroying several sites of cultural importance by bombing and bulldozing them. Some of these sites include the Temple of Baal Shamin at Palmyra shook the world as it was considered to be one of the most preserved sites in Syria. ISIS militants captured the site and executed the archaeologist who oversaw the excavation of the ruins. The site has been destroyed and flattened by them. Another site that had cultural significance was the Mar Elian Monastery situated in the same city of Palmyra. The monastery was of high significance for the Syrian Christians. The monastery was bulldozed. Hatra signified the capital of a kingdom under the Roman Empire was sledgehammered and the sculptures were damaged using automatic rifles by the militants. The place has been transformed into a training ground for the new recruits now. These are some major destruction by the ISIS.

4. Beheading

Hundreds of people, both civilian and military, were beheaded by the ISIS. On the civilian side these are mostly journalists and aid workers. Public beheading were done to intimidate locals, and it was reported by several news agencies that before killing them the militants would ask the victim to dig his own grave before executing them. Several militants who tried to desert ISIS was also beheaded. Captured soldiers both men and women were also brutally beheaded. Foreign nationals are abducted and beheaded once their government refused to pay the ransom.

5. Child Soldiers

Children as young as six-year-old were forcefully made to join ISIS. They were sent to training camos where they were taught about the extremists’ views of the ISIS and the Sharia laws. While young boys were lectured about the radicalized views, older boys are sent to military grounds to receive trainings. Children were also used as shields during gunfights as well.

6. Chemical Weapons

The use of chemical weapons in warfare has been prohibited by the 1925 Geneva Protocol. Several Kurd fighters have reported that mustard gas were used in ISIS against them. The effects of mustard gas exposure is forming of blisters and severely affects the respiratory system of the victim. These would have a long term effect on the victim and would sometimes result in the victim contracting cancer years after being exposed. Another reported chemical weapon was Chlorine gas. Rockets containing Chlorine gas agents were fired upon the allied forces. The effect of chlorine gas is respiratory failure, wheezing, shortness of breath, irritable eyes and in rare cases even death. The use of chlorine gas has also been banned in the warfare by the international community.

IV. Challenges in prosecution

With the fall of the last stronghold of ISIS in the Battle of Baghouz Fawqani in 2019, tens of thousands of ISIS militants were captured and remains in the custody of the Syrian Democratic Force (SDF), a U.S. backed alliance composed of Kurdish and Arab militias. The SDF was lined up as an armed rebellion in response to the undemocratic policies of the President of Syria, Bashar al-Assad. A distressing amount of non-combatants, especially the women and children are displaced in various camps.⁵ The stumbling block for prosecuting the captured ISIS militants lies on the fact that neither Syria nor Iraq are signatories to the Rome Statute that laid foundation for the establishment of International Criminal Court (ICC). ICC was established to prosecute perpetrators for committing crimes against humanity, genocide, war crimes, and acts of aggression. Since both the nations are not parties to the treaty, ICC cannot exercise its territorial jurisdiction.⁶ This impediment of the ICC further invigorates the impression that it is a mere paper tiger. ICC can only initiate an investigation against a non-member State if it is referred to the ICC by the United Nations Security Council (UNSC). This curtails any prosecution of militants in an international platform.

V. Conclusion and suggestion

ISIS is a ruthless terror organization that commits acts of violence on unarmed civilians to promote their extremist ideology. The thousands of people who fell prey to this terror organization till now has not been brought to justice. The number of atrocities committed against the humanity by ISIS is unspeakable. Mass genocides, ethnic cleansing, sex slavery, destruction of culturally significant sites have all amounted to war crimes and above all a gross violation of all human rights guaranteed to a human being. These crimes against humans should be condemned by the international agencies and the perpetrators should be brought to justice and tried. Since it is a far-fetched scheme to prosecute ISIS militants in an international forum it is possible to prosecute foreign nationals who left their country to join the ranks of ISIS. One of the extraterritorial jurisdiction guaranteed to every State by the virtue of international law is the four principles of extraterritorial jurisdiction. One of the principles is the Active Nationality Principle which enables a State to extend the application of its laws to its nationals for the acts committed by them outside the territory of the State. Another suggestion the researcher would like to propose is to establish a special tribunal for prosecution through a multilateral treaty by the States whose nationals have joined the fight with ISIS. It is known that the members of ISIS include nationals of almost 60 States. It is plausible that the tribunal is established in either Iraq or Syria since majority of the captured are nationals of these States respectively. This approach of prosecution was found effective during the Nuremberg Trails where the United States, the United Kingdom, France, and the Soviet Union signed the London Agreement in 1945 to prosecute Nazi officials for war crimes, inter alia. The London Charter of the International Military Tribunal was established under the Agreement. Nevertheless, individuals involved in committing these heinous crimes against humanity should stand trial and punished accordingly.

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