The use of force in self-defence against terrorist groups is one of the most controversial issues in the field of jus contra bellum today. Particularly since 9/11, several States have supported a broad reading of the right to use force in self-defence, as allowing them to intervene militarily against terrorists whenever and wherever they may be. A consequence of that conception is that any State could be targeted irrespective of whether that State has ‘sent’ the irregular (in this case terrorist) group to carry out a military action or has been ‘substantially involved’ in such an action, to use the terms of Article 3g) of the Definition of Aggression (annexed to GA Res 3314 (XXIX)) considered by the ICJ as reflecting customary international law. However, an even more substantial number of States do not seem to subscribe to this broad reading of the right to self-defence. The Non-Aligned Movement, for example, representing some 120 States, has regularly expressed its clear reluctance to adhere to this view. Thus, in February 2016, in an open debate before the UN Security Council on ‘Respect for the principles and purposes of the Charter of the United Nations as a key element for the maintenance of international peace and security’, the Non-Aligned Movement reaffirmed that ‘consistent with the practice of the UN and international law, as pronounced by the ICJ, Article 51 of the UN Charter is restrictive and should not be re-written or re-interpreted’ (S/PV.7621, 15 February 2016, at 34).
But what about international lawyers? The reaction on their part has been equivocal. Some have supported a broad interpretation of Article 51 of the UN Charter, focusing on the possibility to invoke self-defence against terrorists. Others argue in favour of a more ‘restrictive’ and classical reading of the Charter. Following this second line of reasoning, a plea against the abusive invocation of self-defence as a response to terrorism has been drafted by a group of scholars (available here). The aim of this post is to (i) explain in what context and how this plea was conceived, and (ii) briefly describe its main characteristics.
Context and Origins
The plea originates from two main events. The first was a panel on “The Fight Against ISIL and International Law” held in September 2015 during the ESIL Conference in Oslo. Five scholars participated in the panel: Théodore Christakis (as moderator), Karine Bannelier (‘External Intervention Against ISIS and the Legal Basis of Consent’), Nicholas Tsagourias (‘Self-defence and Non-State Actors’), Vaios Koutroulis (‘The Fight Against ISIS and Jus in Bello Issues’) and myself (‘The ‘Unable or Unwilling’ Theory; Has it Been, and Could it Be, Accepted?’). As the podcasts confirm, the legal basis of the armed intervention in Syria lay at the heart of the debate (the written and updated versions of those presentations have just been published in a special Symposium of the Leiden Journal of International Law (L.J.I.L.)).
A few months later, in April 2016, Philippe Lagrange organised a meeting in Poitiers about “The New Foundations of Recourse to Force (“les nouveaux fondements du recours à la force”). This meeting confirmed the existence of two conflicting trends: on the one hand, those who support an expansive definition of self-defence in the name of the war against terror; on the other, those who criticize this expansive definition not only as being contrary to the current state of positive international law but also as opening Pandora’s box, allowing for more unilateral military interventions around the world.
This persistent division among scholars is often ignored or at least minimized in other fora. In EJIL: Talk! blog posts, for example, it is regularly asserted that the broad conception of self-defence against terrorists is now generally accepted, or no longer challenged. Similarly, in a (particularly stimulating) workshop dedicated to ‘The Future of Restrictivist Scholarship on the Use of Force’ published this year in the L.J.I.L., it seems to be taken for granted that the ‘restrictivists’ ‘are increasingly isolated’ .
In view of the above, it was suggested to colleagues and friends present at the Oslo and/or Poitiers mentioned above that we write a text expressing our reluctance to endorse the expansionist conception of self-defence that seems to have spread across the political and legal landscape. The aim was not to challenge the legality of the war against ISIL as such (actually, several among us supported the merits of a military intervention against ISIL), but rather the legal argument put forward by some States, mainly the US and several European States after the events of 13 November 2015. A first draft, in French, was prepared by me and this was supplemented and in parts substantially amended by my colleagues (Karine Bannelier, Théodore Christakis, François Dubuisson, Nabil Hajjami, Philippe Lagrange, Franck Latty, Vaios Koutroulis and Anne Lagerwall). Once the French version was finalised, it was translated into English and circulated among a number of colleagues for signature. To be honest, the success of the plea exceeded our expectations: after only ten days, the plea had been signed by more than 200 international lawyers from many parts of the world, professors in Argentina, Australia, Austria, Bahrain, Belgium, Brazil, Burundi, Cameroon, Canada, Columbia, Costa Rica, Chile, China, the Democratic Republic of Congo, Cyprus, Finland, France, Germany, Greece, Iran, Israel, Italy, Japan, Kazakhstan, Kuwait, Luxembourg, Mauritania, Netherlands, Portugal, Romania, South Africa, Spain, Switzerland, UK, Uruguay, and USA. One can find among the first scholars who signed the plea many specialists of jus contra bellum, as well as several other well-known international lawyers. This is particularly pleasing as a question as fundamental as the scope of self-defence in contemporary international law is not an issue reserved only to jus contra bellum specialists: every international lawyer can take a position on this topic.
Substantial Characteristics of the Plea
The plea does not deny as such the possibility of using self-defence in the context of the fight against terrorism; it simply recalls that such a resort to force constitutes an exception to the prohibition of the use of force in international relations and consequently must be in conformity with the conditions laid down in the UN Charter and positive international law. On this basis, it sets out two main ideas, both of which could be considered as rather classical and orthodox.
The first is that self-defence must be considered as a last resort, only relevant when other (peaceful or coercive) means are not available: “international law provides for a range of measures to fight terrorism. Priority should be given to these measures before invoking self-defence.” Such measures are: first, peaceful measures such as police and judicial cooperation; second, military measures with the cooperation of the territorial State; third, referring the situation to the Security Council: “aside from cases of emergency leaving no time to seize the UN, it must remain the Security Council’s primary responsibility to decide, coordinate and supervise acts of collective security”; fourth, in case the first three possibilities are not available or have failed, recourse to the unilateral use of force based on self-defence.
The second main point of the plea is to identify the conditions for validly invoking self-defence, once the means described above have been exhausted. In this regard, the text states that:
This may occur either where acts of war perpetrated by a terrorist group can be attributed to the State, or by virtue of a substantial involvement of that State in the actions of such groups. In certain circumstances, such involvement may result from the existence of a direct link between the relevant State and the group. However, the mere fact that, despite its efforts, a State is unable to put an end to terrorist activities on its territory is insufficient to justify bombing that State’s territory without its consent.
With the exception of Article 51 of the UN Charter, the text does not mention any source or reference. This is because the plea intends to put forth a general legal position and is neither a detailed scientific study nor a review of existing case-law and literature. By focusing on the “attribution” and “substantial involvement” criteria, the text nevertheless implicitly refers to Article 3g) of the Definition of Aggression.
Although the text of the plea is open to several interpretations (as is every legal text), it excludes very broad readings of the right to self-defence. For example, it would be difficult —if not impossible— to reconcile the text with the ‘unwilling or unable” test as used by some States and scholars recently.
Finally, it must be repeated that the text does not address the issue of the legality of the war against ISIL as such. The plea states explicitly that the signatories are not “oppos[ed to] the use of force against terrorist groups as a matter of principle.” Indeed, the basic purpose of the plea is rather to contest the legal argument invoked by some States and scholars to justify this military campaign i.e. an extensive view of a right to self-defence that can be exercised against any country even if the government of that country would be ready to consent to a multilateral military operation under the supervision of the Security Council.
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A final word: the purpose of this initiative is not to “prove” that the classical “restrictivist” approach to self-defence necessarily reflects the majority position in contemporary scholarship. However, in view of the current list of signatories of this plea —and whatever the final number and identities of the signatories may be— it is henceforth clear that the broad conception of self-defence that has been proposed by certain scholars during the last 15 years is not “universally” or “overwhelmingly” accepted. States’ representatives, but also every international lawyer, should at least be aware of that.
Thanks to Vaios Koutroulis, Théodore Christakis and Marco Benatar for their valuable help in the finalization of this text.