57 / 536
43
CYIL 7 ȍ2016Ȏ
ISLAMIC STATE, AN ACTOR THREATENING PEACE IN THE MIDDLE EAST
without the agreement of the respective state governments against the suspected
terrorists in Somalia and in Pakistan.
61
Russia reacted to the USA air strikes in Syria with a statement which describes
them as contradictory to international law. The Russian minister of foreign affairs
stated that air strikes are only permissible by international law with
explicit consent
of the Syrian government or by a relevant resolution of the UN Security Council.
62
Also Turkey claims the right to self-defence in the sense of Article 51 of the UN
Charter both against the Islamic state, like the USA, and against the Kurdistan
Workers’ Party (PKK) which operates on the territory of Syria.
63
Turkey is claimed to
have conducted about 500 attacks against the Kurdistan Workers’ Party (PKK) and
Kurdish militia who were active on the territory of Syria in August 2015, but only
3 attacks against the Islamic state.
64
It is questionable, however, whether the right to
self-defence is legal in case the state from whose territory the attack stems is
unwilling
or unable
to prevent such an attack. This argumentation has been used by the USA in
several cases, especially in justifying their intervention in Afghanistan in 2001. In this
case the intervention of the USA was in a way supported by UN Security Council
Resolution No. 1267/1999, which requires the Afghan Taliban to cease its provision
of sanctuary and training for international terrorists and their organizations and take
appropriate effective measures to ensure that the territory under its control is not
used for terrorist installations and camps. The concept of unwillingness or inability
has been used by the USA in other cases against suspected terrorists
–
for example in
the above mentioned cases in Somalia and Pakistan.
65
In this relation it is worth mentioning that the concept of unwillingness or
inability is considered by the legal doctrine which examines what support of terrorist
activity is. P. Starski, for example, mentions that support of terrorist activity is not
uniform and can be compared to a cascade of different levels of state participation.
66
She distinguishes nine levels of involvement, from express support in the form
of financing and delivery of weapons to such cases which can be described as
unwillingness or inability. The fifth level is when the state tolerates these activities
by remaining passive or refrains from prosecuting the perpetrators. Another level
is when the state just fails to prevent a specific attack or to prosecute the offenders
in its aftermath out of mere (negligent) ignorance. The seventh level is incapacity;
the eighth is when they might not take counteraction against terrorist activities in
61
Ibid
., p. 204.
62
Ibid
., p. 206.
63
STARSKI, Paulina. Right to Self-Defense, Attribution and the Non-State Autor- Birth of the “Unable or
Unwilling” Standard?
Zeitschrift fur auslandisches offentliches Recht und Volkerrecht
, 2015, Vol. 75, p. 500.
64
Ibid
.
65
CONTEMPORARY PRACTICE OF THE UNITED STATES. United States Deepens Its Engagement
with ISIL Conflict.
American Journal of International Law
, 2015, Vol. 109, No. 1, p. 204.
66
supra n. 63, p. 459.