CYIL vol. 12 (2021)

jan ondřej CYIL 12 (2021) Nicaragua of 1986 27 or Genocide of 2007 28 . Rather, it is a de facto (power) link 29 between Al- Qaeda and former Taliban insurgent regime. Security Council resolutions and called on the Taliban to end support to terrorists, providing shelter, etc. As Čepelka 30 states, even if it were proven that terrorist acts in the US were committed by private persons for whose actions the state does not bear international responsibility, it is nevertheless responsible for not punishing them or not extraditing them for such punishment. This is the text Article 11(2) of the articles on responsibility at first reading. 31 The Taliban’s failure to fulfil its obligations can be based on the relevant Security Council resolution, their authorities have failed in their duty. In a sense, it can be compared to the breach of Iran’s obligations under the Vienna Convention on Diplomatic Relations in the first phase of events. 3. Unwilling or unable doctrine and the attribution of state behaviour However, a different situation may arise if the state does not provide any support, but terrorists and armed gangs operate on its territory. In this regard, questions of the attribution of the state can be examined in the sense of the American unwilling or unable doctrine in case the state is not able to prevent such actions. The US, in order to justify an armed intervention in the territory of another state, based on the concept of unwillingness or inability of that state to suppress terrorists on its own territory. The conduct is thus attributable to the so-called host state, without assessing the actual participation of that state in the conduct of non-state actors. It is, in essence, an extension of the concept of an armed attack, with the host state being responsible for such attack. This argument was also used by the US in relation to Syria. Regarding a specific example of the application of the US unwilling or unable doctrine to Syria, the US Ambassador’s letter of 23 September 2014 stated that ISIL and other terrorist groups in Syria are a threat not only to Iraq but also to many other countries, US, and their partners in the region. States must be able to defend themselves in accordance with the right to individual and collective self-defence as expressed in Article 51 of the UN Charter, where the government of the state which is the source of the threat (by which Syria is meant) is unwilling, incapable, or unable to prevent the use of its territory for such attacks. 32 Samantha Power thus stated that Syria was “unwilling or unable” to act against ISIL. The United States has thus invoked its controversial justification, which it has used in the past to justify its actions without the consent of the local state against suspected terrorists in Somalia and Pakistan. 33 27 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgement. I. C. J. Reports 1986, p. 14. 28 Case concerningApplication of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), I.C.J. Reports 2007. 29 ČEPELKA, Č, ŠTURMA, P. Public International Law, 2nd edition. Prague: C. H. Beck, 2018, p. 391. 30 ČEPELKA, Č, JÍLEK, J., ŠTURMA, P. International Responsibility Brno: Masaryk university, 2003, pp. 58–59. 31 The Report of the ILC, Official Records of the General Assembly. Fifty-first Session, Supplement No. 10 (A/51/10 and Corr.l, 1996, pp. 125–151). 32 CONTEMPORARY PRACTICE OF THE UNITED STATES. United States Deepens Its Engagement with ISIL Conflict. American Journal of International Law , 2015, vol. 109, No. 1, s. 204. 33 Ibid., s. 204.


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