CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE USE OF FORCE AGAINST THE ISLAMIC STATE ȍ JUS AD BELLUM ASPECTSȎ resolutions, has treated it as a terrorist organization. 25 This position was shared by a large majority of States taking part in the debate on the draft resolution 2253 of the UN Security Council. 26 The Minister of Foreign Affairs of the Czech Republic Lubomír Zaorálek called the IS “a terrorist group transforming into a State” . 27 Most qualifications are in concordance in that the IS is a non-state actor which might be, gradually, transforming into a State (a State in statu nascendi ) . Since no general category of a non-state actor, similar to that of States or international organizations, exists under international law, 28 the qualification can only be made within specific areas of this law. For this paper, the area of jus ad bellum is crucial. The rules applicable in this area are addressed almost exclusively to States. There is no special legal status granted to non-state actors, though it seems that over the past years, due to the practice of States and to the activities of the UN Security Council, non-state groups labelled as terrorist groups have gradually started to be treated as a special category. Yet, it would be premature to speak about a legal status of a terrorist group that would be linked to concrete rights and/or obligations. The concept is still a descriptive rather than a prescriptive one, though there is increasing evidence indicating that this situation might be slowly changing. There is no doubt that the IS would fall under the category of terrorist organizations. We may therefore conclude that the Islamic State is not a State but an armed non-state actor which could be qualified as a terrorist organization. 2. The Use of Force against the Islamic State – Facts and Legal Framework In the remainder of this paper, we will assess the legality of the use of force against the IS. This section gives a short factual background on the military actions against the IS and on the international legal regulation of the use of force. The subsequent sections discuss several legal grounds which have been invoked to justify the military intervention against the IS. The study focuses solely on the use of force against the IS and does not discuss other instances of the use of force in the region, for example against the Khorasan group 29 or the direct US strike against Syria. 30 Likewise, it concentrates on the situation in Iraq and Syria and does not address military actions against the IS supporters and allies outside the Middle East region, in Nigeria (Nigeria-led operation against Boko Haram) or Libya (Egyptian-led operation against the local Islamist forces). 2.1 The Use of Force against the Islamic State – Facts From August 2014 two international coalitions have intervened against the IS. The first is the US-led coalition known as the Combined Joint Task Force – Operation Inherent Resolve (CJTF–OIR). Within the coalition, some States have used force both in Syria and in Iraq (the 25 See UN Docs S/RES/2249 (2015), 20 November 2015; and S/RES/2253 (2015), 17 December 2015. 26 See UN Doc. SC/12168, Unanimously Adopting Resolution 2253 (2015), Security Council Expands Sanctions Framework to Include Islamic State in Iraq and Levant, 17 December 2015. 27 Ministr Zaorálek pro Právo: Islámský stát – největší hrozba i pro Evropu, MZV, 12. 9. 2014. 28 ILA, Final Report, Committee on Non-State Actors, Johannesburg, August 2016, par. 16-32. 29 The Khorasan group is an armed opposition group operating on the territory of Syria. It is linked to Al- Qaeda and allegedly coordinates its actions with Al-Nusra Front, the official Al-Qaeda force in Syria. See also ARIMATSU, Louise, SCHMITT, Michael N., Attacking “Islamic State” and the Khorasan Group: Surveying the International Law Landscape, Columbia Journal of Transnational Law Bulletin, Vol. 53, 2015, pp. 1-29. 30 See BÍLKOVÁ, Veronika, Do Two Wrongs Make a Right? The Use of Chemical Weapons in Syria and the US Strike, International Law Reflection, No. 4, 2017, 10 April 2017.

241