Waging War against Non-State Actors: The Contemporary Debate on the Prohibition of Force

2020 ◽  
Vol 1 (1) ◽  
Author(s):  
Iman Ahmed
Keyword(s):  
International Law ◽  
Effective Means ◽  
Use Of Force ◽  
Government Officials ◽  
Contemporary Debate ◽  
State Practice ◽  
State Actor ◽  
State Actors ◽  
Legal Understanding ◽  
Failing States

Recent events have triggered scholarship arguing that international law should embrace the widespread state practice of using force against violent non-state actors such as terrorists. The evolution of state practice since 9/11 suggests an alternate interpretation of Article 2(4) and Article 51 of the UN charter, per treaty mechanisms. Specifically, academics and government officials have argued that the threat posed by terrorism necessitates lowering the state responsibility threshold. Doing so would make states hosting terrorists liable for violence undertaken from within their territory, giving aggrieved nations a license to intervene militarily. This essay argues that the traditional legal understanding of Article 2(4) and 51, which prohibit the use of force except in self-defence and then only against state actors, should be upheld, as war is not an effective means of eliminating non-state actor violence. Rather, nations need to address non-state actor violence by focusing on economic and social measures which foster development in failing States, as addressing civilian grievances is the most effective way to combat and deter terrorism.

scholarly journals The Tallinn Manuals and the Making of the International Law on Cyber Operations

2019 ◽  
Vol 13 (1) ◽  
pp. 67-86
Author(s):  
Papawadee Tanodomdej
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Political Activism ◽  
Customary International Law ◽  
State Practice ◽  
The Right ◽  
International Experts

The Tallinn Manuals (the Manuals) attempted to clarify how to apply existing international law to cyber operations. Though the Manuals are non-binding instruments, the Group of International Experts claimed that they reflected the lex lata applicable to cyber operations. However, this claim is questionable due to the dominating role of a few Western states in the drafting process and the linked neglect of the practice of “affected states” in cyber operations. This article examines the quality of the Manuals’ drafting process and the composition and impartiality of the experts involved. It focuses on the issue of the prohibition of the use of force. The aim of this examination is not to discuss whether the Manuals provided the right answer to the question of how international law applies to cyber operations. Rather, they function as a case study of how legal scholarship may affect the making of international law. The article concludes that certain rules in the Manuals are marked by NATO influence and overlook the practice of other states engaged in cyber operations. Therefore, the Manuals disregard the generality of state practice, which should be the decisive factor in the formation of customary international law. As far as “political activism” may be involved, the article argues that the role of legal scholars as assistants to the cognition of international law could be compromised.

Retaliation and Reprisal

2016 ◽  
Author(s):  
Shane Darcy
Keyword(s):  
United Nations ◽  
International Law ◽  
Use Of Force ◽  
State Practice ◽  
The United Nations ◽  
United Nations Charter

This chapter focuses on the evolution of the international law on the use of force as it relates to the concepts of retaliation and reprisal, particularly since the adoption of the United Nations Charter in 1945. After defining the concepts of retaliation and reprisal as understood in international law, the chapter considers whether armed reprisals are contrary to the UN Charter, along with the debates surrounding the UN Security Council’s condemnation of retaliatory actions. It then examines claimed instances of state practice, as well as judicial and scholarly views on the lawfulness of such reprisals. Finally, it discusses arguments calling for the revival of reprisals or retaliation as permitted exceptions to the prohibition on the use of force.

Conference Report – “From Government to Governance? The Growing Impact of Non-State Actors on the International and European Legal System” - 6th ASIL / NVIR / T.M.C. Asser Institute Joint Conference in The Hague, 3 -5 July 2003

2003 ◽  
Vol 4 (8) ◽  
pp. 827-850 ◽  
Author(s):  
Stefan Kirchner
Keyword(s):  
International Law ◽  
International Organizations ◽  
Use Of Force ◽  
Conference Report ◽  
International Terrorism ◽  
Joint Conference ◽  
The Hague ◽  
State Actors ◽  
The U.S

This year's 6th Joint Conference held by the American and Dutch Societies of International Law and organised by the T.M.C. Asser Institute in The Hague focused on the increasing importance of the role of non-state actors in international law and at the same time provided an opportunity for American and European lawyers to address recent differences between the U.S. and Europe, e.g. on the use of force in Iraq. Consequently one of the three major issues of the conference was the response to international terrorism, while other issues included the role of international organizations as well as transnational corporations in international law.

Extraterritorial Use of Force against Non-State Actors: PS to Hague Academy Lectures

2021 ◽  
Vol 54 (2) ◽  
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Apparent Contradiction ◽  
Territorial Integrity ◽  
The Hague ◽  
State Actors ◽  
Self Defence

In July 2021, the author presented a Special Course for the Hague Academy of International Law Summer Courses on the Extraterritorial Use of Force against Non-State Actors. The course focused on two bases for the extraterritorial use of force against non-state actors, namely self-defence and intervention by invitation. The lectures came to a conclusion that may, at first glance, appear contradictory. With respect to the use of force in self-defence, the lectures adopted a restrictive (non-permissive) approach in which the use of force is not permitted save in narrowly construed exceptions. With respect to intervention by invitation, the lectures adopted a more permissive approach in which the use of force is generally permitted and prohibited only in narrowly construed exceptions. This article serves as post-script (PS), to explain the apparent contradiction. It concludes that the main reason for this apparent contradiction is the application of the fundamental principles of international law—sovereignty, territorial integrity and independence—which are consistent with intervention by invitation but are undermined by self-defence against non-state actors.

Self-Defence in Response to Attacks by Non-state Actors in the Light of Recent State Practice: A Step Forward?

2010 ◽  
Vol 23 (1) ◽  
pp. 183-208 ◽  
Author(s):  
RAPHAËL VAN STEENBERGHE
Keyword(s):  
Use Of Force ◽  
Prima Facie ◽  
Operation Enduring Freedom ◽  
Armed Attack ◽  
The Us ◽  
State Practice ◽  
State Actors ◽  
The Law ◽  
The Right ◽  
Self Defence

AbstractThis article analyses the recent state practice in which the right of self-defence has been invoked in order to justify the use of force in response to attacks by non-state actors. The main purpose of this analysis is to determine whether the law of self-defence has evolved through this practice. It is submitted that the latter confirms the tendency, evidenced by the US operation ‘Enduring Freedom’ in Afghanistan in 2001, towards allowing states to respond in self-defence to private armed attacks, that is, attacks which are committed by non-state actors only. The article also aims to shed some light on other fundamental conditions of the law of self-defence which played a significant role in the legal assessment of the recent state practice. It is argued in this respect that this practice confirms that any armed attack must reach some level of gravity – which may be assessed by accumulating minor uses of force – in order to trigger the right of self-defence, and that proportionality of the action taken in self-defence may be assessed in quantitative terms, but only as a means of making a prima facie judgement about the necessity of this action.

Territorial Integrity Narrowly Interpreted: Reasserting the Classical Inter-State Paradigm of International Law

2011 ◽  
Vol 24 (1) ◽  
pp. 87-94 ◽  
Author(s):  
OLIVIER CORTEN
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Advisory Opinion ◽  
Territorial Integrity ◽  
Declaration Of Independence ◽  
Traditional Conception ◽  
State Actors ◽  
Special Case ◽  
Inter State

AbstractParagraph 80 of the Kosovo AO reflects a very traditional conception of international law. By insisting on the inter-state character of the principle of territorial integrity, the Court refused to challenge the classical argument of the ‘neutrality’ of international law in regard to secession. The Court also refused any reinterpretation of Article 2(4) of the UN Charter. As already stated in the Wall Advisory Opinion, the prohibition of the use of force is only applicable between states. It does not apply between states and non-state actors, whether secessionist or not. Similarly, the Court refused the argument of ‘remedial secession’, at least as far as it would imply a right to violate the principle of territorial integrity of a state by a secessionist group. Indeed, if the latter principle is not applicable in such situations, it logically cannot be violated and there is therefore no right to infringe it. Finally, the Court refused to consider Kosovo as a ‘special case’ or a sui generis situation. According to the Court, this situation must be governed by the traditional rules of general international law. This implies that Kosovo did not violate international law by proclaiming independence. But this also implies that a declaration of independence by a secessionist group inside Kosovo would not be contrary to international law. Moreover, it can be pointed out that if Kosovo is not a state (a hypothesis perfectly compatible with the advisory opinion), then general international law would not preclude Serbia from invoking the argument of ‘legal neutrality’ to support such a secessionist group.

scholarly journals PRINCIPLE OF NON-USE OF FORCE OR THREAT OF FORCE IN INTERNATIONAL RELATIONS.

InterConf ◽  
2021 ◽  
pp. 189-196
Author(s):  
Farrukh Mukhtarov
Keyword(s):  
International Relations ◽  
International Law ◽  
Use Of Force ◽  
Customary Law ◽  
International Treaties ◽  
State Practice

This study explores the pattern of principles of non-use of force or threat of force in international law. This principle is studied from the perspective of international treaties and customary law through the recent state practice. This research underlines the prohibition of the use of force and submits the international mechanism of this principle including peaceful settlements of conflicts. Study provides an estimation of application of this principle.

Rewriting Histories of the Use of Force

2021 ◽  
Author(s):  
Agatha Verdebout
Keyword(s):  
Social Psychology ◽  
Nineteenth Century ◽  
Twentieth Century ◽  
International Law ◽  
Use Of Force ◽  
Historical Sources ◽  
Traditional Account ◽  
Depth Analysis ◽  
State Practice ◽  
History Of

It is commonly taught that the prohibition of the use of force is an achievement of the twentieth century and that beforehand States were free to resort to the arms as they pleased. International law, the story goes, was 'indifferent' to the use of force. 'Reality' as it stems from historical sources, however, appears much more complex. Using tools of history, sociology, anthropology and social psychology, this monograph offers new insights into the history of the prohibition of the use of force in international law. Conducting in-depth analysis of nineteenth century doctrine and State practice, it paves the way for an alternative narrative on the prohibition of force, and seeks to understand the origins of international law's traditional account. In so doing, it also provides a more general reflection on how the discipline writes, rewrites and chooses to remember its own history.

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