CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE USE OF FORCE AGAINST THE ISLAMIC STATE ȍ JUS AD BELLUM ASPECTSȎ intervention has always been questionable. There is therefore not much that humanitarian intervention (or R2P) could offer to those intervening against the IS to help them justify their action. Concluding Remarks The Islamic State, despite its name, is not a State. It fails to meet, in total or in part, at least two of the four Montevideo criteria – those of (effective) government and of the capacity to enter into international relations. Moreover, it does not satisfy the criterion of legitimacy which, though it may not yet have emerged as an autonomous criterion of statehood, has an impact upon the way in which a certain entity is treated. The IS is an armed non-state actor, which can also be qualified as a terrorist organization. Since 2014, various States have intervened on the territory of either Iraq or Syria or both against the IS. These military interventions do not have a uniform basis under current international law. There is, unfortunately, no UN Security Council resolution authorising the use of force again the IS and setting limits on this use. Due to that, the intervening States have had to rely on legal grounds that allow States to use force in the territory of other States in a unilateral way. The US-led coalition operating in Iraq and the Russia-led coalition operating in both Iraq and Syria have relied, and could validly do so, on the request issued by the Iraqi and Syria governments (so called intervention by invitation). Despite some doubts as to the legitimate authority in Syria and the lawfulness of military intervention during a full-fledged civil war, these claims have not been seriously challenged by other States or scholars. The situation is different with respect to the Turkish incursions into Iraq and the use of force by the US and other members of the CJTF–OIR coalition in Syria. The Turkish actions, though also justified by the Iraqi invitation, have repeatedly gone beyond the scope of this invitation. Since Turkey has not put forward any other justification, the incursions do not seem to be lawful. The US and their allies, when seeking to justify their military actions in Syria, have invoked individual and collective self-defence. The former argument is not truly persuasive, as even if one accepts that acts of non-state actors can amount to an armed attack, most of the members of the CJTF–OIR coalition can hardly claim to have been victims of an armed attack by the IS. The latter argument is based on an innovative reading of international law in which acts of non-state actors can constitute an armed attack and victim States can retaliate with military force not only when this attack can be attributed to a State (which is clearly not the case with the IS) but also when the non-state actor operates in an ungoverned space (Germany) or when the territorial State is unwilling or unable to suppress the non-state actor (the US, the UK, France). Neither of these theories is, however, generally accepted, and the legality of the US and CJTF-OIR intervention in Syria therefore remains doubtful. 141 This paper should not be read as suggesting that in the armed conflict(s) which has(ve) been ravaging the Middle East due to the emergence of the IS, all potential violations of international law are imputable to the intervening States or at least some of them. This is clearly not so. The fact that the IS cannot violate the prohibition on the use of force, because this prohibition is simply not applicable to non-state actors, does not mean that it is not 141 See also BÍLKOVÁ, Veronika, LATTMANN, Tamás, The Use of Force Against the Islamic State, Policy Paper, Institute of International Relations, Prague, 2016. 7.

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