Back to Basics: Necessity, Proportionality, and the Right of Self-Defence Against Non-State Terrorist Actors

2007 ◽  
Vol 56 (1) ◽  
pp. 141-156 ◽  
Author(s):  
Kimberley N Trapp
Keyword(s):  
Democratic Republic ◽  
Use Of Force ◽  
International Community ◽  
International Court ◽  
State Actors ◽  
The Right ◽  
Self Defence

The International Court of Justice's decision inDRCvUgandatouches on, but fails to address, the circumstances under which a State has a right to use force in self-defence against non-State actors.1In particular, the Court holds that, because the attacks carried out by anti-Ugandan rebels operating from the Democratic Republic of Congo's (DRC) territory are not attributable to the DRC, Uganda has no right to use force in self-defenceagainst theDRC.2The separate opinions inDRC v Ugandalament the Court's failure to take the opportunity to address the right to act in self-defence against non-State actors3–an issue of such obvious importance to the international community in an age of terrorism. As will be examined below, there are arguably good reasons–on the facts of the case–for the Court's refusal to pronounce itself on the matter. Furthermore, its decision need not be read as absolutely precluding a use of force in foreign territory in response to armed attacks by non-State actors.

The invocation of the right to self-defence in response to armed attacks conducted by armed groups: Implications for attribution

2018 ◽  
Vol 32 (01) ◽  
pp. 91-110 ◽  
Author(s):  
Erika de Wet
Keyword(s):  
Due Diligence ◽  
Armed Groups ◽  
Armed Attack ◽  
International Court Of Justice ◽  
International Court ◽  
State Actors ◽  
The Right ◽  
United Nations Charter ◽  
Territorial States ◽  
Self Defence

AbstractThe right to self-defence in Article 51 of the United Nations Charter is increasingly being invoked in response to armed attacks conducted by armed groups located in a territory of another state, with or without the (direct) assistance of such a state. This article examines the implications of the invocation of the right to self-defence under these circumstances for the principles of attribution within thejus ad bellumparadigm. First, it illuminates how the threshold requirements for indirect armed attacks (that is, the state acting through a private actor) have been lowered since the 1986Nicaraguadecision of the International Court of Justice. In so doing, the article suggests that in order to prevent a complete erosion of the benchmarks of an indirect armed attack, the notions of ‘substantial involvement’ in an armed attack, ‘harbouring’, and ‘unwillingness’ should be interpreted as manifestations of due diligence. Thereafter, the article illustrates that there is also an increasing attribution of armed attacks directly to non-state actors, notably those located in areas over which territorial states have lost control. Such states could be depicted as being ‘unable’ to counter the activities of non-state actors. The article further submits that particularly in these instances, the principle of necessity within the self-defence paradigm can play an important role in curbing the potential for abuse inherent in the vague notion of ‘inability’, if interpreted in light of Article 25 of the Articles on State Responsibility for Internationally Wrongful Acts.

Self-Defence in Response to Attacks by Non-state Actors in the Light of Recent State Practice: A Step Forward?

2010 ◽  
Vol 23 (1) ◽  
pp. 183-208 ◽  
Author(s):  
RAPHAËL VAN STEENBERGHE
Keyword(s):  
Use Of Force ◽  
Prima Facie ◽  
Operation Enduring Freedom ◽  
Armed Attack ◽  
The Us ◽  
State Practice ◽  
State Actors ◽  
The Law ◽  
The Right ◽  
Self Defence

AbstractThis article analyses the recent state practice in which the right of self-defence has been invoked in order to justify the use of force in response to attacks by non-state actors. The main purpose of this analysis is to determine whether the law of self-defence has evolved through this practice. It is submitted that the latter confirms the tendency, evidenced by the US operation ‘Enduring Freedom’ in Afghanistan in 2001, towards allowing states to respond in self-defence to private armed attacks, that is, attacks which are committed by non-state actors only. The article also aims to shed some light on other fundamental conditions of the law of self-defence which played a significant role in the legal assessment of the recent state practice. It is argued in this respect that this practice confirms that any armed attack must reach some level of gravity – which may be assessed by accumulating minor uses of force – in order to trigger the right of self-defence, and that proportionality of the action taken in self-defence may be assessed in quantitative terms, but only as a means of making a prima facie judgement about the necessity of this action.

The Armed Activities Case and Non-state Actors in Self-Defence Law

2007 ◽  
Vol 20 (1) ◽  
pp. 89-113 ◽  
Author(s):  
JÖRG KAMMERHOFER
Keyword(s):  
Use Of Force ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
State Actors ◽  
Private Actors ◽  
First Time ◽  
Self Defence

In the Armed Activities on the Territory of the Congo case the International Court of Justice has – for the first time in its history – found a state to have violated the prohibition of the use of force in Article 2(4) of the UN Charter. For the first time also, the Court has discussed the scope of self-defence directly under Article 51. In this article the focus lies on this aspect of a wide-ranging judgment. In finding that Uganda had violated the Charter, the Court kept to its jurisprudence constante; it did not bow to ‘post-11 September’ pressure to extend the logic of Article 51 to private actors. This article discusses the merits of the scholarly claims for both sides, but warns of drawing conclusions for the Court's future jurisprudence – the apparent unity among judges may have to do more with the case rather than the wider issue.

The Prohibition of the Use of Force in Arbitrations and Fact-Finding Reports

2016 ◽  
Author(s):  
Vaios Koutroulis
Keyword(s):  
International Relations ◽  
Use Of Force ◽  
Law Of The Sea ◽  
Arbitral Tribunal ◽  
Commissions Of Inquiry ◽  
State Actors ◽  
The Law ◽  
Fact Finding ◽  
The Right ◽  
Self Defence

This chapter examines the approach used by arbitral tribunals and commissions of inquiry or fact-finding missions with respect to rules governing the use of force after the adoption of the UN Charter in 1945, with emphasis on the right to self-defence and the conditions relating to its exercise. It assesses the legal significance of arbitral awards and fact-finding reports and considers how they have interpreted and applied jus contra bellum—the prohibition of the use of force in international relations and its exceptions. The chapter focuses on two significant arbitration precedents: the Eritrea Ethiopia Claims Commission and an arbitral tribunal constituted under Annex VII to the UN Convention on the Law of the Sea (UNCLOS). Finally, it discusses questions relating to the threshold for the application of jus contra bellum rules, namely Articles 2(4) and 51 of the UN Charter, and whether such rules are applicable to non-state actors.

scholarly journals Use of Force against Non-state Actors and the Circumstance Precluding Wrongfulness of Self-Defence

2016 ◽  
Vol 30 (1) ◽  
pp. 93-115 ◽  
Author(s):  
FEDERICA I. PADDEU
Keyword(s):  
Use Of Force ◽  
The Self ◽  
Due Diligence ◽  
Host State ◽  
Positive Law ◽  
Legal Justification ◽  
State Actors ◽  
The Right ◽  
To Receive ◽  
Self Defence

AbstractThe right of self-defence against non-state actors is increasingly invoked and accepted in the practice of states. However, the recognition of this right must overcome a fundamental obstacle: that of explaining why the rights of the host state, in particular its right of territorial sovereignty, is not infringed by the self-defensive force used within its territory. In practice, states invoking self-defence against non-state actors rely on the involvement of the host state with those actors to justify the use of force in that state's territory. It is not clear, from a legal standpoint, how to rationalize the fact of involvement as a form of legal justification. For some, involvement amounts to attribution. For others, involvement is a form of complicity. For others still, involvement may entail a breach of the host state's due diligence obligation to protect the rights of other states in its territory. All of these solutions are deficient in some way, and have failed to receive general endorsement. This article considers whether there may be a different, as yet neglected, solution: self-defence as a circumstance precluding wrongfulness. The article shows that this is not a perfect solution either, since positive law remains uncertain on this point. Nevertheless, it is a solution that may provide a better normative framework for the development of the law of self-defence against non-state actors.

Innate Cosmopolitan Dialectics at the ICJ: Changing Perceptions of International Community, the Role of the Court, and the Legacy of Judge Álvarez

2014 ◽  
Vol 27 (2) ◽  
pp. 309-330
Author(s):  
GEOFFREY GORDON
Keyword(s):  
International Law ◽  
International Community ◽  
Public Order ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Dialectical Process ◽  
The Right

AbstractTraditional conceptions of the international community have come under stress in a time of expanding international public order. Various initiatives purport to observe a reconceived international community from a variety of perspectives: transnational, administrative, pluralist, constitutional, etc. The perspectives on this changing dynamic evidenced by the International Court of Justice, however, have been largely neglected. But as the principal judicial institution tasked with representing the diversity of legal perspectives in the world, the Court represents an important forum by which to understand the changing appreciation of international community. While decisions of the Court have been restrained, an active discourse has been carried forward among individual judges. I look at part of that discourse, organized around one perspective, which I refer to as innate cosmopolitanism, introduced to the forum of the ICJ by the opinions of Judge Álvarez. The innate cosmopolitan perspective reflects an idea of the international community as an autonomous collectivity, enjoying a will, interests, or ends of its own, independent of constituent states. The application of that perspective under international law is put most to test in matters of international security, in particular where the interest in a discrete, global public order runs up against the right to self-defence vested in states. The innate cosmopolitan perspective has not, in these cases, achieved a controlling position – but, over time, it has been part of a dialectical process showing a change in the appreciation of international community before the Court, and a changing perception from the bench of the role of the Court in that community.

The Principles

2016 ◽  
Author(s):  
Casey-Maslen Stuart ◽  
Clapham Andrew ◽  
Giacca Gilles ◽  
Parker Sarah
Keyword(s):  
Control Systems ◽  
Use Of Force ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Political Independence ◽  
Domestic Jurisdiction ◽  
The Right ◽  
Article 5 ◽  
National Control ◽  
Self Defence

This chapter discusses the eight principles of the ATT. Article 5(1) requires parties to implement the treaty while bearing in mind the principles set out. The principles cover the following issues: the right of states to self-defence; the settlement of international disputes by peaceful means; refraining from the threat or use of force against the territorial integrity or political independence of any state; non-intervention in matters essentially within the domestic jurisdiction of a state; respecting and ensuring respect for international humanitarian law and human rights; the responsibility of states to regulate international trade in conventional arms and prevent diversion and to establish national control systems; respect for the interests of states to acquire, produce, export, import, and transfer conventional arms; and implementation of the ATT in a consistent, objective, and non-discriminatory manner.

Part 3 The Post 9/11-Era (2001–), 53 ‘Operation Phoenix’, the Colombian Raid Against the FARC in Ecuador—2008

2018 ◽  
Author(s):  
Pinto Mónica ◽  
Kotlik Marcos
Keyword(s):  
Armed Forces ◽  
The Political ◽  
Organization Of American States ◽  
Territorial Integrity ◽  
American States ◽  
Political Cost ◽  
State Actors ◽  
The Right ◽  
Self Defence

This contribution examines the 2008 operation conducted by Colombia against a camp of the Revolutionary Armed Forces of Colombia (FARC) located in the territory of Ecuador. It sets out the facts, the legal positions of both countries, the reactions of other governments in the continent, and how the situation was addressed within the Organization of American States and the Rio Group. It then analyses the operation in light of discussions about the possible exercise of the right to self-defence against non-state actors. The closing section suggests that, although the political cost for Colombia was relatively low, this case contributes to a restrictive interpretation of the right, to self-defence based on the inviolability of territorial integrity.

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