Self-Defence Against Non-State Actors: The Interaction between Self-Defence as a Primary Rule and Self-Defence as a Secondary Rule

29 (3) Leiden Journal of International Law, Forthcoming

42 Pages Posted: 12 May 2016

See all articles by Nicholas Tsagourias

Nicholas Tsagourias

University of Sheffield - Faculty of Law

Date Written: March 10, 2016

Abstract

This article examines the law of self-defence as applied to non-state attacks in light of the coalition air strikes against ISIL in Syria. It critiques the two current interpretations of the law of self-defence — one based on attribution and the other on the ‘unable or unwilling’ test — for failing to address adequately the security threat posed by non-state actors or for not addressing convincingly the legal issues arising from the fact that the self-defence action unfolds on the territory of another state. For this reason, it proposes an alternative framework which combines the primary rule of self-defence to justify the use of defensive force against non-state actors, with the secondary rule of self-defence to excuse the incidental breach of the territorial state’s sovereignty.

Keywords: self-defence, non-state actors, ISIL, attribution, ‘unable or unwilling’ substantial involvement, circumstances precluding wrongfulness

Suggested Citation

Tsagourias, Nicholas, Self-Defence Against Non-State Actors: The Interaction between Self-Defence as a Primary Rule and Self-Defence as a Secondary Rule (March 10, 2016). 29 (3) Leiden Journal of International Law, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2778308

Nicholas Tsagourias (Contact Author)

University of Sheffield - Faculty of Law ( email )

Bartolome House
Sheffield, S3 7ND
United Kingdom

HOME PAGE: http://https://www.shef.ac.uk/law/staff/academic/ntsagourias

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