#ISIS: The Largest Threat to World Peace

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Annalise Lekas ∗

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. 1
The suffering of young Yazidi women at the hands of the Islamic State of Iraq and Syria (ISIS) is
unending. 2 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. 3 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. 4 As daily death tolls
multiply, the number of Muslims seduced into militancy simultaneously increases. 5 ISIS wishes to
establish a State that encompasses the Arab World. 6 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. 7
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. 8 The
Islamic State’s fanaticism and disciplined organization is similar to the Khmer Rouge in Cambodia
and the Nazi Regime. 9 On top of employing tactics of intimidation and public punishment, ISIS aims
to exterminate entire categories of people. 10 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. 11 Despite ISIS’ dominant presence, it is most successful
against those who cannot or will not fight back. 12 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. 13 The progression of international law demonstrates a
commitment to protecting human rights over national sovereignty. 14 Further, the preamble to the
United Nations (U.N.) Charter reaffirmed human rights as foundational to the organization’s
mission. 15 Now, the ICC serves to bring perpetrators of international crimes to justice, a notion that
once seemed unimaginable on an international scale. 16 However, despite immense advances, the
international community struggles to suppress self-initiating terrorist organizations like ISIS. 17
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. 18 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. 19 The eradication of terrorist organizations like ISIS will require a long-term strategy. 20 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.” 21 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 22
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.’” 23 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.” 24 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. 25 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. 26
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. 27 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.” 28 Ultimately, Islamic imperial rule ceased when
the Ottoman Caliphate fell after World War I. 29 The “imperialist dream” and the “link between
religion, politics, and society” created during the Ottoman Empire lasted long after its fall. 30Despite a
vast history of imperial rule, the Middle East Arabic speaking population never integrated or
regarded themselves as one nation. 31 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. 32Militant 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.” 33

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 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. 35Upon his release in 1999, Al-Zarqawi moved to
Afghanistan to meet with Osama bin Laden, but he decided not to join Al-Qaeda forces. 36 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. 37
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. 38 Eventually, the Party
joined forces with Al-Qaeda as Al-Qaeda in Iraq. 39 Later, in 2006, Al-Zarqawi was killed in United
States-led airstrikes, dismantling the Iraqi branch of Al-Qaeda. 40 However, in 2011, when United
States troops completely withdrew from Iraq, Abu bakr al-Baghdadi assumed control and amplified
al-Zarqawi’s ideology. 41 In 2014, the party severed all ties with Al-Qaeda Iraq, and rebranded itself as
ISIS. 42 ISIS is a modernized splinter of Al-Qaeda that seeks to reinstate the Caliphate by creating an
Islamic State that spans the Arab world. 43 At the helm of ISIS is Caliph al-Baghdadi, a former
detainee at an American camp in Iraq. 44 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.” 45
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. 46Primarily, ISIS took to the Internet to disseminate their message to the world by posting
videos, creating memes, and tweeting. 47 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. 48 Secondly, the group’s avid use of social media inspired worldwide terror, while also
reaching new members through “highly ritualized killings.” 49 On the one hand, videos detailing
beheadings of American journalists and British aid workers were meant to intimidate the
world. 50 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. 51 ISIS even tweeted pictures of their black and white flag in
front of the White House. 52Twitter and YouTube tried to derail ISIS’ advertising campaign by
shutting down accounts, removing videos, and promoting hashtags such as
#ISISMediaBlackout. 53 Nevertheless, ISIS continues to garnish support for their cause. 54

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. 55 As of September 2014, CIA reports estimated that ISIS
had recruited 31,500 fighters in Iraq and Syria from eighty-one different countries. 56 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. 57 Moreover,
ISIS has been successful in rallying support from civilians who remain in their home country. 58 In
September 2014, a New York storeowner attempted to sell his business to donate the proceeds to
ISIS. 59 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. 60 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.” 61 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. 62 ISIS’ largest, most profitable source of funding is
oil. 63 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. 64 As of April 2015, the Islamic State
maintained control over about one-third of Syria and nearly one-third of Iraq. 65 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. 66
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. 67 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. 68 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. 69 Many stores are closed, and food supplies is limited. 70 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. 71 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. 72 The videos denounce the U.S. and other Western Nations, issuing direct
threats to President Obama. 73 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. 74 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. 75Although 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. 76
As disturbing videos circulate, ISIS has made plays to expand beyond Syria and Iraq. 77 In January
2015, militants responsible for an armed assault in Libya pledged their allegiance to ISIS. 78 In
addition, following the overthrow of the Yemeni government, local jihadi groups pledged their
allegiance to ISIS. 79 In March 2015, twin suicide bombings occurred during prayers at two mosques
in Sanna, the Yemeni capital, and killed approximately 120 people. 80 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. 81 The terrorist organization also claimed
responsibility for the deadliest terror attack in Tunisia, and founded new chapters in Afghanistan,
Pakistan, and Saudi Arabia. 82 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. 83

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. 84The 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. 85 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. 86

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].” 87 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. 88
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. 89The U.S. conducted airstrikes against Al-Qaeda targets to advance this
argument. 90 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. 91 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. 92 The
U.S., France, Britain, Australia, Jordan, and Saudi Arabia, among others, continue to conduct
airstrikes. 93 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. 94 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. 95 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. 96 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. 97 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. 98 On March 31, 2015, Iraqi Prime Minister
Haider al-Abadi announced that Iraq had successfully recovered Tikrit from ISIS. 99 Iraqi forces
planned an offensive on Mosul in April or May of 2015. 100 Yet, despite current world action, ISIS
continues to seize new territory. 101Airstrikes have forced ISIS caliph al-Baghdadi into hiding, but the
air campaign has not stopped ISIS from committing acts of violence. 102

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. 103 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

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. 105 Largely, the Charter prohibits the use of force by one State against
another. 106 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.” 107 However, under Chapter VII,
the Charter details two circumstances under which States may resort to the use of force against
another State. 108 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. 109 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. 110 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. 111 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. 112 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. 113
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. 114 If the U.N. Security Council sanctions armed intervention,
the intervention is legally justified. 115Throughout its history, the Security Council has sanctioned
peacekeeping missions in the Korean War, the Gulf War, and in Libya. 116 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. 117
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. 118 Before resorting to armed intervention,
however, an armed attack must occur. 119 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. 120 Although the right
of self-defense against non-state actors exists, the right to self-defense is not without
limits. 121 Rather, the lawful use of self-defense depends on the fulfillment of three conditions:
necessity, proportionality and immediacy. 122

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. 123 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. 124 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 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. 126 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. 127 The U.S.’s response was
disproportionate because El Salvador neither faced nor imminently feared an armed attack by
Nicaragua. 128 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.” 129 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.” 130Nicaragua 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. 131
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. 132 The Court
applied Nicaragua and held that Israel should terminate the construction of the wall. 133 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. 134 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. 135 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. 136
Similarly, the international legal system questioned the legality of an armed response to the terrorist
attacks of September 11, 2001. 137 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. 138 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. 139 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. 140
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. 141 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. 142 A cross-section of the world has
united to suppress the movement and defeat ISIS. 143 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. 144 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. 145 Collective self-defense justifies States’ resort to armed intervention in Iraq, but fails to
justify necessary armed intervention in Syria to stop ISIS. 146
In Iraq, collective self-defense justifies States’ armed intervention. 147 ISIS’ actions pose an imminent
threat to Iraq because the terrorist organization continues to attack schools and hospitals, kill
civilians, and displace minorities. 148 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. 149 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. 150 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. 151 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. 152 Iraq expressly called upon the U.S. to act in collective self-defense and lead
international efforts to stop the Islamic militants. 153Arguably, 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. 154 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. 155 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. 156
However, armed intervention in Syria is more difficult to legally justify. 157 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. 158First, 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. 159 Yet only eight out of
twenty-two air strikes target the Khorosan group, an obscure organization associated with Al-
Qaeda. 160 ISIS is not affiliated with Al-Qaeda, as both the groups appear to have distinct and varying
objectives. 161 Rather, ISIS and Al-Qaeda appear to operate independently and battle for global
jihadist leadership. 162 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. 163 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. 164 However, in the past, U.N.
Security Council approval has been difficult to obtain on account of the permanent five veto
powers. 165 All permanent members of the Security Council must agree to sanction armed
intervention and the five members are unlikely to reach a consensus. 166 The veto power stifles
necessary action to suppress gross human rights violations and large-scale threats to world peace. 167
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. 168 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. 169 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. 170 The U.S. needs express consent
from Syria to intervene militarily. 171
Third, the ability to act in collective self-defense in Iraq is not a blanket justification for armed
intervention in Syria. 172Nicaragua 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. 173 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. 174 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. 175 For example, States could prevent trans-
border attacks, but armed intervention could not aim to destroy all ISIS targets in Syria. 176 Lastly,
although ISIS threatens the U.S. and States worldwide, anticipatory self-defense cannot legally
justify intervention in Syria 177 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. 178 As a result, the principle of self-defense bars necessary armed intervention in Syria to
stop ISIS. 179

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. 180 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 . . . .” 181 In advancement of its mission to prevent war and protect human rights, the U.N.
adopted several human rights conventions and doctrines. 182 In 1948, the Universal Declaration of
Human Rights afforded legal recognition to the rights of individuals worldwide. 183 The Declaration’s
thirty articles advanced the principle that all humans universally possess inalienable rights. 184 The
first article states: “All human beings are born free in dignity and rights.” 185“They are endowed with
reason and conscience and should act toward one another in a spirit of brotherhood.” 186The
Declaration also proclaims that every human being worldwide is born free and equal. 187 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.” 188 Principally, “everyone has the right to life, liberty and security of person.” 189 The U.N.’s
desire to prevent religious and political violence is demonstrated in the Declaration’s first three
articles. 190 The international community seeks to use universal human rights as a central mechanism
in safeguarding peace in the world legal system. 191 Humans have a right to life and, moreover, the
right to live securely within their territory of origin. 192
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. 193 The Covenant requires
nations to provide their inhabitants with civil and political freedom. 194 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. 195Self-determination entitles individuals to associate with a
particular group. 196 The right to self-determination refers to a cultural, economic, social, or political
freedom, but the right is not absolute. 197 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. 198
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. 199 Instead, ISIS strips human beings of a life free of
dignity and rights. 200 The terrorist organization acts with disregard for individuals’ right to life,
liberty and security of person. 201 ISIS executes innocent civilians, rapes women, and recruits children
to fight as soldiers in the Jihad. 202 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. 203 The fear
imposed by ISIS extends beyond its territory; ISIS beheads soldiers, reporters, and aid workers,
recording the horror for the world to see. 204 The militants’ tactical use of intimidation terrifies the
world. 205 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. 206 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. 207
In addition, ISIS violates human being’s right to self-determination. 208 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. 209 ISIS persecutes and kills individuals on the
basis of their national, cultural, ethnic, religious, and political affiliation. 210 The imposition of
repressive Shari’a law displaces civil and political rights. 211The militants wish to destroy cultural
property, including shrines and graves that belong to non-Sunni Muslims. 212 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. 213 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. 214

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. 215 As a result, a new viewpoint—humanitarian intervention—is
gaining support in the international legal system. 216 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. 217 If a State severely subjugates human life and continuously commits human rights
violations, then the international community can intervene collectively. 218The theory could earn a
place as a legally recognizable form of armed intervention alongside U.N. Security Council
sanctioned intervention and self-defense. 219
Legal scholars present three justifications for humanitarian intervention. 220 The first justification is
the literalist approach, which focuses on the language of the U.N. Charter. 221 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. 222 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. 223 Humanitarian
intervention instead aims to liberate nationals from the repressive rule of the existing regime. 224 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. 225 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. 226 Indeed, the permanent members often fail to reach a consensus. 227 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. 228 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. 229
In 1989, the Security Council arguably approved humanitarian intervention. 230 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. 231 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. 232 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. 233 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. 234
Although the Kosovo settlement advanced humanitarian intervention, the legality of the theory is
still uncertain. 235 An argument in favor of humanitarian intervention claims that armed intervention
is morally imperative to respond to severe human rights violations. 236 The opposing argument views
humanitarian intervention as a violation of express international law. 237 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. 238 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. 239 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. 240 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. 241 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. 242 Therefore, Great Britain forwent armed intervention, and the
unstable environment in Syria persisted. 243
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. 244 First, the theory of humanitarian
intervention applies to States. 245 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. 246 Second, the theory of humanitarian intervention requires States participating in the fight
against ISIS to overthrow the existing repressive regime and institute democracy. 247Although States
desire to end the human rights violations committed by the terrorists, States do not intend to
overthrow President Assad’s regime in Syria. 248 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.’” 249 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. 250
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. 251 The doctrine centers on the desire to resolve the important contradiction
between humanitarian needs and the principle of state sovereignty. 252 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. 253 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. 254 R2P permits armed intervention in extreme
circumstances that “shock the conscience of mankind, or which present a danger to international
security.” 255 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. 256 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. 257
R2P operates as a valuable starting point; however, the common perception that the doctrine
legitimizes the theory of humanitarian intervention is a misperception. 258 The R2P doctrine does not
redefine sovereignty or the bounds of legal armed intervention; instead, the doctrine simply re-
packages existing State obligations. 259 First and foremost, the intervening State is required to possess
the right authority, meaning the State must seek authorization from the Security Council. 260 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. 261 Either
way, authorization is required. 262 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. 263 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. 264 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. 265
The enforcement of R2P principles has two inherent flaws. 266 First, many regional players default,
especially in the Middle East and North Africa. 267 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. 268 For example, the international community’s inaction in Syria illustrates
the limits of the R2P doctrine. 269 The doctrine should have stopped President Assad’s use of chemical
weapons against Syrian nationals. 270 Yet, the paralysis of the Security Council prevented the U.S.,
Britain, and France from intervening. 271
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. 272

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.” 273 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. 274 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. 275
Despite the R2P doctrine’s aim to facilitate greater collaboration to stop mass atrocities, Islamic
militant groups like ISIS persist. 276 ISIS directly jeopardizes the right to life of people in Iraq and
Syria, and potentially the whole world. 277 The group commits acts that “shock the conscience of
mankind” and “present a danger to international peace and security.” 278 For example, the
organization burned a Jordanian hostage to death in a locked cage. 279 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. 280 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. 281
The ICC brings international law one step closer to suppressing crime. 282 The ICC is founded on
notions set by the Nuremberg trials, which first recognized individual liability for crimes against
humanity. 283 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. 284 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. 285 Article 5 of the Rome Statute allows the Court to investigate and prosecute genocide, crimes
against humanity, war crimes, and the crime of aggression. 286 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. 287 However, the Court can intervene if action
taken by the State reflects unwillingness or inability to carry out the investigation or
prosecution. 288 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. 289To date, the Security Council
has held important tribunals in the former Yugoslavia and Rwanda to condemn individual criminal
actions. 290
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. 291 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 Because
Syria is unwilling or unable to suppress ISIS, the ICC should have the right to prosecute the
militants. 293 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. 294 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. 295 Further, terrorism
is the largest threat worldwide, so ICC jurisdiction must expand to include the crime. 296 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. 297 The ICC cannot put an end to ISIS’s mass atrocities and combat the terrorist group in its
current form. 298
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. 299
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. 300 The international legal system cannot resist the force of human rights; the system
must evolve alongside the trend. 301Terrorist organizations assemble in weaker States that lack the
political, military, and governmental infrastructure to overcome threats like ISIS, such as in Syria
and Iraq. 302 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. 303
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. 304 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. 305 ISIS rebranded Al-Qaeda’s ideologies and amplified the group’s approach. 306 Fanatical
Islamic religious beliefs, that are contrary to the true teachings of the Qur’an, ground ISIS’s
movement. 307 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. 308 Moreover, the group’s biggest hurdles, the U.S.’s and Western ideals, are obstacles the
terrorists seek to remove at all costs. 309Members’ social pathologies motivate them to give their lives
willingly to the Jihadist war in the name of Allah. 310ISIS will stop at nothing in pursuit of its
goals. 311 The terrorist group acts in complete disregard for humanitarian law, committing mass
atrocities on a large scale. 312 Legal recourse, including fear of prosecution in the ICC or the
responsibility to protect the human population, has no hold on the militants. 313 The current
international legal system cannot inhibit the armed intervention required to stop ISIS; thus, it must
evolve to allow such action. 314
States worldwide need more than a moral and ethical conviction compelling them to counterattack
ISIS; States need the force of law. 315 ISIS operates within the bounds of both Iraq and Syria, meaning
effective deterrence requires armed intervention in each State. 316 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. 317 Although Article 2(4) of the U.N. Charter strictly prohibits the use of force,
compliance with its mandates has been inconsistent. 318 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. 319 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. 320 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. 321
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. 322 Clear standards can be established through Security Council Resolutions. 323 The Security
Council previously acknowledged humanitarian intervention through the Kosovo Settlement and
responses to actions in Libya, but must push a step further. 324 First, the Security Council must
recognize armed intervention to stop gross human rights violations, even when the perpetrators are
non-state terrorist organizations. 325 Second, the Security Council must set limits regarding this mode
of armed intervention to prevent abuse. 326 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. 327 The international legal system cannot allow unilateral force, only collective
force. 328 Armed intervention must serve a common interest in preventing mass atrocities,
safeguarding human rights, and maintaining world peace and security. 329Predictability, anticipation
and the elimination of the lack of international consensus will enhance the international legal
system. 330 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 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.” 332 The Security Council
must stand by its duty to maintain international peace and security and evolve to solve the ISIS
problem.