REORGANIZATION OF DESIRE: A

CRITIQUE OF UNITED NATIONS IN LIGHT

OF ISIS

Submitted by
Debanjana Chakraborty and Devyani Pradhan
SEMESTER V
B.A.LL.B SECTION A

TABLE OF CONTENTS
1. Introduction .3
2. Status of ISIS as Non State actor....4
2.1 Brief History of ISIS.4
2.2 Status of Non-State Actors in International Law..5
2.2.1 Concept.....5
2.2.2 Personality and Status of Non-State actors..6
3. Right of Self Defense against Non State Actors
3.1 Legal Concept..10
3.1.1 Prohibition of Use of Force..10
3.1.2 Self Defense.11
3.1.3 Armed Attack..11
3.2 Analysis of Article 51 with reference to Non state actors (ISIS) 12
3.3 Use of force against Non State actors prior to 9/11 attack 13
3.3.1 State attribution13
3.3.2 Anticipatory Self Defense in Customary International Law14
3.3.3 State Practices pre 9/1114
3.4 Use of force against Non state actors post 9/11 attack15
3.4.1 A different kind of threat.15
3.4.2 International Response to 9/11 attack..15
3.4.3 Bush Doctrine..16
3.5 The Law Today..16
4. Failures of United Nations and Necessary Reforms17
4.1 Failures...18
4.2 Reforms..19
5. Conclusion ..19

The maintenance of world peace and security depends importantly on there being a common
global understanding, and acceptance , of when the application of force is both legal and
legitimate1

1. INTRODUCTION
After the massive destruction caused by the two world wars all the nation states felt the necessity
to promote and preserve international peace and security. This led to the emergence of
international organizations like United Nations which served as a common platform for all the
1 Report of the Secretary-Generals High-Level Panel on Threats, Challenges and Change, a More Secure
World: Our Shared Responsibility (2004) UN doc. A/59/565 at 184
2

states to voice their concern and settle disputes using peaceful means. But with the passage of
time new challenges emerged and in several instances the world witnessed that international
organizations like United Nations failed to stand against those threats.
One of these challenges is the emergence of the Non-State Actors like ISIS( Islamic State of Iraq
and Syria), an organization which staunchly follows Jihadism. A Jihadist is a person who
believes that it is the religious duty of every Muslim to maintain and spread the religion.
According to them the non-believers in the world seek to destroy Islam due to which they have
to resort to violent means. Since its inception in 2004, the organization is responsible for
countless death all over the world.
The UN Charter provides for some general norms and laws for maintenance of international
peace and security which are endorsed by all the member states of United Nations. Article 2(4)
of UN Charter2 provides for prohibition of use of force or threat to the territorial integrity or
political independence of any state. But when all the provisions of UN Charter are read in
consonance it can be understood that there is no absolute prohibition on the use of force against
any state . The use of force is justified either when used under collective measure of Security
Council or when used as self-defense.
But there is no unanimous opinion as to what constitutes use of force and under what situations
the use of force is justified. It has been subject to different interpretations to meet the demands of
the changing circumstances.
The use of force against the Private actors3 like ISIS has been subject to different interpretations.
The main issue is that no action against actors like ISIS can be taken without infringing the
territorial integrity and sovereignty of the State which is harboring such organization. Such use
of force against the organization is justified only when the actions of the organization can be
attributed to the State i.e., the State is held responsible for the actions of that organization.
After 9/11 attack, the destructive capabilities of the private actors was recognized and has
sparked debate as to whether rules of self-defense need to be adapted with the developments in
international relations. Since then States who fail to or not willing to suppress the threats posed
by the terrorist organizations working within its boundary, have be held liable for their actions
and thus served as a justification of the use of force as self-defense by the victim State.
This research is an attempt to analyze the current status of law governing use of force against
non-state actors like ISIS and the interpretations it has received over the years. Further it
2 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI
3 The term private actor cab be interpreted as including any non-Stae actot =,
including terrorist groups and rebel groups. See K.Annan In Larger Freedom.
Towards development, security nad human rights for all Report of Secretary
General UN doc A/59/2005
3

analyzes the current state practice in dealing with ISIS and proposes appropriate reforms
required to address the threats posed by the non-state actors like ISIS.

2. STATUS OF ISIS AS NON STATE ACTOR

2.1 BRIEF HISTORY OF ISIS
ISIS was established in IRAQ during the year 2003 after the American invasion over Saddam
Husseins regime.American Force stayed at Iraq almost nine years for giving security cover and
trained Iraqi forces. But they failed to establish a effective Iraqi forces for which the dismental
Iraqi Army loyal to Saddam Husseins specially Sunnis are slowly started to damage the
Government established in Iraq. When American troops withdrawn from Iraq during the year
2001. Taking this advantage, a branch of Al-Qaeda which was already in Iraq since 2004 ties
with rebel group of Sunnies and started guerrilla-terroiest attack against American and coalition
forces and spread to Syria after the civil was began in Mar 2011. There were four stage when AlQaede and ISIS established in Iraq and Syria. The branch of Al-Qaeda established in Iraq led by
Abu Musub Al Zarquari, who created many terrorist attack against American and coalition forces
but ended when the killed by American forces during June 2006. After the end of the branch of
Al-Qaeda, ISI established in Iraq whose work was to give a network to all jihadi groups active in
Iraq and Syria for terrorist attack against America and its coalition allies. But ISI become weak
due to American presence and successful foreign policy with Sunni population. After the
American Army withdrew from Iraq, ISI become stronger and established their one branch in
Syria taking advantage of civil war in Syria called the Al-Nusra. ISI and Al-Qaeda merge
themselves and established the Islamic State in Iraq and Greater Syria (ISIS) In Syria, ISIS
captured and full control in Al-Raqqah and new leader named as Abu Bakr-al- Baghdadi. After
become leader of ISIS Baghdadi declare himself as Islamic Caliphate. Baghdadi recruited many
Jihadis in his group and established a huge terrorist network. They captured/takeover the full
control of Mosul of Iraq. Baghdadi carry out several terrorist attack against European country
such as gunned down a Russian Jet killing 224 passenger, Yemen Mosque bombing killing 230
people, Paris Charlie Hebdo killing 100 people etc. ISIS group beheaded so may captured soldier
of foreign and other group . USA declared a comprehensive campaign against ISIS. Several Air
attack on ISIS target at Iraq and Syria had been carried out. But ISIS till control a major portion
of Syria inspite of several aerial attack by USA.
2.2 STATUS OF NON STATE ACTORS IN INTERNATIONAL LAW
2.2.1 Concept
Traditionally nation states were the sole actors in the international relations. States were the only
entities involved in making and influencing international rules and regulations. But with the
advent of globalization, the horizon of international relations has widened and it witnessed the
4

emergence of other actors. With the increasing interdependence among States and with the
increasing intensity, speed and volume of global interactions, new entities have become powerful
enough to participate and influence the international law. 4
Such entities or organizations are known as non-state actors. There is no universal definition of
non-state actors.
According to Pearlman and Cunningham, non- state actors are defined as an organized political
actor not directly connected to the state but pursing aims that affect vital state interests.
Article 6 of the COTONOU Agreement states:
The actors of cooperation includes: state ( local, national and regional), b:Non-State:Private
Sector;- Economic and social partners, including trade union organizations; Civil society in all its
forms according to national characteristics.5
According to traditional classification non-state actors are divided into two categories:
International intergovernmental organisations (IGOs) which comprise of non-states actors
created by States. It is further classified into global IGOs like United Nation (UN), world
Trade Organizations (WTO) and regional IGOs like European Union (EU), Association
of South East Asian Nations (ASEAN)
Transnational or international non-governmental organizations which comprise non states
actots non created by states like Multi-National Corporations (MNCs) , NonGovernmental Organizations (NGOs), Terrorist Organizations, International Criminal
Groups etc6
The growing importance of the non-state actors lies in the fact that in the era of globalization
States alone cannot manage the global affairs . Non-State actors like MNCs or NGOs are not
only financially powerful but they also represent the individual rights which is the premise of the
international law. Hence they ought to have a voice in the international affairs.
But other armed non state actors like terrorist organizations, instead of playing any constructive
role, have been posing a serious threat to the global peace and security.
These developments has led to the growth of global governance. Global governance can be
defined as an attempt to identify, assess and address the trans-boundary problems which go
beyond the problem solving capacities of the states7
4 The Rise of Non-State Actors in Global Governance Opportunities and Limitations
a One Earth Future Discussion Paper by Thomas G. Weiss, D. Conor Seyle, Kelsey
Coolidge
5 Partnership Agreement Between the Members of the AFRICAN, CARRIBEAN and
PACIFIC Group of States of the One Part, and the European Community and its
Member States, of the Other Part, Signed in COTONOU, BENIN on 23 JUNE 2000
6 Lakhany, Farida. "How Important Are Non-State Actors." Pakistan Horizon 59, no. 3
(2006): 37-46. http://www.jstor.org/stable/41394369.
7 P.8 The Rise of Non-State Actors in Global Governance Opportunities and
Limitations a One Earth Future Discussion Paper by Thomas G. Weiss, D. Conor
Seyle, Kelsey Coolidge
5

2.2.2

Personality and Status of Non-State actors

An entity is a subject of international law if it possesses international personality. International

personality is acquired when the entity has the capacity to possess international rights and
obligations. According to Oppenheim International person is the one who possess legal
personality in international law, meaning one who is subject of International law so as to enjoy
rights, duties or powers established in International Law8
Therefore an entity is said to possess international personality if it possess rights, duties and have
the capacity to maintain those rights by bringing international claims.
The fact that a State possesses legal personality is undisputable but the question arises when it
comes to non-state actors. Since the concept of non state actors is relatively new phenomena
their position in the international relations is yet to be settled.
There are four essential elements of international personality
A treaty making power (jus tractatuum)
A right to send and receive diplomatic envoys (jus legationis )
A right to present claims based on international personality
A right to us armed force
Such powers must be clearly enumerated in the legal instruments of the entities concerned. Mere
possession of some rights and duties by an entity does not confer legal personality.9
Importance of having international personality
The primary object of conferring international personality on an entity is to hold the entity
accountable for its acts and omissions. When an entity possesses international personality it is
bound by the international obligations and it gives the victim state a right to seek reparation.
Generally States are reluctant to confer legal personality on non-state actors due to to reasons;
Firstly, they fear that giving legal personality to NSAs would diminish their role and Secondly, it
would mean legitimizing the unlawful acts of NSAs.
Pros and Cons of conferring legal personality upon NSAs
Conferring legal personality upon non state actors can have both positive and negative
consequences. Negative aspect is States can use them to evade their international obligation since
Non state actors cannot be held legally responsible for their actions. States may take advantage
of the situation and can use NSAs to meet their selfish interests by providing financial or military
support. Positive aspect is that NSAs like NGOs or MNCs may promote individual interests and
play active role in the decision making process.
8 P.63 International Law and Human Rights by H.O.Aggarwal 21 st Edition, Central
Law Publications
9 Pcs Journal of International and European Law - 2016/I Recognition and
International Legal Personality of NonState Actors1 Wadysaw Czapliski Professor
of International and European Law, Institute of Law Studies, Polish Academy of
Sciences, Warsaw, Poland
6

Thus, even though non state actors are treated as subject of international law, their legal
personality is debatable since they dont enjoy all the rights and obligations as enjoyed by the
States. However some international instruments have made an attempt to enlist the rights and
obligations of the non-state actors. Some of them are United Nations, CESC, General Comment no. 12, The Right to Adequate Food, 1999, no.
15, The Right to Water, 2002., no. 14, The Right to Highest Attainable Standard of
Health, 2000.United Nations,
Committee on the Right of the Child, General Comment no. 5, General Measures of
Implementation of Convention on the Right of Child (Arts. 4, 42 and 44 Para. 6), 2003.
ILO, C29 Forced Labor Convention, 1930.
OECD, Convention no. 29 Against Corruption, 1997. International Convention on Civil
Liability for Oil Pollution Damage, 1969.10
Rights and Obligations of Armed Non-State Actors like ISISWith respect to armed non-state actors 11it is the International Humanitarian laws which
prescribe their rights and obligations. International humanitarian law is a set of rules whichis
applied during the situation of war or armed conflict. It aims to protect the people who are not
involved in the hostilities by laying down provisions to regulate the methods of warfare.12
In 2004, the Appeals Chamber of the Sierra Leone Special Court simply held that it is well
settled that all parties to an armed conflict, whether states or non-state actors, are bound by
international humanitarian law, even though only states may become parties to international
treaties13
Under International Humanitarian law, the rights and obligations of armed non state actors may
arise in the following ways-

10 The Status of Non-state Actors under the International Rule of Law: Search for
global justice by Mohammed H.Zarei and Azar Safari
11 Geneva Call defines armed non state actors as organized armed entities that
are involved in armed conflict, which are primarily motivated by political goals and
which operate outside State control, thereby lacking legal capacity to become party
to relevant international treaties. These include armed groups, national liberation
movements and de facto governing authorities. http://genevacall.org/how-wework/armed-non-state-actors/
12 https://www.icrc.org/en/document/what-international-humanitarian-law
13 Prosecutor v. Sam Hinga Norman (Case No. SCSL-2004-14-AR72(E)) Decision
on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Decision of
31 May 2004, at para. 22.
7

A. The Law of Treaties

There are few treaties which imposes an international responsibility on armed non-state actors
like ISIS. Imposing international responsibility is crucial because violation of these obligations
would serve as a valid ground for the international organizations like UN or nations states to
initiate preventive or enforcement action against them.
Common Article 3 of the Geneva Convention14 lays down the obligations of each party involved
in an armed conflict occurring within the territory of one of the High Contracting Parties.
The word each party suggests that it applies not only to the states but also to non-state actors.
But the problems that treaties are only binding on the contracting parties and the Geneva
Conventions and other humanitarian laws are not open to ratification by armed non-state actors.
An exception to the general rule can be found in Article 96(3) of the 1977 Additional Protocol I
to Geneva Convention of 1949 15which enables the armed non state actors to make a declaration
and undertaking to be bound by these treaties. The reasoning behind making a third state bound
by these treaties are
It is established fact that treaties can create not only rights but also obligations for
individuals. For example obligations not to commit international crimes like
genocide or war crimes.
UN Charter, though its a treaty and should be binding only on the member states,
also makes non-member states bound to adhere to such conduct which is
necessary for the maintenance of international peace and security and also bring a
matter before general Assembly of UN and be bound by their decisions.16
Applying this reasoning to Common Article 3 to the Geneva Convention it can be assumed that
the article has acquired the status of customary international law and thus binding on all entities
including armed non-state actors.17

14 International Committee of the Red Cross (ICRC), Geneva Convention Relative to

the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12
August 1949, 75 UNTS 287, available at:
http://www.refworld.org/docid/3ae6b36d2.html [accessed 13 October 2016]
15 International Committee of the Red Cross (ICRC), Protocol Additional to the
Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, available at:
http://www.refworld.org/docid/3ae6b36b4.html [accessed 13 October 2016]
16 The Rights and Responsibilities of Armed Non-State Actors: The Legal Landscape
& Issues Surrounding Engagement Andrew Clapham Geneva Academy of
International Humanitarian Law and Human Rights
17 Nicaragua vs United Staes of America Internatiobnal Court of Justice (1986)
8

Similarly Article 4(3)(c) of 1977 Additional Protocol II 18 reads that children who have not
attained the age of 15 years shall neither be recruited in the armed forces nor allowed to take part
in the hostilities. This creates obligations for not only the states but all the on non-state actors as
well because the treaty is universal and comprises of an elemental consideration of humanity.19
B. Customary international humanitarian law
A law assumes the status of customary international law when it is widely practiced by many
states in the world and the law is believed to be a legal obligation on all the states( Opinio Juris).
Such laws are absolutely binding on all the entities and are non-derogable. But the problem with
customary international humanitarian law is that it only takes the practice and opinion juris of
states into consideration and gives no regard to armed non state actors.20
Once a law has become customary international law, it can be taken as a basis to prosecute
individuals for the commission of an international crime. Similarly it becomes binding on the
armed non state actor as well.
The International Committee of the Red Cross (ICRC)s study of customary international
humanitarian law adduced a series of rules (141 in total) applicable to any armed conflict of a
non-international character.

18 International Committee of the Red Cross (ICRC), Protocol Additional to the

Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609,
available at: http://www.refworld.org/docid/3ae6b37f40.html [accessed 13 October
2016]
19 The Rights and Responsibilities of Armed Non-State Actors: The Legal Landscape
& Issues Surrounding Engagement Andrew Clapham Geneva Academy of
International Humanitarian Law and Human Rights
20 Article 38 of the Statute of the International Court of Justice
9

3. SELF DEFENSE AGAINST NON- STATE ACTORS

Earlier there were no restrictions on the use of force. In order to expand the territory and to
amass resources states used to resort to violent means and commit mass destruction.
With the dawn of the twentieth century states realized that it was imperative to put some
restrictions on the unrestrained use of force. This led to the establishment of League of Nations
in 1919 and the Kellogs-Brian Pact of 1928 21. But with second world war the League of Nations
failed to serve its purpose. As a result the states felt the necessity to take a positive and effective
action which can help to preserve the peace and securiity of the world. United Nations was born
out of this necessity.
3.1 LEGAL CONCEPTS
3.1.1 Prohibition of use of force
UN Charter is regarded as the most comprehensive document which attempts to regulate and
tackle the issues with peaceful means.
Article 2(4) of the UN Charter provides that all members shall refrain in their international
relations from the threat or use of force against the territorial integrity or political independence
of any state.
The fact that there have been several violent attacks since its inception in 1945 doesnt mean
that it has lost its relevance. Moreover the law concerning refrain from use of force or threat of
force has assumed the status of Customary International law and thus binding on all actors of
international law.22
The word force used in Article 2(4) implies not only armed force but also economic force.
Since the exact meaning of force cannot be ascertained it has been subject to many
interpretations. The General Assembly has provided interpretative instruments of particular
importance, including the 1970 Declaration on Friendly Relations, which included in its analysis
of what constituted a use of force: wars of aggression, the violation of international frontiers, the
use of force in dispute resolution, reprisals, the use of force to deprive peoples of their right to
self-determination, organizing, instigating, assisting or participating in acts of civil strife or
terrorist acts, and forming armed bands for incursion into another States territory23
21 Treaty between United States and other Powers providing for renunciationof wars
as an instrument of national policy
http://avalon.law.yale.edu/20th_century/kbpact.asp
22 Case Concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States), ICJ Reports (1986) 14, para 190
10

Article 2(4) also prohibits the use of threat of force. For example threat to severe all diplomatic
ties or restricting trade in such a way that it causes loss to the other state.

There are three categories of force

Retorsion which refers to retaliating against the illegal activity of a state in a lawful
manner. Eg; severance of diplomatic ties ,economic and travel restrictions.
Reprisals which refers to retaliating against an illegal act of a State in an illegal manner.
Self Defense which refers to the right to use force against a state which has committed an
armed attack against the state
3.1.2 Self Defense
Article 2(4) is a general mandate to all the states to refrain from use of force in international
relations . But there are two exceptions to the rule Collective action through security council
Unilateral action in exercise of right of self defense
Article 24 of UN Charter provides that it is the primary responsibility of Security Council to
maintain international peace and security and under Article 42 it can take such action by air, sea
or land to maintain or restore peace and security. Article 51, on the other hand provides that it is
the inherent right of a member state to use force in self-defense if an armed attack occurs. The
exact parameters of the right of self-defense was clarified for the first time in 19th century in
Caroline Case in 1837. It proposed a test called Caroline Test to assess the validity of the use of
force in the name of self-defense. It provided that use of force as self defense in justified only
when there is, necessity of self-defence, instant, overwhelming, leaving no choice of means, and
no moment for deliberation and that the response involve nothing unreasonable or excessive,
since the act justified by the necessity of self-defence must be limited by that necessity and kept
clearly within it24. It was the Caronlie Case which introduced the requirement of necessity and
proportionality in exercising right of self defense.
3.1.3 Armed Attack

23 GA res. 42/22, The Declaration on the Enhancement of the Effectiveness of the Principles
of Refraining from the Threat or Use of Force in International Relations, 18 November 1987

24 Letter of Secretary of State Daniel Webster to Special Minister Ashburton, dated

27 July 1842
11

It was clearly stated in Nicaragua case that in the case of individual self-defense, the exercise of
this right is subject to the State concerned having been the victim of an armed attack25 So the
burden to prove that an armed attack has occurred is on the victim state.
Since the UN charter has not given a clear idea as to what constitutes an armed attack, it has been
left to subsequent interpretations.
From the words of Article 51 Two key elements are clearly established :
There must be use of military or paramilitary force
There must be some form of trespass

In both Nicaragua Case and Oil Platfoms Case26 it was reaffirmed that the armed attack must be
of sufficient gravity. An armed attack must originate from outside the victims state territory27
and must be aimed intentionally at the victim state

3.2 ANALYSIS OF ARTICLE 51 WITH REFERENCE TO NON STATE ACTORS (ISIS)

Article 51 of UN Charter provides that every member of UN has the inherent right of selfdefense when the State is under an armed attack. This is an exception to the rule enshrined in
Article 2(4) to refrain from using force or causing threat to the territorial sovereignty of another
State.
But it fails to contemplate a situation where violent activities are carried out by a non-state actor
like ISIS within the territorial limits of a State. In such situation the contention of self-defense
can be availed by the victim state only if the armed attack carried out by non-state actor can be
attributed to the territorial State.
Since 2004 ISIS has been carrying out armed attack targeting civilians and causing countless
deaths around the world. For instance Charlie Hebdo Paris attack in January 2015, Yemen
Mosque bombing, Tunisia beach resort shooting, Turkey Peace rally bombing , Paris attack on 13
November 2015 killing 130 civilians, California Shooting and Brussels bombing.
The question is whether these activities of armed non state actor like ISIS can be attributed to the
states and whether Article 51 can be invoked to justify the attacks against non-state actors
without infringing the territorial integrity of the State
25 Case Concerning Military and Paramilitary Activities In and Against Nicaragua
(Nicaragua v. United States of America); Merits, International Court of Justice (ICJ),
27 June 1986, available at: http://www.refworld.org/docid/4023a44d2.html
[accessed 13 October 2016]
26 Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of
America, International Court of Justice (ICJ), 6 November 2003, available at:
http://www.refworld.org/docid/414b00604.html [accessed 13 October 2016]
27
12

United States has given the following justifications for carrying out air strikes on the ISIS layers
in Syria in a letter to United Nations dated 23 September 2014;
i.
ISIS threatens Iraq
ii.
Iraq has stated United States assistance
iii.
ISIS has obtained safe havens in Syria and
iv. The government of Syria has been unable to confront ISIS effectively28
Here US has not argued that Syria has effective control over ISIS and thus its argument is
departure from what was held in Nicaragua case in 1986. In the case it was held that the victim
state can invoke its right of self defense against the non state actor functioning within the
territorial limits of the other state only when the non state actor is under effective control of that
state.
One of the biggest terrorist attack on US soil on 11 September 2001 has drawn attention of the
entire world towards need to revist the existing laws and propose necessary changes to combat
the terrorist groups.
3.3 USE OF FORCE AGAINST NON STATE ACTORS PRIOR TO 9/11 ATTACK
One of the fundamental principle of international law since 1648 Peace of Westphalia has been
State Sovereignty. Article 2 of UN Charter also provides sovereign equality of all states as one
of the principles which all the stat4s are bound to follow. Based on this principle Article 2(4)
prohibits use of force in international relation . But Article 51 is an exception which permits use
of force in self defense only if the state is under an armed attack. UN charter does not define
armed attack but ICJ in Nicaragua case held that the only most grave forms of the use of force
constitute an attack 29
3.3.1 State Attribution

28 How the War Against ISIS Changed International Law by Michael Scahrf
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2741256
29 Nicaragua vs U.S. 1986 I.C.J. 14
13

ICJ has made it clear in several cases including Nicaragua30, Oil Platforms31, The Wall Advisory
Opinion32 and the Congo case33 that the victim state cannot exercise its right of self defense
against a non state actor operating within the territorial limits of a state unless the acts of the non
state actor is attributable to the territorial state. This is because when a terrorist group ehich is
physically present and carrying out illegal activities and the territorial state doesnt have effective
control over its activities then use of force against the state which generate conflict between two
fundamental principle : one is the territorial integrity and sovereign equality of states and the
other in the renunciation of force in international relations34
The reasoning behind this principle of attribution is that a State cannot be hold accountable for
all the activities which are hatching in its territory. If it were then Russia might be held
responsible for the unlawful activities carried out by Russian Mafia
Hence to use force against a terrorist organization whose activities are not attributable to the
territorial state is itself an unlawful act and in turn gives rise to that state to exercise right of selfdefense.
What constitutes an armed attack and whether the terrorist group is under effective control of the
territorial state varies from one case to another. In Nicaragua Case it was held that sending armed
bands to the territory of another stare would amount to an armed attack but the supply of
weapons and other support cannot be equated with armed attack. In this case ICJ found that the
acts of US assisted Nicaraguan rebel groups called contras cannot be attributed to the contras
since US was not in direct control of all the activities of contras and hence didnt have effective
control.
3.3.2 Anticipatory Self Defense in customary International Law
It refers to the use of force in order to thwart a future attack which is reasonably believed to be
imminent. The concept recognizes that no state is required to wait for the attack to actually
happen before it can exercise its right of self defense because if it is the caser then inspite of
sensing the danger it may have to jeopardize its existence. Anticipatory self defense has its
customary international law origins in the Caroline incident of 1837
30 1986 I.C.J. 14
31 Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of
America, International Court of Justice (ICJ), 6 November 2003, available at:
http://www.refworld.org/docid/414b00604.html [accessed 13 October 2016]
32 Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July 2004,
available at: http://www.refworld.org/docid/414ad9a719.html [accessed 13 October
2016]
33 Armed Activities on the Territory of the Congo, Congo, the Democratic Republic
of the v Uganda, Judgment, Merits, ICJ GL No 116, [2005] ICJ Rep 168, ICGJ 31 (ICJ
2005)
34 U.N.Charter Article 2 Para 1,4
14

3.3.3 State practices pre 9/11

1985- Israel and Tunisia
Israel attacked PLO Headquarters in Tunisia. According to Israel it was exercising its right of self
defense in response to terrorist attacks against Israelis abroad and argued that Tunisia had
responsibility to prevent those attacks. The argument presented by Israel was rather unique since
it contended that it was exercising its right of self defense only against the terrorist group. It was
not trying to attribute the acts of the terrorist group on the territorial state. Instead it justified its
attack on Tunisian soil because of the failure of Tunisia to suppress the activities of the terrorist
group. This view was accepted by U.S. but rest of the members considered the Israeli conception
of self defence very different from what existed under international law.35 The view that was
generally held was that right of self defense cannot be exercised against non states as separate
entities and hence Tunisia cannot be held liable.
1993- United States and Iraq
On 26th June US notified Security Council that in exercise of its inherent right of self defense
under article 51 it has fired missiles at the Iraqi Intelligence headquarters in Baghdad. According
to US the action is justified because there was an attempt to assassinate the ex us president Bush
during his visit to Kuwait by Iraqi terrorists. This argument received support from only Russia
and UK. According to UK it is justified to use force in self defense when the target continues to
be used in support of terrorists and there is no other way to respond.

3.4 USE OF FORCE POST 9/11 ATTACK

When the rules governing the use of force was introduced the only entity which was likely to
pose threat were the States. It was believed that only States can be involved in armed conflict
because only they had the capacity to disturb the peace and order of the world. Non state actors
like pirates, guerillas, drug traffickers were not regarded as threat as oppose to well organized
and well-funded and potent armed forces of the enemy states. It was only after the terrorist
attacks on 11 September 2001 that the non state actors were viewed as real threats. The States
realized that a small group of non state actors emerging from a failed state without government
can exploit the highly destructive technologies and can cause mass destruction..36

35 1985 UNYB 285 SC 2610th and 2615th meetings (1985)

36 How the War Against ISIS Changed International Law by Michael Scahrf
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2741256
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3.4.1 A Different Kind of Threat

In August 1996 Osama bin laden founded a small organization called al-qaeda. It comprised of
people who were pursuing Jihad i.e, a holy war against American forces in Saudi Arabia. In
February 1998 bin laden issued a fatwa which declared that it is the duty of evry muslim of the
world to kill Americans and its allies. Within a very short time it emerged as a powerful, well
funded and well organized terrorist organization with thousands of supporters across the world. It
attacked many US targets but the 9/11 attack on World Trade Centre and Pentagon in US shook
the whole world when its death tolls reached 3000 which was more than American casulaties in
war of 1812 or the Japanese attack on Pearl Harbor in 1945.
After the 9/11 attack the notion that armed attacks can be carried out only by states began to
change. Post 9/11 the threats were mainly posed by stateless entities that possess many attributes
of the states like wealth, training, organizations, access to weapons. When these terrorist groups
continue to launch attacks and claim lives it is justified to use force as self defense against the
non state actors especially when the territorial state fails to or is unwilling to suppress the threats
posed by such organizations
3.4.2 International Response to 9/11 attack
A day after the 9/11 U.S. notified the securitity Council that it is a victim of armed attack and
will exercise its right of self defense as provided under article 51 of UN charter. North Atklntic
Tratty Organization(NATO0 for the first time in history invoked Artickle 5 which declaresthat an
attack on one state will be regarded as attack on all the states.The same stance was taken
Organization of American stares though the OAS Resolutiuon 797.
On October 7 US launched Operation Enduring Freedom and carried out several air strikes on
al-qaeda camps throughout Afghanistan. Though the act was not in tune with the notion of self
defense provided under Article 51 but it recived massive support from all he nation sof the
world.
The attacks conducted by US was a clear departure from the principle esatablied in the
Nicaragua case because use of force against Al-Qaeda, which is non state actor based in
Afghanistan , is justified only when the Taliban regime of Afghanistan had effective control over
the terrorist organization.
It could not be conclusively proved that the taliban regime has effective control over Al-Qaeda.
The Taliban Government refuted all allegations and refused to extradite bin-laden
3.4.3 The Bush Doctrine
A week after the terrorist attacks of 9/11 the United Stares announced the Bush Doctrine . The
essence of the doctrine can be summed up in this statement made by the then President George
Bush we will make no distinction between the terrorists who committed these acts and those
who harbor them
The rule established under Nicaragua case was completely discarded and the Bush doctrine was
endorsed by most nations of the world. This rule was first recognized by International Court iof
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Justice in the 1949 Corfu Channel case 37where the fact that presence of mines in the Albanian
territorial waters was not within the knowledge of Albania was ignored and Albania was held
liable for the damage caused to the British Warships.
The principle is similar to neutrality rule adopted in Hague Convention V.38 According to the
Hague Convention neutral powers may not permit belligerents to move troops, supplies or
allow their territory to be used to form corps of combatants or recruiting agencies or facilitate
them in any other manner. It will be justifies to attack enemy forces in the territory of neutral
state if they are found to supporting them in any manner
3.5 THE LAW TODAY
UN Special Rapporteur Philip Alson summed up the current state of la in the following words:
The us eof force by one state against another doesnt violate the territorial sovereignty of that
state and is justified when
Firsty the targeting state has a right under international law to use force ion self defense under
article 51 of UN Charter.
Secondly, if the targeted state is unilling or unable to stop armed attack launched from its
territort

4. FAILURES OF UNITED NATIONS AND REFORMS REQUIRED

9/11 was one of the deadliest terrorist attack in the Western World killing thousands of people
and injuring even more. After the 9/11 attack Counter-Terrorism Committee was established
under Security Council Resolution 1373 (28th September, 2001).
The Committee, comprising all 15 Security Council members, was tasked with monitoring
implementation of resolution 1373 (2001), which requested countries to implement a number of
measures intended to enhance their legal and institutional ability to counter terrorist activities at
home, in their regions and around the world, including taking steps to:
Criminalize the financing of terrorism

Freeze without delay any funds related to persons involved in acts of terrorism

Deny all forms of financial support for terrorist groups

Suppress the provision of safe haven, sustenance or support for terrorists

37 Corfu Channel Case (United Kingdom v. Albania); Merits, International Court of

Justice (ICJ), 9 April 1949, available at:
http://www.refworld.org/docid/402399e62.htm l [accessed 13 October 2016]
38 Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and
Persons in Case of War on Land, U.S.T.S. 540, 2 A.J.I.L. Supp. 117
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Share information with other governments on any groups practicing or planning terrorist
acts

Cooperate with other governments in the investigation, detection, arrest, extradition and
prosecution of those involved in such acts; and

Criminalize active and passive assistance for terrorism in domestic law and bring
violators to justice.
After Resolution 1373 till date there has been 30 more resolutions based on terrorist. All the
resolutions are based upon events that occur all around the world.
Resolution 1373 lays down legal obligations of a general character has caused many to
characterize it as a form of legislation on the part of the SC. Then there is resolution 1540
concerning the proliferation of weapons of mass destruction, which presents similar features. All
the resolution has been adopted under chapter VII of Charter of United Nation. Rules and
regulations are laid out but the hard part of this step is implementing the measure by the Member
States as it is mostly domestic implementation.
The measurement of the implementation are the worst part as it is a daunting task to measure the
performance. Furthermore, to provide an evaluation of the implementation measures of relevant
SC resolutions almost inevitably also entails an assessment of the latter.
Latest on ISIS news.
According to the New York time more than 1200 people has been killed outside of Iraq and Syria
within last year. All the attacks were inspired and coordinated by the Islamic State. Half of the
victims killed in the attacks were Westerners. The total number of people killed by terrorist is
more than 30,000.
The latest attack by ISIS claimed lives of 83 and injured 303 people of which many people are in
intensive care. This incident took place in NICE, France on July 14th, 2016 on Bastille Day. The
story here is that a man who was driving an 18 ton truck drove through where people were
celebrating Bastille Day.
On a Friday night people were listening and enjoying in a concert hall, the Bataclan. Three
gunman armed with assault rifle entered the hall and started shooting at 9:30 and it kept on going
till midnight. Till the time authorities stormed in the hall they had killed 86 people and one of the
gunman was shot dead and the two detonated their suicide vest. In total the Islamic State had
taken lives of 129 and 352 injured. After the attack the Islamic State promised to further
traumatized France and other European nation.
Mr. Hollande vowed to be unforgiving with the barbarians from Daesh, adding that France
would act within the law but with all the necessary means, and on all terrains, inside and
outside, in coordination with our allies, who are, themselves, targeted by this terrorist threat.
ISIS has been targeting Non-Western Countries as well. They have killed thousands of their own
people. In the past few years they have Bombed Egypt, Yemen, Kuwait, Turkey, Laban one,
Bangladesh. They are killing people in Muslim countries because they do not consider them a
proper follower of Islam. There are two group Shia and Sunni it is also a war between
civilizations.
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After all the killings, kidnapping, bombing etc. we can come to a conclusion that ISIS attacks the
world without the question of religion. ISIS hate the Arabic countries because they do not follow
proper Islam and Arabic country hates ISIS for insulting their religion and consider them an
insult in the name of religion.
4.1 FAILURES OF UN
United Nation is a powerful organization that looks after maintaining peace and security for all
its members. In Chapter 1 of Charter of The United Nation they have talked about purpose and
principle of the organization. In Chapter I, Article 2 (4) it is stated that All Members shall
refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations. This statement does not allow a country to use force and act
violently against any other member due to which there is slow progress in attacking the terrorist
group.
A. Decision Making
There are long running conflicts that has not been resolved in different parts of the world- Africa,
Europe, and Middle East. The decision making process is a difficult task, the decisions made by
the Security Council are blocked by veto power countries. The problem in Darfur is still
unresolved as the progress is blocked by china as Sudan is one of its major supplier of oil and
wants to protect its financial interest. United States is a permanent member of the UN following
the principle of peace and security but the problem is that United States is itself providing
weapons to Israel which increases violence and bloodshed in the area. The decision making
process is one of the main reason why UN has failed to fight against the terrorism.

B. No separate army unit.

All the countries have their own military to protect themselves from any threat that may come
upon them. But when we talk about the United Nations they do not have their own military force
that can respond to the violence or war. Due to which they do not have control over warfare
against humanity. But they do have department of peacekeeping operations. Peacekeepers
monitor and observe peace processes in conflicted areas. The personnel who are part of this
group are brought in from member states. They maintain peace and provide help in the conflicted
zones, they have the military skills but they are always on the defensive and do not attack.
C. Ignorant about situations.
The first known Modern day terrorism began in 1968, when Palestine terrorist group hijacked EI
AI Israel flight 426. United Nation failed to take any action against the terrorist group and it
continued till the end of 20th century. United Nation finally took some action when 9/11 terrorist
attack took place. UN outlawed terrorism and punished the responsible ones. This law applied
only to Al Qaeda and Taliban only, other group such as Hamas, Hezbollah, and Mossad were
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unaffected . After the 9/11 incident, UN passed a resolution 1373. In this resolution freeze
terrorist financing, pass anti-terrorism laws, prevent suspected terrorists from traveling across
international borders, and order that asylum seekers be screened for possible terrorist ties. Even
this resolution was criticized by many. The resolution did not mention human rights at all and
adequate resource was not allocated to perform this action in such a scale. This is one the
greatest failure of United Nation till date.

4.2 REFORMS
Crimes against humanity are serious crimes murder, slavery, torture, rape, etc. UN a platform
where all the nation looked up to find solution. Everyone has to unite against terrorism and bring
peace in this world.
UN Security Council has the power to eradicate terrorism by bringing out laws to slow down the
act of terrorism in the world.
UN Security Council has established Counter Terrorism Committee this group was formed to
take care of terrorism in this world. With various situation UN SC brings out different resolution
to fight the terrorism. This is a good thing but just bringing out different resolution in not
enough, actions must be taken too.
Having a clear vision.
There should be a clear vision of what they want and should do. They should have a good plan to
eradicate terrorism. All the countries should come together discuss the situation and bring their
contribution in eradicating terrorism. A united group of countries can do a lot to counter
terrorism.
Performance Measurement
Formation of Counter Terrorism Committee was a good move but the performance should be
measured from time to time. This involves checking progress and taking action accordingly. UN
counter Terrorism efforts has to be systematically sought to measure the impact of the action and
identify the comparative advantage of the organization. UN should pay attention to various
details like finance, political and human resource deployed. This helps in creating a proper and
systematic way of allocating resources.
Countering Poverty
Countering Poverty can solve a lot of problems in the world of terrorism. Most of the country
that is under poverty is a victim of terrorism. In the year 2014, 276 girls were kidnapped in
Chibok from a Government School, till date the terrorist had released only few girls, all the nonMuslim girls were converted to Islam and some girls were sold as bride for $12.5. If United
Nation and World Bank work to promote jobs and development in the poor countries then there
can be a lot of development and can counter terrorist individually as a country.
Removal of Political Division
The UN is beset by the political division, various UN bodies has refused to recognize Palestinian
violence against Israel as constituting terrorism. While the U.S., the European Union and others
favour a definition of terrorism that includes all violence against civilians, the 56 member
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Islamic Conference Organization insists on exempting "national liberation movements" and

"resistance to foreign occupation" from the definition. The political division has impacted a lot in
defining terrorism due to which the various bodies and divisions cannot take action against the
real problem. This political division should be eradicated to make and take decisions.
Every actions has its consequences and all the steps taken can be crucial. United Nation has to
take all the necessary action swiftly and at the right time to fight the war against terror. Every
individuals and countries should rise and join the war against terror bring peace to our world.

5. CONCLUSION
The United Nations Security Council increasingly emphasises the need for a comprehensive
approach to countering the spread of terrorism and violent extremism. One aspect of such an
approach has come to be known as countering violent extremism
United Nation is the most powerful organization in the world and looks after peace and security
of the world. This organization has done a lot to bring out peace but has done a lot to bring peace
to the world but they have done a lot of mistakes too. No one is perfect and everyone makes
mistake but they can be rectified. United Nation has the capabilities and is suited to fight the
global spread of terrorism. United Nations has a universal appeal to coordinate global effort to
defeat terrorism. Therefore any individual war on terror by the effected states needs to be
coordinated at the overall universal effort since the origin of the terrorist activities are certainly
conceived in the another or targeted state. There is underlying need to provide full support to the
world body by the member states in leading the fight and any differences in defining the
terrorism should be worked out so that the efforts are not marginalized.

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