By expert Mara R. Revkin*, Yale Law School for the Harvard National Security Journal.
Abstract
Many existing U.S. counter-terrorism policies, including those governing targeting and detention, rely on an empirical assumption that terrorist groups are primarily military organizations. This assumption may be appropriate for the case of al-Qaeda, but it fails to describe terrorist groups that engage not only in warfare but also in governance and state-building such as the Islamic State, a self-declared “caliphate” that—at the height of its expansion in 2014—claimed sovereignty over an estimated 34,000 square miles and 10 million civilians. This Article identifies a category of “state-building” terrorist groups that can be distinguished by the following characteristics: (1) the presence of a non-military wing analogous to a civilian bureaucracy that provides services, including food, electricity, and healthcare to the governed population; (2) dual-use institutions that simultaneously perform military and civilian functions; and (3) a degree of coercive control over civilians that creates observational equivalence between victims and supporters of the group. As a result of these characteristics, existing targeting frameworks that were designed for primarily military groups such as al-Qaeda tend to penalize civilians when applied to state-building terrorist groups that govern people and territory. The argument is supported with archival Islamic State documents, social media data generated by users in or near Islamic State-controlled areas of Syria and Iraq, interviews with former Islamic State combatants and civilian employees, and original data on the targeting of 11 different zakāt offices on 19 different occasions. These zakāt offices, which are located in densely populated urban areas and simultaneously collect taxes (a war-sustaining activity) and distribute cash assistance and food to civilians (a humanitarian activity), illustrate the costs of targeting dual-use institutions that perform both military and civilian functions. The Article concludes with targeting recommendations that take into consideration the structural vulnerability of civilians living in areas controlled and governed by terrorist groups while still allowing governments to prosecute civilians who aid such groups under domestic material support laws.
I. Introduction
Many existing U.S. counter-terrorism policies, including those governing targeting and detention, rely on an empirical assumption that terrorist groups are primarily military organizations. According to this logic, which is central to a postSeptember 11th counter-terrorism paradigm that was heavily influenced by and remains oriented around the threat posed by al-Qaeda, all members of terrorist groups are presumptively combatants, and all of their activities are military or warsustaining in nature. This assumption may be appropriate for the case of al-Qaeda, but it fails to describe terrorist groups that engage not only in warfare but also in governance and state-building. An important contemporary case of the latter is the Islamic State, a self-declared “caliphate” that—at the height of its expansion in 2014—claimed sovereignty over an estimated 35,000 square miles and ten million civilians,1 whom it refers to as to as al-nās (“the people”)(2) or al-riʿāya (literally, “the flock”).(3)
This Article identifies a category of terrorist groups that engage in “statebuilding,” defined as the creation of administrative and coercive institutions designed to govern people and resources within a defined territory. (4) Examples of state-building terrorist groups include the Islamic State, the Taliban, the Irish Republican Army (IRA), and the Revolutionary Armed Forces of Colombia (FARC), among others. Given the absence of a definitional consensus on the meaning of “terrorism” in international law,(5) this Article defines “terrorist groups” as entities that are legally designated as such by states, focusing on a particular subset of terrorist groups that are engaged in armed conflict with the United States and therefore implicate international humanitarian law (IHL) and customary international law. Among the various armed groups that engage in terrorism, statebuilding terrorist groups can be distinguished from others by the following characteristics: (1) the presence of a non-military wing analogous to a civilian bureaucracy that provides services, including food, electricity, and healthcare, to the governed population; (2) dual-use institutions that simultaneously perform military and civilian functions; and (3) a degree of coercive control over civilians that creates observational equivalence(6) between victims and supporters of the group. As a result of these characteristics, targeting doctrines that were designed with primarily military groups such as al-Qaeda in mind tend to penalize civilians when applied to state-building terrorist groups that govern people and territory.
The increasing rate of civilian casualties over the course of the U.S.-led campaign against the Islamic State, which reached an all-time high of 1,200 in the month of March 2017,(7) calls for scrutiny of current targeting policies, particularly in light of concerns that President Donald Trump’s Administration was seeking to “dismantle or bypass” restrictions on targeting.(8) In addition to the possibility that current targeting policies are violating IHL,(9) anecdotal evidence suggests that these policies are counter-productively impacting Iraqi and Syrian public opinion toward the United States in ways that may ultimately increase support for the Islamic State and other insurgent groups. As Belkis Wille, the Iraq researcher for Human Rights Watch, described the mood in refugee camps near Mosul, “Remarkably, when I interview families at camps who have just fled the fighting, the first thing they complain about is not the three horrific years they spent under ISIS, or the last months of no food or clean water, but the American airstrikes.”(10) The evidence presented in this Article, which was collected over the course of five months of fieldwork in southern Turkey and Iraq, includes primary source documents produced by the Islamic State, social media data generated by internet users in or near Islamic State-controlled areas of Syria and Iraq, interviews with former Islamic State combatants and civilian employees, and original data on the targeting of 11 Islamic State zakāt offices on 19 different occasions.(11) These zakāt offices, which are located in densely populated areas and simultaneously collect taxes (a war-sustaining activity) and distribute cash assistance and food to impoverished civilians (a humanitarian activity), illustrate the potential costs of targeting dualuse institutions that simultaneously perform military and civilian functions.
Part II presents a brief history of the current U.S. counter-terrorism paradigm since its origins in the aftermath of the September 11th attacks to argue that this paradigm has failed to adapt to important changes in the landscape of global terrorism since 2001, including the rise of “state-building” terrorist groups. Part III generates typologies to illustrate how state-building terrorist groups differ from two other types of terrorist groups—(1) non-territorial and (2) territorial but non-governing—in ways that have important implications for the targeting of personnel and objects. Parts IV and V present primary-source evidence in support of the argument that existing targeting policies designed for al-Qaeda and other primarily military terrorist groups tend to penalize civilians when applied to statebuilding terrorist groups such as the Islamic State. Part VI offers targeting recommendations that take into consideration the structural vulnerability of civilians living in areas controlled and governed by state-building terrorist groups while still allowing governments to prosecute civilians who aid such groups under domestic material support laws. The Appendix describes the methodology and sources of data upon which the Article is based.
Suggested Citation:
Redlich Revkin, Mara, When Terrorists Govern: Protecting Civilians in Conflicts with State-Building Armed Groups (January 29, 2018). Harvard National Security Journal (Vol. 9, January 2018). Available at SSRN: https://ssrn.com/abstract=3047495
* Ph.D. Candidate in Political Science, Yale University. J.D., Yale Law School. The research for this article was conducted during a fellowship with the Abdallah S. Kamel Center for the Study of Islamic Law and Civilization at Yale Law School, where I benefited from conversations with the Center’s directors, Owen Fiss and Anthony Kronman. Diane Marie Amann, Joshua Andresen, Melissa Durkee, Jonathan Petkun, and participants in the 2017 ASIL Research Forum offered valuable suggestions on an earlier draft. I am especially appreciative of careful editing and thoughtful comments by Kendall Howell, Neha Sabharwal, Christopher Izant, Drew Domina, Azfer Khan, Tom Ewing, Pamela Gaulin, Alexander Cottingham, Caterine Morton, Kwame Newton, Jillian Rafferty, and Shira Shamir of the Harvard National Security Journal throughout the editorial process.