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Self-Defense Against Nonstate Actors: Reflections on the “Bethlehem Principles”

Published online by Cambridge University Press:  20 January 2017

Elizabeth Wilmshurst  and
Michael Wood
Elizabeth Wilmshurst
Affiliation:
UK Foreign and Commonwealth Office
Michael Wood
Affiliation:
UK Foreign and Commonwealth Office from 1999 to 2006
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Extract

Daniel Bethlehem has set down sixteen principles relevant to the scope of a state’s right of self-defense against an imminent or actual armed attack by nonstate actors “with the intention of stimulating a wider debate.” While these principles “are published under [the author’s] responsibility alone,” they have “nonetheless been informed by detailed discussions over recent years with foreign ministry, defense ministry, and military legal advisers from a number of states who have operational experience in these matters.”

Type
Notes and Comments
Information
American Journal of International Law , Volume 107 , Issue 2 , April 2013 , pp. 390 - 395
Copyright
Copyright © American Society of International Law 2013

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References

* Elizabeth Wilmshurst is an Associate Fellow in International Law at Chatham House and was formerly a deputy legal adviser at the UK Foreign and Commonwealth Office. Michael Wood is a Senior Fellow at the Lauterpacht Centre for International Law at the University of Cambridge and a member of the International Law Commission and was the principal Legal Adviser at the UK Foreign and Commonwealth Office from 1999 to 2006.

1 Bethlehem, Daniel, Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors, 106 AJIL 769, 773 (2012)CrossRefGoogle Scholar.

2 Id.

3 Published as Wilmshurst, Elizabeth, The Chatham House Principles of International Law on the Use of Force in Self-Defence, 55 Int’l & Comp. L.Q. 963 (2006)CrossRefGoogle Scholar [hereinafter Chatham House Principles].

4 Id. at 963.

5 Published as Schrijver, Nico & van den Herik, Larissa, Leiden Policy Recommendations on Counter-terrorism and International Law, 57 Neth. Int’l L. Rev. 531 (2010)Google Scholar [hereinafter Leiden Recommendations]; see also Counter-Terrorism Strategies in a Fragmented International Legal Order:Meeting the Challenges (Larissa van den Herik & Nico Schrijver eds., forthcoming 2013) (discussing the Leiden recommendations).

6 Leiden Recommendations, supra note 5, at 533.

7 at http://www.ila-hq.org/en/committees/index.cfm/cid/1036.

8 Kofi Annan, when secretary-general, attempted to facilitate agreement by setting up the High-Level Panel on Threats, Challenges and Change. Its 2004 report,A More Secure World: Our Shared Responsibility: Report of the High Level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2004), addressed the issues, as did the secretary-general’s response In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc. A/59/2005 (2005). But agreement on detailed statements in this area eluded the UN General Assembly, and the resolution adopting the World Summit Outcome did not go much beyond the important reaffirmation that”the relevant provisions of the Charter are sufficient to address the full range of threats to international peace and security.” 2005 World Summit Outcome, GA Res. 60/1, para. 79 (Sept. 16, 2005).

9 The discussions have been referred to publicly by former State Department legal adviser John Bellinger III, for example in his remarks to the International Bar Association on October 8, 2010:

When I was Legal Adviser, in 2006, I began a series of discussions on counter-terrorism legal issues between the U.S. and EU countries. The purpose was not to try to reach a consensus, but simply to try to understand each other’s concerns. In 2007, I began at West Point a focused dialogue with a smaller but geographically more diverse group of countries who face serious terrorist threats and also engage in international military operations. I am pleased that both of these dialogues have been continued by the Obama Administration. Indeed, the sixth meeting of the West Point group of countries was held here in Vancouver just two weeks ago.

John B. Bellinger III, Remarks at the Rule of Law Symposium, International Bar Association (Oct. 8, 2010), available at http://www.arnoldporter.com/resources/documents/Rule%20of%20Law%20Symposium_John%20Bellinger.pdf.

10 Bethlehem, supra note 1, at 773.

11 Id.

12 Id.

13 Id. at 775 n.*$$$$$

14 Id. at 770–74. The note usefully highlights British statements on the issues, though as regards the Foreign Affairs Committee it would have been better to have cited the foreign secretary’s careful responses to the Committee’s conclusions. For example, in response to the “conclusion” cited by Bethlehem, 106 AJIL at 773 n.13, the foreign secretary essentially repeated the relevant parts of the attorney general’s statement of April 21, 2004, saying inter alia that “international law permits the use of force in self-defence against an imminent attack, but does not authorise the use of force to mount a pre-emptive strike against a threat that is more remote” and that “[i]t is an important condition of military action in self-defence that it should only be used as a last resort. It must be necessary to use force to deal with the particular threat that is faced.” Response of the Secretary of State for Foreign and Common-wealth Affairs to the House of Commons Foreign Affairs Select Committee, Seventh Report: Foreign Policy Aspects of the War Against Terrorism 2003–04, Cm 6340, at 40–41 (Sept. 2004), available at http://www.bits.de/public/documents/US_Terrorist_Attacks/SecResp0904.pdf.

15 Bethlehem, supra note 1, at 770.

16 Id. at 773.

17 Id. at 774.

18 Id.

19 Id. at 777, princ. 14.

20 Id., princ. 15.

21 Id., princ. 16.

22 Id. at 775, princ. 1.

23 Authorization for the Use of Military Force, Pub. L. No. 107-40, §2(a), 115 Stat. 224 (2001) (reprinted at 50 U.S.C. §1541 note).

24 Of course, the Chatham House principles and the Leiden recommendations may themselves be subject to criticism. see, e.g., O’Connell, Mary Ellen, Dangerous Departures, 107 AJIL 380, 384 (2013)CrossRefGoogle Scholar.

25 Leiden Recommendations, supra note 5, at 540, para. 30.

26 Chatham House Principles, supra note 3, at 969, princ. F; Leiden Recommendations, supra note 5, at 541, para. 39.

27 Leiden Recommendations, supra note 5, at 541–42, para. 39.

28 Bethlehem, supra note 1, at 775, princ. 4.

29 Id., princ. 3.

30 The International Court of Justice affirmed a “specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law.” Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, para. 41 (July 8) (quoting Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, para. 176 (June 27)). The Chatham House principles require that the force used “taken as a whole, must not be excessive in relation to the need to avert the attack, or bring it to an end.” Chatham House Principles, supra note 3, at 968, princ. E; see also Leiden Recommendations, supra note 5, at 542, para. 43.

31 Chatham House Principles, supra note 3, at 968, princ. D cmt.; see also Leiden Recommendations, supra note 5, at 543, para. 48.

32 Bethlehem, supra note 1, at 775, princ. 7.

33 Leiden Recommendations, supra note 5, at 543, para. 47.

34 Bethlehem, supra note 1, at 776, princ. 12.

35 see Chatham House Principles,supra note 3, at 971, princ.G;Leiden Recommendations,supra note 5, at 541, para. 36.

36 see Chatham House Principles,supra note 3, at 971, princ.G;Leiden Recommendations,supra note 5, at 540, para. 33.

37 The term Policy Recommendations in the title of the Leiden text does not imply that those “recommendations” concerning the use of force in self-defense were intended to address the future development of the law.

38 Lewis Carroll, The Hunting of the Snark (1876) (statement of the Bellman).

39 Bethlehem, supra note 1, at 770.