Introduction
The right of self-defense can be used by a country against non-state actors performing violent activities like terrorist attacks. International law generally allows defensive actions on the side of the damaged party, with several caveats, such as how the country to which the criminals belong reacts to their activities and whether it attempts to stop the attackers. The positions of academic experts and lawyers differ as to what extent and in which circumstances the injured party has the right to authorize the destruction of the aggressor.
Notably, aggression and attacks can include terrorist attacks carried out by one or more individuals against civilians in a country under the jurisdiction of international law; strategic targets can also be the target of terrorist attacks. Cyber-attacks can target private or public institutions and be strategic, but they will not be considered in this essay. In both cases, the injured party realizes the necessity to stop the criminals by executing the right to self-defense. As a rule, this happens if the state to which the criminals belong does not make sufficient efforts to arrest them and bring them to a fair trial. Therefore, the utility of self-defense has sufficient justification and can be implemented depending on the indications of international law, which can detail some procedures and processes.
Usually, self-defense produced by a state affected by the actions of the non-state armed group (NSAG) is implemented in the country where the NSAG is stationed under the doctrine of unwillingness or incapacity. The essay will discuss this doctrine, which, while not fully recognized by international law, is the only document that sets a legal precedent for retaliation by a State affected by NSAG actions. Other forms of international law do not regulate cases of combating NSAG actions since the main international laws were created in the 1940s. During this time, paramilitary actions were associated exclusively with decisions taken officially at the state level. Although military aggression was prohibited by law, including in the UN Charter, today, there is no original law that would prescribe the procedure for self-defense.
Therefore, countries that are forced to defend themselves against terrorist attacks are in a legal vacuum. Oftentimes, their self-defense actions, which doctrine may include the physical destruction of NSAG members, create chaos in the relations of the affected countries with the countries in which the NSAG operates. Therefore, the essay will demonstrate the mostly unanimous position of the scholars regarding the need to rethink and reconsider the international legislation regarding the implementation of self-defense practices by the countries that became the victims of NSAG.
Literature Review
Gill and Kinga discussed how international law applies to attacks by terrorist groups, or non-state armed groups (NSAGs), which engage in unauthorized acts of aggression, regardless of government control, and located on the territory of several or one states. The legitimacy of the implementation of international self-defense law may be dictated by whether the attacks were under state control or outside control. The modality or the extent of the response is due to the principles of necessity and proportionality and is performed following the norms and standards of the international law.
It is noteworthy that the practice of exercising the right to self-defense by states can be divided into periods before and after the September 11 attacks. In particular, the 9/11 attacks resulted in international law reshaping standards and expanding self-defense capabilities against the NSAG. This extension changed the perceptions of the self-defense actions and marked the increased support for the self-defense actions as a response to the NSAG attack. In particular, the international community was putting an emphasis on discussing the scope of a self-defense response. In particular, the procedures and modality of the self-defense procedures and how they are executed by the affected state on the foreign state territory were subject to revision.
Special attention should be paid to the rights guaranteed by the sovereignty of state where the injured party will implement self-defense measures. In general, the scholars summarize that the principle of necessity is of paramount importance in explaining the circumstances and justification for taking countermeasures for self-defense. This conclusion seems logical, since self-protection is, by definition, a response measure and these measures must be commensurate with the amount of harm caused, and carried out in accordance with the law and ethical standards. At the same time, self-defense measures must have a legally regulated modality to be appropriate and applicable in the variety of possible cases when the state is forced to defend itself against an NSAG.
Lieblich discusses the myth of the innocent state, and describes various circumstances of fulfilling the self-defense right. The author discusses the legitimacy of self-defense measures against NSAG when territorial states do not take action to eliminate the threat. According to the scientist, this position does not fully consider the sovereignty and other rights of the state, which has become the location for NSAG. The point is that a state may be well-intentioned and do its best to stop attacks and other NSAG activities, but this does not guarantee that such attempts will be successful.
In other words, the inability of the state to adequately respond to the threat, according to the scientist, does not automatically entitle the state to the victimized party to a certain freedom of action in taking self-defense measures on the territory of a foreign sovereign state. This approach violates the principle of sovereignty, so it should be expanded and supplemented. In addition, the state on whose territory the NSAG is located is not to blame and is probably not responsible for the NSAG attacks, especially if these actions were performed outside the sovereign state. Noteworthy, this is a very fair observation, which creates additional dimensions for understanding the structure of violation of international legislation by NSAG and the associated liability. The scientist also argues that focusing on whether the state where the NSAG is located is innocent. He says it is wrong to imply anthropomorphism concerning the state, whose territory is viewed as a human body. In other words, the rights of the state are equated with the rights of the individual, although the state’s rights cannot prevail over the rights of real people. On this basis, the author concludes that state innocence is not an obstacle to self-defense against NSAG.
Müllerson notes that the NSAG’s armed attacks are governed by article 51 of international law. At the same time, self-defense can be expressed in the form of preemptive self-defense and defensive reprisals. Therefore, if a state has become home to an aggressive NSAG attacking neighboring states, it must create opportunities for the affected state to take self-defense measures. According to the author, if the state refuses to cooperate in this manner, it can be considered an accomplice of the NSAG, since it prevents the termination of the NSAG. This assumption is extremely logical and reasonable, especially given the speed with which NSAGs can plan and implement terrorist attacks, and the amount of destruction they cause.
Particularly important is the factor of human casualties as a result of terrorist attacks, which confirms the position of the primacy of human rights over the rights of the state. The author also emphasizes that under international law, “if the state from whose territory the attack is taking place cannot prevent the NSAG from attacking the third state, it must request and accept assistance from the injured state, other states or relevant international organizations”. At the same time, military force may be used for self-defense with the prior consent of the state of territorial jurisdiction.
Murray investigates the legality of self-defense by states in the territories where the NSAG is located. The author notes the importance of coordinating self-defense actions on foreign territories with the UN Security Council Resolution. According to the scientist, when such a resolution is not granted, the agreement should be made with the state, on whose territory self-defense measures will be taken. The scholar also argues that the doctrine of unwillingness or inability does not provide a satisfactory answer to the dilemma that exists between the need for self-defense and sovereignty. According to the author, the doctrine is striking but contradictory, “conceptually weak, theoretically flawed, and poorly entrenched.” Interestingly, Murray expresses an opinion with which other scholars agree, as outlined above. Indeed, both sides of the legal dilemma need to be detailed and supplemented, taking into account the factors and characteristics presented by the scholars.
Murray also emphasizes that the issue under consideration of revising the legal procedure for counter-terrorism operations is relevant, given the situation in volatile regions such as Syria, Pakistan, or the deserts of Africa. Finally, the author emphasizes that the actual absence of legal uncertainties, which are not, in fact, a constituent element of the doctrine. On the contrary, according to the author, the main ingredients that create contradictions are factual realities and legal uncertainties. The scientist summarizes the need to resolve contradictions to achieve a more stable position and base for the international community’s response to interventions, including Syria and other regions.
Holmqvist Skantz notes that when the European nations signed UN Charter in 1940s, the force against other nations was prohibited. Interestingly, this prohibition, and the territorial integrity principle were perceived from completely different positions then today. However, the territorial integrity principle could not completely solve the problem of the so-called hybrid wars, when armed attacks began to be carried out separately from sovereign states. The authors consider the legitimacy of the doctrine of unwillingness and inability, which reportedly has insufficient legal weight to be perceived as a full-fledged international legal law. Noteworthy, the UN Charter does not regulate the international self-defense reaction against non-state actors such as Al-Qaeda or Daesh, which indicates a legislation gap. Therefore, the authors insist on defining the international legitimacy and legal value of the doctrine.
Nielsen forms an interesting concept, considering the possibility of interpreting the doctrine of unwillingness and inability as a legal act that guarantees the legalization of the extraterritorial self-defense of states. The author analyzed the existing legal framework and concluded that it considers and legalizes self-defense against non-state actors. However, the self-defense at the foreign territory implies the mandatory approval of the Security Council; also, the host state should give its consent. The settlement of this legal dilemma is possible through the creation of a common norm of state practice, which is still in the process of formation. Therefore, we can assume that Nielsen is in favor of creating a stable legal framework, and agrees with the need for the clearer legal regulation of this issue.
Brunnée and Toope analyze the theory of international legitimacy, introducing the need for such categories for international norms as reality, factuality, and reliability. According to the model developed by scientists, laws, including international laws, operate through an ongoing process of challenge, creating an opportunity to maintain or change legal norms using the practice of legality. It is noteworthy that the authors distinguish between challenging legal norms and challenging reality, noting that in this case “legal norms may decline”. This observation can be seen as well applicable to the doctrine of unwillingness and inability, given that it includes political components, as noted above. These political components often become the object of discussions, which are allegedly conducted around the legal component of the doctrine. In this process, challenging a legal norm is replaced by challenging reality or political realities.
Dehn studies and criticizes the use of the defensive power of states against the NSAG, in a process called transnational self-defense. According to scientists, such a system contributes to the consolidation of the system of actual inequality, despite the formally recognized values of sovereignty, autonomy, and equality. The authors criticize that self-defense measures include targeted killing as part of self-defense, proactive or preventive. According to the authors, such methods are more characteristic of bygone eras and should be replaced by more humane ones in the modern liberal world. According to scientists, the possibility of using assassinations against NSAG “perpetuates a discriminatory international system in which sovereignty and humanity are considered equal only between the so-called” civilized “nations and peoples”. It is difficult to disagree with this statement, given the potential for other methods of dealing with NSAG.
NSAG can hardly be called simply an armed group or members of organized crime, given their often huge numbers and purely destructive goals. Therefore, the prevalence of humanity over expediency should be discussed as widely as possible, including concerning the protection of NSAG members’ human rights. Dehn proposes to introduce a formula when states would follow the necessity and proportionality principles. These principles require states to initiate protective measures only when life and property are threatened with some and significant harm. They also imply that states have the right to use only a strictly defined amount of force to eliminate a threat that necessarily exists specifically at the time of the application of force.
Johnson explores how NSAG’s activities blur the boundaries between states and non-state actors. According to the scientist, such a shift in boundaries undermines the effectiveness of international human rights law, which was also mentioned above. Johnson’s concept suggests that the confusion between utilitarian self-defense and humanistic principles makes it difficult for other states to intervene and confuses other states if they are involved in other armed conflicts.
Johnson also emphasizes the priority importance of protecting populations oppressed by terrorist NSAGs. The scientist also proposes to solve this problem by adopting a UN Security Council resolution, which would prescribe and oblige NSAG to fulfill the duties implied by the international law regarding the states on whose territory they are located. It can be assumed that from a legal perspective, this would create a precedent when legally states affected by NSAG actions could take self-defense retaliatory measures, without introducing an element of legal confusion if the state is involved in other conflicts.
Johnson is also proposing the establishment of a UN international tribunal that will rule war crimes and violations of human rights. According to the scholar, this tribunal should be created to try ISIS and transfer the leaders of Boko Haram to the international court. Finally, the authors conclude that the rights to immunity for armed combatants that may exist in domestic law during a conflict should not be prioritized over international law, as these terrorist NSAGs practice inhuman practices of oppressing vulnerable populations. In other words, scientists are probably implying that since NSAG members commit the most atrocious crimes against humanity, they cannot be judged as mere participants in military conflicts, and the protection of the rights of combatants does not extend to NSAG members. The NSAG is not a state and therefore cannot conduct any military actions that would be subject to international laws, since they apply to states and their military in the event of the outbreak of hostilities between states.
Parra discusses the necessity to develop the legislation that will allow the states that became the targets of the NSAG to defend them. The scholar admits the existence of a prohibition enshrined against the forcible actions by the UN. The only exception can be made under article 51 when the nation can defend itself if the attack occurs. Therefore, Parra recommends that international law should refine the framework for the legal procedure of self-defense against NSAG. Noteworthy, scholars often refer to article 51, as it is the only formal reference to the law authorizing self-defense actions for the affected country.
Tibori-Szabo studied the state responsibility when it tales the self-defense actions to stop NSAG attacks and contrasted the reality of attacks and their consequences with the formal situation in the international arena. Scientists also mentioned the importance of international responsibility and oversight in self-defense from NSAG. Hurd studied the issue in the context of the post-WWII international law evolution. The scholar presented the UN’s decision to regulate the international war in a way that the governments could use self-defense only in certain cases, as needed. At the same time, the author emphasized the self-defense remained concept is being perceived ambiguously in international law.
First of all, the introduction of this concept was necessary to limit the recourse to war and to promote a more peaceful world. Later, the rule of self-defense, driven by strong interests of states against the perceived threats of the Cold War, was modified so that the concept of self-defense became de facto a matter of national security. The scientist believes that such a modification of the concept and actual trends in relations between countries has led to the emergence of geographically remote low-intensity military operations, which are also called “eternal war.” In other words, scholars are introducing the concept of national security into the context of the legislation under consideration that regulates self-defense.
Bahia noted that the international community must legally respond to NSAG attacks. The scientist analyzed cases when states exercised the right to self-defense without notification or permission from the state on whose territory the NSAG was located, and when these states did not participate in the attacks. As a result, scholars have formed a traditional framework for the self-defense principle that is considered as an exception to the force use prohibition.
Santuraki discussed the responsibility of the UN Security Council, which is committed to ensuring peace for all states and must make every effort to create security. The scientist has tracked how states have reacted to the NSAG since 1945 when the UN Charter entered into force. Article 2 (4) banned the signatory states from using force against any other states as a tool of solving the conflicts, except for self-defense if an attack was performed by other states.
However, despite the ban, many states resorted to force measures in the territories of other states, not complying with the article requirements and leading to an increase in terrorist attacks around the world, including the first loudest attack on September 11. As a result of the latter, most states agreed to the adoption of new customary rules that became the new norm. According to the study, after the introduction of the ban and the attacks, some of the states refused to follow the instructions of the ban. Therefore, the scholars concluded that the claims to the new rules were premature and did not reflect the general practice of states.
Wood also emphasizes that using force against NSAG on the sovereign territory should be permitted by the higher legislative authorities. He also notes that “the use of force in self-defense is usually governed by the doctrine of inability and unwillingness,” which is also called preemptive self-defense. Wood assumes that the current norms of international law are reasonable and adequate, and are unlikely to be changed anytime soon. However, the scientist insists on a better understanding of the application of jus ad bellum between states that together face terrorist threats.
Lehto discusses the self-defense issue in the context of the actions against the non-state actors in Syria. The scientist states that the doctrine of unwillingness or inability is an adequate legal basis for solving the problems associated with terrorist attacks by NSAG. She also notes that there are ongoing legal negotiations on self-defense, which have not yet yielded results. These negotiations have been going on for about two decades and create the basis for a theory “that could bridge the conceptual gap between the law of the UN Charter and the expanded concept of self-defense”. Using the example of the situation of combating ISIS in Syria, the scientist provides some legal justifications and comments on the doctrine of unwillingness or inability. The scholar also notes that the doctrine is vulnerable to abuse, although attractive in terms of political ambivalence.
Brunnée and Toope discussed the possibility for several Western states to have the self-defense right by applying standards of impossibility or unwillingness. Scientists do not consider this acceptable, given that the initiators do not receive wider international support. It is also noted that such efforts would still not solve the existing problem, including the dilemma related to the rule of law. It is likely that scholars also imply that the doctrine, even when given proper support, does not fill the gap in international law related to the self-defense issue.
Reisman discussed the policy of the preemptive defense and if it had the potential to ensure the citizens’ safety. The scientist compares how the process of realizing the right to self-defense was changing, since before it was possible only under the condition of a threat of an armed attack, but now there is an opportunity for proactive self-defense. In the article, the author also discusses tensions with North Korea, and the potential danger of nuclear weapons, which proactive self-defense cannot cancel or reduce. The scientist is also studying how the introduction of the practice of proactive self-defense helps maintain security, or vice versa exacerbates tensions between countries.
Dehn studies transnational self-defense and liberal values, while also criticizing the doctrine developed by Obama. Scientist analyzes a report released during the Obama presidency – Report on the Legal and Policy Framework Governing the Use of Military Force and Related National Security Operations by the United States. This report reflects US legal principles that apply during national security operations. The author of the article criticizes the principles contained in the report and the earlier document, the President’s Policy Guide (PPG), calling them the Obama Doctrine and explaining their incompatibility with international law. According to the scientist, there are two reasons for this, including the fact that the preemptive self-defense considered in the doctrine does not apply to the prevention of a serious threat.
The documents under consideration imply that the armed conflicts with which the state will fight, using self-defense, are regulated by the international laws of war, although when making decisions and granting permissions on fighting NSAG this law is not applicable. If NSAG attack the foreign states, the conflict between the state and the NSAG does not always occur or arise within the framework of an armed conflict. Therefore, the laws of war are not always applied to such armed confrontations, and this must be considered in related documents of international law.
The scientist criticizes the idea of expanding the paradigm of the law of war with NSAG since the associated mistakes in the implementation of the practice of self-defense lead to a more significant destruction than is justified by the need to protect against the attack threat. Dehn emphasizes that since the US is a nation holding to liberal values, the state should show respect and limit its transnational self-defense approach.
Couzigou developed the criteria for the test of the doctrine of unwillingness or inability to provide additional clarity. For example, the scholar looked at the fight against ISIS in Syria, and the justification for self-defense that ISIS attacks and poses a threat, while Syria is unable or does not want to stop ISIS or prevent attacks. However, the scientist reminds that the unwillingness-inability test is not a part of international legislation. Therefore, the scientist notes the need to clarify the procedure and the consequences of a situation when, in the implementation of self-defense in a foreign territory, the state that is the injured party does not receive the proper support.
Couzigou also analyzes how the anti-ISIS operation in Syria has influenced changes in self-defense rights in international law. In particular, the scientist summarizes that in international law there is still no broad recognition of the self-defense right. Probably, from this opinion, we can conclude that international legislation also does not recognize application of force in other countries as an authorized self-defense measure. Therefore, the scholar notes that the self-defense right in cases of a real or potential threat has not yet been widely recognized in international legislation.
Conclusion
Thus, a broad discussion of the doctrine of unwillingness or inability was presented in the essay. As a rule, the authors recognize the viability of this doctrine and mention additional conditions for its implementation, such as the presence of an immediate or potential threat in the form of attacks from non-state actors. The authors discuss the application of this doctrine to the implementation of acts of self-defense in countries where there are military conflicts, such as Syria, Pakistan, or the deserts of Africa. It also examines the impact of terrorist attacks on states. Different aspects of aggression of the non-state actors and groups, like ISIS, suggest different levels of the response severity.
Therefore, scientists are considering the need for additional regulation of the levels of self-defense response. Such self-defense would have to take into account the need to protect civilians who fell victim to terrorists and also consider the possible exclusion of killings as a way to stop NSAG. The latter recommendation refers to the advice to make fuller use of the power of the international judicial system, including the international tribunal, so that those who have committed crimes against humanity can be brought to justice. At the same time, scholars are raising the question of the existence of rights for militant combatants who are agents of states and are involved in traditional, formal military conflicts. The rights that exist for such a military do not extend to members of the NSAG, and therefore an international tribunal may be the only and more humane alternative to physical destruction.
The essay also examines several opinions on how justified it is to amend international law to regulate the implementation of self-defense by one state on the sovereign territory. Most scholars agree that international legislation must change, because the UN Charter, signed in 1945, is seen outdated in modern realities. In particular, this charter did not imply the phenomenon of NSAG, or terrorist attacks, but considered military conflicts exclusively within the framework of confrontations between states. Moreover, the UN Charter articles provide an exceptional opportunity for the implementation of self-defense, but do not describe the entire procedure and practice of self-defense in sufficient detail, overlooking such important elements as the trial of NSAG members, the levels of aggressiveness of the response and the care from the victims of terrorists.
The doctrine that regulates the self-defense implementation is not a sufficiently stable prerequisite for the implementation of self-defense. In particular, many states that are forced to act solely on it may subsequently experience difficulties in relations with other countries, or cast a shadow on the vision of their role in the event of participation in military conflicts. Therefore, the doctrine should be replaced with a more stable and more detailed law that would reflect liberal values and take into account all the difficulties associated with conducting aggressive actions on the territory of foreign, sovereign countries. In case this law will be introduced, the states will have more confidence and freedom in fulfilling their right to self-defense on the foreign territories. The time for changes has come, and these changes should be thoughtful and humane to match the demands placed by modern liberal values.
Bibliography
Bahia, Amael Notini Moreira. “Self-Defence Against Non-State Actors: Reality or Fiction of the Jus ad Bellum?” Sorbonne Student Law Review 3(1) (2020).
Brunnée, Jutta, and Stephen J. Toope. “Norm robustness and contestation in international law: self-defense against non-state actors.” Journal of Global Security Studies 4(1) (2019): 73-87.
Brunnée, Jutta, and Stephen J. Toope. “Self-defense against non-state actors: are powerful states willing but unable to change international law?.” International & Comparative Law Quarterly 67(2) (2018): 263-286.
Couzigou, Irene. “The Right to Self-Defence against Non-State Actors: Criteria of the ‘Unwilling or Unable’ Test.” Heidelberg Journal of International Law 1 (2017).
Dehn, John C. “Emerging Transnational Self-Defense Norms & Unrealized Liberal Values.” Finkelstein, et al., eds.. Fighting War as Crime & Crime as War: Normative Frameworks for Transnational Self-Defense (OUP Forthcoming) (2020).
Dehn, John C. “Transnational Self-Defense and Liberal Values: Replacing Law with Flawed Policy in the Obama Doctrine” (2017).
Gill, Terry D., and Kinga Tibori-Szabó. “Twelve Key Questions on Self-Defense against Non-State Actors.” International Law Studies 95, no. 1 (2020): 15.
Holmqvist Skantz, Madeline. “The unwilling or unable doctrine: the right to use extraterritorial self-defense against non-state actors.” (2017).
Hurd, Ian. “If I Had a Rocket-Launcher: Self-Defense and Forever War in International Law.” House. L. Rev. 56 (2018): 821.
Johnson, Darin. “The Problem of the Terror Non-State: Rescuing International Law from ISIS and Boko Haram.” Brooklyn Law Review 84, no. 2 (2019).
Lehto, Marja. “The Fight against ISIS in Syria. Comments on the Recent Discussion of the Right of Self-defense against Non-state Actors.” Nordic Journal of International Law 87, no. 1 (2018): 1-25.
Lieblich, Eliav. “Self-defense against non-state actors and the myth of the innocent state.” Global Governance and Human Rights (Collected Courses of the Academy of European Law) (2019).
Müllerson, Rein. “Self-defense against Armed Attacks by Non-State Actors.” Chinese Journal of International Law 18, no. 4 (2019): 751-775.
Murray, Donette. “Flawed and Unnecessary: the ‘Unwilling or Unable’ Doctrine Pertaining to States’ Use of Force in Self-Defence against Non-State Actors.” In Hague Yearbook of International Law, 30 (2017), pp. 59-118. Brill Nijhoff, 2019.
Nielsen, René Vendel. “The illegality of extraterritorial use of force against non-state actors or new customary law?” (2019).
Reyes Parra, Paola Diana. “Self-Defence against Non-State Actors: Possibility or reality?.” RFJ 9 (2021): 151.
Reisman, W. Michael. “Will a Policy of Preemptive Self-Defense Make Us All Safer?.” Yale Law School, Public Law Research Paper 638 (2018).
Reyes Parra, Paola Diana. “Self-Defence against Non-State Actors: Possibility or reality?.” RFJ 9 (2021): 151.
Santuraki, Suleiman Usman. “State practice on the use of force against non-state actors: generating new rules of customary international law.” (2019).
Spiegler, Sina. “Selected Aspects of the Right of Self-Defense under Public International Law.” Freilaw: Freiburg L. Students J. (2017): 94.
Tibori-Szabó, Kinga. “Control and the Right to Self-Defence against Non-State Actors.” In Military Operations and the Notion of Control under International Law, pp. 83-105. TMC Asser Press, The Hague, 2021.
Wood, Michael. “Terrorism and the international law on the use of force.” In Research Handbook on International Law and Terrorism. Edward Elgar Publishing, 2020.