The Possibility of Self-Defence Against Non-State Actors
The Possibility of Self-Defence Against Non-State Actors
Abstract and Keywords
This chapter analyses the question of whether self-defence as understood in international law, encompasses the possibility of using extraterritorial force against armed groups abroad. It examines the prohibition on the use of force, and whether the concept of ‘armed attack’ as appears in the rules of self-defence, includes attacks by non-state actors. The chapter also analyses the impact on this issue caused by the potential links between the non-state actor and the state in which the group is located.
Extraterritorial measures, unless taking place in areas such as the high seas, take place within the territory of another state. This raises a question concerning the legality of using force within another state, even if directed at a non-state actor and not at the state itself, and whether this violates the UN Charter prohibition on use of force. The focus of this Part is on situations in which the extraterritorial forcible measures are conducted without the consent of the territorial state. Should such consent exist, questions may remain—some of which are addressed in other chapters—but there would be less need to question whether the use of force by the acting state had violated the sovereignty or transgressed rules of inter-state relations.
Many of the issues examined in this Part, such as anticipatory self-defence, are amongst the most contested topics in the field of international law on resort to force and self-defence. It is not the purpose, nor indeed is it possible within the scope of this book, for this chapter to provide an extensive analysis of each and every one of the topics. Rather, the aim is to provide an understanding of the main elements of the debate, and then reflect upon how these debates are affected when the force in question is directed against non-state actors located in other states.
2. The prohibition on use of force
The fundamental principles regulating inter-state use of force, are to be found in the UN Charter.1 According to Article 2(4), ‘All Members shall refrain in their international relations from the threat or use of force against the territorial (p.26) integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations’.
This Article is one of the bedrocks of modern day international order, which has prevention of war as a primary goal.2 Although it reflects the strong post-World Wars desire to put an end to the scourge of war, the Charter does recognize that an absolute ban on force cannot stand the test of reality, and allows for self-defence in Article 51:
The Charter also allows for the UN Security Council to decide upon measures involving the use of military force in order to maintain or restore international peace and security and put an end to a threat to the peace, breach of the peace, or act of aggression.3
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Two questions must be asked: (i) are the extraterritorial forcible measures described in violation of Article 2(4); and if so then (ii) are they nevertheless allowed by Article 51, or by other recognized rules.4
At the early stage of this chapter, it should once again be made absolutely clear, that we are concerned with forcible actions taken against non-state actors. Accordingly, if the individual or group against whom measures are taken is in fact operating as a state agent, this would be outside the purview of this current analysis. Non-state actors, for the purpose here, are only those whose actions cannot be attributed to the state.5 The implications of the possible relationships between the territorial state and the non-state actor will be examined in a later section below.6
The taking of forcible measures unsanctioned by the Security Council on the territory of another state would seem prima facie to be in violation of Article 2(4), unless the use of unilateral force is in self-defence. Prima facie assessments, however, must be examined more closely before being accepted as correct. There are, (p.27) in fact, at least three possibilities as to the lawfulness of unilateral and unsanctioned extraterritorial forcible measures in light of Article 2(4):
(i) The measures do not contradict the terms of Article 2(4);
(ii) the measures do contradict the general terms of Article 2(4), but are lawful under self-defence;7
(iii) the measures are a violation of Article 2(4), not justified by any other rule.
The first option might seem improbable at first sight, if force is clearly being used without consent on the territory of another state. However, it should be noted that a literal reading of Article 2(4) does not include language prohibiting every use of force, but rather that ‘[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations’.8
It might be tempting to posit the argument that forcible measures taken against non-state actors, particularly if these are short swift operations not involving prolonged presence in the territorial state, do not interfere with the territorial integrity or political independence of the territorial state. It has, in fact, been said that there is a certain ambiguity in Article 2(4).9 An example of this claim can be found in the context of the Entebbe raid of 1976, in which Israel claimed that the use of force was only for a temporary rescue mission and not directed at Uganda.10 There was no agreement at the Security Council on the formulation of a resolution, but the debates show that the majority of countries—even some that displayed an element of understanding for Israel’s operation—did not wish to reduce the scope of the Article 2(4) prohibition.11
Interpreting Article 2(4) so as to allow ‘minor’ or ‘temporary’ invasions, is, in the words of Franck, ‘utterly incongruent, however, with the evident intent of the sponsors of this amendment’, and the more widely accepted interpretation (p.28) is that all uses of force are unlawful, other than the recognized exceptions in the Charter.12 Even temporary and limited incursions described as ‘in-and-out operations’ are said to be an infringement of the principle contained in Article 2(4).13
The difficulty of upholding such a claim can be further deduced from the debate over a different topic, that of humanitarian intervention, in which analogous claims can be made in seeking to exempt certain uses of force from the Charter prohibition. This debate centres upon the question of whether it might be lawful for states to forcibly intervene in another state in order to avert a humanitarian catastrophe and protect fundamental human rights. One of the arguments made in support of humanitarian intervention is that it is not aimed against the territorial integrity or political independence of the state and, therefore, is not in violation of Article 2(4) of the UN Charter.14 The debate over humanitarian intervention is ongoing and complex,15 and the only certainty within it is that as of yet it remains unsettled.16 Indeed, even among some supporters of the idea that states can and, perhaps, even have a duty, to intervene and protect in humanitarian catastrophes, it nevertheless appears recognized that the current state of the law does not support unilateral forcible intervention. This is evident in recent examinations of this question which, while recognizing that there may be an emerging ‘duty to protect’, see this duty, nevertheless, as needing Security (p.29) Council authorization,17 and the relevant reports do not claim that unilateral intervention does not violate Article 2(4).18 In light of all this, while there are ongoing attempts to find interpretations to legitimize humanitarian intervention, the prevalent view does not seem currently to support interpreting Article 2(4) of the Charter in such a way that unilateral (without Security Council authorization) humanitarian intervention would be a legitimate exception to the ban on use of force. If it does not seem possible, at least at this time, to claim that unilateral forcible intervention on humanitarian grounds is in keeping with Article 2(4) it is, therefore, at least similarly problematic to maintain that non-humanitarian related extraterritorial forcible measures against non-state actors, could nevertheless benefit from that claim.
Accordingly, if extraterritorial forcible measures of this kind do contradict the terms of Article 2(4), it is now necessary to examine whether they might be allowed as a form of legitimate self-defence. Additional related arguments and possibilities will be examined in Chapter 3.19
3. Self-defence against non-state actors
Perhaps the most obvious claim to justify using extraterritorial force against a non-state actor, is that it is a case of self-defence.20 Indeed, this has been the position taken by states on a number of occasions in which force was launched against non-state actors located in other states, including:
• The US invoked self-defence to support military operations against Al-Qaeda in Afghanistan, declaring that: ‘In response to these attacks, and in accordance with the inherent right of individual and collective self-defence, United States armed forces have initiated actions designed to prevent and deter further attacks on the United States. These actions include measures against al-Qaeda terrorist training camps […].’21 (p.30)
• Iran invoked self-defence after a 1993 attack against Kurdish groups in Iraq: ‘During the past few weeks, bands of armed and organized terrorist mercenaries have engaged in trans-border military attacks against and sabotage in Iranian border provinces […] In response to these armed attacks from inside Iraq and in accordance with Article 51 of the Charter of the United Nations, today, 25 May 1993, the fighter jets of the Islamic Republic Air Force carried out a brief, necessary and proportionate operation against the military bases of the terrorist group […].’22
• Ethiopia’s claim to use force against non-state actors in Somalia, was based upon a perceived need to defend itself, as is apparent from the fact that ‘the AU said Ethiopia had the right to intervene militarily in Somalia as it felt threatened by the Islamic militia operating there.’23
• Israel justified its attacks in Lebanon in summer 2006, as acts of self-defence against the Hezbollah, stating that ‘Israel, like any State, has done, and will continue to do, whatever is necessary to protect the lives of its citizens. It has the right and the duty to act in self-defense.’24
• Israel justified attacking an Islamic Jihad training camp in Syria, invoking self-defence on grounds of the Jihad having carried out suicide bombings in Israel, and declaring that ‘Israel’s measured defensive response to the horrific suicide bombings, against a terrorist training facility in Syria, are a clear act of self-defense in accordance with Article 51 of the Charter.’25
• Turkey asserted a right to attack Kurdish rebels in Iraq, following the death of 13 Turkish soldiers. According to the Turkish Prime Minister: ‘Turkey needed to be able to respond to a recent rise in bomb attacks blamed on PKK rebels from Iraq.’26
4. Can non-state actors be responsible for an ‘armed attack’?
According to Article 51 of the Charter, self-defence can only be invoked if an armed attack occurs. Therefore, if the state claims to be taking action in (p.31) self-defence, we must first inquire into the occurrence of an armed attack. The first issue in need of examination is whether the actions of a non-state actor can be deemed an armed attack which would, potentially, give rise to the subsequent right of self-defence.
There exist views that an armed attack must denote state involvement, or that self-defence can only be taken in response to an attack by a state or groups acting on behalf of one. This appears to be the position the International Court of Justice (‘ICJ’) took in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.27 This is also the position of certain commentators. Whilst, as will be seen below with regard to the ICJ, this claim is at times simply asserted without providing detailed reasoning, in other cases it is presented in the context of examining whether the non-state actor had support from the territorial state, and/or that the international laws relating to use of force are aimed only at actions of states.28
The relationship between the territorial state and the non-state actor can have a variety of implications,29 but it is a separate question from the possibility of an armed attack by a non-state actor without other state involvement. There is in fact plentiful evidence to provide solid support for the contention that non-state actors can be responsible for armed attacks which give rise to self-defence. As is seen below, this evidence rests on both a reading of the texts, and on state practice in the interpretation of the rule, and is supported by leading commentators.30
Unlike other articles in the UN Charter (such as Article 2(4) on the prohibition on the use of force) which do mention specifically that they refer to states, Article 51 does not mention the nature of the party responsible for the attack, but (p.32) only that of the entity which has the right of response. Self-defence can be exercised by a member of the UN, ie states, but there is no mention or qualification concerning the nature of the body behind the armed attack.
According to the International Court of Justice’s reading of Article 51, ‘Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State’.31
It is unclear how and why the Court interpreted Article 51 as having anything to say about the identity of the attacker.32 Judge Higgins, in her Separate Opinion, mentions that although the UN Charter does not appear to limit armed attacks to actions of state, this limitation can be understood from the International Court of Justice decision in Nicaragua v. USA.33 However, Higgins also notes her reservations to the Nicaragua proposition.34 Indeed, it is not clear that one can rely on the Nicaragua decision for asserting the existence of a limitation. In the context of self-defence, Nicaragua dealt (amongst other issues) with the support of the Nicaraguan government to rebels fighting in El-Salvador, and whether the type of alleged support could amount to an armed attack by Nicaragua, thus possibly giving rise to self-defence action against Nicaragua.35 The Court was assessing the question of attribution to a state and its consequences, and was not analyzing the separate question of whether in other circumstances a stand-alone action of a non-state actor with no state support could itself constitute an armed attack. It does not necessarily corroborate or negate the contention that non-state actors can be responsible for armed attacks as understood by Article 51 of the UN Charter.
Judge Kooijmans and Judge Buergenthal in their respective Opinions in the Advisory Opinion on the Wall, both expressed dissatisfaction with the Court’s apparent lack of acceptance that armed attacks can be perpetrated by non-state actors, a sentiment echoed by commentators.36
The International Court of Justice had later occasion to again review the issue of self-defence against non-state actors, in its judgement on Democratic Republic (p.33) of the Congo v. Uganda.37 However, the Court’s position in this case is less than clear:
The Court appears to be interested primarily in whether the armed attacks could be attributed to the Democratic Republic of Congo, and once a negative answer was reached, the Court dropped further aspirations to enquire into a potential claim of self-defence against non-state actors. Indeed, the final sentence in the above quotation indicates that the Court did not see itself as answering this question. If the Court had felt that the issue was satisfactorily addressed and decided in the Advisory Opinion on the Wall, then one might assume it would have repeated its earlier stated position. In fact, the expressed lack of will to determine the question of self-defence against non-state actors indicates that the Court, perhaps slightly backtracking on itself, deemed this to be a question still open for debate.
It is further to be noted that, while Uganda claimed to have acted in self-defence, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC. The armed attacks to which reference was made came rather from the ADF. The Court has found above (paragraphs 131–135) that there is no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC. The attacks did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC, within the sense of Article 3 (g) of General Assembly resolution 3314 (XXIX) on the definition of aggression, adopted on 14 December 1974. The Court is of the view that, on the evidence before it, even if this series of deplorable attacks could be regarded as cumulative in character, they still remained non-attributable to the DRC.
For all these reasons, the Court finds that the legal and factual circumstances for the exercise of a right of self-defence by Uganda against the DRC were not present. Accordingly, the Court has no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces.38
In his separate opinion, Judge Kooijmans observes that the Court appears to be repeating its position that claims of self-defence need only be examined if the armed attack can be attributed (directly or indirectly) to a state. This, according to Judge Kooijmans, is not the desired approach, since:
(p.34) Indeed, state practice appears to support the position that non-state actors might be behind armed attacks which give rise to self-defence. This is particularly true when observing the response to the attacks of 11 September 2001. This is evidenced by the reference to the right to self-defence in Security Council Resolutions 1368 and 1373,40 and by the North Atlantic Treaty Organisation (NATO) recognition of the acts as an armed attack.41 Security Council Resolution 1368 was adopted prior to the negotiations with the Taliban over possible extradition of the attackers and the subsequent apportioning of blame to the Taliban, a fact which indicates that at the time of adoption it was not based on an assumption attributing the attacks to Afghanistan, but rather to Al-Qaeda, a non-state actor.42 The view of the US is that this was a case of armed attack and self-defence,43 and the response of the Security Council and NATO appears to confirm that states accepted this position. Whilst this may be described as a relatively new understanding of the rules on self-defence,44 support for this position can be found prior to 2001,45 including reference to an earlier case, that of the Caroline. 46 (p.35)
[…] if the attacks by the irregulars would, because of their scale and effects, have had to be classified as an armed attack had they been carried out by regular armed forces, there is nothing in the language of Article 51 of the Charter that prevents the victim state from exercising its inherent right of self-defence.
[…] If armed attacks are carried out by irregular bands from such territory against a neighbouring State, they are still armed attacks even if they cannot be attributed to the territorial State. It would be unreasonable to deny the attacked State the right to self-defence merely because there is no attacker State, and the Charter does not so require.39
The Caroline Case is considered to be a formative case in the development of the rules of self-defence, and as can be seen throughout this Part, is often referred to as defining the parameters for the right of self-defence under customary international law. In fact, this case involved Britain engaging in an extraterritorial forcible measure, claiming the right to self-defence in response to the acts of a non-state actor. British forces stationed in Canada in 1837 wished to take action against the supplies and support Canadian rebels were receiving from private citizens in the US. British forces entered the US and boarded a ship (named the Caroline) with armed force, set it on fire and sent it over the Niagara Falls, with two US citizens killed in the process.47
As noted by Greenwood:
It is, therefore, apparent that even in historical terms, the concept of self-defence as a result of attacks by non-state actors has been recognized by states.
[…] the famous Caroline dispute, itself shows that an armed attack need not emanate from a State. The threat in the Caroline case came from a non-State group of the kind most would probably call terrorist today. The United States was not supporting the activities of that group and certainly could not be regarded as responsible for their acts. Yet, nowhere in the correspondence or in the subsequent reliance on the Webster formula on self-defense is it suggested that this fact might make a difference and that the Webster formula might not apply to armed attacks that did not emanate from a State.48
A number of additional commentators, including Dinstein, Franck, Schmitt and Paust, all support the view that states have a right of self-defence against non-state actors.49 In light of all the above, it is therefore submitted here that self-defence may lawfully be invoked in response to attacks perpetrated by non-state actors. It should however be noted at this stage that forcible measures taken by a state might not always be in response to a prior specific attack by the non-state actor, and there are further questions over forcible actions initiated by states, as will be seen in the later section on anticipatory or preventive measures.
Acceptance of the proposition that there may be self-defence against non-state actors does not relieve the need to examine certain particular legal and practical difficulties raised in the context of these situations. For instance, how does the inclusion of non-state actors affect the debate over anticipatory self-defence, or the proportionality of the response? These questions and others will be covered in Chapter 2 of this book. Before delving into the details of these problems, (p.36) attention will first be turned to another major issue hovering over this chapter, which needs to be addressed: the existence of an armed attack gives rise to a right to self-defence, and consequently might lead to use of force extraterritorially against the non-state actor, but where in this equation does the territorial state fit in?
5. The territorial state
When state A launches a military operation on the soil of state B, the instinctive observation would be that the two states are now engaged in armed conflict. However, what if, state A declares it is only engaging in operations against members of a non-state actor, for which state B denies responsibility? In July 2006, Hezbollah fighters based in Lebanon attacked an Israeli military patrol in the border area, killing eight soldiers and abducting two, as well as launching rockets into Israel. Together with Israel’s large-scale response, this was the commencement of an armed conflict that continued until the middle of the following month. Whilst claiming that Lebanon bore responsibility for the actions of the Hezbollah,50 the Israeli Government also took the position that its conflict was with the Hezbollah group, and not with Lebanon—‘Prime Minister Olmert emphasized that Israel is not fighting Lebanon but the terrorist element there, led by Nasrallah and his cohorts, who have made Lebanon a hostage and created Syrian- and Iranian-sponsored terrorist enclaves of murder.’51
How this can affect the classification of armed conflicts (as international or non-international) is an issue dealt with in Part II of this work.52 Nonetheless, this situation is mentioned at this stage in order to demonstrate that even if state A is using force on the territory of state B, the categorizations of the situation are not necessarily clear-cut, and there may be a distinction between using force in a state but not against that state.
Examining the role played by the territorial state (state B in the above example) revolves around three matters:
(i) what is the connection between the territorial state and the non-state actor which carried out the armed attack—this is both a factual question of formal connections, as well as a political question of the relationship and attitude of the state towards the non-state actor;
(ii) does the territorial state bear responsibility for the actions of the non-state actor either directly or for not preventing these acts; and (p.37)
(iii) how does this affect the legality of the measures taken by the outside state? As is seen below, these three issues are intertwined.
(i) the non-state actor is in fact so intertwined within the state mechanisms that it might be considered a state organ;
(ii) the non-state actor is receiving some form of instruction, material support or vital assistance from the state;
(iii) the non-state actor is independent, but has the consent of the territorial state to operate from its territory;
(iv) the state claims to have no ties nor to have given consent, but is unwilling to interfere or make any moves against the non-state actor;
(v) the state is unable to prevent the non-state actor from operating in its territory, even if disapproving of its activities.
The above scenarios describe the main possibilities that might exist in terms of a factual description of the relationship. The actual determination of the factual situation can at times be challenging, as can be seen in the case of Hezbollah and Lebanon. On the one hand, in addition to being an armed militant group, Hezbollah is also a political party which was a member of the Lebanese government. On the other hand, the Lebanese government made formal announcements dissociating itself from the armed actions of the Hezbollah.54 The analysis of such a situation will clearly be contentious.55 Once the factual determinations have been made on a case-by-case basis, then for the purposes of a legal analysis of the questions at hand, these factual situations can be further distilled into the following three categories:
(a) Attacks by the non-state actor can be attributed to the territorial state.
(b) Attacks by the non-state actor cannot be attributed to the territorial state, however the state bears some form of responsibility on account of its relationship with the non-state actor. (p.38)
(c) Although the territorial state has done no wrong, the non-state actor is nonetheless operating from within its territory.
Scenario (ii), if failing the attribution threshold, would then belong to category (b), as would scenarios (iii) and (iv), as will be seen shortly. There is strong support for the contention that even without directly sending the armed groups on their mission, if they do not attempt to prevent the non-state actor, states can bear responsibility under international law for the actions of non-state actors operating from within their territory. Following the International Court of Justice’s determination in Nicaragua, provision of weapons or logistical or other support ‘may be regarded as a threat or use of force, or amount to intervention in the internal or external affairs of other States’.59 Violation of obligations were also raised by the Court in DRC v Uganda: ‘The Court would comment, however, that, even if the evidence does not suggest that the MLC’s conduct is attributable to Uganda, the training and military support given by Uganda to the ALC, the military wing of the MLC, violates certain obligations of international law’.60
The Court cited the provisions, which it described as customary international law, of the Declaration on Principles of International Law Concerning Friendly (p.39) Relations and Co-operation Among States in accordance with the Charter of the United Nations:61
Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force….
It is not only direct material assistance that can lead to state responsibility but also, in the event of non-state actors carrying out terrorism from within its territory, a failure to act against them. This is evident from two Security Council Resolutions adopted after 11 September 2001, nos 1368 and 1373.62 In Resolution no 1373, adopted under Chapter VII of the UN Charter (and binding upon all UN members), the Security Council decides that all states shall:
No State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.
(a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists;
(b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information;
(c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;
(d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens;
(e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts.63
If the territorial state is implicated in the armed attack, then the outside state may have the right to use force against the territorial state and its agents, in addition to using it against the non-state actor. If, however, the territorial state bears a form of responsibility as detailed immediately above, but the actual armed attack cannot be attributed to it, then the outside state would not have the right to self-defence against the territorial state. This at least is the position of the International Court of Justice, as stated in Nicaragua.66 It should nonetheless be noted, that this relates to the possibility of forcible self-defence measures against the territorial state itself, and not to the notion of self-defence measures against the non-state actor.67 If one is to accept that non-state actors might be responsible for armed attacks which give rise to a right of self-defence, then this is a separate matter from the question of state responsibility of the territorial state. The notion of self-defence in this context does not rest upon the question of a breach of law by the territorial state, but on the fact that there is a state which is the victim of an armed attack and is need of recourse to self-defence in order to avert the danger.68
To clarify, the territorial state might bear responsibility either for the armed attack itself (if the attribution threshold is passed) or for failing to take measures against the non-state actor. In case of the former, it may find itself the object of lawful self-defence by the sending state. In case of the latter, it might not itself be a legitimate target of lawful self-defence operations, despite it possibly being in violation of international law.
However, if the territorial state aligns itself with the non-state actor, for example by subsequently endorsing the armed attack,69 and then using its own forces to oppose the self-defence operations against the non-state actor, then the outside state may have no alternative but to also use force against the territorial state.70 (p.41) The operation against the non-state actor taken in self-defence by the outside state is a lawful use of force, and the territorial state cannot therefore mount a forcible resistance in the name of self-defence;71 in fact it could be argued that the territorial state is obliged not to interfere with the exercise of self-defence by the sending state.72 Notwithstanding these possibilities, whether or not the territorial state can itself be subjected to forcible self-defence, this does not alter the fact that there was an armed attack by a non-state actor operating within its territory, and that another state was a victim of this armed attack, and therefore has a right to self-defence against the non-state actor.
Following this approach, scenario (v) and category (c) above,73 in which the territorial state is not complicit in any way in the activities of the non-state actor, but is unable to prevent these activities, leads to a similar conclusion that regardless of the legal responsibility of the territorial state, the outside state may have the right to self-defence against the non-state actor. Moreover, if the territorial state finds the non-state actor operations objectionable, but is unable to prevent them, it would avoid the need for unilateral force by the victim state were it to co-operate with that state and allow it, or others, to assist in countering the non-state actor.74 By choosing not to do so it hovers on the borderline between ‘unable’ and ‘unwilling’.75
The possibility of taking action on the territory of another state in order to curb attacks by a third party is not unique to the challenges of confronting non-state actors, and the debate here can find analogy in the context of the use of force as it relates to the laws of neutrality.76 As noted by Randelzhofer:
In light of all the above, if the territorial state will not or cannot prevent the attacks launched by the non-state actor operating from within its borders, the victim state may have the right to take self-defence measures against the non-state actor in the territorial state.78
For the purpose of responding to an ‘armed attack’, the state acting in self-defence is allowed to trespass on foreign territory, even when the attack cannot be attributed to the state from whose territory it is proceeding. It does not follow from the fact that the right of self-defence pursuant to Art. 51 is restricted to the case of an ‘armed attack’ that (p.42) defensive measures may only affect the attacker. Thus it is compatible with Art. 51 and the laws of neutrality when a warring state fights hostile armed forces undertaking an armed attack from neutral territory on the territory of the neutral state, provided that the state concerned is either unwilling or unable to curb the ongoing violation of its neutrality.77
Accepting that self-defence might be an option in the context of extraterritorial forcible measures against non-state actors is only the first stage in an examination of self-defence in this context. The next question raised is whether this right to self-defence can be exercised without further ado, or if certain steps must be taken before the outside state can turn to forcible measures.
(1) Charter of the United Nations (26 June 1945) 59 Stat 1031; TS 993; 3 Bevans 1153, entered into force 24 October 1945.
(2) A Randelzhofer, ‘Article 2(4)’ in B Simma (ed.), The Charter of the United Nations, A Commentary (OUP: Oxford, 1994) 108–9; L Henkin, ‘The Reports of the Death of Article 2(4) are Greatly Exaggerated’ 65 AJIL 544 (1971) 544.
(3) UN Charter, n 1, supra, Arts 39–42.
(4) The primary focus in this chapter is on self-defence, while Ch 3, infra, examines the possibility of justification through the concepts of counter-measures, necessity, and law enforcement.
(5) See discussion and sources in section 4.3 of the Introduction, supra, on non-state actors. See also further discussion in section 5, infra, on the territorial state.
(6) See section 5, infra, on the territorial state.
(7) Self-defence as the major recognized exception is the focus of the analysis at this stage. Chapter 3, infra, contains further exploration into the possibility of additional exceptions outside of self-defence.
(8) Emphasis added.
(9) D Bowett Self-Defence in International Law (Manchester University Press: Manchester, 1958) 12–13, 150–2.
(10) Israel conducted a raid upon the Ugandan airport, in order to rescue hostages held by pro-Palestinian hijackers. The hijackers were killed, as were a number of Ugandan soldiers, hostages and an Israeli soldier. At the UN Security Council meeting, the Israeli representative raised the argument that the operation was not against the territorial integrity or political independence of Uganda. See Security Council Official Records, 31st Year, 1939th Meeting, 9 July 1976, New York, UN Doc S/PV.1939 (1976).
(11) See for example the view of Sweden; Security Council Official Records, 31st Year, 1940th Meeting, 12 July 1976, New York, UN Doc S/PV.1940(OR); ibid; Gray points out that the claim of a narrow interpretation of 2(4) was not crucial to Israel’s argument. C Gray International Law and the Use of Force (OUP: Oxford, 2004) 30–1; for the possibility of making similar arguments in the context of a direct military attack on another state’s nuclear facility, see A D’Amato, ‘Editorial Comment: Israel’s Air Strike upon the Iraqi Nuclear Reactor’ 77 AJIL 584 (1983) 584–5.
(12) T Franck Recourse to Force: State Action Against Threats and Armed Attacks (CUP: Cambridge, 2002) 12; See also Y Dinstein, War, Aggression, and Self-Defence (CUP: Cambridge, 2005) 86–8; H Waldock, ‘The Regulation of the Use of Force by Individual States in International Law’, 81 Recueil des Cours 455, 493 (1952); M Shaw, International Law (5th edn) (CUP: Cambridge, 2004) 1021; Brownlie notes that it is ‘not intended to be restrictive, but, on the contrary, to give more specific guarantees to small states and that it cannot be interpreted as having a qualifying effect’. I Brownlie, International Law and the Use of Force by States (OUP: Oxford, 1963) 267; The International Court of Justice did not accept a restrictive approach to the ban on force with regard to UK actions in Albanian waters Corfu Channel Case (UK v. Alb.) 1949 ICJ 4, 34.
(13) Randelzhofer, n 2, supra, 117–18; see discussion of views in Gray, n 11, supra, 29–31.
(14) See the position of Belgium in relation to the intervention in Kosovo: ‘the Kingdom of Belgium takes the view that this is an armed humanitarian intervention, compatible with Article 2, paragraph 4, of the Charter, which covers only intervention against the territorial integrity or political independence of a State’ (Legality of Use of Force (Serbia and Montenegro v. Belgium), Oral Proceedings, CR 1999/15, Public sitting held on 10 May 1999); See also the discussion of debate in Randelzhofer, ibid, 123–4; M Reisman, ‘Criteria for the Lawful Use of Force in International Law’ 10 Yale Journal of International Law 279 (1985) 282.
(15) For further detailed examination of the debate, see R Lillich (ed), Humanitarian Intervention and the United Nations 167, (1973); A Roberts, ‘The So-Called “Right” of Humanitarian Intervention’ in Yearbook of International Humanitarian Law (2000) 3–52; ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’, International Development Research Centre, 2001; Gray, n 11 supra, 31–52; N Rodley and B Cali, ‘Kosovo Revisted: Humanitarian Intervention on the Fault Lines of International Law’ 7 Human Rights Law Review 275 (2007); APV Rogers, ‘Humanitarian Intervention and International Law’ 27 Harvard Journal of Law and Public Policy 725 (2004).
(16) The UK Foreign Office described it as not ‘unambiguously illegal’, Foreign and Commonwealth Office Paper, ‘Is intervention ever justified’, Foreign Policy Document no 148, 1986 (reprinted in part in 57 British Yearbook of International Law 614). The Foreign Office appeared a few years later to have taken a more positive approach towards the possibility of lawful humanitarian intervention, albeit in ‘exceptional circumstances’ see Baroness Symons written answer to Lord Kennet, Hansard, Col WA140, 16 November 1998.
(17) Roberts also examines the question of authorization by other bodies such as the General Assembly or Regional Organizations. Roberts, n 15, supra, 37–40; See also The Responsibility to Protect, n 15, supra, ch 6 ‘The question of Authority’.
(18) ‘A More Secure World: Our Shared Responsibility’, Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change, UN Doc A/59/565 (2004); Whilst clarifying that this is not the preferred outcome and has risks for the maintenance of international order, the reality of unilateral intervention being resorted to if the Security Council fails to act, is however raised. The Responsibility to Protect, n 15, supra.
(19) On measures taken outside the self-defence frameworks, and the possibilities of alternative paradigms.
(20) Another possibility is the claim that the action is taken within the context of an already ongoing armed conflict. For instance, the US justified attacking individuals in Yemen by claiming this was part of a ‘war on terror’. This type of claim, including this particular example, will be examined in Parts II, III and the Concluding Chapter, infra.
(21) Letter, dated 7 October 2001, from the Permanent Representative of the United States of America, to the United Nations addressed to the President of the Security Council, UN SCOR, 56th session at 1; UN Doc S/2001/946 (2001). This clam also addressed the use of force against the Taliban regime. See section below on relationship between non-state actors and the territorial state. It is important to note that self-defence was already invoked at an early stage only in relation to Al-Qaeda prior to alleging Taliban responsibilities. See nn 40 and 41, infra, and accompanying text.
(22) Letter, dated 25 May 1993, from the Permanent Representative of the Islamic Republic of Iran to the United Nations Addresses to the Secretary General, UN Doc S/25843.
(23) ‘Ethiopia urged to leave Somalia’ BBC News, 27 December 2006, available at <http://news.bbc.co.uk/1/hi/world/africa/6212807.stm>.
(24) Statement by Ambassador Dan Gillerman, Permanent Representative, During the open debate on ‘The Situation in the Middle East’ United Nations, New York, 8 August 2006.
(25) Statement by Ambassador Dan Gillerman, Permanent Representative, Emergency Session, Security Council, New York, 5 October 2003.
(27) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004,  ICJ Rep, para 139.
(28) J Kunz, ‘Individual and collective Self-Defense in Article 51 of the charter of the United Nations’ AJIL Editorial Comment 872 (1947) 878; M Bothe, ‘Terrorism and the Legality of Pre-emptive Force’ 14 European Journal of International Law 227 (2003) 233; A McDonald, ‘Terrorism, Counter-terrorism and the Jus in Bello’ in M Schmitt and G Beruto (eds) Terrorism and International Law: Challenges and Responses (International Institute of Humanitarian Law, 2002); S Alexandrov, Self-Defense Against the Use of Force in International Law (Kluwer Law International: The Hague, 1996) 182–3; E Myjer and NWhite, ‘The Twin Towers Attack: An Unlimited Right to Self-Defence?’ 7 Journal of Conflict and Security Law 5 (2002) 7 (although Myjer and White acknowledge that the US position of viewing 11 September 2001 as an armed attack did find broad support, at 8–9); G Simpson in E Wilmshurst (ed) ‘Principles of International Law on the Use of Force by States in Self-Defence’ The Royal Institute of International Affairs, Chatham House, October 2005, 27–8.
(29) See section 5, infra.
(30) See Dinstein, Franck, Greenwood, Schmitt, and Paust, all n 49, infra; See also O Schachter, ‘The Extraterritorial Use of Force Against Terrorist Bases’ 11 Houston Journal of International Law 309 (1988–9) 311; F Berman in Principles of International Law, n 28, supra, 20; D Bethlehem in Principles of International Law, n 28, supra, 21; C Greenwood in Principles of International Law, n 28, supra, 21; V Lowe in Principles of International Law, n 28, supra, 22; A Roberts in Principles of International Law, n 28 supra, 23; P Sands in Principles of International Law, n 28, supra, 26; M Shaw in Principles of International Law, n 27, supra, 26. S Murphy, ‘Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?’ 99 AJIL 62 (2005) 64, 67–70.
(31) Advisory Opinion on the Wall, n 27, supra, para 139.
(32) The Court recognized that Israel may wish to justify the construction as self-defence, ibid. The Palestinian submission, in relation to self-defence, focused the argument on the factual aspect of whether there was the required gravity of attack to claim self-defence by Israel, whether this was a form of unlawful preventive self-defence, disproportionate, and whether the rule applied in the context of occupation, but did not directly raise the claim that armed attacks can only be committed by states. Advisory Opinion on the Wall, n 27, supra, written statement submitted by Palestine, 30 January 2004, paras 529–34.
(33) Case Concerning Military and Paramilitary Activities in and Against Nicaragua,  ICJ Rep 14.
(34) To be found in R Higgins, Problems and Process: International Law and How We Use It (Clarendon Press: Oxford, 1994) 250–51. These reservations appear, however, to focus on a separate aspect of the question, namely on whether the scale of activity demanded for reaching the threshold of an armed attack is different for attacks perpetrated by regular forces or by armed bands supported by a state.
(35) Nicaragua, n 33, supra, paras 131,195, 229, 230.
(36) Separate Opinion of Judge Kooijmans, n 27, supra, para 35, Declaration by Judge Buergenthal, n 27, supra, para 6; see also Greenwood, n 30 supra, 21; Roberts, n 30, supra, 23; Sands, n 30, supra, 26; A Cassese, International Law (OUP: Oxford, 2005) 354–5.
(37) Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) paras 146–7.
(38) For further discussion on scale of armed attacks, see section 2 of Ch 2, infra.
(39) DRC v. Uganda, n 37, supra; separate opinion of Judge Kooijmans, n 27, supra, paras 29–30.
(40) Security Council Res no 1368 (2001), adopted by the Security Council at its 4370th meeting, 12 September 2001; Security Council Res no 1373 (2001), adopted by the Security Council at its 4385th meeting, 28 September 2001. But see Myjer and White for a view questioning whether the Security Council resolutions formally determined this to be a case of armed attack and self-defence. See n 28, supra, 9–13.
(41) Exceptionally invoking the NATO commitment to collective self-defence. See NATO Press Release 124, 12 September 2001, available at <http://www.nato.int/docu/pr/2001/p01-124e.htm>. See also the Statement of the Organization of American States, ‘Support for the Measures of Individual and Collective Self-Defense Established in Resolution Rc.24/Res. 1/01’, Oea/Ser.F/Ii.24, Cs/Tiar/Res. 1/01, 16 October 2001, available at <http://www.oas.org/OASpage/crisis/follow_e.htm>; See Franck, n 12, supra, 65.
(42) See n 40, supra; M Schmitt, ‘Counter-Terrorism and the Use of Force in International Law’ The Marshall Center Papers no 5, The George C. Marshall European Center for Security Studies, 26–7; But see Pellet’s reference to the ‘troubling’ element of Security Council Res no 1368 which in his opinion is an ‘extremely wide interpretation’ of the meaning of Article 51 of the Charter. A Pellet, ‘“No, This is not War!”: The Attack on the World Trade Center: Legal Responses’ EJIL Discussion Forum, 3 October 2001, available at <http://www.ejil.org/forum_WTC/ny-pellet.html>
(43) See the position expressed by John B Bellinger III, Legal Adviser to the Secretary of State: J Bellinger, ‘Legal Issues in the War on Terrorism’ International Humanitarian Law Project Lecture Series, London School of Economics, October 31, 2006. Transcript available at <http://www.lse.ac.uk/collections/LSEPublicLecturesAndEvents/pdf/20061031_JohnBellinger.pdf>.
(44) As is concluded by Judge Kooijmans, n 36, supra; see also analysis in C Tams, ‘The Use of Force against Terrorists’ 20 EJIL 359 (2009) 378–81.
(45) T Gill, ‘The Eleventh of September and the Right of Self-Defense’ in WP Heere (ed.), Terrorism and the Military: International Legal Implications (Asser: The Hague, 2003) 23–37, 30; Dinstein, supra n 12, supra, 204–6 (this appears also at 222 of the 1988 edn written many years prior to 11 September 2001); Franck mentions a fair number of occasions in which states asserted self-defence in attacking territory from which non-state actors originated, and attacks against alleged terrorists, including action taken by Turkey, Iran, Senegal, and Thailand, as well as the acquiescence or support for the 1998 US attacks in Sudan and Afghanistan. Franck, n 12, supra, 64, 95.
(46) This refers to the 1837 Caroline incident, involving British action against a ship used by Canadian rebels, in US territory, and the ensuing written diplomatic exchange between Britain and the US. See JB Moore, 2 Digest of International Law 409, 412 (1906).
(47) For a description of the case, see R Jennings, ‘The Caroline and McLeod Cases’ 32 AJIL 82 (1938).
(48) C Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq’, 4 San Diego International Law Journal 7, 17 (2003).
(49) Greenwood, ibid; T Franck, ‘Editorial Comments: Terrorism and the Right of Self-Defense’, 95 AJIL 839, 840 (2001); Dinstein, n 12, supra, 204–8; J Paust, ‘Use of Armed Force against Terrorists in Afghanistan, Iraq, and Beyond’, 35 Cornell International Law Journal 533, 533–4 (2002); Schmitt, n 42, supra. See also the separate opinion of Judge Kooijmans, n 27, supra, para 35, and the Declaration by Judge Buergenthal, n 27, supra, para 6; See further support from commentators n 30, supra.
(50) ‘Hizbullah attack’ Special Cabinet Communique, Israeli Government, 12 July 2006, available at <http://www.mfa.gov.il/MFA/Government/Communiques/2006/Special+Cabinet+Communique+-+Hizbullah+attack+12-Jul-2006.htm>.
(51) Cabinet Communique, Israeli Government, 16 July 2006, available at <http://www.mfa.gov.il/MFA/Government/Communiques/2006/Cabinet+Communique+16-Jul-2006.htm>.
(52) See also discussion of this conflict in the Concluding Chapter, infra.
(53) There are various ways to present the relationship, eg Cassese offers six categories, and Simpson offers four. See Cassese, n 36, supra, 470–2 and Simpson, n 28, supra, 27. Within the above categories one could also divide them further for instance to cases in which the state is unable to prevent the activities of the group despite wanting to do so, and cases in which the state is unable but would also not have prevented the group even if it did have the power to do so. The chosen categories above are those which afford an understanding based on the distinctions relevant for the purpose of the present analysis.
(54) ‘The Lebanese government was not aware of the events that occurred and are occurring on the international Lebanese border. The Lebanese government is not responsible for these events and does not endorse them.’ Identical letters, dated 13 July 2006, from the Chargé d’affaires a.i. of the Permanent Mission of Lebanon to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc A/60/938–S/2006/518.
(56) Nicaragua, n 33, supra.
(57) Nicaragua, n 33, supra, paras 115,195. The question of attribution can depend on a number of factors, such as the type of control the State may have over the group, and if the level of instruction that may exist is that of specific instructions for specific operations. See more on this in ‘Commentaries to the draft articles on Responsibility of States for internationally wrongful acts’, International Law Commission, 53rd session (2001), (extract from the ‘Report of the International Law Commission on the work of its Fifty-third session’, Official Records of the General Assembly, 56th session, supp no 10 (A/56/10), chp.IV.E.2) November 2001) art 8.
(58) See discussion in section 5 of Ch 3, infra, on alternative paradigms.
(59) See n 33, supra, para 195.
(60) DRC v. Uganda, n 37, supra, para 161.
(61) Ibid, para 162; Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA res 2625, Annex, 25 UN GAOR, Supp (no 28); UN Doc A/5217 at 121 (1970).
(62) See n 40, supra.
(63) SC 1373 para. 2; See also R Jennings and A Watts (eds), Oppenheim’s International Law Ninth Edition, vol 1, Peace, (Longman: London, 1992) 393–406.
(64) This may even be a rule of customary international law. See Schachter, supra n 30, supra, 311.
(65) Indeed, states can bear responsibility for failing to take preventative measures against actions for which they themselves might not be held responsible. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina V Serbia, Judgment on Merits, General List no 91; ICGJ 70 (ICJ 2007) 26 February 2007, paras 425–38, 471.
(66) Nicaragua, n 33, supra, para 195. This is also one of the areas in which the Nicaragua judgment has been criticized, in that it might appear to create a gap in which a state might be involved in the use of force against another state, without the victim state having a right of self-defence. J Hargrove ‘Appraisals of the ICJ’s Decision: Nicaragua v. United States (Merits)’ 81 AJIL 135 (1987). See also discussion in Ch 3, infra.
(67) See earlier discussion of Nicaragua, noting that the case did not focus upon attacks by stand-alone non-state actors, but upon the links between groups and states and consequences of attributing group’s acts to a state. Text accompanying nn 33, 34, supra.
(68) Lowe, n 30, supra, 22; An alternative analysis is offered by Tams, linking the self-defence arguments to what appears to be a lower threshold for the test of attribution, Tams, n 44, supra, 384–7. The position argued above is however different, in that it is submitted that the right of self-defence does not depend on the attribution to the territorial state.
(69) For an example of post-facto endorsement, albeit in a different context, see Case Concerning United States Diplomatic and Consular Staff in Tehran (US v. Iran), 1980 ICJ Rep 3.
(70) For discussion of this in this context of the US and the Taliban, see text accompanying nn 19–26, infra.
(71) Y Dinstein, ‘Dinstein, Comment’ at the conference exploring Terrorism as a Challenge for National and International Law, Max-Planck Institute for Comparative Public Law and International Law, Heidelberg, 24–5 January 2003, available at <http://edoc.mpil.de/conference-on-terrorism/index.cfm>; Dinstein quotes The United States of America v. Ernst von Weizsäcker and ors (‘The Ministries Trial’) Nuremberg 1949 ‘there can be no self-defense against self-defense’ (based on a phrase from Wharton, Criminal Law, vol I (12th edn) (The Lawyers Co-operative Publishing Co: Rochester, NY, 1932) 180).
(72) R Mullerson, ‘Jus Ad Bellum: Plus Ça Change (Le Monde) Plus C’est La Même Chose (Le Droit)?’ 7 Journal of Conflict and Security Law 149 (2002) 185; M Schmitt, ‘Counter-Terrorism and the Use of Force in International Law’ The Marshall Center Papers no 5, The George C Marshall European Center for Security Studies, 33–4.
(73) Text accompanying nn 53–56, supra.
(74) Berman, n 30, supra, 62; Lowe, n 30, supra, 63–4; Shaw, n 30, supra, 65; M Wood in Principles of International Law, n 30, supra, 66.
(75) Berman, n 30, supra, 62.
(76) This analogy has been noted by various commentators, such as Greenwood, n 30, supra, 63, and Berman, n 30, supra, 62; For discussion of approaching the laws of neutrality in light of the modern rules on self-defence, and the possibility of allowing for self-defence actions in this context when they are necessary and proportionate, see S Neff, The Rights and Duties of Neutrals (Manchester University Press: Manchester, 2000).
(77) A Randelzhofer, ‘Article 51’ in B Simma (ed.), The Charter of the United Nations, A Commentary (OUP: Oxford, 1994) 661–78, 673; But see Brownlie for a detailed examination of past practice and the views regarding intervention in the territory of neutral states, whereby other than perhaps limited exceptional circumstances, the legality of interventions is generally doubtful. Brownlie, n 12, supra, 309–16; As noted by Randelzhofer, it is, however, submitted here that self-defence against armed attacks would constitute exceptional circumstances that warrant this action.