CYIL vol. 11 (2020)

CYIL 11 (2020) LEGALITY OF TARGETED KILLINGS UNDER INTERNATIONAL LAW The attacks of non-state actor on the U.S. governmental institution have in principle changed this hitherto fundamental approach. Doubtless, was the important role the following military response played and the fact that the attacks were directed against the U.S. as a superpower, who was so humiliated and offended by these attacks. Article 51 of the UN Charter envisaged the existence of an armed attack to invoke the right of self-defense. The right of self-defense in international law was allocated to states. The terrorist attacks by non-state actors against the U.S. were attributed to the Taliban , by the U.S. administration allegedly representing a government. Attribution of terrorist attack to a state seems to be a precondition in order to give rise to the right of self-defense. The UNSC used only general references to the right of self-defense and terrorism in their resolutions. The U.S. started its military actions against Afghanistan without explicit legal approval (authorization) by the UNSC. President G. W. Bush on 11 September 2001 claimed, that no distinction would be made between those who committed those acts and those who harbored the criminals. Article 51 of the Charter stipulates and assumes that an armed attack that triggers the right to self-defense should originate from a state or states only. There is still no rule of customary international law admitting an “armed attack” on a state from the side of “non-state actors” without direct involvement or support of any country. A state’s right to self-defense against non-state actors has become a new phenomenon. In the Israeli Wall case, the ICJ endorsed the existence of an armed attack by “one State against another state”. 70 The events of 11 September 2001 influenced the notion of international terrorism to a “transition of the use of armed force” by “non-state actors”, attributed to one state (Afghanistan). The armed terrorist attacks were so incorporated by the U.S., NATO countries, and many international law scholars into jus belli . The question arises whether the terrorist attacks have changed the notions of “armed conflict”, “armed attack”, and “self-defense”. There is no officially recognized definition of “armed attack”, which may trigger the right to “self-defense”. The International Law Association Report described resorting to self-defense against non-state actors located in other states as a “ controversial area”. 71 At the same time, it claimed that the use of force in such circumstances “ is not a new phenomenon ” because it has occurred in numerous situations over the “past two centuries”. This rather controversial claim did not take into consideration the fact of substantially changing character of international law during past two hundred years, including the existence of the UN Charter. The Report claims that Article 51 does not specify that an armed attack which gives the right to self-defense must have been carried out by a state, and therefore leaves room for an interpretation that “ includes attacks by non- state actors that have no connection to the state ”. 72 This argument has no clear support in international law. It does not take into consideration that the UN Charter was founded on the basis of inter-state relationships, without any reference to non-states actors as subjects of international law. Up to that point, the practice of international law required the attachment of terrorist actions to a state. The use of force against the Islamic State (IS) constitute a lawful exception without attribution of its acts to any state. But IS proclaimed the existence of “caliphate”, brought under its control considerable part of territories and population. The IS fighters were nevertheless entitled to have “combatant” status and protection of international 70 ICJ Report 2014, Advisory Legal Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , p. 62, para 138. 71 Supra note 66, p. 14. 72 Ibid, p. 15.

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