CYIL vol. 8 (2017)

VERONIKA BÍLKOVÁ CYIL 8 ȍ2017Ȏ from the “unwilling and unable” theory. These criteria are not well settled yet. One might, however, expect that though the two standards – unwilling and unable – are put together, there would be a difference in the application of the theory depending on whether the State is unwilling to suppress the terrorist groups on its territory or is willing to do so but cannot. In the first case, it might be possible to speculate whether, at least in some instances, unwillingness could not amount to acknowledgment and adoption of the conduct of a terrorist group by the State. 136 In the latter case – which is, arguably, the case of Syria and the IS –, it would on the contrary be logical to require that the intervening forces only target the terrorist group and not the State. It might also be argued that before intervening in such a case, States should try to secure consent of the territorial State or, even, try to enable it through cooperation to deal with the terrorist threat itself. That the US and the other members of the CJTF–OIR coalition have not done so and have clearly been “unwilling” to help enable Syria, might further weaken their claim to operate under the “unwilling and unable” theory. 6. The Use of Force against the Islamic State – Humanitarian Intervention? States intervening against the IS have relied on the generally recognized exceptions to the prohibition of the use of force, i.e. intervention by invitation and self-defence. They have, on the contrary, refrained from invoking other, more controversial grounds, including that of humanitarian intervention. Humanitarian intervention is, as we saw abov, “the 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 of internationally recognized human rights”. 137 Since 2011, opponents of the Assad regime have repeatedly appealed to the international community to intervene on humanitarian grounds. In 2013, the UK argued for an intervention in Syria on humanitarian grounds in the aftermath of the use of chemical weapons by the Syrian regime. 138 The same argument, however, has not been made with respect to the IS – despite the fact that the IS undoubtedly engages in as widespread violations of the most fundamental human rights as one could imagine. The reasons probably lie in the controversial nature of humanitarian intervention and the availability of other, more solid legal grounds (intervention by invitation and self-defence). In fact, since 2005 humanitarian intervention has been largely replaced by Responsibility to Protect (R2P). 139 Under R2P, States have primary responsibility to protect their populations from core international crimes (genocide, war crimes, ethnic cleansing, and crimes against humanity), the international community should help and assist States in this task and if a State manifestly fails to assume its primary responsibility, the international community should take timely and decisive actions to prevent or stop the crimes. 140 The actions might include military intervention but only with the mandate of the UN Security Council. The UN Security Council could authorise a military intervention against the IS under the R2P banner. Yet, as we saw in section 3, it has not done so. The legality of unilateral humanitarian 136 See Article 11 of the 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts. 137 MURPHY, Sean D., Humanitarian Intervention. The United Nations in an Evolving World Order , University of Pennsylvania Press, Philadelphia, 1996, pp. 11-12. 138 Chemical weapon use by Syrian regime: UK government legal position, Policy Paper, 29 August 2013. 139 See BÍLKOVÁ, Veronika, The Responsibility to Protect – New Beginning or End of the Road for Humanitarian Intervention?, Czech Yearbook of International Law, Vol. 1, 2010, pp. 75-86. 140 UN Doc. A/60/L.1, 2005 World Summit Outcome, 20 September 2005, par. 138-140.

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