CYIL vol. 12 (2021)

CYIL 12 (2021) STATE RESPONSIBILITY AND THE ACTS OF NON-STATE ACTORS … In this context, the issue of unwillingness and inability is also addressed in the doctrine, which examines the extent to which it is a matter of supporting terrorist activity. For example, Starski states that state support of the terrorist activities is not uniform but can be likened to a cascade of different levels of state participation. 34 She lists a total of nine levels of support, from instructing terrorist cells to conducting a specific attack – first level, through support in the form of financing and supply of weapons – second level. The third level is explicit consent to a specific attack or, in the fourth level, general consent to terrorist activity. Other cases can be characterized as unwillingness or inability. This is the fifth level of the case where the state tolerates these activities but remains passive or refrains from prosecuting the perpetrators. The sixth level is to omit to prevent an attack or to prosecute the offenders in its aftermath out of mere negligent ignorance or incapacity (level 7). Lastly they might not take counteraction against terrorist activities in general due to lack of knowledge (level 8) or incapacity (level 9). According to Starski, grades 5-9 play a major role in the concept of unwillingness or inability. She also makes an important assumption that the state offers terrorists a “harbour” or “sanctuary” . According to her, all levels can be qualified as omission. 35 According to the commentary on the Articles on the Responsibility of States for Internationally Wrongful Acts, the conduct attributable to the state consists of acts or omissions. 36 An example of an omission is in the ICJ judgment in the Corfu Channel case, where the ICJ stated that each state has a commitment “not to allow knowingly its territory to be used for acts contrary to the rights of other states” 37 . From this principle it can be stated that in relation to non-state actors such as terrorists, the state has an obligation to refrain from facilitating terrorist activities against foreign states from its own territory, which is expressed in a number of international law documents such as the 1970 Declaration of Principles of International Law, where “each state has the obligation to refrain from organizing, encouraging, instigating, assisting or participating in acts of civil strife or terrorist acts in another state, or acquiescing in organised activities within its territory directed towards commission of such acts”. Security Council Resolution 1373/2001 in paragraph 2, letter c) expressly requires states shall deny safe to those who finance, plan, support or commit terrorist acts or provide safe heavens. As a result, states violate international law not only by negotiating with terrorists, but also by not effectively controlling their territory, or by preventing the abuse of its territory by non-state actors for terrorist attacks. 38 However, the question arises as to whether the state did not prevent these attacks because it was unwilling or whether it did not prevent them due to its inability. In case of unwillingness, the state would incur responsibility because the state consciously or at least indirectly supported terrorists. The situation is more complicated in the event of the state’s inability to prevent such acts. The unwilling or unable doctrine thus leads to the argument that a state that is unwilling or unable to act against terrorists is in fact complicit in their attacks and that these attacks 34 STARSKI, P. Right to Self-Defense, Attribution and the Non-State Autor- Birth of the “Unable or Unwilling” Standard? Zeitschrift für ausländisches öffentliches Recht und Völkerrecht , 2015, year 75, p. 459. 35 Ibid., s. 459–460. 36 The Report of the ILC, Official Records of the General Assembly. Fifty-first Session, Supplement No. 10 (A/51/10 and Corr.l, 1996, p. 35). 37 Corfu Channel Case (U.K. v. Albania) I.C.J. Reports 1949, p. 22. 38 STARSKI, P. Right to Self-Defense, Attribution and the Non-State Autor- Birth of the “Unable or Unwilling” Standard? Zeitschrift für ausländisches öffentliches Recht und Völkerrecht , 2015, year 75, p. 459. Ibid., p. 476.

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