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CYIL 7 ȍ2016Ȏ
ISLAMIC STATE, AN ACTOR THREATENING PEACE IN THE MIDDLE EAST
consider the Islamic state a
de facto regime,
the question of its continuity and stability
arises; that is, if it is an entity which may last for a longer time. Another question is
the ambition of the Islamic state to establish itself in the international community
and be recognized by some states of this community.
However, if we considered the Islamic state as a
de facto regime
, according to the
definition of van Essen
25
a
de facto regime
enjoys at least a certain form of international
legal subjectivity and must be considered as relevant legal actors in the international
community.
The Islamic state
, however,
lacks
such status and is
considered a terrorist
organization.
From this point of view it does not enjoy protection from the perspective
of international law, and therefore the
provisions of the international law do not apply
.
For example, part of the legal doctrine assumes that
de facto regimes
are
protected
as
well as
bound
by the prohibition of the use of armed forces
.
Even if we did not take into account whether the existing states recognize or do
not recognize a new entity which may not be that significant for the possible creation
of a new state, it is highly questionable if a new state can be based on
terror towards
the local population
and on
disrespect
for the rules of the international law. Creation
of a state based on terror towards individuals living on its territory is in direct
contradiction to the mission of the state and especially against current international
law. The mission of a state is to protect lives, property and other rights of its citizens.
This can clearly be implied from international protection of human rights. The
obligation to respect basic human rights is primarily the result of the fact that these
rights are of customary character and had impact
erga omnes. Even the de facto regime
can be seen as responsible for the protection of human rights,
26
as they have to respect
them as customary international law.
27
Serious and extensively committed breaches of
human rights are considered to be criminal acts that affect the whole international
community. The breach of peremptory norms of international law can lead to serious
consequences
erga omnes,
which means towards the whole international community.
On this basis responsibility arises not only for the given state but also for those
individuals who commit crimes against international law.
The Islamic state could in a certain sense be compared to Nazi Germany. As
Maršálek states, “Nazi law abandoned or even refuted traditional values as the basis
of law – freedom, equality, solidarity, fairness and legal certainty. Instead of them it
brought its own values derived from the Nazi ideology …”.
28
Similarly the Islamic
state derives from an ideology which leads to a breach of current international law.
The Islamic state uses terrorist methods that are disapproved by the international
community. These acts are acts of terror committed on the territory of other states
25
Ibid
., p. 34.
26
Ibid
., p. 271.
27
Ibid
., p. 272.
28
MARŠÁLEK Pavel. Legalita a legitimita Norimberského procesu in: BÍLKOVÁ VERONIKA (ed.).
Mezinárodní humanitární právo
. Praha: Univerzita Karlova v Praze, 2015, p. 178.