scholarly journals Self-defence against Armed Attacks by Non-State Actors

2019 ◽  
Vol 18 (4) ◽  
pp. 751-775
Author(s):  
Rein Müllerson
Keyword(s):  
International Law ◽  
Military Force ◽  
International Organisations ◽  
Customary International Law ◽  
Territorial State ◽  
Defensive Responses ◽  
State Actors ◽  
Self Defence

Abstract Armed attacks in the sense of Article 51 and customary international law can be carried out not only by States, but also by non-State actors (NSA). Self-defensive responses to attacks by NSAs, due to their specific characteristics, may contain a combination of elements of anticipatory self-defence and defensive reprisals. If a State, from the territory of which an attack originates, is unable to prevent an NSA attacking a third State, it has to ask for and to accept the assistance of the victim State, other States, or relevant international organisations. The latter cannot use military force in self-defence in such circumstances without having first sought the consent of the territorial State. However, if a State is unwilling to prevent an NSA, operating from its territory, from attacking third States, it becomes an accessory-after-the-fact to armed attacks of the NSA. Self-defensive, either individual or collective, measures can be carried out on the territory of such a State even without its consent.

Part 3 The Post 9/11-Era (2001–), 48 The Intervention in Afghanistan—2001–

2018 ◽  
Author(s):  
Byers Michael
Keyword(s):  
International Law ◽  
Security Council ◽  
Customary International Law ◽  
The Us ◽  
Un Security Council ◽  
State Actors ◽  
Complex Relationships ◽  
Self Defence

This chapter addresses the US and NATO-led intervention in Afghanistan from 2001 to the present day. It examines the different legal justifications advanced or available for the intervention, namely self-defence, UN Security Council authorization, and intervention by invitation. It explores the complex relationships between these justifications and, particularly, the strategies adopted by states in choosing between them. The chapter concludes by considering the effects of the intervention on the customary international law of self-defence as it concerns non-state actors located in “unaware or unable” states, and anticipatory or pre-emptive responses.

scholarly journals Necessity and Proportionality and the Right of Self-Defence in International Law

2021 ◽  
Author(s):  
Chris O'Meara
Keyword(s):  
International Law ◽  
Analytical Framework ◽  
Third Party ◽  
Military Force ◽  
Total Force ◽  
Customary International Law ◽  
Defensive Action ◽  
The Right ◽  
Conceptual Meaning ◽  
Self Defence

States invariably justify using force extraterritorially by reference to their inherent right of self-defence. In so doing, they accept that the exercise of such right is conditioned by the customary international law requirements of necessity and proportionality. To date, these requirements have received little attention. They are notorious for being normatively indeterminate and operationally complex. As a breach of either requirement renders ostensibly defensive action unlawful, increased determinacy regarding their scope and content is crucial to how international law constrains military force. This book examines the conceptual meaning, substance and practical application of necessity and proportionality as they relate to the right of self-defence following the adoption of the UN Charter in 1945. It provides a coherent and up-to-date description of the applicable contemporary international law and proposes an analytical framework to guide its operation and appraisal. This book contends that necessity and proportionality are conceptually distinct and must be applied in the foregoing order to avoid an insufficient ‘catch-all’ description of (il)legality. Necessity determines whether defensive force may be used to respond to an armed attack and where it must be directed. Proportionality governs how much total force is permissible and prohibits excessive responses. Both requirements are shown to apply on an ongoing basis throughout the duration of an armed conflict prompted by self-defence. Compliance with necessity and proportionality ensures that the purposes of self-defence are met (and nothing more) and that defensive force is not unduly disruptive to third-party interests and to international peace and security.

Restrictivist Reasoning on theRatione PersonaeDimension of Armed Attacks in the Post 9/11 World

2016 ◽  
Vol 29 (1) ◽  
pp. 19-42 ◽  
Author(s):  
ANDRÉ DE HOOGH
Keyword(s):  
International Law ◽  
Customary International Law ◽  
State Practice ◽  
State Actors ◽  
The Right ◽  
Self Defence

AbstractThis contribution investigates restrictivist reasoning on the origin of armed attacks, and concentrates on the interpretation of Article 51 of the UN Charter and the use of state practice. One particular aspect is examined: the linkage of the armed activities of non-state actors to a state required for an exercise of the right of self-defence to be justified in relation to that state. Many authors have moved away from a restrictive interpretation of Article 51 of the Charter and customary international law, and have proposed various legal constructs –complicity, aiding and abetting, harbour and support, unwillingness or inability to act– to allow for the invocation of self-defence even when armed activities of non-state actors cannot be attributed to a state and its substantial involvement is doubtful. Noticeable among authors generally, with certain exceptions, is a certain lack of concern to account for whatever method of interpretation or analysis they employ.

The Great War and International Law: German Justifications of Prevention and Pre-emptive Self-Defence

2021 ◽  
pp. 183-206
Author(s):  
Isabel V. Hull
Keyword(s):  
International Law ◽  
Military Leaders ◽  
Customary International Law ◽  
Preventive War ◽  
Early Modernity ◽  
European State ◽  
Jus Ad Bellum ◽  
The Great War ◽  
Self Defence

Isabel V. Hull uses the German declarations of war in 1914 to examine three issues: 1) the role of customary international law (CIL) in statesmen’s decision to go to war (using Germany as an example); 2) the assumptions that state actors held a jus ad bellum; and, especially, 3) how they distinguished self-defence, prevention, pre-emption, and aggression. Hull uses not the claims of jurists, but the arguments and actions of civilian and military leaders, i.e. those who actually made the decisions for war. With this, she continues Anuschka Tischer’s and Hendrik Simon’s examination of the question whether there was a transformation of war discourses in (early) modernity that led to overcoming the need to justify war. The chapter confirms that, even as Germany began a ‘preventive war’, the European state consensus held that, on the continent, preventive war was illegal, pre-emptive war was severely restrained, and genuine self-defence – meaning both fending off armed attack against one’s territory, independence, or sovereignty, and defending the treaty-structure that guaranteed the inter-state order – was the only justification for war acceptable to the community of states.

11. Use of force

2019 ◽  
pp. 144-159
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Armed Force ◽  
Responsibility To Protect ◽  
Collective Security ◽  
Armed Attack ◽  
Customary International Law ◽  
Significant Achievement ◽  
Self Defence

This chapter examines under what circumstances States may use armed force under customary international law and Arts 2(4) and 51 UN Charter. After noting that the use of armed force is generally prohibited and only limited to self-defence, and then only if the target State is under an armed attack, we show that several States have expanded the notion of armed attack. Besides self-defence, the Security Council may authorize the use of armed force through a process of collective security. Several examples of collective security are offered, as well as the ICJ’s position on what constitutes an armed attack. In recent years, the range of actors capable of undertaking an armed attack has included terrorists. Moreover, the development of the doctrine of the responsibility to protect is a significant achievement.

Converting treaties into tactics on military operations

2014 ◽  
Vol 96 (895-896) ◽  
pp. 919-942 ◽  
Author(s):  
Andrew J. Carswell
Keyword(s):  
International Law ◽  
Armed Forces ◽  
Armed Conflicts ◽  
Military Force ◽  
Military Operations ◽  
Customary International Law ◽  
Law Of Armed Conflict ◽  
Definition Of ◽  
Operational Guidance ◽  
Direct Attack

AbstractDespite widespread State acceptance of the international law governing military use of force across the spectrum of operations, the humanitarian reality in today's armed conflicts and other situations of violence worldwide is troubling. The structure and incentives of armed forces dictate the need to more systematically integrate that law into operational practice. However, treaty and customary international law is not easily translated into coherent operational guidance and rules of engagement (RoE), a problem that is exacerbated by differences of language and perspective between the armed forces and neutral humanitarian actors with a stake in the law's implementation. The author examines the operative language of RoE with a view to facilitating the work of accurately integrating relevant law of armed conflict and human rights law norms. The analysis highlights three crucial debates surrounding the use of military force and their practical consequences for operations: the dividing line between the conduct of hostilities and law enforcement frameworks, the definition of membership in an organized armed group for the purpose of lethal targeting, and the debate surrounding civilian direct participation in hostilities and the consequent loss of protection against direct attack.

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