Presentation

In this Article entitled, “Insurgent Legality,” I develop and test a theory arguing that the Islamic State's legal institutions including courts and police were an important factor in the group's initially successful capture and governance of territory in Iraq and Syria in 2014, but these same legal institutions ultimately contributed to the group's collapse in 2017 as they became increasingly flawed by procedural injustice, corruption, arbitrary violence, and discriminatory treatment of the group's own fighters based on national origin.

I want to start out by emphasizing the human dimensions of this research because I think it is really important for scholars of international law to keep in mind that the armed conflicts we are lucky to be able to study from a safe distance are an inescapable reality every day for the populations we write about in articles like this one. So, I just want to briefly show you these few images that I hope provide a very small window into the experiences of Iraqis who lived through the Islamic State's harsh rule in Mosul followed by what has been described as the deadliest urban combat since World War II. These are drawings by Iraqi children who fled Mosul before and during the 2017 battle and were living in nearby internally displaced persons (IDP) camps where I was doing field research at the time. On the left, those are civilians killed by an airstrike and on the right, Islamic State members are shown executing two prisoners, one is being shot by a firing squad and the other is being drowned alive in a cage. These images are hard to look at, but I think they are an important reminder of how devastating this conflict has been for Iraqis and Syrians, whose perspectives I really want to elevate in this Article and my broader research agenda.

This Article begins with an empirical insight from the political science literature on civil wars which is that: most rebel groups engage primarily in warfare and looting, but around a third of contemporary rebel groups seek to govern people and territory for both ideological and strategic reason in a phenomenon known as “rebel governance.” This Article is an empirical study of the Islamic State as a case of “rebel governance,” which I argue offers insights into the importance of legal institutions both for the rise and failure of state-building projects. The Islamic State is an example of a de facto state that has no interest in being recognized by other states or the UN, which it regards as fundamentally illegitimate, but the group nonetheless displayed some of the same attributes and patterns seen in the development of early states in medieval Europe. These common patterns include the early establishment of courts in the sequence of state-building activities, which usually appeared before legislatures and more coercive and extractive institutions like taxation and mandatory military conscription. And another commonality was the use of corporal punishments and executions as public spectacles that were intended to promote deterrence and obedience by spreading fear.

Although the Islamic State is best known for its extreme violence against its own population of Sunni Muslim civilians as well as other religious groups, including a genocide against the Yazidi minority in Iraq, the group also operated institutions including courts, police, and hospitals that provided some degree of security and basic services to the civilian population in an attempt to build legitimacy. The Islamic State's model of governance was an extremely authoritarian one in which its claim to legitimacy was based on providing protection and some very basic services to civilians in exchange for their strict compliance with its ideology and rules, which is obviously very different from how legitimacy is understood in liberal democracies based on consent of the people. But nonetheless, political scientists have argued that so-called “authoritarian legitimacy” is possible when undemocratic regimes provide enough security and basic services to maintain a critical mass of supporters, and when their intelligence and security institutions are strong enough to prevent mass uprisings.

Before I get into my theory and evidence from the case of the Islamic State, I just want to take a moment to try to situate this project in other recent research on the Islamic State, much of which has come out of the field of terrorism studies, which has in recent years come under a lot of criticism for its lack of methodological rigor, frequent reliance on English-language primary sources, and insufficient attention to the expertise and perspectives of scholars from the Middle East. Some research in this field has also been criticized for promoting Islamophobia by singling out of self-described Islamist groups like the Islamic State as if they are somehow uniquely radical and morally depraved among the vast number of ideologically motivated armed groups throughout history, which include white supremacist extremist groups that identify with Christianity, Buddhism, and religions other than Islam. So I hope that this Article will be read not only as an Article about the Islamic State but as an invitation to a broader research agenda that takes a comparative empirical approach to studying the internal governance and legal systems of violent extremist and criminal groups around the world including here in the United States.

Returning now to the central argument of the Article, I argue that the Islamic State's rapid capture of territory in Iraq and Syria in 2014 was driven by longstanding historical grievances. First, Syrians and Iraqis had experienced many forms of state-perpetrated injustice including unfair trials or arbitrary detention without any trial at all, bribery by government officials, as well as torture and other very serious human rights violations. Both countries had Shia-dominated governments and Sunni Muslims were politically and economically marginalized, and they also experienced sectarian discrimination and profiling by police—similar to racial profiling. Second, both states were very corrupt and failing to provide their citizens with basic infrastructure, essential services as basic as clean drinking water, and job opportunities. Third, both countries had experienced Western colonial intervention and occupation, and one of the Islamic State's objectives was to recapture lands that it claimed were wrongfully stolen from Muslims.

The Islamic State exploited these grievances to build local support in Iraq and Syria by promising to deliver good governance and rule of law in a utopian Islamic society, and I will just give one example from some of the group's early propaganda which reads: “The people are as equal as the teeth of a comb and there is no difference between the strong and the weak and the grievance of an injured party will be redressed.” Even though the Islamic State ultimately failed to fulfill these promises, they initially had some resonance with Iraqis and Syrians who were frustrated with injustice, economic inequality, and corruption. After capturing major cities in Syria and Iraq in 2014 the Islamic State announced the establishment of a caliphate purportedly based on the original seventh century model of Islamic governance which was to be governed by its very selective and extreme interpretation of Islamic law. While the Islamic State was building its own state, the group also wanted to destroy what it viewed as artificial and illegitimate man-made states and their man-made laws and borders, as shown here in a video of Islamic State fighters using a bulldozer to destroy the physical boundary between Iraq and Syria, which was symbolically significant to the Islamic State as one of the borders created by the Sykes-Picot agreement between Great Britain and France that had demarcated European countries’ territorial claims to the former Ottoman Empire. So the Islamic State saw itself as reclaiming historically Muslim lands that it believed were unlawfully stolen by first by medieval Crusaders and later by colonial European powers.

At the height of its expansion in 2014, the Islamic State controlled around 34,000 square miles of territory with a population of more than ten million people. As the Islamic State captured territory, it also captured the institutions of the Syrian and Iraqi states including courts, hospitals, and schools, and modified these institutions to serve its ideological and strategic purposes by introducing new laws and educational curricula, among other changes. In the theory I advance in this Article, I argue that an insurgent group's establishment of a legal system that is perceived by the local population as relatively more effective and fairer than that of the state it seeks to overthrow or secede from can greatly facilitate its capture and governance of territory.

In successful state-building projects, the emerging state generally establishes legal institutions and service-providing institutions first and only later, after building a new social contract and some degree of legitimacy with the local population, are they able to impose extractive policies including taxation and military conscription that tend to be unpopular and are often met with non-compliance (such as tax evasion) and in some cases resistance, both peaceful and violent. And this pattern, where legal institutions and services tend to appear before extractive policies, has been observed not only in cases of rebel governance like the Islamic State but also in the formation of early nation-states in medieval Europe. However, I argue that if an insurgent group's legal system is flawed by procedural injustice, corruption, discrimination against minority groups, and arbitrary violence, it will lose local support and become more vulnerable to collapse either from within the organization due to infighting and defections, or by external military defeat.

I will now present some evidence for this theory from quantitative and qualitative data I have collected over the last several years. I built a dataset that maps the activities of the Islamic State's various institutions and policies across space and time in the twenty-one districts of Syria that the Islamic State governed to between 2014 and 2017 in eight of the country's fourteen provinces, and this dataset is based on more than two thousand Arabic primary sources. These sources include Syrian newspaper articles, reports by local human rights organizations, social media posts by known Syrian journalists, activists, and other eyewitnesses in or near Islamic State-controlled areas, and documents that the Islamic State issued for day-to-day administrative and governance activities, such as traffic tickets, real estate deeds, and birth or marriage certificates. Importantly, these Islamic State documents should not be considered “propaganda” because they were artifacts of the group's actual activities on the ground in Iraq and Syria that were not intended for widespread public distribution, unlike the outward-facing propaganda including videos and magazines that the group produced in many different languages including English, which were designed for consumption by international audiences and aimed to persuade foreigners outside of Iraq and Syria to join the group. My dataset does not include any sources from the Islamic State's own propaganda, which obviously presented a biased view of the group's governance activities that was often very inconsistent with realities on the ground, and this has been a criticism of other research based primarily or exclusively on Islamic State propaganda.

Here is a snapshot of part of the dataset with letters representing policies and institutions, so at the upper left of the screen you'll see that there is a P circled in red which stands for police, and this indicates that in the Syrian district of Raqqa, the first institution established by the Islamic State was a police force in July 2013. Here is one example of a primary source from the dataset, which is a photograph of a utility bill issued by the Islamic State's department of services for drinking water in Iraq. And this is a post by a Twitter user reporting that the Islamic State was collecting taxes from cattle farmers in Syria.

My data also includes an original door-to-door survey of more than 1,400 residents of the Iraqi city of Mosul, which was the Islamic State's former capital, and interviews with more than three hundred Syrians and Iraqis who lived in Islamic State-controlled areas conducted over more than two years of field research in Iraq and southern Turkey. The data shows that the Islamic State generally established legal institutions, courts and police, before it imposed other more extractive and unpopular policies like taxation, and before it began forcibly conscripting civilians into its military.

One of the first things that the Islamic State did after capturing new territory was to issue a constitution-like document that it called a “charter of the city” shown here with thirteen articles that promised to provide the population with services, protection, and some very minimal basic rights like property ownership in exchange for their compliance with its laws, and I argue that this was a kind of social contract, although an extremely authoritarian one that did not offer some of the most important rights of freedom of speech, political expression, and religion. Despite its authoritarianism, which became increasingly harsh over time, the Islamic State's system of governance was at least initially perceived by some civilians as relatively more effective and less corrupt than the Syrian and Iraqi states. In the survey I conducted in Mosul, 39 percent of respondents perceived an improvement in the cleanliness of Mosul's streets and 38 percent perceived a decrease in the amount of crime after the Islamic State captured Mosul in comparison with the previous period of Iraqi government rule. Just briefly, the survey was conducted door-to-door using a three-stage random sampling procedure, but I have a lot more to say about the methodology and research ethics in the Article.

Although many respondents initially perceived the quality of the Islamic State's governance as relatively better or at least less bad than that of the Iraqi state, this was short-lived as the Islamic State's legal system became increasingly corrupt and violent over time, undermining the group's legitimacy and contributing to its eventual collapse. When the Islamic State first captured cities and imposed its strict laws including bans on cigarettes, music, and other activities that it claimed were un-Islamic, enforcement was initially lenient while the population learned and adjusted to the new rules. Over time, however, the punishments became increasingly harsh and arbitrary and by 2015, cigarette sellers who would have been let off with a warning in the early days of the Islamic State rule were being thrown into prison and publicly beaten. Importantly, the Islamic State continued to provide a legal justification for these punishments by adopting increasingly broad and extreme interpretations of some of the most serious crimes in Islamic law particularly apostasy, which refers to the abandonment of Islam, and blasphemy, which refers to sacrilegious speech against God. And as the Islamic State faced growing opposition resistance from the civilian population as well as dissent and infighting within its own ranks, the group increasingly tried to eliminate opposition by accusing its critics of blasphemy and apostasy, which are both capital crimes. While the Islamic State was becoming increasingly authoritarian toward civilians, it was also starting to lose control over its own members. In the early stages of the Islamic State's rule, the group did maintain some degree of internal discipline and punished its own members if they were caught committing crimes against civilians or other abuses of power such as theft and smuggling illegal goods. But over time, reports of corruption and misconduct by Islamic State fighters became more common and were also less likely to be punished. As the leadership became increasingly preoccupied fighting a losing battle against the international military coalition, they no longer had the time or ability to monitor or punish misconduct within their own ranks as they had done previously.

Furthermore, many of the Islamic State's Syrian and Iraqi members were becoming frustrated with the group's preferential treatment of foreign fighters, which contradicted the group's purported commitment to equality in the statement I showed earlier. Foreign fighters often received higher salaries than their Syrian and Iraqi counterparts, as well as free housing and other benefits. And whereas foreign fighters were rapidly promoted to leadership positions, Syrians were often assigned to the most dangerous jobs on the front lines—particularly Syrians who were distrusted by their commanders either because they were suspected of planning to defect or were viewed as being insufficiently committed to the cause. As Syrian and Iraqi fighters became increasingly aware of discrimination and hierarchy based on national origin, many felt that they were being treated as second-class citizens by the Islamic State and became increasingly resentful.

At the same time, the Islamic State was increasing taxes and imposing forced conscription on civilians to replace the fighters it was losing with casualties and desertions, but it was rapidly losing the ability to provide services and security as airstrikes destroyed its critical infrastructure and institutions, and this led to the collapse of the social contract civilians were originally offered by the Islamic State, which was based on the provision of services and safety in exchange for the population's compliance with its rules.

By late 2016, the Islamic State had lost whatever legitimacy it had initially established and acts of resistance by the civilian population became more common including assassinations of its officials, attacks on its property and buildings, and demonstrations. Here is just one example from Syria where a group of women staged a demonstration outside of an Islamic State court to protest the arbitrary detention of their sons, and I am working on incorporating many more examples of resistance into the Article. In conclusion, the Islamic State's legal system was initially perceived as relatively fair, although harsh, and this helped the Islamic State gain control of territory and build local support in Iraq and Syria. But as the Islamic State lost its ability to maintain law and order and its members increasingly violated their own rules with impunity, the legitimacy of its rule collapsed as it became clear to Iraq and Syrian civilians that the group had failed to fulfill its promises of justice and security.