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
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
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