I. Introduction

It was in September 2001, immediately after the terrorist attacks on New York and Washington, when the then U.S. President George W. Bush declared in his “Address to the Nation” that: “We will make no distinction between the terrorists who committed these acts and those who harbor them”.¹

In the years that followed, this statement not only determined the U.S. attitude relating to the use of force in the contemporary international community, reviving the almost forgotten theory of just war (bellum iustum ) and consequently the concept of ius ad bellum ,² but it also raised another very important question: What does “We will make no distinction” mean? “No distinction” between whom? Between the terrorist organizations -formally non-state actors (hereinafter: NSAs), and “those who harbor them”- i.e. states as international legal persons on whose territories terrorists could be situated?

Such indiscrimination invokes the international responsibility (provided by the secondary international legal norm) of all the actors in international relations who are capable of breaking the international primary legal norm incriminating terrorism.³ On the other hand, only the addressee of a legal norm is capable of breaking it, and consequently it is only the addressee that could be the target of the sanction provided by the secondary norm directed to protect the efficacy of such a primary norm incriminating terrorism. This capability of an entity in every legal order, including international law, proves its legal capacity as the minimal element of its legal personality in such an order.⁴

Therefore, the question central to this paper will be whether such indiscrimination concerning international responsibility for terrorist acts between terrorist organizations (such as Al-Qaida or ISIL) and the states that may harbor them enlarges the traditional concept of international legal personality. What would the legal consequences of such an enlargement be and could it revive the recognition of the concept of just war beyond the positive international law, or, moreover, could it turn the international legal order back to the time when private wars were a part of it?

Since the terrorist attacks of September 11th, the notion of “war” seems omnipresent -in presidential statements and in the media, but also in the works of legal authors.⁵ Usually, such a “war” tries to find its place in international secondary legal norms, as a reaction to a prior internationally wrongful act. However, it brings about no changes to the traditional concept of ius ad bellum, since throughout the history of international law the notion of “just war” has not been founded on the level of primary legal norms, i.e. as a mere “right of state”. On the contrary, it has always been part of a secondary international legal norm as a reaction (mostly in última línea) to an internationally wrongful act of another state. After all, sanctions including the use of armed force, primarily in the form of war, can be found among the Chinese city-states as early as the middle of the first millennium BC.⁶ Equally, the beginnings of international law among the city-states of Ancient India⁷ and Ancient Greece⁸ are closely connected with war as a sanction. Similarly, war was considered a sanction in international law from the Middle Ages until the 20th century.⁹ Such a war was considered a “just war” (dharma yuddha in Ancient India, or in the European legal tradition a bellum iustum).¹⁰

This being so, what in fact is the novelty brought to us by the so-called “war against terrorism”? Some might say that it would be the dissolution of the traditional, state-centric concept of international legal personality according to which the use of force could be understood only within the framework of state sovereignty.¹¹

There is no doubt that hundreds of very valuable pages in international law doctrine have been published in the last decades concerning the unilateral use of force in this context. However, we would like here to call attention to the possible influence of the “war against terrorism” (or rather, the war against terrorist organizations)¹² on the contemporary concept of international legal personality.

II. The Notion of International Legal Personality

The notion of legal personality is one of the most important issues in every legal order. However, there is probably no legal branch that has retained its actuality in such a measure as international law has. Reasons for this can be found in legal philosophy and sociology, as well as in history, but the best answer is almost certainly found in the very nature of international law: the horizontal structure of international legal order characterized by the lack of a centralized legislative power, as it exists in municipal legal orders, explains the specific nature of the international legislative process where the connection between the doctrine and international practice seems to be much more intensive and direct than in any other legal branch. International law creates its subjects, whilst at the same time it has been created by them.

On the other hand, as Mosler would say, every legal order defines a system of its subjects according to its aims and needs, granting legal personality, in the first place, to those entities in relation to which it desires to realize its aims.¹³ Therefore, the diversity of legal subjects among different legal orders seems unavoidable. International law cannot be the exception here.¹⁴ On the contrary, it can serve as a perfect example for the analysis of this process.

However, in spite of some proposals for codification in the field of international legal personality,¹⁵ contemporary international law does not contain any legal norm enumerating its subjects, or even regulating conditions for acquiring international legal personality. The dynamics of international relations most probably aggravates the international legislative process in that sense.¹⁶ Therefore, international law can only accept that subjects of law in any legal system are not necessarily identical.¹⁷ Be that as it may, every attempt of codification and defining of international legal personality, its elements or even its minimal standards remains necessarily on the doctrinal level.

III. International Secondary Legal Norms and NSAs

Traditionally, international law by its norms was directed to states which were considered to be the most important international persons. However, as we have already mentioned, such a “state-centric” concept, even centuries ago, could not disregard the presence of certain non-state actors (such as pirates) who had been able to break international legal norms, having been at the same time targets of sanctions provided by international law.

There is no doubt that the development of individual international criminal responsibility in the 20th century extended the concept of international legal personality. An individual became not only an addressee of international rights and duties (e.g. according to international humanitarian law-IHL), but at the same time, such a development made him responsible before international fora (such as the ICTY, ICTR, ICC) for the breach of those legal norms.⁴⁴

In such a broadening of addressees of international legal norms, international law went even further. In numerous resolutions of the UN Security Council (UNSC) in the 1990s, some of the so-called “non-state entities” became targets of international sanctions.⁴⁵ Thus, for example, the UN sanctions in Sierra Leone were directed against the military junta and its members, but also against members of their families.⁴⁶ In the same context, similar UNSC resolutions can be mentioned in the case of sanctions applied to Angola targeting the União Nacional Para a Independência Total de Angola (UNITA), as well as in the case of Liberia where the target was the Revolutionary United Front (RUF) and its members.⁴⁷

Similarly, in the case of Cambodia the UN sanctions were targeted against the Khmer Rouges --a faction in the civil war in that country-,⁴⁸ and in the case of Haiti the target of the UN economic sanctions, and of the subsequent military intervention, was also the military junta.⁴⁹

Finally, even in the case of the war in former Yugoslavia, the UNSC in some of its resolutions referred to the Bosnian Serb forces imposing economic sanctions on them for the crime of ethnic cleansing.⁵⁰

Of course, the NSAs that this chapter is dealing with as participants in non -international armed conflicts are not necessarily ITOs. Their acts, goals and methods define them. Thus, for example, the “Afghan faction known as the Taliban”, Boko Haram in Nigeria, or the Janjaweed militia in Sudan will at the same time be a party to the non-international armed conflicts in these countries, and listed by the UNSC in the Al-Qaida/ISIL Sanctions List,⁵¹ while the “Bosnian Serbs” as a parastatal entity targeted by UN sanctions in 1994 for their policy of ethnic cleansing and grave breaches of IHL have never been considered to be an ITO. In other words, ITOs will be by definition NSAs, but not necessarily vice versa. Consequently, the term NSAs should be understood here in the broader meaning.

However, in the context of the “war against terrorism”⁵² it is perhaps most interesting to refer to the UN sanctions in the case of Afghanistan. In actual fact, the UNSC did not mention the state of Afghanistan in any of its resolutions. Formally, the target of these sanctions was the “Afghan faction known as the Taliban” as an ITO, as well as Al-Qaida, its members, primarily its leader Usama bin Laden and all persons connected with them.⁵³ What is more, in its resolution S/RES/1267(1999) the UNSC founded the Al-Qaida/Taliban Sanction Committee as a subsidiary organ with the function of implementing of these sanctions.

In addition, within the UN, the fight against terrorism went even further in the widening of addressees of international legal norms: in paragraph 9 of its resolution S/RES/1566(2004), the UNSC decided to establish a Working Group composed of all of the UNSC members, to consider and submit recommendations to the Council on practical measures to be imposed upon individuals, groups or entities involved in or associated with terrorist activities, other than those designated by the Al-Qaida/Taliban Sanctions Committee.⁵⁴

All the above examples prove not only the capacity of ITOs as non-state actors to break international legal norms, but also their international legal responsibility for internationally wrongful acts and particularly for international crimes. In this context, it is worth noting that the UN differentiates between the individual responsibility of an ITO’s members and the international responsibility of an ITO as a collective entity. For that reason, the UNSC Al -Qaida/ISIL Sanctions List consists of two sections: the first section listed the individuals (currently 709) who are involved in, or associated with, terrorist activities, while the other section currently contains 305 ITOs, “Entities and other groups”.⁵⁵

This being so, the question of the possible international legal personality of ITOs, as well as the question of the legal nature of the “war against terrorism”, becomes more important.

IV. “War Against Terrorism” vs. UNSC Sanctions?

On 14 January 2006, the world media reported on the United States military air strike on the Pakistani village of Damadola in the Bajaur tribal area of north-western Pakistan. At least 18 people were killed that day, including women and children, but the target of the air strike, Ayman al-Zawahiri, one of the leading members of Al-Qaida, was not among the dead. The Pakistani government protested, of course, but the United States response was that the airstrike was not directed against Pakistan, but against Al-Qaida.⁵⁶

Similarly, in April 2017 the United States dropped its most powerful non-nuclear bomb (the so -called “MOAB”) on ISIS positions in Afghanistan, describing it as a “tactical move” directed against terrorists and not against the state of Afghanistan.⁵⁷

Such “separability” seems to bring us back to the medieval, pre-Westphalian international law where private wars between vassals of the same or different feudal kingdoms had existed.⁵⁸ In that time, the concept of state sovereignty still belonged to the future. Today, the sovereign equality of all states, their territorial integrity and political independence has become the keystone of the contemporary international community and international law.⁵⁹

Certainly, it is not easy to reconcile this with the “war against terrorism”, which proclaiming the same values, involves the use of force founded on the mere auto-interpretation of a state, or a group of states, declaring that such a “war” will not end until “every terrorist group of global reaches has been found, stopped and defeated”.⁶⁰

International legal norms, particularly within the UN system, incriminate terrorism implying at the same time the direct international responsibility of terrorist organizations.⁶¹ However, these norms impose on states the duty to fight against terrorism and to deny safe haven to terrorists.⁶² Thus, some authors would say, the “war against terrorism” could be considered as part of transnational law where the strictly inter-state concept of ius ad bellum does not fit well with the changed international system where non-state, sub-state and super-state actors play an important role in international relations.⁶³ According to Müllerson:

Terrorist attacks have some characteristics which traditional armed attacks, as a rule, do not have: (i) attacks are usually carried out not by State’s armed forces but by non-State groups which may or may not have links with some States (except that terrorist groups have to operate on the territory of at least some States and this is one of the essential differences between piracy and terrorism, though in some respect they may be comparable); (ii) the identity of the attackers, their affiliation with other entities (including States) is usually not clear; (iii) means and methods used by terrorists are, by definition, contrary to international humanitarian law since they intentionally target non-combatants and attack prohibited objects. ⁶⁴

Thus, although such a situation could lead us to an analogy with the old and familiar international crime of piracy, there is a significant difference: the activities of terrorist organizations could be described as politically motivated acts that take place on the territory of a state, and not on the high seas or in terra nullius. Sometimes such a state may be unable to stop these acts, but its territory will still necessarily become, at least indirectly, the “battlefield” in such a “war”.⁶⁵ Therefore, the legal argumentation for the “war against terrorism” usually goes in two directions: as a response to the so-called “indirect aggression” -understood as the control over the terrorists by that state, or as an attempt of recognition of direct international legal responsibility of those terrorist organizations for aggression.

Of course, both argumentations try to stay within the framework of Article 51 of the UN Charter which proclaims the right of individual or collective self-defense. However, the provision of Article 51 recognizes the right of self-defense only in the context of an armed attack, meaning that international law is again faced with the problem of defining of an act of aggression.

The argumentation founded only on the concept of state responsibility holds the state from whose territory such a terrorist organization acts, or even the state which harbors terrorists, responsible for so-called “indirect aggression” as provided by the UN General Assembly (hereinafter: UNGA) resolution A/RES/3314(XXIX) of 14 December 1974 on the Definition of Aggression. Thus, according to Article 3, paragraph g of the Resolution, “the sending by or on behalf of a state of armed bands, groups, irregular or mercenaries, which carry out acts of armed force against another State” is considered aggression as well. However, the concept of the attribution of those acts to the state as an “indirect aggressor” seems to have some deficiencies. Firstly, if a terrorist act represents an indirect aggression of the state where those terrorists have been situated, how to accept the “separability” of an attack on terrorists (like those in Pakistan and Afghanistan) from the attack on that state, and its consequences? Would there then be a real war against the state from whose territory such ITOs act? Following the attitude of the International Court of Justice in the well-known “Nicaragua Case” of 1986, the acts of these non-state actors could have been imputable to the state provided that there was an effective control by that state over them.⁶⁶ Later, the practice of the ICTY in the “Tadić Case” raised the standard of attribution of NSA acts to the states by introducing the “overall control” test.⁶⁷ However, it has to be acknowledged that in the case of terrorist organizations and their international networks today sometimes neither effective nor overall control exist. On the other hand, even if such attribution existed, it should not simply be left to the auto-interpretation of a (stronger) state as the iudex in causa sua, but it should be submitted to the inquiry of an impartial international body, such as the UNSC, since the reaction obviously can include the use of armed force. In that case, as a general principle of law, the burden of proof (onus probandi) should be upon the accusing state.⁶⁸ In fact, even the provision of article 51 of the UN Charter confers the final authority over self-defense (at least post factum) on the UNSC. Understood this way, the mere tolerance of the presence of terrorists on the territory of a state, and even the rejection of their extradition, could hardly be qualified as “indirect aggression”, and even less as a reason for the application of self-defense as provided in article 51 of the UN Charter.⁶⁹

On the other hand, the argumentation that leads to the direct, and even to the sole responsibility of ITOs for aggression also has its weaknesses. The authors who accept this argumentation propound consequently the broadening of self-defense in international law as a reaction even to an attack committed by a non-state actor.⁷⁰ In this regard, it has to be acknowledged that ITOs today can be understood as an international threat, in the first place concerning the proliferation of weapons of mass destruction, particularly taking into account their international networks.⁷¹ The above-mentioned definition of aggression was created during the “cold war” when the world was divided by the “iron curtain” that followed the state borders. In that time, terrorists were usually no more than an instrument of the state policy, supported by one of the opposed superpowers. In contrast, we are today faced with worldwide-organized terrorist networks that extend beyond state borders.

However, we agree with authors like Pellet and Tzankov who do not accept such a broad interpretation of aggression. After the fall of the Berlin Wall, terrorism has often qualified as a threat to international peace and security in the sense of article 39 of the UN Charter, which enables the employment of the measures provided in Chapter VII of the Charter; i.e. economic and diplomatic sanctions as well as the measures involving the use of armed force.⁷² Thus, some states, (e.g. Libya, Sudan, and Afghanistan) have been targeted by those measures as being responsible for supporting or harboring terrorists, but the United Nations has never qualified terrorist acts as aggression.

Since article 51 of the Charter puts self-defense explicitly in the context of aggression, there is no legal possibility to qualify the “war against terrorism” as self-defense.⁷³ Of course, as Enabulele rightly remarked: “In consequence, states are finding incentives and justifications to use force outside the domain of law, when their legitimate interests are threatened by armed attack, particularly from non-state actors, which equally operate outside the domain of law” [emphasis added].⁷⁴ But, does this allow states to behave in the same way? Although we can agree with Müllerson that: “Fighting terrorism or waging a war against terrorism (which in any case is a non-legal concept) goes far beyond jus ad bellum...”,⁷⁵ we cannot agree that it goes “far beyond jus in bello”.⁷⁶ Neither do we share the opinion in favor of the emerging new (customary) international law on self-defense, derogating a jus cogens norm of article 2(4) of the UN Charter.⁷⁷ Even though, as Hakimi states, “the global reaction to the defensive operation against the Islamic State has been positive”⁷⁸ and “[A]ccording to the United States, more than forty countries have helped fight the Islamic State in Iraq or Syria”,⁷⁹ this argument does not suffice to prove the derogation of the existing “inter-state «armed attack-self-defense» paradigm”.⁸⁰ Bearing in mind not only the provision of article 103 of the UN Charter, but also the disputable opinio iuris of these allegedly forty states (out of 193 UN member states), it could equally speak in favor of the need for a more efficient application of article 39 of the UN Charter and the UNSC role according to Chapter VII, instead of the misuse of the self-defense arguments. Therefore, it seems that such a broadening of the definition of aggression has no support in the United Nations. After all, in the most important UNSC resolution related to the problem of terrorism (S/RES/1373[2001]) it has been qualified as a threat to international peace and security, which does not authorize states to use armed force unilaterally, i.e. without previous authorization by the UNSC. On the contrary, such UNSC authorization according to article 51 would not be needed in the case of self-defense.⁸¹ In that case, the responsibility of ITOs lies in the committing of the crime of terrorism as a threat to international peace and security and not the crime of aggression, although the reaction of the UN according to Chapter VII of the Charter can be the same.

Therefore, we would accept the traditional view, starting rather from the notion of aggression, than from self-defense as its consequence. The aggression is the act of war, and war begins with it. Therefore, at least in classic international law the intention of warfare (animus belligerendi) was required.⁸² In addition, war means the state of war, which is usually understood as the continuity of war operations. On the contrary, terrorist acts, in spite of their serious consequences, are sporadic acts of violence. Consequently, instead of animus belligerendi, they are characterized by the intention to provoke terror (animus terrendi ) in order to achieve certain (political) goals.⁸³ Of course, if an ITO, like any other NSA, is a party to non-international armed conflict, the IHL applies “from the initiation of such conflict and extends beyond the cessation of hostilities”. This has been clearly confirmed by the ICTY in the “Tadi ć Case”.⁸⁴ Thus, ITOs and/or their members could be equally responsible for grave breaches of IHL and for the crime of terrorism. However, even Protocol II to the Geneva Conventions in its article 1, paragraph 2 provides that it shall not apply to “isolated and sporadic acts of violence and other acts of similar nature”, which terrorist activities usually are. For these reasons, terrorist acts should the more so be differentiated from aggression as an act of war. After all, even the aforementioned Resolution on the Definition of Aggression in its article 1 clearly states: “Aggression is the use of armed force by a State...”⁸⁵ [emphasis added], which ITOs are certainly not. Therefore, the so-called “war against terrorism” could not be considered as a war in the legal meaning.

However, sometimes the UNSC has found individuals, terrorist organizations, and even states to be equally responsible for terrorism. Thus, as mentioned above, several states were targeted in the 1990s by UN sanctions: e.g. Libya (S/RES/748[1992] and S/RES/883[1993]); Sudan (S/ RES/1054[1996] and S/RES/1070(1996)); and Afghanistan, or more precisely, “the Afghan faction known as the Taliban” (S/RES/1267[1999] and S/ RES/1333[2000]).⁸⁶ Viewed from within, these resolutions activated some kind of parallel direct responsibility of the state, as well as of the individuals or ITOs as non-state actors (e.g. Al-Qaida) employing sanctions against them, such as denying entry to the UN member states, expelling Libyan nationals considered to be involved in terrorist activities (S/RES/748[1992], para. 6c); freezing funds and other financial assets of Usama bin Laden and individuals and entities associated with him, including those in the Al-Qaida organization, and including funds derived or generated from property owned or controlled directly or indirectly by Usama bin Laden and individuals and entities associated with him (S/RES/1333[2000], para. 8c).

In this context, it is worth mentioning the condemnation of “the Afghan faction known as the Taliban” that can be found in the UNSC resolution S/ RES/1390(2002), for allowing Afghanistan territory to be used as a base for terrorist training and activities, including the “export of terrorism” by the Al-Qaida network and other terrorist groups as well as for using foreign mercenaries in hostile actions on the territory of Afghanistan. Bearing in mind that the Taliban were acting at that time as the de facto government of Afghanistan -parallel direct responsibility of terrorist organizations (like Al-Qaida) and the state harboring and supporting them cannot be neglected.

On the other hand, sometimes such responsibility of a state will be activated by the mere fact of refusal by that state to apply the UNSC measures against the ITO acting from within its territory. Thus, it seems that the question of direct international legal responsibility of ITOs, and consequently the question of their international personality are no longer only theoretical. There are in fact some very practical implications.

Firstly, the international personality of ITOs could be a consequence of existing international legal norms that make them directly responsible for the terrorism incriminated by international law.⁸⁷ Bearing in mind that subjects of international law have never really been created by international law doctrine, but rather by the reality of social relations in the international community, it should be emphasized that legal personality has never been only a privilege, but has always included legal duties and responsibility for the breach thereof. By the recognition of terrorist organizations as directly responsible for the crime of terrorism, the international community not only identified the real culprits for such crimes, but also implicitly confirmed their pre-existing legal duty as an element of legal capacity. Although thereby not exculpating states, there is no doubt that at the same time such an approach is going to diminish the possibility of the protection of terrorists by “their” states. Just like pirates, or individuals who committed war crimes, crimes against humanity, or the crime of genocide, terrorists are today considered directly responsible according to international law, without the legal possibility for any state to protect them.

Starting from the above-mentioned UNSC resolution S/RES/1373(2001), the normative development within the UN legal system cannot be neglected. Thus, there are various measures provided by these norms, whose implementation and coordination are entrusted to the UNSC Committee established by the same resolution. However, it is worth noting that this resolution is concentrated on the direct international responsibility of terrorists, determining measures against them that all the UN member states are obliged to apply.⁸⁸ In any case, there is no doubt that these measures target ITOs directly as the subjects responsible according to these international legal norms. Although only the UN member states are formally bound by the wording of the UNSC resolutions, the real target of its sanctions are ITOs. Understood this way, the UNSC has just delegated the application of these sanctions to the UN member states (based on Article 24 of the Charter), in the same way as the UN in some of its previous resolutions used to require other IGOs and even NGOs to apply UN sanctions.⁸⁹

Furthermore, even in the case of parallel international responsibility of a state and a terrorist organization, as well as in cases where a state would not really be able to counter terrorists in its territory, the above-mentioned possibility of the UNSC to qualify terrorism as a “threat to the peace” according to article 39 of the UN Charter, would empower the United Nations to take measures involving the use of armed force in order to eliminate such a threat. After all, bearing in mind that, for example, the UNSC in its resolution S/RES/940(1994) qualified the military junta in Haiti as a threat to international peace and security, approving the use of armed force to overthrow it, it seems to us that there should be no reason why the same measures would not be taken, as a last resort, against ITOs, i.e. to counter terrorism as an undoubtedly much more serious threat to international peace and security. Of course, those measures should be targeted directly against terrorists, and in order to help the state which is unable to defeat terrorists acting from its territory.

Based on such an understanding, the idea of “separability” as mentioned above, could seem reasonable, but only in the context of the collective reaction provided by the international legal norms (e.g . Art. 42 of the UN Charter), and not as a “private war” in the form of voluntary unilateral use of force based on the auto-interpretation. Therefore, the UNGA in its recent resolution A/RES/74/194 of 18 December 2019, explicitly “reaffirms that international cooperation as well as actions by States to combat terrorism should be conducted in conformity with the principles of the Charter, international law and relevant international conventions” (para. 13). Thus, the mechanism provided by Chapter VII of the UN Charter against terrorism as a “threat to the peace”, seems to be the only permissible form of the use of force against terrorism and consequently against terrorist organizations.

However, the first decades of the 21st century, especially in the after-math of the so-called “Arab Spring” have presented international law with some of the most serious forms of international terrorism not only as a threat to international peace and security, but also as organized, systematic and widespread violations of fundamental human rights. The contemporary international community is witnessing the appearance of the ramified networks of terrorist organizations such as Al-Qaida, Al-Nusrah Front (ANF), or ISIL and other terrorist non-state actors whose activities range from sub-Saharan Africa to Pakistan and Indonesia. In March 2020, 305 terrorist ITOs -entities and other groups- were included in the “United Nations Security Council Sanctions List”, acting in Tunisia, Mali, Albania, Afghanistan, Ethiopia, Bangladesh, Comoros, Pakistan, Indonesia, Somalia, Kenya, Tanzania, the Arabian Peninsula, Libya, Sudan, Egypt, Caucasus, Uzbekistan and Bosnia and Herzegovina.⁹⁰ According to Margulies and Sinnot, in many of these countries Al-Qaida displays a mix of organizational forms in its relationships with affiliated groups, while its core remains in Pakistan.⁹¹ Among these groups there are, for example, Al-Qaida in the Arabian Peninsula (AQAP) which operates primarily in Yemen, Al -Qaida of the Islamic Maghreb (AQIM), Al-Shabaab in Somalia, Jabhat al Nusra and ISIS in Syria, Boko Haram in Nigeria, Gama al-Islamiya in Egypt, etc.⁹² Hence, it comes as no surprise that the UNSC sanctions against terrorism in the 21st century have changed their targets. Instead of states, they now directly target ITOs. The terrorist activities of these organizations nowadays affect the fundamental human rights of the third states’ population as much as the same rights of the population of their “host state”. Thereby, the reaction against terrorism could approach the classical “Responsibility to Protect” (so-called “RtoP”) concept, i.e. its “pillar three”-“timely and decisive response”.⁹³ Therefore, transborder terrorist activities of these ITOs have found their place not only in the UNSC resolutions,⁹⁴ but also within the jurisdiction of the International Criminal Court (ICC).⁹⁵ Thus, for example, Amnesty International has estimated that Boko Haram’s attacks in early 2014 alone killed more than 700 people, mostly civilians.⁹⁶ However, there are numerous examples of comparable suffering of the civilian population caused by similar terrorist attacks by ITOs operating from the territory of another state “manifestly failing” to stop them. Such organized and repeated terrorist activities against the civilian population have often been described in international law literature, such as those of Hamas or Hezbollah acting from Lebanon and Syria against Israel,⁹⁷ Kurdish PKK acting from Iraq against Turkey,⁹⁸ Mujahedin- e Khalk Organization (MKO) acting from Iraqi territory against Iran,⁹⁹ Fuerzas Armadas Revolucionarias de Colombia (FARC) from Ecuadorian territory against Columbia,¹⁰⁰ the Union of Islamic Courts from Somalia against Ethiopia,¹⁰¹ and not to mention Al-Qaida and ISIL terrorist activities all over the world. According to Ruys, even Australia claimed a right to unilateral use of force extraterritorially against terrorists threatening to attack Australia or its citizens following the Bali bombings of October 2002.¹⁰²

The emergence of transborder terrorist attacks by ITOs from the territory of another state “manifestly failing” to stop them has not only raised the question of the “responsibility to react” in the context of “war against terrorism”, but also in terms of the RtoP concept which, regrettably, omitted to include terrorism among the four international crimes it deals with (genocide, war crimes, ethnic cleansing and crimes against humanity),¹⁰³ leaving us again with the problem of the inefficiency of contemporary international law. However, transborder terrorist activities are usually a course of conduct involving the multiple commissions of widespread and systematic attacks directed against the civilian population, which highly corresponds to the definition of crimes against humanity (CAH) according to the 2016 ILC Draft articles on CAH,¹⁰⁴ as one of the crimes covered by the RtoP concept which, if focused on the direct international responsibility of ITOs, could turn the “war against terrorism” from voluntary unilateral use of force into the legal collective action as provided by the UN Charter.¹⁰⁵

On the other hand, international criminal law and particularly the mandate of the international criminal tribunals and mixed courts could become an important means for ensuring the accountability of non-state actors including ITOs. Of course, at the present stage of development of international criminal law it would be an exaggeration to speak of the direct criminal responsibility of ITOs, or NSAs in general as collective entities, particularly bearing in mind that the concept of the criminal responsibility of legal entities (personae iuridicae) even in municipal legal systems is not still universally accepted. However, the prosecutions of their members based on the individual criminal responsibility for serious breaches of international law committed as members or officials of such NSAs/ITOs could lead in that direction. Examples are the prosecutions of the members of various NSAs like the RUF members before the Sierra Leone Special Court, as well as the investigations and procedures before the International Criminal Court (ICC) concerning the conduct of the Lord’s Resistance Army (LRA) members in Uganda,¹⁰⁶ the Union des Patriotes Congolais (UPC) and the non-state armed group Forces patriotiques pour la libération du Congo (FPLC) in the Democratic Republic of Congo, or the Janjaweed militia in Sudan. Unfortunately, the crime of terrorism, in spite of its omnipresence in political statements and the UN documents including the UNSC sanction resolutions, has never been universally defined in international law, nor has it been included in the ICC Statute so far. However, some authors mentioned the possibility of extending the jurisdiction of the ICC to the crime of terrorism as a crime against humanity.¹⁰⁷

At the same time, following a series of terrorist killings and bombings in Lebanon, on 13 December 2005 the lebanese government requested that the UN create a tribunal of an “international character” to try all those responsible for the 2005 attack. The UNSC responded to Lebanon’s request by adopting resolution S/RES/1644(2005) of 15 December 2005 by which it requested the Secretary-General to help the Lebanese government to identify the assistance needed to try those eventually charged with perpetrating the attack. On 29 March 2006, through its resolution S/RES/1664(2006), the UNSC requested the United Nations Secretary-General to consult with the Lebanese government on the establishment of an international tribunal to try those responsible for the 14 February 2005 attack. Consequently, the Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon (STL) was concluded.¹⁰⁸ Although the tribunal’s jurisdiction is limited to the individual criminal responsibility, it is worth noting that according to articles 2 and 3 of its Statute the prosecution and punishment of acts of terrorism even included cases where such acts were committed by a “group of persons acting with a common purpose, where such contribution is intentional and is either made with the aim of furthering the general criminal activity or purpose of the group or in the knowledge of the intention of the group to commit the crime” (art. 3[1][b]).¹⁰⁹ Such a legal solution could easily encompass ITOs, leading through the influence on the development of customary international law to their direct international criminal responsibility at other international fora, perhaps one day including the ICC.

V. Concluding Remarks

There is no doubt that international legal personality is an extremely dynamic category. The doctrine of international law is making efforts to sort out the elements of international legal personality in order to create a clear definition, but in fact, the doctrine just follows social processes in the international community and their legal regulation. In that sense, the international law doctrine does not differ very much from the natural sciences, its task being to describe, systematize and understand the world around it. Understood this way, it seems clear that it is not the doctrine that opens the door of international legal personality for a particular entity, but its presence, or rather its inevitability in international relations that became so intensive that the legal regulation of those relations can no longer neglect it. Bearing in mind that only the addressee of a legal norm can be capable of breaking it and thus becoming the target of the sanction, the conclusion seems inevitable: such ITOs as addressees of these international legal norms could be considered as being empowered by international legal capacity. Consequently, it seems that they deserve to be considered as legally present in the contemporary international community, i.e. as participants in international legal relations possessing some kind of international legal personality.

Of course, the legal presence does not necessarily have to be something “good”, neither does the legal personality in general have to be a privilege. Legal personality is a neutral category which means no more than legal existence. After all, the existence itself is neutral by nature; it is neither good nor bad. Therefore, it is up to the legal system to regulate social relations in order to achieve the coexistence of their participants, imposing on them rights and duties which they can respect or violate.

International terrorism is a sad circumstance under which a new international legal person comes into being. And neither the international community, nor its legal order is a perfect world. Even so, we believe that international law is not an isolated system, but is founded on the general legal theory and as such the concept of legal personality in international law is determined by the aforementioned element of legal capacity, as much as is the case in any legal order. Still, the dynamics of social processes in the international community is inevitable, and the contemporary concept of international legal personality seems to be faced with the evolution of the international community and its law.

However, in this process, instead of attempts to subsume the emerging international persons in newly-coined concepts such as “transnational legal personality” or the “war against terrorism”, it seems far better to use the legal concepts that already exist. The concept of international legal personality, as well as international law in general, is subject to the development of international relations, since the law is never an aim in itself. To follow such development, however, does not mean to abandon the existing frameworks of the system, but on the contrary, to fill them with new substance.