scholarly journals Use of Force as Self Defence against Non-State Actors and TWAIL Considerations: A Critical Analysis of India’s State Practice

2020 ◽  
pp. 106-127
Keyword(s):  
Critical Analysis ◽  
Use Of Force ◽  
State Practice ◽  
State Actors ◽  
Self Defence

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.

Part 2 The Post-Cold War Era (1990–2000), 42 The US Airstrike Against the Iraqi Intelligence Headquarters—1993

2018 ◽  
Author(s):  
Starski Paulina
Keyword(s):  
Cold War ◽  
Use Of Force ◽  
Post Cold War ◽  
The Us ◽  
State Practice ◽  
Observable State ◽  
The Right ◽  
President Bush ◽  
Intelligence Service ◽  
Self Defence

This contribution analyses the normative implications of the US raid against the headquarters of the Iraqi Intelligence Service in 1993 in reaction to a foiled assassination attempt against former President Bush. It examines the legality of the operation, its precedential value and its evolutive potential regarding the regime on the ius contra bellum and specifically the right to self-defence. After dissecting the multiple contentious dimensions of the US claim of justification, the article concludes that the raid constituted an illegal ‘armed reprisal’. In light of observable state practice, its precedent-setting nature should not be overstated. However, albeit qualified as an ‘one-off incident’ the US raid did not leave the prohibition on the use of force and the contemporary discourse surrounding it untouched. Hence, it appears essential to demystify its frequently asserted evolutive potential particularly regarding the temporal limitations of Article 51 UN Charter to which this article is dedicated.

Part 1 The Cold War Era (1945–89), 29 The US Intervention in Nicaragua—1981–88

2018 ◽  
Author(s):  
Kammerhofer Jörg
Keyword(s):  
Cold War ◽  
Use Of Force ◽  
Customary Law ◽  
The Us ◽  
State Practice ◽  
The Icj ◽  
The Right ◽  
The Cold War ◽  
Us Intervention ◽  
Self Defence

This chapter focuses on the US intervention in Nicaragua from 1981 to 1988, as a contribution to the state practice on the law on the use of force and the right to self-defence under both UN Charter and customary law. After an overview of the background of the so-called ‘contra war’ and of the salient facts regarding the US intervention in that conflict, it discusses the positions of the two parties on the facts and law, and takes note of the reaction of the international community, focusing on the debates at the UN. The next section focuses on the legality of the operation; the ICJ’s holdings in its 1986 Nicaragua judgment form the backbone of that discussion, while taking note of dissent and comment both inside and outside the Court. The contribution concludes by discussing the precedential value and effect of this conflict, and of the ICJ case.

Extraterritorial Use of Force against Non-State Actors: PS to Hague Academy Lectures

2021 ◽  
Vol 54 (2) ◽  
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Apparent Contradiction ◽  
Territorial Integrity ◽  
The Hague ◽  
State Actors ◽  
Self Defence

In July 2021, the author presented a Special Course for the Hague Academy of International Law Summer Courses on the Extraterritorial Use of Force against Non-State Actors. The course focused on two bases for the extraterritorial use of force against non-state actors, namely self-defence and intervention by invitation. The lectures came to a conclusion that may, at first glance, appear contradictory. With respect to the use of force in self-defence, the lectures adopted a restrictive (non-permissive) approach in which the use of force is not permitted save in narrowly construed exceptions. With respect to intervention by invitation, the lectures adopted a more permissive approach in which the use of force is generally permitted and prohibited only in narrowly construed exceptions. This article serves as post-script (PS), to explain the apparent contradiction. It concludes that the main reason for this apparent contradiction is the application of the fundamental principles of international law—sovereignty, territorial integrity and independence—which are consistent with intervention by invitation but are undermined by self-defence against non-state actors.

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.

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.

Waging War against Non-State Actors: The Contemporary Debate on the Prohibition of Force

2020 ◽  
Vol 1 (1) ◽  
Author(s):  
Iman Ahmed
Keyword(s):  
International Law ◽  
Effective Means ◽  
Use Of Force ◽  
Government Officials ◽  
Contemporary Debate ◽  
State Practice ◽  
State Actor ◽  
State Actors ◽  
Legal Understanding ◽  
Failing States

Recent events have triggered scholarship arguing that international law should embrace the widespread state practice of using force against violent non-state actors such as terrorists. The evolution of state practice since 9/11 suggests an alternate interpretation of Article 2(4) and Article 51 of the UN charter, per treaty mechanisms. Specifically, academics and government officials have argued that the threat posed by terrorism necessitates lowering the state responsibility threshold. Doing so would make states hosting terrorists liable for violence undertaken from within their territory, giving aggrieved nations a license to intervene militarily. This essay argues that the traditional legal understanding of Article 2(4) and 51, which prohibit the use of force except in self-defence and then only against state actors, should be upheld, as war is not an effective means of eliminating non-state actor violence. Rather, nations need to address non-state actor violence by focusing on economic and social measures which foster development in failing States, as addressing civilian grievances is the most effective way to combat and deter terrorism.

Sign in / Sign up

Export Citation Format

Share Document