LAW OF ARMED CONFLICT
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 in 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 U.S. 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. This argument is supported by 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 zakat offices on 19 different occasions. These zakat offices, which are located in densely populated urban areas, simultaneously collect taxes (a war-sustaining activity) and distribute cash assistance and food to civilians (a humanitarian activity), and 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.
A house in Mosul, Iraq, destroyed by airstrikes in 2017 during the military operation against the Islamic State, still not rebuilt more than two years later (February 2019)
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IHL is the body of law that governs armed conflict. It is designed to protect combatants and civilians of all genders by restricting the means and methods of warfare. Although IHL has a track record of meaningfully protecting the rights of people in conflict-affected areas over the past five decades, there are notable shortcomings and blind spots in its ability to address the gendered dimensions of conflict. While the authors of the report do not advocate for the merging of these two agendas, they argue that there is potential to broaden the focus of the WPS protection pillar to ensure women and girls are safe from all forms of violence, and to use IHL to add legal force to the WPS agenda. Three case studies on the militaries of South Africa, Israel, and the United States highlight progress and challenges around WPS implementation and IHL compliance. South Africa is a case in which the military is engaged in peacekeeping operations, with frequent allegations made against it of sexual assault against civilians. The United States is a case in which women’s participation in combat roles has increased significantly in recent years, as well as one in which soldiers are deployed in nonconflict situations (such as partner military training missions and black-site prison facilities) where IHL does not formally apply. Israel has the largest rate of women’s participation of any state military in the world. These cases demonstrate persistent shortcomings but also crucial opportunities to better leverage WPS to promote IHL compliance and improve women’s protection.
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