CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ ISLAMIC STATE, AN ACTOR THREATENING PEACE IN THE MIDDLE EAST The reason for the application of necessity can be based on argumentation contained in the general customary international law which obliges states to keep a level of public order on their territory such as would ensure the protection of individuals and bodies of a foreign state against violent acts of individuals.The consideration of military necessity may arise here. 68 Necessity with the use of armed forces would be generally considered a forbidden use of force, which is aggression under current international law. Measures in a state of military necessity which break the cogent rules of international law are forbidden and are themselves breaches of law. The International Law Commission in its report, 69 however, contains a proposal of articles on the responsibility of states of 1980 and admitted that certain uses of power on the territory of a foreign sovereign state are not aggression and do not break the cogent commitment. These are cases where the measure, although it uses force, is serving some limited purposes and objectives and cannot be compared to aggression. For example, these could be armed interventions on the territory of another sovereign state which aims at eliminating the activity of an armed group which is preparing invasion into the territory of the intervening state, persecution of an armed group of individuals which escaped into the territory of another state or uses that territory as its base, intervention of a state to save the lives of its citizens and other people facing an attack or are being held as hostages by enemy troops or groups of individuals on the territory of another state which that state is unable to control or does not have under its jurisdiction and so on. These cases were included by the International Law Commission into circumstances that exclude unlawfulness – a state of necessity. According to the opinion of the Commission these cases are situations when armed intervention on the territory of another state are justified by the fact that serious and imminent danger threatens the intervening state or its nationals or human beings in general. The danger for the intervening state, described this way as a threat from a foreign territory or having its origin there, is rather a result of the delayed willingness or inability of the particular territorial state to avert the danger by the use of its own measures (to which it is obliged by the international standard of public order). The Commission stressed the limited character of the intervention both from a time perspective and the methods and means used with the aim of excluding the danger that the other state would reasonably feel. 70 The opinion of the International Law Commission of 1980 could be used also for cases of terrorism. These are special situations where the state is not unwilling but unable to prevent terrorist acts committed while using its territory. Article 51 of the UN Charter could not be applied in such a case. In this case the terrorist acts are not ascribable to the state on whose territory 68 ČEPELKA, Čestmír, DAVID, Vladislav. Úvod do teorie mezinárodního práva . Brno: 1983, p. 168. 69 ČEPELKA, Čestmír. Odpovědnost státu. Praha: Univerzita Karlova, 1985, p. 123-124. 70 ONDŘEJ, J. Odzbrojení, prostředek zajištění mezinárodní bezpečnosti . 2. vydání. Plzeň: Aleš Čeněk, 2008, p. 136.

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