CYIL vol. 12 (2021)

CYIL 12 (2021) STATE RESPONSIBILITY AND THE ACTS OF NON-STATE ACTORS … The US has used the unwilling or unable doctrine in relation to Syria to justify its actions against the Islamic State. The question arises as to what extent these degrees are applicable to the situation in Syria in the sense of the Syrian government’s approach. It cannot be said that the Syrian government is unwilling to fight terrorists in the Islamic State. The problem of inability can be taken into account rather. Given the information that was available, we could probably consider the inability in the sense of the inability to stop the attacks of the Islamic State. Therefore, the attribution of the terrorist behaviour of the Islamic State to Syria cannot be considered here. It can be concluded that only an able , but unwilling state violates international law. 48 In the event of the inability of the state, even if such conduct is not attributable to the state, this does not preclude the state affected by the conduct of armed gangs from responding to such attacks. In the dissenting opinion in the case of DRC v. Uganda , Judge Kateka said, referring to a commentary on the UN Charter, that a special situation arose in which the state is not reluctant but unable to prevent terrorist acts using its territory. 49 Although such terrorist acts are not attributable to a given state, this does not mean that the state (victim) of these acts cannot use military force against terrorists in the territory of the host state. The commentary on the UN Charter further states that the aim of Articles 2(4) and 51 of the Charter was not to create a refuge for terrorists. “A special situation arises, if a State is not reluctant but incapable of impeding acts of terrorism committed by making use of its territory. Although such terrorist acts are not attributable to the State, the State victim of the acts is not precluded from reacting by military means against the terrorists within the territory of the other State. Otherwise, a so-called failed State would turn out to be a safe haven for terrorists, certainly not what Articles 2(4) and 51 of the Charter are aiming at.” 50 In this context, it should be noted that, for example, the US did not justify its air strikes in Sudan and Afghanistan in 1998 in response to the bombings of its embassies by attributing these actions to Al-Qaeda to Sudan and Afghanistan. 51 Similarly, Turkey conducted several military operations in Syria against the PKK / YPG Kurdish Workers’ Party in 2016/2017, 2018, and 2019. It launched the Peace Spring operation in 2019 on 9 October 2019, sending a letter to the President of the Security Council. 52 In it, Turkey stated that it was exercising its right to self-defence under Article 51 of the UN Charter against the imminent terrorist threat and to ensure the security of Turkey’s border. The reason for the operation is also the neutralization of terrorists leaving the border areas adjacent to the territory of Turkey. In the letter, Turkey referred only in general terms to the fact that the operation is carried out in the context of responsibilities attributable to UN Member States within the meaning of the UN Security Council’s counter-terrorism resolutions. 53 States thus sometimes exercise their right to self-defence under Article 51 of the UN Charter, in intervening against terrorists in the territory of another state, without attributing 48 Ibid., p. 483. 49 Dissenting opinion of Judge ad hoc Kateka in the case Armed activities on the territory of the Congo, para. 37. 50 SIMMA, B. (ed.). The Charter of the United Nations-A Commentary , 2 nd ed. 2002, Vol. I, p. 802, para 36. 51 LANOVOY, V. The Use of Force by Non-State Actors and the Limits of Attribution of Conduct. The European Journal of International Law , 2017, vol. 28, no 2, p. 571. 52 United Nations Security Council, S/2019/804, 9 October 2019. 53 This operation is essential also within the context of the responsibility attributed to States Members of the United Nations in the fight against terrorism through Security Council resolutions 1373 (2001), 1624 (2005), 2170 (2014), 2178 (2014), 2249 (2015) and 2254 (2015).


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