CYIL vol. 8 (2017)

VERONIKA BÍLKOVÁ CYIL 8 ȍ2017Ȏ failed State as well. For instance, in the Democratic Republic Congo v. Uganda Case, the Judges Koojimans and Simma bemoaned in their separate opinions “the almost complete absence of government authority in the whole or part of the territory of a State”, a phenomenon which “in present-day international relations has unfortunately become as familiar as terrorism”. 121 They both opined that “if armed attacks are carried out by irregular bands from such territory against a neighbouring State, they are still armed attacks even if they cannot be attributed to the territorial State. It would be unreasonable to deny the attacked State the right to selfdefence merely because there is no attacker State, and the Charter does not so require”. 122 This opinion is shared by certain scholars 123 who argue that it also finds some, albeit rather limited, support in the practice. The US has at several instances used force against Al-Qaida elements in the parts of Pakistan that are beyond the control of the Pakistani government. 124 In 2006, Ethiopia invaded Somalia in response to armed incursions into its territory by Islamist groups controlling important parts of Somalia. 125 In neither of the cases, however, did the intervening state rely solely, or primarily, on the claim of self-defence; rather, both the US and Ethiopia invoked intervention by invitation. Moreover, neither State made a clear argument based on the ungoverned space theory. The possibility to strike back against terrorist groups operating in an ungoverned space thus remains questionable. In the case of the IS, the ungoverned space theory has been, at least implicitly, referred to by a single State, Germany. 126 That Germany has remained alone in this respect might be explained by doubts about the legal status of the theory as well as by a certain unease to present Syria and Iraq as ungoverned spaces (or failed states). 5.3.2 States Harbouring a Terrorist Group In the first decade of the 21 st century, the idea that States can use force in self-defence against terrorist groups in the territory of a State which actually harbours such groups was gaining popularity. The “harbouring theory” was used to justify the US intervention in Afghanistan after the attacks of 11 September 2001. The Congress authorised the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons”. 127 In 2005, the African Union included “the encouragement, support, harbouring or provision 121 ICJ, Armed Activities, op. cit., Separate opinions of Judge Kooijmans and Judge Simma. 122 Ibidem. 123 See HAKIMI, Monica, Defensive Force against Non-State Actors: The State of Play, International Law Studies, Vol. 91, 2015, pp. 8-12. 124 See MURPHY, Sean D., The International Legality of U.S. Military Cross-Border Operations from Afghanistan into Pakistan, International Law Studies, Vol. 84, 2008, pp. 109-139. 125 KHAYRE, A. A. M., Self-defence, Intervention by Invitation, or Proxy War? The Legality of the 2006 Ethiopian Invasion of Somalia, African Journal of International and Comparative Law, Vol. 22, No. 2, 2014, pp. 208-233. 126 “ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not at this time exercise effective control. States that have been subjected to armed attack by ISIL originating in this part of Syrian territory, are therefore justified under Article 51 of the Charter of the United Nations to take necessary measures of self-defence, even without the consent of the Government of the Syrian Arab Republic. Exercising the right of collective self-defence, Germany will now support the military measures of those States that have been subjected to attacks by ISIL.” UN Doc. S/2015/946, op. cit. 127 Authorization for Use of Militagy Force , Pub L No 107-40, 115 Stat 224, 2001.

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