CYIL 2012

PETR VÁLEK CYIL 3 ȍ2012Ȏ provision of both treaties have a customary international law status. 66 In the second scenario, this individual would target in the context of occupation (or an armed conflict) a military objective, e.g., he would blow up a checkpoint run by the armed forces of State A and then flee to State B. Under the IHL, it is legal to target military objectives (this point is made also by paragraph 5 of the 2007 proposal); therefore, the aut dedere aut judicare rules of the IHL could not be invoked. At the same time, State A could not rely on the CCIT either, as this case would be, according to the OIC-proposed Article 3, outside its scope of application. Another “outstanding issue” is the question of State terrorism. The Members of the EU, USA, India and others see this question as part of the rules on the responsibility of States, mostly codified by the Articles on the Responsibility of States for Internationally Wrongful Acts. These Articles enable inter alia the attribution of conduct of de facto organs to States. 67 As such, if the terrorists can be qualified as a de facto organ of a State, that State can become responsible for their acts. This could be the case of the Al-Qaeda attacks of September 11, 2001, as this organization was closely linked with Afghanistan under the Taliban rule. 68 According to this view, the CCIT should deal only with the criminal responsibility of individuals, not with the responsibility of States. The Members of the OIC, however, want to include State terrorism into the scope of the CCIT. They tried to address this issue in Article 3, paragraph 3 of their proposal. 69 By introducing the subjective standard “inasmuch as they are in conformity with international law”, the OIC-proposed paragraph expands the range of “activities of the military forces of a State” covered by the CCIT, possibly even beyond peacetime. 70 The last obstacle in the negotiations on the CCIT is the question of convening of a high-level conference under the auspices of the UN that would formulate a joint organized response of the international community to terrorism in all its forms and manifestations. This “outstanding issue” is of rather political than legal nature. The proposal to organize such an international conference was already made by Egypt in 1999 and since then supported by the OIC, Cuba, Nicaragua, Ecuador and 66 J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, Cambridge 2005, Rules 156 and 158. 67 See Resolution of the GA No. 56/83, supra note 11, Article 8, p. 3: “The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.” 68 See Čepelka, Šturma, supra note 17, p. 598. 69 See Report of the Working Group, supra note 54, p. 19: “3. The activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are in conformity with international law, are not governed by this Convention.” 70 The Members of the OIC sometimes give as an example of “State terrorism” the acts of an Occupying Power violating the IHL, in concreto certain activities of Israel on the occupied territories. Nevertheless, paragraph 3 – as contained in the 2002 and 2007 proposals – deals only with the activities of the military forces in a peacetime (i.e., when there is no armed conflict which is already covered by paragraph 2).

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