CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ ISLAMIC STATE, AN ACTOR THREATENING PEACE IN THE MIDDLE EAST consider the Islamic state a de facto regime, the question of its continuity and stability arises; that is, if it is an entity which may last for a longer time. Another question is the ambition of the Islamic state to establish itself in the international community and be recognized by some states of this community. However, if we considered the Islamic state as a de facto regime , according to the definition of van Essen 25 a de facto regime enjoys at least a certain form of international legal subjectivity and must be considered as relevant legal actors in the international community. The Islamic state , however, lacks such status and is considered a terrorist organization. From this point of view it does not enjoy protection from the perspective of international law, and therefore the provisions of the international law do not apply . For example, part of the legal doctrine assumes that de facto regimes are protected as well as bound by the prohibition of the use of armed forces . Even if we did not take into account whether the existing states recognize or do not recognize a new entity which may not be that significant for the possible creation of a new state, it is highly questionable if a new state can be based on terror towards the local population and on disrespect for the rules of the international law. Creation of a state based on terror towards individuals living on its territory is in direct contradiction to the mission of the state and especially against current international law. The mission of a state is to protect lives, property and other rights of its citizens. This can clearly be implied from international protection of human rights. The obligation to respect basic human rights is primarily the result of the fact that these rights are of customary character and had impact erga omnes. Even the de facto regime can be seen as responsible for the protection of human rights, 26 as they have to respect them as customary international law. 27 Serious and extensively committed breaches of human rights are considered to be criminal acts that affect the whole international community. The breach of peremptory norms of international law can lead to serious consequences erga omnes, which means towards the whole international community. On this basis responsibility arises not only for the given state but also for those individuals who commit crimes against international law. The Islamic state could in a certain sense be compared to Nazi Germany. As Maršálek states, “Nazi law abandoned or even refuted traditional values as the basis of law – freedom, equality, solidarity, fairness and legal certainty. Instead of them it brought its own values derived from the Nazi ideology …”. 28 Similarly the Islamic state derives from an ideology which leads to a breach of current international law. The Islamic state uses terrorist methods that are disapproved by the international community. These acts are acts of terror committed on the territory of other states 25 Ibid ., p. 34. 26 Ibid ., p. 271. 27 Ibid ., p. 272. 28 MARŠÁLEK Pavel. Legalita a legitimita Norimberského procesu in: BÍLKOVÁ VERONIKA (ed.). Mezinárodní humanitární právo . Praha: Univerzita Karlova v Praze, 2015, p. 178.

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