Can Non-State Actors Mount an Armed Attack?

Oxford Handbook on the Use of Force, M Weller, ed., OUP (forthcoming)

Kimberley N. Trapp

I. INTRODUCTION

Article 2(4) of the United Nations (‘UN’) Charter1 prohibits the use of force between states,
but that prohibition does not “impair the inherent right of individual or collective self-defence
if an armed attack occurs against a Member of the United Nations”.2 In its Charter
incarnation, the prohibition of the use of force is situated in a strictly inter-state context, and
does not speak to the phenomenon of uses of force by Non-State Actors (‘NSAs’). The
question examined in this Chapter is whether the exception to that prohibition – the right to
use force in self-defence – is nevertheless responsive to the war-making capacity of NSAs or
whether it is limited to a snapshot of the right as it may have been conceptualised in the
immediate aftermath of a global conflict between states. Otherwise put, is the definition of
‘armed attack’ in Article 51 of the UN Charter (and related customary international law)
conditioned on the attacker being a state?3

On a cursory examination, the logic of the UN Charter might suggest that an armed attack to
which states can respond with defensive force in reliance on Article 51 must be attributable to
a state. This is because Article 2(4) of the UN Charter prohibits the threat or use of force
against the territorial integrity or political independence of any state. Using defensive force
against the base of operations of NSAs within a foreign host state’s territory, even if that
defensive force only targets the NSAs who have launched an attack, still amounts to a

1
United Nations Charter, 26 June 1945, 1 UNTS XVI [hereinafter ‘UN Charter’].
2
Emphasis added. Article 51, UN Charter.
3
This Chapter only addresses the definition of ‘armed attack’ and the conditions for the applicability of Article
51 of the UN Charter in terms of the identity of the attacker. Further elements of the definition of ‘armed
attack’, including whether the use of force is of sufficient gravity to amount to an armed attack within the
meaning of Article 51 of the UN Charter, are addressed in Chapters 28 & 30. See also Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment.
[1986] ICJ Rep. 14, para 195; Oil Platforms (Iran v. US), Judgment, [2003] ICJ Reports 161, para 51.

Electronic copy available at: http://ssrn.com/abstract=2407477

violation of the host state’s territorial integrity. If Article 51 is to be a true exception to the
prohibition on the use of force as set forth in Article 2(4) (and a circumstance precluding
wrongfulness with respect thereto4), it should respond in some way to the violation of the
host state’s territorial integrity. The legal mechanism which has traditionally been relied on
to preserve an inter-state reading of Article 51, yet accommodate the need to respond to
attacks by NSAs, is that of attribution. As will be examined in Section II below, attribution is
certainly a sufficient condition (in ratione personae terms) for the applicability of Article 51
of the UN Charter.

The difficulty, however, with an exclusively attribution-based definition of ‘armed attack’ is

that it fails to account for recent uses of defensive force in response to attacks carried out by
NSAs (which were not attributable to the host state on the basis of Article 3(g) of the UN
Definition of Aggression5 or the ILC Articles on State Responsibility) that were widely
accepted as legitimate by the international community. In addition, a definition of ‘armed
attack’ that is limited to attributable force fails to respond to the security concerns of states
which may be the victim of un-attributable armed attacks. Section III below explores the
extent to which attribution is a necessary element of the right to respond to armed attacks by
NSAs with defensive force in foreign territory through an examination of (i) the language of
the UN Charter (and the travaux préparatoires); (ii) the jurisprudence of the International
Court of Justice (‘ICJ’ or the ‘Court’); and (iii) state practice. Section III further considers
whether there is an alternative framework (to that of attribution) available that preserves an
inter-state reading of Article 51, consistent with the logic of the UN Charter, but which
accommodates the security needs of states to defend themselves against armed attacks by
NSAs.

4
See Article 21, Commentary to Part Two, Chapter I, Draft Articles on Responsibility of States for
Internationally Wrongful Acts, with Commentaries, in Report of the International Law Commission on the work
of its fifty-third session, UN Doc. A/56/10 (2001), 31 [hereinafter ‘ILC Articles on State Responsibility’].
5
UN Definition of Aggression, UNGA Resolution 3314 (1974), Annex.

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 II. AGGRESSION AND ATTRIBUTABLE ATTACKS BY NON-STATE ACTORS

While the use of armed force by NSAs has been the subject of increasing (perhaps
overwhelming) academic attention, it is not an entirely modern phenomenon. The capacity
and willingness of states to wage war by proxy, through reliance on fighters associated with,
but outside the formal structures of the state, has long been a source of concern to the
international community.6 Such ‘indirect’ use of force was addressed extensively during
negotiation of the UN Definition of Aggression, finally adopted by the General Assembly in
1974.7 The Special Committee on the Question of Defining Aggression spent much time
debating whether uses of force by NSAs, with which the state had some involvement, should
be included in the definition of aggression.8 It was generally agreed that state involvement in
the activities of NSAs would amount to a breach of the peace or an illegal intervention in the
domestic affairs of another state.9 Western states, however, insisted that the “organization or
instigation of or assistance or participation in” attacks by NSAs should figure in the definition
of aggression.10 The Soviet Union preferred to distinguish between aggression and indirect
aggression,11 while members of the Non-Aligned Movement (‘NAM’) raised objections to
the concept of indirect aggression altogether.12

Representatives of NAM states were pre-occupied with the relationship between the
definition of aggression and the definition of ‘armed attack’ under Article 51 of the UN
Charter.13 In particular, NAM states were concerned that a failure to limit the definition of
aggression to direct state action raised the possibility of powerful states disingenuously

6
See, for example, Czechoslovakia’s and the Philippine’s observations on the Dumbarton Oaks proposals, both
of which suggest that ‘aggression’ should be defined (for the purposes of triggering the Security Council’s
powers) to include supporting armed bands. Doc. 2, G/14(b), May 1, 1945, United Nations Conference on
International Organization Documents (‘UNCIO’), Vol. III, 469 (Czechoslovakia); Doc. 2, G/14(k), May 5,
1945, UNCIO, Vol. III, 538 (the Philippines).
7
UN Definition of Aggression (n. 5).
8
See Report of the Special Committee on the Question of Defining Aggression, UN Doc. A/8019 (1970), paras 26-
30.
9
Id., para 127.
10
See Report of the Special Committee on the Question of Defining Aggression, UN Doc. A/8719 (1972), Appendix
B, Section A.
11
See UN Doc. A/8019 (1970) (n.8), para IV.B (7).
12
See Reports of the Special Committee on the Question of Defining Aggression, UN Doc. A/7620 (1969),
paras 26-29, 62, and 69-72; UN Doc. A/8019 (1970), Annex I, para 7; UN Doc. A/8419 (1971), paras 27-28;
UN Doc. A/8719 (1972), Section C.
13
Ibid.

3
accusing weaker states of acquiescing in or supporting armed bands operating from their
territory to justify an aggressive use of force (under the guise of self-defence) against that
weaker state.14 As a result, the proposed definition of aggression supported by NAM
members expressly excluded the right to use force in self-defence, in reliance on Article 51 of
the UN Charter, in response to “subversive and/or terrorist acts by irregular, volunteer or
armed bands organized or supported by another State […].”15 In general, Western states
rejected NAM’s treatment of ‘aggression’ and ‘armed attack’ as co-extensive,16 did not
accept as a matter of principle that defensive force in reliance on Article 51 could not be used
in response to armed attacks by armed bands,17 and argued that failing to include indirect
aggression in the definition would encourage states to engage in wars by proxy, through
active or passive support of NSAs.18

The compromise between these positions, which allowed the UN Definition of Aggression to
be adopted by consensus, operated on several fronts. First, the definition was adopted for the
purposes of guiding the Security Council in the exercise of its powers under Article 39 of the
UN Charter19 and was independent of any agreement on the definition of ‘armed attack’
under Article 51. Second, in respect of indirect aggression, the position seems to have been
to accept that acts of aggression could be carried out by NSAs, but to require their
attributability. Article 1 of the UN Definition of Aggression defines aggression as “the use of
armed force by a State against the sovereignty, territorial integrity or political independence
of another State […].”20 The use of armed force, however, need not be carried out by a state’s
military forces: Article 3(g) of the UN Definition of Aggression provides that “sending by or

14
See UN Doc. A/7620 (1969) (n. 12), para 127.
15
Draft proposal submitted by Colombia, Cyprus, Ecuador, Ghana, Guyana, Haiti, Iran, Madagascar, Mexico,
Spain, Uganda, Uruguay and Yugolsavia, UN Doc. A/AC.134/L.16 and Add.1 and 2, para 7, in Report of the
Special Committee on the Question of Defining Aggression, UN Doc. A/9019 (1973), 9.
16
See Special Committee on the Question of Defining Aggression, Third Session, Vol. II, UN Doc.
A/AC.134/SR.67 (19 October 1970), 6 (UK); UN Doc. A/8019 (1970) (n. 8), para 69,
17
See e.g. UN Doc. A/AC.134/SR.67 (n. 16), 106-7 (UK), 7 (Japan). See further, UN Doc. A/8019 (1970) (n.
8), paras 27 & 128. See further Derek Bowett, Self-Defence in International Law (Manchester University Press,
1958), 256–260 and Chapter 24 for a discussion of the concepts of ‘aggression’ and ‘armed attack’.
18
UN Doc. A/7620 (1969) (n. 12), para 128. See also Benjamin Ferencz, ‘A Proposed Definition of Aggression: By
Compromise and Consensus’, 22 International and Comparative Law Quarterly (1973) 407, 419-421, for a summary
of the debate.
19
See Special Committee on the Question of Defining Aggression, Seventh Session, UN Doc.
A/AC.134/SR.110-113 (18 July 1974), 39 (UK).
20
Emphasis added. Art. 1, UN Definition of Aggression (n.5). See Julius Stone, ‘Hopes and Loopholes in the 1974
Definition of Aggression’, 71 American Journal of International Law (1977) 224, 232.

4
on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts
[amounting to aggression], or its substantial involvement therein” also amounts to
aggression.21 Article 3 is intended to provide a non-exhaustive list of acts that amount to
aggression within the meaning of Article 1. As such, the “sending by or on behalf of a State
of armed bands […], or [...] substantial involvement therein” in paragraph (g) must be
interpreted as a lex specialis threshold for attributing the acts amounting to aggression carried
out by the armed bands to the state sending them,22 thereby maintaining the Article 1
requirement that an act of aggression be a “use of armed force by a State”.23 Indeed,
proposals to minimise the level of state involvement required for NSA force to amount to an
act of aggression, including “assistance to”, “knowing acquiescence in”, or “collaboration
in”24, were rejected in favour of the “sending by or on behalf of” and “substantial
involvement therein” standard.25

The ICJ has implicitly linked the concepts of ‘aggression’ and ‘armed attack’ through its
reliance on the UN Definition of Aggression to determine the legitimacy of a use of force in
self-defence.26 At a minimum, the UN Definition of Aggression recognises that acts of
aggression can be carried out by NSAs (if attributable to a state), and the ICJ has consistently
treated the Article 3(g) standard of ‘sending by or on behalf of’ as a basis for attributing those
acts to states when determining the scope of the Article 51 right to use force in self-defence.27
As discussed below, however, the circumstances of those cases do not suggest that the
definition of ‘armed attack’ is subject to all the same conditions as the definition of
‘aggression’. Nor should they, given that states did not accept that the concepts of
21
Art. 3(g), UN Definition of Aggression (n. 5).
22
“Sending by or on behalf of a State” is not a basis of attribution specifically set forth in the ILC Articles on State
Responsibility (n. 4), and therefore can be regarded as a lex specialis basis of attribution, although it closely tracks the
attribution threshold in Article 8 of the ILC Articles.
23
Emphasis added. Art. 1, UN Definition of Aggression (n. 5).
24
See UN Doc. A/9019 (1973) (n. 15).
25
In keeping with this negotiating history, the Court has not accepted assistance to or collaboration with NSAs
as a basis for attributing their armed attacks to a state, focusing instead on the “sending by or on behalf of”
element of Article 3(g). Nicaragua (Nicaragua v. US), n. 3, para 195. Indeed, in its Armed Activities on the
Territory of the Congo (Democratic Republic of the Congo v. Uganda) Judgment, n. 27, the Court did not even
mention “substantial involvement”, focusing entirely on the “sending by or on behalf of” standard. The
resulting interpretation of Article 3(g) is that “substantial involvement” qualifies “sending by or on behalf of”
and, having been interpreted restrictively by the Court, does not admit very much less than actual sending.
26
See infra n. 38-51 and accompanying text.
27
See Nicaragua (Nicaragua v. US), n. 3, para 195; Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), Judgment, [2007] ICJ Reports 43, para 146, each as discussed in notes 42,
49-50 and accompanying text below.

5
‘aggression’ and ‘armed attack’ are co-extensive in their negotiation of the UN Definition of
Aggression and left the definition of ‘armed attack’ to its Charter and customary international
law development.

III. NON-ATTRIBUTABLE ATTACKS BY NON-STATE ACTORS

The fact that the UN Definition of Aggression restricts acts of aggression by NSAs to
attributable force does not preclude the possibility that armed attacks might be un-attributable
– although it does make clear that attribution is at least a sufficient condition for the
applicability of Article 51 of the UN Charter (in ratione personae terms). The question
remains whether it is a necessary one.

i) ARTICLE 51 OF THE UN CHARTER AND THE TRAVAUX PRÉPARATOIRES

While Article 2(4) is clearly the progeny of its World War parents, prohibiting inter-state
uses of force, there is nothing in the language of Article 51 which restricts ‘armed attacks’ to
attacks carried out by or on behalf of states.28 Nor does the negotiating history of the UN
Charter suggest that such a restriction should be read into Article 51. The initial Dumbarton
Oaks proposals contained no reference to self-defence29 – it is only in San Francisco that
states proposed to expressly include reference to a right of self-defence in the Charter. These
proposals were concerned with the possibility of an ineffective Security Council and were
principally focused on the interim rights and responsibilities of regional security

28
See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, [2004] ICJ Reports 136 [hereinafter Palestinian Wall Advisory Opinion], Separate Opinion of Judge
Higgins, para 33, questioning the ICJ’s having required that armed attacks be attributed to a state in its
Nicaragua decision, given that there is nothing in the language of the Charter itself that restricts ‘armed attacks’
to uses of force by a state.
29
See ‘Proposals for the Establishment of a General International Organization’, The Department of State
Bulletin, Vol. XI, No. 375 (October 1, 1944), 368-374. There is nevertheless some suggestion in US materials
relating to the United Nations Conference that some Dumbarton Oaks delegations had considered the right to
use force in self-defence to be implicit in the proposed collective security framework. See e.g. Foreign
Relations of the United States, Diplomatic Papers (1945), Vol. I, 776, 781.

6
organisations (for example, under the Act of Chapultepec30). As a result, the right of self-
deference was addressed in the US Diplomatic Papers under the headings “Regional
Arrangements” or the “Regional Problem”.31

Some initial proposals regarding the right of self-defence referred to “an attack by any State”
against a Member state32 – suggesting that attribution was at least implicitly contemplated by
sponsoring states. Other proposals, however, were without regard to the source of the attack
which triggered the right of self-defence.33 In any event, discussions in regard to these
proposals, concentrated as they were on the continued availability of regional security
arrangements, never focused on the source of the attack (state or non-state). Indeed,
reference to an attack “by any State” was dropped from later proposals. The two proposals
which formed the basis of the final text of Article 51 each conditioned the right of self-
defence on an armed attack (without specifying the source of any such attack) and the
Security Council’s inaction (whether characterising that inaction as a ‘failure’ or not).34 The

30
The Act of Chapultepec was a declaration of reciprocal assistance and American solidarity, adopted at the
Inter-American Conference on War and Peace in 1945 (The Department of State Bulletin, Vol. XII, No. 297 (4
March 1945), 339) and formalised in the Inter-American Treaty of Reciprocal Assistance (21 UNTS 324 (9
February, 1947)).
31
See e.g. Foreign Relations of the United States, Diplomatic Papers (1945), Vol. I, 662-4; 674; 719.
32
Emphasis added. Foreign Relations of the United States, Diplomatic Papers (1945), Vol. I, 659. See also
ibid., 674. A separate (and informal) US proposal responding to Latin American concerns (and expressly
mentioning the Act of Chapultepec) relied on “aggression” as the trigger for the right of self-defence: “Should
the Security Council not succeed in preventing aggression, and should aggression occur by any state against any
member state, such member state possesses the inherent right to take necessary measures for self-defence”.
Emphasis added. Foreign Relations of the United States, Diplomatic Papers (1945), Vol. I, 685-86; 691.
Turkey also proposed that “it would be useful to insert in the Charter a provision justifying legitimate defence
against a surprise attack by another state”. Emphasis added. Doc. 2, G/14 (e), May 1, 1945, UNCIO Vol. III,
483.
33
A UK proposal relied on “a breach of the peace” as the trigger for the right of self-defence (Foreign Relations
of the United States, Diplomatic Papers (1945), Vol. I, 699), while a French proposal was without reference to
any trigger (other than Security Council inaction). The French proposal had member states reserving a “right to
act as they may consider necessary in the interest of peace, right and justice” in the event of Security Council
deadlock. Doc. 2, G/7(o), March 21, 1945, UNCIO Vol. III, 385 (as discussed in Foreign Relations of the
United States, Diplomatic Papers (1945), Vol. I, 691, 698).
34
The proposals were (i) “[n]othing in this Charter impairs the inherent right of self-defence, either individual or
collective, in the event that the Security Council has failed to maintain international peace and security and an
armed attack against a member state has occurred” (Foreign Relations of the United States, Diplomatic Papers
(1945), Vol. I, 705 (UK/US)); and (ii) “[n]othing in this Charter impairs the inherent right of self-defence,
either individual or collective, if prior to undertaking the measures for the maintenance of international peace
and security by the Security Council an armed attack against a member state occurs.” (Id., 813 (USSR)). The
second proposal was largely in keeping with the UK/US draft, but responded to the view that it would be better
not to mention the possibility of Security Council failure (Id., 713, 836). See also the US’s formal proposal on
self-defence, substantially in line with Article 51 as adopted. Doc. 510 G/62, May 23, 1945, UNCIO Vol. III,
635.

7
move from an “attack by any State” to “armed attack” (without reference to its source) was
not the subject of minuted discussion.35 While deletion of the words “by any State” might be
interpreted as supporting the argument that attribution is not a necessary condition of reliance
on Article 51, it might also be the case that “by any State” was considered implicit. Without
any discussion of the change in language (and whether the change was intended to convey
meaning) – the travaux préparatoires are at best ambiguous on this issue. And given that
ambiguity, there is no interpretive basis for augmenting the language of Article 51 by reading
in the words “by any State” following “armed attack”.

ii) THE ICJ’S JURISPRUDENCE

The ICJ’s decisions in Nicaragua, Palestinian Wall, and DRC v Uganda might be interpreted
as limiting ‘armed attacks’ to uses of force by or attributable to a state.36 There is, however,
an alternative interpretation of the Court’s decisions, informed by judicial economy, which
does not condition the right to use defensive force in reliance on Article 51 of the UN Charter
on the attributability of an armed attack. Such an interpretation does not treat the Court’s
pronouncements as generally applicable statements of law, but rather as determinations made
in reference to (and constrained by) very particular factual contexts and the submissions of
the parties – mindful of and limited by the facts relating to the alleged armed attacks and
responsive uses of defensive force addressed by the Court in its decisions.

35
Post-vote comments on the provision as adopted unanimously by the Fourth Subcommittee were principally
regarding its consistency with regional security arrangements. See UNCIO, Vol. XII (Commission III; Security
Council), 680-81 (statement by Colombia with which South American states associated themselves).
36
Arguing that attribution is a necessary element of ‘armed attack’, see e.g. Antonio Cassese, ‘The International
Community’s “Legal” Response to Terrorism’, 38 International and Comparative Law Quarterly (1989) 589,
596–99 (requiring attributability under the law of State Responsibility, but, in line with the dissents in
Nicaragua (Nicaragua v. US), describing state support and acquiescence in terrorism as a ‘grey’ area in the law
that might form the basis of attribution); Pierluigi Lamberti Zanardi, ‘Indirect Military Aggression’, in Antonio
Cassese ed., The Current Legal Regulation of the Use of Force (Martinus Nijhoff Publishers, 1986) 111, 112-
16; Luigi Condorelli, ‘Les attentats du 11 septembre et leur suites: où va le droit international?’, 105 Revue
Générale de Droit International Public (2001) 829, 838; Olivier Corten, ‘Opération “liberté immutable”: Une
éxtension abusive du concept de légitime defence’, 106 Revue Générale de Droit International Public (2002)
51, 55. But see e.g. Thomas Franck, ‘Terrorism and the Right of Self-Defence’, 95 American Journal of
International Law (2000) 839, 840; Sean D. Murphy, ‘Terrorism and the Concept of “Armed Attack” in Article
51 of the UN Charter’, 43 Harvard Journal of International Law (2002) 41, 50; Christopher Greenwood, ‘War,
Terrorism and International Law’, 56 Current Legal Problems (2003) 505, 419-421; Carsten Stahn, ‘Terrorist
Acts as “Armed Attack”: The Right to Self-Defence, Article 51(1/2) of the UN Charter, and International
Terrorism’, 27 Fletcher Forum of World Affairs (2003) 35, 42.

8
A majority of the ICJ has consistently held that uses of defensive force against the state from
whose territory NSAs operate, in response to an armed attack by those NSAs, would only be
a legitimate exercise of rights under Article 51 of the UN Charter if the armed attack was
attributable to the state in whose territory (and against which) defensive force was used. To
situate these judgments within their proper factual context, two separate forms of the use of
force in self-defence, in response to armed attacks by NSAs, must be distinguished. The first
involves a use of force which only targets the NSAs and their bases of operation in the
foreign (host) state’s territory. The second is where the use of force also, or perhaps only,
targets the foreign host state from whose territory the NSAs operate. The fact that the ICJ has
required armed attacks launched by non-state actors to be attributable to the state from whose
territory they were supported or operated could be understood as a direct consequence of the
fact that, in each contentious case to come before the ICJ, the host state was the target of
defensive force. The ICJ’s refusal to address the circumstances under which a state has a
right to use force in self-defence against (and only against) non-state actors, however much
lamented in the separate opinions,37 would therefore be justified on the basis of judicial
economy and the facts of each case and should not be read as precluding such uses of
defensive force.

In Nicaragua, the ICJ considered whether American assistance to the Nicaraguan contra
forces38 amounted to a legitimate exercise of the right of collective self-defence. The US
claimed to be acting (primarily) in defence of El Salvador, which was the victim of armed
attacks by non-state actors allegedly supplied with arms through Nicaragua (with the active
support, or at the very least complicity, of the Sandinista Government).39 The contras did not

37
See e.g. Armed Activities on the Territory of the Congo (DRC v. Uganda), n. 27, Separate Opinion of Judge Simma,
para 8; Separate Opinion of Judge Kooijmans, para 25.
38
The ICJ held that the US was responsible for financing, training, and providing logistical support to the contras
(including the supply of weapons and intelligence as to Nicaraguan troop movements). Nicaragua (Nicaragua v.
US), n. 3, paras 100-108.
39
An affidavit attached to the US Counter-Memorial on jurisdiction declared that Nicaragua was providing El
Salvador rebels “with sites in Nicaragua for communications facilities, command and control headquarters,
training and logistics support[, that the ] Government of Nicaragua [was] directly engaged with these armed
groups in planning ongoing military and paramilitary activities conducted in and against El Salvador”, and that
the Nicaraguan Government supplied the rebels with arms through its territory. Nicaragua (Nicaragua v. US),
n. 3, para 128. The Court focused principally on the allegations relating to arms traffic, and held that “it has not
[...] been able to satisfy itself that any continuing flow [of arms] on a significant scale took place after the early
months of 1981”, and that, in any event, it had not been proven that Nicaragua should be held responsible for
any arms traffic. Nicaragua (Nicaragua v. US), n. 3, paras 153-55.

9
use force against the non-state actors attacking El Salvador. Instead, the contras’ main target
was Sandinista troops.40 The ICJ noted that, to defend El Salvador, the US might have
arranged for a strong patrol force along El Salvador’s frontiers, and that “it is difficult to
accept that [the US] should have continued to carry out military and paramilitary activities
against Nicaragua if their only purpose was, as alleged, to serve as a riposte in the exercise of
the right of collective self-defence.”41

Given that the US-supported contras were directly targeting the Nicaraguan Government and
military, the circumstances under which a state could legitimately use force in response to
armed attacks by non-state actors against and only against those non-state actors was not in
issue. And the Court did not decide it. Instead, the Court had to consider the circumstances
under which a state could legitimately respond to armed attacks by non-state actors with a use
of defensive force against the state from whose territory the non-state actors were allegedly
supported. And on this limited question, the Court held that the conditions for a legitimate
use of defensive force were not met because the armed attacks by the NSAs were not
attributable to the state against which defensive force was used (relying on Article 3(g) of the
UN Definition of Aggression as a basis of attribution).42 The Court also held that
Nicaragua’s alleged assistance to NSAs (in the form of provision of weapons and logistical
support) did not in itself amount to an armed attack.43 As a result, the wrongfulness of the
US use of force (through its support of the contras) was not precluded on the basis of Article
51 of the UN Charter.

In the Palestinian Wall Advisory Opinion, Israel submitted a written statement to the Court
addressing questions of jurisdiction and justiciability, but did not participate in the oral phase
of the proceedings. The Court therefore relied on Israel’s justifications of the wall as
submitted to the Secretary General and General Assembly – namely that construction of the

40
There were also numerous reports of attacks on non-combatants (Nicaragua (Nicaragua v. US), n. 3, para113) and
Nicaragua alleged a US-devised strategy for the contras to attack ‘economic targets like electrical plants and storage
facilities’ in Nicaragua (Nicaragua (Nicaragua v. US), n. 3, para 105).
41
Id., para 156. The ICJ’s argument is effectively a commentary on the necessity of the US operation. See
Louis B. Sohn, ‘The International Court of Justice and the Scope of the Right of Self-Defence and the Duty of
Non-Intervention’, in Yoram Dinstein (ed.), International Law at a Time of Perplexity: Essays in Honour of
Shabtai Rosenne (Martinus Nijhoff Publishers, 1989) 869, 874.
42
Nicaragua (Nicaragua v. US), n. 3, para 195.
43
Ibid.

10
wall was consistent with Article 51 of the UN Charter and Security Council Resolutions 1368
(2001) and 1373 (2001) which “recognized the right of States to use force in self-defence
against terrorist attacks”.44 The Court held that “Article 51 of the Charter [...] recognizes the
existence of an inherent right of self-defence in the case of an armed attack by one State
against another State. However Israel does not claim that the attacks against it are imputable
to a foreign State.”45 One interpretation of this statement might be that international law
conditions the right to use force in self-defence on the attributability of an armed attack. But
given that such a condition would be at odds with the Security Council resolutions in regard
to 9/11 which the Court draws on46, and its subsequent decision in DRC v. Uganda (discussed
below), this interpretation is not very convincing. The Court should instead be understood to
be merely re-affirming the very conditions for the applicability of Article 51 of the UN
Charter. Article 51 serves to justify a use of force that would otherwise be prohibited by
Article 2(4) of the UN Charter. As the Court considered the West Bank to be occupied
territory, Israel’s construction of the wall could not engage the Article 2(4) prohibition which
only applies as between sovereign states. As Article 2(4) is inapplicable, Article 51 is
equally inapplicable. The Court’s refusal to genuinely engage with the justification of self-
defence has subjected it to severe criticism,47 but is arguably defensible based on the
occupied status of the Palestinian Territories and the resulting availability of an alternative
legal framework within which to assess Israeli conduct.

In DRC v. Uganda, the ICJ held that the attacks carried out by non-state actors against
Uganda were “non-attributable to the DRC” (on the basis of Article 3(g) of the UN Definition
of Aggression),48 and that the legal and factual circumstances giving rise to a right to use

44
Palestinian Wall Advisory Opinion, n. 28, para 138.
45
Palestinian Wall Advisory Opinion, n. 28, para139.
46
See further Section III (iii) below.
47
See Christian J. Tams, ‘Light Treatment of a Complex Problem: The Law of Self-Defence in the Wall Case’,
16 European Journal of International Law (2005) 965; Sean D. Murphy, ‘Self-Defense and the Israeli Wall
Advisory Opinion: An Ipse Dixit from the ICJ?’, 99 American Journal of International Law (2005) 62. But note
that the ICJ’s opinion has been interpreted as at least implicitly recognising a right to use force in self-defence
against non-state terrorist actors in foreign territory, even though refusing to accept such a right as applicable in
the circumstances based on the occupied status of the territory from which the terrorist attacks emanated. See
Iris Canor, ‘When Jus ad Bellum Meets Jus in Bello: The Occupier’s Right of Self-Defence against Terrorism
Stemming from Occupied Territories’, 19 Leiden Journal of International Law (2006)129, 132.
48
Armed Activities on the Territory of the Congo (DRC v. Uganda), n. 27, para 146. The Court did not elaborate on
the standard of ‘sending of armed bands’ as a basis for attribution because it did not consider there to be “satisfactory

11
defensive force were therefore not satisfied. In its decision, the Court emphasised that
Uganda’s defensive measures were carried out against the DRC,49 particularly noting the fact
that Ugandan military action was directed against towns and villages far removed from the
border region from which anti-Ugandan rebels launched attacks.50 Again, the Court’s
decision reflects the distinction discussed above between defensive force legitimately used
against the state from whose territory non-state actors operate (which – according to the
Court – would require that the armed attacks are attributable to the territorial state on the
basis of Article 3(g) of the UN Definition of Aggression), and defensive force against non-
state actors within the territorial state, while expressly refusing to address the conditions
under which the latter use of force would be legitimate. Indeed, given that Uganda’s
defensive force targeted the DRC, the Court held that it had “no need to respond to the
contentions of the Parties as to whether and under what conditions contemporary
international law provides for a right of self-defence against large-scale attacks by irregular
forces.”51 By leaving the legitimacy of defensive force against NSAs expressly open, the
Court can be understood to be responding to critiques of its Palestinian Wall Advisory
Opinion, confirming that the question was not settled in that decision (or even backtracking
to the extent that it subsequently considered the question to have been wrongly settled). The
statement also highlights the Court’s judicial economy – namely that the Court does not
decide more than it needs to, and should not be understood to have done so.

Taken together, these interpretations of the Court’s decisions suggest that attribution is only a
necessary condition for the applicability of Article 51 of the UN Charter if a use of defensive
force is targeted against the state from whose territory NSAs operate. The Court’s decisions
do not preclude uses of defensive force against (and only against) NSAs in foreign territory,
in response to un-attributable armed attacks carried out by those NSAs.

proof of the involvement in [the attacks by anti-Ugandan rebel forces against Uganda], direct or indirect, of the
Government of the DRC.” Ibid.
49
Armed Activities on the Territory of the Congo (DRC v. Uganda), n. 27, paras 118 & 147.
50
Id., paras 81–6.
51
Armed Activities on the Territory of the Congo (DRC v. Uganda), n. 27, para 147.

12
 iii) STATE PRACTICE

There is room – in the language of the UN Charter, travaux préparatoires, and ICJ’s
jurisprudence – for the right to use defensive force in foreign territory against NSAs who
have launched an un-attributable armed attack. That said, the growing recognition of such a
right has not been entirely linear – not least because translating the declarations and practice
of states into the elements of customary international law is not often a straightforward
exercise. This is particularly the case in the intensely political settings of the General
Assembly and Security Council, where states may adopt legalistic arguments for political
effect.52 In addition, individuals speaking on behalf of states are not necessarily legally
trained (and therefore may not situate their comments within recognised legal frameworks) or
are sometimes too well trained (profiting from the ambiguities of language to keep options
open). These challenges certainly should not prevent the search for opinio juris – but suggest
that any such interpretive exercise needs to proceed carefully and be sensitive to factual
context.

At one end of the spectrum – where relatively clear support for a right to use defensive force
in response to un-attributable armed attacks by NSAs is evident – there is Operating
Enduring Freedom and the 2006 Israeli/Hezbollah conflict. In the case of Operation
Enduring Freedom, the US-led coalition responded to the 9/11 terrorist attacks with force, in
express reliance on Article 51 of the UN Charter.53 The right to do so was recognised in
Security Council Resolutions 1368 (2001) and 1373 (2001) and by the majority of the

52
Consider for instance US statements regarding the Turkish and Iranian rights to use defensive force in Iraqi
territory in response to cross-border armed attacks by the PKK – supporting the Turkish efforts to protect their
border while condemning the Iranian response as without justification whatsoever, and justifying the difference
in treatment on the basis of Iran being an outlaw state. See Tom Ruys, ‘Armed Attack’ and Article 51 of the UN
Charter (Oxford University Press, 2010) 432-3.
53
See e.g. Letter dated 7 October 2001 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; Letter dated 9
October 2001 from the Permanent Representative of Belgium to the United Nations addressed to the Secretary-
General, UN Doc. S/2001/967; Letter dated 24 October 2001 from the Chargé D’Affaires a.i. of the Permanent
Mission of Canada to the United Nations addressed to the President of the Security Council, UN Doc.
S/2001/1005; Letter dated 29 November 2001 from the Permanent Representative of Germany to the United
Nations addressed to The President of the Security Council, UN Doc. S/2001/1127; Letter dated 17 December
2001 from the Permanent Representative of New Zealand to the United Nations addressed to the Secretary-
General, UN Doc. S/2001/1193.

13
international community.54 The armed attacks carried out by Al Qaeda were not attributable
to Afghanistan or its de facto Taleban government,55 but states (and the Security Council)
nevertheless situated the response within the Charter framework, in particular Article 51.
While the use of force against the Taleban (rather than merely against the Al Qaeda source of
the armed attacks) remains controversial and the subject of much debate,56 at the very least
the 9/11 related practice suggests broad acceptance of a right to use force in response to un-
attributable armed attack by NSAs in reliance on Article 51 of the UN Charter.

In July 2006, Israel launched a large-scale military campaign against Hezbollah in Lebanese
territory. The campaign was in response to Hezbollah’s abduction of two Israeli soldiers and
a number of rocket attacks they launched from southern Lebanon into northern Israeli towns.
Not without some ambiguity, Israel claimed to be acting not against the territorial host state,
but primarily against non-state actors57 whose conduct was un-attributable to Lebanon.58 A
majority of Security Council members, as well as the UN Secretary-General, recognised
Israel’s right to defend itself.59 But the scale of Israel’s use of force in Lebanese territory,
particularly as regards the destruction of all three runways at Beirut International Airport60
and the tragic number of civilian deaths,61 meant that all but one of the states recognising
Israel’s right to act in self-defence also characterised Israel’s use of force in July 2006 as

54
See Ruys (n. 52),435-36.
55
See Kimberley N. Trapp, State Responsibility for International Terrorism (Oxford University Press, 2011),
53-4.
56
See Ruys (n. 52), 442-43. For a discussion of the right to use defensive force against terrorist host states, see
Chapter 35.
57
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”. UN Doc. S/PV.5503 (31 July 2006), 4. Israel
also suggested that Lebanon, Iran and Syria were responsible for Hezbollah’s activities, but did not appear to be
suggesting that Hezbollah’s attacks were attributable to any of those states for the purposes of a defensive use of
force. See UN Doc. S/PV.5489 (14 July 2006), 6; 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/206/515 (in which Israel claimed that responsibility for the attacks lay with the Government of
Lebanon but tied that responsibility to the fact that the attacks were launched from Lebanese territory).
58
See Ruys (n. 52), 453-4.
59
See UN Doc. S/PV.5489 (14 July 2006), 9-17; UN Doc. S/PV.5493 (21 July 2006), 17; UN Doc. S/PV.5492 (20
July 2006), 3; UN Doc. S/PV.5498 (30 July 2006), 3.
60
See BBC, Israel Imposes Lebanon Blockade, 13 July 2006, http://news.bbc.co.uk/2/hi/ middle_east/5175160.stm.
61
See BBC, Q&A: Mid-East War Crimes, 21 July 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 infrastructure, http://web.amnesty.org/library/print/ENGMDE180072006.

14
disproportionate or excessive.62 By evaluating the use of defensive force on the basis of its
proportionality – a criterion which limits the legitimate exercise of the right of self-defence –
these states implicitly confirmed Article 51 of the UN Charter as the applicable framework
for assessing the lawfulness of Israel’s response. The logical implication of such an
evaluation is that un-attributable armed attacks by NSAs fall within the scope of Article 51.

At the other end of the spectrum are uses of defensive force which have an impact on
regional peace and security and are broadly condemned on at least that basis – for instance
Israel’s response to the terrorist attack against a Haifa café by Islamic Jihad in 2003.
Following the attack, Israel launched a guided missile attack in Syrian territory, targeting
what it claimed to be Islamic Jihad’s base of operations.63 All but one state appearing before
the Security Council condemned Israel’s response.64 Many states firmly situated their
condemnation of both the terrorist attack in Haifa and the Israeli response within the broader
framework of the Middle East peace process.65 Their expressions of condemnation were
based on the effect both attacks would have on the implementation of the roadmap devised by
the Quartet66, which was released in between the attack in Haifa and Israel’s military
campaign in Syria. Other states, characterising the Israeli response as aggression, did not
address allegations of Syrian complicity in terrorist activities from its territory, but made
statements in support of Syria which suggested they did not accept the factual basis on which
Israel claimed to act in self-defence in Syrian territory.67 None of the delegations making
presentations before the Security Council addressed the legality of defensive force
specifically targeting terrorist bases in foreign territory given an inability to rely on that state
62
UN Doc. S/PV.5489 (14 July 2006), 9 (Argentina), 12 (Japan), 12 (UK), 13–14 (Tanzania considered Israel’s use
of force as disproportionate without expressly characterising Israel’s use of force as in self-defence), 14 (Peru), 15
(Denmark), 16 (Slovakia), 16 (Greece), 17 (France). The US is the only state to have explicitly recognised Israel’s
right to defend itself without characterising Israel’s defensive measures as disproportionate or excessive. The
Secretary General also condemned Israel’s excessive use of force. UN Doc. S/PV5492 (20 July 2006), 3; UN Doc.
S/PV.5498 (30 July 2006), 3.
63
UN Doc. S/PV.4836 (5 October 2003), 5.
64
See UN Doc. S/PV.4836 (5 October 2003). Only the US did not condemn the Israeli attack, and instead
admonished Syria for “harbouring and supporting the groups that perpetrate terrorist acts”. Ibid, 13-14. The
Secretary-General also condemned the Israeli response in Syria, while also condemning the preceding terrorist attack
in Haifa. UN Doc. SG/SM/8918 (2003).
65
UN Doc. S/PV.4836 (5 October 2003), 9 (Spain, China, UK, Russia), 10 (France, Bulgaria), 11 (Chile,
Mexico), 12 (Angola, Guinea), 13 (Cameroon). But see Id., 14 (League of Arab States).
66
In April 2003, the United Nations, European Union, United States and Russia (the ‘Quartet’) presented a
“performance-based roadmap to a permanent two-state solution to the Israeli-Palestinian conflict” to Palestinian
and Israeli leaders. See www.un.org/News/dh/mideast/roadmap122002.pdf.
67
UN Doc. S/PV.4836 (5 October 2003), 15 (Lebanon), 16 (Algeria), 18 (Egypt), 19 (Tunisia), 19-20 (Kuwait),
20 (Saudi Arabia), 21 (Iran), 22 (Bahrain), 23 (Libya, Yemen), 24 (Qatar).

15
to prevent armed attacks planned or launched from its territory. While the expressions of
condemnation before the Security Council have been interpreted as an absence of general
support for a wide right to use force against terrorist training camps in foreign territory, 68 it is
very difficult to extract any such opinio juris from the statements made.

More recently, Colombia conducted military operations against a Colombian Revolutionary

Armed Forces (‘FARC’) training camp in Ecuador, two miles from the Colombian border.69
Colombia claimed to be acting in self-defence, and partly invoked Ecuadorian support for
FARC as justification for its violation of Ecuadorian sovereignty.70 In response, the
Organization of American States adopted a resolution recognising every state’s right to
defend itself, but positioning the right in the context of the principles of sovereignty and non-
intervention. The resolution considered that Colombia’s incursion constituted ‘a violation of
the sovereignty and territorial integrity of Ecuador and of principles of international law’ 71,
for which Colombia issued an apology.72 The swift South American condemnations and
Colombian apology, both of which took place in the broader context of the inter-American
system, highlight the lack of a broad acceptance, on the facts, of Ecuadorian support for
FARC.

In the middle of this spectrum are uses of defensive force in response to un-attributable
armed attacks by NSAs that are supported by some segments of the international community
and condemned by others, or are not the subject of any reaction at all. In such cases, the
precise legal basis for support or condemnation is not clearly articulated (or is not articulated
in legal terms), or the facts on the basis of which a right to use defensive force is claimed are
contested.

For example, in response to the 1998 terrorist attacks on its Embassies in Tanzania and
Kenya, the US attacked terrorist training camps in Afghanistan and a pharmaceutical plant in
Sudan. The US notified the Security Council of its use of force in self-defence. In particular,

68
See Christine Gray, International Law and the Use of Armed Force (3rd edn, Oxford University Press, 2008),
237.
69
Keesing’s Record of World Events, Vol. 54, March 2008, 48456.
70
Keesing’s Record of World Events, Vol. 54, March 2008, 48456.
71
OAS, Convocation of the Meeting of Consultation of Ministers of Foreign Affairs and Appointment of a
Commission, 5 March 2008, CP/RES. 930 (1632/08).
72
Speech of Colombian Ambassador to OAS, 4 March 2008,
<http://www.oas.org/speeches/speech.asp?sCodigo=08-0021>.

16
the US highlighted that its use of force was only directed against installations and training
camps used by the Bin Laden organisation and was “carried out only after repeated efforts to
convince the Government of the Sudan and the Taliban regime in Afghanistan to shut these
terrorist activities down and to cease their cooperation with the Bin Laden organization.”73 In
effect, the American justification for a use of defensive force is based on a right to target non-
state actors in foreign territory where there is an inability to rely on the host states’ counter-
terrorism efforts. The US attack on the pharmaceutical plant in the Sudan was widely
condemned – primarily based on an absence of evidence that it was used for anything other
than civilian purposes.74 There was no similar condemnation of the use of force in
Afghanistan, which was directed solely against Al Qaeda facilities, and not against the
Taliban.75 The failure to condemn should not necessarily be viewed as indicating broad
support for the US military operation in Afghanistan. But given the abundant state practice
of expressly condemning notified uses of defensive force in letters to the Security Council,
the muted reaction (most particularly of the League of Arab States and the Non-Aligned
Movement) to the US operation in Afghanistan is significant and certainly signals the
beginning of the emerging consensus that uses of force specifically targeting non-state
terrorist actors, in response to armed attacks they launch from foreign territory, is a legitimate
exercise of the right of self-defence.

The examples of a claimed right to use defensive force examined above are consistently
articulated in terms of an inability to rely on the host state to prevent its territory from being

73
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.
74
The Sudan, in a letter to the Security Council, denied that the pharmaceutical plant in Khartoum was used for
terrorist purposes. Letter dated 21 August 1998 from the Permanent Representative of The Sudan to the United
Nations addressed to the President of the Security Council, UN Doc. S/1998/786. The League of Arab States and
Non-Aligned Movement condemned the US for its attack on the Sudan. 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/1998/789; Letter dated 24 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/1998/800; Letter dated 21 September 1998 from the Permanent Representative of the Sudan to the United Nations
Addressed to the President of the Security Council, UN Doc. S/1998/879.
75
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 Sean D. Murphy (ed.), ‘Contemporary Practice of the
United States’, 94 American Journal of International Law (2000) 348, 367.

17
used as a base of operations from which NSAs launch armed attacks.76 Where the complicity
or failure to prevent territory from being used as a base of NSA operations was broadly
accepted as fact, states have expressed their support for the right to use defensive force in
response to un-attributable armed attacks by NSAs. This was particularly the case in regard
to Operation Enduring Freedom and the Israel/Hezbollah conflict. Having supported those
uses of defensive force, states should not be understood to be rejecting a right to respond to
un-attributable armed attacks in principle in later cases (for instance in regard to Colombia’s
use of force against FARC training camps in Ecuador) merely because they reject its
invocation in the particular circumstances. But the range of reactions to such invocations
certainly indicates that the parameters of the right to respond to un-attributable attacks by
NSAs are still being worked out in practice.

iv) RECONCILING DEFENSIVE FORCE AGAINST NON-STATE ACTORS AND THE INTER-STATE
PROHIBITION OF ARTICLE 2(4)

Article 51 is one of the UN Charter exceptions to the prohibition on the inter-state use of
force, as set forth in Article 2(4). If Article 51 is to truly excuse, or preclude the
wrongfulness of, a use of force that is otherwise in breach of a state’s territorial integrity,
Article 51 should respond in some way to the inter-state context of Article 2(4). The ICJ has
consistently conditioned the legitimacy of defensive force against the state from which NSAs
operate on the attributability of the armed attacks carried out by those NSAs. The Court has,
however, never ruled out defensive force against (and only against) NSAs operating from
foreign territory in response to un-attributable armed attacks. While state practice suggests
support for the legitimacy of such a right in principle (as discussed above), commentators
continue to gravitate towards attribution as the fuel powering an inter-state reading of Article
51. But, if we understand that attribution is nothing more than a mechanism for ensuring that
Article 51 speaks to the prohibition on the use of force against the territorial integrity or
political independence of another state – an alternative to attribution which accommodates

76
See Kimberley N. Trapp, ‘Back to Basics: Necessity, Proportionality, and the Right of Self-Defence against
Non-State Terrorist Actors’, 56 International and Comparative Law Quarterly (2007) 141, 147-155; Ruys (n.
52), 494-495.

18
recent state practice and is consistent with the logic of the UN Charter emerges. That
alternative is based on the customary international law requirement that defensive force be
necessary.77

If a host state is doing everything possible to prevent its territory from being used as a base of
attacks by non-state actors, then a use of defensive force in that state’s territory (against
NSAs) is simply not necessary. Instead, the matter should be addressed through cooperative
arrangements with the host state. If, however, a state is complicit in its territory being used as
a base of NSA operations (and is therefore unwilling to prevent its territory from being used
as a base of terrorist operations), or is unable to prevent its territory from being so used,78
then a use of defensive force in response to armed attacks by NSAs is indeed necessary, and
the unwillingness or inability accounts for the limited and targeted violation of the host
state’s territorial integrity. A state’s complicity in the activities of NSAs operating from its
territory, which threaten the security of other states, is an internationally wrongful act for
which the complicit state bears responsibility.79 Similarly, states are under an obligation to
co-operate in the prevention of at least terrorist activities from their territory.80 A refusal to
co-operate, in circumstances where the host state is otherwise unable to prevent its territory
from being used as a base of such activities, would equally amount to an internationally
wrongful act for which the host state would bear responsibility.

Host state wrongfulness does not of course, in itself, justify a use of force that is otherwise
inconsistent with Article 2(4) of the UN Charter. A use of defensive force is justified in
virtue of an armed attack by NSAs under the terms of Article 51. But necessity is a condition
for the lawfulness of any such use of defensive force. And necessity is established by virtue

77
For a discussion of ‘necessity’, see Chapter 46.
78
In regard to the Israel/Lebanon 2006 war, states which recognised Israel’s right to defend itself also
underlined the need for Lebanon to extend its exclusive control over all of its territory and to act in prevention
of Hezbollah’s attacks against Israel (UN Doc. S/PV.5489 (14 July 2006), 9-17. See also UN Doc. S/PV.5492
(20 July 2006), 4; UNSC Resolution 1559 (2004), paras 1–3; UNSC Resolution 1583 (2005), paras 3–4; UNSC
Resolution 1655 (2006), paras 3, 6, 8; UNSC Resolution 1680 (2006), preamble; and UNSC Resolution 1701
(2006), para 3). By accepting a right to use defensive force in response to attacks by NSAs, and calling on
Lebanon to control its territory, states in effect recognised that defensive force in foreign territory against NSAs
is sometimes necessary given the host state’s inability (rather than its unwillingness) to prevent its territory
from being used as a base of NSA operations. See further Armed Activities on the Territory of the Congo (DRC
v. Uganda), n. 27, Separate Opinion of Judge Kooijmans, paras 27–31.
79
See Trapp (n. 55), 61.
80
See Trapp (n. 55), Section 3.1.

19
of the host state’s complicity or failure to co-operate – both of which are wrongful. This
element of host state wrongfulness simultaneously meets the conditions for lawful self-
defence and accounts for the breach of the host state’s territorial integrity. Effectively, where
defensive force responds to non-state armed attacks, necessity serves as the bridge between
Article 51 and the inter-state prohibition of the use of force in Article 2(4).

IV. CONCLUSION

The ever increasing military capacity of NSAs calls for a modern assessment of the definition
of ‘armed attack’ and the conditions for lawful self-defence. As early as 1974, when the UN
Definition of Aggression was adopted, states were mindful of the security threats posed by
NSAs and were weary of restricting their right to respond to such threats through overly
heavy reliance on an inter-state paradigm. As a result, states left the definition of ‘armed
attack’ open to customary international law development, and state practice in the 21st
Century suggests that the attributability of armed attacks by NSAs is no longer (if ever it was)
a necessary condition of the right to use force in self-defence. That said, the precise
parameters of the right to respond to an armed attack by NSAs with a use of force in foreign
territory are still being worked out in practice. While states are quick to invoke the
‘unwilling or unable’ doctrine in their justifications of defensive force against attacks by
NSAs, the international community has, quite rightly, refused to accept this ‘ritual incantation
of a magic formula’81 without evidence of host state wrongfulness as a measure of the
necessity of the defensive force. Territorial integrity therefore remains a cornerstone of the
international legal system – with the right to use force in foreign territory in response to an
un-attributable armed attack by NSAs at the fault-line of the Charter’s prohibition of the use
of force in Article 2(4) and recognition of states’ security interests in Article 51.

81
See Gray (n. 68), 119.

20