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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.
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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.