The Alleged Prohibition on Intervening in Civil Wars Is Still Alive after the Airstrikes against Islamic State in Iraq: A Response to Dapo Akande and Zachary Vermeer

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In a recent post on ‘The Airstrikes against Islamic State in Iraq’ (hereafter “the post”), Dapo Akande and Zachary Vermeer argue that the legal justifications given by the states intervening in Iraq “seem to count against the existence of [a prohibition on intervening in civil wars] as part of contemporary international law”. The aim of this post is to question such a conclusion. It will deal with three main issues: the alleged generality of those legal justifications (1); their ability to reveal the opinio juris of the intervening states (2); and the situation in Iraq as a “civil war” in the sense of the 1975 resolution of the Institut de Droit International (IDI), which prohibits any intervention in civil wars (3).         

Generality of the legal justifications

Dapo Akande and Zachary Vermeer’s above-mentioned conclusion is based notably on the alleged “generality” of the legal justifications given by the intervening states in Iraq. After positing that Iraq is engaged in a civil war under the 1975 IDI resolution (an assumption I challenge below), they conclude that the “general” justifications offered for intervention imply that states consider that it is always legal under international law to intervene at the request of a government during a civil war. However, a closer look at the legal justifications offered, including those not mentioned in the post, reveals that, when justifying their intervention, all the states expressly referred to the objective of fighting against the Islamic State (ISIL) as the specific purpose of the consent given by the Iraqi authorities for their intervention. In other words, in the Iraqi case, the consent given by Iraq to intervene on its territory was generally considered only in relation to this specific purpose.

In the declaration of the senior US administration official quoted in the post, as in President Obama’s notification to Congress (also and only partially quoted), “[the] actions” that the United States had been invited to take at the request of the Iraqi government were clearly actions against ISIL. More precisely, in Obama’s words, they were the “necessary actions against these terrorists in Iraq and Syria”. With regard to the declaration of France, in particular the speech by the French Minister for Defence before the French Senate, the French Minister clearly stated (after the passage reproduced in the post): “I remind you: we are responding to the request for support of the Iraqi authorities to weaken the terrorist organization Daesh.” (translated from French, emphasis added). Moreover, on 19 September 2014, the French President expressly stated in an official declaration: “Yesterday . . . I announced my decision to respond to the request of the Iraqi authorities and to grant them the support necessary to fight against terrorism.” (translated from French, emphasis added).

Concerning statements of Canada, “the support” to which the Canadian Foreign Minster referred in his declaration quoted in the post consisted of the support to help Iraq to fight against ISIL. This is in line with the text of the resolution adopted by the Canadian House of Commons on the subject, which expressly “acknowledge[s] the request from the government of Iraq for military support against ISIL from members of the international community, including from the Government of Canada” (emphasis added). The same may be said about the notion of “support” used by the Australian Prime Minister in his declaration referred to in the post, which is confirmed by other declarations of the Prime Minister, such as the one made before the UN Security Council on 24 September 2014, in which he stated that “[o]ur combat aircraft and special forces are now in the Middle East preparing to join the international coalition to disrupt and degrade ISIL at the request of the Iraqi Government” (emphasis added). As far as the position of the Dutch government is concerned, no clear statement was actually made on this issue by any member of this government during the discussions before the Parliament. Those discussions mainly concentrated on the question of extending the military operations to Syria. However, the Dutch Foreign Minister expressly statedbefore the Committee for Foreign Affairs that “[t]he legal basis for the Dutch contribution to the fight [against the Islamic State] derives from the consent of the Iraqi authorities to that contribution” (translated from Dutch, emphasis added).

One must admit that parts of the summary of the UK legal position on the Iraqi case seem to be formulated in general terms. Yet, both this document and the motion passed by the House of Commons authorizing UK’s participation in the airstrikes in Iraq also expressly refer to the request by the Iraqi government for the purpose “to defend itself against [the threat] ISIL”. In addition, one must look to legal justifications given by the other states participating in the airstrikes in Iraq, which are not mentioned in the post, such as the justification contained in the resolution adopted by the Belgian House of Representatives on the subject. That resolution expressly refers to “the Iraqi request for assistance – which is enough in international law to justify a military action against ISIL” (translated from French, emphasis added). Such legal justification again clearly links the request of the Iraqi government to the purpose of the requested intervention, i.e. the fight against ISIL.

As a result, the supposed “generality” of the legal justifications given by the intervening states in Iraq may certainly be called into question. These justifications – and more generally the Iraqi case – may hardly be interpreted as evidencing the opinio juris of those states that any intervention requested by the government of a state on its territory is normally legal under international law regardless of the purpose of this intervention. The mere lesson that can be drawn from such justifications is that, in those states’ view, intervention by invitation is clearly legal under international law at least when its purpose is to fight against terrorism – which does not necessarily mean that it is legal only when pursuing such objective. Given that ISIL is unanimously qualified as a terrorist organization and if one considers (contrary to my view – infra 3) that the situation in Iraq amounted to a civil war at the time of the interventions, the Iraqi case could be invoked to support the position upheld by some scholars, such as T. Christakis and K. Bannelier, who argue for an exception to the prohibition on intervening in civil wars when intervention is only directed against universally recognized terrorist groups.

Opinio juris from state declarations

That having been said, one must be cautious when inferring the opinio juris of states from declarations of their political leaders, since one should not always expect that they give detailed and comprehensive legal explanations. One must admit that the two UK documents quoted in the post, i.e. the summary of the UK legal position and the motion passed by the House of Commons to authorize the UK’s participation in the airstrikes on Iraq, must be given particular weight in that respect. However, one may hardly infer the “true” opinio juris of a state on the basis of one declaration made by one of its political leaders, especially when such declaration (like the one made by the Australian Prime Minister, reproduced in the post) is a response given to an interview. Such opinio juris must be sought through a range of declarations. The declarations quoted in the post must therefore be considered alongside other declarations (such as those discussed above) to construct a more precise picture of the states’ opinion. Moreover, among several declarations, priority must be given to some of them and, for example, to those made before international fora, such as the UN Security Council.

The case of Mali clearly evidences the need for such a cautious approach. As the French Minister for Foreign Affairs evoked the right of collective self-defense in a press conference and before the French Senate to justify the intervention of France in Mali, some authors considered that the intervention was legally based on such a right – and that the opinio juris of France was that self-defence could be exercised in reaction to attacks by non-state actors. However, the true opinio juris of France could not be inferred from those declarations. Priority had to be given to a more trustworthy verbal state practice, the letter sent by France to the President of the UN Security Council just after the intervention. In this letter, the argument put forward by France was not collective self-defense but the request made by the Malian authorities to help Mali to repel the terrorist groups from the North of its territory.

More particularly, very strong, clear and abundant statements (rather than only a few declarations or other limited verbal state practice) would have been needed in the Iraqi case to conclude that France and UK had recognized that it was not prohibited under international law to intervene in civil wars, as it is well-known that both states have long espoused a clear policy not to intervene in such situations (here and [1986] BYIL 616, respectively).

The Iraqi situation as a “civil war”

More fundamentally, the foreign interventions in Iraq should not be seen as interventions in a civil war in the sense of the 1975 IDI resolution. As a result, the legal justifications given by the intervening states do not seem to constitute relevant state practice for assessing the existence (or maintenance) of a prohibition on intervening in such situations. This is not so much because, as considered by Dapo Akande and Zachary Vermeer in the last part of their post, the conflict between Iraq and ISIL could plausibly be seen as not of a pure internal nature. This is rather because, even qualified as internal (which seems to be the case at least under international humanitarian law), this conflict does not properly fall within the scope of the notion of civil war under the 1975 IDI resolution.

Indeed, it is clearly apparent from its travaux préparatoires (see e.g. [1973] IDI Yearbook 443-445; 452-454; 468 and 518; [1975] IDI Yearbook 125; 127; 129; 138 and 151) that the general prohibition on interventions in civil wars contained in the resolution mainly resulted from the assumption that such interventions would violate the right of peoples to self-determination. In that sense, the notion of “insurgent movements” whose fighting against the established government is considered as a civil war according to Article 1, 1), a) of the resolution actually refers to movements exercising their right of self-determination and being, therefore, supported by a significant part of the population. The view expressed by M. Dietrich Schindler in his interim report presented at the 1973 IDI session in Rome, which seems to have prevailed over contrary views held by other IDI members, is particularly illustrative in that respect ([1973] IDI Yearbook 468) : “assistance to the established government in case of civil wars … is illegal … when the insurgents, without having received any substantial assistance from abroad, succeed in establishing their control over a significant part of the territory and are supported by a large part of the population” (translated from French, emphasis added). I do not think that ISIL benefits from any wide popular support, most of the Syrian and Iraqi population actually fearing the terrorist organization. It could not be seen as exercising any right of self-determination on behalf of such population.

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    Comments

    olivier corten says

    February 12, 2015

    Dear Raphaël. Thanks for your interesting post. A few days ago, I mentioned other declarations and documents that shed some (different) light on the debate. Please find my post thereafter: as you will see, in my opinion, the reference to article 51 of the UN Charter by the UK and the US (contained in official letters sent to the UN, not in internal documents) should seriously be taken into consideration in any appraisal of opinio juris. In addition to that, I'm not really convinced about your last point. In my view, the IDI resolution does not requite to proof the insurgents are supported "by a significant part of the population". This expression, as far as I know, appears nowhere in the resolution or in any practice the resolution is supposed to codify. Moreover, this question would be, in this particular case as in others, very difficult to address… But, anyway, according to the views of the intervening States, the problem lies rather in the 'transnational' or 'foreign' character of ISIS, as reflected in the statements reproduced below…

    "Thanks for this stimulating analysis. However, I was surprised you did not mention some crucial documents that provide decisive elements to determine the opinio juris of the intervening States. On 23 September 2014, the US sent a letter to the UN, stating that:

    ‘ISIL and other terrorist groups in Syria are a threat not only to Iraq, but also to many other countries, including the United States and our partners in the region and beyond. States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defence, as reflected in Article 51 of the Charter of the United Nations, when, as is the case here, the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks’ (S/2014/695, 23 September 2014).

    On 25 November 2014, the UK sent a letter to the Secretary General and the Security Council ‘in accordance with Article 51 of the UN Charter … in response to the request by the Government of Iraq for assistance in confronting the attack by the Islamic State in Iraq and the Levant (ISIL) on Iraq, contained in its letter to the President of the Security Council of 20 September 2014′ (S/2014/851, 26 November 2014).

    In that letter, the Iraqi Government stated that:

    ‘ISIL has established a safe haven outside Iraq’s borders that is a direct threat to the security of our people and territory. By establishing this safe haven, ISIL has secured for itself the ability to train for, plan, finance and carry out terrorist operations across our borders. The presence of this safe haven has made our borders impossible to defend and exposed our citizens to the threat of terrorist attacks.
    It is for these reasons that we, in accordance with international law […] have requested the United States of America to lead international efforts to strike ISIL sites and military strongholds, with our express consent. The aim of such strikes is to end the constant threat to Iraq, protect Iraq’s citizens and, ultimately, arm Iraqi forces and enable them to regain control of Iraq’s borders’ (S/2014/691, 22 September 2014).

    Another Iraqi letter was invoked by the US and the UK to justify the military intervention, a letter dated 25 June 2014 in which the Iraqi government considered:

    ‘The threat of ISIL is not new to us. Iraq has been subjected to terrorist attacks for nearly a decade by Al-Qaida, which has renamed itself ISIL. The situation has become more serious over the past two years, as ISIL has repeatedly launched attacks against Iraqi territory from eastern Syria […]. At this critical juncture, we are facing a serious threat from international terrorist organizations. We therefore request urgent assistance from the international community’ (S/2014/440, 25 June 2014).

    Against this background, it is clear that the main argument used by the US and the UK (but also by the Iraqi Government itself) is NOT a possibility to intervene within a ‘civil war’ at the single request of a government. Article 51 of the UN Charter is expressly invoked, against an ‘international terrorist organization’ (and possibly against the Syrian State too, if we read some other excerpts of the texts or declarations previously mentioned). The international and terrorist characteristics of the ISIL are similarly denounced in other declarations of the US, the UK, Iraq and many other States (see e.g. S/PV.7271, 19 September 2014 or S/7272, 24 September 2014). A contrario, no State considers the situation could be reduced to a ‘civil war’ or a ‘non international armed conflict’. And, consequently, no State contends that the military intervention should be qualified as a military support to a government combatting a purely internal rebellion. Actually, this is not surprising at all. I know no precedent (at least in the last 6 decades) in which a State would have assumed a legal possibility to help a government to win a purely internal war. The government that calls for help, and the foreign States which possibly intervene, generally contend that the rebels are supported from abroad. In other cases, they evoke a ‘peacekeeping operation’, or a limited operation aiming at restoring order. But they never assume an unlimited legal possibility to intervene in a civil strife, even at the request of the government. This is why the 1975 (Wiesbaden) but also the 2011 (Rhodes) IDI resolutions are in conformity with a persistant practice, even if some precedents are perhaps difficult to interpret, like the ambiguous operation led by Saoudi Arabia in Bahrain in 2011.

    Finally, I perfectly agree with you that this aspect of jus contra bellum (intervention by invitation) is a particularly sensitive one. This can explain the division of the existing scholarship you mention in your post. But, in the present case, the express invocation of Article 51 of the Charter leaves little or no doubt : the intervening States, as Iraq itself, do not quality the situation as a classical civil war. Accordingly, the legal debate should rather, in my view, focus on the admissibility of the (collective or individual) self-defense argument"

    Jordan says

    February 12, 2015

    Without nit picking each strand, it seems that most of the claims fit within justifiable collective self-defense against a nonstate actor at the request of Iraq. Olivier's quote of the UK response is clearly in support of such.
    With all due respect for the IDI, their resolution (whatever it actually declares) would not be the "test" unless it reflects customary international law. A significant question would be whether ISIS is an "insurgent" as opposed to a "belligerency" (like during the U.S. Civil War when the U.S. and the U.K., among others, recognized the CAS as a "belligerent" but not a "state"). It seems that no state has recognized ISIS as a "state," "nation," "people," or "belligerent." Thus, they are at best an "insurgent" involved in an IAC (across state borders and in conflict with a number of states other than Iraq, which internationalizes the armed conflict -- and which allows military from France, Jordan, etc. to have pow status, combatant status, and combatant immunity for lawful acts of war.

    Remy says

    February 13, 2015

    Jordan, your ever-recurring argument - presented as irrefutable, but in fact very much a minority view - that crossborder conflicts between a State and an OAG are IACs raise the following question (besides the fact that this claim appears to be supported only by policy arguments, rather than state practice, opinio juris, and judicial decisions): what status should be conferred to captured members of an OAG? POW status (with combatant immunity)? If not, how can this be reconciled with the fundamental principle of equality of belligerents?

    Raphaël van Steenberghe says

    February 13, 2015

    Dear Olivier,
    Thanks for your stimulating comments.
    I am not entirely convinced that the US and UK letters, both referring to Article 51 of the UN Charter, are relevant for assessing the opinio juris of the states in relation to the interventions in Iraq.
    The US letter clearly intends to justify military operations in Syria not in Iraq. The UK letter and position are perhaps more ambiguous in that respect. The UK does not seem to have conducted airstrikes in Syria yet (something which would require another House of Commons vote). However, at least since 21 October 2014, British air forces have been deployed in Syria in a surveillance role. In its letter, the UK refers to “measures” undertaken pursuant to Article 51 of the UN Charter, without specifying those measures (which could therefore include this UK surveillance operation). In addition, the letter states that the UK “fully supports these international efforts [against ISIL], whose purpose is to end the continuing attack on Iraq, to protect Iraqi citizens and to enable Iraqi forces to regain control of the borders of Iraq by striking ISIL sites and military strongholds in Syria, as necessary and proportionate measures” (emphasis added). The letter therefore seems to refer to the situation in Syria. In addition, one should not forget that the summary of the UK legal position on military action in Iraq, which must be given particular weight in revealing the UK opinio juris regarding its intervention in Iraq, does not mention self-defence anywhere, but only refers to the request of the Iraqi government. Finally, several states intervening in Iraq expressed reservations regarding the legal basis invoked by the United States to intervene in Syria, maybe because they did not consider that Iraq was victim of an armed attack from abroad in accordance with Article 51 of the UN Charter. So, basically, I believe that the justifications given for the interventions in Syria cannot be easily used to shed light on the opinio juris of states taking part in the interventions in Iraq. As far as those interventions are concerned, most states only invoked the consent of the Iraqi government as a legal basis for their intervention.
    More fundamentally, one may question what would be the opinio juris which could usefully be inferred from any invocation of Article 51 for justifying interventions in Iraq. Possibly that ISIL attacks against Iraq amount to an armed attack (also) coming from abroad. As you suggest it, this would show that the conflict between ISIL and Iraq was seen by the intervening states as “transnational” and not as a civil war or a non-international armed conflict. As a result, the issue of the prohibition on intervening in civil wars would not be relevant. However, there are many non-international armed conflicts in which the armed group fighting the government of a state launch their attacks from abroad, in particular from neighbouring countries. This “foreign” aspect does not prevent the conflict occurring in the territory of that state remaining a non-international one and being considered as a civil war (the 1975 IDI resolution only requires that the conflict must break out in the territory of a state but it may still apply if this conflict spreads out over the territory of neighbouring states – like Additional Protocol II to the 1949 Geneva Conventions). Historically, ISIL originated in Iraq and some of its members were sent to Syria after the outbreak of the civil war in that state. I really believe that, under IHL, the conflict between ISIL and Iraq only amounted (and still amount) to a non-international armed conflict as defined under APII as this conflict opposed (and still oppose) an armed group against a state. That having been said, I think that we agree that, in the opinion of the states intervening in Iraq, the conflict between ISIL and the Iraqi government was not a traditional civil war (in the sense of the 1975 IDI resolution). But, the reason for this is not clear. I am not convinced, as explained above, that it is because of the “foreign” nature of ISIL. I suggest that it is because ISIL, as unanimously seen as a violent (international) terrorist group, was not considered as an “insurgent movement” fighting for its right to self-determination.
    Finally, regarding the interpretation of the 1975 IDI resolution, recourse to the preparatory works of the resolution (in addition to state practice) seems quite important in order to establish the precise meaning of its terms, particularly of the notion of “insurgent movements” mentioned under Article 1, as an infinite variety of armed groups could be covered by such notion. When looking at those preparatory works, it appears that the very ratio of the prohibition on intervening in civil wars is to preserve the right of peoples to self-determination. I agree with you that this may be particularly difficult to assess in practice. But, the same could be said if the resolution was not interpreted in that sense.

    Jordan says

    February 13, 2015

    Remy: easily b/c ISIS is not a "belligerent" like the Confederate States of America during the U.S. Civil War (which met the customary criteria for "belligerent" status, including outside recognition as a "belligerent" and not a state -- all of the customary laws of war at the time were applicable even though the armed conflict was "internal" and a "belligerency"). US FM 27-10 recognizes today that all of the customary laws of war apply if the insurgent has recognition as a belligerent. Necessarily, a "belligerency," even if "internal," must be what we term an IAC. A "civilian" "insurgent" fighting in an armed conflict of an international character would not be entitled to pow status and more than an "insurgent" fighter in a NIAC. Al Qaeda has not even been an "insurgent" under customary law of war criteria (e.g., filed military units in sustained, protracted hostilities; control significant territory as its own; semblance of a government). Thus, members of al Qaeda that were not members of the regular armed forces of a "belligerent" or state would not have pow status.

    Jordan says

    February 13, 2015

    see also III Commentary at 38 ("if one Party to a conflict is recognized by third parties as being a belligerent, that Party would then have to respect the Hague rules").

    olivier corten says

    February 14, 2015

    Dear Raphaël,

    I understand and (partly) share your point of view.

    First, I think the US justification is more ambiguous than you suggest. The US letter cited above refers to an Iraqi letter that clearly mention an 'express consent' to combat ISIS, and that undoubtedly concern the Iraqi soil. In my view, and considering other declarations too (see the Obama speech on September 10 2014, http://www.whitehouse.gov/blog/2014/09/10/president-obama-we-will-degrade-and-ultimately-destroy-isil), the US invoke a very broad and general right of self-defense to justify their intervention, in Syria as in Iraq (even in this later case the invitation of the government is obviously invoked too).

    But, as you rightly point out, all this does not mean that self-defense is a relevant argument. The US have not been attacked, and it is more than doubtful that Syria could be hold responsible for ISIL actions against Iraq (or a fortiori the US), the 'unable or unwilling' theory having never been accepted in international law. Self-defense against Syria would imply to demonstrate a close link between the Syrian authorities and ISIS, according to art3g) of the definition of aggression (GA res 3314 (XXIX)). And this is why many States condemned the self-defense argument.

    Against this background, according to me, the only way to justify actions in Syria would be an (implicit) invitation, or at least consent, that would have been given by the Syrian government itself. This government did not officially protest against the military actions against ISIL (and that is of course understandable in view of the political context). It did not protest either before the beginning of the actions, even when it became clear that military operation would be triggered on the Syrian soil. On the contrary, the Syrian authorities said they would support 'any international effort' to fight ISIL (AFP, 23 septembre 2014). All this could be taken into consideration: an invitation can be explicit but also implicit, as the ICJ stated in DRC-Uganda in 2005.

    Turning back to Iraq, the invitation of the government is clear : it can justify the operation: ISIL is not equivalent to an 'internal' rebellion but is a military movement coming from abroad. 'Internal self-determination' is therefore not applicable in this case. On 19 September 2014, the Security Council

    'strongly condemns attacks by terrorist organizations, including the terrorist organization operating under the name “Islamic State in Iraq and the Levant” (ISIL) and associated armed groups, in Iraq, Syria, and Lebanon and emphasizes that this large-scale offensive poses a major threat to the region' (S/PRST/2014/20).

    It also

    'urges the international community, in accordance with international law to further strengthen and expand support for the Government of Iraq as it fights ISIL and associated armed groups' (id.).

    But, of course, the Iraqi invitation can only justify an intervention 'in accordance with international law', and that clearly suggest it is supposed to be limited to the territory of Iraq. The general and ambiguous invocation of self-defense by the US aims at blurring this distinction…

    Jordan says

    February 14, 2015

    Olivier: ISIL has attacked Iraq and the U.S. has a viable claim that it is engaged (like other states) in collective self-defense under UN art. 51 with the consent of Iraq.

    Heiko says

    February 15, 2015

    Dear all, still learning, so forgive me if I am completely wrong. But why is "that entity" not a state? To be an aggressor and violations of human rights dont matter. They have land, power and the Bath party -- maybe old news -- that may be a better administration than the new one in Iraq (without Iran). In the "country of the cathedrals" Le Monde called them a state. Surprise,surprise, a new state is born. And maybe they even had some peacefull possession for some time. They were only attacked from the air anyway. All problems would have gone.

    And as fas as belligerents are concerned, would it help them to sign a "deed of commitment" according to the Genera Call rules?

    Heiko says

    February 15, 2015

    And to add this question: Why is Iraq not in a civil war? What applies to Syria would also apply to Iraq.

    There is a tension between the principles anyway, as Jordan allready mentioned in another thread. I would not argue with the right of self-determination (that "terrorists" dont have) and argue with the domaine reservee and the equality of states.

    Raphaël van Steenberghe says

    February 16, 2015

    Dear Olivier,

    Thanks for your answer. I would like to make two remarks, one on the alleged ambiguous nature of the US letter and the other on self-defence as a relevant argument.

    With regard to the US letter, I am not convinced that this letter is ambiguous with respect to the nature of the interventions that it intends to justify (on the basis of self-defence). Those interventions are undoubtedly the ones conducted in Syria and not in Iraq. First, the content of the letter is totally clear: it only deals with the US interventions in Syria. It only mentions Syria as the state whose territory has been and will be the object of the US military operations, as a response to the attacks launched by ISIL from Syria where ISIL found safe havens. Second, the letter was sent to the UNSG just after the first US airstrikes in Syria. This is in line with the US practice. The US generally informs the UN that it is conducting military operations in self-defence just after the undertaking of such operations (to conform with the reporting obligation under Article 51 of the UN Charter).

    Third, the Iraqi letters to which the US letter refers clearly mention that ISIL found safe havens in Syria and launches attacks from the territory of that state against Iraq. In both letters, the Iraqi authorities request the US to help them to respond to such attacks. This is expressly emphasized in the US letter: “Iraq has made clear [in both of its letters] that it is facing a serious threat of continuing attacks from the Islamic State in Iraq and the Levant (ISIL) coming out of safe havens in Syria. These safe havens are used by ISIL for training, planning, financing, and carrying out attacks across Iraqi borders and against Iraq’s people. For these reasons, the Government of Iraq has asked that the United States lead international efforts to strike ISIL sites and military strongholds in Syria in order to end the continuing attacks on Iraq, to protect Iraqi citizens, and ultimately to enable and arm Iraqi forces to perform their task of regaining control of the Iraqi borders”. Such a request must clearly be linked to the argument of collective self-defence since it is well-known that states cannot act in self-defence to help another state to protect itself against an armed attack if they have not been asked by that state to do so.

    Fourth, as far as I know, the collective self-defence argument has never been officially invoked by the US before the airstrikes in Syria. The only official argument was the consent of the Iraqi authorities to justify interventions in Iraq. Fifth, the Obama speech that you mention appears as a political speech. It does not contain any legal justification (i.e. justification expressed in legal terms). Nowhere is mentioned the self-defence argument or Article 51 of the UN Charter. In my view, this speech is of very little (or even no) value for determining the opinio juris of the US, especially given the fact that the US authorities gave a clear legal justification in an official document sent to the UN.

    With regard to the second remark, i.e. self-defence as a relevant argument, my opinion is that self-defence is clearly irrelevant but only in relation to the interventions in Iraq. Consent is enough to justify those interventions and there is no need to invoke any exception to the prohibition on the use of force (such as self-defence) since there was no violation of this prohibition to justify. Things are different with respect to the interventions in Syria. I do not believe that the argument of self-defence can be so easily rejected. First of all, as a matter of fact, I do not think that “many states” condemned such argument. To the best of my knowledge, only a few states (just Russia, Iran and Ecuador) clearly condemned the US airstrikes in Syria (and Syria condemned the US planned operations on its territory only before they occurred and no longer after – such condemnation making nonetheless the argument of “implicit consent” that you discuss quite problematic). As a matter of law, the self-defence argument is not prima facie ill-founded if one shares the opinion, as I do and as many – if not the majority of – scholars do, that self-defence may be exercised in response to private armed attacks (attacks in which no state is substantially involved in the sense of Art. 3, g) of UNGA resolution 3314 (XXIX). The response in self-defence must of course be directed only against the non-state actors launching the attacks (which seems to be the case regarding the US airstrikes).

    It is true that some problems may arise regarding the “unwilling or unable” doctrine that the US applied in this case. However, I do not believe that one may categorically conclude that this doctrine has “never been accepted in international law”. It is at least controversial. More fundamentally, the unwillingness or inability of a state to stop attacks from being launched from its territory may be considered as simple standards – easy but not irrefutable means – for assessing the respect of the condition of necessity (according to which self-defence can only be resorted to by a state when no other reasonable means are available to protect itself against an armed attack). In other words, the unwillingness or inability of the host state would evidence (not in an irrefutable way) that the attacked state has no other available means to protect itself. In that sense, the “unwilling or unable” doctrine is part of (as required by) the classical condition of necessity. What is more problematic is that, even if one accepts this doctrine, according to a majority view, the consent of the host state must still be sought before the undertaking of an action in self-defence on its territory when it is established that this state is unable (but still willing) to stop the attacks committed by the non-state actors from its territory. Seeking consent also seems to be part of the condition of necessity as it appears as another (maybe the last) available means for the victim state to protect itself. The US did not seek the consent of Syria, which, although apparently willing to fight against ISIL, seems unable to do it (as emphasized by the UNSG on 23 September 2014). Politically, the US attitude is clearly understandable. Legally speaking, this is more problematic. But, even the issue of consent is debated. An increasing number of scholars (such as D. Bethlehem – cf. Bethlehem’s principles, especially principle twelve (2012 AJIL 776)) argue for some exceptions to this obligation to seek consent, in particular when there is “a strong, reasonable, and objective basis for concluding that the seeking of consent would be likely to materially undermine the effectiveness of action in self-defense, whether for reasons of disclosure, delay, incapacity to act, or other development that would give rise to an independent imperative to act in self-defense”. All of this clearly shows that the US argument of collective self-defence, although problematic, should not immediately be disregarded and deserves a detailed scrutiny (notably with respect to the condition of necessity).

    That having been said, the most problematic aspect of the US legal justifications for its interventions in Syria is the argument of individual self-defence that the US invoked in order to justify its military operations not against ISIL but against the Khorasan group (composed of former Al-Qaida members). But, this is another story…

    Raphaël van Steenberghe says

    February 16, 2015

    Dear Heiko,

    With regard to your question on ISIL as a state, it would indeed not be senseless to argue that it is a state (of course only in legal terms) if you apply the traditional and very formal criteria for statehood (territory; population; effective and independent government), regardless of any considerations on the legitimacy or legality of this alleged state. However, one should not forget that there is another – still formal – criterion for attributing statehood to an entity: the claim made by this entity to be a state. Entities (such as armed groups which control a significant part of the territory of a state) will not be regarded as states if they do not claim to be a state “even though [they] might otherwise qualify for statehood in accordance with the basic criteria”, since “[s]tatehood can be described as a claim of right based on a certain factual situation” (J. Crawford, 1976 BYIL 181). The claim made by ISIL is not clear (see especially the document entitled “This is the promise of Allah”). Although it uses the term “state” (“dawlah” in Arabic), the state that it wishes to establish would be a state upon which all the other (possible) states would be dependent. To word it differently, there would be only one state in the world, the Islamic State. As a state is by definition independent, it would be the only one to be independent. This is absurd since one is independent in relation to someone else (one cannot be independent alone). Put differently, legally speaking, this intended state has nothing to do with statehood since to be a state means to live on an equal footing (at least at the legal level) with and among other independent states. Therefore, it may be argued that the claim made by ISIL is not to be a “state” but something else and that ISIL is not a state (even in light of formal criteria).

    In addition, I do not believe that, even if ISIL was considered as a state, this would change something regarding the application of IHL, as ISIL has not been (and do not seek to be) recognized by any state. There are many examples of conflicts in which the government of a state fought against armed groups which claimed to be representing an independent state and could be considered as such in light of the basic formal criteria (see, for example, Abkhazia, considered by an European fact-finding mission as a state-like entity, i.e. an entity not recognized by any other states but nonetheless a state at the time of the conflict in Georgia in 2008; the Tamil Eelam State; the Chechen Republic of Ichkeria; and so on). Despite such a claim, when the entities were not recognized by any state (or by any significant number of other states), it is still the law of non-international armed conflict which was deemed to apply to the conflict involving those entities (regarding Abkhazia, see the report of the above-mentioned European fact-finding mission, which considers the fighting between Georgia and Abkhazia as a non-international armed conflict, although it concluded before that the interstate prohibition on use of force applied to the relations between Georgia and Abkhazia because the latter was a state; regarding the other entities, see state practice and, for example, the fact that the members of the armed groups who were captured have never been treated as prisoners of war).

    Jordan says

    February 16, 2015

    You might distinguish between a de facto and a de jure state. Traditional criteria requires outside recognition as a "state." ISIL appears to lack outside recognition as a "state" or a "belligerent."
    With respect to the majority of textwriters, etc. and non-state armed attacks that can trigger the inherent rights of self- and collective self-defense mirrored in UN Article 51, please see 19 J. Transnat'l L. & Pol'y 237, 238-41 n.3 (2010), available at http://ssrn.com/abstract=1520717

    olivier corten says

    February 16, 2015

    At this stage, and without willing to comment every argument made above, I would like to come back to 4 crucial questions.

    1°. ISIL is not a State according to customary international law, basically for the same reasons Manchukuo, Northern Cyprus, Republika Srpska, Abkazia, South Ossetia and Crimea were or are not States. Ex injuria jus non oritur: in each of those cases, the de facto governments concerned were the result of blatant violations of international law. This is perhaps a truism, but we must remember that the existence of a State is not, legally speaking, simply a matter of fact… The unanimous position of States qualifying ISIL as a ‘terrorist’ organization (and not as a State) is simply a confirmation of that.

    2°. The military intervention in Iraq is not really problematic (and is therefore not really challenged by States or, as far as I know, by authors). The Iraqi government has clearly invited other States to combat ISIL as a terrorist organization coming from outside, and this invitation has been given in very broad terms (see especially the letter dated June 2014 quoted above). We are not in a situation of a purely internal civil strife, and internal self-determination does not consequently preclude any intervention by invitation of the government. In other words, the Institut de droit international doctrine is not really challenged by this precedent. All the relevant documents (inside or outside the UN) leave little doubt about that.

    3°. The legality of the intervention on Syrian soil is, by contrast, more doubtful. The problem does not really lie in the invocation of article 51 against ISIL, made in very broad terms by the US. Even if we accept it in principle (in contradiction with existing texts and ICJ case-law, that limit the applicability of the relevant UN Charter rules to relations between States), it cannot justify a bombing of the Syrian territory. This is why the US accuse the Syrian State to be itself responsible by invoking the ‘unwilling or unable’ theory. In other words, the point is here to determine if self-defence can properly be invoked against Syria (as the US does), even if Syria has not attacked the US or Iraq. But here again, this theory contradicts the existing texts, especially the definition of aggression and the rules of international responsibility recognized in international law and by the ICJ … Another possibility would be to establish an implicit consent by the Syrian authorities, even if it will not be easy in regard of the US refusal to simply ask for some consent from Damascus… All in all, the legality of this intervention is far from evident, and this is why many States do not support it, and prefer to limit their support to the Iraqi government (without participating in a military action against Syria's territorial integrity and sovereignty).

    4°. Finally, it is true that all those questions are controversial and that no unequivocal and definitive conclusion can be drawn in those matters (as probably in all legal matters, but this is another story…). Against this background, different approaches are possible. Some use some (almost exclusively English speaking) scholarship to support the US doctrines conceiving use of force as justified by a broad conception of self-defence against terrorism. Others prefer to focus on existing legal texts, on declarations of States from various parts of the world and on the existing ICJ case-law. If this methodology is followed, the legality of the ‘war against terrorism’ will frequently be challenged (I tried to apply this second approach in my works, especially The Law against War, published in 2010, and in the more recent edition in French, Le droit contre la guerre, published in 2014 in which you will find many precedents and references in support of the some of the assertions I’ve made here). In the case of the current intervention against ISIL, this approach should lead us to envisage differently the intervention in Iraq and in Syria…

    Jordan says

    February 16, 2015

    Olivier: re: your 3rd, please see the click on in my last reply, esp. fn. 3. Nothing in the language of Article 51 requires that an armed attack be engaged in or attributed to a "state." As the click-on notes, there have been early recognitions of the propriety of self-defense against non-state actors (e.g., during the Caroline incident involving the exchange of views by the US and UK). From this type of perspective, Syria was not bombed -- ISIS in Syria was bombed.

    olivier corten says

    February 16, 2015

    Dear Jordan,

    Sorry, but I'm not convinced at all that a diplomatic correspondance between the UK and the UK in the 1830's is still relevant today. By contrast, the existing texts (notably article 1 of the definition of aggression) and case-law (especially the Wall case) are clear. The prohibition of the use of force and its exceptions are only applicable between States (for more details and references, see Chapter 7 of my book).

    This means that there is no prohibition to lead a military operation against ISIS, because ISIS (being not a State) cannot invoke Art. 2.4 of the UN Charter. Against this background, article 51 is simply useless: as the rule does not apply, there is no need to find an exception to this rule.

    But, as explained above, even if you apply it, all that could not justify a military operation against Syria… Any bombing of a States' territory obviously infringes its sovereignty, as a State is composed of a people, a government, but also … a territory. Anyway, would you seriously contend that, if a foreign State massively bombed numerous targets within the US territory (against the will of the US government), the USA would not have been attacked and would therefore not be entitled to invoke self-defence?

    Jordan says

    February 16, 2015

    Article 51 expressly refers to the "inherent" right of self-defense, but if an armed attack occurs, and it does not require an act of "aggression" or a violation of Article 2(4) by a state. There have always been other actors with formal participatory roles than "the state" (e.g., "nations," "belligerents" -- see http://ssrn.com/abstract=1701992 ). The first click-on addresses some U.S. claims of self-defense against non-state actors in addition to the UK claim in response to The Caroline Incident. There are also early U.S. cases that addressed private violations of the law of neutrality as offenses against peace, acts of aggression. And then there are the NATO and UN SC recognitions after al Qaeda armed attacks on 9/11.
    With respect to "sovereignty," there is an interesting recognition during The Caroline Incident with respect to self-defense against non-state actors as an agreed exception to "sovereignty."

    olivier corten says

    February 17, 2015

    Jordan, I understand your point. US and some NATO States do support your position. But, in my opinion, international law cannot be reduced to the position of those States. If we turn to the texts expressing the position of the international community of States as a whole, the answer will be different. According to the ICJ (1986, 2005, …), the definition of aggression (GA res 3314 XXIX) reflects customary international law and it offers criteria relevant to assess the existence of an 'armed attack' ('agression armée', in French) according to Article 51. And this definition clearly evokes a use of force by a State against another State (cf. art. 1). But anyway, as previously stated, the important point is this: self-defence is simply useless to justify a use of force against a non-State actor, as this actor cannot invoke its 'sovereignty' or it 'political independence' or 'territorial integrity'. Art. 2.4 is therefore not applicable and there is no need to invoke an exception (as enshrined in Art. 51) to the rule. At the end of the day, the problems rather lies in the possibility to invoke self-defence against a State, here Syria. All the debate concerning self-defense against ISIS appears too theoretical and abstract in that regard. In practice, even the US invoke self-defense against States, Syria in our case. This is the real issue…

    Raphaël van Steenberghe says

    February 17, 2015

    Just two (final) comments:

    A first comment on ISIL as a state: my last reflections on this issue aimed at demonstrating that ISIL was not a state even if one adopts the traditional approach to statehood, which relies on formal criteria (territory, population, effective and independent government). Of course, if another approach is adopted, the one which makes statehood dependent upon not only formal criteria but also considerations of legality or legitimacy, the conclusion is even clearer: ISIL is definitely not a State. However, this latter approach is far from being unanimously shared in legal scholarship. Many scholars still consider that the birth of a state is a matter of fact or, at least, that such a birth is not depend upon any consideration of legality or legitimacy.

    The second comment is on the argument of self-defence: if one accepts, as I do and as many scholars do, that self-defence may be exercised in reaction to private armed attacks (attacks in which no state is substantially involved in the sense of Art. 3, g) of UNGA resolution 3314 (XXIX)), there is no need to try to attribute those attacks to the host state or to establish the responsibility of that state (on the grounds that it would have failed to stop those attacks from being launched from its territory). Self-defence (provided that the action in self-defence respects all the other conditions such as necessity and proportionality) is enough to justify the use of force on the territory of another state. The “function” of the argument of self-defence is precisely to justify uses of force on the territory of other states, which would be illegal without such justification. In that sense, as agued in detail elsewhere, admitting that private groups may commit an armed attack triggering the right of self-defence of the victim state does not mean that the exercise of this right would no longer be concerned with international relations as relations among states. It is uncontested that the right of self-defence, like the prohibition on use of force, is confined to the sphere of relations between states. Yet, even if exercised in response to a private armed attack, the action undertaken in self-defence by the victim state will remain in the sphere of international relations when it is exercised in the territory of another state – which must moreover not be controlled by the state acting in self-defence. In this case, like in any other cases in which ‘classical self-defence’ is exercised, the action is still carried out by a state, which is the holder of the right of self-defence under Article 51 of the UN Charter, in the territory of another state, whose protection against unlawful use of force under Article 2 (4) of the UN Charter should have been considered as violated if this action had not been justified by self-defence. It is therefore clear that such action in self-defence, although responding to a private armed attack, is still concerned with relations among states.

    In addition, as also argued elsewhere, it is not because attacks committed only by private armed groups may trigger the right of self-defence that the prohibition on the use of force under Article 2, 4 of the UN Charter applies to those groups. Such groups may perfectly be the authors of a factual occurrence, an armed attack – which means a force of some level of gravity – without being bound by the prohibition on the use of force or being the holders of a right of self-defence under the UN Charter, that is, without the regulation on inter-state use of force being applicable to them. To be the author of an armed attack triggering the right of self-defence or to be the holder of such a right is definitely not the same thing. It would be difficult to consider that private armed groups must logically be considered as having themselves a right to self-defence when they are attacked – and, therefore, as enjoying an international legal personality – once it is admitted that they can commit an armed attack under Article 51 of the UN Charter. Although a dog can attack a person and possibly trigger this person’s right of self-defence under the national legislation of some states, it is clear that this dog is not bound by the domestic rule not to injury people and that it has no right of self-defence if it is itself attacked – nor does it enjoy any legal personality. It is true that, in order to amount to an armed attack within the meaning of the law on self-defence, the attacks must consist of a force which is unlawful. It is clear that such unlawfulness cannot be assessed in the light of Article 2 (4) of the UN Charter with respect to private armed attacks since, as already mentioned, this Article only applies to states. Referring to this rule is only relevant when determining whether an attack committed by a state is unlawful and may trigger the right of self-defence of the victim state. However, state practice clearly evidence that attacks committed by non-state actors (such as the ones committed by ISIL) have sometimes been clearly and unanimously judged as unlawful.

    Finally, in my view, the position that self-defence may be exercised in reaction to private armed attacks is not incompatible with the existing legal texts, the ICJ case law and the declarations of states from various parts of the world.

    olivier corten says

    February 17, 2015

    Ok, Raphaël, I basically agree (even if I'm not sure to have properly understood your reference to dogs…): non-use of force and self-defence are rules that are only applicable between States (non-State actors are not bound by and cannot invoke those rules). This was precisely my point. But there is just one thing I don't understand. If you consider that self-defence according to Article 51 can nevertheless be exercised against a non-State actor (contrary to the opinion of the ICJ, notably in the Wall case), why would it be 'enough to justify the use of force on the territory of another state'? Could this later State be attacked without being itself responsible for an 'armed attack' (a requirement explicitly stated in Article 51)? I don't argue that there is a need to proof the imputability of the military action led by the private group; but at least you should be able to establish an illicit act by the State itself (probably in relation to a default of due diligence vis-à-vis the activities of the private group), shouldn't you? Otherwise, how could you justify the bombing of the territory of a State that could not be hold responsible for any illicit act? In brief, no one contest that self-defence can be exercised 'in reaction to private armed attacks'; but the question remains: if this reaction is exercised on the territory of another State, how will you justify what constitues (at least a priori) a use of force forbidden by Art. 2.4?

    Jordan says

    February 17, 2015

    I will mix this up a bit more. Since there have been other actors with formal participatory roles such as "nations," "peoples" (who now have a right to self-determination based in the UN Charter), tribes, and "belligerents," why would a "nation" that is not a state or a "people" not have an inherent right of self-defense if it is under armed attack? The Charter and the Dec. on Aggression are simply silent with respect to rights and duties under CIL of other actors.
    I note (from my non-state actors article, click-on above) that the US, Canada, the UK and others have had international agreements with these and other types of actors, that they have been at "war" with these and other types of actors in the 1700s and 1800s, etc.

    Federica Paddeu says

    February 17, 2015

    Dear Olivier and Raphaël,

    On Olivier’s last question, couldn’t Article 21 of the Articles on State Responsibility (self-defence as a circumstance precluding wrongfulness) provide the justification for the breach of the target State’s territorial integrity?
    Article 21, as explained by the ILC, does not concern the compatibility vel non of the self-defensive measure with the prohibition of force. That self-defence is compatible with the prohibition of force is explained by the fact that the right of self-defence is an implicit element of the prohibition (see para 1 of the Commentary to Art 21). But while the self-defensive measure may be compatible with the prohibition of force, it may still be incompatible with the host State’s territorial integrity, for example, since the right to territorial integrity is conceptually distinct from the prohibition of force. Article 21 ARS is intended precisely to deal with these collateral, so-to-speak, breaches caused by the self-defensive force.
    So if the measure of self-defence is a lawful one under the Charter regime (a requirement for the application of Article 21) then the breach of such additional obligations is justified.
    All of this, of course, is dependent on whether the use of force against private armed attacks is permissible under the Charter. If it were (and I too retain doubts about this), then Article 21 ARS could provide the justification for the breach of the host State’s territorial integrity.

    Heiko says

    February 19, 2015

    Dear all, maybe I am oversimplifying things, but IMHO recognition does not matter and ex ininuria as well. What matters is possession and how "that entity" declares its animus domini does not matter as well. They want to be different.

    Maybe this is the German "principle of abstraction". How things should be according to treaties is not how things really are. One example that comes to mind is the rule of the Taliban in Afghanistan before 9/11. Nobody had recognised them but they were there and this was enough -- according to German authors.

    van Steenberghe Raphaël says

    February 19, 2015

    It is true that, in many situations, the host state could be held responsible at least due to a violation of a due diligence obligation (obligation which imposes on states to do as much as they can to prevent hostile activities from being committed against other states from their territory). However, it is not always the case and, legally speaking, there is nothing in Article 51 which expressly provides that the state on the territory of which the action in self-defence takes place must be responsible for the private armed attack launched from its territory.

    Under Article 51 of the UN Charter, the armed attack (triggering the right of self-defence) can arguably be an armed attack by a state (unlawful use of force by a state) or an armed attack by non-state actors (unlawful use of force by non-state actors without the host state being necessarily responsible for those attacks). Once an armed attack by a state or non-state actors occurs and provided that the condition of necessity is fulfilled (and this condition will normally not be fulfilled if the host state is willing or able to stop the private armed attacks from being launched from its territory), self-defence can be resorted to in accordance with Article 51. In order words, self-defense can be used to repel an armed attack committed by non-actors from abroad even if the host state cannot be held responsible for those attacks. And invoking the argument of self-defence is necessary in order to justify this use of force on the territory of that state because, without such justification, it would be contrary to Art. 2, 4 of the UN Charter (it would consist of a violation of the territorial integrity of another state).

    More particularly, when victim states sometimes emphasize that the host state is unwilling or unable to stop private armed attacks from being launched from its territory or even is responsible for those attacks, such assertions do not aim at establishing the international responsibility of the host state and obtaining any reparation for the damages caused by these attacks (the law of state responsibility and the law of self-defence being two different branches or matters of international law which rest on distinct rationales). The purpose of such assertions is rather to show that the victim state can no longer rely on the action of the (police forces of the) host state to protect itself and that there is no other available means to defend itself against the non-state actors or, in other words, that its action in self-defence on the territory of that state fulfills the condition of necessity.

    With respect to resorting to self-defence as a circumstance precluding wrongfulness to justify the breach of the territorial integrity of another state, I am personally not convinced by such argument. For two main reasons: first, such circumstance cannot be used to justify any resort to force prohibited under Article 2, 4 of the UN Charter (in accordance with the ILC commentary and since the whole prohibition on use of force is arguably of jus cogens nature); in my view (and as it seems confirmed by state practice) bombing the territory of another state without its consent or any authorization from the UNSC is a violation of the territorial integrity of that state prohibited under Article 2, 4 of the UN Charter (it is a violation of the sovereignty of a state by force). The second reason is that it is not evidenced in state practice (no state has ever invoked Article 21 ARS).

    Finally, I would like to add that I have nothing against dogs…!

    olivier corten says

    February 20, 2015

    Thanks, Raphaël, but there is something I still do not understand, despite my repeated efforts. Do you mean that a State A can invoke self-defence against a State B without proving that State B has violated international law? I suppose you don't… I don't know to what extent we can agree, but I personally thing that:

    1. The possibility to invoke self-defence against a private actor, even if accepted, is not relevant to address the main issue: how a State A victim of an armed action led by a private actor (P) can justify a use of force against a State B? In other words, even if A can invoke self-defence against P, it cannot justify, AS SUCH, a use of force against B.

    2.The rule enshrined in Art. 2.4 having been recognized as peremptory but the community of States as a whole, the only possibility to justify a use of force against a State is to be found in the exceptions recognized in the Charter, i.e. self-defence and measures undertaken by the Security Council. By contrast, necessity or other circumstances precluding wrongfulness are not relevant in that particular case.

    3. Self-defence against State B can be invoked if that State is responsible for an 'armed attack', following the explicit terms of Article 51. The question remains how to interpret that notion of 'armed attack', but it is clear that it implies at the very least a violation of international law by State B. Practically, that will imply to assess thoroughly the links between B and P.

    4. Following the terms of art 3g) of GA res 3314 (considered as reflecting customary international law but the ICJ and the vast majority of States), that armed attack can be established by two different means: either the armed action led by P was under the control of (or P was sent by) State B; or there was a 'substantial involvement' by B in the armed action. It is therefore not necessary to attribute the acts of P to B, indeed.

    5. Taking into account certain tendencies of recent practice, and being open to some de lege ferenda considerations, a broader conception of this 'substantial involvement' could possibly be accepted. Perhaps the links between State B and the activities of private group P could be considered as suffisant to establish an 'armed attack' in some cases…

    Jordan says

    February 20, 2015

    Olivier: yes, Raphael is correct, even if State B has not violated international law. Moreover, Article 2(4) is only binding on Member States. An armed attack by a non-member state (or nationa, people, belligerent, etc.) can trigger the inherent right of self-defense under CIL. Re: much of this, see also Operationalizing Self-Defense -- http://ssrn.com/abstract=2459649 [waiting to post the final printed version instead of this draft]

    olivier corten says

    February 21, 2015

    Of course, Art 2(4) is only binding on Member States, this is precisely my point. This is why Member States can obviously invoke this article to protect their sovereignty and territorial integrity against any armed operation led by another State. If you consider that is not true and that a State can be bombed even if it has not violated international law, it is difficult to pursue the debate…

    Raphaël van Steenberghe says

    February 23, 2015

    Dear All,

    I just would like to highlight (as clearly as possible) three conceivable views on the subject:

    1. One may firstly consider that self-defence can only be exercised in reaction to an armed attack by a state. In this case, the notion of “armed attack” must be defined in relation to Art. 2, 4 of the UN Charter, as meaning a serious unlawful use of force by a state on the territory of another state. This notion can also be defined in relation to UNGA resolution 3314 (XXIX), as it is well admitted that, although dealing with the notion of aggression, this resolution was also intended to define the notion of “armed attack” (set out under Art. 51 of the UN Charter or the relevant customary international law). Once an armed attack by a state occurs and provided that the other conditions are also met, the victim state may act in self-defence to protect itself against such armed attack, by targeting the state (its military facilities, armed forces,…) which is the author of the attack.

    2. Secondly, one could consider that self-defence may also be exercised in reaction to attacks by non-state actors but that, in order for the action in self-defence to be exercised on the territory of the state where the non-state actors are located (hereafter the “host state”), it must be demonstrated that this state is “responsible” for those attacks. Such “responsibility” could arguably be established on the basis of a flexible interpretation of the notion of “substantial involvement” provided under UNGA resolution 3314 (XXIX). However, one may wonder what is the point in arguing that private armed attacks may trigger the right of self-defence while any lawful exercise of this right on the territory of the host state nonetheless requires to demonstrate that this state was “substantially involved” in the attacks by the non-state actors or, in other words, that these attacks actually amounted to an armed attack by this state (in accordance with UNGA resolution 3314). Such a view would be meaningful if actions against non-actors in self-defence were not necessarily conducted on the territory of any state (maybe on the high sea). Although it cannot be excluded in theory, this is quite hypothetical in practice.

    3. There is then a third view according to which self-defence can also be exercised in reaction to a private armed attack, without any state being “substantially involved” therein. In this case, the notion of “armed attack” cannot be defined by referring to Art. 2, 4 of the UN Charter (since this Article only applies to relations between states) or to UNGA resolution 3314 (XXIX) (since this resolution only gives a definition of armed attacks committed by states). In this case, the notion of “armed attack” must at least mean a serious use of force by non-state actors, which is not permitted under international law – and the terrorist attacks like those committed by ISIL against Iraq may clearly be considered as such use of force.

    In some recent practice, states which acted in self-defence against non-state actors did not consider that they responded to an armed attack by the host state. The “armed attack” triggering their right of self-defence (in accordance with Art. 51 of the UN Charter) was manifestly an armed attack committed by the non-state actors. The situation is very different from the one considered under Art. 3, g) of UNGA resolution 3314 (XXIX). The host state does not use non-state actors to commit an armed attack against another state (i.e. armed attack by a state through indirect means), but, in the contrary, non-state actors use – the territory of – a state to commit an armed attack against a state (i.e. armed attack by non-state actors).

    That having been said, before the undertaking of the action in self-defence, a link must be established between the non-state actors and the host state. But, such a link is not required by the condition of the occurrence of an armed attack since, under this condition, a serious use of force by non-state actors, not permitted under international law, is enough (cf. above). The link between the non-state actors and the host state is required by the condition of necessity, which imposes – in one of its numerous aspects – that any action in self-defence be taken only as a last resort, that is, after all the available alternatives have been exhausted. One of such alternatives (and maybe the most promising one) is the forcible action that the host state could take against the non-state actors on its territory. Therefore, before acting in self-defence, the victim state must show, in accordance with the condition of necessity, that it can no longer rely on the action of the host state to protect itself against the armed attack by the non-state actors, for example, by demonstrating that the host state is unwilling or unable to stop those attacks. And such inability must not necessarily amount to a violation of international law, in particular of an obligation of due diligence.

    As a result, according to this view, once an armed attack by non-state actors occurs and provided that the aforementioned condition of necessity is also met, the victim state may lawfully act in self-defence to protect itself against this armed attack, by targeting the non-state actors on the territory of the host state – and not this state itself, i.e its military facilities, armed forces, …

    After all, I believe that this latter view should not be excluded. It could also be upheld on the basis of a methodology which takes into account international legal texts, case law and state practice including the declarations of states from various parts of the world.

    To conclude, I notice that our discussions go very (and maybe too) far from the initial post, on the foreign interventions in Iraq and the alleged prohibition on intervening in civil wars. At least, I think in this regard that we all agree that the Iraqi case is not a good case for assessing the existence or maintenance of a prohibition on intervening in civil wars since the situation in Iraq was not (seen by the intervening states as) a traditional civil war.

    This will close my interventions on this blog, at least with respect to my post. I would like thank all of those who took some of their precious time to react to this post (especially Professor Olivier Corten for his numerous and detailed contributions) and to enrich our thinking on the subject. Of course, I would be happy to pursue the debate through other channels.

    sanya francis says

    March 25, 2015

    good research and analysis.that's the way to go.