Emory International Law Review

#ISIS: The Largest Threat to World Peace Trending Now
Annalise Lekas Managing Editor, Emory International Law Review; J.D. Candidate, Emory University School of Law (2016); B.A. with distinction, University of Michigan (2013). Thank you to my grandparents. Your strong will to persevere, while keeping your ethnic, cultural and religious roots alive taught me the importance of embracing where you came from, no matter where you are going.

Abstract

This Comment details the void in international legislation with respect to the world’s largest threat to peace currently, the Islamic State of Iraq and Syria (ISIS). Territorial boundaries ground the international legal system, inhibiting the armed intervention required to successfully combat ISIS. The United Nations (U.N.) Charter permits armed intervention in self-defense or collective self-defense and armed intervention sanctioned by the Security Council, but neither model allows States to defeat ISIS. Without armed intervention to stop the expansion of Islamic militants, terrorist organizations like ISIS will continue to flourish. The U.N. Security Council is required to maintain international peace and security and therefore, the Security Council must set clear standards that allow States to combat ISIS with the force of law. First, armed intervention must be a last resort that is limited to threats involving a high severity and probability of mass atrocities. Second, armed intervention must serve a common interest—preventing gross human rights violations and safeguarding international peace and security. The international legal system must evolve to solve the ISIS problem.

Introduction

“They threaten us and beat us if we try to resist. Often I wish they would beat me so hard I will die. But they are cowards even in this. None of them have the courage to end our suffering.”

—17-year old Yazidi girl held as a sex slave by the Islamic State. 1Rose Troup Buchanan, Life Under ISIS: Captured Teenage Girl Tells Story of Horrendous Abuse at Hands of Islamic State Militants, Independent (Sept. 9, 2014), http://www.independent.co.uk/news/world/middle-east/life-under-isis-captured-teenage-girl-tells-story-of-horrendous-abuse-at-the-hands-of-islamic-state-militants-9721746.html.

The suffering of young Yazidi women at the hands of the Islamic State of Iraq and Syria (ISIS) is unending. 2See id. (discussing that Yazidi women will remain forever scarred by the torture ISIS inflicts). ISIS captures, tortures, rapes, and sells the women into slavery, leaving the members of the Yazidi, an Iraqi monotheistic religious minority, wishing they were dead. 3Id.; Joshua Berlinger, Who Are the Religious and Ethnic Groups Under Threat from ISIS?, CNN (Aug. 8, 2014, 10:51 PM), http://www.cnn.com/2014/08/08/world/meast/iraq-ethnic-groups-under-threat-isis/; Richard Engel & James Novogrod, Isis Terror: Yazidi Woman Recalls Slave Auction, NBC News (Feb. 13, 2015, 12:26 PM), http://www.nbcnews.com/storyline/isis-terror/isis-terror-yazidi-woman-recalls-horrors-slave-auction-n305856. Apart from targeting Yazidis, the Islamic militants practice indiscriminate warfare, rounding up all non-believers from Iraqi Christians to Turkmen, Shiite Muslims and fellow Sunni Muslims. 4See Berlinger, supra note 3 (discussing the various religious minorities ISIS targets). See also Samuel G. Freedman, As Iraqi Christians in the U.S. Watch ISIS Advance, They See ‘Slow-Motion Genocide,N.Y. Times (Sept. 6, 2014), http://www.nytimes.com/2014/09/06/us/as-iraqi-christians-in-us-watch-isis-advance-they-see-a-slow-motion-genocide.html?_r=0. The persecution and near-annihilation of various minority groups by ISIS resonates with the author, a Chaldean-American. Prior to the militants’ reign, Chaldeans, an Iraqi-Catholic minority, suffered the same kind of terrorism executed by ISIS for decades. Moreover, the Islamic State continues to target the group. The Chaldean population in Iraq once amounted to one million people and dwindled to 400,000 by September 2014. The author’s grandparents immigrated from Telkaif in Northern Iraq to Detroit in 1949 and her family constitutes a portion of 175,000 prosperous Chaldeans that call the metro-Detroit area home. As daily death tolls multiply, the number of Muslims seduced into militancy simultaneously increases. 5See generally Nick Cuming-Bruce, 5,000 Iraqis Killed Since Islamic State Began Its Military Drive, U.N. Says, N.Y. Times (Oct. 2, 2014), http://www.nytimes.com/2014/10/03/world/middleeast/un-reports-at-least-26000-civilian-casualties-in-iraq-conflict-this-year.html; Christian Francescani & Robert Windrem, Foreign Fighters Pouring into Syria Faster Than Ever, Say Officials, NBC News (Oct. 29, 2014, 12:43 PM), http://www.nbcnews.com/storyline/isis-terror/foreign-fighters-pouring-syria-faster-ever-say-officials-n236546. ISIS wishes to establish a State that encompasses the Arab World. 6Arwa Damon & Holly Yan, Inside the Mind of an ISIS Fighter, CNN (Sept. 4, 2014, 1:23 PM), http://www.cnn.com/2014/09/04/world/meast/isis-inside-look/; Tim Lister, ISIS: The First Terror Group to Build an Islamic State?, CNN (June 12, 2014, 11:25 PM), http://www.cnn.com/2014/06/12/world/meast/who-is-the-isis/. The self-appointed leader of the Islamic State, Abu bakr al-Baghdadi, spreads his sermon, urging Muslims to return to their religious obligations by waging a holy war in the name of Allah. 7Yara Bayoumy, ISIS Leader Al-Baghdadi Urges Jihad in Ramadan Message, Huffington Post (July 1, 2014), http://www.huffingtonpost.com/2014/07/01/isis-baghdadi-ramadan-message_n_5548030.html; Mark Piggott, ‘Obey Me’: Abu Bakr al-Baghdadi, Leader of Isis, Releases First Video Sermon, Int’l Bus. Times (July 5, 2014), http://www.ibtimes.co.uk/obey-me-abu-bakr-al-baghdadi-leader-isis-releases-first-video-sermon-1455463.

ISIS is the most deadly terrorist organization operating today and the greatest threat to world peace, amassing more fighters, more funding, and more territory than any other terrorist movement. 8Daniel DePetris, The 5 Deadliest Terrorist Groups on the Planet, Nat’l Interest (Nov. 16, 2014), http://nationalinterest.org/feature/washington-watching-the-5-deadliest-terrorist-groups-the-11687. The Islamic State’s fanaticism and disciplined organization is similar to the Khmer Rouge in Cambodia and the Nazi Regime. 9Bobby Ghosh, Why ISIL is Worse Than al-Qaeda—And Any Other Terrorist Group That Came Before, Quartz (Aug. 8, 2014), http://qz.com/246923/why-isil-is-worse-than-al-qaeda-and-any-other-terrorist-group-that-came-before/ [hereinafter Ghosh, Why ISIL is Worse Than al-Qaeda]. On top of employing tactics of intimidation and public punishment, ISIS aims to exterminate entire categories of people. 10Id. The group’s unparalleled ability to transmit its message, control hundreds of square miles in Northern Syria and Northern Iraq, and impose harsh Shari’a law sets the terrorists apart from Al-Qaeda. 11See Lister, supra note 6; Holly Yan, Why is ISIS So Successful at Luring Westerners?, CNN (Oct. 7, 2014), http://www.cnn.com/2014/10/07/world/isis-western-draw/ (discussing ISIS’ success in spreading its message to recruit Westerners). Despite ISIS’ dominant presence, it is most successful against those who cannot or will not fight back. 12See Mark Thompson, Putting the ISIS Threat in Perspective, Time (Sept. 14, 2014), http://time.com/3373928/isis-threat-hagel-kerry-syria-iraq/ (noting ISIS has succeeded only where the group was unopposed). Therefore, the real issue is whether the international legal system is prepared to stop this large-scale suffering and worldwide threat.

From the Nuremberg trials to the creation of the International Criminal Court (ICC), the international legal system has increasingly recognized individual criminal liability for waging wars of aggression and crimes against humanity. 13See Nuremberg Human Rights Ctr. & Goethe Inst., From Nuremberg to Hague: The Road to the International Criminal Court 1, 3 (2006), http://www.iccnow.org/documents/FromNurembergtoHague_07july_eng.pdf (discussing that the Nuremberg trials led to the creation of the ICC). The progression of international law demonstrates a commitment to protecting human rights over national sovereignty. 14Id. at 3. Further, the preamble to the United Nations (U.N.) Charter reaffirmed human rights as foundational to the organization’s mission. 15See U.N. Charter pmbl. (“We the people of the United Nations . . . affirm our faith in fundamental human rights.”). Now, the ICC serves to bring perpetrators of international crimes to justice, a notion that once seemed unimaginable on an international scale. 16See About the Court, Int’l Crim. Ct., https://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx (last visited Sept. 14, 2015) (noting that the international community long aspired to develop an international criminal court that prosecutes perpetrators of the most serious international crimes). However, despite immense advances, the international community struggles to suppress self-initiating terrorist organizations like ISIS. 17See generally Frederick Pleitgen, Author’s Journey Inside ISIS: They’re ‘More Dangerous Than People Realize,CNN (Dec. 25, 2014, 8:50 AM), http://www.cnn.com/2014/12/22/world/meast/inside-isis-juergen-todenhoefer/.

Islamic terrorist organizations like ISIS rely on a misguided interpretation of the teachings of Islam, violating basic principles of the Islamic faith to justify unimaginable crimes. 18See Ben Winsor, 10 Ways ISIS is Violating the Laws of Islam, Bus. Insider (Oct. 8, 2014, 3:01 PM), http://www.businessinsider.com/muslims-using-sharia-law-against-isis-2014-10. Terrorist organizations violate at least ten principles of Islamic Law: “1) It is obligatory to consider Yazidis as People of the Scripture; 2) It is forbidden in Islam to deny women their rights; 3) It is forbidden in Islam to force people to convert; 4) It is forbidden in Islam to disfigure the dead; 5) It is forbidden in Islam to destroy graves and shrines of Prophets and Companions; 6) It is forbidden in Islam to harm or mistreat Christians or any ‘People of the Scripture; 7) Jihad in Islam is a purely defensive struggle. It is not permissible without the right cause, the right purpose, and the right rules of conduct; 8) It is forbidden in Islam to kill emissaries, ambassadors, and diplomats – hence it is forbidden to kill journalist and aid workers; 9) Loyalty to one’s nation is permissible in Islam; and 10) It is forbidden in Islam to declare a Caliphate without consensus from all Muslims.” Id. The militants thrive on being called murderers by “apostates” because they believe it is a privilege and a pleasure to fight to uphold the tenets of Islam established by the Prophet Muhammad, which makes defeating ISIS so difficult. 19See Eric Schmitt, In the Battle to Defang ISIS, U.S. Targets Its Psychology, N.Y. Times (Dec. 28, 2014), http://www.nytimes.com/2014/12/29/us/politics/in-battle-to-defang-isis-us-targets-its-psychology-.html; Graeme Wood, What ISIS Really Wants, Atlantic (Mar. 2015), http://www.theatlantic.com/features/archive/2015/02/what-isis-really-wants/384980/. The eradication of terrorist organizations like ISIS will require a long-term strategy. 20See Marissa Schultz, Ex-DIA Director Says Obama’s ISIS Strategy is ‘confusion,N.Y. Post (Feb. 8, 2015, 2:09 PM), http://nypost.com/2015/02/08/ex-dia-director-says-obamas-isis-strategy-is-confusion/ (discussing the need for a better ISIS strategy, the limited success of airstrikes, and the call for more ground assistance). This Comment will argue that the confines of international law, from U.N. Charter provisions, human rights law, and theories of humanitarian intervention to the ICC, make it difficult to take the action required to put an end to ISIS.

First, in Part I, this Comment discusses the historical development of Islamic militant groups. Then, Part II reflects facts about ISIS’ activities as of April 2015. In Part III, this Comment details international regulation of armed interventions, illustrating that armed intervention in Iraq is legal within the confines of international humanitarian law, but intervention in Syria is not. Next, Part IV considers the importance of human rights law, highlighting humanitarian intervention and the U.N.’s adoption of the Responsibility to Protect doctrine, which advances the “unwilling or unable rationale.” 21See Int’l Comm’n on Intervention & State Sovereignty, The Responsibility to Protect 11 (2001) (discussing states’ responsibility to intervene when a state is either unwilling or unable to fulfill its responsibility to protect itself). This Comment emphasizes that each existing theory or doctrine provides insufficient legal principles to justify armed intervention in Syria. Additionally, Part V of this Comment recognizes that the ICC cannot deter the mass atrocities committed by ISIS. However, this Comment notes that armed intervention in both Iraq and Syria is necessary to stop the terrorists. Then, Part VI holds that the U.N. Security Council, under its obligation to maintain international peace and security, must implement clear standards for armed intervention to provide States the ability to overcome the ISIS threat through the force of law. First, the Security Council must recognize armed intervention to stop gross human rights violations, even when the perpetrators are non-state actors. Second, the Security Council must limit this mode of armed intervention to a last resort measure to combat threats with a high severity and probability of mass atrocities for the common interest of safeguarding international peace and security.

I. Dar-al-Islam, the Common “Home-land” of all Muslims: The Historical Development and Resurgence of Islamic Imperialism 22Efriam Karsh, Islamic Imperialism, A History 1, 6 (2006).

First, Part I.A will outline the history of Islamic Imperialism and the Caliphate. Then, Part I.B will illustrate that ISIS is a resurgence of Islamic Imperialism and the Muslim Caliphate.

A. The History of Islamic Imperialism

In the words of the Prophet Muhammad, “I was ordered to fight all men until they say, ‘There is no god but Allah.’” 23Id. at 1. This statement resonates considerably with Islamist militants and was reiterated centuries later by Osama Bin Laden: “I was ordered to fight the people until they say there is no god but Allah, and his prophet Muhammad.” 24Id. A post-9/11 theory attributes the attacks by Al-Qaeda to the indigenous historical trends in Middle Eastern society, which illustrate that the institution of the empire originated in the Middle East and the concept of a world empire as well as universalism are closely linked to Islam. 25See id. at 2. Muhammad spent the last ten years of his life building an unearthly empire in the name of Allah and intended to expand the empire beyond the peninsula, but his sudden death derailed his religious imperialist ambitions. 26Id. at 5.

In the centuries following Muhammad’s death, the Caliphate, a political-religious empire comprised of the Muslim community and governed by a supreme leader and successor of the prophet Muhammad called a caliph, ruled the Middle East. 27Caliphate, Encyc. Britannica (Oct. 28, 2014), http://www.britannica.com/EBchecked/topic/89739/Caliphate. From the Umayyad Caliphate to the Abbasid Caliphate and the renowned Ottoman Caliphate, later generations of Muslims remember the reign of the Caliphate as the “the golden age of pure Islam.” 28Id. Ultimately, Islamic imperial rule ceased when the Ottoman Caliphate fell after World War I. 29See Karsh, supra note 22, at 6. The “imperialist dream” and the “link between religion, politics, and society” created during the Ottoman Empire lasted long after its fall. 30 Id. at 5. Despite a vast history of imperial rule, the Middle East Arabic speaking population never integrated or regarded themselves as one nation. 31Id. at 6. Today, tensions between different factions subsist and contribute to consistent conflicts in the Middle East, which will end only with the eventual triumph of Dar al-Islam, the house of Islam. 32See id. at 7, 62. Militant groups, like ISIS, aspire to fulfill the open role as the leader of the Islamic world to require “all free male, adult Muslims to carry out an uncompromising struggle ‘in the path of Allah’ or jihad.” 33Id. at 62.

B. Reinstating the Caliphate: The Islamic State of Iraq and Syria

The Islamic State of Iraq and Syria, formerly known as ISIL, the Islamic State of Iraq and the Levant, dates back to 1999, although it claims to be a resurgence of Islamic imperialism and the Muslim Caliphate. 34 See Charles Miranda, Isis Rewrites the Rules of War in Iraq, News.com.au (Sept. 7, 2014, 1:16 AM), http://www.news.com.au/national/isis-rewrites-the-rules-of-war-as-iraq-concerns-us-allies/story-fncynjr2-1227050293527 (discussing that ISIS’ struggle began centuries earlier). In the mid-1990s, a Jordanian named Abu Musab al-Zarqawi sought the creation of a “pure” Islamic State in Jordan; he was arrested and imprisoned for several years, during which time he managed to rally support for his movement. 35Id. Upon his release in 1999, Al-Zarqawi moved to Afghanistan to meet with Osama bin Laden, but he decided not to join Al-Qaeda forces. 36Id.; Bobby Ghosh, ISIS: A Short History, AtlANTIC (Aug. 14, 2014), http://www.theatlantic.com/international/archive/2014/08/isis-a-short-history/376030/ [hereinafter Ghosh, ISIS: A Short History]. Then, with the fall of the Taliban in 2001, al-Zarqawi fled to Iraq and set up the Party of Monotheism and Jihad, comprised largely of non-Iraqis. 37Ghosh, ISIS: A Short History, supra note 36.

The Party gained the attention of Osama bin Laden through its bombing campaigns, targeting Iraq’s majority Shiite population, which also controlled the Iraqi political system. 38Id. Eventually, the Party joined forces with Al-Qaeda as Al-Qaeda in Iraq. 39Id. Later, in 2006, Al-Zarqawi was killed in United States-led airstrikes, dismantling the Iraqi branch of Al-Qaeda. 40Id. However, in 2011, when United States troops completely withdrew from Iraq, Abu bakr al-Baghdadi assumed control and amplified al-Zarqawi’s ideology. 41Id. In 2014, the party severed all ties with Al-Qaeda Iraq, and rebranded itself as ISIS. 42Liz Sly, Al-Qaeda Disavows Any Ties with Radical Islamist ISIS Group in Syria Iraq, Wash. Post (Feb. 3, 2014), http://www.washingtonpost.com/world/middle_east/al-qaeda-disavows-any-ties-with-radical-islamist-isis-group-in-syria-iraq/2014/02/03/2c9afc3a-8cef-11e3-98ab-fe5228217bd1_story.html. ISIS is a modernized splinter of Al-Qaeda that seeks to reinstate the Caliphate by creating an Islamic State that spans the Arab world. 43Ghosh, ISIS: A Short History, supra note 36. At the helm of ISIS is Caliph al-Baghdadi, a former detainee at an American camp in Iraq. 44Michael Daly, ISIS Leader: ‘See You in New York,Daily Beast (July 14, 2014), http://www.thedailybeast.com/articles/2014/06/14/isis-leader-see-you-in-new-york.html. Upon release in 2009, the man who would assume the role as the leader of ISIS issued a menacing warning to his captors, “I’ll see you guys in New York.” 45See id. Abu Bakr al-Bagdhdadi was held in custody at an American Camp in Iraq, Camp Bucca, for four years. Army Col. Kenneth King, then commanding officer of Camp Bucca stated, “[h]e was a bad dude, but he wasn’t the worst of the worst.” Id.

The following Part will discuss ISIS in action as of April 2015—its Internet campaign, funding mechanisms, recruitment of fighters, gross human rights violations, and life in the Caliphate. Then, this Part will outline the international response to ISIS through April 2015.

II. A Message from ISIS to the World

First, Part II.A will outline ISIS’ Internet campaign that assisted the militant group in raising money, instilling fear, and recruiting fighters. Next, Part II.B will summarize the violent acts perpetrated by the terrorist organization. Lastly, Part II.C will illustrate the international community’s response to ISIS.

A. ISIS’ Internet Campaign

The success of ISIS hinges on the group’s use of social media to raise money, instill fear, and recruit fighters. 46See Jacob Siegel, ISIS is Using Social Media to Reach YOU, Its New Audience, Daily Beast (Aug. 31, 2014), http://www.thedailybeast.com/articles/2014/08/31/isis-s-use-of-social-media-to-reach-you-its-new-audience.html. Primarily, ISIS took to the Internet to disseminate their message to the world by posting videos, creating memes, and tweeting. 47See id. As a result of ISIS’ Internet propaganda, the militants captured the attention of wealthy “angel investors” in the Gulf region, which greatly assisted with start-up costs. 48See Justin Sink, ISIS Rakes in Donations on Twitter, Hill (Oct. 23, 2014, 1:45 PM), http://thehill.com/policy/defense/221666-isis-rakes-in-donations-on-twitter (discussing the donations ISIS receives on Twitter); Robert Windrem, Who’s Funding ISIS? Wealthy Gulf “Angel Investors,” Officials Say, NBC News (Sept. 21, 2014), http://www.nbcnews.com/storyline/isis-terror/whos-funding-isis-wealthy-gulf-angel-investors-officials-say-n208006 (discussing funds ISIS obtains from wealthy “angel investors” in the Gulf Region). Secondly, the group’s avid use of social media inspired worldwide terror, while also reaching new members through “highly ritualized killings.” 49Tim Hume, The Impact of ISIS Beheadings: Is Terror Propaganda Brutalizing Us All?, CNN (Apr. 20, 2015, 9:26 PM), http://www.cnn.com/2015/04/20/middleeast/isis-beheadings-psychological-impact/. On the one hand, videos detailing beheadings of American journalists and British aid workers were meant to intimidate the world. 50See Amir Abdallah, Urgent Video: ISIS Beheads UK Aid Worker David Hanes, IRAQI NEWS (Sept. 14, 2014), http://www.iraqinews.com/features/urgent-video-isis-beheads-uk-aid-worker-david-haines/. On the other hand, pictures with children playing in the street, militants swimming and laughing, and jihadi brides posing with luxury cars were meant to glamorize life within the caliphate as well as entice recruits to join the jihad. 51Heather Saul, The Most Dangerous ISIS Propaganda Yet? Jihadi Brides with M5s, Fighters Relaxing and Children Playing Used to Present Caliphate as a Utopia, Independent (Mar. 20, 2015), http://www.independent.co.uk/news/world/middle-east/the-most-dangerous-isis-propaganda-yet-jihadi-brides-with-m5s-fighters-relaxing-and-children-playing-used-to-present-caliphate-as-a-utopia-10121653.html. ISIS even tweeted pictures of their black and white flag in front of the White House. 52Siegel, supra note 46. Twitter and YouTube tried to derail ISIS’ advertising campaign by shutting down accounts, removing videos, and promoting hashtags such as #ISISMediaBlackout. 53Id. Nevertheless, ISIS continues to garnish support for their cause. 54See CIA Director Blames Social Media for Strength of ISIS, REUTERS (Mar. 13, 2015), http://rt.com/usa/240597-ciai-director-brennan-isis/ (discussing how the internet amplifies ISIS’ success).

B. ISIS in Action

One of the most deadly terrorist organizations in the world, ISIS, is recruiting more fighters, gaining more funding, and capturing more territory. 55See Daniel DePetris, The 5 Deadliest Terrorist Groups on the Planet, Nat’l Int. (Nov. 16, 2014), http://nationalinterest.org/feature/washington-watching-the-5-deadliest-terrorist-groups-the-11687 (naming ISIS the deadliest terrorist group on the planet). As of September 2014, CIA reports estimated that ISIS had recruited 31,500 fighters in Iraq and Syria from eighty-one different countries. 56Alessandra Masi, ISIS Recruitement: CIA Reports Said ISIS Could Have up to 31,500 Fighters in Iraq and Syria, Int’l Bus. Times (Sept. 11, 2014, 10:03 PM), http://www.ibtimes.com/isis-recruitement-cia-reports-said-isis-could-have-31500-fighters-iraq-syria-1686504. Further reports estimated that as of October 2014, 2,000 western fighters had joined the ISIS movement, more than a hundred of whom were Americans who had traveled or attempted to travel to Syria. 57Francescani & Windrem, supra note 5. Moreover, ISIS has been successful in rallying support from civilians who remain in their home country. 58See Greg Botelho, Feds: NY Storeowner Plotted to Send Jihadists to Syria, Kill U.S. Troops Himself, CNN (Sept. 17, 2014), http://www.cnn.com/2014/09/16/justice/suspected-isis-supporter-ny/. In September 2014, a New York storeowner attempted to sell his business to donate the proceeds to ISIS. 59Id. Later, in March 2015, U.S. officials arrested an air force veteran as well as a U.S. national guardsman for attempting to join ISIS. 60Air Force Vet Charged with Trying to Join ISIS, FOX NEWS (Mar. 17, 2015), http://www.foxnews.com/world/2015/03/17/air-force-vet-charged-with-trying-to-join-isis/; Michael S. Schmidt, National Guardsman Accused of Trying to Join ISIS in Libya, N.Y. Times (Mar. 26, 2015), http://www.nytimes.com/2015/03/27/us/guardsman-accused-of-trying-to-join-isis-in-libya.html. Additionally, in September 2014, U.S. intelligence officials estimated ISIS made three million dollars per day from “cash-raising activities [that] resemble those of a mafia-like organization.” 61Ken Dilanian, Islamic State Group’s War Chest Growing Daily, Assoc. Press (Sept. 15, 2014, 11:16 AM), http://bigstory.ap.org/article/islamic-state-groups-war-chest-growing-daily-0. The group obtains millions of dollars from banks, levies taxes on small and large businesses, receives ransom in exchange for foreign hostages, trades antiquities, and sells kidnapped women and children into slavery. 62See id. ISIS’ largest, most profitable source of funding is oil. 63Id. The militants have seized numerous oil fields in Syria as well as Iraq and sold the oil directly to the market through generations-old smuggling networks. 64Id. As of April 2015, the Islamic State maintained control over about one-third of Syria and nearly one-third of Iraq. 65Tim Mak, Exclusive: ISIS Gaining Ground in Syria, Despite U.S. Strikes, Daily Beast (Jan. 15, 2015), http://www.thedailybeast.com/articles/2015/01/14/exclusive-isis-gaining-ground-in-syria-despite-u-s-strikes.html; Jim Michaels, Iraqi Leader Will Seek Continued U.S. Help in ISIL Fight, USA Today (Apr. 12, 2015, 7:49 PM), http://www.usatoday.com/story/news/world/2015/04/12/abadi-obama-islamic-state/25602341/. See Iraq ‘Retakes Over a Quarter of Islamic State Territory,BBC News (Apr. 14, 2015), http://www.bbc.com/news/world-middle-east-32299602 (noting that ISIS’ area of influence in Syria remained largely unchanged since airstrikes began in September 2014). ISIS even controls entire cities, including the city of Mosul, Iraq’s second largest city, and the city of Raqqa in Syria, where ISIS has established its own courts and is imposing harsh Shari’a law. 66Pleitgen, supra note 17; Lister, supra note 6.

Despite gaining territory, the militants continue to target innocent civilians and seek to expand their state by way of an interpretation of Islam that contradicts key religious tenets. 67See S.C. Res. 2170, ¶ 2 (Aug. 15, 2014) (discussing ISIS’ inhumane act target at innocent civilians); Winsor, supra note 18 (discussing ISIS’ violations of the express language in the Quran). ISIS has been condemned for persecuting individuals for their religious beliefs, recruiting child soldiers, attacking hospitals and schools, kidnapping or detaining civilians, destroying cultural property, and obstructing the exercise of economic, social and cultural rights. 68S.C. Res. 2170, supra note 67, ¶ 2. ISIS rarely allows women to be out in public, has eliminated the possession of guns, and has made electricity available for a mere two hours every two or three days. 69Peter Kenyon, Life Under the Islamic State: Sharia Law and Few Services, Nat’l Public Radio (Aug. 29, 2014, 10:17 AM), http://www.npr.org/blogs/parallels/2014/08/29/343986937/life-under-the-islamic-state-sharia-law-and-few-services; Jack Moore, Iraq ISIS Crisis: Medieval Sharia Law Imposed on Millions in Nineveh Province, Int’l. Bus. Times (June 12, 2014, 2:24 PM), http://www.ibtimes.co.uk/iraq-isis-crisis-medieval-sharia-law-imposed-millions-nineveh-province-1452401. Many stores are closed, and food supplies is limited. 70Kenyon, supra note 69. Civilians in ransacked towns are prohibited from carrying any flags other than the ISIS flag, while the terrorists destroy all non-Sunni cultural property, including shrines and graves. 71Moore, supra note 69. Yet, their terroristic reign in Iraq and Syria is not enough, and the militants continue to release videos targeting countries around the world with violence. 72See Kenyon, supra note 69 (discussing life under the Islamic State). See generally ISIS Threatens Obama, Japanese and Jordanian Hostages in New Online Message, Fox News (Jan. 27, 2015), http://www.foxnews.com/world/2015/01/27/isis-threatens-obama-japanese-and-jordanian-hostages-in-new-online-messages/. The videos denounce the U.S. and other Western Nations, issuing direct threats to President Obama. 73See ISIS Threatens Obama, Japanese and Jordanian Hostages in New Online Message, supra note 72. One militant, hidden behind a black facemask, stated, “[k]now also that we will cut off your head in the White House, and transform America into a Muslim Province,” and brought a knife to the Kurdish fighter’s throat as the video faded to black. Id. Further, a video released in January 2015 featured the beheading of one of two Japanese hostages and a threat to take the remaining hostage’s life—a threat that the group later carried out. 74Id.; Faith Karimi, Jordan Waits, Japan Mourns After ISIS Apparently Beheads Journalist, CNN (Feb. 2, 2015), http://www.cnn.com/2015/02/02/middleeast/isis-hostage/. In a follow-up video, ISIS demanded the release of a female suicide bomber on death row in Jordan as the price of a Jordanian pilot’s life. 75Karimi, supra note 74. Although Jordan agreed to swap the requested terrorist for the pilot on the condition that ISIS demonstrated the pilot was still alive, on February 3, 2015, ISIS released a video of the militants burning the hostage to death in a locked cage, their most inhumane display of brutality at that point. 76Id.; Samantha Payne, Jordanian Pilot Burned Alive: Moaz al-Kasasbeh was ‘Heavily Drugged so he Would Not Scream,Int’l. Bus. Times (Feb. 10, 2015), http://www.ibtimes.co.uk/jordanian-pilot-burned-alive-moaz-al-kasasbeh-was-heavily-drugged-so-he-would-not-scream-1487341.

As disturbing videos circulate, ISIS has made plays to expand beyond Syria and Iraq. 77See Brian Todd, ISIS Gaining Ground in Yemen, Competing with al-Qaeda, CNN (Jan. 22, 2015), http://www.cnn.com/2015/01/21/politics/isis-gaining-ground-in-yemen/. In January 2015, militants responsible for an armed assault in Libya pledged their allegiance to ISIS. 78Suliman Ali Zway & David D. Kirkpatrick, Group Linked to ISIS Says It’s Behind Assault on Libyan Hotel, N.Y. Times (Jan. 27, 2015), http://www.nytimes.com/2015/01/28/world/middleeast/islamic-state-tripoli-libya-terror-attack.html. In addition, following the overthrow of the Yemeni government, local jihadi groups pledged their allegiance to ISIS. 79See Ghaith Abdul-Ahad, Yemeni Implosion Pushes Southern Sunnis into Arms of al-Qaida and ISIS, Guardian (Mar. 22, 2015, 10:25 AM), http://www.theguardian.com/world/2015/mar/22/yemen-sunnis-al-qaida-isis-islamic-state-shia-houthis-sanaa (tribal groups compete with extremist groups for recruits). In March 2015, twin suicide bombings occurred during prayers at two mosques in Sanna, the Yemeni capital, and killed approximately 120 people. 80Lucy Westcott, 120 Believed Killed in Twin Suicide Attacks on Yemen Mosques, Newsweek (Mar. 20, 2015, 11:01 AM), http://www.newsweek.com/120-believed-killed-twin-suicide-attacks-yemen-mosques-315317. In the wake of the group’s expansion into Libya and Yemen, Boko Haram, a Nigerian terrorist group with thousands of fanatical fighters, the Egyptian Sinai-based jihadi group, Ansar Beit al-Maqdis, the Soldiers of the Caliphate of Algeria, Sons of the Call for Tawhid and Jihad in Jordon, and Abu Sayyaf in the Philippines all pledged bay’ah (allegiance) to ISIS. 81Paul Cruickshank, ISIS’ Explosive Expansion, CNN (Mar. 20, 2015, 6:38 PM), http://www.cnn.com/2015/03/20/world/isis-expansion/; Jack Moore, U.S. War on ISIS Could Expand to Affiliates in Libya and Nigeria, Newsweek (Mar. 12, 2015, 2:30 PM), http://www.newsweek.com/us-war-isis-could-expand-affiliates-libya-and-nigeria-313359. Other radical terrorist organizations pledged allegiance to ISIS in March 2015. The group’s mere pledge of allegiance and act of flying the ISIS flag would be covered by the forthcoming Authorization to Use Military Force according to U.S. officials testifying to the Senate Foreign Relations Committee, including Secretary of State John Kerry and top general, Martin Dempsey. Id. The terrorist organization also claimed responsibility for the deadliest terror attack in Tunisia, and founded new chapters in Afghanistan, Pakistan, and Saudi Arabia. 82Cruickshank, supra note 81. ISIS attacked Tunisia as well as spread to Afghanistan, Pakistan and Saudi Arabia in March, 2015. Id. ISIS is gaining supporters from the Atlantic to the Hindu Kush and competing with Al-Qaeda to dominate the region in pursuit of global jihadist leadership. 83Id.; see Todd, supra note 77. ISIS and Al-Qaeda in the Arabian Peninsula (AQAP) compete for recruits in Yemen and both groups want to be the first to attack the U.S. Id.

C. The International Response to ISIS

In 2004, the U.N. Security Council adopted Resolution 2170 under the Chapter VII powers of the U.N. Charter. 84S.C. Res. 2170, supra note 67, ¶ 1. The Resolution condemned ISIS’ attacks against civilians on the basis of ethnicity or religious beliefs as gross, widespread abuses of human rights that might constitute crimes against humanity, and emphasized the importance of bringing perpetrators and foreign fighters to justice. 85See id. at ¶¶ 1, 3, 5. In the Resolution, the Security Council,

1. Deplore[d] and condemn[ed] in the strongest terms the terrorist acts of ISIL and its violent extremist ideology, and its continued gross, systematic and widespread abuses of human rights and violations of international humanitarian law;

2. Strongly condemn[ed] the indiscriminate killing and deliberate targeting of civilians, numerous atrocities, mass executions and extrajudicial killings. 86Id. at ¶¶ 1–2.

The Security Council “call[ed] upon all States to take all measures as may be necessary and appropriate in accordance with their obligations under international law to counter incitement of terrorist acts motivated by extremism and intolerance perpetrated by individuals or entities associated with [ISIS].” 87Id. at ¶ 6. Further, in September 2014, sixty-two countries pled support to a U.S.-led coalition to work together to stifle the groups’ advances and assist Iraq, who requested the help of the U.S. to fight ISIS in collective-self-defense. 88See Louise Arimatsu & Michael Schmitt, The Legal Basis for the War Against Isis Remains Contentious, Guardian (Oct. 6, 2014, 4:00 PM), http://www.theguardian.com/commentisfree/2014/oct/06/legal-basis-war-isis-syria-islamic-state (discussing that the fight against ISIS in Iraq is legal under the collective self-defense principle of international law); Iraq Formally Asks US to Launch Air Strikes Against Rebels, BBC News (June 18, 2014), http://www.bbc.com/news/world-middle-east-27905849 (discussing Iraq’s formal request for U.S. assistance); Sebastian Payne, What the 60-Plus Members of the Anti-Islamic State Coalition are Doing, Wash. Post (Sept. 25, 2014), http://www.washingtonpost.com/news/checkpoint/wp/2014/09/25/what-the-60-members-of-the-anti-islamic-state-coalition-are-doing/ (discussing the U.S.-led coalition to fight ISIS).

President Obama justified the U.S.’s leadership role in the fight against ISIS on the broad language of the 2001 Authorization for Military Force (AUMF) against the Taliban and Al-Qaeda as well as the 2002 AUMF in Iraq. 89Somini Sengupta & Charlie Savage, U.S. Invokes Iraq’s Defense in Legal Justification of Syria Strikes, N.Y. Times (Sept. 23, 2014), http://www.nytimes.com/2014/09/24/us/politics/us-invokes-defense-of-iraq-in-saying-strikes-on-syria-are-legal.html. See also S.J. Res. 23, 107th Cong. § 2(a) (2001).The President is authorized to use all necessary and appropriate force against those nations organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.Id. See also H.R.J. Res. 114, 107th Cong. § 3(a) (2002).The President is authorized to use the Armed forces of the United States as he determines to be necessary and appropriate in order to—(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.Id. The U.S. conducted airstrikes against Al-Qaeda targets to advance this argument. 90See Greg Miller & Karen DeYoung, In Syria, Obama Stretches Legal and Policy Constraints He Created for Counterterrorism, WASH. POST (Sept. 23, 2014), http://www.washingtonpost.com/world/national-security/in-syria-obama-stretches-legal-and-policy-constraints-he-created-for-counterterrorism/2014/09/23/79fdaf44-4339-11e4-9a15-137aa0153527_story.html (discussing that eight of the twenty-two airstrikes were targeted at an Al-Qaeda cell). However, in a January 2015 State of the Union Address, President Obama informed the American public that he would seek Congressional approval to take action to combat ISIS. 91Alexandra Jaffe & Deirdre Walsh, White House to Request Permission to Fight ISIS, CNN (Feb. 6, 2015, 8:10 AM), http://www.cnn.com/2015/02/05/politics/isis-war-authority-vote/. See also Kerry, Carter, Dempsey Want War with ISIS, Senate Isn’t Convinced, RT (Mar. 11, 2015), http://rt.com/usa/239701-kerry-administration-senate-aumf/. Top officials urged Congress to pass an ISIS AUMF, arguing that a bipartisan agreement on a plan to fight ISIS is imperative, but Congress could not come to a unanimous decision. In particular, Democrats were nervous to authorize another AUMF that allowed the use of force to linger, like in Iraq. Id. Since the U.S. began leading the international coalition to fight ISIS in August 2014, President Obama has deployed 3,000 troops to Iraq and spent more than one billion dollars to conduct airstrikes. 92Jennifer Bendery, House Democrat Introduces ISIS War Authorization Bill, Huffington Post (Jan. 28, 2015, 6:00 AM), http://www.huffingtonpost.com/2015/01/28/adam-schiff-aumf-isis_n_6559066.html. The U.S., France, Britain, Australia, Jordan, and Saudi Arabia, among others, continue to conduct airstrikes. 93Airstrikes Continue Against ISIL in Syria, Iraq, U.S. DEP’T DEF. (Apr. 14, 2015), http://www.defense.gov/news/newsarticle.aspx?id=128584. The U.S. launches airstrikes in both Iraq and Syria; several other States, including Britain, launch airstrikes in Iraq, but have refrained from launching airstrikes in Syria. 94See id.; see also Ben Smith, Claire Mills & Rob Page, Iraq, Syria and ISIS—Recent Developments, House of Commons Library Standard Note, SN06977, at 1, 13 (2014), http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06977 (explaining that the British Parliament launched airstrikes in Iraq, but not Syria). Britain began launching airstrikes in Syria in December 2015. See Ben Brumfield, Britain Launches Airstrikes Hours After Parliament Backs ISIS Bombings, CNN (Dec. 3, 2015, 1:53 AM), http://www.cnn.com/2015/12/02/europe/isis-britain-germany-vote-iraq-syria/. From August 2014 to March 2015, the United States-led coalition has launched 1,700 airstrikes against ISIS in Iraq, and the U.S. alone has launched 946 airstrikes in Syria. 95Tom Bowman, Despite Coalition Partners, U.S. Has Done Most Airstrikes Against ISIS, Nat’l Public Radio (Feb. 6, 2015, 4:09 PM), http://www.npr.org/2015/02/06/384345873/despite-coalition-partners-u-s-has-done-most-airstrikes-against-isis; Heather Murdock, Iraqi Official: Troops Launch ‘Final Phase’ of Tikrit Offensive, Voice America (Mar. 26, 2015), http://www.voanews.com/content/us-launches-airstrikes-on-tikrit/2694988.html. Further, American, Canadian, and British soldiers have voluntarily traveled to Iraq to fight against ISIS alongside the Kurdish militia, which is backed by the U.S. 96Catherine Herridge, US Vet Says Fighting in Syria Was as Easy as Buying Airplane Ticket to Miami, FOX NEWS (Jan. 2, 2015), http://www.foxnews.com/politics/2015/01/02/exclusive-us-vet-says-fighting-in-syria-was-as-easy-as-buying-airplane-ticket/. An American Veteran bought a plane ticket to Iraq and conducted an informal background check via Facebook to fight on the frontlines against ISIS. The Supreme Court has held in the past that it is not a crime for citizens to overseas to join a foreign army if recruitment takes place outside the United States. However, if the recruitment takes place inside the country, which arguably occurred here, the act could be considered illegal. Id. In conjunction with U.S. airstrikes, in January 2015, Kurdish ground troops pushed ISIS out of the Syrian town of Kobani, a major loss for the extremist group. 97See Anne Barnard & Karam Shoumali, Kurd Militia Says ISIS Is Expelled From Kobani, N.Y. Times (Jan. 26, 2015), http://abcnews.go.com/International/jordan-deploys-ground-troops-iraq-border/story?id=28856391. In addition, the U.S. assumed a lead role in the offensive on Tikrit, conducting airstrikes to aid Iraqi ground forces in regaining control of the city. 98See Greg Botelho & Jomana Kardsheh, U.S.-led Coalition Launches 17 Airstrikes on ISIS Targets Around Tikrit, CNN (Mar. 27, 2015, 4:29 AM), http://www.cnn.com/2015/03/26/middleeast/iraq-isis-tikrit/. See also Jacob Siegel & Nancy A. Youssef, US Just Took Ownership of a New Iraq War, Daily Beast (Mar. 26, 2015), http://www.thedailybeast.com/articles/2015/03/26/the-u-s-just-took-ownership-of-a-new-iraq-war.html (discussing the U.S.’s lead role in the Tikrit offensive as widening U.S. involvement and hopes the involvement will be less open ended than it was ten years after President Bush ended combat operations in Iraq). On March 31, 2015, Iraqi Prime Minister Haider al-Abadi announced that Iraq had successfully recovered Tikrit from ISIS. 99Hamdi Alkshali & Jomana Kardsheh, Iraqi Forces Take Back Tikrit from ISIS, Official Says, CNN (Mar. 31, 2015, 5:57 PM), http://www.cnn.com/2015/03/31/middleeast/iraq-isis-tikrit/. Iraqi forces planned an offensive on Mosul in April or May of 2015. 100Id. (“The victory in Tikrit sets the state for Iraqi forces to take back an ever bigger prize: Mosul.”). Yet, despite current world action, ISIS continues to seize new territory. 101Anne Barnard & Hqaida Saad, ISIS Seizes New Territory in Deadly Attacks in Syria, N.Y. Times (Apr. 1, 2015), http://www.nytimes.com/2015/04/02/world/middleeast/syria-isis-advances-in-hama-and-damascus.html. Airstrikes have forced ISIS caliph al-Baghdadi into hiding, but the air campaign has not stopped ISIS from committing acts of violence. 102See Martin Chulov & Kareem Shaheen, ISIS Leader Abu Bakr Al-Baghdadi ‘seriously wounded in air strike,Guardian (Apr. 21, 2015), http://www.theguardian.com/world/2015/apr/21/isis-leader-abu-bakr-al-baghdadi-wounded-air-strike (discussing that Baghdadi was injured in airstrikes and is now spending much of his time about 200 miles West of Mosul); Elliot C. McLaughlin, Isis Executes More Christians in Libya Video Shows, CNN (Apr. 20, 2015, 7:59 PM), http://www.cnn.com/2015/04/19/africa/libya-isis-executions-ethiopian-christians/ (discussing a recent video depicts ISIS beheading two groups of Ethiopian Christians in Libya); Armin Rosen, Here’s the Iraqi Town Where Leader Abu Bakr al-Baghdadi had Reportedly Been Hiding Out, Bus. Insider (Apr. 21, 2015, 3:02 PM), http://www.businessinsider.com/town-where-baghdadi-was-reportedly-hiding-out-2015-4 (discussing that Baghdadi, just like Osama, is hiding out in a low-profile area far from ISIS’ centers of power).

III. Armed Intervention Under the United Nations Charter

The following Part discusses the legality of armed intervention to combat ISIS under the U.N. Charter. First, Part III.A will outline the two permissible methods of armed intervention against the territorial sovereignty of a Nation State expressed in the U.N. Charter: Security Council-sanctioned intervention and self-defense. Then, Part III.B will analyze international case precedent that limits the use of self-defense based on three principles: necessity, proportionality, and immediacy. Lastly, Part III.C will discuss whether self-defense justifies armed intervention to combat ISIS and illustrate that armed intervention in Iraq to combat ISIS is legally justified under the principle of collective-self-defense. 103See U.N. Charter art. 2, ¶ 4 (discussing the U.N.’s general prohibition on the use of force against the territorial integrity or political independence of any State); Arimatsu & Schmitt, supra note 88 (discussing the legality of armed intervention to fight ISIS and in particular, that armed intervention in Syria is not legal under the principle of collective self-defense). However, Part III.C argues that armed intervention in Syria is illegal and concludes that the U.N. Charter bolsters territorial sovereignty but fails to address the threat posed by ISIS. 104 See U.N. Charter art. 2, ¶ 4; Arimatsu & Schmitt, supra note 88.

A. Armed Intervention Under the U.N. Charter

Jus ad bellum, the longstanding legal principal governing when a nation may resort to force, is reflected in the U.N. Charter. 105See Geoffrey S. Corn & Laurie Blank, The Laws of War: Regulating the Use of Force, in National Security Law in the News: A Guide for Journalists, Scholars & Policymakers 97, 98 (American Bar Ass’n ed., 2012); see U.N. Charter art. 2, ¶ 4 (discussing the U.N.’s general prohibition on the use of force against the territorial integrity or political independence of any State). Largely, the Charter prohibits the use of force by one State against another. 106See U.N. Charter art. 2, ¶ 4 (discussing the U.N.’s general prohibition on the use of force against the territorial integrity or political independence of any State). Article 2(4) asserts “[a]ll members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the U.N. Charter.” 107Id. However, under Chapter VII, the Charter details two circumstances under which States may resort to the use of force against another State. 108See id. art. 42, ¶ 1, art. 51, ¶ 1. In the event of a threat to peace, breach of peace or act of aggression, Member States can lawfully resort to force if: (1) the U.N. Security Council sanctions the use of force, or (2) a State resorts to force in self-defense. 109Id. art. 51, ¶ 1. International law recognizes a State’s right to protect its territorial integrity, permitting the use of force, or armed intervention, in the face of armed conflict. 110See generally Johan D. van der Vyver, Ius Contra Bellum and American Foreign Policy, 28 S. Afr. Y.B. Int’l L. 1, 1–28 (2003) [hereinafter van der Vyver, Ius Contra Bellum], (discussing various recent armed conflicts and whether a State was entitled to use force to protect its territorial sovereignty). Traditionally, an armed conflict occurred when a State resorted to extensive armed force against States, a State government, an organized armed group, or groups within a State. 111Id. at 13. See also Corn & Blank, supra note 105, at 101 (discussing what constitutes an armed attack). Now, after 9/11, when the U.N. Security Council acknowledged the U.S.’s inherent right of self-defense in response to the attacks launched by Al-Qaeda, the notion that non-state actors can also engage in armed conflict has arguably become common State practice. 112Corn & Blank, supra note 105, at 101; see also S.C. Res. 1368, ¶ 1 (Sept. 12, 2001) (providing the exact text of the U.N. Resolution that lends to the general understanding that the a state act in self-defense against non-state actors). ISIS is an organized group of non-state actors that resorted to armed force in Iraq and Syria; therefore, action is necessary to stop the conflict. 113Lucy Fisher, ISIS and the Global Rise of Non-State Actors, NEWSTATESMAN (June 23, 2014), http://www.newstatesman.com/international-politics/2014/06/isis-and-global-rise-non-state-actors. See generally S.C. Res. 2170, supra note 67 (detailing ISIS’ resort to armed intervention by discussing the terrorist acts of ISIS, the group’s violent extremist ideology, and gross, systematic and widespread abuse of human rights).

Under Chapter VII of the U.N. Charter, first, Article 42 allows the Security Council to pass a resolution to “restore international peace and security,” and second, Article 51 allows intervention in self-defense against an armed attack. 114U.N. Charter arts. 42, ¶ 1, 51, ¶ 1. If the U.N. Security Council sanctions armed intervention, the intervention is legally justified. 115See Corn & Blank, supra note 105, at 99. Throughout its history, the Security Council has sanctioned peacekeeping missions in the Korean War, the Gulf War, and in Libya. 116See van der Vyver, Ius Contra Bellum, supra note 110, at 3 (citing Security Council sanctioned military intervention in the Korean War and the Gulf War); Corn & Blank, supra note 105, at 99 (citing Security Council Sanctioned Intervention in Libya); Press Release, Security Council, Security Council Establishes Peacekeeping Force for Mail Effective 1 July, Unanimously Adopting Resolution 2100 (2013), U.N. Press Release SC/10987 (Apr. 25, 2013), http://www.un.org/press/en/2013/sc10987.doc.htm (discussing U.N. Security Council sanctioned intervention in Mali). Further, Article 51 specifies the appropriate use of self-defense:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain and restore international peace and security. 117U.N. Charter art. 51, ¶ 1

When an armed conflict occurs that poses an imminent threat to the well being of a U.N. Member State, the State maintains the inherent right to act in individual or collective self-defense, which allows a State to request the assistance of other States. 118Corn & Blank, supra note 105, at 100. Before resorting to armed intervention, however, an armed attack must occur. 119Id. In addition, the theory of anticipatory self-defense argues that the U.N. Charter permits a Member State to resort to armed intervention in self-defense of an impending threat that presents no choice of means or moment of deliberation. 120Id. at 103–04; van der Vyver, Ius Contra Bellum, supra note 110 at 4–5. Although the right of self-defense against non-state actors exists, the right to self-defense is not without limits. 121See Corn & Blank, supra note 105, at 101–04 (discussing the right to self-defense against non-state actors and the limits on the right to self-defense). Rather, the lawful use of self-defense depends on the fulfillment of three conditions: necessity, proportionality and immediacy. 122Id.

B. International Case Precedent: Necessity, Proportionality, and Immediacy

A prominent decision of the International Court of Justice in 1986, Nicaragua v. United States, limited the right to collective self-defense, addressing the elements of necessity and proportionality. 123See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J 14, ¶¶ 194, 237 (June 27). The Court found collective self-defense insufficient to support the U.S.’s military intervention and use of force in Nicaragua, holding the U.S. breached its duty under international law to not infringe on a State’s territorial sovereignty. 124Id. ¶¶ 207–13. Although El Salvador requested assistance from the U.S. military to suppress conflict within its borders, no evidence linked Nicaragua to the armed conflict. 125 See id. ¶¶ 230, 233. Allegedly assisting armed groups did not constitute an armed attack, and states do not possess a right to collective self-defense without an established armed attack. 126See id. ¶ 211. Further, the U.S. could not prove the necessity of intervention, or the need for intervention to deter or defeat an attack in the absence of any non-forceful options, because no attack existed. 127See id. ¶¶ 194, 237. The U.S.’s response was disproportionate because El Salvador neither faced nor imminently feared an armed attack by Nicaragua. 128See id. Finally, the U.S.’s assistance was unlawful because El Salvador was not the victim of an armed attack, and “[t]here is no rule in customary international law permitting another State to exercise the right of collective self-defen[s]e on the basis of its own assessment of the situation.” 129See id. ¶¶ 194–95. Rather, the U.S.’s decision to aid Contra forces was based on international policy, not international law, and violated every sovereign state’s “fundamental right to choose and implement its own political, economic and social systems.” 130See id. ¶¶ 207–08, 258.Nicaragua established that the direct or indirect use of military action to support subversive activities in another State defies international law and cannot be justified under the principle of collective self-defense. 131See id. ¶¶ 207–08, 227, 238.

More recently, in 2004, the International Court of Justice issued an advisory opinion concerning Israel’s construction of a wall in occupied Palestinian territory as a means of self-defense and, in particular, the Court addressed the proportionality of Israel’s response. 132See generally Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J 883, ¶ 136 (July 9) [hereinafter Construction of a Wall]. The Court applied Nicaragua and held that Israel should terminate the construction of the wall. 133See id. ¶¶ 150–51. The right of self-defense failed to encompass the construction of the wall because it was not the only means to safeguard Israel against attacks and therefore, not necessary to achieve security objectives. 134See id. ¶¶ 137–38, 140. Further, Israel could not rely on the right of self-defense to justify usurping the Palestinian’s right to self-determination within occupied Palestinian territory or their liberty of movement guaranteed by the International Covenant on Civil and Political Rights. 135See id. ¶¶ 127, 136. Self-defense, as sanctioned by the U.N. Charter, permits a response that is necessary and proportional, and Israel’s infringement on Palestinians’ basic human rights was far from proportional. 136See id. ¶ 136.

Similarly, the international legal system questioned the legality of an armed response to the terrorist attacks of September 11, 2001. 137See van der Vyver, Ius Contra Bellum, supra note 110, at 4, 11–14 (discussing that the terrorist attacks should not have been considered part of an armed conflict). President George W. Bush proclaimed the attacks as an act of war, and U.N. Security Council Resolution 1368 recognized the right to individual or collective self-defense against Afghanistan because the country allowed Al-Qaeda to flourish in its territorial bounds. 138Id. at 11, 14. In contrast, the legal basis for extending U.S. military intervention to Iraq in 2003 could not be justified under the principle of self-defense. 139See id. at 15–16, 22 (discussing that the 2003 war in Iraq was an act of aggression that violated international law). Iraq had not launched an armed attack against the U.S., and the dictatorial nature of Saddam Hussein’s regime was a matter of governance under the control of the sovereign State of Iraq. 140See id. at 15–16 (discussing the first Gulf war in Iraq; the same reasoning can be applied to the 2003 war in Iraq).

C. Self-Defense Against ISIS

To combat ISIS, the U.S.-led coalition of more than fifty States continues to launch airstrikes and aid in training Iraqi military forces and Syrian rebel groups on the ground. 141Payne, supra note 88; Airstrikes Continue Against ISIL in Syria, Iraq, supra note 93. As thousands of citizens from all over the world join the jihadist movement and attacks by the terrorist group persist, there is no doubt that the spread of ISIS poses a threat to the entire world. 142See DePetris, supra note 8 (noting that ISIS is the number one deadliest threat worldwide); McLaughlin, supra note 102 (noting that ISIS executed Ethiopian Christians in April 2015); Francescani & Windrem, supra note 5 (noting that ISIS maintained 12,000 foreign fighters in Syria as of October 2014). A cross-section of the world has united to suppress the movement and defeat ISIS. 143See Payne, supra note 88 (discussing the countries that joined the coalition to fight ISIS). Despite the U.N. Security Council’s adoption of Resolution 2170 condemning ISIS’ attacks against civilians on the basis of ethnicity and religious beliefs, the Security Council did not sanction armed intervention as the mechanism for bringing the perpetrators to justice. 144See S.C. Res. 2170, supra note 67, ¶ 6 (States may take “all measures as may be necessary and appropriate in accordance with their obligations under international law to counter incitement.”); Press Release, Security Council, Security Council Adopts Resolution 2170 (2014) Condemning Gross, Widespread Abuse of Human Rights by Extremist Groups in Iraq, Syria, U.N. Press Release SC/11520 (Aug. 14, 2014), http://www.un.org/press/en/2014/sc11520.doc.htm. Russian representative, Petr V. Illichev, stated, “[this resolution] should not be taken as approval for military action.” Further, Syrian representative, Bashar Ja’afari, “called on the [Security] Council, in the future, to consult with his country and others in the region in order to make its action against terrorism effective.” Id. Therefore, since the U.N. has not sanctioned armed intervention in Iraq and Syria, the principles of self-defense remain the only legal mode of intervention left standing. 145See U.N. Charter arts. 42, 51 (stating that without Security Council sanctioned intervention, the only exception to the prohibition against the use of force left in Article 51 of the U.N. Charter is self-defense.). Collective self-defense justifies States’ resort to armed intervention in Iraq, but fails to justify necessary armed intervention in Syria to stop ISIS. 146Arimatsu & Schmitt, supra note 88 (noting that intervention in Syria is illegal under the principle of collective self-defense).

In Iraq, collective self-defense justifies States’ armed intervention. 147See id. (applying the principle of collective self-defense to justify armed intervention in Iraq). ISIS’ actions pose an imminent threat to Iraq because the terrorist organization continues to attack schools and hospitals, kill civilians, and displace minorities. 148See S.C. Res. 2170, supra note 67, ¶ 2 (discussing the deplorable acts committed by ISIS that would constitute an imminent threat). As of April 2015, ISIS controlled nearly one-third of Iraq, including Iraq’s second largest city, Mosul, and had imposed harsh Shari’a law in its territory. 149Michaels, supra note 65; Orlando Crowcroft, ISIS: Inside the Struggling Islamic State Economy in Iraq and Syria, Int’l Bus. Times (Apr. 11, 2015), http://www.ibtimes.co.uk/isis-inside-struggling-islamic-state-economy-iraq-syria-1495726. The militants kidnap and detain civilians, persecute individuals for their religious beliefs, destroy cultural property, and obstruct the exercise of economic, political, and social rights. 150See S.C. Res. 2170, supra note 67, ¶ 2. Some have argued that the Iraqi government is entitled to exercise the right of self-defense to stop the armed terrorists and that Iraq’s right to self-defense allows it to seek assistance from other States to successfully defeat ISIS. 151See Letter Dated Sept. 23, 2014 from the Permanent Rep. of the U.S. to the U.N. Addressed to the Secretary-General, U.N. Doc. S/2014/695 (Sept. 23, 2014) [hereinafter Letter to the United Nations], http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2014_695.pdf (illustrating that Iraq is entitled to self-defense because the U.S. representative to the U.N. seeks to extend Iraq’s right to self-defense to permit armed intervention in Syria). Under Nicaragua, a State can solicit aid from another State to act in collective self-defense against an armed attack, so long as it complies with the principles of necessity and proportionality. 152See generally Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J 14, ¶¶ 232, 237–38 (June 27). Iraq expressly called upon the U.S. to act in collective self-defense and lead international efforts to stop the Islamic militants. 153Letter to the United Nations, supra note 151. Arguably, the measures taken by the Iraqi military to fight ISIS on the ground and the airstrikes led by various States are necessary to defeat ISIS and are not exceedingly aggressive. 154See Payne, supra note 88 (discussing the measures taken by the coalition to fight ISIS as well as the training Iraqi and Kurdish forces receive to better combat ISIS); Iraqi Soldiers Retake Key Oil Refinery from ISIS Militants, Fox News (Apr. 19, 2015), http://www.foxnews.com/world/2015/04/19/iraqi-soldiers-retake-key-refinery-amid-larger-battle-against-isis/ (illustrating that Iraqi troops fight ISIS to reclaim their territory); Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J 883, ¶¶ 136–37 (July 9) (discussing excessive measures of self-defense to illustrate the measures taken by Iraq and the U.S.-led coalition are not excessive). Dissimilar to Israel’s construction of a wall on Palestinian territory, Iraq’s actions could reasonably constitute a proportional response to the mass atrocities committed by ISIS because the use of airstrikes and ground troops is arguably the only means to safeguard civilians from persecution as well as death. 155See Construction of a Wall, 2004 I.C.J at 131, ¶¶ 136–37 (showing that Israel’s use of self-defense against Palestine was not a proportional response). Therefore, Iraq’s exercise of self-defense and the legality of the U.S.-led coalition in Iraq are arguably consistent with current international law. 156See Letter to the United Nations, supra note 151 (discussing Iraq’s right to self-defense). See generally Nicar. v. U.S., 1986 I.C.J at 108–09, ¶¶ 207–08; Construction of a Wall, 2004 I.C.J. at 192-94, ¶¶ 136–38.

However, armed intervention in Syria is more difficult to legally justify. 157See Miller & DeYoung, supra note 90 (discussing that President Obama stretches legal policy to justify intervention in Syria). The government of Syria should be entitled to fight ISIS because the group indiscriminately executes its nationals and seized control of about one-third of the country, but the U.S. and other States cannot legally conduct airstrikes in Syria for four reasons. 158See Nicar. v. U.S., 1986 I.C.J at 123, ¶ 238 (discussing the parameters of the right to collective self-defense). First, the U.S. seeks to defend armed intervention in Syria based on a continuation of its right of self-defense against Al-Qaeda under the U.N. Resolution 1368, and U.S. officials maintain that the targets in Syria are Al-Qaeda targets. 159See Sengupta & Savage, supra note 89 (discussing the U.S. right to intervene militarily in Syria); S.C. Res. 1368, supra note 112, ¶ 3 (recognizing a right to self-defense against non-state actors). Yet only eight out of twenty-two air strikes target the Khorosan group, an obscure organization associated with Al-Qaeda. 160Miller & DeYoung, supra note 90. ISIS is not affiliated with Al-Qaeda, as both the groups appear to have distinct and varying objectives. 161See Tim Lister, Al Qaeda Battles ISIS for Global Jihadist Leadership, CNN (Sept. 10, 2014, 8:53 AM), http://www.cnn.com/2014/09/10/world/meast/isis-vs-al-qaeda/. Rather, ISIS and Al-Qaeda appear to operate independently and battle for global jihadist leadership. 162See id. The U.S.’s justification of continued self-defense against Al-Qaeda should not be read to extend to the right to conduct airstrikes in Syria against ISIS. 163See id.; Miller & DeYoung, supra note 90. Similar to the use of U.S. military force in Iraq in 2003, the U.S. aims to justify its actions under international law on the basis of Resolution 1386 and Authorizations to Use Military Force in Afghanistan and Iraq, but the most legally justified means of intervention would require new approval. 164See S.C. Res. 1368, supra 112 (discussing the right of self-defense against Al-Qaeda; Miller & DeYoung, supra note 90; supra Part III.B. (discussing military intervention in Iraq in 2003). However, in the past, U.N. Security Council approval has been difficult to obtain on account of the permanent five veto powers. 165See Johan D. van der Vyver, Military Intervention in Syria: The American, British and French Alternatives and the Russian Option, 3 De Jure 36, 44 (2015) [hereinafter van der Vyver, Military Intervention in Syria] (discussing the emergency mechanism argument, which argues that the veto power of the permanent five members of the Security Council paralyze international action). All permanent members of the Security Council must agree to sanction armed intervention and the five members are unlikely to reach a consensus. 166See id. (discussing that the Security Council is immobilized by the veto power). The veto power stifles necessary action to suppress gross human rights violations and large-scale threats to world peace. 167See id.

Second, the British Parliament authorized airstrikes in Iraq, yet did not authorize airstrikes in Syria, highlighting the legal uncertainty that surrounds armed intervention in Syria. 168See Smith, Mills & Page, supra note 94, at 13–14 (“[T]his motion does not endorse UK air strikes in Syria as part of this campaign and any proposal to do so would be subject to a separate vote in Parliament.”); Arimatsu & Schmitt, supra note 88 (discussing the legal issues surrounding armed intervention in Syria). Unlike the Iraqi government, the Syrian government never invited the U.S. or any other State, which is required under Nicaragua to invoke collective self-defense, to assist Syria in fighting ISIS. 169See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J 14, ¶¶ 165, 196, 199 (June 27); U.N. Charter art. 51; Arimatsu & Schmitt, supra note 88 (“Syria has not expressly consented to military operations against Isis on its territory.”). Syria’s inaction in response to the U.S.’s notice prior to conducting airstrikes can neither invoke collective self-defense nor be considered consent from the Syrian government. 170See Mariam Karouny & Laila Bassam, Syria Says U.S. Informed it of Planned Attack on Islamists Hours Before Airstrikes, Gazette (Sept. 23, 2014, 8:45 AM), http://thegazette.com/subject/news/nation/syria-says-us-informed-it-of-planned-attack-on-islamists-hours-before-airstrikes-20140923; Corn & Blank, supra note 105, at 100–01 (discussing the principle of collective self-defense). The U.S. needs express consent from Syria to intervene militarily. 171See Arimatsu & Schmitt, supra note 88 (discussing the controversial aspects of implied consent). See also Corn & Blank, supra note 105, at 99 (discussing the right to consent).

Third, the ability to act in collective self-defense in Iraq is not a blanket justification for armed intervention in Syria. 172See Nicar. v. U.S., 1986 I.C.J. at 123, ¶ 238; Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. Rep. at 136, ¶¶ 138–39 (July 9) (limiting the principle of self-defense).Nicaragua holds that allegedly assisting armed groups does not establish an armed attack, thus suggesting that any assistance rendered by ISIS in Syria to ISIS in Iraq does not necessarily rise to the level of an armed attack against Iraq. 173See Nicar. v. U.S., 1986 I.C.J. at 119, ¶ 230. Yet, even if other States could prove either an armed attack by ISIS in Syria on Iraq or an imminent threat of an armed attack, action in collective self-defense in Iraq against the territorial sovereignty of Syria is limited. 174See id. ¶¶ 251–52. Under the guidelines set forth in Construction of a Wall, the means of collective self-defense exercised on behalf of Iraq must be necessary to both safeguard the country against ISIS and the only means to ensure ISIS is unable to conduct future attacks on Iraq. 175Construction of a Wall, 2004 I.C.J. at 194–95, ¶ 140. For example, States could prevent trans-border attacks, but armed intervention could not aim to destroy all ISIS targets in Syria. 176See Josh Rogin, White House Has No International Legal Justifications for Hitting ISIS in Syria, Daily Beast (Sept. 23, 2014), http://www.thedailybeast.com/articles/2014/09/15/white-house-has-no-international-legal-justification-for-hitting-isis-in-syria.html (discussing the justifications of actions to protect Iraq and destroy ISIS). Lastly, although ISIS threatens the U.S. and States worldwide, anticipatory self-defense cannot legally justify intervention in Syria 177Arimatsu & Schmitt, supra note 88 (advancing that anticipatory self-defense does not justify intervention in Syria to fight ISIS). because states cannot demonstrate an “instant, overwhelming” necessity to act in self-defense, or an instant necessity of armed intervention without any time for deliberation. 178See Corn & Blank, supra note 105, at 101. As a result, the principle of self-defense bars necessary armed intervention in Syria to stop ISIS. 179See U.N. Charter art. 42, ¶ 1 (discussing actions that the Security Council can take); U.N. Charter art. 51 (discussing the self-defense exception to the prohibition on armed intervention). This Comment argues that neither Security Council intervention nor self-defense apply to the ISIS situation in Syria.

IV. Human Rights, Humanitarian Intervention and the Responsibility to Protect

The following Part will discuss the importance of human rights law, humanitarian intervention and the Responsibility to Protect (R2P) doctrine. First, Part IV.A will outline the importance of human rights in the international legal system. Then, Part IV.B describes the theory of humanitarian intervention. Lastly, Part IV.C discusses the U.N.’s adoption of the R2P doctrine, which serves as the springboard for the “unwilling or unable” rationale as a justification to armed intervention in Syria. However, Part IV concludes the legal divide in international law derails the fight to stop ISIS.

A. Human Rights

The Preamble to the U.N. Charter affirms the international legal system’s commitment to protecting human rights. 180See U.N. Charter pmbl. The Charter begins: “We the Peoples of the United Nations [d]etermined to save succeeding generations from the scourge of war . . . and to affirm our faith in fundamental human rights . . . .” 181Id. In advancement of its mission to prevent war and protect human rights, the U.N. adopted several human rights conventions and doctrines. 182See generally G.A. Res. 217 (III) A (Dec. 10, 1948) (laying out a common standard for the protection of human rights); International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Exec. Rep. 102-23, 999 U.N.T.S. 171 [hereinafter ICCPR] (stating that there should be no restriction on any of the fundamental human rights recognized by parties to the covenant). In 1948, the Universal Declaration of Human Rights afforded legal recognition to the rights of individuals worldwide. 183See generally G.A. Res. 217 (III) A, supra note 182. The Declaration’s thirty articles advanced the principle that all humans universally possess inalienable rights. 184See generally id. The first article states: “All human beings are born free in dignity and rights.” 185Id. art. 1. “They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood.” 186Id. The Declaration also proclaims that every human being worldwide is born free and equal. 187Id. Everyone is entitled to the universal rights set forth in the Declaration, regardless of “race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” 188Id. art. 2. Principally, “everyone has the right to life, liberty and security of person.” 189Id. art. 3. The U.N.’s desire to prevent religious and political violence is demonstrated in the Declaration’s first three articles. 190See id. arts. 1–3 (listing principles to promote equality and ensure religious and political freedom). The international community seeks to use universal human rights as a central mechanism in safeguarding peace in the world legal system. 191See id. pmbl. (noting that human rights will promote friendly relations, co-operation, and social progress between nations). Humans have a right to life and, moreover, the right to live securely within their territory of origin. 192Id. arts. 2–3.

To ensure the implementation of principles contained in the Universal Declaration of Human Rights, the U.N. adopted the International Covenant of Civil and Political Rights. 193See G.A. Res. 2200 (XXI) A (Dec. 16, 1966). The Covenant requires nations to provide their inhabitants with civil and political freedom. 194Id. pmbl. Article I provides the right to self-determination, which belongs to people bound together by a common culture, religion or language in a specific State, to all people. 195Id. arts. 1, 173. Self-determination entitles individuals to associate with a particular group. 196See id. arts. 1, 178 (discussing self-determination and the freedom to associate with others). The right to self-determination refers to a cultural, economic, social, or political freedom, but the right is not absolute. 197Id. arts. 1, 27. See generally Secession of Quebec, [1998] 2 S.C.R. 217 (Can.) (barring an ethnic or cultural group from seceding from Canada on the basis of self-determination). The Covenant opposes religious or cultural rights that affront basic human rights, and self-determination bars an ethnic, religious or cultural group from seeking independence within the territory of their State of residence. 198See ICCPR, supra note 182, arts. 1, 173.

ISIS’ actions clearly violate numerous human rights. Although the Islamic State rationalizes their wrongdoings as a holy war in the name of Islam, the terrorist group relies on a warped view of the Quran’s teachings to justify violent extremism. 199See Shawki Allam, Terrorists and Their Quaranic Delusions, Wall Street J. (Apr. 9, 2015, 6:57 PM), http://www.wsj.com/articles/terrorists-and-their-quranic-delusions-1428620268 (discussing how some terrorists rely on an warped interpretation of the Quran to promote violence). Instead, ISIS strips human beings of a life free of dignity and rights. 200See S.C. Res. 2170, supra note 67, ¶ 1 (discussing ISIS’ deplorable acts). The terrorist organization acts with disregard for individuals’ right to life, liberty and security of person. 201See id. ¶ 2 (condemning ISIS violent acts). ISIS executes innocent civilians, rapes women, and recruits children to fight as soldiers in the Jihad. 202Id. Civilians living in conquered territory under the strict rule of ISIS and Shari’a law risk being ripped from their families and living without food or electricity. 203Kenyon, supra note 69. The fear imposed by ISIS extends beyond its territory; ISIS beheads soldiers, reporters, and aid workers, recording the horror for the world to see. 204Tim Hume, The Impact of ISIS Beheadings: Is Terror Propaganda Brutalizing Us All?, CNN (Apr. 20, 2015, 9:26 PM), http://www.cnn.com/2015/04/20/middleeast/isis-beheadings-psychological-impact/. The militants’ tactical use of intimidation terrifies the world. 205See King Abdullah II on ISIS Intimidation Tactics, CNN (Feb. 27, 2015, 3:16 PM), http://www.cnn.com/videos/tv/2015/02/27/exp-gps-abdullah-sot-pilot-video.cnn (discussing how the world is terrified by ISIS militants). ISIS demanded the release of a convicted terrorist on death row in Jordan for the liberation of a captive Jordanian pilot, but the terrorists had no intention to make good on the exchange. 206Christopher Dickey & Shane Harris, Barbarian Burn Pilot Alive: ISIS Will Never Release a Living Prisoner, Daily Beast (Feb. 3, 2015, 3:35 PM), http://www.thedailybeast.com/articles/2015/02/03/isis-burns-jordanian-pilot-alive.html. Instead, with the world’s attention at their fingertips, ISIS committed one of their most egregious human rights offenses of all, burning the pilot to death in a locked cage. 207See id.

In addition, ISIS violates human being’s right to self-determination. 208See ICCPR, supra note 182, art. 1 (discussing the right to self-determination, which allows all people to freely determine their political, economic, social and cultural development). All people bound by a common culture, religion or language in a specific territory, whether Yazidis, Iraqi Christians or Shiite Muslims, possess the freedom of association. 209See id. arts. 22, 27; see also Berlinger, supra note 3 (discussing the various minorities groups in Iraq, their religious beliefs and the areas that they live in throughout Iraq). ISIS persecutes and kills individuals on the basis of their national, cultural, ethnic, religious, and political affiliation. 210See S.C. Res. 2170, supra note 67, ¶¶ 12–13 (condemning ISIS for its violent, extremist ideology and its gross systematic human rights abuses). The imposition of repressive Shari’a law displaces civil and political rights. 211See Lister, supra note 6 (discussing ISIS’ imposition of harsh Shari’a law in the towns that it controls); see generally ICCPR, supra note 182 (discussing the rights to self-determination, freedom of association, and cultural, religious and linguistic freedom). The militants wish to destroy cultural property, including shrines and graves that belong to non-Sunni Muslims. 212Moore, supra note 69. Iraqi and Syrian nationals incarcerated in their home States under ISIS’s reign must pledge loyalty to the terrorists as soldiers of Islam by displaying only the black and white ISIS flag. 213Id. ISIS’ attempts to prevent individuals from practicing their own religion and culture are in contravention of the Covenant on Civil and Political Rights and the right to self-determination. 214See ICCPR, supra note 182, arts. 1, 27 (discussing the right to self-determination); see generally Secession of Quebec [1998], 2 S.C.R. 217 (Can.) (holding that an ethnic or cultural group could not secede from Canada on the basis of self-determination); S.C.R. 2170, supra note 67, ¶ 1 (condemning ISIS’ gross, systematic, and widespread abuses of human rights).

B. Humanitarian Intervention

The U.N. Charter and human rights law indicate that the enforcement of human rights is imperative to international peace and security. 215See generally U.N. Charter; ICCPR, supra note 182, pmbl. As a result, a new viewpoint—humanitarian intervention—is gaining support in the international legal system. 216See Ian Hurd, Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World, 25 Ethics & Int’l Aff. 293, 293 (2011) (discussing whether humanitarian intervention is legal). Humanitarian intervention allows a State to intervene in suppressing the human rights violations waged by another State against its own citizens when the intervening State seeks to abolish the repressive State’s regime and institute democracy. 217van der Vyver, Military Intervention in Syria, supra note 165, at 6, 11. If a State severely subjugates human life and continuously commits human rights violations, then the international community can intervene collectively. 218Id. at 10. The theory could earn a place as a legally recognizable form of armed intervention alongside U.N. Security Council sanctioned intervention and self-defense. 219Hurd, supra note 216.

Legal scholars present three justifications for humanitarian intervention. 220van der Vyver, Military Intervention in Syria, supra note 165, at 8. The first justification is the literalist approach, which focuses on the language of the U.N. Charter. 221Id. at 8–9. Literalists recognize that Article 2(4) prohibits the use of force against States, but argue that the prohibition seeks to prevent armed intervention that infringes a State’s territorial sovereignty and political independence. 222Id. Therefore, humanitarian intervention is permissible within the language of the text because it does not seek to change a State’s territorial borders or political structure. 223Id. Humanitarian intervention instead aims to liberate nationals from the repressive rule of the existing regime. 224Id. at 11. The second justification is the flexible approach, which advances the idea that together the U.N. Charter’s prohibition of the threat or use of force and the organization’s commitment to human rights legalize humanitarian intervention. 225Id. at 9. Lastly, the emergency approach holds that the veto powers of the five permanent members of the Security Council immobilize necessary armed intervention, which prevents the U.N. from fulfilling its obligation to maintain international peace and security. 226Id. Indeed, the permanent members often fail to reach a consensus. 227Id. However, when it comes to humanitarian intervention, uncertainty in the face of an international emergency diminishes, thus allowing the Security Council to properly serve its role. 228See id. (discussing the emergency mechanism argument to justify humanitarian intervention). The three theories provide different routes to one conclusion—that humanitarian intervention is a logical extension of the U.N. Charter and human rights principles. 229See id. at 8–9 (discussing the three theories of humanitarian intervention).

In 1989, the Security Council arguably approved humanitarian intervention. 230See van der Vyver, Ius Contra Bellum, supra note 110, at 9–11. Belgium and Germany relied on humanitarian intervention to legally justify NATO-led air strikes to suppress the ethnic cleansing of the people of Kosovo in Serbia. 231Id. at 9–10. After the armed intervention, the Security Council sanctioned NATO’s actions through the approval of the Kosovo settlement, which indicated that the U.N. sought to permit collective intervention beyond the veto-bound Security Council in situations of grave danger to human life. 232Id. at 10–11. Although military intervention in Serbia failed to qualify as an armed response in self-defense, the Security Council granted a “waiver of the illegality” because stopping at the U.N Charter’s prohibition on the use of force would ignore developments in human rights law and the common practice of intervention. 233Hurd, supra note 216, at 301. The Kosovo settlement suggests that the rule of law is not absolute; human rights values can overcome the importance of strictly adhering to the principles of the U.N. Charter. 234See id. (discussing the deviation from the black-letter prohibition on the use of force in the U.N. Charter with respect to Kosovo).

Although the Kosovo settlement advanced humanitarian intervention, the legality of the theory is still uncertain. 235See generally id. An argument in favor of humanitarian intervention claims that armed intervention is morally imperative to respond to severe human rights violations. 236Id. at 301. The opposing argument views humanitarian intervention as a violation of express international law. 237Id. (discussing the view that humanitarian intervention is illegal). In 2013, Great Britain attempted to rely on humanitarian intervention to justify intervening militarily in Syria to stop the government from using chemical weapons against its own nationals. 238van der Vyver, Military Intervention in Syria, supra note 165, at 2, 6. Great Britain argued that the use of chemical weapons is strictly prohibited as a matter of customary international law and a gross violation of human rights, which justifies humanitarian intervention. 239Id. at 2–3. However, a common understanding of the theory mandates the intervening State to suppress human rights violations and liberate nationals from repressive governmental rule through the institution of a democratic regime. 240Id. at 11. Under this definition, Great Britain was required to topple the Syrian government and institute a democratic regime in its place; Great Britain’s sole aim, however, was to end human rights violations. 241Id. Great Britain was on the right track by advancing the theory of humanitarian intervention to justify an armed attack against Syria, but international law ultimately extinguished British military intervention. 242See id. at 20–21. Therefore, Great Britain forwent armed intervention, and the unstable environment in Syria persisted. 243See generally id. (noting that there was no military intervention to prevent Syria from using chemical weapons against its people); Greg Botelho, What’s Happening in the Middle East and Why it Matters, CNN (Jan. 24, 2015, 9:44 AM), http://www.cnn.com/2015/01/23/middleeast/middle-east-country-breakdown/ (discussing the unstable environment in Syria).

Humanitarian intervention pushes the bounds of armed intervention legalized by the U.N. Charter, but it fails to address the threat of ISIS in Syria for two reasons. 244See generally Hurd, supra note 216, at 307–11. First, the theory of humanitarian intervention applies to States. 245Id. at 307. Even though ISIS commits gross human rights violations that may rise to the level of crimes against humanity, ISIS is a non-state terrorist organization operating independently within the bounds of Iraq and Syria; its actions are not attributable to either State. 246See S.C. Res. 2170, supra note 67, ¶ 1 (reaffirming the independence and sovereignty of Syria and Iraq, and condemning the violent acts committed by ISIS); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J Rep. 14, ¶ 277 (June 27) (discussing self-defense and the attributability of an attack to a nation state); Lucy Fisher, Isis and the Global Rise of Non-State Actors, NewStatesman (June 23, 2014, 13:48 PM), http://www.newstatesman.com/international-politics/2014/06/isis-and-global-rise-non-state-actors. Second, the theory of humanitarian intervention requires States participating in the fight against ISIS to overthrow the existing repressive regime and institute democracy. 247See van der Vyver, Military Intervention in Syria, supra note 165, at 6, 11 (discussing that ISIS is a non-state actor). Although States desire to end the human rights violations committed by the terrorists, States do not intend to overthrow President Assad’s regime in Syria. 248See Leslie H. Gelb, Face It Obama. Without Assad, You’ve Got No Strategy in Syria, Daily Beast (Jan. 22, 2015, 5:55 AM), http://www.thedailybeast.com/articles/2015/01/22/face-it-obama-without-assad-you-ve-got-no-strategy-in-syria.html (discussing that Obama needs to work with Assad to fight ISIS); Chomsky on the Middle East, VOR America (Jan. 21, 2014), https://www.youtube.com/watch?v=vH2inKmzFCc. But see Ian Sinclair, Is Noam Chomsky Right That the US Doesn’t Want Regime Change in Syria?, Huffington Post (Dec. 3, 2014), http://www.huffingtonpost.co.uk/ian-sinclair/noam-chomsky-syria_b_4947200.html (discussing that several states, including the United States, have expressed a desire to remove President Assad). A U.S. House Armed Services member remarked, “getting rid of Assad is ‘part of a broader effort, but in the immediate future we have to deal with the [ISIS] threat.’” 249Julian Pecquet, House Votes to Arm Syrian Rebels with Eye Toward Assad, Al-Monitor (Sept. 17, 2014), http://www.al-monitor.com/pulse/originals/2014/09/syria-vote-isis-congress-us-arm-rebels-obama.html#. The action to combat ISIS is neither action against State actors, nor is it aimed to overthrow the existing Syrian government, rendering the theory of humanitarian intervention a non-viable justification to infringing on Syria’s territorial boundaries. 250See Fisher, supra note 113 (discussing that ISIS is a non-state actor); Gelb, supra note 248 (discussing that the U.S. does not aim to overthrow Assad); van der Vyver, Military Intervention in Syria, supra note 165, at 6, 11 (discussing the elements of the theory of humanitarian intervention).

C. Responsibility to Protect and the Unwilling or Unable Rationale

The U.N. continued to promote human rights through its adoption of the R2P doctrine following the 2005 World Summit. 251U.N. Secretary-General, Implementing the Responsibility to Protect, ¶ 1, U.N. Doc. A/63/677 (Jan. 12, 2009). The doctrine centers on the desire to resolve the important contradiction between humanitarian needs and the principle of state sovereignty. 252Austl. Red Cross, International Humanitarian Law and the Responsibility to Protect: A Handbook 14 (2011), http://www.redcross.org.au/files/IHL__R2P_responsibility-to-protect.pdf. R2P derives its authority, at least in part, from international humanitarian law, the Convention for the Prevention and Punishment of Genocide, and the Rome Statute of the ICC. 253Id. at 5. If a population suffers serious harm and a State is unwilling or unable to halt or avert the harm, the international community bears the responsibility to protect that harmed population. 254Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at VIII. R2P permits armed intervention in extreme circumstances that “shock the conscience of mankind, or which present a danger to international security.” 255Id. at 31. Additionally, the doctrine sets out six criteria to clarify when armed intervention is appropriate: right authority, large-scale loss of life or large-scale ethnic cleansing, the right humanitarian intention, a last resort measure, the minimum force necessary to achieve the object, and a reasonable chance of success. 256See id. at 32–37. The R2P doctrine seeks to eliminate the inability to reach a consensus on how to end a humanitarian crisis before the loss of numerous innocent lives. 257See id. at 9 (discussing the debate over humanitarian intervention and the need to define a right to intervention).

R2P operates as a valuable starting point; however, the common perception that the doctrine legitimizes the theory of humanitarian intervention is a misperception. 258See Peter Stockburger, Emerging Voices: Is The R2P Doctrine the Greatest Marketing Campaign International Laws Has Ever Seen?, Opinio Juris (Aug. 23, 2013, 3:30 PM), http://opiniojuris.org/2013/08/23/emerging-voices-is-the-r2p-doctrine-is-the-greatest-marketing-campaign-international-law-has-ever-seen/ (discussing the limitations U.N. Secretary General Kofi Annan placed on the R2P doctrine). The R2P doctrine does not redefine sovereignty or the bounds of legal armed intervention; instead, the doctrine simply re-packages existing State obligations. 259See id. (discussing inaction in Syria as evidence of the R2P doctrine’s failures). First and foremost, the intervening State is required to possess the right authority, meaning the State must seek authorization from the Security Council. 260Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at XII. If the Security Council rejects a proposal or fails to address a situation within a reasonable amount of time, then either the General Assembly can consider the matter during an Emergency Special Session or regional and sub-regional organizations can act, subject to Security Council authorization. 261Id. at XIII. Either way, authorization is required. 262Id. at XII-XIII. Second, in 2011, the Security Council authorized U.N. Member States to “take all necessary measures to protect civilians and civilian populated areas under the threat of attack in Libya,” which is proffered as a defining moment in the development of the R2P doctrine and legal humanitarian intervention. 263Stockburger, supra note 258; S.C. Res. 1973, ¶ 4 (Mar. 17, 2011). Yet, the Security Council’s resolution was not novel; it invoked pre-existing authority under the U.N. Charter to carry out its mandate of regulating international peace and security through Member States. 264Stockburger, supra note 258. The implementation of the R2P doctrine remains consistent with current international laws, as States are not attempting to employ the doctrine at a local level to preempt human rights violations. 265Id.

The enforcement of R2P principles has two inherent flaws. 266Robert W. Murray & Alasdair Mckay, Introduction to Into the Eleventh Hour: R2P, Syria and Humanitarianism in Crisis 16 (E-international Relations ed., 2014) (discussing the difficulty of R2P enforcement in the Middle East). First, many regional players default, especially in the Middle East and North Africa. 267See id. at 15 (discussing the failure of the Middle East and North African region to enforce R2P in the Syrian civil war). Second, although R2P permits armed intervention to halt or avert gross human rights violations, the doctrine does not represent any new legal norms or obligations in practice. 268Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at VIII; see Stockburger, supra note 258 (arguing that the R2P doctrine has not created any new legal obligations). For example, the international community’s inaction in Syria illustrates the limits of the R2P doctrine. 269Stockburger, supra note 258. The doctrine should have stopped President Assad’s use of chemical weapons against Syrian nationals. 270See van der Vyver, Military Intervention in Syria, supra note 165, at 1–2. Yet, the paralysis of the Security Council prevented the U.S., Britain, and France from intervening. 271Id. at 2.

Regardless, the U.S. channels the R2P doctrine’s express language to legalize armed intervention in Syria under the “unwilling or unable” rationale:

Where a population is suffering, as a result of internal war, insurgency, repression or state failure, and the state is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect. 272Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at XI; see also Letter to the United Nations, supra note 151 (discussing the “unwilling or unable” theory).

The United States permanent representative to the U.N., Samantha J. Power, stated in her letter to Secretary General Ban Ki-moon, “[t]he Syrian regime has shown that it cannot and will not confront [ISIS] safe havens effectively itself.” 273Letter to the United Nations, supra note 151. Power argued that if “the government of the State where a threat is located is unwilling or unable to prevent the use of its territory for such attacks,” which is the case in Syria, then States must be able to defend themselves. 274Id. The “unwilling or unable” rationale expands upon traditional humanitarian intervention, allowing armed intervention to eliminate a threat in a State unwilling or unable to prevent the use of its territory to launch an attack. 275See generally id. (advancing the “unwilling or unable” rationale to justify U.S. actions taken to combat ISIS).

Despite the R2P doctrine’s aim to facilitate greater collaboration to stop mass atrocities, Islamic militant groups like ISIS persist. 276See Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at 61 (discussing how the R2P doctrine aims to facilitate greater collaboration amongst States); Ghosh, Why ISIL is Worse Than al-Qaeda, supra note 9 (discussing why ISIS is worse than any other terrorist group). ISIS directly jeopardizes the right to life of people in Iraq and Syria, and potentially the whole world. 277See S.C. Res. 2170, supra note 67, ¶ 2 (condemning ISIS’ human rights violations); Letter to the United Nations, supra note 151 (arguing ISIS poses a threat to the U.S. and to the entire world). The group commits acts that “shock the conscience of mankind” and “present a danger to international peace and security.” 278Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at 31; see S.C. Res. 2170, supra note 67, ¶ 2 (condemning ISIS’ human rights violations). For example, the organization burned a Jordanian hostage to death in a locked cage. 279Martin Chulov & Shiv Malik, Isis Video Shows Jordanian Hostage Being Burned to Death, Guardian (Feb. 3, 2015, 9:41 PM), http://www.theguardian.com/world/2015/feb/03/isis-video-jordanian-hostage-burdning-death-muadh-al-kasabeh. In the face of an enemy like ISIS, the international system cannot hesitate to stop terrorists, and States should not be forced to rely on unsettled rationales. The evolution of customary law evidences how legal armed intervention has moved beyond the bounds of the U.N. Charter, but clearer norms are needed to save thousands of lives.

V. The International Criminal Court

The following Part identifies another progressive international institution, the ICC. 280See generally Final Act of the U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court art. 5, July 17, 1998, 2187 U.N.T.S. 2004 [hereinafter Rome Statute]. This Part recognizes the progressive nature of the ICC, but notes that the threat of prosecution by the Court does not stall Islamic terrorists’ resort to international crimes and gross human rights violations. 281See generally Daniel Donovan, International Criminal Court: Successes and Failures, Int’l Pol’y Dig. (Mar. 23, 2012), http://www.internationalpolicydigest.org/2012/03/23/international-criminal-court-successes-and-failures-of-the-past-and-goals-for-the-future/ (discussing the failures of the ICC).

The ICC brings international law one step closer to suppressing crime. 282See About the Court, supra note 16 (declaring that the ICC is the first permanent court to help end the most serious crimes of concern in the international community). The ICC is founded on notions set by the Nuremberg trials, which first recognized individual liability for crimes against humanity. 283Nuremberg Human Rights Ctr. & Goethe Inst., supra note 13, at 1–3. The Nuremberg trials held Nazi officials responsible for crimes against humanity, crimes against peace, and war crimes; now, the ICC charges individuals with the most serious crimes against humanity. 284Id. at 4, 16. The ICC retains jurisdiction over States that have ratified the Rome Statute of the ICC, the Court’s founding document, and agreed to be bound by the decisions of the Court. 285Rome Statute, supra note 280, art. 12. Article 5 of the Rome Statute allows the Court to investigate and prosecute genocide, crimes against humanity, war crimes, and the crime of aggression. 286Id. art. 5. Further, Article 17 of the Rome Statute expressly states that if a case is being properly investigated or prosecuted by the State that has jurisdiction over the case, the Court cannot intervene. 287Id. art. 17. However, the Court can intervene if action taken by the State reflects unwillingness or inability to carry out the investigation or prosecution. 288Id. The Rome Statute, like R2P, suggests that a State’s failure to address breaches of international law within its borders entitles the Court to intervene. 289See generally id. arts. 12–14 (discussing when the Court can intervene); Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at VIII (discussing the “unwilling or unable” theory). To date, the Security Council has held important tribunals in the former Yugoslavia and Rwanda to condemn individual criminal actions. 290Rachel Lord, The Liability of Non-State Actors for Torture in Violation of International Humanitarian Law, 4 Melb. J. Int’l L. 113, 113, 133 (2003).

Although the Rome Statute permits prosecution of international crimes, many indicted criminals remain at large because the suspects have not yet been turned over to the Court for trial. 291See Donovan, supra note 281 (discussing the lack of U.N. participation in the ICC and the difficulty the Court faces in indicting criminals). Under Article 17, the ICC likely retains jurisdiction to prosecute ISIS in Syria because the Assad regime fails to actively combat the rebel terrorist group that operates within its territorial bounds. 292 See Rome Statute, supra note 280, art. 17 (discussing the admissibility of proceedings before the ICC). Because Syria is unwilling or unable to suppress ISIS, the ICC should have the right to prosecute the militants. 293See Ian Black, The US Strategy Against ISIS is Working—For Assad, Guardian (Nov. 6, 2014), http://www.theguardian.com/world/2014/nov/06/us-strategy-against-isis-working-well-assad-syria (discussing how Assad feels about the effectiveness of U.S. coalition forces). See also Rome Statute, supra note 280, art. 17 (discussing the admissibility of proceedings before the ICC). Furthermore, even though Iraq is working to eradicate the ISIS threat, the State’s weak government may be unable to adequately prosecute the perpetrators, permitting prosecution in the ICC. 294See Rome Statute, supra note 280, art. 17; see also Lister, supra note 6 (discussing Iraq’s weak political and judicial infrastructure). However, the strong language in the Rome Statute has generated little success because the Court lacks cooperation from States that ratified the statute and from three permanent members of the U.N. Security Council—China, Russia and the U.S—that are not signatories. 295Donovan, supra note 281. Further, terrorism is the largest threat worldwide, so ICC jurisdiction must expand to include the crime. 296Id. Because ISIS militants are willing to give their lives to their “religious” cause, fear of prosecution in an international court system with ineffective enforcement mechanisms will likely not deter them. 297See Ankit Panda, 35 Killed ISIS’ First Claimed Suicide Bombing in Afghanistan, Diplomat (Apr. 20, 2015), http://thediplomat.com/2015/04/35-killed-in-isis-first-claimed-suicide-bombing-in-afghanistan/ (noting that a group affiliated with the Taliban stated “people who carry out this act have nothing to do with Islam and Muslims” regarding the ISIS suicide bombing in Afghanistan). The ICC cannot put an end to ISIS’s mass atrocities and combat the terrorist group in its current form. 298See Donovan, supra note 281 (discussing the failures of the ICC).

VI. The International Legal System Must Evolve to Solve the ISIS Problem

The following Part recaps prior international treaties and doctrines discussed throughout this Comment, acknowledging the failure of the current international legal system to solve the ISIS problem. Further, Part VI details the immense threat posed by the Islamic militants, reflecting on the rise of ISIS and the resurgence of the Caliphate. This Part also discusses how new threats to international peace outpace the rigid text of the U.N. Charter. Therefore, Part VI argues that the Security Council must uphold its duty to maintain international peace and security by expressly recognizing armed intervention as a last resort to stop non-state actors that commit widespread human rights abuses.

Currently, U.N. Charter provisions, theories of legal intervention, and the ICC fail to adequately address the threat posed by ISIS. International laws inhibit armed intervention in Syria, which is necessary to successfully combat the terrorist organization. Under the U.N. Charter, airstrikes to stop the progression of ISIS throughout Iraq are legally justifiable under the principle of collective self-defense; however, the right to intervene in Syria poses a more difficult legal question. Further, the theory of humanitarian intervention, the R2P doctrine, and the “unwilling or unable rationale” are insufficient legal measures to justify armed intervention in Syria to end the ISIS threat. Lastly, the threat of prosecution in the ICC is failing to deter the rise of ISIS and cannot halt the mass atrocities underway. 299See supra Part V (discussing how the threat of prosecution by the Court does not stall Islamic terrorists).

However, the progression of human rights law, from the Declaration of Human Rights to the R2P doctrine and the establishment of the ICC, suggests that human rights are more important than State sovereignty. 300See Hurd, supra note 216, at 301–07 (discussing the three cases for legality of humanitarian intervention). The international legal system cannot resist the force of human rights; the system must evolve alongside the trend. 301See generally id. Terrorist organizations assemble in weaker States that lack the political, military, and governmental infrastructure to overcome threats like ISIS, such as in Syria and Iraq. 302See Thompson, supra note 12; see also Lister, supra note 6 (discussing the factors contributing to ISIS’s success). Therefore, if a State itself cannot combat mass atrocities, armed intervention needs a place in the international legal system to stop injustice, safeguard human rights, and, most importantly, protect the right to life. 303See Letter to the United Nations, supra note 151 (discussing Syria’s inability to combat ISIS and the need for military action in Syria).

ISIS emerged more aggressive and resilient than Al-Qaeda, the Taliban, and any previous group of Islamic militants, leaving armed intervention as the last viable resort to stop their terrorism. 304See Ghosh, Why ISIL is Worse Than al-Qaeda, supra note 9 (discussing why ISIS is worse than any other terrorist group). Defeating ISIS requires understanding that the organization’s emotional, cultural, and psychological views influence their decision-making process and cause them to resort to horrific crimes. 305Schmitt, supra note 19. ISIS rebranded Al-Qaeda’s ideologies and amplified the group’s approach. 306Ghosh, ISIS: A Short History, supra note 36. Fanatical Islamic religious beliefs, that are contrary to the true teachings of the Qur’an, ground ISIS’s movement. 307See Allam, supra note 199 (discussing that ISIS uses religion to cloak violent acts of extremism). The militants believe in the resurgence of Islamic Imperialism and the Muslim Caliphate, refusing to stop at anything until they unite the world under one supreme Islamic ruler. 308See supra Part I. Moreover, the group’s biggest hurdles, the U.S.’s and Western ideals, are obstacles the terrorists seek to remove at all costs. 309See Kurt Eichenwald, ISIS’s Enemy List: 10 Reasons the Islamic State is Doomed, Newsweek (Sept. 8, 2014, 1:01 PM), http://www.newsweek.com/2014/09/19/isiss-enemy-list-10-reasons-islamic-state-doomed-268953.html (stating that that the United States is ISIS’ primary enemy). Members’ social pathologies motivate them to give their lives willingly to the Jihadist war in the name of Allah. 310See Panda, supra note 297 (discussing the ISIS suicide bombing in Afghanistan). ISIS will stop at nothing in pursuit of its goals. 311See Madeline Grant, Reluctant ISIS Jihadists ‘Tied to Tanks to Force Them to Fight,’ Newsweek (Oct. 8, 2014, 1:00 PM), http://www.newsweek.com/reluctant-isis-jihadists-tied-tanks-force-them-fight-276228 (discussing how ISIS forces reluctant militants to fight). The terrorist group acts in complete disregard for humanitarian law, committing mass atrocities on a large scale. 312See S.C. Res. 2170, supra note 67, ¶ 2 (condemning the violent acts committed by ISIS). Legal recourse, including fear of prosecution in the ICC or the responsibility to protect the human population, has no hold on the militants. 313See supra Part V (discussing the failures of the ICC). The current international legal system cannot inhibit the armed intervention required to stop ISIS; thus, it must evolve to allow such action. 314See supra Parts III–V (discussing the failure of international law to solve the ISIS problem).

States worldwide need more than a moral and ethical conviction compelling them to counterattack ISIS; States need the force of law. 315See W. Michael Reisman, Thomas Franck & The Use of Force, 104 Am. Soc’y. Int’l. L. Proc. 403, 404 (2010) (“[E]ven illegal action, if instrumental in bringing about results widely desired by a community, will not seriously undermine a resilient legal system, one with the elasticity to make allowances for mitigating circumstances.”). ISIS operates within the bounds of both Iraq and Syria, meaning effective deterrence requires armed intervention in each State. 316See S.C. Res. 2170, supra note 67, pmbl. (reaffirming the independence and sovereignty of Syria and Iraq, as well as condemning the violent acts committed by ISIS). Even though U.N. Member States possess the requisite consent to enter Iraq—but not Syria—under the principle of collective self-defense, international law should not inhibit the armed intervention in Syria that is necessary to combat ISIS. 317See Hurd, supra note 216, at 301–07 (discussing the three cases for legality of humanitarian intervention). Although Article 2(4) of the U.N. Charter strictly prohibits the use of force, compliance with its mandates has been inconsistent. 318U.N. Charter art. 2, ¶ 4; see also Thomas M. Franck, Who Killed Article 2 (4)?, 64 Am. J. Int’l L. 809, 809–10 (1970) (discussing that States violate prohibition on the use of force in Article 2(4) of the U.N. Charter and the factors undermining Article 2(4)). In the international legal system, legality is a question of four things: (1) treaty law; (2) black letter contract principles that legally bind States; (3) State practice under customary international law; and (4) the common legal standards States regard as binding. 319See Hurd, supra note 216, at 294 (discussing the relevance of treaty law, customary law and black-letter law in interpreting Article 2(4) of the U.N. Charter). With respect to ISIS, some States have disregarded the principles of Article 2(4) and attempted to stretch customary international law to justify armed intervention in Syria. 320See id. at 294, 305 (discussing the effects of state practice on fixed international legal principles). Over the past quarter of a century, the prohibition on the use of force has been diminished by States to the point where “only the words remain,” which begs the question whether States can live without it. 321See Franck, supra note 318, at 809 (indicating that the prohibition on the use of force is generally not followed by States).

Instead of acquiescing to international action that opposes the rule of law, the international legal system should uphold the integrity of the law by modifying established rules to improve international decision-making and to better mobilize responsive action. In a dynamic world, new threats like ISIS outpace the rigid text of the U.N. Charter; the Security Council, under its duty to maintain world peace and security, must therefore adapt international norms to modern times. 322See U.N. Charter art. 2, ¶ 4 (discussing the prohibition on the use of force); U.N. Charter art. 23, ¶ 1 (discussing the duties of the Security Council); see also Franck, supra note 318, at 837 (arguing that the prohibition on the use of force in Article 2(4) has completely eroded because of “the wide disparity between the norms it sought to establish and the practical goal the nations are pursuing in defense of their national interest”). Because ISIS is a threat to the interests of Western nations and potentially the world, Article 2(4) will not prohibit the use of force to defend against ISIS. See Franck, supra note 318, at 837; supra Part II.B. Clear standards can be established through Security Council Resolutions. 323See U.N. Charter art. 24. The Security Council has the primary responsibility to act on Member States’ behalf to maintain international peace and security. Therefore, the Security Council is under a duty to act in accordance with the principles of the U.N. Charter to pass resolutions that establish clear standards for armed intervention to suppress the threat of terrorist organizations like ISIS. See id.; see also id. art. 25 (U.N. Member States must agree to accept and carry out the decisions of the Security Council). The Security Council previously acknowledged humanitarian intervention through the Kosovo Settlement and responses to actions in Libya, but must push a step further. 324See supra Parts IV.B–C. First, the Security Council must recognize armed intervention to stop gross human rights violations, even when the perpetrators are non-state terrorist organizations. 325See Daphné Richemond, Normativity in International Law: The Case of Unilateral Humanitarian Intervention, 6 Yale Hum. Rts. & Dev. L.J. 45, 52–53 (2003) (discussing the need for a stricter legal framework with regard to armed intervention). Second, the Security Council must set limits regarding this mode of armed intervention to prevent abuse. 326See id. at 51 (discussing concerns created by a legal right to intervention). Armed intervention must be utilized as a last resort and be limited to threats where the severity and probability of mass atrocities rise to the level of those committed by ISIS. 327See Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at XII. The international legal system cannot allow unilateral force, only collective force. 328See id. at 48. Armed intervention must serve a common interest in preventing mass atrocities, safeguarding human rights, and maintaining world peace and security. 329See id. at 59 (discussing the requirements for effective coalition building). Predictability, anticipation and the elimination of the lack of international consensus will enhance the international legal system. 330See Richemond, supra note 325, at 52–53 (discussing the need for a stricter legal framework with regard to armed intervention). See also Hurd, supra note 216, at 294. In turn, clear standards may deter the resurgence of threats to world peace, such as radical Islamic militants, or, at the very least, prevent the rule of ISIS from deteriorating into a large-scale humanitarian disaster. 331 See Richemond, supra note 325, at 52–53; Hurd, supra note 216, at 294. In the words of the famed international legal scholar, Thomas Franck, “[t]o stand by nothing is highly immoral, and being immoral should be illegal.” 332Reisman, supra note 315. The Security Council must stand by its duty to maintain international peace and security and evolve to solve the ISIS problem.

Footnotes

1Rose Troup Buchanan, Life Under ISIS: Captured Teenage Girl Tells Story of Horrendous Abuse at Hands of Islamic State Militants, Independent (Sept. 9, 2014), http://www.independent.co.uk/news/world/middle-east/life-under-isis-captured-teenage-girl-tells-story-of-horrendous-abuse-at-the-hands-of-islamic-state-militants-9721746.html.

2See id. (discussing that Yazidi women will remain forever scarred by the torture ISIS inflicts).

3Id.; Joshua Berlinger, Who Are the Religious and Ethnic Groups Under Threat from ISIS?, CNN (Aug. 8, 2014, 10:51 PM), http://www.cnn.com/2014/08/08/world/meast/iraq-ethnic-groups-under-threat-isis/; Richard Engel & James Novogrod, Isis Terror: Yazidi Woman Recalls Slave Auction, NBC News (Feb. 13, 2015, 12:26 PM), http://www.nbcnews.com/storyline/isis-terror/isis-terror-yazidi-woman-recalls-horrors-slave-auction-n305856.

4See Berlinger, supra note 3 (discussing the various religious minorities ISIS targets). See also Samuel G. Freedman, As Iraqi Christians in the U.S. Watch ISIS Advance, They See ‘Slow-Motion Genocide,N.Y. Times (Sept. 6, 2014), http://www.nytimes.com/2014/09/06/us/as-iraqi-christians-in-us-watch-isis-advance-they-see-a-slow-motion-genocide.html?_r=0. The persecution and near-annihilation of various minority groups by ISIS resonates with the author, a Chaldean-American. Prior to the militants’ reign, Chaldeans, an Iraqi-Catholic minority, suffered the same kind of terrorism executed by ISIS for decades. Moreover, the Islamic State continues to target the group. The Chaldean population in Iraq once amounted to one million people and dwindled to 400,000 by September 2014. The author’s grandparents immigrated from Telkaif in Northern Iraq to Detroit in 1949 and her family constitutes a portion of 175,000 prosperous Chaldeans that call the metro-Detroit area home.

5See generally Nick Cuming-Bruce, 5,000 Iraqis Killed Since Islamic State Began Its Military Drive, U.N. Says, N.Y. Times (Oct. 2, 2014), http://www.nytimes.com/2014/10/03/world/middleeast/un-reports-at-least-26000-civilian-casualties-in-iraq-conflict-this-year.html; Christian Francescani & Robert Windrem, Foreign Fighters Pouring into Syria Faster Than Ever, Say Officials, NBC News (Oct. 29, 2014, 12:43 PM), http://www.nbcnews.com/storyline/isis-terror/foreign-fighters-pouring-syria-faster-ever-say-officials-n236546.

6Arwa Damon & Holly Yan, Inside the Mind of an ISIS Fighter, CNN (Sept. 4, 2014, 1:23 PM), http://www.cnn.com/2014/09/04/world/meast/isis-inside-look/; Tim Lister, ISIS: The First Terror Group to Build an Islamic State?, CNN (June 12, 2014, 11:25 PM), http://www.cnn.com/2014/06/12/world/meast/who-is-the-isis/.

7Yara Bayoumy, ISIS Leader Al-Baghdadi Urges Jihad in Ramadan Message, Huffington Post (July 1, 2014), http://www.huffingtonpost.com/2014/07/01/isis-baghdadi-ramadan-message_n_5548030.html; Mark Piggott, ‘Obey Me’: Abu Bakr al-Baghdadi, Leader of Isis, Releases First Video Sermon, Int’l Bus. Times (July 5, 2014), http://www.ibtimes.co.uk/obey-me-abu-bakr-al-baghdadi-leader-isis-releases-first-video-sermon-1455463.

8Daniel DePetris, The 5 Deadliest Terrorist Groups on the Planet, Nat’l Interest (Nov. 16, 2014), http://nationalinterest.org/feature/washington-watching-the-5-deadliest-terrorist-groups-the-11687.

9Bobby Ghosh, Why ISIL is Worse Than al-Qaeda—And Any Other Terrorist Group That Came Before, Quartz (Aug. 8, 2014), http://qz.com/246923/why-isil-is-worse-than-al-qaeda-and-any-other-terrorist-group-that-came-before/ [hereinafter Ghosh, Why ISIL is Worse Than al-Qaeda].

10Id.

11See Lister, supra note 6; Holly Yan, Why is ISIS So Successful at Luring Westerners?, CNN (Oct. 7, 2014), http://www.cnn.com/2014/10/07/world/isis-western-draw/ (discussing ISIS’ success in spreading its message to recruit Westerners).

12See Mark Thompson, Putting the ISIS Threat in Perspective, Time (Sept. 14, 2014), http://time.com/3373928/isis-threat-hagel-kerry-syria-iraq/ (noting ISIS has succeeded only where the group was unopposed).

13See Nuremberg Human Rights Ctr. & Goethe Inst., From Nuremberg to Hague: The Road to the International Criminal Court 1, 3 (2006), http://www.iccnow.org/documents/FromNurembergtoHague_07july_eng.pdf (discussing that the Nuremberg trials led to the creation of the ICC).

14Id. at 3.

15See U.N. Charter pmbl. (“We the people of the United Nations . . . affirm our faith in fundamental human rights.”).

16See About the Court, Int’l Crim. Ct., https://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx (last visited Sept. 14, 2015) (noting that the international community long aspired to develop an international criminal court that prosecutes perpetrators of the most serious international crimes).

17See generally Frederick Pleitgen, Author’s Journey Inside ISIS: They’re ‘More Dangerous Than People Realize,CNN (Dec. 25, 2014, 8:50 AM), http://www.cnn.com/2014/12/22/world/meast/inside-isis-juergen-todenhoefer/.

18See Ben Winsor, 10 Ways ISIS is Violating the Laws of Islam, Bus. Insider (Oct. 8, 2014, 3:01 PM), http://www.businessinsider.com/muslims-using-sharia-law-against-isis-2014-10. Terrorist organizations violate at least ten principles of Islamic Law: “1) It is obligatory to consider Yazidis as People of the Scripture; 2) It is forbidden in Islam to deny women their rights; 3) It is forbidden in Islam to force people to convert; 4) It is forbidden in Islam to disfigure the dead; 5) It is forbidden in Islam to destroy graves and shrines of Prophets and Companions; 6) It is forbidden in Islam to harm or mistreat Christians or any ‘People of the Scripture; 7) Jihad in Islam is a purely defensive struggle. It is not permissible without the right cause, the right purpose, and the right rules of conduct; 8) It is forbidden in Islam to kill emissaries, ambassadors, and diplomats – hence it is forbidden to kill journalist and aid workers; 9) Loyalty to one’s nation is permissible in Islam; and 10) It is forbidden in Islam to declare a Caliphate without consensus from all Muslims.” Id.

19See Eric Schmitt, In the Battle to Defang ISIS, U.S. Targets Its Psychology, N.Y. Times (Dec. 28, 2014), http://www.nytimes.com/2014/12/29/us/politics/in-battle-to-defang-isis-us-targets-its-psychology-.html; Graeme Wood, What ISIS Really Wants, Atlantic (Mar. 2015), http://www.theatlantic.com/features/archive/2015/02/what-isis-really-wants/384980/.

20See Marissa Schultz, Ex-DIA Director Says Obama’s ISIS Strategy is ‘confusion,N.Y. Post (Feb. 8, 2015, 2:09 PM), http://nypost.com/2015/02/08/ex-dia-director-says-obamas-isis-strategy-is-confusion/ (discussing the need for a better ISIS strategy, the limited success of airstrikes, and the call for more ground assistance).

21See Int’l Comm’n on Intervention & State Sovereignty, The Responsibility to Protect 11 (2001) (discussing states’ responsibility to intervene when a state is either unwilling or unable to fulfill its responsibility to protect itself).

22Efriam Karsh, Islamic Imperialism, A History 1, 6 (2006).

23Id. at 1.

24Id.

25See id. at 2.

26Id. at 5.

27Caliphate, Encyc. Britannica (Oct. 28, 2014), http://www.britannica.com/EBchecked/topic/89739/Caliphate.

28Id.

29See Karsh, supra note 22, at 6.

30 Id. at 5.

31Id. at 6.

32See id. at 7, 62.

33Id. at 62.

34 See Charles Miranda, Isis Rewrites the Rules of War in Iraq, News.com.au (Sept. 7, 2014, 1:16 AM), http://www.news.com.au/national/isis-rewrites-the-rules-of-war-as-iraq-concerns-us-allies/story-fncynjr2-1227050293527 (discussing that ISIS’ struggle began centuries earlier).

35Id.

36Id.; Bobby Ghosh, ISIS: A Short History, AtlANTIC (Aug. 14, 2014), http://www.theatlantic.com/international/archive/2014/08/isis-a-short-history/376030/ [hereinafter Ghosh, ISIS: A Short History].

37Ghosh, ISIS: A Short History, supra note 36.

38Id.

39Id.

40Id.

41Id.

42Liz Sly, Al-Qaeda Disavows Any Ties with Radical Islamist ISIS Group in Syria Iraq, Wash. Post (Feb. 3, 2014), http://www.washingtonpost.com/world/middle_east/al-qaeda-disavows-any-ties-with-radical-islamist-isis-group-in-syria-iraq/2014/02/03/2c9afc3a-8cef-11e3-98ab-fe5228217bd1_story.html.

43Ghosh, ISIS: A Short History, supra note 36.

44Michael Daly, ISIS Leader: ‘See You in New York,Daily Beast (July 14, 2014), http://www.thedailybeast.com/articles/2014/06/14/isis-leader-see-you-in-new-york.html.

45See id. Abu Bakr al-Bagdhdadi was held in custody at an American Camp in Iraq, Camp Bucca, for four years. Army Col. Kenneth King, then commanding officer of Camp Bucca stated, “[h]e was a bad dude, but he wasn’t the worst of the worst.” Id.

46See Jacob Siegel, ISIS is Using Social Media to Reach YOU, Its New Audience, Daily Beast (Aug. 31, 2014), http://www.thedailybeast.com/articles/2014/08/31/isis-s-use-of-social-media-to-reach-you-its-new-audience.html.

47See id.

48See Justin Sink, ISIS Rakes in Donations on Twitter, Hill (Oct. 23, 2014, 1:45 PM), http://thehill.com/policy/defense/221666-isis-rakes-in-donations-on-twitter (discussing the donations ISIS receives on Twitter); Robert Windrem, Who’s Funding ISIS? Wealthy Gulf “Angel Investors,” Officials Say, NBC News (Sept. 21, 2014), http://www.nbcnews.com/storyline/isis-terror/whos-funding-isis-wealthy-gulf-angel-investors-officials-say-n208006 (discussing funds ISIS obtains from wealthy “angel investors” in the Gulf Region).

49Tim Hume, The Impact of ISIS Beheadings: Is Terror Propaganda Brutalizing Us All?, CNN (Apr. 20, 2015, 9:26 PM), http://www.cnn.com/2015/04/20/middleeast/isis-beheadings-psychological-impact/.

50See Amir Abdallah, Urgent Video: ISIS Beheads UK Aid Worker David Hanes, IRAQI NEWS (Sept. 14, 2014), http://www.iraqinews.com/features/urgent-video-isis-beheads-uk-aid-worker-david-haines/.

51Heather Saul, The Most Dangerous ISIS Propaganda Yet? Jihadi Brides with M5s, Fighters Relaxing and Children Playing Used to Present Caliphate as a Utopia, Independent (Mar. 20, 2015), http://www.independent.co.uk/news/world/middle-east/the-most-dangerous-isis-propaganda-yet-jihadi-brides-with-m5s-fighters-relaxing-and-children-playing-used-to-present-caliphate-as-a-utopia-10121653.html.

52Siegel, supra note 46.

53Id.

54See CIA Director Blames Social Media for Strength of ISIS, REUTERS (Mar. 13, 2015), http://rt.com/usa/240597-ciai-director-brennan-isis/ (discussing how the internet amplifies ISIS’ success).

55See Daniel DePetris, The 5 Deadliest Terrorist Groups on the Planet, Nat’l Int. (Nov. 16, 2014), http://nationalinterest.org/feature/washington-watching-the-5-deadliest-terrorist-groups-the-11687 (naming ISIS the deadliest terrorist group on the planet).

56Alessandra Masi, ISIS Recruitement: CIA Reports Said ISIS Could Have up to 31,500 Fighters in Iraq and Syria, Int’l Bus. Times (Sept. 11, 2014, 10:03 PM), http://www.ibtimes.com/isis-recruitement-cia-reports-said-isis-could-have-31500-fighters-iraq-syria-1686504.

57Francescani & Windrem, supra note 5.

58See Greg Botelho, Feds: NY Storeowner Plotted to Send Jihadists to Syria, Kill U.S. Troops Himself, CNN (Sept. 17, 2014), http://www.cnn.com/2014/09/16/justice/suspected-isis-supporter-ny/.

59Id.

60Air Force Vet Charged with Trying to Join ISIS, FOX NEWS (Mar. 17, 2015), http://www.foxnews.com/world/2015/03/17/air-force-vet-charged-with-trying-to-join-isis/; Michael S. Schmidt, National Guardsman Accused of Trying to Join ISIS in Libya, N.Y. Times (Mar. 26, 2015), http://www.nytimes.com/2015/03/27/us/guardsman-accused-of-trying-to-join-isis-in-libya.html.

61Ken Dilanian, Islamic State Group’s War Chest Growing Daily, Assoc. Press (Sept. 15, 2014, 11:16 AM), http://bigstory.ap.org/article/islamic-state-groups-war-chest-growing-daily-0.

62See id.

63Id.

64Id.

65Tim Mak, Exclusive: ISIS Gaining Ground in Syria, Despite U.S. Strikes, Daily Beast (Jan. 15, 2015), http://www.thedailybeast.com/articles/2015/01/14/exclusive-isis-gaining-ground-in-syria-despite-u-s-strikes.html; Jim Michaels, Iraqi Leader Will Seek Continued U.S. Help in ISIL Fight, USA Today (Apr. 12, 2015, 7:49 PM), http://www.usatoday.com/story/news/world/2015/04/12/abadi-obama-islamic-state/25602341/. See Iraq ‘Retakes Over a Quarter of Islamic State Territory,BBC News (Apr. 14, 2015), http://www.bbc.com/news/world-middle-east-32299602 (noting that ISIS’ area of influence in Syria remained largely unchanged since airstrikes began in September 2014).

66Pleitgen, supra note 17; Lister, supra note 6.

67See S.C. Res. 2170, ¶ 2 (Aug. 15, 2014) (discussing ISIS’ inhumane act target at innocent civilians); Winsor, supra note 18 (discussing ISIS’ violations of the express language in the Quran).

68S.C. Res. 2170, supra note 67, ¶ 2.

69Peter Kenyon, Life Under the Islamic State: Sharia Law and Few Services, Nat’l Public Radio (Aug. 29, 2014, 10:17 AM), http://www.npr.org/blogs/parallels/2014/08/29/343986937/life-under-the-islamic-state-sharia-law-and-few-services; Jack Moore, Iraq ISIS Crisis: Medieval Sharia Law Imposed on Millions in Nineveh Province, Int’l. Bus. Times (June 12, 2014, 2:24 PM), http://www.ibtimes.co.uk/iraq-isis-crisis-medieval-sharia-law-imposed-millions-nineveh-province-1452401.

70Kenyon, supra note 69.

71Moore, supra note 69.

72See Kenyon, supra note 69 (discussing life under the Islamic State). See generally ISIS Threatens Obama, Japanese and Jordanian Hostages in New Online Message, Fox News (Jan. 27, 2015), http://www.foxnews.com/world/2015/01/27/isis-threatens-obama-japanese-and-jordanian-hostages-in-new-online-messages/.

73See ISIS Threatens Obama, Japanese and Jordanian Hostages in New Online Message, supra note 72. One militant, hidden behind a black facemask, stated, “[k]now also that we will cut off your head in the White House, and transform America into a Muslim Province,” and brought a knife to the Kurdish fighter’s throat as the video faded to black. Id.

74Id.; Faith Karimi, Jordan Waits, Japan Mourns After ISIS Apparently Beheads Journalist, CNN (Feb. 2, 2015), http://www.cnn.com/2015/02/02/middleeast/isis-hostage/.

75Karimi, supra note 74.

76Id.; Samantha Payne, Jordanian Pilot Burned Alive: Moaz al-Kasasbeh was ‘Heavily Drugged so he Would Not Scream,Int’l. Bus. Times (Feb. 10, 2015), http://www.ibtimes.co.uk/jordanian-pilot-burned-alive-moaz-al-kasasbeh-was-heavily-drugged-so-he-would-not-scream-1487341.

77See Brian Todd, ISIS Gaining Ground in Yemen, Competing with al-Qaeda, CNN (Jan. 22, 2015), http://www.cnn.com/2015/01/21/politics/isis-gaining-ground-in-yemen/.

78Suliman Ali Zway & David D. Kirkpatrick, Group Linked to ISIS Says It’s Behind Assault on Libyan Hotel, N.Y. Times (Jan. 27, 2015), http://www.nytimes.com/2015/01/28/world/middleeast/islamic-state-tripoli-libya-terror-attack.html.

79See Ghaith Abdul-Ahad, Yemeni Implosion Pushes Southern Sunnis into Arms of al-Qaida and ISIS, Guardian (Mar. 22, 2015, 10:25 AM), http://www.theguardian.com/world/2015/mar/22/yemen-sunnis-al-qaida-isis-islamic-state-shia-houthis-sanaa (tribal groups compete with extremist groups for recruits).

80Lucy Westcott, 120 Believed Killed in Twin Suicide Attacks on Yemen Mosques, Newsweek (Mar. 20, 2015, 11:01 AM), http://www.newsweek.com/120-believed-killed-twin-suicide-attacks-yemen-mosques-315317.

81Paul Cruickshank, ISIS’ Explosive Expansion, CNN (Mar. 20, 2015, 6:38 PM), http://www.cnn.com/2015/03/20/world/isis-expansion/; Jack Moore, U.S. War on ISIS Could Expand to Affiliates in Libya and Nigeria, Newsweek (Mar. 12, 2015, 2:30 PM), http://www.newsweek.com/us-war-isis-could-expand-affiliates-libya-and-nigeria-313359. Other radical terrorist organizations pledged allegiance to ISIS in March 2015. The group’s mere pledge of allegiance and act of flying the ISIS flag would be covered by the forthcoming Authorization to Use Military Force according to U.S. officials testifying to the Senate Foreign Relations Committee, including Secretary of State John Kerry and top general, Martin Dempsey. Id.

82Cruickshank, supra note 81. ISIS attacked Tunisia as well as spread to Afghanistan, Pakistan and Saudi Arabia in March, 2015. Id.

83Id.; see Todd, supra note 77. ISIS and Al-Qaeda in the Arabian Peninsula (AQAP) compete for recruits in Yemen and both groups want to be the first to attack the U.S. Id.

84S.C. Res. 2170, supra note 67, ¶ 1.

85See id. at ¶¶ 1, 3, 5.

86Id. at ¶¶ 1–2.

87Id. at ¶ 6.

88See Louise Arimatsu & Michael Schmitt, The Legal Basis for the War Against Isis Remains Contentious, Guardian (Oct. 6, 2014, 4:00 PM), http://www.theguardian.com/commentisfree/2014/oct/06/legal-basis-war-isis-syria-islamic-state (discussing that the fight against ISIS in Iraq is legal under the collective self-defense principle of international law); Iraq Formally Asks US to Launch Air Strikes Against Rebels, BBC News (June 18, 2014), http://www.bbc.com/news/world-middle-east-27905849 (discussing Iraq’s formal request for U.S. assistance); Sebastian Payne, What the 60-Plus Members of the Anti-Islamic State Coalition are Doing, Wash. Post (Sept. 25, 2014), http://www.washingtonpost.com/news/checkpoint/wp/2014/09/25/what-the-60-members-of-the-anti-islamic-state-coalition-are-doing/ (discussing the U.S.-led coalition to fight ISIS).

89Somini Sengupta & Charlie Savage, U.S. Invokes Iraq’s Defense in Legal Justification of Syria Strikes, N.Y. Times (Sept. 23, 2014), http://www.nytimes.com/2014/09/24/us/politics/us-invokes-defense-of-iraq-in-saying-strikes-on-syria-are-legal.html. See also S.J. Res. 23, 107th Cong. § 2(a) (2001).The President is authorized to use all necessary and appropriate force against those nations organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.Id. See also H.R.J. Res. 114, 107th Cong. § 3(a) (2002).The President is authorized to use the Armed forces of the United States as he determines to be necessary and appropriate in order to—(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.Id.

90See Greg Miller & Karen DeYoung, In Syria, Obama Stretches Legal and Policy Constraints He Created for Counterterrorism, WASH. POST (Sept. 23, 2014), http://www.washingtonpost.com/world/national-security/in-syria-obama-stretches-legal-and-policy-constraints-he-created-for-counterterrorism/2014/09/23/79fdaf44-4339-11e4-9a15-137aa0153527_story.html (discussing that eight of the twenty-two airstrikes were targeted at an Al-Qaeda cell).

91Alexandra Jaffe & Deirdre Walsh, White House to Request Permission to Fight ISIS, CNN (Feb. 6, 2015, 8:10 AM), http://www.cnn.com/2015/02/05/politics/isis-war-authority-vote/. See also Kerry, Carter, Dempsey Want War with ISIS, Senate Isn’t Convinced, RT (Mar. 11, 2015), http://rt.com/usa/239701-kerry-administration-senate-aumf/. Top officials urged Congress to pass an ISIS AUMF, arguing that a bipartisan agreement on a plan to fight ISIS is imperative, but Congress could not come to a unanimous decision. In particular, Democrats were nervous to authorize another AUMF that allowed the use of force to linger, like in Iraq. Id.

92Jennifer Bendery, House Democrat Introduces ISIS War Authorization Bill, Huffington Post (Jan. 28, 2015, 6:00 AM), http://www.huffingtonpost.com/2015/01/28/adam-schiff-aumf-isis_n_6559066.html.

93Airstrikes Continue Against ISIL in Syria, Iraq, U.S. DEP’T DEF. (Apr. 14, 2015), http://www.defense.gov/news/newsarticle.aspx?id=128584.

94See id.; see also Ben Smith, Claire Mills & Rob Page, Iraq, Syria and ISIS—Recent Developments, House of Commons Library Standard Note, SN06977, at 1, 13 (2014), http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06977 (explaining that the British Parliament launched airstrikes in Iraq, but not Syria). Britain began launching airstrikes in Syria in December 2015. See Ben Brumfield, Britain Launches Airstrikes Hours After Parliament Backs ISIS Bombings, CNN (Dec. 3, 2015, 1:53 AM), http://www.cnn.com/2015/12/02/europe/isis-britain-germany-vote-iraq-syria/.

95Tom Bowman, Despite Coalition Partners, U.S. Has Done Most Airstrikes Against ISIS, Nat’l Public Radio (Feb. 6, 2015, 4:09 PM), http://www.npr.org/2015/02/06/384345873/despite-coalition-partners-u-s-has-done-most-airstrikes-against-isis; Heather Murdock, Iraqi Official: Troops Launch ‘Final Phase’ of Tikrit Offensive, Voice America (Mar. 26, 2015), http://www.voanews.com/content/us-launches-airstrikes-on-tikrit/2694988.html.

96Catherine Herridge, US Vet Says Fighting in Syria Was as Easy as Buying Airplane Ticket to Miami, FOX NEWS (Jan. 2, 2015), http://www.foxnews.com/politics/2015/01/02/exclusive-us-vet-says-fighting-in-syria-was-as-easy-as-buying-airplane-ticket/. An American Veteran bought a plane ticket to Iraq and conducted an informal background check via Facebook to fight on the frontlines against ISIS. The Supreme Court has held in the past that it is not a crime for citizens to overseas to join a foreign army if recruitment takes place outside the United States. However, if the recruitment takes place inside the country, which arguably occurred here, the act could be considered illegal. Id.

97See Anne Barnard & Karam Shoumali, Kurd Militia Says ISIS Is Expelled From Kobani, N.Y. Times (Jan. 26, 2015), http://abcnews.go.com/International/jordan-deploys-ground-troops-iraq-border/story?id=28856391.

98See Greg Botelho & Jomana Kardsheh, U.S.-led Coalition Launches 17 Airstrikes on ISIS Targets Around Tikrit, CNN (Mar. 27, 2015, 4:29 AM), http://www.cnn.com/2015/03/26/middleeast/iraq-isis-tikrit/. See also Jacob Siegel & Nancy A. Youssef, US Just Took Ownership of a New Iraq War, Daily Beast (Mar. 26, 2015), http://www.thedailybeast.com/articles/2015/03/26/the-u-s-just-took-ownership-of-a-new-iraq-war.html (discussing the U.S.’s lead role in the Tikrit offensive as widening U.S. involvement and hopes the involvement will be less open ended than it was ten years after President Bush ended combat operations in Iraq).

99Hamdi Alkshali & Jomana Kardsheh, Iraqi Forces Take Back Tikrit from ISIS, Official Says, CNN (Mar. 31, 2015, 5:57 PM), http://www.cnn.com/2015/03/31/middleeast/iraq-isis-tikrit/.

100Id. (“The victory in Tikrit sets the state for Iraqi forces to take back an ever bigger prize: Mosul.”).

101Anne Barnard & Hqaida Saad, ISIS Seizes New Territory in Deadly Attacks in Syria, N.Y. Times (Apr. 1, 2015), http://www.nytimes.com/2015/04/02/world/middleeast/syria-isis-advances-in-hama-and-damascus.html.

102See Martin Chulov & Kareem Shaheen, ISIS Leader Abu Bakr Al-Baghdadi ‘seriously wounded in air strike,Guardian (Apr. 21, 2015), http://www.theguardian.com/world/2015/apr/21/isis-leader-abu-bakr-al-baghdadi-wounded-air-strike (discussing that Baghdadi was injured in airstrikes and is now spending much of his time about 200 miles West of Mosul); Elliot C. McLaughlin, Isis Executes More Christians in Libya Video Shows, CNN (Apr. 20, 2015, 7:59 PM), http://www.cnn.com/2015/04/19/africa/libya-isis-executions-ethiopian-christians/ (discussing a recent video depicts ISIS beheading two groups of Ethiopian Christians in Libya); Armin Rosen, Here’s the Iraqi Town Where Leader Abu Bakr al-Baghdadi had Reportedly Been Hiding Out, Bus. Insider (Apr. 21, 2015, 3:02 PM), http://www.businessinsider.com/town-where-baghdadi-was-reportedly-hiding-out-2015-4 (discussing that Baghdadi, just like Osama, is hiding out in a low-profile area far from ISIS’ centers of power).

103See U.N. Charter art. 2, ¶ 4 (discussing the U.N.’s general prohibition on the use of force against the territorial integrity or political independence of any State); Arimatsu & Schmitt, supra note 88 (discussing the legality of armed intervention to fight ISIS and in particular, that armed intervention in Syria is not legal under the principle of collective self-defense).

104 See U.N. Charter art. 2, ¶ 4; Arimatsu & Schmitt, supra note 88.

105See Geoffrey S. Corn & Laurie Blank, The Laws of War: Regulating the Use of Force, in National Security Law in the News: A Guide for Journalists, Scholars & Policymakers 97, 98 (American Bar Ass’n ed., 2012); see U.N. Charter art. 2, ¶ 4 (discussing the U.N.’s general prohibition on the use of force against the territorial integrity or political independence of any State).

106See U.N. Charter art. 2, ¶ 4 (discussing the U.N.’s general prohibition on the use of force against the territorial integrity or political independence of any State).

107Id.

108See id. art. 42, ¶ 1, art. 51, ¶ 1.

109Id. art. 51, ¶ 1.

110See generally Johan D. van der Vyver, Ius Contra Bellum and American Foreign Policy, 28 S. Afr. Y.B. Int’l L. 1, 1–28 (2003) [hereinafter van der Vyver, Ius Contra Bellum], (discussing various recent armed conflicts and whether a State was entitled to use force to protect its territorial sovereignty).

111Id. at 13. See also Corn & Blank, supra note 105, at 101 (discussing what constitutes an armed attack).

112Corn & Blank, supra note 105, at 101; see also S.C. Res. 1368, ¶ 1 (Sept. 12, 2001) (providing the exact text of the U.N. Resolution that lends to the general understanding that the a state act in self-defense against non-state actors).

113Lucy Fisher, ISIS and the Global Rise of Non-State Actors, NEWSTATESMAN (June 23, 2014), http://www.newstatesman.com/international-politics/2014/06/isis-and-global-rise-non-state-actors. See generally S.C. Res. 2170, supra note 67 (detailing ISIS’ resort to armed intervention by discussing the terrorist acts of ISIS, the group’s violent extremist ideology, and gross, systematic and widespread abuse of human rights).

114U.N. Charter arts. 42, ¶ 1, 51, ¶ 1.

115See Corn & Blank, supra note 105, at 99.

116See van der Vyver, Ius Contra Bellum, supra note 110, at 3 (citing Security Council sanctioned military intervention in the Korean War and the Gulf War); Corn & Blank, supra note 105, at 99 (citing Security Council Sanctioned Intervention in Libya); Press Release, Security Council, Security Council Establishes Peacekeeping Force for Mail Effective 1 July, Unanimously Adopting Resolution 2100 (2013), U.N. Press Release SC/10987 (Apr. 25, 2013), http://www.un.org/press/en/2013/sc10987.doc.htm (discussing U.N. Security Council sanctioned intervention in Mali).

117U.N. Charter art. 51, ¶ 1

118Corn & Blank, supra note 105, at 100.

119Id.

120Id. at 103–04; van der Vyver, Ius Contra Bellum, supra note 110 at 4–5.

121See Corn & Blank, supra note 105, at 101–04 (discussing the right to self-defense against non-state actors and the limits on the right to self-defense).

122Id.

123See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J 14, ¶¶ 194, 237 (June 27).

124Id. ¶¶ 207–13.

125 See id. ¶¶ 230, 233.

126See id. ¶ 211.

127See id. ¶¶ 194, 237.

128See id.

129See id. ¶¶ 194–95.

130See id. ¶¶ 207–08, 258.

131See id. ¶¶ 207–08, 227, 238.

132See generally Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J 883, ¶ 136 (July 9) [hereinafter Construction of a Wall].

133See id. ¶¶ 150–51.

134See id. ¶¶ 137–38, 140.

135See id. ¶¶ 127, 136.

136See id. ¶ 136.

137See van der Vyver, Ius Contra Bellum, supra note 110, at 4, 11–14 (discussing that the terrorist attacks should not have been considered part of an armed conflict).

138Id. at 11, 14.

139See id. at 15–16, 22 (discussing that the 2003 war in Iraq was an act of aggression that violated international law).

140See id. at 15–16 (discussing the first Gulf war in Iraq; the same reasoning can be applied to the 2003 war in Iraq).

141Payne, supra note 88; Airstrikes Continue Against ISIL in Syria, Iraq, supra note 93.

142See DePetris, supra note 8 (noting that ISIS is the number one deadliest threat worldwide); McLaughlin, supra note 102 (noting that ISIS executed Ethiopian Christians in April 2015); Francescani & Windrem, supra note 5 (noting that ISIS maintained 12,000 foreign fighters in Syria as of October 2014).

143See Payne, supra note 88 (discussing the countries that joined the coalition to fight ISIS).

144See S.C. Res. 2170, supra note 67, ¶ 6 (States may take “all measures as may be necessary and appropriate in accordance with their obligations under international law to counter incitement.”); Press Release, Security Council, Security Council Adopts Resolution 2170 (2014) Condemning Gross, Widespread Abuse of Human Rights by Extremist Groups in Iraq, Syria, U.N. Press Release SC/11520 (Aug. 14, 2014), http://www.un.org/press/en/2014/sc11520.doc.htm. Russian representative, Petr V. Illichev, stated, “[this resolution] should not be taken as approval for military action.” Further, Syrian representative, Bashar Ja’afari, “called on the [Security] Council, in the future, to consult with his country and others in the region in order to make its action against terrorism effective.” Id.

145See U.N. Charter arts. 42, 51 (stating that without Security Council sanctioned intervention, the only exception to the prohibition against the use of force left in Article 51 of the U.N. Charter is self-defense.).

146Arimatsu & Schmitt, supra note 88 (noting that intervention in Syria is illegal under the principle of collective self-defense).

147See id. (applying the principle of collective self-defense to justify armed intervention in Iraq).

148See S.C. Res. 2170, supra note 67, ¶ 2 (discussing the deplorable acts committed by ISIS that would constitute an imminent threat).

149Michaels, supra note 65; Orlando Crowcroft, ISIS: Inside the Struggling Islamic State Economy in Iraq and Syria, Int’l Bus. Times (Apr. 11, 2015), http://www.ibtimes.co.uk/isis-inside-struggling-islamic-state-economy-iraq-syria-1495726.

150See S.C. Res. 2170, supra note 67, ¶ 2.

151See Letter Dated Sept. 23, 2014 from the Permanent Rep. of the U.S. to the U.N. Addressed to the Secretary-General, U.N. Doc. S/2014/695 (Sept. 23, 2014) [hereinafter Letter to the United Nations], http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2014_695.pdf (illustrating that Iraq is entitled to self-defense because the U.S. representative to the U.N. seeks to extend Iraq’s right to self-defense to permit armed intervention in Syria).

152See generally Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J 14, ¶¶ 232, 237–38 (June 27).

153Letter to the United Nations, supra note 151.

154See Payne, supra note 88 (discussing the measures taken by the coalition to fight ISIS as well as the training Iraqi and Kurdish forces receive to better combat ISIS); Iraqi Soldiers Retake Key Oil Refinery from ISIS Militants, Fox News (Apr. 19, 2015), http://www.foxnews.com/world/2015/04/19/iraqi-soldiers-retake-key-refinery-amid-larger-battle-against-isis/ (illustrating that Iraqi troops fight ISIS to reclaim their territory); Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J 883, ¶¶ 136–37 (July 9) (discussing excessive measures of self-defense to illustrate the measures taken by Iraq and the U.S.-led coalition are not excessive).

155See Construction of a Wall, 2004 I.C.J at 131, ¶¶ 136–37 (showing that Israel’s use of self-defense against Palestine was not a proportional response).

156See Letter to the United Nations, supra note 151 (discussing Iraq’s right to self-defense). See generally Nicar. v. U.S., 1986 I.C.J at 108–09, ¶¶ 207–08; Construction of a Wall, 2004 I.C.J. at 192-94, ¶¶ 136–38.

157See Miller & DeYoung, supra note 90 (discussing that President Obama stretches legal policy to justify intervention in Syria).

158See Nicar. v. U.S., 1986 I.C.J at 123, ¶ 238 (discussing the parameters of the right to collective self-defense).

159See Sengupta & Savage, supra note 89 (discussing the U.S. right to intervene militarily in Syria); S.C. Res. 1368, supra note 112, ¶ 3 (recognizing a right to self-defense against non-state actors).

160Miller & DeYoung, supra note 90.

161See Tim Lister, Al Qaeda Battles ISIS for Global Jihadist Leadership, CNN (Sept. 10, 2014, 8:53 AM), http://www.cnn.com/2014/09/10/world/meast/isis-vs-al-qaeda/.

162See id.

163See id.; Miller & DeYoung, supra note 90.

164See S.C. Res. 1368, supra 112 (discussing the right of self-defense against Al-Qaeda; Miller & DeYoung, supra note 90; supra Part III.B. (discussing military intervention in Iraq in 2003).

165See Johan D. van der Vyver, Military Intervention in Syria: The American, British and French Alternatives and the Russian Option, 3 De Jure 36, 44 (2015) [hereinafter van der Vyver, Military Intervention in Syria] (discussing the emergency mechanism argument, which argues that the veto power of the permanent five members of the Security Council paralyze international action).

166See id. (discussing that the Security Council is immobilized by the veto power).

167See id.

168See Smith, Mills & Page, supra note 94, at 13–14 (“[T]his motion does not endorse UK air strikes in Syria as part of this campaign and any proposal to do so would be subject to a separate vote in Parliament.”); Arimatsu & Schmitt, supra note 88 (discussing the legal issues surrounding armed intervention in Syria).

169See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J 14, ¶¶ 165, 196, 199 (June 27); U.N. Charter art. 51; Arimatsu & Schmitt, supra note 88 (“Syria has not expressly consented to military operations against Isis on its territory.”).

170See Mariam Karouny & Laila Bassam, Syria Says U.S. Informed it of Planned Attack on Islamists Hours Before Airstrikes, Gazette (Sept. 23, 2014, 8:45 AM), http://thegazette.com/subject/news/nation/syria-says-us-informed-it-of-planned-attack-on-islamists-hours-before-airstrikes-20140923; Corn & Blank, supra note 105, at 100–01 (discussing the principle of collective self-defense).

171See Arimatsu & Schmitt, supra note 88 (discussing the controversial aspects of implied consent). See also Corn & Blank, supra note 105, at 99 (discussing the right to consent).

172See Nicar. v. U.S., 1986 I.C.J. at 123, ¶ 238; Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. Rep. at 136, ¶¶ 138–39 (July 9) (limiting the principle of self-defense).

173See Nicar. v. U.S., 1986 I.C.J. at 119, ¶ 230.

174See id. ¶¶ 251–52.

175Construction of a Wall, 2004 I.C.J. at 194–95, ¶ 140.

176See Josh Rogin, White House Has No International Legal Justifications for Hitting ISIS in Syria, Daily Beast (Sept. 23, 2014), http://www.thedailybeast.com/articles/2014/09/15/white-house-has-no-international-legal-justification-for-hitting-isis-in-syria.html (discussing the justifications of actions to protect Iraq and destroy ISIS).

177Arimatsu & Schmitt, supra note 88 (advancing that anticipatory self-defense does not justify intervention in Syria to fight ISIS).

178See Corn & Blank, supra note 105, at 101.

179See U.N. Charter art. 42, ¶ 1 (discussing actions that the Security Council can take); U.N. Charter art. 51 (discussing the self-defense exception to the prohibition on armed intervention). This Comment argues that neither Security Council intervention nor self-defense apply to the ISIS situation in Syria.

180See U.N. Charter pmbl.

181Id.

182See generally G.A. Res. 217 (III) A (Dec. 10, 1948) (laying out a common standard for the protection of human rights); International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Exec. Rep. 102-23, 999 U.N.T.S. 171 [hereinafter ICCPR] (stating that there should be no restriction on any of the fundamental human rights recognized by parties to the covenant).

183See generally G.A. Res. 217 (III) A, supra note 182.

184See generally id.

185Id. art. 1.

186Id.

187Id.

188Id. art. 2.

189Id. art. 3.

190See id. arts. 1–3 (listing principles to promote equality and ensure religious and political freedom).

191See id. pmbl. (noting that human rights will promote friendly relations, co-operation, and social progress between nations).

192Id. arts. 2–3.

193See G.A. Res. 2200 (XXI) A (Dec. 16, 1966).

194Id. pmbl.

195Id. arts. 1, 173.

196See id. arts. 1, 178 (discussing self-determination and the freedom to associate with others).

197Id. arts. 1, 27. See generally Secession of Quebec, [1998] 2 S.C.R. 217 (Can.) (barring an ethnic or cultural group from seceding from Canada on the basis of self-determination).

198See ICCPR, supra note 182, arts. 1, 173.

199See Shawki Allam, Terrorists and Their Quaranic Delusions, Wall Street J. (Apr. 9, 2015, 6:57 PM), http://www.wsj.com/articles/terrorists-and-their-quranic-delusions-1428620268 (discussing how some terrorists rely on an warped interpretation of the Quran to promote violence).

200See S.C. Res. 2170, supra note 67, ¶ 1 (discussing ISIS’ deplorable acts).

201See id. ¶ 2 (condemning ISIS violent acts).

202Id.

203Kenyon, supra note 69.

204Tim Hume, The Impact of ISIS Beheadings: Is Terror Propaganda Brutalizing Us All?, CNN (Apr. 20, 2015, 9:26 PM), http://www.cnn.com/2015/04/20/middleeast/isis-beheadings-psychological-impact/.

205See King Abdullah II on ISIS Intimidation Tactics, CNN (Feb. 27, 2015, 3:16 PM), http://www.cnn.com/videos/tv/2015/02/27/exp-gps-abdullah-sot-pilot-video.cnn (discussing how the world is terrified by ISIS militants).

206Christopher Dickey & Shane Harris, Barbarian Burn Pilot Alive: ISIS Will Never Release a Living Prisoner, Daily Beast (Feb. 3, 2015, 3:35 PM), http://www.thedailybeast.com/articles/2015/02/03/isis-burns-jordanian-pilot-alive.html.

207See id.

208See ICCPR, supra note 182, art. 1 (discussing the right to self-determination, which allows all people to freely determine their political, economic, social and cultural development).

209See id. arts. 22, 27; see also Berlinger, supra note 3 (discussing the various minorities groups in Iraq, their religious beliefs and the areas that they live in throughout Iraq).

210See S.C. Res. 2170, supra note 67, ¶¶ 12–13 (condemning ISIS for its violent, extremist ideology and its gross systematic human rights abuses).

211See Lister, supra note 6 (discussing ISIS’ imposition of harsh Shari’a law in the towns that it controls); see generally ICCPR, supra note 182 (discussing the rights to self-determination, freedom of association, and cultural, religious and linguistic freedom).

212Moore, supra note 69.

213Id.

214See ICCPR, supra note 182, arts. 1, 27 (discussing the right to self-determination); see generally Secession of Quebec [1998], 2 S.C.R. 217 (Can.) (holding that an ethnic or cultural group could not secede from Canada on the basis of self-determination); S.C.R. 2170, supra note 67, ¶ 1 (condemning ISIS’ gross, systematic, and widespread abuses of human rights).

215See generally U.N. Charter; ICCPR, supra note 182, pmbl.

216See Ian Hurd, Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World, 25 Ethics & Int’l Aff. 293, 293 (2011) (discussing whether humanitarian intervention is legal).

217van der Vyver, Military Intervention in Syria, supra note 165, at 6, 11.

218Id. at 10.

219Hurd, supra note 216.

220van der Vyver, Military Intervention in Syria, supra note 165, at 8.

221Id. at 8–9.

222Id.

223Id.

224Id. at 11.

225Id. at 9.

226Id.

227Id.

228See id. (discussing the emergency mechanism argument to justify humanitarian intervention).

229See id. at 8–9 (discussing the three theories of humanitarian intervention).

230See van der Vyver, Ius Contra Bellum, supra note 110, at 9–11.

231Id. at 9–10.

232Id. at 10–11.

233Hurd, supra note 216, at 301.

234See id. (discussing the deviation from the black-letter prohibition on the use of force in the U.N. Charter with respect to Kosovo).

235See generally id.

236Id. at 301.

237Id. (discussing the view that humanitarian intervention is illegal).

238van der Vyver, Military Intervention in Syria, supra note 165, at 2, 6.

239Id. at 2–3.

240Id. at 11.

241Id.

242See id. at 20–21.

243See generally id. (noting that there was no military intervention to prevent Syria from using chemical weapons against its people); Greg Botelho, What’s Happening in the Middle East and Why it Matters, CNN (Jan. 24, 2015, 9:44 AM), http://www.cnn.com/2015/01/23/middleeast/middle-east-country-breakdown/ (discussing the unstable environment in Syria).

244See generally Hurd, supra note 216, at 307–11.

245Id. at 307.

246See S.C. Res. 2170, supra note 67, ¶ 1 (reaffirming the independence and sovereignty of Syria and Iraq, and condemning the violent acts committed by ISIS); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J Rep. 14, ¶ 277 (June 27) (discussing self-defense and the attributability of an attack to a nation state); Lucy Fisher, Isis and the Global Rise of Non-State Actors, NewStatesman (June 23, 2014, 13:48 PM), http://www.newstatesman.com/international-politics/2014/06/isis-and-global-rise-non-state-actors.

247See van der Vyver, Military Intervention in Syria, supra note 165, at 6, 11 (discussing that ISIS is a non-state actor).

248See Leslie H. Gelb, Face It Obama. Without Assad, You’ve Got No Strategy in Syria, Daily Beast (Jan. 22, 2015, 5:55 AM), http://www.thedailybeast.com/articles/2015/01/22/face-it-obama-without-assad-you-ve-got-no-strategy-in-syria.html (discussing that Obama needs to work with Assad to fight ISIS); Chomsky on the Middle East, VOR America (Jan. 21, 2014), https://www.youtube.com/watch?v=vH2inKmzFCc. But see Ian Sinclair, Is Noam Chomsky Right That the US Doesn’t Want Regime Change in Syria?, Huffington Post (Dec. 3, 2014), http://www.huffingtonpost.co.uk/ian-sinclair/noam-chomsky-syria_b_4947200.html (discussing that several states, including the United States, have expressed a desire to remove President Assad).

249Julian Pecquet, House Votes to Arm Syrian Rebels with Eye Toward Assad, Al-Monitor (Sept. 17, 2014), http://www.al-monitor.com/pulse/originals/2014/09/syria-vote-isis-congress-us-arm-rebels-obama.html#.

250See Fisher, supra note 113 (discussing that ISIS is a non-state actor); Gelb, supra note 248 (discussing that the U.S. does not aim to overthrow Assad); van der Vyver, Military Intervention in Syria, supra note 165, at 6, 11 (discussing the elements of the theory of humanitarian intervention).

251U.N. Secretary-General, Implementing the Responsibility to Protect, ¶ 1, U.N. Doc. A/63/677 (Jan. 12, 2009).

252Austl. Red Cross, International Humanitarian Law and the Responsibility to Protect: A Handbook 14 (2011), http://www.redcross.org.au/files/IHL__R2P_responsibility-to-protect.pdf.

253Id. at 5.

254Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at VIII.

255Id. at 31.

256See id. at 32–37.

257See id. at 9 (discussing the debate over humanitarian intervention and the need to define a right to intervention).

258See Peter Stockburger, Emerging Voices: Is The R2P Doctrine the Greatest Marketing Campaign International Laws Has Ever Seen?, Opinio Juris (Aug. 23, 2013, 3:30 PM), http://opiniojuris.org/2013/08/23/emerging-voices-is-the-r2p-doctrine-is-the-greatest-marketing-campaign-international-law-has-ever-seen/ (discussing the limitations U.N. Secretary General Kofi Annan placed on the R2P doctrine).

259See id. (discussing inaction in Syria as evidence of the R2P doctrine’s failures).

260Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at XII.

261Id. at XIII.

262Id. at XII-XIII.

263Stockburger, supra note 258; S.C. Res. 1973, ¶ 4 (Mar. 17, 2011).

264Stockburger, supra note 258.

265Id.

266Robert W. Murray & Alasdair Mckay, Introduction to Into the Eleventh Hour: R2P, Syria and Humanitarianism in Crisis 16 (E-international Relations ed., 2014) (discussing the difficulty of R2P enforcement in the Middle East).

267See id. at 15 (discussing the failure of the Middle East and North African region to enforce R2P in the Syrian civil war).

268Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at VIII; see Stockburger, supra note 258 (arguing that the R2P doctrine has not created any new legal obligations).

269Stockburger, supra note 258.

270See van der Vyver, Military Intervention in Syria, supra note 165, at 1–2.

271Id. at 2.

272Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at XI; see also Letter to the United Nations, supra note 151 (discussing the “unwilling or unable” theory).

273Letter to the United Nations, supra note 151.

274Id.

275See generally id. (advancing the “unwilling or unable” rationale to justify U.S. actions taken to combat ISIS).

276See Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at 61 (discussing how the R2P doctrine aims to facilitate greater collaboration amongst States); Ghosh, Why ISIL is Worse Than al-Qaeda, supra note 9 (discussing why ISIS is worse than any other terrorist group).

277See S.C. Res. 2170, supra note 67, ¶ 2 (condemning ISIS’ human rights violations); Letter to the United Nations, supra note 151 (arguing ISIS poses a threat to the U.S. and to the entire world).

278Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at 31; see S.C. Res. 2170, supra note 67, ¶ 2 (condemning ISIS’ human rights violations).

279Martin Chulov & Shiv Malik, Isis Video Shows Jordanian Hostage Being Burned to Death, Guardian (Feb. 3, 2015, 9:41 PM), http://www.theguardian.com/world/2015/feb/03/isis-video-jordanian-hostage-burdning-death-muadh-al-kasabeh.

280See generally Final Act of the U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court art. 5, July 17, 1998, 2187 U.N.T.S. 2004 [hereinafter Rome Statute].

281See generally Daniel Donovan, International Criminal Court: Successes and Failures, Int’l Pol’y Dig. (Mar. 23, 2012), http://www.internationalpolicydigest.org/2012/03/23/international-criminal-court-successes-and-failures-of-the-past-and-goals-for-the-future/ (discussing the failures of the ICC).

282See About the Court, supra note 16 (declaring that the ICC is the first permanent court to help end the most serious crimes of concern in the international community).

283Nuremberg Human Rights Ctr. & Goethe Inst., supra note 13, at 1–3.

284Id. at 4, 16.

285Rome Statute, supra note 280, art. 12.

286Id. art. 5.

287Id. art. 17.

288Id.

289See generally id. arts. 12–14 (discussing when the Court can intervene); Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at VIII (discussing the “unwilling or unable” theory).

290Rachel Lord, The Liability of Non-State Actors for Torture in Violation of International Humanitarian Law, 4 Melb. J. Int’l L. 113, 113, 133 (2003).

291See Donovan, supra note 281 (discussing the lack of U.N. participation in the ICC and the difficulty the Court faces in indicting criminals).

292 See Rome Statute, supra note 280, art. 17 (discussing the admissibility of proceedings before the ICC).

293See Ian Black, The US Strategy Against ISIS is Working—For Assad, Guardian (Nov. 6, 2014), http://www.theguardian.com/world/2014/nov/06/us-strategy-against-isis-working-well-assad-syria (discussing how Assad feels about the effectiveness of U.S. coalition forces). See also Rome Statute, supra note 280, art. 17 (discussing the admissibility of proceedings before the ICC).

294See Rome Statute, supra note 280, art. 17; see also Lister, supra note 6 (discussing Iraq’s weak political and judicial infrastructure).

295Donovan, supra note 281.

296Id.

297See Ankit Panda, 35 Killed ISIS’ First Claimed Suicide Bombing in Afghanistan, Diplomat (Apr. 20, 2015), http://thediplomat.com/2015/04/35-killed-in-isis-first-claimed-suicide-bombing-in-afghanistan/ (noting that a group affiliated with the Taliban stated “people who carry out this act have nothing to do with Islam and Muslims” regarding the ISIS suicide bombing in Afghanistan).

298See Donovan, supra note 281 (discussing the failures of the ICC).

299See supra Part V (discussing how the threat of prosecution by the Court does not stall Islamic terrorists).

300See Hurd, supra note 216, at 301–07 (discussing the three cases for legality of humanitarian intervention).

301See generally id.

302See Thompson, supra note 12; see also Lister, supra note 6 (discussing the factors contributing to ISIS’s success).

303See Letter to the United Nations, supra note 151 (discussing Syria’s inability to combat ISIS and the need for military action in Syria).

304See Ghosh, Why ISIL is Worse Than al-Qaeda, supra note 9 (discussing why ISIS is worse than any other terrorist group).

305Schmitt, supra note 19.

306Ghosh, ISIS: A Short History, supra note 36.

307See Allam, supra note 199 (discussing that ISIS uses religion to cloak violent acts of extremism).

308See supra Part I.

309See Kurt Eichenwald, ISIS’s Enemy List: 10 Reasons the Islamic State is Doomed, Newsweek (Sept. 8, 2014, 1:01 PM), http://www.newsweek.com/2014/09/19/isiss-enemy-list-10-reasons-islamic-state-doomed-268953.html (stating that that the United States is ISIS’ primary enemy).

310See Panda, supra note 297 (discussing the ISIS suicide bombing in Afghanistan).

311See Madeline Grant, Reluctant ISIS Jihadists ‘Tied to Tanks to Force Them to Fight,’ Newsweek (Oct. 8, 2014, 1:00 PM), http://www.newsweek.com/reluctant-isis-jihadists-tied-tanks-force-them-fight-276228 (discussing how ISIS forces reluctant militants to fight).

312See S.C. Res. 2170, supra note 67, ¶ 2 (condemning the violent acts committed by ISIS).

313See supra Part V (discussing the failures of the ICC).

314See supra Parts III–V (discussing the failure of international law to solve the ISIS problem).

315See W. Michael Reisman, Thomas Franck & The Use of Force, 104 Am. Soc’y. Int’l. L. Proc. 403, 404 (2010) (“[E]ven illegal action, if instrumental in bringing about results widely desired by a community, will not seriously undermine a resilient legal system, one with the elasticity to make allowances for mitigating circumstances.”).

316See S.C. Res. 2170, supra note 67, pmbl. (reaffirming the independence and sovereignty of Syria and Iraq, as well as condemning the violent acts committed by ISIS).

317See Hurd, supra note 216, at 301–07 (discussing the three cases for legality of humanitarian intervention).

318U.N. Charter art. 2, ¶ 4; see also Thomas M. Franck, Who Killed Article 2 (4)?, 64 Am. J. Int’l L. 809, 809–10 (1970) (discussing that States violate prohibition on the use of force in Article 2(4) of the U.N. Charter and the factors undermining Article 2(4)).

319See Hurd, supra note 216, at 294 (discussing the relevance of treaty law, customary law and black-letter law in interpreting Article 2(4) of the U.N. Charter).

320See id. at 294, 305 (discussing the effects of state practice on fixed international legal principles).

321See Franck, supra note 318, at 809 (indicating that the prohibition on the use of force is generally not followed by States).

322See U.N. Charter art. 2, ¶ 4 (discussing the prohibition on the use of force); U.N. Charter art. 23, ¶ 1 (discussing the duties of the Security Council); see also Franck, supra note 318, at 837 (arguing that the prohibition on the use of force in Article 2(4) has completely eroded because of “the wide disparity between the norms it sought to establish and the practical goal the nations are pursuing in defense of their national interest”). Because ISIS is a threat to the interests of Western nations and potentially the world, Article 2(4) will not prohibit the use of force to defend against ISIS. See Franck, supra note 318, at 837; supra Part II.B.

323See U.N. Charter art. 24. The Security Council has the primary responsibility to act on Member States’ behalf to maintain international peace and security. Therefore, the Security Council is under a duty to act in accordance with the principles of the U.N. Charter to pass resolutions that establish clear standards for armed intervention to suppress the threat of terrorist organizations like ISIS. See id.; see also id. art. 25 (U.N. Member States must agree to accept and carry out the decisions of the Security Council).

324See supra Parts IV.B–C.

325See Daphné Richemond, Normativity in International Law: The Case of Unilateral Humanitarian Intervention, 6 Yale Hum. Rts. & Dev. L.J. 45, 52–53 (2003) (discussing the need for a stricter legal framework with regard to armed intervention).

326See id. at 51 (discussing concerns created by a legal right to intervention).

327See Int’l Comm’n on Intervention and State Sovereignty, supra note 21, at XII.

328See id. at 48.

329See id. at 59 (discussing the requirements for effective coalition building).

330See Richemond, supra note 325, at 52–53 (discussing the need for a stricter legal framework with regard to armed intervention). See also Hurd, supra note 216, at 294.

331 See Richemond, supra note 325, at 52–53; Hurd, supra note 216, at 294.

332Reisman, supra note 315.

Managing Editor, Emory International Law Review; J.D. Candidate, Emory University School of Law (2016); B.A. with distinction, University of Michigan (2013). Thank you to my grandparents. Your strong will to persevere, while keeping your ethnic, cultural and religious roots alive taught me the importance of embracing where you came from, no matter where you are going.