Use of Force in Self-Defense against Non-State Actors: Whether Attribution is Required
The Question
『ThenInternational Court of Justice has consistently taken a narrow view of thenscope of the right of self-defence, making it impossible to argue that the 「warnon terror」 justifies the use of force in self-defence against non-state actorsnor that anticipatory self-defence is lawful.』
Discussnin reference to (i) the use of force in self-defence against non-state actors.
Answer:n
Thenstatement reflects a critique about the ICJ』s failure to deal with issues ofnself-defence arising from 『war on terror』 as reflected from the perspective ofnthe author of an armed attack. The traditional understanding of self-defencenrequires the precondition of an armed attack with a certain amount of stateninvolvement. Some scholars (eg. Schachter) argue that an armed attack should benattributable to a state and usually cite some ICJ jurisprudence to supportntheir ideas (eg. Nicaragua case, Wall Advisory Opinion, DRC v. Uganda). In Nicaragua, a state can use force innself-defence against attacks by non-state actors if they are sent by or act onnbehalf of a state .. or the state substantially involved in their acts (in thensense of Art 3(g) of Definition of Aggression). However, the state practicenpost 9-11 does not satisfy the requirement raised in Nicaragua and the following ICJ jurisprudence while still acquirensupport even by a vast majority of the international community. (OperationnEnduring Freedom supported by UNSC Res 1368 and 1373 and the 2006 Lebanonnwar). The tension between insistence of ICJ jurisprudence and the desire of theninternational community to cope with risks posed by terrorism gives rise to thenneed to accommodate contemporary state practice into the legal framework ofnself-defence. This essay argues that there are currently two strands of legalntheories to accommodate state practice in line with ICJ jurisprudence. However,nboth theories present problems and it remains doubtful as to which theory isnmore supported by state practice.
AnnAttribution-Based Armed Attack Theory
Thenfirst theory bases self-defence on the prerequisite of an attribution-basednarmed attack. The authors in support of this theory insist that an armed attacknmust be attributable to a state in order for the victim state to use force againstnthe state. They considered Article 51 to be an exception to the prohibitions ofnuse force obligation enshrined in Article 2(4) which only applies to 『inter-statenrelations』. Thus, in the contemporary 『war against terror』, the terrorists』narmed attacks must be attributable to a state otherwise Article 51 cannot benseen as a true exception to Article 2(4). But contemporary state practice hasnfailed to keep in line with the attribution test in Nicaragua or thatnestablished for state responsibility in 2001 ILC Draft Articles on statenresponsibility. While some authors interpret the post 9-11 state practice intontraditional understandings (for example, Tom Ruys has argued that Art. 9 of ILCnDraft Articles can cope with the situation in Lebanon War 2006), many othersnaccept that there emerges a right of self-defence against non-state actors innpost 9-11 era even if the non-state actors』 actions cannot be attributable to anstate according to traditional rules on attribution. (Rozitti) In order to explainnthis development, some authors go to extremes and state that an armed attack innthe sense of Art. 51 requires no state involvement at all (eg. Franck,nGreenwood). However, this interpretation goes against the inter-state readingnof Article 51 and raise the risk that an innocent state may be subject to usenforce in self-defence by another state irrespective of they it has any nexusnwith the terrorists or not.
Innorder to preserve the inter-state reading of Article 51 while at the same time accommodatenthe recent practice into the 『attribution-based armed attack』 understanding ofnArt. 51, some others have argued that the logical inference would be that thentest of attribution is lowered to complicity or to some eve lower level (eg.nTam). However, such an understanding is also subject to controversy. Thenattribution rules of complicity, which is a secondary rule of internationalnlaw, is redundant as a primary rule of international prohibiting complicitynwith terrorists already exist in the Declaration of Friendly Relations. (KT.nTrapp) Moreover, lowering the test of attribution also risks confusing primarynnorms and secondary norms of international law and thereby increasing the trendnof fragmentation of international law (Marko Milanovic).
AnNon-Attribution Based Armed Attack Theory
Thensecond strand of argument gets rid of the requirement of attribution. It may benargued that there is such a requirement attribution based on the ICJnjurisprudence. For example, in the Palestinian Wall Advisory Opinion the courtnheld that Art. 51 deals with self-defence in situations of armed attacksncarried out 『by one state against another state』. However, such a wording doesnnot necessarily lead to the requirement of attribution. As is put by somendissenting judges in the case (eg. Judge Simma), Art. 51 is not limited tonarmed attack 『only』 carried out by one state against another state. Somenauthors have argued that attribution is only a sufficient condition for self-defencenbut is not a necessary one by making a close contextual-based analysis of thenICJ jurisprudence (KN Trapp) It can be argued that ICJ jurisprudence makes andistinction between scenarios where the victim states use force against the statenharboring a terrorist group and scenarios where the victim states use forcenagainst and only against non-state actors who carried out the armed attack. Fornthe first scenario, the ICJ jurisprudence requires an attribution-based armednattack while the court does not require an attribution-based armed attack fornthe second scenario. This can also be affirmed by the DRC v. Uganda case whichnleft open the issue on the legality of use of force in self-defence againstnarmed attacks by non-state actors. Moreover, a close examination of the travaux preparatoires of UN Charter andnstate practice also support the idea that attribution is not required. Fornexample, the initial proposal of Art. 51 has the wording 『armed attacks by anstate』, but it was later deleted. Although it may be argued that the deletionnmay be because that the attribution requirement is implicit, yet concerning thentravaux preparatoires, state practicenand a contextual-based explanation of ICJ jurisprudence together, the argument that attribution is not necessarynreally have a point. This is particularly true when considering the paradigmnchange of international law from state sovereignty as a right to state sovereigntynas an obligation. (KN Trapp)
Despitenthe above analysis, the second strand of theory also has some problems. Fornexample, it split the definition of armed attack into two versions, but this isnonly speculative. Art. 51 and ICJ jurisprudence do not have the intention ofnsplitting the definition of armed attacks into two. (Tams) Moreover, it remainsndoubtful whether the second theory is in line with state practice and opinionjuris. There exist indeterminacy on state practice as to which strand of theorynis more preferred by states. (Marko Milanovic) nThe 2006 Lebanese war is an example. Initially, Israel submitted itsnargument to the United Nations Security Council that the armed attacks carriednout by Hezbollah were attributable to Lebanon because Hezbollah is a party in thenCongress of Lebanon. This would suggest a requirement of the attribution basednarmed attacks which is in line with the first strands of theory. However, laternon, the Lebanon refused to be responsible for acts of Hezbollah and Israelnchanged its position to the inability of Lebanon to fulfill its duties tonprevent and repress terrorist attacks by Hezbollah against Israel. The latternposition may be closer to the second strand of theory. The other problem withnthe second strand is about how to accommodate it with the inter-state readingnof Article 51. In order for Article 51 to be a true exception of Article 2(4),nthere must be reasons to justify the infringement of territorial integrity ofnthe state harboring non-state acts. Authors contemplated several sub-theoriesnfrom complicity, aiding and abetting, to failure of 『due diligence』, and evennto 『willing or unable』 Trapp also uses the principle of necessity to explain.nHowever, it remains doubtful which theories are more consistent with statenpractice.
Innconclusion, there are two main theories that try to accommodate contemporarynstate practice in self-defence against non-state actor the traditional legal frameworknof self-defence. One requires an attribution-based armed attack while the otherndoes not. Both arguments have some problems and require further contemplation.nIt is indeterminate as to which theory is more in line with state practice andnopinio juris. This issue becomes more significant in contemporary practice againstnISIS and other terrorist groups and it remains to be seen to which direct statenpractice will develop towards.
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