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Back to Basics: Necessity, Proportionality, and the Right of Self-Defence Against Non-State Terrorist Actors

  • Kimberley N Trapp
Extract

The International Court of Justice's decision in DRC v Uganda touches on, but fails to address, the circumstances under which a State has a right to use force in self-defence against non-State actors.1 In 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-defence against the DRC.2 The separate opinions in DRC v Uganda lament 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.

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1 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), 19 12 2005, <www.icj-cij.org> [DRC v Uganda].

2 DRC v Uganda para 147.

3 Separate Opinion of Judge Simma, DRC v Uganda para 8; Separate Opinion of Judge Kooijmans, DRC v Uganda para 25.

4 See, eg, Antonio Cassese, ‘The International Community's “Legal”. Response to Terrorism’ (1989) 38 ICLQ 589, 596–7 (requiring attributability under the law of State responsibility, but, in line with the dissents in Nicaragua, describing State support and acquiescence in terrorism as a ‘grey’. area in the law that might form the basis of attribution); Peirluigi Lamberti Zanardi, ‘Indirect Military Aggression’ in A Cassese (ed), The Current Legal Regulation of the Use of Force (Kluwer Academic, London, 1986); Luigi, Condorelli, ‘Les attentats du 11 septembre et leur suites: où va le droit international?’ (2001) 105 RGDIP 829, 838; Olivier, Corten et al. , ‘Opération “liberté immuable”: Une éxtension abusive du concept de légitime défence’. (2002) 106 RGDIP 51, 55.

5 See, eg, Yoram, Dinstein, ‘The International Legal Response to Terrorism’ in Pierluigi, Lamberti Zanardi et al. (eds), International Law at the Time of its Codification, Essays in Honour of Roberto Ago (Giuffrè, Milan, 1987) 146; Yoram, Dinstein, War Aggression and Self-Defence (CUP, Cambridge, 2005) 206–8; Daniel, Janse, ‘International Terrorism and Self-Defence’. (2006) 36 Israel Ybk HR 149, 170–1 (noting that, in the case of failed States, defensive force must be strictly and exclusively directed against the terrorist actors). See also Separate Opinion of Judge Kooijmans, DRC v Uganda paras 26–9. Some authors have taken a middle of the road position and accept that a certain level of host State involvement (whether acquiescence or active support) in non-State terrorist activities is required before the right of self-defence is engaged. See for eg Ruth, Wedgwood, ‘Responding to Terrorism: The Strikes Against bin Laden’. (1999) 24 Yale J Intl L 559, 565 (arguing that, where a host country permits the use of its territory as a staging area for terrorist attacks when it could shut those operations down, and refuses requests to take action, the host government cannot expect to insulate its territory against measures of self-defence); Tom, Ruys et al. , ‘Attacks by Private Actors and the Right of Self-Defence’ (2005) 10 JCSL 289.

6 Art 2(4), Charter of the United Nations, UNCIO XV, 335; amendments by General Assembly Resolution in UNTS 557, 143/638, 308, 892, 119.

7 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) ICJ Reports (1986) 14 [Nicaragua]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports (2004) 135 [Wall Advisory Opinion]; DRC v Uganda.

8 The Court held that the United States was responsible for financing, training, and providing logistical support to the contras (including the supply of intelligence as to Nicaraguan troop movements). Nicaragua paras 101–4 and 106–8.

9 The Court held that Nicaragua was not in fact responsible for the arms traffic, to the extent such arms traffic existed. Nicaragua paras 154–5.

10 Nicaragua para 113.

11 ibid para 105.

12 ibid para 156.

13 Wall Advisory Opinion para 139.

14 But see separate opinion of Judge Higgins, para 34 and Declaration of Judge Buergenthal, para 6, Wall Advisory Opinion, for a critique of the Court's position, arguing that if Palestine is sufficiently an international entity for the purposes of appearing before the Court, and benefiting from the protections of international humanitarian law, then it should be sufficiently international for the purposes of applying the prohibition of armed attacks on other States.

15 See Tams, Christian J, ‘Light Treatment of a Complex Problem: The Law of Self-Defence in the Wall Case’ (2005) 16(5) EJIL 965; Murphy, Sean D, ‘Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?’ (2005) 99 AJIL 62. But note that the Court's Opinion has been interpreted as at least implicitly recognizing a right to use force in self-defence against non-State terrorist actors, while refusing to accept such a right as applicable in the circumstances. See Iris, Canor, ‘When Jus ad Bellum meets Jus in Bello: The Occupier's Right of Self-Defence against Terrorism Stemming from Occupied Territories’ (2006) Leiden J Intl L 129, 132.

16 DRC v Uganda para 146.

17 ibid para 147.

18 Under Art 3(g), States are prohibited from sending armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to an act of armed aggression. GA Res 3314 (XXIX), 14 Dec 1974 [Definition of Aggression].

19 DRC v Uganda para 146.

20 See Christine, Gray, International Law and the Use of Force (Oxford, OUP, 2004) 99.

21 Interestingly, both the DRC and Uganda, in their pleadings, accepted a lesser degree of State involvement than that set forth in Nicaragua as a basis for attributing the activities of armed bands to the host State for the purposes of self-defence. In particular, the DRC, in its oral pleadings, states that ‘It is necessary in the present case to maintain the distinction between the situation of a State which massively supports armed groups, including by deliberately allowing them access to its territory, and a case of mere negligence, such as would enable groups of this type to act against a third State. Only the first hypothesis could be characterized as an “armed attack” within the meaning of Article 51 of the Charter, thus justifying a unilateral response’ (emphasis added). DRC v Uganda, CR 2005/03 (translation), 12 Apr 2005, para 21. Because the Court found ‘no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC’ (DRC v Uganda para 146)–it had no cause to reconsider its conclusion in Nicaragua that the supply of arms to armed bands does not meet the requisite threshold of State involvement in the activities of armed bands for the purposes of attribution.

22 Wall Advisory Opinion para 139.

23 DRC v Uganda paras 118 and 147.

24 ibid para 147.

25 ibid paras 81–6.

26 Both Judges Simma and Kooijmans, in their separate opinions, consider this to be the Court's approach, but lament the Court's refusal to consider the right to act in self-defence against non-State actors (as opposed to against the DRC) and to evaluate Uganda's military activities against the DRC through the prism of ‘necessity’. Such an evaluation would have enabled the Court to find that Uganda's use of force far from the border region in which anti-Ugandan rebels operated was not necessary for the purposes of responding to armed attacks by those non-State actors. Separate Opinion of Judge Simma, DRC v Uganda paras 6–14; Separate Opinion of Judge Kooijmans, DRC v Uganda paras 26–9 and 34.

27 See Separate Opinion of Judge Higgins, Wall Advisory Opinion para 33; Separate Opinion of Judge Kooijmans, Wall Advisory Opinion para 35; Separate Opinion of Judge Kooijmans, DRC v Uganda para 28. See also Wedgwood (n 5) 564; Thomas, Franck, ‘Terrorism and the Right of Self-Defence’ (2000) 95 AJIL 839, 840; Murphy, Sean D, ‘Terrorism and the Concept of “Armed Attack” in Article 51 of the UN Charter’ (2001) 43 Harvard J Intl L 41, 50; Jordan, Paust, ‘Use of Force against Terrorists in Afghanistan, Iraq and Beyond’ (2002) 35 Cornell Intl L J 533, 534.

28 In Nicaragua, the ICJ held that the right to use force in self-defence was subject to the customary law requirements of necessity and proportionality. Nicaragua para 176. In its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports (1996(I)) 65, para 41, the Court held that the customary law requirements of necessity and proportionality apply equally to the exercise of the right of self-defence set forth in Art 51 of the UN Charter.

29 See Oscar Schacter, suggesting that a State's complicity in terrorist bases in its territory might be one basis on which the necessity of a defensive use of force could be justified. ‘The Extraterritorial Use of Force against Terrorist Bases’ (1988–9) 11 Houston J Intl L 309, 314.See also Murphy (n 15) 66–7, exploring the requirement of necessity in the context of Israel's construction of the Wall and the ICJ's Wall Advisory Opinion.

30 See Oil Platforms (Islamic Republic of Iran v United States of America) ICJ Reports (2003), para 76 (‘there is no evidence that the United States complained to Iran of the military activities of the platforms, … which does not suggest that the targeting of the platforms was seen as a necessary act’). See also Yoram, Dinstein, War Aggression and Self-Defence (n 5) 209–10.

31 Proportionality is often interpreted as requiring that defensive force be of the same intensity as the offensive force to which it is responding. For a very helpful overview of the requirement that force be proportional in the self-defence context, see Kirgis, Frederic L, ‘Some Proportionality Issues Raised by Israel's Use of Armed Force in Lebanon’ (ASIL Insight, 17 08 2006) <http://www.asil.org/insights/2006/08/insights060817.html>.

32 The Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV), 24 Oct 1970 [Declaration on Friendly Relations], stipulates that ‘No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State’.

33 Where a State is unable to meet its terrorism prevention obligations, either because it lacks the territorial control necessary to do so, or because it does not have the relevant human or financial resources available, it is arguably under an obligation to accept offers of counter-terrorism assistance, or even to seek such assistance. A State's consistent failure to address its counter-terrorism incapacity, where such assistance is available, could be interpreted as an unwillingness to meet its international terrorism prevention obligations. On the issue of an obligation to develop counter-terrorism capacity, see Tal, Becker, Terrorism and the State; Rethinking the Rules of State Responsibility (Hart Publishing, Portland, 2006) 144–6. The international community has not been entirely consistent on the issue of self-defence necessitated by a State's inability to meet its counter-terrorism obligations. It rejected Turkey's invocation of the right to use force in self-defence in Iraqi territory against PKK bases because of Iraq's inability to control its northern border and prevent acts of terrorism (UN Doc S/1995/605). See UN Doc S/1997/461 (Arab League); Keesing's Record of World Events (1995) 40474, 40522 (European Union); Keesing's Record of World Events (1995) 40474 (United States).See also Ruys, et al. (n 5) 295–6. But the Lebanese Government's continued failure to heed Security Council calls for it to extend its control over all Lebanese territory (see SC Res 1559 (2004) paras 1–3; SC Res 1583 (2005) paras 3–4; SC Res 1655 (2006) paras 3, 6, and 8; SC Res 1680 (2006) preamble), influenced the position States took vis-à-vis Israel' use of force in Lebanon in July/August 2006.See below notes 7081 and accompanying text.

34 A State's obligation to ‘refrain from organizing, instigating, assisting or participating in […] terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force’ set forth in the Declaration on Friendly Relations (n 32), was held to be declaratory of customary international law in DRC v Uganda para 162.

35 [1976] UN Ybk 319.20.

36 UN SCOR, 1939th Meeting 9 July 1976, para 121.

37 See, eg, the comments of the representatives of Cameroon (UNSCOR, 1939th Meeting 9 07 1976, paras 214–15); Mauritania (UNSCOR, 1939th Meeting 9 07 1976, para 45); Guinea (UNSCOR, 1940th Meeting 12 07 1976, para 35); Benin (UNSCOR, 1941st Meeting 12 07 1976, paras 10–18); Libyan Arab Republic (UNSCOR, 1943rd Meeting, 14 07 1976, paras 7–20).

38 UN Doc A/40/688.S/17502 (1985).

39 UN Doc S/PV.2611 (1993) 22–5.

40 Israel specifically argued that it was not using force against Tunisia itself, but against the PLO headquarters located in Tunisia, thereby avoiding having to argue that Tunisia's acquiescence in the PLO's activities was a basis for attributing PLO terrorism to Tunisia. In particular, Israel stated that ‘[i]t was against [the PLO] that our action was directed, not against their host country. Nevertheless, the host country does bear considerable responsibility’. UN Doc S/PV.2611 (1993) 22–5.

41 UN Doc S/PV.2611 (1993) 26.

42 UN Doc S/PV.2610 (1993) 11; UN Doc S/PV.2615 (1993) 82. Like Tunisia, many States making presentations to the Security Council did not accept that the PLO's activities could be characterized as terrorist, invoking the long debated distinction between terrorism and the right of peoples to struggle for self-determination. UN Doc S/PV.2610–13 (1993).

43 UN Doc S/PV.2611 (1993) 41 (United Kingdom); S/PV.2613 (1993) 11 (Madagascar).

44 Arguing that an ‘armed attack’ is limited to uses of force by one State against another, see, eg, Cassese (n 4); Zanardi (n 4). But see Ian, Brownlie, International Law and the Use of Force by States (Clarendon Press, Oxford, 1963) 278–9; Dinstein, , ‘The International Legal Response to Terrorism’ (n 5) 144–6; Jean, Combacau, ‘The Exception of Self-Defence in UN Practice’ in A Cassese (ed), The Current Legal Regulation of the Use of Force (Kluwer Academic, London, 1986) 9, 26.

45 UN Doc S/1998/780.

46 The Sudan, in a letter to the Security Council, denied that the pharmaceutical plant in Khartoum was used for terrorist purposes. UN Doc S/1998/786. Kuwait on behalf of the League of Arab States, condemned the United States for its attack on the Sudan. UN Doc S/1998/789; UN Doc S/1998/800. The Movement of Non-Aligned Countries similarly condemned the attack against Sudan as a unilateral and unwarranted act of aggression. UN Doc S/1998/879.

47 The US position at the time was that Al Qaeda operated on its own, without having to depend on a State sponsor for support (although depending on State acquiescence). See ‘Contemporary Practice of the United States’ (2000) 94 AJIL 367.

48 For an argument to this effect, see ‘Remarks by Derek Jinks’ (2003) 97 American Soc'y Intl L Proceedings 144; Derek, Jinks, ‘State Responsibility for the Acts of Private Armed Groups’ (2003) 4 Chicago J Intl L 83; Daniel Janse (n 5) 168–9.

49 See Antonio Cassese, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’ (2001) 12 EJIL 993, 997, arguing that terrorist organizations (and not the State from whose territory they operate) might be legitimate targets of defensive force, and that the violation of the host State's sovereignty is legally justified by its aiding and abetting terrorism, in violation of its duty to refrain from doing so. Cassese does not legitimate a defensive use of force against non-State actors, in violation of the territorial State's territorial integrity, based on the ‘necessity’ requirement to which the exercise of self-defence is subject, but recognises that there cannot be a use of force in a foreign State's territory against terrorists absent a justification for the violation of territorial integrity and sovereignty. See also Jack Beard, arguing that a right to use force in self-defence against an ‘armed attack’ by non-State actors should be coupled with a State's violation of Art 2(4) (in supporting or acquiescing in terrorism), thereby rendering the relevant State susceptible to uses of force against non-State actors in its territory. ‘America's New War on Terror: The Case for Self-Defence under International Law’. (2002) 25 Harvard J L & Public Pol'y 559, 580–2.

50 (emphasis added) UN Doc S/2001/946. While accusing the Taliban of acquiescence, the letter stopped short of alleging that the Taliban was, as a matter of international law, responsible for the 9/11 terrorist attacks. See Christopher Greenwood, ‘International Law and the “War against Terrorism”’ (2002) 78 Intl Affairs 301, 311–12.

51 SC Res 1368 (2001). The Council again reaffirmed the right to individual and collective self-defence in SC Res 1373 (2001).

52 The Foreign Relations Committee of the United States, in commenting on the phrase armed attack. in Art 5 of the North Atlantic Treaty, 4 Apr 1949, <www.nato.int/docu/basictxt/treaty.htm>, stated that ‘the words “armed attack” clearly do not mean an incident created by irresponsible groups or individuals, but rather an attack by one State upon another’. US Senate, Report of the Committee on Foreign Relations on the North Atlantic Treaty, Exec Rep No 8, 13. Similarly, Art 3 of the Inter-American Treaty of Reciprocal Assistance, 2 Sept 1947, 21 UNTS 77, stipulates that ‘The High Contracting Parties agree that an armed attack by any State against an American State shall be considered as an attack against all the American States and, consequently, each one of the said Contracting Parties undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self-defence recognized by Article 51 of the Charter of the United Nation’ (emphasis added).

53 See NATO update, 2 Oct 2001, available at <www.nato.int/docu/update/2001/1001/e1002a.htm>; Convocation of the Twenty-Fourth Meeting of Consultation of Ministers of Foreign Affairs to Serve as Organ of Consultation in Application of The Inter-American Treaty of Reciprocal Assistance, CP/RES. 797 (1293/01), 19 September 2001, <www.oas.org/ main/main.asp?sLang= E&sLink=http://www.oas.org/OASpage/press_releases/home_eng>.

54 See UN Doc S/2001/967 (European Union); UN Doc S/2001/1005 (Canada); UN Doc S/2001/1127 (Germany); UN Doc S/2001/1193 (New Zealand).

55 But see Jordan Paust, arguing that Al Qaeda was a legitimate target of defensive force, but that the Taliban, to which the 11 September attacks could not be attributed (because acquiescence is not a basis for attribution), was not a legitimate target. Paust (n 27) 540–3.

56 See Ratner, , ‘Jus Ad Bellum and Jus In Bello’ (2002) 96 AJIL 905, 913, arguing that States supported the 2001 US-led campaign against the Taliban not because acquiescence is a basis for attributing non-State conduct to a State, but because there were in fact very strong ties between the Taliban and Al Qaeda. O'Connell argues that, based on evidence that the Taliban and Al Qaeda mutually depended on each other for their continued existence, the case might be made that Al Qaeda's terrorist attacks are attributable to the Taliban, particularly under the Tadić standard, thereby justifying uses of force against both Al Qaeda and the Taliban. Mary, Ellen O'Connell, ‘Evidence of Terror’ (2002) 7 JCSL 19, 32. Stahn argues that support for the decision to target the Taliban in the 2001 US-led campaign in Afghanistan amounts to an overturning of the effective control test set forth in Nicaragua as a basis for attribution, and the adoption of the overall control test set forth in Tadić—and that the 9/11 terrorist attacks are attributable to the Taliban on the basis of the overall control test given its provision of financial, logistical or other support to Al Qaeda. Stahn rejects acquiescence as a legitimate basis for targeting a State in response to terrorist attacks by non-State actors operating from its territory. Carsten, Stahn, ‘Terrorist Acts as “Armed Attack”: The Right to Self-Defence, Article 51(1/2) of the UN Charter, and International Terrorism’ (2003) 27 Fletcher Forum of World Affairs 35, 42–9.

57 See also National Commission on Terrorist Attacks upon the United States, Final Report of the National Commission on Terrorist Attacks upon the United States (WW Norton & Co, New York), which called into doubt the degree of control the Taliban exercised over Al Qaeda, instead finding that senior officials in the Taliban regime were opposed to the 11 September attacks.

58 UN Doc S/PV.4836 (2003) 5.

60 UN Doc S/2003/939.

61 UN Doc S/2003/943.

62 Official Journal of the EU, Council Common Position 2005/847/CFSP of 29 11 2005.

63 UN Doc S/PV.4836 (2003) 9 (Spain, United Kingdom) 10 (Germany), 11 (France).

64 UN Doc S/PV.4836 (2003) 10: Only the US, which also characterizes Islamic Jihad as a terrorist organization, did not condemn the Israeli attack and admonished Syria for ‘harbouring and supporting the groups that perpetrate terrorist acts’.

65 UN Press Release, SG/SM/8918, 6 10 2003.

66 See for eg Gray (n 20) 175.

68 UN Doc S/2002/250.

69 UN Doc S/2002/854. See also UN Doc S/2002/1012.

70 UN Doc S/2002/1035. UN Doc S/2002/1033.

71 It should be noted that Israel was not considered to be acting solely in response to Hizbollah's abductions or rocket launchings, but in response to the unacceptable terrorist threat posed more generally by Hizbollah. See the statement by Mr Nambiar (Special-Adviser to the Secretary-General) to the Security Council, UN Doc S/PV.5493 (2006) 5. Whether Hizbollah's provocations amounted to an ‘armed attack’ within the meaning of Art 51 of the UN Charter is beyond the scope of this paper, but raises additional concerns about the scale of Israel's response and the legality of preventive self-defence.

72 Israel claimed that it ‘has repeatedly been compelled to act not against Lebanon, but against the forces and the monstrosity which Lebanon has allowed itself to be taken hostage by’. S/PV.5503 (2006) 4. Israel also invoked Lebanese, Iranian, and Syrian responsibility for Hezbollah's activities, but such invocations did not appear to be in support of a further claim of attributability for the purposes of a defensive use of force. See S/PV.54899 (2006) 6.

73 See ‘Israel Imposes Labanon Blockade’ BBC (13 07 2006) <http://news.bbc.co.uk/2/hi/middle_east/5175160.stm>.

74 The UN High Commissioner for Human Rights and segments of civil society suggested that Israel's indiscriminate use of force and its impact on Lebanon's civilian population may have amounted to war crimes. See ‘Q&A: mid-East War Crimes’ BBC (21 07 2006) <http://news.bbc.co.uk/2/hi/middle_east/5198342.stm.>; Human Rights Watch, ‘Fatal Strikes; Israel's Indiscriminate Attacks against Civilians in Lebanon. <http://hrw.org/reports/2006/lebanon 0806/>; Amnesty International, ‘Deliberate destruction or “collateral damage”? Israeli attacks on civilian infrastrcuture’ <http://web.amnesty.org/library/print/ENGMDE180072006>.

75 eg. Qatar characterized Israel's use of force as beyond its stated objective, given the civilian nature of the Israeli targets. UN Doc S/PV.5493 (2006) 14. Lebanon clearly rejected Israel.s contention to be acting primarily against non-State terrorist targets:. It has been very clear from the beginning that it was not Hizbollah that was the target. It was Lebanon that was the target. Infrastructure was targeted and hundreds of civilians were killed before Israel even took up any campaign against Hizbollah and its positions’, S/PV5498 (20067) 6. The Secretary General also characterized Israel's use of force as ‘collective punishment of the Lebanese people’, S/PV.5492 (2006) 3. Argentina similarly qualified Israel's use of force as ‘collective punishment’, S/PV.5489 (2006) 9.

76 See S/PV.5508 (2006) 5.

77 S/PV.5489 (2006), Argentina 9; Japan 12; United Kingdom 12; Peru 14; Denmark 15; Slovakia 16; Greece 17; France 17. S/PV.5493 (2006), United States of America 17. The Secretary General also acknowledged Israel's right to defend itself against Hizbollah attacks, under Art 51 of the UN Charter. S/PV.5492 (2006) 3; S/PV.5498 (2006) 3.

78 S/PV.5489 (2006), Argentina 9; United States of America 10; Japan 12; United Kingdom 13; United Republic of Tanzania 14; Peru 14; Denmark 15; Greece 17; France 17. See the statement of the Secretary General to the Security Council. S/PV.5492 (2006) 4. See also SC Res 1559 (2004) paras 1–3; SC Res 1583 (2005) paras 3–4; SC Res 1655 (2006) paras 3, 6 & 8; SC Res 1680 (2006) preamble; SC Res 1701 (2006) para 3.

79 Lebanon expressly acknowledged that it needed to extend its authority throughout its territory. S/PV.5493 (2006) 13.

80 On the use of defensive force against non-State actors in the territory of a State that is incapable of fulfilling its duty of diligent terrorism prevention, see Yoram, Dinstein, ‘The International Legal Response to Terrorism’ (n 5) 146.See also DRC v Uganda, Separate Opinion of Judge Kooijmans, paras 2731.

81 S/PV.5489 (2006), Argentina 9; Japan 12; United Kingdom 12; United Republic of Tanzania 13–14 (considered Israel's use of force as disproportionate without having expressly recognized Israel's right to use force in self-defence); Peru 14; Denmark 15; Slovakia 126; Greece 16; France 17. The United States is the only State to have explicitly recognized Israel's right to defend itself without characterizing Israel's defensive measures as disproportionate or excessive. The Secretary General also condemned Israel's excessive use of force. S/PV.5492 (2006) 3; S/PV.5498 (2006) 3.

82 See Jules, Lobel, ‘The Use of Force to Respond to Terr rist Bombings: The Bombing of Sudan and Afghanistan’ (1999) 24 Yale J Intl L 527, 543; Michael, Byers, ‘Terrorism, the Use of Force, and International Law after 11 09’ (2002) 51 ICLQ 401, 411–14. But see Reisman, W Michael, ‘International Legal Responses to Terrorism’ (1999) 22 Houston J Intl L 37, making a policy argument that States which sponsor or acquiesce in terrorism should not be insulated from highly coercive measures which might serve to deter future acts of international terrorism. See also Franck, (n 27) 841, suggesting that the Taliban's responsibility for placing its territory at the disposal of terrorists, and for harbouring the perpetrators of terrorism (as reaffirmed by Security Council resolution 1368), makes it susceptible to defensive uses of force directed against it (as distinguished from uses of force directed against Al Qaeda).

* PhD Candidate, Girton College, University of Cambridge. I am grateful to Dr G Verdirame and Douglas Guilfoyle for their helpful comments on an earlier draft of this article.

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