CYIL Vol. 7, 2016

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.


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