请求(同意)原则与武力打击“伊斯兰国”的合法性

Principle of Consent or Request and Legality of Use of Force Against ISIS

美国主导的反"伊斯兰国"联盟在伊拉克和叙利亚境内采取军事行动的法律依据主要是传统国际法上的请求(同意)原则,该原则在现代国际法上的有效性取决于两个方面,第一,适用范围局限于帮助请求(同意)国抵抗外来的武力攻击;第二,请求(同意)本身必须是合法有效的。"伊斯兰国"是一个跨国叛乱团体,且已经被安理会定性为恐怖主义组织,虽然不同于外来的武力攻击,但可以接受对其扩大适用请求(同意)原则。伊拉克的请求是其政治权威当局自由做出的,美国在其境内的军事行动可以接受为合法武力。叙利亚的同意是叙利亚政府反对派做出的,没有法律效力,美国对叙利亚境内的空袭构成侵略;而且,美国、土耳其等国对叙利亚政府反对派的支持、援助构成对《联合国宪章》第2(4)条的违反,是对叙利亚内政的干涉,不能因反恐需要而将其视为例外。

The main legal basis for the military action in Iraq and Syria taken by anti--Islamic State alliance lea by Amer- ica is the principle of military intervention by invitation or request in traditional international law. The legality of the principle depends on two aspects, firstly, the scope of application limits to helping the invitation or requesting state to resist the armed attack from outside; secondly, the invitation or request itself is legal and valid. The Islamic State is a cross--border rebel group which has been defined as terrorism organization by the Security Council. Though be different from the armed attack from out- side, it can also be accepted to apply the principle of military intervention by invitation. The request of Iraq was made by its po- litical authorities freely, so the military action taken in Iraq could be treated as lawful action. However, the request of Syria which was made by opposition faction to the government had no legal validity so that the air attack from American in Syria could be called an act of aggression; and, the support and assistance from American, Turkey and other countries violated Article2.4 of the United Nations Charter, interfered in the internal affairs of Syria, it could not be treated as an exception because of the need of anti--terrorism.