CYIL vol. 12 (2021)
CYIL 12 (2021) STATE RESPONSIBILITY AND THE ACTS OF NON-STATE ACTORS … 2. Problems associated with the attribution of the behaviour of private persons to the state Articles 8 and 11 of the 2001 Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts apply, in essence, to cases where the state has instructed, directed, or controlled certain conduct of a person considered to be private, or has subsequently accepted the conduct of a private person. The above-mentioned cases are examples where a foreign state has supported armed groups against territorial sovereignty or has explicitly approved the behaviour of private individuals who have caused harm to a foreign state. In addition, especially in connection with the activities of various terrorist groups, a situation may arise where terrorists or armed groups operate in the territory of one state and take action in the territory of a foreign state. This raises the question of whether a state from whose territory interventions take place in the territory of another state will bear responsibility in connection with such behaviour. These are cases where the state did not manage, control, or approve such actions. The question of the attribution of the behaviour of non-state actors arose in the case of the Al-Qaeda terrorist attacks in the United States in September 2001. The US and allied interventions in Afghanistan in October 2001 were described as an act of self-defence under Article 51 of the UN Charter. In this context, the question arises as to whether self-defence is permissible only as an armed attack by one state on another state or whether it is also possible in the case of an armed attack by non-state actors on the state. There might be situations in which an armed attack by a non-state actor can be attributable to the host state , in this case the right of self-defence is directed against that state.The US and the United Kingdom also followed this approach in exercising their right to self-defence against Afghanistan, where the Taliban ruled in connection with the terrorist attacks in the United States on 11 September 2001. The attribution of behaviour to the ruling Taliban can be based on Security Council Resolution 1267 of 1999 26 . The Security Council acted in accordance with Chapter VII and addressed the issue of international terrorism . In that resolution, it called on the Afghan Taliban to comply with its previous resolutions without delay and, in particular, to stop providing shelter and space for the training of international terrorists (Al-Qaeda). Also in this resolution, it called on the Taliban to take appropriate effective measures to ensure that the territory under its control is not used for terrorist facilities and camps (paragraph 1). The resolution also called for the extradition of Osama bin Laden to the state in which he was charged (paragraph 2). To enforce bin Laden’s extradition, the Security Council required that all states shall among others ban flights from their territories, lease aircraft for the Taliban, freeze financial resources, including those obtained from property controlled directly or indirectly by the Taliban, etc. (para. 4). The act of self-defence during the action of the US and Great Britain in the autumn of 2001 was thus directed against Afghanistan, i.e., the state. The link with Afghanistan can be seen here, although there cannot be considered effective control required by the International Court of Justice’s judgments in
26 United Nations Security Council , S/RES/1267 (1999), 15 October 1999.
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