CYIL Vol. 7, 2016

JOSEF MRÁZEK CYIL 7 ȍ2016Ȏ the UNSC in the wake of 11 Sept. 2001 represents a radical interference in the hereto understanding of “armed attack”. These resolutions “recognized” that large- scale terrorist action constitutes an armed attack giving rise to the right of self- defence. Terrorist “private” actions were, for the first time in history, recognized as an “armed attack” against the state – the US. There is sometimes “difficulty in determining what an armed attack by a non state actor is.” 76 The right of self- defence pursuant to the UNSC resolutions may be applied against those who plan and support such terrorists and against those who are “harbouring” them. The ILAReport also discussed the question of resorting to self-defence against non- state actors located in other states, stating that the use of force in such circumstances is not a new phenomenon, stretching back even to the Carolina case and state practice over the past two centuries. It was also claimed here that Art. 51 did not specify that the armed attack “must have been carried out by a state.” The Report also finds that “there is growing recognition – including through state practice – that there are certain circumstances in which a state may have a right of self-defence against non-state actors operating extraterritorially.” 77 The military operations on Syrian territory against the so-called Islamic State are mentioned as operations against a “non-state” actor. Violations of the territorial integrity of state who is either not guilty of unlawful use of force nor responsible for the behaviour of non-state actors is equated with the use of force against the host state. It is a new development in international law when an armed attack attributed to the “host states” may lead to effectuation of the right to self-defence against this state. But a question arises about when an “armed attack” of non-state actors is attributable to the state and when only to the no-state actors themselves. It seems that self-defence against “non state actors” is still not generally recognized. The Report confirms that not all violations in the use ad bellum lead to self-defence. Only if the armed attack is attributable to the non-state actor, may the victim state have a right to self-defence “against armed group, but not against the state.” The Report so differentiates forcible measures taken against a host state and measures taken within the host state. 78 Self-defence against non-state actors must adhere in compliance with the Report to all the requirements and restrictions required by the exercise of the right to self-defence, which in the case of a non-state actor is not settled. 7. Cyber operations and prohibition of the use of force Cyber operations in the cyber space represent quite a new phenomenon in the field of the economy and security of states. Some cyber operations seem to be close to armed conflicts and in relation to the prohibition of the use of armed force. Cyber 76 WILMSHURST E., WOOD M. Self-Defence Against Nonstate Actors: Reflections on the “Bethlehem Principles”. AJIL. Vol. 2013, p. 393. 77 Ibid ., p. 394. 78 See note 1, pp. 17-18.

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