Previous Board Members:
Anna Maria Urbanova
Anna Maria Urbanova
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On 13 February 2016, the HHS ILSA Chapter organised the event “Law and Terrorism: potential responses to latest attacks” where Prof. Dr. Terry Gill of the University of Amsterdam and the Netherlands Defence Academy spoke about the recent events in Paris. More specifically, he elaborated on the following points: considerations regarding links between ISIS and the attacks in Paris, the applicability of art. 51 of the UN Charter to the events, the French Government’s reaction and analysis of lawfulness of air strikes against ISIS and applicable law to conflicts with ISIS.
Considerations regarding links between ISIS and the attacks in Paris
Despite ISIS’ claim of responsibility of the terrorist attacks and resulting certainty of a link between the organisation and the acts perpetruated in November, the actual degree of involvement of the Islamic State is unknown. In fact, it is not certain whether the 9 terrorists had received an order to act directly from it or where only trained individuals sympathisig with ISIS. Therefore, the problem of holding the Islamic State responsible under International Law arises.
Applicability of art. 51 of the UN Charter to the events
Art. 51 of the UN Charter provides that the right of self-defence may be invoked only if preceded by an armed attack; the question therefore is whether the attacks in Paris constituted as such.
The academic community is divided, however the common perception is that, despite the gravity of the events, the attacks were not “serious” enough to fall within this category. Furthermore, the perpetrators of the attacks were either French or Belgian citizens, which renders it difficult to consider these attacks as acts of war.
The French Government’s reaction and analysis of lawfulness of air strikes against ISIS
France has declared a state of emergency (which, inter alia, allows for measures curtailing the rights of citizens) and claimed the mutual self-defence clause (art. 42.7) of the Treaty on European Union. Furthermore, it has characterised these attacks as acts of war and subsequently initiated bombings against ISIS.
It has been argued that the air strikes currently performed by France in Syria and Iraq lack of a legal basis and should, therefore, be considered illegal under international law. Specifically, some assert that without the Syrian government and the UN Security Council’s approval the strikes would be unlwaful. On the contrary, France may have a ground for bombing territories in Iraq as the latter is being unlawfully attacked by ISIS as well.
Nevertheless, according to the speaker, there is a ground for attacking ISIS on the basis of state practice and history. In addition, provided that its armed response is proportional and necessary, France may have legal grounds to operate since the official governments of the aforementioned territories are incapable of/ not willing to fight ISIS.
Applicable law to conflicts with ISIS
Simultaneusly, there is a major ongoing conflict between ISIS and the anti-ISIS coalition (to which France is a party). However, it has to be regarded as a non-international armed conflict as ISIS, despite its self proclamation as a “Caliphate” is not a state under international law. Hence, International Humanitarian Law is only applicable to attacks taking place within the Syrian and Iraqi territories.
In conclusion, all the measures taken within the French soil have to be consistent with French Penal Law and International Human Rights law, the latter being nevertheless subject to the derogations of art. 15 of the European Convention on Human Rights (ECHR), due to the proclaimed state of emergency.
Written by Alina Carrozzini, Year 1 Student of International and European Law Program at The Hague University of Applied Sciences.