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JAN ONDŘEJ – MAGDA UXOVÁ
CYIL 7 ȍ2016Ȏ
above), the Security Council did not adopt any resolution which would solve the
conflicts on the territory of Iraq and Syria. The proposals of resolutions on Syria were
vetoed by Russia in 2012.
45
In such cases the general international law and Article 51
of the Charter of the United Nations grant the states the right for individual and
collective self-defence in the case of armed attack until the Security council takes the
appropriate measures to maintain international peace and security. Considering the
military actions in support of Iraq and Syria by the USA, Russia and other states, the
question of practical application of the right to self-defence arises.
In the case of Iraq there is no particular problem from the point of view of
international law. The intervention is conducted on the basis of the
agreement of
the territorial sovereign.
46
The air strikes conducted by the USA and other states’
air forces follow a request of the Iraqi government in a letter of 20 September 2014.
Following, the letter addressed to the Security Council president expressed Iraqi
government position which welcomes the promise made by 26 states to provide
the Iraqi government with all the necessary help in the fight against ISIL, including
appropriate military assistance through air cover in cooperation with Iraqi armed forces
and in accordance with international law.
47
The invitation of the Iraqi government is
considered the
legal basis for the intervention
; however, Great Britain also referred to
Article 51 of the UN Charter which regulates the right to self-defence and announced
it to the Security Council.
48
No particular UN resolution authorizing the intervention
into the Iraqi territory was adopted; however, there is a broad consensus within the UN
about the activities of ISIL.
49
As to the coalition air strikes in Iraq, it can be said that
they are conducted on the basis of Iraqi government approval. We can from the legal
point of view consider if this is a practical implementation of the right to collective
self-defence. The right to self-defence can without doubt be applied in the case of an
armed attack of a state. An
attack of a de facto regime
could be considered such an attack
Much more arguable is the issue of an attack by an actor which is not a state,
a terrorist organization such as the Islamic state is considered to be. The question of the
right to self-defence against non-state actors was also raised by Higgins.
50
Nevertheless,
other authors, for example Cassese or Stahn, do not exclude this option. Cassese
51
45
MALENOVSKÝ, Jiří.
Mezinárodní právo veřejné. Obecná část a poměr k jiným právním systémům
.
6. vydání. Brno: nakladatelství Doplněk, 2014, p. 357.
46
RONZITTI, Natalino. The Intervention against the Islamic State under International Law
. International
Relations and Security Network (ISN)
7 November 2014.
47
CONTEMPORARY PRACTICE OF THE UNITED STATES. United States Deepens Its Engagement
with ISIL Conflict.
American Journal of International Law
, 2015, volume 109, No. 1, p. 202.
48
HIGGINS, Rosalyn. The United Nations at 70 Years: The Impact upon International Law.
International
and Comparative Law Quarterly
. 2016, volume 65, p. 14.
49
Ibid
.
50
Ibid
., p. 13.
51
CASSESE, Antonio cited in: ONDŘEJ, Jan.
Odzbrojení, prostředek zajištění mezinárodní bezpečnosti
.
2. vydání. Plzeň: Aleš Čeněk, 2008, p. 132.