58 / 536
44
JAN ONDŘEJ – MAGDA UXOVÁ
CYIL 7 ȍ2016Ȏ
general due to lack of knowledge and the previous level of incapacity. According
to Starski, levels 5-9 play the most important role in understanding the concept of
unwillingness and inability. She also mentions an important prerequisite: that
the
state offers terrorists “harbor” or “sanctuary”
. All these levels can, according to her, be
qualified as
omission.
67
a question may arise as to to what extent these levels could be
applied in the Syrian situation in the sense of the Syrian government approach. It
cannot be said that the Syrian government is unwilling to fight against the terrorists
of the Islamic state. Its inability could be taken into consideration. When reviewing
the available information, we could consider inability in the sense of not being able
to stop the attacks of the Islamic state. Qualification of these cases as omission seems
to be a rather artificial legal construct. These considerations can be discussed in
relation to the imputability of these acts of a state as illegal behavior which can lead to
international legal liability. We believe, however, that this construction goes beyond
the concept of individual or collective self-defence. From general international law,
but also from the UN Charter as understood by its creators, self-defence could only
be a reaction of a given state or states to an armed attack. Self-defence could only
take place until the UN Council adopted a measure to ensure international peace.
The evaluation of self-defence and its legality was therefore a subsequent evaluation.
In the concept of self-defence as a factual reaction to an armed attack it would be
more appropriate – as some authors (see above) admit – to allow that the armed
attack
may also come from non-state actors
provided the armed attack reaches the scale of an
attack led by a state.
3.2 State of necessity
On the other hand, a state which is attacked in different armed attacks by non-state
actors from the territory of another state may not tolerate this and must defend itself
against these attacks. If the
support of the state,
either
direct or indirect,
to these non-
state actors operating from the territory of such a state cannot be proven, it would
be more appropriate that the state that is the target of these attacks reacted because
of
necessity
rather than using the right to
self-defence.
The reason why this is not
often the case can be seen in the fact that the right to self-defence in Article 51 of the
UN Charter is the only legal way contained in the Charter where a state or states can
legally use armed forces without the consent of the UN Security Council. The concept
of necessity permits measures which are actually necessary to accomplish a legitimate
military purpose and are not otherwise prohibited by international humanitarian law.
It is one of the circumstances which exclude responsibility of states for internationally
wrongful acts in the articles on the responsibility of states of 2001. Its
application of
using the armed force
may be
problematic from the point of view of its legality
.
67
Ibid
., pp. 459-460.