Legal and Ethical Dimensions of Self-Defense

The scenario involved in this case is that a terrorist organisation located in Vironico carries out an attack against Carantorum. The essay aims to advise Carantorum as to whether it can lawfully use force in self-defence against the terrorist organisation. The issue being probed in this essay is whether Carantorum has the right to take action in self-defence against the terrorist organisation in Vironico. Related to this is the issue of whether Vironico has failed to restrain extremist groups leading to terror attacks in Carantorum. These are interrelated issues because action against the terrorist organisation located in the territory of Vironico may be claimed to be an unlawful use of force by Carantorum; however, if Vironico has failed to prevent unlawful acts of terror against Carantorum or deliberately fails to prevent it, then it can be claimed that the action taken by Carantorum is justified under the principles of self-defence.

The law related to use of force and self-defence is relevant to this discussion. The principles of use of force are provided in Article 2(4) and Chapter VII of the United Nations Charter. Article 2(4) prohibits use of force by one state against other. Chapter VII provides the powers to the UN Security Council with certain powers to address breach of Article 2(4) by a state. The prohibition of use of force has been described as a “cornerstone of the United Nations Charter”. Therefore, at the outset it may be noted that use of force is prohibited under the UN Charter.

Use of force is defined in the Declaration of Principles of the International Law 1970 as actions amounting to “wars of aggression, crimes against peace, reprisals, deprivation of the right to self-determination, and organising, instigating assisting or participating in a civil war”. Aggression has been defined as “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state or in any manner inconsistent with the Charter of the United Nations” in the UNGA Resolution 3314 of 1974. Therefore, what can be surmised from this is that there is a prohibition on use of force which includes aggression against another state. Aggression can include acts that are against the territorial integrity of another state and this would provide a bar against an armed intervention by one country against the other.

However, the bar on use of force is not absolute and international law does permit use of force under certain circumstances. Thus, states are able to commit acts of aggression when this is in the pursuance of self-defence under Article 51 of the UN Charter. Article 51 allows states to take individual or collective self-defence measures when there is an armed attack. The question is whether a state can use this defence in a situation when the armed attack has been carried out by a non-state actor (in this case, a terrorist organisation). The ability to take action even against non-state actors is based on a rejection of formalism in law of self-defence, as argued by Greenwood to be necessary to take military action against those who caused armed attacks. There are certain circumstances in which a state may be justified in using force against non-state actors if it is in self-defence although such measures were not traditionally considered lawful. Thus, if the non state actor is situated within the territory of another state and from that state it conducts an act of aggression, which the other state is not willing or able to prevent, the victim or threatened state may take use of force measures in self-defence. Applying this principle to the case at hand, it may be argued by Carantorum that it has the right to self-defence action against the terror organisation situated in Vironico based on the latter’s inability or unwillingness to prevent unlawful actions involving terror attacks against Carantorum.

1. Armed Activities on the Territory of the Congo (DRC – Uganda case), [2005] ICJ Rep 201, para. 148.
2. General Assembly (Resolution 26/25 (XXV)) 1970 Declaration of Principles in International Law (24 October 1970).
3. James Crawford (ed), Brownlie’s Principles of Public International Law (Oxford University Press 2012) 761; United Nations General Assembly Resolution 3314 (XXIX) (Definition of Aggression) adopted by the United Nations General Assembly on December 14, 1974.

One of the issues that is likely to arise in case of Carantorum’s action against the terrorist organisation in Vironico is that of intervention, where it may be claimed by Vironico that Carantorum used force without justification. However, defence against the use of force can be made out in the case of an attack on citizens and military forces which is considered to be an attack on the state. In this case, Vironico itself is in breach of its international law responsibility to prevent illegal acts from its territory against another state. It may be claimed by Carantorum that Vironico breached its state responsibility by allowing actions of extremist groups amounting to terror attacks. On the other hand, an action by Carantorum can also be claimed to be a breach of state responsibility.

State responsibility can arise in case of breach of customary international law or treaty obligation that can be linked to causation or loss suffered by the victim state. The International Law Commission Articles on State Responsibility 2001 (ILC Articles 2001) is relevant here and it provides that states are responsible for wrongful or negligent acts of its nationals leading to injury to another state. Article 2 of the ILC Articles 2001 defines intentionally wrongful acts as those that breach international obligations of the state and can be attributable to the state and even where not directly committed by the state are attributable if these involve acts of the officials, private persons, and insurrectionary forces. Thus, in the context of the current problem, state responsibility under Article 2 may arise in case of illegal actions of non-state actors, if such actors are effectively under the control of the state, or the state exercises overall control.

Similar to the defence in case of use of force, self-defence can be used as a defence against state responsibility under ILC Articles 2001, Article 21. Thus, a state is not responsible under state responsibility if its actions are the aimed at self-defence; responsibility can arise only if there is no justification for actions or omissions. Of particular importance here is the principle that the state should not allow its territory to be used by its nationals to cause injury to a neighbouring country. Thus, while Carantorum has a defence against state responsibility because it acts in self-defence, Vironico does not have any such defence for its responsibility for failure to prevent unlawful actions of the terror organisation against Carantorum.

1. Christopher Greenwood, ‘International law and the pre-emptive use of force: Afghanistan, Al-Qaida, and Iraq’ (2003) 4 San Diego Int'l LJ 7, 17.
2. Michael P Scharf, ‘How the War Against ISIS Changed International Law’ (2016) 48 Case W. Res. J. Int'l L. 16.
3. Ibid.
4. Natalino Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (Martinus Nijhoff Publishers 1985).
5. Antonio Cassesse, International Law (Oxford University Press 2001) 182.
6. Case concerning the Application of the Convention on the Prevention and Punishment of the crime of Genocide, Bosnia and Herzegovina v Serbia and Montenegro [2007] ICJ 2; United States v Iran [1980] ICJ 1; Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Judgment of 27 June 1986, ICJ Rep 1986.
7. International Criminal Tribunal for the Former Yugoslavia in Tadic (1995) 105 ILR 419.

To go back to the issue of self-defence and use of force by Carantorum against the terrorists in the territory of Vironico, it may be reiterated that self-defence measures can legitimately be taken against non-state actors where the threat from them instant, overwhelming, and imminent and has to be responded with an attack against the threat. Greenwood argues that actions against armed attacks cannot be dependent upon acts being imputed to a state actor and he bases this argument on the Caroline case. In Caroline, action in self-defence was allowed to be taken against non-state actors based on one condition: that the state from whose boundaries non-state actors operate is unable or unwilling to suppress the unlawful actions of such non-state actors. Even after the Caroline case, it has been generally recognised that there is right to use force as a response to protect nationals, in case of imminent threat; indeed, military action in the case of Entebbe hostages elated to the Israeli mission in Uganda (1976) was generally accepted as legitimate even if involving some intervention in the territory of another state.

In an event where Vironico itself fails to prevent such attacks or fails to act against such attacks, Carantorum may argue that it has no choice but to respond to such threats with use of force. However, the question may arise as to whether the terrorist group constitutes appropriate status which allows such action by Carantorum. Action against non-state actors, including terrorist groups has been controversial in the paradigm of use of force and self-defence because traditionally, self-defence was available only against state actors. However, as Shwarf argues (in context of American actions against ISIS), there is a paradigm shift in this area of international law and even state practice. Indeed, American action against ISIS in Syrian territory has been justified by Americans even when the ISIS were not in effective control of the Syrian government, on the basis that if the state within whose territory the terror group is unable or unwilling to suppress the threat posed by it, the right to self-defence is legitimately triggered. This argument is strengthened by the resolutions adopted by the UNSC related to the right to self-defence. UNSC Resolution 1373 (2001) recognises “inherent right of individual or collective self-defence” in accordance with the UN Charter. UNSC Resolution 2178 (2014) recognised terror groups of Islamic State in Iraq and the Levant (ISIL) and Al-Nusra as posing threat to states. UNSC Resolution 2249 (2015) is even more pertinent because it called on states to use force against ISIL based on right to self-defence.

1. Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4.
2. The Trail Smelter Arbitration Case( United States Vs Canada) 1941, U.N. Rep. Int’L Arb. 1905 (1949).
3. RY Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 American Journal of International Law 82.
4. Christopher Greenwood, ‘International law and the pre-emptive use of force: Afghanistan, Al-Qaida, and Iraq’ (2003) 4 San Diego Int'l LJ 7.
5. RY Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 American Journal of International Law 82.
6. Sir Claud Humphrey Meredith Waldock, The regulation of the use of force by individual states in international law (MartinusNijhoff 1952); Ashley S. Deeks, ‘Consent to the use of force and international law supremacy’ (2013) 54 Harv. Int'l LJ 1.
7. Michael P. Scharf, ‘How the War Against ISIS Changed International Law’ (2016) 48 Case W. Res. J. Int'l L. 16.
8. Ibid.

As discussed above, UNSC resolutions recognise the right of states to take self-defence measures against terrorist organisations. Thus, although terrorist groups may not be considered to commit international ‘aggression’ in terms of the recognised definitions of international aggression, they do trigger the right of self-defence, within the meaning of Article 51 UN Charter. The argument that such self-defence is justified has also been made in scholarship where it is emphasised that the growth of international terrorism with attacks by non-state actors emanating from territories of other countries, demand self-defence actions by the states.

The right to self-defence against terrorists situated in the territories of other states is no longer seen in a restricted sense and is increasingly seen as a part of the expanded doctrine of self-defence, which lends support to the right of Carantorum to take action involving use of force against the terror organisations situated in the territory of Vironico. Earlier, there was a rigid and narrow framework within which self-defence could be justified in cases of actions against terror organisations in other country’s territory, which is also a position that was taken by the International Court of Justice in the case of Nicaragua. In that case, it was considered that for the conduct of irregular forces (or non-state actors) to be attributable to a state, there should be an effective control over such actors and their operations. This would mean that a state would be justified in taking measures involving use of force in self-defence against terror organisations situated in the territory of another state only where they can establish that the other state exercised effective control over such actions. Moreover, such traditional narrow approach also had a functional aspect where self-defence would be justified only if there was a grave and imminent threat and not after it. In recent years, the ICJ jurisprudence has shown some flexibility on the point of whether self-defence is available with regard to a terrorist organisation. Thus, in DRC v Uganda, the ICJ left the question open as to whether law provides a right of self-defence against attacks by irregular forces. More importantly, Judges Buergenthal, Kooijmans, and Simma went to the extent of accepting self-defence against armed attacks even if cannot be attributed to the territorial State. This can also be read with the Chatham House Principles of International Law on the Use of Force by States in Self-Defence, Article 6 which applies to the right to self-defence applies also to attacks by non-state actors in the event that the state is unable or unwilling to deal with the non-state actor itself, and “that it is necessary to use force from outside to deal with the threat in circumstances where the consent of the territorial state cannot be obtained”.

1. S/RES/1373 (2001).
2. S/RES/ 2178 (2014).
3. S/RES/2249 (2015).
4. T Mikanagi, ‘Establishing A Military Presence In A Disputed Territory: Interpretation Of Article 2 (3) And (4) Of The Un Charter’ (2018) 67(4) International & Comparative Law Quarterly 1021.
5. CJ Tams, ‘The use of force against terrorists’ (2009) 20(2) European Journal of International Law 359.
6. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Nicaragua case) [1986] ICJ Rep 14.
7. Ibid.
8. CJ Tams, ‘The use of force against terrorists’ (2009) 20(2) European Journal of International Law 359.
9. Armed Activities on the Territory of the Congo (DRC – Uganda case), [2005] ICJ Rep 201, para. 148.
10. Ibid.

To conclude, it may be advised that Carantorum can lawfully use force in self-defence against the terrorist organisation if it can establish that Vironico is either unable or unwilling to deal with the organisation and to prevent their further actions involving armed force against Carantorum. This action of Carantorum will not attract state responsibility as self-defence is a defence against state responsibility. Moreover, Carantorum can argue for the application of a wider understanding of self-defence against non-state actors based on the recent judgmebt of DRC v Uganda, wherein the ICJ left the question open as to whether law provides a right of self-defence against attacks by irregular forces and Judges Buergenthal, Kooijmans, and Simma accepted self-defence against armed attacks even if cannot be attributed to the territorial State. Therefore, Carantorum may be able to take advantage of the widening and more flexible understanding on this issue as reflected in DRC v Uganda as well as a number of UNSC resolutions.

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1. The Chatham House Principles of International Law on the Use of Force by States in Self-Defence, October 2005.
2. Ibid.

Table of cases

Armed Activities on the Territory of the Congo (DRC – Uganda case), [2005] ICJ Rep 20.

Case concerning the Application of the Convention on the Prevention and Punishment of the crime of Genocide, Bosnia and Herzegovina v Serbia and Montenegro [2007] ICJ 2.

United States v Iran [1980] ICJ 1.

Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Judgment of 27 June 1986, ICJ Rep 1986.

International Criminal Tribunal for the Former Yugoslavia in Tadic (1995) 105 ILR 419.

Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4.

The Trail Smelter Arbitration Case( United States Vs Canada) 1941, U.N. Rep. Int’L Arb. 1905.

Books

Cassesse A, International Law (Oxford University Press 2001).

Crawford J (ed), Brownlie’s Principles of Public International Law (Oxford University Press 2012).

Ronzitti N, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (Martinus Nijhoff Publishers 1985).

Waldock CH, The regulation of the use of force by individual states in international law (MartinusNijhoff 1952).

Journals

Deeks AS, ‘Consent to the use of force and international law supremacy’ (2013) 54 Harv. Int'l LJ 1.

Greenwood C, ‘International law and the pre-emptive use of force: Afghanistan, Al-Qaida, and Iraq’ (2003) 4 San Diego Int'l LJ 7.

Jennings RY, ‘The Caroline and McLeod Cases’ (1938) 32 American Journal of International Law 82.

Mikanagi T, ‘Establishing A Military Presence In A Disputed Territory: Interpretation Of Article 2 (3) And (4) Of The Un Charter’ (2018) 67(4) International & Comparative Law Quarterly 1021.

Scharf MP, ‘How the War Against ISIS Changed International Law’ (2016) 48 Case W. Res. J. Int'l L. 16.

Tams CJ, ‘The use of force against terrorists’ (2009) 20(2) European Journal of International Law 359.