Swimming with the Tide, or Seeking to Stem It? Recent ICJ Rulings on the Law of Self-Defence

Abstract

This note assesses two recent rulings by the International Court of Justice: the advisory opinion in the Israeli Wall case and the judgment in Armed Activities on the Territory of the Congo (DRC v Uganda). It analyses their effect on the legal rules governing the use of force, and the question of self-defence against non-State actors in particular. It argues that in the Israeli Wall opinion, the Court failed to confront an emerging (and relevant) body of international practice allowing self-defence against attacks by non-State actors. It views the more pragmatic approach taken in Congo-Uganda as an attempt to move away from the strict approach adopted in the Wall opinion. Looking at the judges' individual opinions, it suggests that even within the International Court, there is now a willingness to extend self-defence to attacks by non-State actors.

Keywords: self-defence, self-defence against non-State actors, use of force, terrorism, International Court of Justice, Israeli Wall opinion, Congo-Uganda case, UN Charter