CYIL vol. 8 (2017)

VERONIKA BÍLKOVÁ CYIL 8 ȍ2017Ȏ armed actions carried out with the consent of the lawful government. 43 The consent is one of the circumstances precluding wrongfulness recognized in the 2001 ILC Draft Articles on Responsibility of States for InternationallyWrongful Acts. 44 The consent has to be given in advance or, at the latest, at the time of the act, be free and come from the competent authority. Some doubts have been expressed as to whether a valid consent can be given during a full-fledged civil war. 45 Yet, an increasing number of authors answer this question in the affirmative arguing that at least in cases when the other parties to an internal armed conflict receive external assistance and/or when the territorial State fights against a terrorist group, the government is indeed entitled to issue a valid invitation. 46 Occasionally, other exceptions to the prohibition of the use of force are propounded by States or scholars. Some seek to expand one of the three generally accepted exceptions. This is the case of pre-emptive self-defence, which is carried out prior to the occurrence of an armed attack. 47 Others seek to introduce new exceptions. This is the case of humanitarian intervention. Humanitarian intervention is conventionally defined as “the threat or use of force by a state, group of states, or international organization primarily for the purpose of protecting the nationals of the target state from widespread deprivations od internationally recognized human rights”. 48 Whereas humanitarian intervention with the UN Security Council mandate is considered lawful, unilateral humanitarian intervention is not. Since 2005, a broader concept of Responsibility to Protect (R2P) 49 has been used at the international scene. The regulation on the use of force has, however, remained unchanged. In the legal debate surrounding the military campaign against the IS, all of the above mentioned exceptions to the prohibition of the use of force have been invoked by some of the intervening States. 50 The legal positions have been expounded in the letters to the UN Security Council (in case of self-defence), during the debates at the UN level, or in the domestic setting, for instance in the course of the authorisation of the action under the domestic law. Some States have relied on a single legal ground, others have invoked several grounds. The 43 ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 19 December 2005. 44 Draft articles on Responsibility of States for internationally wrongful acts, in UN Doc. A/56/10, Report of the International Law Commission on the work of its Fifty-third session , Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10, November 2001, pp. 43-59. 45 See Institut de droit international, The Principle of Non-Intervention in CivilWars, Wiesbaden, 1975, Article 2(1): “Third States shall refrain from giving assistance to parties to a civil war which is being fought in the territory of another State.” 46 See AKANDE, Dapo, VERMEER, Zachary, The Airstrikes against Islamic State in Iraq and the Alleged Prohibition on Military Assistance to Governments in Civil Wars, EJILTalk, 2 February 2015. 47 See BÍLKOVÁ, Veronika, Preemptivní a preventivní sebeobrana z pohledu mezinárodního práva, AUCI, No. 3, 2006, pp. 77-118; O’CONNELL, Mary Ellen, The Myth of Preemptive Self-Defense , Asil Task Force Papers, August 2002. 48 MURPHY, Sean D., Humanitarian Intervention. The United Nations in an Evolving World Order , University of Pennsylvania Press, Philadelphia, 1996, pp. 11-12. 49 BÍLKOVÁ, Veronika, Odpovědnost za ochranu (R2P): Nová naděje nebo staré pokrytectví?, Univerzita Karlova v Praze, Praha, 2010. 50 See FLASH, Olivia, The legality of the air strikes against ISIL in Syria: new insights on the extraterritorial use of force against non-state actors, Journal on the Use of Force and International Law, Vol. 3, Iss. 1, 2016, pp. 37-69; O’CONNOR, Laurie, Legality of the use of force in Syria against Islamic State and the Khorasan Group, Journal on the Use of Force and International Law, Vol. 3, Iss. 1, 2016, pp. 70-96.

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