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CYIL 7 ȍ2016Ȏ
ISLAMIC STATE, AN ACTOR THREATENING PEACE IN THE MIDDLE EAST
The reason for the application of necessity can be based on argumentation contained
in the general customary international law which obliges states to keep a level of public
order on their territory such as would ensure the protection of individuals and bodies of
a foreign state against violent acts of individuals.The consideration of military necessity
may arise here.
68
Necessity
with the use of armed forces
would be
generally
considered
a
forbidden use of force,
which is aggression under current international law. Measures
in a state of military necessity which break the cogent rules of international law are
forbidden and are themselves breaches of law. The International Law Commission in
its report,
69
however, contains a proposal of articles on the responsibility of states of
1980 and admitted that certain uses of power on the territory of a foreign sovereign
state are not aggression and do not break the cogent commitment. These are cases
where the measure, although it uses force, is serving some limited purposes and
objectives and cannot be compared to aggression. For example, these could be armed
interventions on the territory of another sovereign state which aims at eliminating
the activity of an armed group which is preparing invasion into the territory of the
intervening state, persecution of an armed group of individuals which escaped into
the territory of another state or uses that territory as its base, intervention of a state
to save the lives of its citizens and other people facing an attack or are being held as
hostages by enemy troops or groups of individuals on the territory of another state
which that state is unable to control or does not have under its jurisdiction and so on.
These cases were included by the International Law Commission into circumstances
that exclude unlawfulness – a state of necessity. According to the opinion of the
Commission these cases are situations when armed intervention on the territory
of another state are justified by the fact that
serious and imminent danger
threatens
the intervening state or its nationals or human beings in general. The danger for
the intervening state, described this way as a threat from a foreign territory or
having its origin there, is rather a result of the
delayed willingness or inability
of
the particular
territorial state
to
avert the danger
by the use of its own measures (to
which it is obliged by the international standard of public order). The Commission
stressed the
limited character
of the intervention both from a
time perspective
and
the
methods and means used
with the aim of excluding the danger that the other
state would reasonably feel.
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The opinion of the International Law Commission
of 1980 could be used also for cases of terrorism. These are special situations where
the state is
not unwilling
but
unable
to prevent terrorist acts committed while using
its territory. Article 51 of the UN Charter could not be applied in such a case.
In this case the terrorist acts are not ascribable to the state on whose territory
68
ČEPELKA, Čestmír, DAVID, Vladislav. Úvod
do teorie mezinárodního práva
. Brno: 1983, p. 168.
69
ČEPELKA, Čestmír.
Odpovědnost státu.
Praha: Univerzita Karlova, 1985, p. 123-124.
70
ONDŘEJ, J.
Odzbrojení, prostředek zajištění mezinárodní bezpečnosti
. 2. vydání. Plzeň: Aleš Čeněk,
2008, p. 136.