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Self-Defence against Non-state Actors: The Interaction between Self-Defence as a Primary Rule and Self-Defence as a Secondary Rule

  • NICHOLAS TSAGOURIAS
Abstract

This article examines the law of self-defence as applied to non-state attacks in light of the coalition air strikes against ISIL in Syria. It critiques the two current interpretations of the law of self-defence – one based on attribution and the other on the ‘unable or unwilling’ test – for failing to address adequately the security threat posed by non-state actors or for not addressing convincingly the legal issues arising from the fact that the self-defence action unfolds on the territory of another state. For this reason, it proposes an alternative framework which combines the primary rule of self-defence to justify the use of defensive force against non-state actors, with the secondary rule of self-defence to excuse the incidental breach of the territorial state's sovereignty.

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References
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1 UN Doc. SC Res 2249 (2015).

2 Letter dated 20 September 2014 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council, UN Doc. S/2014/691 (2014), Annex.

3 Identical letters dated 25 November 2014 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2014/851 (2014). For consent as justification for the use of force in another state see Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Merits, Judgment of 19 December 2005, [2005] ICJ Rep at 168, para. 47.

4 Letter dated 23 September 2014 from the Permanent Representative of the US of America to the United Nations addressed to the Secretary-General, UN Doc. S/2014/695 (2014).

5 Letter dated 24 July 2015 from the Chargé d'affaires a.i. of the Permanent Mission of Turkey to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/563, (2015).

6 Letter dated 9 September 2015 from the Permanent Representative of Australia to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/693 (2015).

7 United Kingdom Prime Minister's Office, ‘Policy paper, Summary of the government legal position on military action in Iraq against ISIL’, 25 September 2014, available at www.gov.uk/government/publications/military-action-in-iraq-against-isil-government-legal-position/summary-of-the-government-legal-position-on-military-action-in-iraq-against-isil.

8 HC Deb 7 September 2015, vol 559, col 25–7-27. Also Letter dated 7 September 2015 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland, UN Doc. S/2015/688 (2015); House of Commons Foreign Affairs Committee, The extension of offensive British operations to Syria, Second Report of Session 2015-16 HC 457, 3 November 2015, 12; ‘Memorandum to the Foreign Affairs Select Committee, Prime Minister's Response to the Foreign Affairs Select Committee's Second Report of Session 2015-16: The Extension of Offensive British Military Operations to Syria’, November 2015, available at www.parliament.uk/documents/commons-committees/foreign-affairs/PM-Response-to-FAC-Report-Extension-of-Offensive-British-Military-Operations-to-Syria.pdf; A. Lang, ‘UK drone attack in Syria: legal issues’ (HC Briefing paper, number 7332, 20 October 2015); A. Lang, ‘Legal basis for UK military action in Syria’ (HC Briefing paper, number 7404, 1 December 2015).

9 HC Deb 2 December 2015 c323; C. Mills, B. Smith and L. Brooke-Holland, ‘ISIL/Daesh: the military response in Iraq and Syria’ (HC Briefing paper, number 06995), 15 December 2015, 27–32.

10 Identical letters dated 8 September 2015 from the Permanent Representative of France to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2015/745 (2015). Conseil de sécurité - Résolution 2249 contre le terrorisme - Intervention de M. François Delattre, représentant permanent de la France auprès des Nations Unies - 20 November 2015, available at www.franceonu.org/Face-a-Daech-nous-avons-l-humanite-en-commun.

11 ‘Self-defence? Moscow questions France's Anti-ISIL strikes’ Sputnik International, 27 September 2015, available at sputniknews.com/politics/20150927/1027618121/airstrikes-france-isil.html#ixzz3nIfyFro8.

12 ‘Lawmakers authorize use of Russian military force for anti-IS airstrikes in Syria’ TASS, 30 September 2015, available at tass.ru/en/politics/824795.

13 Identical letters dated 17 September 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2015/719, 21 September 2015.

14 Ibid.

15 On the distinction between primary and secondary rules see Crawford, J., The International Law Commission's Articles on State Responsibility (2002), 1416 ; Crawford, J., ‘The ILC Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect’, (2002) 96 AJIL 874, at 876–9. YBILC (vol II, part II) 1980, 27A.

16 International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, 2001 YILC, Vol. II (Part I), UN Doc. A/56/10.

17 Art. 51 UN Charter.

18 Legal Consequences of the Construction of a Wall in the Palestinian Occupied Territories (Advisory Opinion), 9 July 2004, [2004] ICJ Rep. para 139; Case concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment of 12 December 1996, [1996] ICJ Rep. at 803, para 51: ‘. . .the United States has to show that attacks had been made upon it for which Iran was responsible’. Also ibid., para. 61.

19 It should be noted that UN Doc. SC Res 2249 (2015) did not authorize strikes against ISIL in Syria but, instead, endorsed the legal justifications offered by states such as self-defence or consent. D. Akande and M. Milanovic, ‘The Constructive Ambiguity of the Security Council's ISIL Resolution’, EJIL Talk!, 21 November 2015, available at www.ejiltalk.org/the-constructive-ambiguity-of-the-security-councils-isis-resolution/.

20 O'Connell, M.E., ‘Dangerous Departures’ (2013) 107 AJIL 380 , at 380, 383; Tladi, D., ‘The Nonconsenting Innocent State: The Problem with Bethlehem's Principle’ (2013) 107 AJIL 570 , at 572; Antonopoulos, C., ‘Force by Armed Groups as Armed Attack and the Broadening of Self-Defence’, (2008) 55 Neth. ILRev 159, at 169–71.

21 Boon, K.E., ‘Are Control Tests Fit for the Future? The Slippage Problem in Attribution Doctrines’ (2014) 15 Melbourne JIL 1 .

22 Art. 4 ASR; Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14, para. 109 (hereinafter refered to as Nicaragua Case); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Judgment of 26 February 2007, [2007] ICJ Rep. 307, 385, 390–3 (hereinafter referred to as Bosnia Genocide Case). Crawford, J., State Responsibility-The General Part (2013) 124–6.

23 Arts. 5 and 6 ASR.

24 Art. 8 ASR; de Frouville, O., ‘Attribution of Conduct to the State: private individuals’, in Crawford, J., Pellet, A. and Olleson, S. (eds.), The Law of International Responsibility (2010) 257 , 267; Crawford, supra note 22, at 145. Bosnia Genocide Case, supra note 22, para. 400. Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) [1980] ICJ Rep. 3, para. 58; Nicaragua Case, supra note 22, Separate Opinion of Judge Ago, para. 16.

25 Nicaragua Case, supra note 22, paras. 116–17; Bosnia Genocide Case, supra note 22, paras. 398, 402–6, 413–14.

26 Stahn, C., ‘Terrorist Attacks as “Armed Attack”: The Right to Self-Defense, Article 51(1/2) of the UN Charter, and International Terrorism’ (2003) 27 (2) Fletcher Forum of World Affairs 35 , at 47.

27 Prosecutor v. Duško Tadić a/k/a “DULE”, Appeal Judgement, ICTY-94-1-A, A. Ch., 15 July 1999, para. 131, 137 (Tadić Appeal). The ICJ rejected the ‘overall control’ criterion for the law of state responsibility. Bosnia Genocide Case, supra note 22, para. 404. See Cassese, A., ‘The Nicaragua and the Tadić tests revisited in light of the ICJ judgment on genocide in Bosnia’ (2007) 18 EJIL 649 .

28 Tams, C., ‘Use of Force against Terrorists’ (2009) 20 EJIL 385 ; Nollkaemper, A., ‘Attribution of Forcible Acts to States: Connections Between the Law on the Use of Force and the Law of State Responsibility’, in Blokker, N.M. and Schrijver, N.J. (eds.), The Security Council and the Use of Force: Theory and Reality - A Need for Change? (2005) 160–4 (only if there is knowledge, foreseeability, intent and causation).

29 Letter from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, UN Doc. S/2001/946, 7 October 2001; Letter from the Charge d'affaires ai of the Permanent Mission of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council, UN Doc. S/2001/947, 7 October 2001.

30 Strengthening Hemispheric Cooperation to Prevent, Combat, and Eliminate Terrorism, Twenty-third Meeting of Consultation OEA of Ministers of Foreign Affairs, /ser.f/ii.23 rc.23/res.1/01, 21 September 2001, available at www.oas.org/oaspage/crisis/RC.23e.htm.

31 See Arts. 55 and 59 ASR.

32 Bosnia Genocide Case, supra note 22, paras. 402–5.

33 Ruys, T., ‘Armed Attack’ and Article 51 of the UN Charter (2013), 490–2; Cassese, A., ‘Terrorism Is also Disputing some Crucial Categories of International Law’, (2001) 12 EJIL, 996 ; Guillame, G., ‘Terrorism and International Law’, (2004) 53 ICLQ, 537 . For lex specialis see Condorelli, L. and Kress, C., ‘The Rules of Attribution: General Considerations’ in Crawford, J. et al. (eds), The Law of International Responsibility (2010), 221 .

34 Hmoud, M., ‘Are New Principles Really Needed? The Potential of the Established Distinction Between Responsibility for Attacks by Nonstate Actors and the Law of Self-Defense’ (2013) 107 AJIL 576 . Nollkaemper, supra note 28, at 133–71 (for whom there is connection between the law of state responsibility and the use of force). Armed Activities on the Territory of the Congo, supra note 3, Declaration of Judge Koroma, para. 9.

35 Art. 2 ASR; Frouville, supra note 24, at 270.

36 Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001 YILC, Vol. II (Part II), 38. Bosnia Genocide Case, supra note 22, para. 406

37 Bosnia Genocide Case, supra note 22, para. 406.

38 Wilmshurst, E., ‘The Chatham House Principles of International Law on the Use of Force in Self-Defence’ (2006) 55 ICLQ 963 , Principle F, 969–70; Deeks, A.S., ‘“Unwilling or Unable”: Toward a Normative Framework for Extraterritorial Self-Defense’ (2012) 52 Virginia J Intl L 483 ; Reinold, T., ‘State Weakness, Irregular Warfare, and the Right to Self-defense Post-9/11’ (2011) 105 AJIL 244–86; Ruys, supra note 33, at 502–7; Lubell, N., Extraterritorial Use of Force against Non-State Actors (2010). See also C. Heyns, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, UN Doc. A/68/382 (2013) paras. 85–94; Promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/68/389 (2013), paras. 55–6. Also H.H. Koh, ‘The Obama Administration and International Law’ (Annual Meeting of the American Society of International Law, DC), 25 March 2010, available at www.state.gov/s/l/releases/remarks/139119.htm.

39 HC Deb 7 September 2015, c25–27.

40 Remarks at the Climate Summit press conference (including comments on Syria) Secretary-General Ban Ki-moon, UN Headquarters, 23 September 2014, available at www.un.org/apps/news/infocus/sgspeeches/statments_full.asp?statID=2356#.VjN_J24UPnk.

41 Deeks, supra note 38, at 519–32.

42 Ibid, at 519.

43 ‘Syria's President Speaks: A Conversation With Bashar al-Assad’, Foreign Affairs, March-April 2015, available at www.foreignaffairs.com/interviews/2015-01-25/syrias-president-speaks.

44 C. Kress, ‘The Fine Line Between Collective Self-Defense and Intervention by Invitation: Reflections on the Use of Force against “IS” in Syria’, Just Security, 17 February 2015, available at www.justsecurity.org/20118/claus-kreb-force-isil-syria/.

45 G. Nolte, Intervention by Invitation, MPEPIL, available at opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1702?prd=EPIL.

46 Following the ‘9/11’ attacks, President Bush in his address to Congress made the following demands to Afghanistan: ‘Close immediately and permanently every terrorist training camp in Afghanistan, and hand over every terrorist, and every person in their support structure, to appropriate authorities. Give the United States full access to terrorist training camps, so we can make sure they are no longer operating. These demands are not open to negation or discussion. The Taliban must act and act immediately. They will hand over the terrorists or they will share in their fate’. Presidential address to Joint Session of Congress and the American People, 20 September 2001, available at georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010920-8.html. Georgia characterized Russia's demands in relation to Chechen fighters as a threat of force or aggression. Letter dated 13 September 2002 from the Permanent Representative of Georgia to the United Nations addressed to the Secretary-General, UN Doc. A/57/409–S/2002/1035 (2002).

47 Hakimi, M. , ‘ Defensive Force against Non-State Actors: The State of Play’ (2015) 91 Intl L Studies 1 ; Ashley Deeks relates the test to self-defence and indeed to the necessity condition of self-defence but the article often treats it as an independent test and more or less as a decision-making test removed from the legal conditions attendant to self-defence. Deeks, supra note 38.

48 Deeks, supra note 38, at 502; Reinold, supra note 38, at 29; K.J. Heller, ‘Ashley Deeks’ Problematic Defense of the “Unwilling or Unable” Test’, Opinio Juris, available at opiniojuris.org/2011/12/15/ashley-deeks-failure-to-defend-the-unwilling-or-unable-test/.

49 Nicaragua Case, supra note 22, paras. 194, 237; Case concerning Oil Platforms, supra note 18, paras. 51, 73–7; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion of 8 July 1996) [1996] ICJ Rep. 226, para. 41. Gardam, J., Necessity, proportionality and the use of force by States (2004) 148–54; Gazzini, T., The Changing Rules on the Use of Force in International Law (2005) 129 ; Bethlehem, D., ‘Principles Relevant to the Scope of a State's Right to Self-Defense Against an Imminent or Actual Armed Attack by Non-State Actor’, (2012) 106 AJIL 1 , Principles 11 and 12; Dinstein, Y., War, Aggression and Self-defence (2011) paras. 610–12, 729; Tams, C.J., ‘The Necessity and Proportionality of Anti-Terrorist Self-Defence’, in Herik, L.v.d. and Schrijver, N. (eds.) Counter-Terrorism Strategies in a Fragmented International Legal Order (2013) 373422 .

50 Trapp, K., ‘Can Non-state Actors Mount an Armed Attack?’ in Weller, M., (ed.), Handbook on the Use of Force in International Law, (2015) 679–96.

51 Hmoud, supra note 34, at 577.

52 Remarks at the Climate Summit press conference (including comments on Syria) Secretary-General Ban Ki-moon, UN Headquarters, 23 September 2014. See also Armed Activities on the Territory of the Congo, supra note 3, Separate Opinion of Judge Simma, para. 12; Ibid., Separate Opinion of Judge Kooijmans, para. 30.

53 UN Doc. SC Res 2249 (2015), para. 5.

54 Memorandum to the Foreign Affairs Select Committee, supra note 8, at 9.

55 Identical letters dated 12 July 2006 from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2006/515 (2006).

56 UN Doc. SC Res 1701 (2006); Ruys, supra note 33, at 449–57.

57 Institut de Droit International, ‘Present Problems of the Use of Armed Force in International Law, Resolution 10A’ (27 October 2007) para 10(ii). See also Armed Activities on the Territory of the Congo, supra note 3, Declaration of Judge Tomka, para. 4.

58 Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) [1949] ICJ Rep. 22, Legality of the Threat or Use of Nuclear Weapons, supra note 49, at 241–2. Sofaer, A.D., ‘Terrorism, the Law, and the National Defense’ (1989) 126 Military Law Review 89, at 106–7.

59 Letter dated 11 September 2002 from the Permanent Representative of the Russian Federation to the United Nations addressed to the Secretary-General, UN Doc. S/2002/1012 (11 September 2002).

60 See in this regard the ICJ's distinction between use of force and due diligence. Armed Activities on the Territory of the Congo, supra note 3, para. 300. Cassese, A., ‘The International Community's “Legal” Response to Terrorism’, (1989) 38 ICLQ 589 , at 597.

61 Brownlie, I., International Law and the Use of Force by States (1963) 312–14; Bowett, D.W., Self-Defence in International Law (1958) 167–74; San Remo Manual on International Law Applicable to Armed Conflicts at Sea (12 June 1994), Art. 22 and paras. 22.1–22.5.

62 Dinstein, supra note 49, paras. 711–33.

63 Wilmshurst, supra note 38, at 970.

64 Arts. 2 and 16 ASR. Crawford, The International Law Commission's Articles on State Responsibility, supra note 15, at 80, com 94.

65 See Kress, supra note 44.

66 Dinstein, supra note 49, para. 721.

67 Whether forcible countermeasures or reprisals are permitted is debated. See Art. 50 ASR but also Dissenting Opinion of Judge Simma in Case Concerning Oil Platforms, supra note 18, para. 15.

68 Art. 49 ASR. Crawford, The International Law Commission's Articles on State Responsibility, supra note 15, at 281. Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, [1997] ICJ Rep. 7, para. 83.

69 It is interesting to note that the ICJ, in its self-defence jurisprudence, does not examine first the question of whether the defensive force is a violation of Art. 2(4) of the UN Charter. This supports the legal separateness of the self-defence norm from that on the use of force. See Case Concerning Oil Platforms, supra note 18, paras. 43–99 and Armed Activities on the Territory of the Congo, supra note 3, paras. 106–47 and 153–65; Nuclear Weapons Advisory Opinion, supra note 49, para. 38; Fletcher, George P. and Ohlin, J.D., Defending Humanity: When Force is Justified and Why (2008), 3062 .

70 Legal Consequences of the Construction of a Wall, supra note 18, Separate Opinion of Judge Higgins, para. 33; ibid., Separate Opinion of Judge Kooijmans, para. 35; ibid., Declaration of Judge Buergenthal, para. 6. Armed Activities on the Territory of the Congo, supra note 3, Separate Opinion of Judge Simma, paras. 4–15; ibid., Separate Opinion of Judge Kooijmans, paras. 19-30; ibid., Declaration of Judge Koroma, para. 9.

71 ‘Definition of Aggression’ UNGA Res 3314 (XXIX) (14 December 1974) Annex. For critiques of the Court's approach see Stone, J., Conflict Through Consensus: United Nations Approaches to Aggression (1977) 146 . See also Nicaragua Case, supra note 22, Dissenting Opinion of Judge Schwebel, 168–70.

72 Nicaragua Case, supra note 22, para. 195; Armed Activities on the Territory of the Congo, supra note 3, para. 146; Ruys, supra note 33, at 479–85; Barbour, S.A. and Salzman, Z.A., ‘“The Tangled Web”: the right of self-defense against non-State actors in the Armed Activities case’ (2007–8) 40 NYU J Intl L and Policy 53106 .

73 Simma, B., Khan, D.-E., Nolte, G. and Paulus, A. (eds.), The Charter of the United Nations: A Commentary (2012), at 1415 ; Lamberti-Zanardi, P., ‘Indirect Military Aggression’, in Cassese, A. (ed.), The Current Legal Regulation of the Use of Force (1986) 112 .

74 Independent International Fact-Finding Mission on the Conflict in Georgia (Vol. II September 2009) at 258–60.

75 Nicaragua Case, supra note 22, para. 109.

76 YBILC (vol II, Part One) 1974, 283.

77 YBILC 1974 (vol I) 152–53. See also First report on State responsibility, by Mr. James Crawford, Special Rapporteur, UN Doc. A/CN.4/490 (1998) and Add. 1–7 paras. 193–215.

78 Independent International Fact-Finding Mission on the Conflict in Georgia (vol. II September 2009) 258–60.

79 It should also be recalled that the Definition of Aggression is about state authorship of aggression and not about responsibility.

80 de Frouville, supra note 24, at 270–1.

81 Simma et al., supra note 73, at 1417.

82 Becker, T., Terrorism and the State: Rethinking the Rules of State Responsibility, (2006) at 176–85.

83 Nicaragua Case, supra note 22, para. 115.

84 Ibid., paras. 195, 226–31. The ILC in a previous iteration seemed to adopt a lower threshold than the one advocated by the Court resembling the overall control criterion, YBILC (Vol II) 1975, at 80.

85 Nicaragua Case, supra note 22, Dissenting Opinion of Judge Sir Robert Jennings, 543–4; Ibid., Dissenting Opinion of Judge Schwebel, para. 154 et seq. See also Armed Activities on the Territory of the Congo (Counter-memorial of Uganda) 21 April 2001, para. 359.

86 Armed Activities on the Territory of the Congo, supra note 3, para. 146. See ibid., Dissenting Opinion of Judge ad hoc Kateka, paras. 13–15, 24–34.

87 Legal Consequences of the Construction of a Wall, supra note 18, para. 139.

88 Bethlehem, supra note 49, in particular principle 7.

89 Paust, J.J., ‘Armed Attacks and Imputation: Would a Nuclear Weaponized Iran Trigger Permissible Israeli and U.S. Measures of Self-Defense?’ (2014) 45 Georgetown J of Intl L 411 , at 432--5; Simma et al., supra note 73, at 1418–19.

90 For a similar approach to the aiding and abetting modes of liability in international criminal law see Prosecutor v. Tadić, Appeal Judgement, ICTY-94-1-A, A. Ch., 15 July 1999, 229. Contra Prosecutor v. Charles Ghankay Taylor, Appeal Judgement, SCSL-2003-01-A, 23 September 2013, para. 478.

91 This is also the case in international criminal law. See Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Appeal Judgement, ICTY-02-60-A, A. Ch., 9 May 2007, para. 195; Prosecutor v. Charles Ghankay Taylor, supra note 90, para. 370.

92 Bosnia Genocide Case, supra note 22, Dissenting Opinion of Judge Mahiou, paras. 115–17.

93 Judge Schwebel spoke of cumulative actions constituting substantial involvement. Nicaragua Case, supra note 22, Dissenting Opinion of Judge Schwebel, para. 171.

94 Bosnia Genocide Case, supra note 22, para. 432.

95 Lamberti-Zanardi, supra note 73, at 115; Ruys, supra note 33, at 388–9. Armed Activities on the Territory of the Congo, supra note 3, Separate Opinion of Judge Kooijmans, para. 22.

96 See I. Brownlie in Armed Activities on the Territory of the Congo, Public sitting held on Monday 18 April 2005, CR 2005/7, para. 80.

97 Corten, O. and Klein, P., ‘The Limits of Complicity as a Ground for Responsibility: Lessons Learned from the Corfu Channel Case’, in Bannelier, K. et al. (eds.), The ICJ and the Evolution of International Law (2011), 331–2; Lanovoy, V., ‘Complicity in an Internationally Wrongful Act’, in Nollkaemper, A. and Plakokefalos, I. (eds.), Principles of shared responsibility in international law: an appraisal of the state of the art (2015), 145–8.

98 Bosnia Genocide Case, supra note 22, para. 221.

99 Declaration on Inadmissibility of intervention, UN Doc. A/RES/36/103 (1981), para. 2; Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UN Doc. A/RES/25/2625 (1970).

100 Nicaragua Case, supra note 22, paras. 191, 195, 227–31.

101 Armed Activities on the Territory of the Congo, supra note 3, paras. 147 163–5.

102 The Court did not believe that there was a clear demarcation between these resolutions. For example, it said with regard to the Friendly Relations Declaration that ‘[a]longside certain descriptions which may refer to aggression, this text includes others which refer only to less grave forms of the use of force.’ Nicaragua Case, supra note 22, para. 191.

103 Nicaragua Case, supra note 22, para. 191.

104 Kritsiotis, D., ‘Topographies of force’, in Schmitt, M. and Pejic, J. (eds.), International Law and Armed Conflict: Exploring the Faultlines (2007), 4573 .

105 The African Union Non-Aggression and Common Defence Pact, adopted 1 January 2005, available at http://www.au.int/en/treaties/african-union-non-aggression-and-common-defence-pact. Art. 1(c)(xi): ‘The following shall constitute acts of aggression: (. . .) the encouragement, support, harbouring or provision of any assistance for the commission of terrorist acts and other violent trans-national organized crimes against a Member State’.

106 Ibid., Art. 4.

107 Simma et al., supra note 73, at 1406–9.

108 Alexandrov, S.A., Self-Defense against the Use of Force in International Law (1996) 114 .

109 Simma et al., supra note 73, at 1418; Hmoud, supra note 34, at 578.

110 Crawford, The International Law Commission's Articles on State Responsibility, supra note 15, Art. 21 commentary, 166, para. 1 and 2. Also J. Crawford, Second Report on State responsibility, UN Doc. A/CN.4/498, 1999, para. 296.

111 YBILC (Vol. II, part I) 1971 214 ff; YBILC (Vol. II, part II) 1973 179 ff; YBILC (Vol. II, part II) 1980 at 52–61; YBILC (Vol. I, part I) 1980, at 13–70.

112 YBILC (Vol. II, part II), 1980, 54, para. 88. Contra A. Ushakov in YBILC (Vol. I) 1980, 190, paras. 16–17. See also Nicaragua Case, supra note 22, paras 74, 193, 195, 211.

113 YBILC (Vol. I), 1980, 184, para. 3. Contra Schwebel YBILC (Vol. 1), 1980, 192, para. 5.

114 Thouvenin, J.M., ‘Self-defence’, in Crawford, J. et al. (eds.), The Law of International Responsibility (2010) 461 ; Paddeu, F.I., ‘Self-defence as a Circumstance Precluding Wrongfulness: Understanding Article 21 of the Articles on State Responsibility’ (2015) BYIL 1 ; Christakis, T. and Bannelier, K., ‘La legitime defense a-t-elle sa place dans un code sur la responsabilite´ internationale?’, in Constantinides, A. and Zaikos, N. (eds.), The Diversity of International Law: Essays in Honour of Professor Kalliopi K Koufa (2009) 519 ; Christakis, T. and Bannelier, K., ‘La légitime défense en tant que circonstance excluant l'illicéité’, in Kherad, R. (ed.), Légitimes défenses (2007), 233 ; Christakis, T., ‘Les «circonstances excluant l'illicéité»: une illusion optique?’ in Corten, O. et al. (eds.), Droit du pouvoir, pouvoir du droit: mélanges offerts à Jean Salmon (2007) 223 .

115 Art. 21 ASR commentary para 2. It does not, however, cover obligations of ‘total restraint’. Art. 21 Commentary, para. 3.

116 J. Crawford, Second Report on State responsibility, UN Doc. A/CN.4/498, 1999, para. 297, 299.

117 Arts. 61 and 62, 1980 Vienna Convention on the Law of Treaties, 1155 UNTS 331. Contra Christakis and Bannelier, ‘Légitime défense’, supra note 114, at 253; Christakis and Bannelier, ‘La légitime défense a-t-elle sa place’, supra note 114, at 528.

118 Arts. 49–54 ASR

119 Corfu Channel Case, supra note 58, at 35; Nicaragua Case, supra note 22, para. 205.

120 Christakis and Bannelier, ‘Legitime defense’, supra note 114, at 253; also in Christakis and Bannelier, ‘La legitime defense a-t-elle sa place’, supra note 114, at 528.

121 Oil Platforms, Preliminary Objections, para. 21.

122 Thouvenin, supra note 114, 464.

123 ASR Commentary to Art. 21, para. 5.

124 Regarding the British exclusion zone around the Falklands see (1982) 53 BYIL 540. Michaelsen, C., ‘Maritime Exclusion Zones in Times of Armed Conflict at Sea: Legal Controversies Still Unresolved’ (2003) 8 Journal of Conflict and Security Law 363 , at 388. Remarks by Greenwood (1988) 82 Am. Soc'y Int'l L. Proc. 158, at 158–61.

125 Guilfoyle, D., ‘The Proliferation Security Initiative: Interdicting Vessels in International Waters to Prevent the Spread of Weapons of Mass Destruction?’ (2006) 29 Melbourne University Law Review 733 .

126 Nicaragua Case, supra note 22, para. 231. Travalio, G., ‘Terrorism, International Law, and the Use of Military Force’ (2000) 18 Wisconsin International Journal of Law 166 . For intent as component of Art. 2(4) see Corten, O., The Law Against War (2010), 7692 .

127 Nicaragua Case, supra note 22, para. 205.

128 For example, with regard to the 1998 US action against al-Queda in Sudan and Afghanistan see UN Doc. S/1998/780; with regard to the 2006 Israeli action in Lebanon see UN Doc. S/PV.5489, 6.

129 Memorandum to the Foreign Affairs Select Committee, supra note 8, at 9.

130 Identical letters dated 12 July 2006 from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2006/515 (2006).

131 See Letter Dated 27 May 1982 from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General, UN Doc. S/15132.

132 UN Doc. S/PV.2611 (1985), paras. 65–7.

133 (2007) 53 Keesing's 48316, 48427.

134 Letter Dated 16 October 1991 from the Permanent Representative of Iraq to the United Nations Addressed to the Secretary-General, UN Doc. S/23152 (1991).

135 Letter dated 3 March 2008 from the Chargé d'affaires a.i. of the Permanent Mission of Ecuador to the United Nations addressed to the President of the Security Council, UN Doc. S/2008/146 (2008).

136 OAS, ‘Convocation of the meeting of consultation of ministers of foreign affairs and appointment of a commission’, 5 March 2008, Doc. OEA/Ser.G, CP.RES.930 (1632/08).

137 O. Bowcott, ‘US drone strikes in Pakistan 'carried out without government's consent', The Guardian, 15 March 2013, available at www.theguardian.com/world/2013/mar/15/us-drone-strikes-pakistan. Ruys, supra note 33, at 472.

138 Letter dated 21 august 1998 from the Charge d'affaires a.i. of the Permanent Mission of Kuwait to the United Nations addressed to the President of the Security Council, UN Doc. S/1998/78921, (1998).

139 Art. 21 commentary, para 6.

140 For example, with regard to the US action in Sudan and Afghanistan, see Letter dated 20 August 1998 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, UN Doc. S/1998/780 (1998).

141 Dinstein, supra note 49, at 275–7; paras. 728–33; Tams, supra note 49, at 373; Wedgwood, R., ‘Responding to Terrorism: The Strikes against Bin Laden’ (1999) 24 Yale J Intl L 359 ; Chatham Principles, Principle C and E.

142 It is interesting to note that with regard to certain coalition actions the government of Syria declared that they constitute ‘blatant aggression’. Identical letters dated 7 December 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2015/933 (2015). In subsequent communications it just listed the coalition actions without qualifying them. See Identical letters dated 10 December 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2015/950 (2015)

143 Hart, H.L.A., ‘Legal Responsibility and Excuses’ in Corrado, M.L. (ed.), Justification and Excuse in Criminal Law (1994), 31 ; Lowe, V., ‘Precluding Wrongfulness or Responsibility: A Plea for Excuses’ (1999) 10 EJIL 405 ; Christakis, T., ‘Necessité n'a pas de loi? La necessité en droit international’, La nécessité en droit international, Société Française de droit international, (2007), 11, at 4563 ; Tsagourias, N., ‘Necessity and the Use of Force: A Special Regime ‘ (2010) 41 Netherlands YBIL 11, at 3942 .

144 Crawford, The International Law Commission's Articles on State Responsibility, supra note 15 , at 5–6, 160–2; Crawford, J., Addendum to Second Report on State Responsibility, UN Doc. A.CN.4/498/Add.2, (1999), paras. 214–29; Crawford, J., ‘Revising the Draft Articles on State Responsibility’, (1999), 10 EJIL 435, at 443–4.

145 Franck, T.M., Recourse to Force, (2002) 190–1.

146 Art. 27 ASR.

147 For example, with regard to a previous incident, Iraq condemned the violation of its sovereignty following a Turkish self-defence operation against PKK and declared that it will demand compensation for the damage caused by these Turkish breaches and violations of Iraq's territory and airspace and for the human suffering inflicted on Iraqi citizens’. Identical Letters Dated 14 June 1997 from the Permanent Representative of Iraq to the United Nations Addressed to the Secretary-General and to the President of the Security Council, UN Doc. S/1997/461 (1997).

* Professor of International Law, University of Sheffield [].

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Leiden Journal of International Law
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