Table of Contents

1. INTRODUCTION .......................................................................................................................... 4
1.1. Statement of Problem .............................................................................................................. 5
1.2. Research Questions ................................................................................................................. 7
1.3. Hypothesis............................................................................................................................... 8
1.4. Objective of the Research ....................................................................................................... 8
1.5. Scope of the Research ............................................................................................................. 9
1.6. Literature Review.................................................................................................................. 10
1.7. Research Methodology ......................................................................................................... 11
1.8. Tentative Chapterisation ....................................................................................................... 12
2. THE ARMED ATTACK CRITERION FOR SELF-DEFENCE AGAINST NSAs..................... 14
2.1. Interpretation of the term Armed Attack ............................................................................ 14
2.1.1. Reference to the Provisions of the UN Charter ............................................................. 15
2.1.2. Reference to the Provisions on the UNGA Definition of Aggression .......................... 17
2.2. The Concept of Animus aggressionis ................................................................................... 18
2.2.1. Animus Aggressionis under the UNGA Defintion of Aggression ................................. 18
2.2.2. Relevance of Animus Aggressionis according to the ICJ .............................................. 20
2.2.3. The concept of Animus Aggressionis under Customary International Law .................. 22
2.3. The notion of Accumulation of Events .............................................................................. 25
2.3.1. The concept of Accumulation of Events under Customary International Law .......... 25
2.3.2. Position of the ICJ on the concept of Accumulation of Events .................................. 27
2.4. Small Scale Incursions by NSAs .......................................................................................... 29
3. STATE RESPONSIBILITY FOR TRANSNATIONAL ARMED ACTIVITIES OF NSAs ....... 32
3.1. International Law governing the Attribution of State Responsibility ................................... 33
3.1.1. ILC Draft Articles on State Responsibility for the armed actions of NSAs ................. 33
3.1.2. Position of the ICJ on State Responsibility for the Armed Actions of NSAs ............... 35
3.1.3. Customary International Law regarding State Responsibility for Acts of NSA ........... 38
3.1.4. Response of the UN towards State Responsibility for Acts of NSAs ........................... 39
3.2. Relationship between the State and the NSAs in order to attribute State Responsibility ..... 40
3.2.1. State Sponsorship of NSAs ........................................................................................... 41
3.2.2. State Support of NSAs .................................................................................................. 41
3.2.3. State Toleration of NSAs .............................................................................................. 41

1
 3.2.4. State Inaction against NSAs .......................................................................................... 42
3.3. Direct Responsibility for the Actions of NSAs ..................................................................... 42
3.3.1. Effective Control Test by the ICJ ................................................................................. 43
3.3.2. Overall Control Test by the ICTY ................................................................................ 43
3.4. Indirect Responsibility: The case of Harbouring NSAs ........................................................ 44
4. THE LEGALITY OF PRE-EMPTIVE SELF-DEFENCE AGAINST NSAs .............................. 50
4.1. The notion of Anticipatory Self-defence............................................................................... 50
4.2. Classification of Anticipatory Self-defence .......................................................................... 51
4.3. Pre-emptive Self-defence against NSAs ............................................................................... 53
4.3.1. Arguments in favour of Pre-emptive Self-defence ....................................................... 53
4.3.2. Arguments against Pre-emptive Self-defence ............................................................... 54
4.4. The National Security Strategy and Preventive Self-defence Against NSAs ....................... 56
4.4.1. The US National Security Strategy of 2002 .................................................................. 57
4.4.2. Application of Preventive Self-Defence by the US against Iraq ................................... 59
4.4.3. Critical Response of the International Scholars on Preventive Self-defence ................ 61
4.5. Role of the UNSC in the application of pre-emptive self-defence against NSAs................. 64
5. THE POSITION OF THE SECURITY COUNCIL ON SELF-DEFENCE AGAINST NON-
STATE ACTORS ................................................................................................................................. 70
5.1. Role of the UNSC under Chapter VII of the UN Charter ..................................................... 72
5.2. Position of the UNSC against NSA prior to Resolution 1373 .............................................. 73
5.2.1. UNSC Resolution 1267 and 1333 ................................................................................. 74
5.3. The Adoption of UN Resolution 1373 .................................................................................. 75
5.3.1. Creation of the CTC under Resolution 1373................................................................. 77
5.4. Position of the UNSC against NSA after Resolution 1373 ................................................... 78
5.4.1. The UNSC Resolution 1540 ......................................................................................... 78
5.4.2. The 1566 Working Group ............................................................................................. 80
5.5. Possible Role to be essayed by the UNSC to tackle the threat from NSA ............................ 81
6. CONCLUSION ............................................................................................................................. 85
6.1. Relevant Findings and Testing of Hypothesis ...................................................................... 94
6.2. Recommendations and Suggestions ...................................................................................... 98
7. BIBLIOGRAPHY ....................................................................................................................... 101
7.1. International Conventions ................................................................................................... 101
7.2. ILC Materials ...................................................................................................................... 101
7.3. UN Documents and Resolutions ......................................................................................... 101

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7.4. List of Cases........................................................................................................................ 103
7.5. National Documents............................................................................................................ 104
7.6. List of Books ....................................................................................................................... 104
7.7. List of Articles in Edited Books .......................................................................................... 105
7.8. List of Online Journal Articles ............................................................................................ 106
7.9. Online Resources ................................................................................................................ 109
7.10. Newspapers and Magazines ............................................................................................ 109

3
 1. INTRODUCTION

The fundamental objective of the formation of the United Nations Organization is to

ensure the maintenance of international peace and security. The most significant provisions
governing the international relations between states in the event of any dispute is contained in
Article 2 of the UN Charter. Article 2 of the UN Charter which is an enlistment of the
principles of the UN to be followed by all its members, enjoins its members to settle
international disputes in a pacific manner1 and to refrain from the threat or use of force2 in
their international relations. Thus, the Charter has also reinforced the commitment comprised
in the Kellogg-Briand Pact to renounce war in the settlement of disputes. In particular, Article
2(4) mandates the prohibition of threat or use of force by States in the conduct of their
relations with other members. However, it is widely recognised that the aforesaid Article on
prohibition of use of force has two exceptions specified within the UN Charter itself. The first
such exception is the enforcement actions by the Security Council pursuant to provisions of
Chapter VII of the Charter.3 The second exception relates to the right to individual and
collective self-defence.4

In the contemporary world, the international relations between states have not seen a
war of the magnitude of the Second World War since the establishment of the UN;
nevertheless it is also not the case that there exists a status of lasting peace between the states
of the world. It is to be remarked here that the UN was successful in negotiating the most
turbulent international scenario in the history of international relations: the Cold War, which
threatened to erupt into a full scale nuclear war resulting in the destruction of the entire
planet. The UN has been able to achieve its primary objective of international peace and
security to a large extent and wars between nations have relegated to a few sporadic
instances, mostly in the Third World nations and the ethnic clashes of the Eastern European
nations.

Nonetheless, the threat to international peace is now posed by a completely different

source, one which has neither any clear allegiance to the government of any nation nor any
determinative territorial limits. These agents, better known as non-state actors under the
domain of international law, possess the potential of serious threat to international peace and

1
UN Charter, Article 2(3)
2
UN Charter, Article 2(4)
3
UN Charter, Article 39
4
UN Charter, Article 51

4
security. The power and influence of these entities has increased manifold in the last few
decades and today these non-state actors have attained armed capabilities similar to those
possessed by the military of advanced nations and can cause consequences of far-reaching
outcomes.

The notion of self-defence which was previously envisaged in case of an armed attack
on the member of the UN has now had to evolve in order to counter the challenges posed by
these emerging threats in the international scenario. As a consequence, the traditional notion
of the principles of self-defence has undergone severe changes in the light of the
unprecedented world events that have taken place in the recent past. The present paper shall
be study into the principles of self-defence and the its changing notions in the era of threat
created by non-state actors.

1.1.Statement of Problem

Prior to the twentieth century, war was the norm and although the principles of self
defence were not unknown but they were rarely invoked and existed for purely political
reasons. The international scene changed in the twentieth century with the volatile outlook of
the nations of the world leading to a massive rise in the frequency of international conflicts.
Moreover, with the gradual escalation in the impact of destructive weapons, the level of
devastation inflicted on the world has also aggravated. It is in this era of destruction that the
significance of the notion of prohibition of use of force augmented and along with it the
principles of self-defence also gained in prominence. The first international agreement which
invalidated war as an instrument of national policy was the Kellogg-Briand Pact of 1928.
These developments highlight that the status of war was being undermined in order to
advance international peace and security. Nevertheless, the experience of the Second World
War reiterated the necessity for the formulation of a more compelling and robust international
regime to prevent the outbreak of similar wars in the future. All of this culminated in the
establishment of the United Nations Organization and the adoption of the UN Charter by the
nations of the world.

However, the principle of self-defence has undergone immense changes in the period
since the enactment of the Charter provisions till date. The pivotal phenomena which has
been influential in this broader interpretation of the notion of self-defence under international
law is relating to the rise of international terrorist acts which also comprises of transnational

5
armed attacks on foreign states. However, to classify such activities as acts of terror is
fraught with controversy as the actors themselves claim to be engaged in such activities in the
name of liberation. Therefore, it is unsuitable to label such phenomena as terrorist acts rather
the more appropriate phrase will be non-state actors engaged in international armed attacks.
It is reiterated that the international community despite repeated efforts has failed to arrive at
a universally accepted definition of the terms terrorism and terrorists and therefore, the
term non-state actors or NSA has been used hereinafter throughout the course of this written
record of research to denote the so-called terrorists.

There has been a broadening of the application of the principles of self-defence in

order to counter these NSA. The change in the principle can be observed when one compares
the situation from 1970 onwards to the National Security Strategies of the US Government
following the unprecedented attack on American soil by non-state actors based in
Afghanistan. The threat posed by non-state actors in the contemporary world has attained the
level similar to that possessed by the most advanced nations today. The advent of modern
technology and globalization has rendered the availability of weapons of mass destruction
and accessibility of finance to obtain such weapons at the doorstep of these non-state actors.
Therefore, the non-state actors are able to initiate their armed attacks against other nations
from a safe position based in other countries. Herein, the question of attribution of state
responsibility for the actions of the non-state actors based within their territory comes into
prominence. The imputability of responsibility is not as straightforward as it appears, since
the level of interlinkage between the state and the non-state actors varies form case to case.
The application of self-defence against non-state actors based in another state in the instance
of absence of state responsibility becomes a big issue, as it would amount to violation of the
peremptory norms of international law such as territorial integrity and non-intervention in
international affairs. Thus, in order to invoke the principles of self-defence, it is imperative
that the state must be attributed international responsibility and it is yet to be clearly
determined as to in what cases can the state be held responsible for the actions of non-state
actors.

It is pertinent to present the precise contents of Article 51 at this point:

Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken the measures necessary to maintain

6
 international peace and security. Measures taken by Members in the exercise of this
right of self-defence shall be immediately reported to the Security Council and shall
not in any way affect the authority and responsibility of the Security Council under
the present Charter to take at any time such action as it deems necessary in order to
maintain or restore international peace and security.

The point to be noted in the above phraseology of the above mentioned provision is that it
does not specify at any place whether such act of self-defence can only be initiated against a
State or can it also be invoked against non-state actors residing within the State. The other
thing which cannot be determined from the terminology of the provisions is whether the
principles of self-defence can be invoked in circumstances where the actual armed attack has
not occurred, i.e. in situations of evident threat of an armed attack emanating from the non-
state actors based in another territory. It is in the light of these conflicting issues, the
principles of self-defence have to be analyzed to determine the boundaries in order to probe
whether the actions of the US-led invasion of Afghanistan and Iraq are justified or for that
matter whether the recent so called surgical strikes initiated by India against Pakistan are
legally justified or not.

1.2.Research Questions

The following research questions are pertinent to the completion of this project:

1. When does an action by a NSA qualify as an armed attack for the purpose of invoking
self-defence under Article 51 UN Charter?
2. Can principles of self-defence be extended against States for the activities of the
NSAs?
3. Can the principles of self-defence be invoked in a pre-emptive manner against the
transnational armed attacks by NSAs?
4. What role has the UN Security Council played in tackling the problems posed by the
transnational armed attacks by NSAs?

7
 1.3.Hypothesis

The present research shall analyze the legal boundaries of the application of the
principles of self-defence under international law, in the light of the modern expansion of the
concept into previously uncharted territories such as the response to transnational armed
attacks by non-state actors. There is an abundance of research conducted in this realm
particularly in the aftermath of the unprecedented transnational attack on the USA in
September, 2001 by non-state actors based in Afghanistan and the consequent response of the
USA in invading Afghanistan. Differing stance has been taken by research scholars, while the
international community has not resolved any concrete regulations as to the legal validity of
such an action undertaken by the USA. The research herein shall examine the various
literature and previous research on the relevant topics to come up with a substantial
conclusion. In the meanwhile, the working hypothesis to be taken up is as follows:The
principles of self-defence enshrined Under Article 51 of the UN Charter is not adequate to
tackle the problem of non-state actors involved in transnational armed attacks and is liable
to be misused by States to their benefit to launch attack on other States.

1.4.Objective of the Research

The principle of self-defence has evolved over the years and its current version is not
in strict consonance with the original description in the Charter provisions. The contemporary
extension of the principles of self-defence is in response to tackle the threats posed by non-
state actors engaged either in international armed attacks in general or armed attacks against
the government of a State in the name of liberation movements. The former relates to
application of self-defence by the victim state against the state where the non-state actors are
residing such as the US-led invasion of Afghanistan in the aftermath of the violent incidents
of 11 September, 2001. The latter relates to the indirect military support by a State to the non-
state actors of another State engaged in armed activities against the government of that State,
as seen in the case of Nicaraguan Contras backed by the USA in the Nicaragua5 case. The
essence of this approach ultimately relies on the attribution of international responsibility to
the State for its link with the non-state actors which varies from case to case. In the present

5
Case concerning Military and Paramilitary activities in and against Nicaragua, (Nicaragua v. United States of
America) ICJ Report 15-150

8
international stage, relations between India and Pakistan are strained on the issue of
Pakistans support to the Kashmiri non-state actors engaged in armed activities as well as
Pakistan harbouring people and groups who are responsible for international armed attacks on
India. Similarly, the situation between the USA and its allies on the one hand and North
Korea is rather hostile with regard to the pursuit of nuclear proliferation programs by North
Korea. Most importantly, the ISIS group based in Syria and other countries of the Middle-
East may pose significant responses for self-defence. Can self-defence be invoked in any of
these circumstances to resolve the issues? The Charter provisions on self-defence had not
anticipated these situations and the terminology used in the same do not specify two crucial
points: Firstly, whether the act of non-state actors in instigating a violent attack on a state
constitute armed attack within the meaning of the term in Article 51 and can self-defence
be applied against such non-state actors? Secondly, whether the act of self-defence can be
invoked in anticipation of an armed attack, especially when no attack has apparently been
instituted? The object of the present research is to examine the answers to such questions and
to arrive at an inference which can encompass the boundaries and limits to the principle of
self-defence in the absence of any manifest international agreement or cogent customary
international law governing the issue.

1.5.Scope of the Research

The scope of the research is limited to ascertaining whether the use of force by a State
against non-state actors positioned in another State be encompassed within the principles of
self defence under international law. The research shall be focussed on discerning the ambit
or boundaries of the principle of self defence in the contemporary international law, where
the traditional notions have undergone a profound change in approach since the advent of
transnational armed activities by non-state actors which need not necessarily reflect a State.
The approach towards the research on the aforementioned central theme shall also involve
analysis of the transnational armed attacks conducted by non-state actors. Further research
shall be undertaken into the question of imputability or attribution of state responsibility to
the State where the concerned non-state actors are based, and the legitimacy of instituting use
of force against a State under the principles of self defence when no manifest connection
exists between the State and the non-state actors. Further, the research shall also include a
scrutiny of the validity of pre-emptive and preventive actions of self defence against the

9
threat of international armed attack by the non-state actors, especially in the light of the
instantaneous nature of the attacking abilities possessed by them rendering any act of self-
defence futile. Finally, the change undergone in the attitude of the UNSC in its reaction
towards the application of the principle of self-defence against non-state actors shall be
examined and the possible future role to be played by this organ of the UN shall be discussed.

1.6.Literature Review

Greg Travalio and John Altenburg, Terrorism, State Responsibility and the Use of
Military Force: 4 CHICAGO JOURNAL OF INTERNATIONAL LAW, 97-119
(2003)

This article begins with an assertion of approaching terrorism through two distinct
approaches: firstly, the law enforcement approach and secondly, conflict management
approach or in simpler terms an approach involving use of force. Although, the author has
made the cardinal mistake of branding the actions of non-state actors as terrorism however
he has dealt with the topic in his article in a comprehensive manner. He initiates the topic
through the analysis of the case laws in Nicaragua case and the Iran Hostages case and
subsequently traces the evolution of the concept of self-defence.

Jordan J. Paust, Use of Armed Force against Terrorists In Afghanistan, Iraq and
Beyond: 35 CORNELL INTERNATIONAL LAW JOURNAL, 533-557 (2002)

The author in his article has analyzed the US actions against the non-state terrorists based in
Afghanistan in response to the attacks made in September, 2001. It has to be mentioned that
while the author recognizes the actions as being initiated by non-state actors he still uses the
popular label of terrorists. The author has attempted to justify the actions of the USA
against the terrorist groups based in Afghanistan by adducing legal arguments such as the
principles laid down following the Caroline incident and by casting a wide interpretation of
the provisions of the UN Charter in order to support his claims. The author has also cited
relevant resolutions of the UN Security Council so as to justify the actions of the USA in both
Afghanistan and Iraq as non-violation of principles of international law in general and
principles of self-defence in particular.

10
 Michael Bothe, Terrorism and the Legality of Pre-emptive Force: 14 EUROPEAN
JOURNAL OF INTERNATIONAL LAW, 227-240 (2003)

This author in this article has expounded the justification of the principle of pre-emptive self-
defence and has defended the US National Security Strategy in this context. The author has
again used the expression terrorism to make his justifications and again, this is a point of
critique. Nevertheless, the article presents the principle of pre-emptive self-defence in a very
lucid and concise manner. It begins with the inception of the principle in the Caroline and its
subsequent acceptance in the international community leading up to the current world events.
The author has defended the right of self-defence against terrorist acts in general and has
advocated for the expansion of the ambit of exercising self-defence while simultaneously
endorsing the US National Security Strategy on pre-emptive self-defence against terrorists.

MALCOLM N. SHAW, INTERNATIONAL LAW 1159-1166 (6th ed., 2008)

This book contains a very brief study of the use of force against the international terrorist
attacks. The author has used the term terrorism under international law which is not
appropriate as the author has equated the actions of certain non-state actors with that of
terrorism even thought the term has no fixed definition. It is submitted here that the actions of
non-state actor may appear as terrorism for some while it may actually be liberation struggle
for others and in this regard, the author has erred in branding such acts as acts of terror.
Further, the literature advances several resolutions of the UN General Assembly and the
Security Council as well as the actions taken by the UNGA to counter the so-called
terrorism. The author does not mention the use of force in countering terrorism and has
chosen to pass over the issue of use of force against the non-state actors.

1.7.Research Methodology

The research methodology adopted in this project is doctrinal research. Sources of data
collection involve both primary sources such as Resolutions of the United Nations General
Assembly and Security Council as well as case laws from international courts and arbitral
tribunals and secondary sources such as textbooks and articles by research scholars. The type
of legal research undertaken is explorative, descriptive and analytical.

11
 1.8.Tentative Chapterisation

It is proposed that the current research work is to be divided into six chapters, including the
introductory chapter and the last one containing the concluding observations and inferences.
The intermediate chapters shall have the following headings:

1. The Armed Attack Criterion for Self-defence against NSAs

This chapter shall begin with the study of the interpretation of the term armed attack which
has been used in Article 51 of the UN Charter. The chapter shall begin with an analysis of the
meaning of the terms use of force, act of aggression and armed attack specifically
focussing on finding out the rationale behind the implementation of the term armed attack
despite the availability of other terms. The second aspect that shall be discussed in this
chapter pertains to the qualification of an armed activity into the term armed attack and
ascertaining what are its threshold requirements. This is particularly relevant in the case of an
armed activity undertaken by non-state actors as more often than not the activities of such
agents are rather small-scale in nature and difficult to deduce whether they cross the threshold
requirements of an armed attack criterion.

2. The Attribution of State Responsibility for Transnational Armed Activities of

NSAs

This chapter shall analyze the link between the non-state actors and the state wherein they are
positioned. It shall look into the relationship between the two in various instances and
scrutinize whether the association between the two is sufficiently close to attribute
responsibility to State directly or indirectly for the actions of the non-state actors. It shall
verify the substance of indirect military assistance to the non-state actors by the state and
whether such assistance is sufficient to constitute a violation of the international obligations
in order to impose international responsibility for wrongful acts. Another relatively new
feature which emerged in the aftermath of the incident of September 11, 2001 is the adoption
of the UN Security Council Resolution 1373, which had rather unique ramifications. The
chapter shall look into the international obligations created by this Resolution on the Member
States regarding the invocation of indirect responsibility of the State for the actions of non-
state actors.

12
 3. The Legality of Pre-emptive Self-Defence against NSAs

This chapter shall begin by tracing the origins of the doctrine of anticipatory self-defence as
espoused by the Caroline incident and the Webster formula. It shall analyze the different
methods and conditions in which anticipatory self-defence can be applied and how the
changed circumstances in the modern world, with the inclusion of non-state actors into the
picture, have affected the concept. The two specific aspects of the notion of anticipatory self-
defence which are more prevalent in the contemporary scenario are pre-emptive self-defence
as a revised version of the Caroline test and preventive self-defence which is professed by the
US National Security Strategy. This chapter shall analyse the justification and legitimacy
behind the application of these principles to the exercise of self-defence against the
transnational armed actions of the non-state actors.

4. The Position of the Security Council on Self-defence against NSAs

This chapter shall study the role of the Security Council in the application of the right of self-
defence under Article 51. This chapter shall also analyze the role played by the Security
Council in establishing and maintaining international peace and security. Further, the position
of the Security Council on the emerging phenomenon of the involvement of non-state actors
in transnational armed activities shall be examined through the various Resolutions passed by
the Council on the issue. The change in stance and the possible impact of the Security
Council in addressing the threat emanating from non-state actors shall also be discussed.

13
 2. THE ARMED ATTACK CRITERION FOR SELF-DEFENCE AGAINST NSAs

One of the most important aspects of the provision on self-defence as contained in

Article 51 of the UN Charter is regarding the term armed attack, which has been left
unqualified. This in turn leads to ambiguity in the interpretation and legality of the
application of the self-defence by states against so-called armed attacks by other states or
NSAs based in the host state. The simplest instance of an exercise of armed attack is in the
case where the armed forces of a state initiate acts of aggression on another state of such
gravity that there remains no uncertainty as to the nature of the offensive action being carried
out. Complicated issues arise when the acts are carried out by NSAs within the safe confines
of a host state and the complications get further increased when these attacks do not carry
sufficient scale and effects. The present chapter is an investigation into the question of what
actions of offense or aggression constitute armed attack which is legally justified and
essential in order to invoke the use of force by the victim state in self-defence to counter the
transnational actions of armed NSAs. This shall begin with the tracing of the meaning of the
term armed attack as inserted in Article 51 of the UN Charter, followed by a study of the
subjective and objective elements of what constitutes an armed attack. The subjective
element part shall take into account the notion of animus aggressionis. This shall be followed
by an enquiry into the objective element of the armed attack interpretation which shall
comprise of taking a critical look at the scale of the incidents of armed actions and when such
actions qualify the threshold for being considered as an armed attack for the purpose of
Article 51 of the UN Charter. Further, it shall also be analysed whether the instances of
cumulative small scale incidents be equated with the term armed attack or not. A similar
analysis for incidents of small scale incursions shall also form a part of the present chapter.

2.1.Interpretation of the term Armed Attack

The general rules of treaty interpretation as laid down in the Vienna Convention on
the Law of Treaties states that the provisions of the treaty be interpreted in accordance with
the ordinary meaning to be given to the terms of the treaty. 6 The term armed attack as such,
is value neutral and does not give much of an indication as to its qualification. An
understanding of the term by resorting to the aid of dictionary was attempted by Michael
Bothe who comes up with the following results:

6
Vienna Convention on the Law of Treaties, Article 31

14
 Webster's Encyclopaedic Dictionary states: an offensive military operation
with the aim of overcoming the enemy" or an offensive move in the
performance or contest" and: "Attack...applies to the beginning of the
hostilities". The Oxford Dictionary defines attack as: "violent attempt to hurt,
overcome, defeat". All of these definitions imply that attack is an actual action
in the sense of a move forward. A threat of action does not yet constitute an
attack in the ordinary meaning of the term.7
Thus, attaching the ordinary meaning to the term armed attack does not yield any desired
outcome and the matter still retains its original complexity in terms of interpretation. The
next aspect that the general rules of interpretation specify is attaching the meaning of the
terms in the context of the treaty and in the light of its object and purpose.8 Article 51
contains provisions in the context of an exception to the prohibition on the use of force as is
mandated by Article 2(4) of the UN Charter. The prohibition of the use of force in the
international relations between the states forms one of the fundamental objectives of the
establishment of the United Nations Organization, and the said prohibition incorporates only
two specific exceptions to this mandate: first, the authorization of any use of force by the
UNSC under the specifications prescribed under Chapter VII of the UN Charter or second,
the application of the principles of individual or collective self-defence as specified under
Article 51. Since Article 51 forms an exceptional rule to the mandate of proscribing any
threat or use of force in the international relation between states, the interpretation of the term
armed attack has to be carried out within the context provided these aforementioned
provisions and in compliance with the object and purpose of the UN Charter.

2.1.1. Reference to the Provisions of the UN Charter

Article 2(4) of the UN Charter uses the terminology threat or use of force and not
the term armed attack. The difference in terminology is highly significant as the UN Charter
prohibits use of force as well as threat to use force whereas the right to resort to individual or
collective self-defence only in response to an armed attack. The apposite inference is that
the terminology used in these two distinct but closely connected provisions, do not
circumscribe each other in their scope.9 It is to be emphasized that the scope of the term
threat or use of force is greater than that of the term armed attack used in association with
the principle of self-defence. The relevant portion of Article 51 states that:

7
Michael Bothe, Terrorism and the legality of pre-emptive force, 14 EJIL 227-40, at 229 (2003)
8
VCLT, Article 31
9
Bothe, Supra Note 7

15
 Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the
United Nations, until the UNSC has taken the measures necessary to maintain
international peace and security....
The terms use of force, act of aggression and armed attack have different connotations
but have not been assigned specific definitions under the UN Charter or any other related
treatise. In order to ascertain a more coherent interpretation of these terms, reference may be
made to the UNGA Resolution 2625 on Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with the Charter
of the United Nations for the interpretation of the term use of force, and UNGA Resolution
3314 on Definition of Aggression for the interpretation of the term act of aggression.

In terms of the UN Charter, use of force has been used in Article 2(4), whereas act
of aggression and armed attack have been used in Article 39 and Article 51 respectively.
The notion of armed attack has a narrower meaning than the phrase use or threat of force
as specified under Article 2(4) of the UN Charter. In other words, all instances of armed
attack shall constitute a use of force but all instances of exerting a use of force shall not
constitute an armed attack for the purposes of Article 51.10 The latter shall only occur in
cases where the force used is of a comparatively large scale and with substantial effect. This
has also been advanced by Brownlie who states that a use of force must attain certain gravity
in order to be defined as an armed attack.11 Subsequently, the ICJ has also differentiated
between the terms use of force and armed attack by the distinct levels of the scale and
effects threshold. In the Nicaragua case, the ICJ has denoted the most grave forms of attack
as armed attack, thereby separating it from other less grave forms which may or may not be
classified as use of force.12 Thus, the existing difference between the two notions is basically
one of the gravity of the attack involved in terms of its scale and effects, which forms a basis
for a de minimis threshold in order to be categorized as an armed attack.13 Hence, it is
apparent that not every violation of the prohibition of use of force shall result in a valid
exercise of the right of self-defence prescribed under Article 51 of the UN Charter; only those
instances of use of force which are of sufficient grave form in order to qualify as an armed

10
Albrecht Randelzhofer, Article 51, in BRUNO SIMMA, THE CHARTER OF THE UNITED NATIONS: A
COMMENTARY (Oxford University Press, 2nd Edition, 2010)
11
IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BETWEEN STATES (Oxford University Press,
1st Edition, 1963) at 366
12
Case concerning Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v USA) [1986]
ICJ Reports, Para. 191
13
Randelzhofer, Supra Note 10

16
attack shall justify the implementation of the right of self-defence. However, there is no clear
demarcation as to what constitutes a grave form of use of force and what comes under
other less grave forms and this ambiguity has to be resolved by an examination of the
particular facts and circumstances endemic to each separate case. This has been reiterated by
the ICJ in the Oil Platforms case, where it was observed that there is a possibility that the
mining of a single military vessel might be sufficient to bring into play the inherent right of
self-defence.14 Thus, even the ICJ acknowledges that the gravity threshold is flexible,
depending on the specific set of circumstances in each case concerned.

2.1.2. Reference to the Provisions on the UNGA Definition of Aggression

The term aggression, on the other hand, has been defined in expansive terms under
the UNGA Resolution 3314. Nonetheless, it has to be emphasized here that the said
Resolution of the General Assembly does not have any binding value and is only
recommendatory in nature. However, the term has been defined in a two-fold manner, where
the first part mentioned under Article 1 of the Resolution gives a general meaning of the
concept of aggression and the second part under Article 3 of the Resolution is comprised of a
more elaborately detailed but non-exhaustive enumeration of certain acts which are
categorized as acts of aggression. This definition includes both direct15 and indirect16 use of
force by a State but a threat does not qualify as an act of aggression; it can be concluded that
an actual armed force is a mandatory requirement in order to constitute aggression.

In the light of such conditions, the term aggression represents armed attack more
closely as compared to use of force. Both aggression and armed attack require the use of
an actual armed force as well as the armed force to be of a sufficiently severe gravity or
minimum threshold in order to qualify as such. This principle has also been incorporated in
Resolution 3314 under Article 2 wherein it is stated that:

...a determination that an act of aggression has been committed would not be
justified in the light of other relevant circumstances, including the fact that the
acts concerned or their consequences are not of sufficient gravity.
Furthermore, the ICJ has also referred to Resolution 3314 while determining the notion of
armed attack in the Nicaragua case, Oil Platforms case and the Armed Activities case. The

14
Case concerning Oil Platforms (Islamic Republic of Iran v United States of America), [2003] ICJ Reports,
Para 65-72
15
UNGA Resolution 3314 (XXIX) of 14 December 1974 on Definition of Aggression, Article 3(a) to (f)
16
Id., Article 3(g)

17
Court has taken up the Resolution as a starting point for its analysis on the definition of the
term armed attack. Taking into account such averments, it can be stated that the term
armed attack and aggression have quite similar connotations. However, the term
aggression has a wider implication in that it imputes an aggressive intent on the belligerent
state which may be considered as a breach of the peace. Armed attack may or may not have
such wide implications as there can be exercise of isolated instances of armed attack which
may or may not rise to the threshold of aggression, especially considering the inclusion of
NSAs into the framework. Most importantly, the international community may implicitly
agree that there is a cascading relationship between the terms use of force, aggression
and armed attack17, but there is no explicit agreement on the same as of yet. Taking into
account the pertinent Resolutions of the UN General Assembly and the relevant observations
of the ICJ in the cases exemplified above, it can be said that the term armed attack has a
higher threshold than that of the term use of force but a lower threshold as compared to the
term aggression.

2.2.The Concept of Animus aggressionis

Even though the concept of attack- as opposed to incident- intuitively seems to

pre-suppose an element of intent, the need for a mens rea to determine the existence of an
armed attack does not go uncontested. Some authors, such as Wilmshurst, accept that the
attacker must have the intention to attack in order to trigger the right of self-defence.18 Others
flatly reject the idea that the evolution of the scale and effects of an armed attack must take
account of the mens rea on the grounds that it is impossible to establish the aggressors
precise intention.19

2.2.1. Animus Aggressionis under the UNGA Defintion of Aggression

The question of the animus aggressionis first surfaced in the context of the
International Law Commissions work on the Definition of Aggression. In 1951, Special
Rapporteur Spiropoulos made clear that the mere fact that a State acted first did not, per se,

17
TOM RUYS, ARMED ATTACK AND ARTICLE 51 OF THE UN CHARTER (Cambridge University Press,
Cambridge 2010) 134
18
Wilmshrust, The Chatham House Principles of International Law on the Use of Force in Self-Defence Int'l
& Comp. L.Q., Vol. 55, No. 4 (Oct., 2006), p. 966
19
J.A. Green, Self-defence: a state of mind for States?, (2008) 55 NILR 181-206

18
constitute aggression as long as there was no aggressive intention.20 It followed from the
essence of the notion of aggression is such that this subjective element formed an integral
part thereof. The Soviet proposal, on the other hand, suggested that the State first used armed
force should automatically be regarded as the aggressor, i.e. the principle of priority. 21 Fierce
discussions took place as to which principle- priority or intent- should be given preference.22
Proponents of the former, mainly the USSR as well as various developing countries,
maintained that the first use constituted the only objective criterion.23 It was directly derived
from the Charter, and, according to some, rightly proscribed preventive self-defence. The
intent criterion would cast an unreasonable burden of proof on the victim and was too
susceptible to abuse by aggressors claiming to be acting upon some alleged noble motive. In
turn the Six Powers and several other countries warned inter alia that it was fallacious to
presume that it would always be easy to determine objectively, who was the first to resort to
the use of force.24 Furthermore, even if this could be established an automatic application of
the priority principle could lead to manifestly unjust results, for example, in case where force
had been used by mistake or by accident. This eventually led to the compromise incorporated
in Article 2 of the Definition of Aggression:

The first use of armed force...shall constitute prima facie evidence of an act of
aggression although the UNSC may...conclude that a determination that an act
of aggression has been committed would not be justified in the light of relevant
circumstances...
In the light of the preparatory works, a number of comments can grosso modo be made in
relation to this provision.25 First, the first use of armed force is indeed considered as a prima
facie presumption of aggression. Second, this presumption is rebuttable in the light of other
relevant circumstances. Such circumstances can consist in a lack of sufficient gravity of the
use of force as the last sentence of Article 2 indicates. They can also consist in the lack of an
animus aggressionis or aggressive intent. Third, the concept of aggressive intent does not

20
Second Report by Mr. J. Spiropoulos on the Draft Code of Offences against the peace and security of
Mankind, 12 April 1951, (1951) YBILC, VOL. II, 67-8 (UN Doc. A/CN.4/44), available at
<http://legal.un.org/ilc/publications/yearbooks/english/ilc_1951_v2.pdf> last accessed on 21 July, 2017
21
See the opinion of R.J Alfaro in (1951) YBILC, vol.II, 39 ( UN Doc, A/CN.4/L 8) available at
<http://legal.un.org/ilc/publications/yearbooks/english/ilc_1951_v2.pdf> last accessed on 21 July, 2017
22
Overviews of the main arguments can be found in: Ferencz, Defining international aggression. Vol.II, P.31
23
STEPHEN MYRON SCHWEBEL, AGGRESSION, INTERVENTION AND SELF-DEFENCE (Sijthoff, 1st Edition, 1972),
at p. 468-70
24
YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE (Cambridge University Press, 5th Edition, 2011), p.
129
25
Id., p. 130

19
imply an analysis of the motive or purposes of the State using armed force.26 Article 5(1) of
the Definition makes clear that no consideration of whatever nature, whether political,
economic, military or otherwise, may serve as a justification for aggression. The concept of
animus aggressionis is therefore best constructed requiring the deliberate use of armed force
against another state or its external manifestations, or, in other words, a hostile intent.27
Fourth, as can be inferred from the aforementioned examples the concept of animus
aggressionis is most relevant when dealing with small scale uses of force, in particular
border incidents and the like.28 When dealing with more large scale military engagements
such as aerial bombardments, naval blockades or substantial cross border attacks it is
generally inherent in the act itself.29

2.2.2. Relevance of Animus Aggressionis according to the ICJ

In the Nicaragua case, the Court left open the question whether armed attacks had
taken place, instead turning to other considerations which indicated that these incursions
could not be relied upon as justifying the exercise of self-defence (e.g. the lack of request by
the victim States and the absence of a report to the UNSC).30 Examining the US allegations
that certain transnational incursions into Honduras and Costa Rica were imputable to
Nicaragua,31 the Court confined itself to the following general observation:

Very little information is however available to the Court as to the

circumstances of these incursions or their possible motivations, which renders it
difficult to decide whether they may be treated for legal purposes as amounting,
singly or collectively, to an "armed attack" by Nicaragua on either or both
States.32
In spite of its brevity, the aforementioned quote carries important implications. First
of all the word singly implicitly leaves open the possibility that a single territorial incursion

26
Eg., Broms, The definition of Aggression, 364, cited in RUYS, Supra Note 17 at p. 158. As Broms explains,
it was the intention of the drafters that the phrase other relevant circumstances should include considerations
of intent. This was a quid pro quo for the inclusion of the principle of priority in Article 2.
27
Eg. UN Doc..A/AC.134/SR67-78,22(US),29(USSR)
28
Eg. UN Doc.A/AC.134/SR.67-78,22 (US)
29
Cf. According to Turkey: [A]ggression was an illegal act of such gravity that the intention must be presumed,
The problem arose in connection with the other illegal act, which, when considerd singly, did not constitute
aggression, but which, when they were repeated and took on a certain magnitude, became a breach of the peace.
It was in respect of such acts that recourse might be had to the notion of the aggressive intent. A distinction
ought to be made between the acts of aggression according to their gravit (...). UN Doc. A/AC.134/SR.52-
66,44.
30
ICJ, Nicaragua Case (Merits), Paras 232-8
31
Id., Para 230
32
Id., Para 231

20
can qualify as an armed attack. The word collectively furthermore seems to hint at a
positive appraisal of the accumulation of events theory. Third, and most important in the
present context the Courts reference to circumstances and to the controversial concept of
possible motivations suggested that the animus aggressionis is considered as relevant.
According to Gray, what the Court seems to say is that episodes where there is no intent to
carry out an armed attack, including accidental incursions and incidents where officials
disobey orders, would be considered as frontier incidents, rather that armed attacks.33

In the Oil Platforms case, the ICJ observed that the Sea Isle City was in Kuwaiti
waters at the time of the attack on it and that a Silkworm missile allegedly fired from more
than 100 km away could not have been aimed at the specific vessel but simply programmed
to hit some target in Kuwaiti waters.34 In a similar vein, it argued that even if US allegations
concerning Iranian mine-laying had been adequately proven, there is no evidence that the
mine-laying was aimed specifically at the US; and similarly it has not been established that
the mines struck by the Bridgeton was laid with the specific intention of harming that ship, or
other US vessels.35 These dicta appear to be inspired by earlier suggestions by Iran regarding
the need for attacks to be somehow specifically targeted.36 The argument had nonetheless
been heavily criticized by the United States. According to the US it would give carte blanche
to States launching missiles from remote locations and subsequently denying responsibility. It
would also be akin to arguing that an artillery barrage against a city would not constitute an
armed attack because it was not aimed at any specific identifiable target. 37 The objections of
the US are not without foundation. It would indeed be a desecration of existing law to suggest
that indiscriminate attacks could not trigger the right of self-defence. This would not only
lead to manifestly absurd results, but might even encourage States to carry out such attacks.
In light of these concerns, it seems more appropriate to construe the Courts somewhat
obscure statement as requiring a general intention to attack another state rather than to attack
a specific target.38 With this reservation in mind, the Oil Platforms case appears to render
support to the idea that the subjective element is relevant for determining the existence of an
armed attack, even for more large scale attacks.

33
GRAY, THE USE OF FORCE, (Oxford University Press, 2nd Edition, 2004) at p.139
34
ICJ, Oil Platforms case, para 2
35
Id., Para 64
36
ICJ, Oil Platform case, Rejoinder submitted by the United States of America, 23 March 2001
37
Id.
38
DINSTEIN, Supra Note 24, p.209

21
 2.2.3. The concept of Animus Aggressionis under Customary International Law

The relevance of the subjective element is difficult to falsify on the basis of concrete
instances of inter-State recourse to force. In numerous cases, States claiming to be the victim
of an armed attack in the sense of Article 51 UN Charter have emphasized the deliberate or
coordinated nature of the attacks. In relation to the Gulf of Tunkin incident, for instance, the
United States stated that after that alleged attack by torpedo boats against a US destroyer it
had hoped that the incident was an isolated or uncalculated action. However, when a new
attack took place two days later, there could no longer be any shadow of doubt a planned,
deliberate military attack had occurred, leading the US to exercise its right of self-defence.39
The premeditated, offensive or deliberate character of alleged attacks was emphasized on
numerous other occasions, including the 1964 Harib Fort raid,40 the 1967 Six Day War,41 the
1968 Israeli campaign against Lebanon,42 border clashes between India and China in 197643
or a 1993 Israeli aerial raid in Syrian territory. Furthermore, it is worth noting that while
several States branded the intrusion of Soviet airspace by a US military reconnaissance plane
in May 1960 (the U-2 incident) as a violation of Article 2(4) UN Charter, others argued that it
did not constitute aggression due to a lack of aggressive intent. 44 Explaining why it had shot
down the plane the Soviet Union observed that at a time when there can be no guarantee that
US Aircraft appearing over the territory of the USSR are not carrying a lethal cargo. It might
find itself faced with the need to take action to repeal aggression.45 During the Oil
Platforms case, the US moreover stressed that the alleged attacks by Iran were not isolated
border incursions by a few soldiers but deliberate, dangerous military actions that were part
of a broad pattern of unlawful use of force by Iran.

Despite the problematic evidentiary value of omissions in terms of State practice and
opinio juris it is also submitted that several cases can be identified where the use of force

39
(1964) UNYB 147
40
UN Doc. S/PV.1107 at 2,3 April 1964, (UK), available at
<http://dag.un.org/bitstream/handle/11176/80522/S_PV.1107-EN.pdf?sequence=17&isAllowed=y> Last
accessed on 20 July 2017
41
(1967) UNYB 175 (The United Arab Republic spoke of a treacherous premediated aggression by the Israel;
Israel accused Egypt of having moved in an offensive thrust against Israels borders)
42
(1968) UNYB 191
43
(1976) 22 Keesings 27548, available at <http://web.stanford.edu/group/tomzgroup/pmwiki/uploads/0358-
1976-Keesings-a-EJ.pdf> Last accessed on 20 July 2017
44
See UN Department of Policitcal and Security Affairs, Repetoire of the Practice of the Security Council 1959-
1963 (New York, 1965) 281-2; ( 1960) UNYB 40-1
45
UN Doc. S/4315, 19 MAY 1960 (USSR) 3. The warning again materialized into two months later when the
USSR shot down UR RB-48 reconnaissance bomber. UN Doc. S/4385. 13 July 1960 (USSR)

22
against another State was not branded as an armed attack and where no defensive action was
undertaken, in part due to a lack of hostile intent. This is true both for small scale uses of
force as well as incidents of more substantial gravity. As for the former, one could refer, for
example, to the shooting incident which took place in the Suez Canal in March 2008 when a
container ship contracted by the US Navy fired warning shots at a number of small boats
approaching it, killing an Egyptian.46 Following the incident, the US President apologies and
pleaded that the US would cooperate in the investigation for the incident. Despite the strong
public outcry in Egypt, nothing indicated that Egyptian officials regarded the incident as an
armed attack. As for the latter category, an illustration is provided by the destruction during
NATOs operation (allied force) of the Chinese embassy in Belgrade on 7 May 1999, killing
four Chinese nationals and injuring twenty others.47 NATO immediately issued an apology to
China, stressing that the attack- carried out by US stealth bombers- had resulted from an error
in the intelligence process. The United States similarly apologised for the incident and
declared that faulty information had led to a mistake in the initial targeting of this facility.48
In China, the attack was greeted with violent mass protests against the UK and the US
embassies in Beijing. Chinese authorities called on NATO to publish the details of its
investigation into the bombing and to punish those responsible for the mistake. Several
elements of Chinas diplomatic relations with the US were moreover suspended. At no point,
however, was there any suggestion that China regarded the incident as an armed attack, or
that it considered a defensive or retaliatory response.

Finally, despite their generally confidential nature it is well known that the concept of
hostile intent plays a crucial role in the national Rules of Engagement.49 The latter

46
Bush gives apology for Suez shooting NY Times 28 March 2008, available at
<http://www.nytimes.com/2008/03/28/world/middleeast/28egypt.html?mcubz=0> last accessed on 20 July 2017
47
1999: Chinese anger at embassy bombing, BBC News, 9 May 1999, available at
<http://news.bbc.co.uk/onthisday/hi/dates/stories/may/9/newsid_2519000/2519271.stm> last accessed on 20
July 2017
48
The US later admitted that the targeting error had resulted form the use of an outdated map. The pilots
reportedly believed that they had bombed the Yugoslav Federal Directorate of Supply and Procurement, Chinese
Embassy Bombing: A wide net of Blame, NY Times, available at
<http://www.nytimes.com/2000/04/17/world/chinese-embassy-bombing-a-wide-net-of-blame.html?mcubz=0>
last accessed on 20 July 2017
49
US Department of the Navy and the US Department of the Homeland Security, The Commanders Handbook
of the Law of Naval Operations, July 2007, NWP 1-14M, available at
<http://www.jag.navy.mil/documents/NWP_1-14M_Commanders_Handbook.pdf> last accessed on 22 July
2017. See also on the 2005 US standing Rules of Engagement/Standing Rules for the Use of Force (ROE/RUF):
SP Henseler, Self Defence in the maritime environment under the new standing rules of engagement/ standing
rules for the use of force (SROE/SRUF), (2006) 53 Naval L. Rev 211-28, available at
<http://heinonline.org/HOL/Page?handle=hein.journals/naval53&div=7&g_sent=1&collection=journals > last
accessed on 22 July 2017

23
documents inter alia provide concrete guidelines to a States military forces, coastguards and
border patrols as to when and how to respond to small scale territorial incursions and
localised encounters between military units. With regard to confrontations between military
vessels or aircrafts, for example, there are numerous elements apart from the general
geopolitical and security context that give an indication of the opponents hostile intent.50
When uncertainty exists as to the opponents intent, ROEs generally prescribe a number of
measures that essentially aim at de-escalating the situation or at forcing the other to betray its
hostile intention in accordance with the so-called theory of graduated force.51

The animus aggressionis is particularly important for qualifying small scale uses of
force.52 Thus, the premeditated and well-organized nature of Hezbollahs attack against an
Israeli border patrol in July 2006- illustrated by the simultaneous launch of diversionary
rocket attacks- against Israeli military posts and border villages as well as the ongoing
kidnapping of two Israeli soldiers53- helps to explain why, despite the relatively small scale, it
was generally considered to constitute an armed attack triggering the right of self-defence.54
When dealing with larger scale uses of armed force, the subjective element will generally be
implicit in the act itself. Nonetheless, if clear indications point to the contrary then again
there is no armed attack in the sense of Article 51 UN Charter. Some situations are
relatively straightforward.55 In a case of massive invasion, aggressive intent can evidently be
deduced from the force and eloquence of the ascertained facts. Conversely, when an unarmed
missile launched from the territory of State A lands on the territory of a befriended neighbour
there is no armed attack. When dealing with more complex cases, it is important not only to
differentiate on the basis of scale and effects but to take account of the broader context as
well.

50
D Stephens, Rules of engagement and the concept of Self defence, (1998) 45 Naval L. Rev. 126-511 at 148,
available at
<http://heinonline.org/HOL/Page?handle=hein.journals/naval45&div=7&start_page=126&collection=journals&
set_as_cursor=0&men_tab=srchresults> last accessed on 22 July 2017
51
D.P. OCONNELL, THE INFLUENCE OF LAW ON THE SEA POWER (Manchester University Press, 1975), p.53
52
BROWNLIE, Supra Note 11, p.366
53
Nasrallah sorry for scale of war, BBC News, 27 August, 2006, available at
<http://news.bbc.co.uk/1/hi/world/middle_east/5291420.stm> Last accessed on 21 July 2017
54
T Ruys, Crossing the Thin Blue Line: an inquiry into Israels recourse to self defence against Hezbollah 43
Stanford J. Intl. L. 265-94 (2007), available at
<http://heinonline.org/HOL/Page?handle=hein.journals/stanit43&div=13&id=&page=&collection=journals>
Last accessed on 20 July 2017
55
SCHWEBEL, Supra Note 23, p. 470

24
 2.3.The notion of Accumulation of Events

The accumulation of events or Nadelstichtaktik (needle prick) theory holds that

several minor attacks/incidents may be accumulated for the purpose of assessing self-
defence claims. It deals with situations where consecutive attacks take place that are linked in
time, source and cause, in particular when those attacks are part of a continuous, overall plan
of attack purposely relying on numerous small raids.56 Accumulation of events is important
mainly from a two-fold perspective. First of all, it suggests that the proportionality analysis of
a particular defensive action should not action strictly on its immediate cause, but also entails
a retrospective element. In other words, a large scale response is permitted to a continuous
series of attacks of certain gravity, than to an isolated armed attack of similar gravity. A
second aspect concerns that the de minimis threshold. In this context, it is argued that
incidents that would in themselves merely constitute less grave uses of force can, when
forming a part of a chain of events, qualitatively transformed into an armed attack triggering
the right of self-defence. Some authors fit into this theory a third aspect, namely the
prospective element of the necessity and proportionality analysis- more specifically the idea
that defensive action may be undertaken after the armed attack is factually over on condition
that there exists a strong likelihood that more attacks will imminently follow.57

2.3.1. The concept of Accumulation of Events under Customary International

Law

While the doctrine does not go uncontested, accumulation of events enjoys

considerable support in legal doctrine, especially in relation to attacks by irregulars and
armed attacks.58 The latter groups will virtually will always rely on hit and run tactics. Hence,
if each incident should be considered separately, a cross- border defensive response would in
principle be excluded, thus in fact allowing irregular groups to operate with impunity and
leaving the victim state without effective protection.59 At the same time, several authors have
cautioned that many occasions where States- first Israel, then others, such as Portugal, the US

56
Formula used by Levenfeld, Israels counter- fedayeen tactics, 41
57
Y.Z. Blum, State Response to acts of Terrorism, (1976) 19 GYBIL 223-37 at 233
58
Ago, Addendum, 69-70; D.W. Bowett, Reprisals involving recourse to Armed Forces, (1972) 66 AJIL 1-
36, at 9
59
Remarks: Taking this perspective, the victim State would probably only be able to take action by means of
domestic law enforcement mechanisms within its boundaries, subject to the rules of international human rights
law or, when applicable, international humanitarian law.

25
and South Africa- invoked the doctrine, the UNSC has apparently rejected this.60 Against
this, it is argued that while many of these self-defence claims were indeed formally rejected
by the UNSC, a closer look at the debates reveals that States did not reject the application of
the accumulation of events theory as such.61 Rather, their attitude to have been inspired by
the specific circumstances of the cases at hand. In many of the aforementioned cases, military
actions were grossly disproportionate- several of them resulted in large number of civilian
deaths- and/or punitive in nature.

With regard to the 1956 Suez crisis, for example, Israel justified its intervention in
Egypt as a necessary of its right to self-defence aimed at eliminating fedayeen bases from
which continuous cross-border attacks had been carried out.62 A large majority of states
condemned Israels military response.63 Israel had engaged in a massive ground operation
and had occupied the whole Sinai Peninsula.64 Even accumulating the various fedayeen
attacks it is difficult to see how an operation of this size could pass the proportionality
threshold. The international reaction therefore does not exclude the possibility that a more
limited intervention directed specifically against individual fedayeen bases would have been
justified. Similarly, the 1955 Lake may serve as an example. In casu, Israel complained of a
policy of harassment of Israeli boats by Syrian artillery posts close to the lake border. It
responded by a pre-planned attack which reportedly left thirty-seven Syrian soldiers and
twelve civilians dead. The UNSC eventually adopted a resolution which after noting that
there had been complaints of Syrian interference with Israeli activities on the Lake,
condemned the attack.65

In all, it is difficult to ignore the many occasions where States invoked the
accumulation of events theory in support of their self-defence claims-apart from the

60
Bowett, Supra Note 58, at 7-8;
61
GRAY, Supra Note 33, at p.155
62
See UN Doc. S/PV.749, 30 October 1956 (Israel), available at
<http://repository.un.org/bitstream/handle/11176/84002/S_PV.749-EN.pdf?sequence=2&isAllowed=y> Last
accessed on 22 July 2017
63
A draft resolution in which Israel was called upon to withdraw immediately received seven votes in favour,
two against, with two abstentions, but was not adopted due to the vetoes cast by the UK and France (1959)
UNYB 26.
64
UN Doc. S/PV.748, 30 October 1956 (US) available at <https://documents-dds-
ny.un.org/doc/UNDOC/GEN/NL5/600/74/PDF/NL560074.pdf?OpenElement> Last accessed 22 July 2017; UN
Doc, D/PV.749, 30 October 1956 (Israel), Supra Note 57
65
SC Res.111 of 19 January 1956 available at
<https://unispal.un.org/DPA/DPR/unispal.nsf/0/58C97A3D38B43299852560C20071C481> Last accessed on
18 July 2017

26
aforementioned examples; one might refer to the 1964 Gulf of Tunkin incident, 66 Israels raid
against the PLO Headquarters in Tunis (Tunisia) in 1985,67 US airstrikes against Libya in
1986 in reaction to alleged Libyan involvement in terrorist attacks,68 or to border incidents
between in China and Vietnam in 1979. States have very rarely argued directly this line of
reasoning.69 On the contrary, several States have expressed support for a more contextual
cumulative approach.70 In more recent years, the invocation of the doctrine has become rather
conventional. Apart from Israel, which continues to invoke it on a regular basis, different
versions of the doctrine have been explicitly or implicitly, invoked inter alia by Russia in
response to bandit sorties form Georgia,71 Lebanon in response to Israeli violations of
Lebanese airspace,72 Iran in response to cross-border attacks by the Mojahedin-e-Khalq
Organization form Iraq,73 Iraq in response to aerial incursions by the UK and the US,74
Liberia in response to cross-border attacks from Guinea,75 and Sudan against Chad.76

2.3.2. Position of the ICJ on the concept of Accumulation of Events

Furthermore, the ICJ seems to have implicitly endorsed the doctrine to some extent.
In Nicaragua, the Court observed that the lack of information in relation to alleged cross-
border attacks against Honduras and Costa Rica made it difficult to decide whether they
could singly or collectively amount to an armed attack.77 In the Oil Platforms case, the Curt
implicitly followed the US argument that the various alleged attacks should be considered
together.78 In relation to the US raids of 19 October 1987, the Court stated that

on the hypothesis that all the incidents complained of are to be attributed to

Iran...the question is whether that attack, either in itself or in combination with

66
(1964) UNYB 147
67
(1985) UNYB 285-91; UN Doc. S/PV. 2610-13, S/PV.2615, 2-4 October 1985. In particular UN Doc.
S/PV.2611
68
On 14th April 1968, US air forces carried out air strikes against several targets in Libya in a large scale
operations involving over the forty aircraft. The US claimed that its action has been undertaken in self defence
in response to an ongoing pattern of attacks by Libya targeting the US citizens and installations, most recently
the bombing of a Berlin discotheque, killing one US soldier and injuring numerous others. A large majority of
states condemned the US actions. Most found that the US had not provided persuasive evidence that Libya was
behing the Berlin Bombing. See (1986) UNYB 252-2
69
UN Doc. S/PV 1648, 23 June 1972 (Sudan. Re Israels intervention into Lebanon)
70
UN Doc. S/PV 748 30 October, 1956 (Australia)
71
UN Doc. S/2002/1012,11th September 2002 (Russia)
72
UN Doc. S/2003/148,4 February 2003 (Lebanon)
73
Letters from the Islamic Republic of Iran: UN Doc. S/2000/216,13 March 2000
74
UN Doc. S/2001/370, 13 April 2001 (Iraq)
75
Eg, Letters from Liberia: UN Doc S/2001/474, 11 May 2001
76
Eg, Letters from South Suan: UN Doc S/2008/20, 9 January 2008
77
ICJ Nicaragua (Merits), para 231
78
ICJ Oil Platforms case

27
 the rest of the series of...attacks cited by the US can be categorized as an
armed attack on the US justifying self-defence.79
It was concluded, however, that even taken cumulatively these incidents did not seem to
constitute an armed attack on the US.80 Finally, the accumulation of events was incidentally
brought up in the case of DRC v Uganda.81 In casu, Uganda tried to defend its invasion and
occupation of large parts of Congolese territory as a response to a series of cross-border
attacks by groups of irregulars operating within the DRC. Both countries appeared to proceed
on the basis that these attacks should be considered together, but strongly disagreed on the
permissibility of defensive action against indirect military aggression.82 The ICJ eventually
rejected Ugandas self-defence claim, on the grounds that even if this series of deplorable
attacks could be regarded as cumulative in nature, they still remained non-attributable to the
DRC.83 By way of obiter dictum it went on to determine that the taking or airports and
towns many hundreds of kilometres from Ugandas border would not seem proportionate to
the series of transnational attacks it claimed had given rise to the right of self-defence, nor to
be necessary to that end.84

There is considerable support for the view that the accumulation of events does not
affect the possibility of exercising the right of self-defence. At the same time, it must be
conceded that the evidence is not entirely equivocal. This is largely due to the fact that the
doctrine has in the past frequently been invoked in attempts to justify manifestly
disproportionate interventions and in relation to cross-border actions by oppressive regimes
against the national liberation movements. These precedents indicate that accumulation of
events remains a difficult doctrine and that one should avoid ascribing to it consequences
which would not seem unwarranted.

Accumulation of events is probably most relevant from a proportionality point of

view. In this context, if a State undertakes defensive action against an attack which is only the
latest in a series of attacks, it is generally accepted that its response may exceed the scale and
effects of the former attack. A more flexible, functional application of the proportionality
criterion would thus seem warranted than in case of a single armed attack. This is particularly
relevant in relation to attacks by irregulars, terrorists and armed bands.

79
Supra Note 58
80
Id
81
See ICJ, Cameroon v Nigeria, Counter-memorial of the Federal Republic of Nigeria, May 1999
82
Eg., ICJ, DRC v Uganda, Counter-memorial submitted by the Republic of Uganda, 21 April 2001
83
ICJ, DRC v Uganda, Judgement of 19 December 2005, Para 146
84
Id. at para.147

28
 2.4.Small Scale Incursions by NSAs

Another crucial question that needs to be asked in the context of armed attack is
regarding what factors possess the capability of converting a mere small scale incursion into
an actual or impending armed attack in the sense of Article 51 UN Charter. A first pre-
requisite obviously would be that the territorial incursions concerned must be unlawful. This
will not be the case if the action is sanctioned by a so-called hot pursuit agreement. Such
agreements are indeed regularly concluded on a bilateral (and sometimes multilateral) basis
to facilitate police enforcement and to bring escaping wrongdoers before the jurisdictions of
the injured State.85 Another possibility is that the States concerned have adopted an
agreement providing for the creation of a military base by State A in the territory of State B,
and allowing for certain troop movements to take place, or that State B has otherwise
consented to the presence of foreign troops on its soil. While ground and aerial incursions
presuppose the agreement of the territorial State, the situation is more complex when dealing
with naval incursions. Indeed, entry of the territorial sea by foreign warships is in principle
permitted by the 1982 United Nations Convention on the Law of the Sea (UNCLOS),
provided that it qualifies as an innocent passage, or in other words, as long as it is not
prejudicial to the peace, good order or security of the coastal State.86

Once it is established that an intrusion is unlawful, one must examine its gravity, as
well as the hostile intent or lack thereof. In case of a large scale operation, the latter issue
generally becomes moot. By contrast, while small-scale incursions are not automatically
excluded from the notion of armed attack, it is important in these situations to verify the
intentions of the intruder. It may occur, for instance, that a border patrol of State A has by
error crossed into State Bs territory. Or it could be that the police unit of State A knowingly
entered State Bs territory to pursue a group of criminals, even if no hot pursuit agreement
exists.87 Neither of these cases would as such warrant State B to actively use lethal force in
self-defence. In a similar vein, it must be stressed that a non-innocent entry of the territorial
sea by a foreign warship does not necessarily imply an animus aggressionis.

85
N.M POULANTZAS, THE RIGHT OF HOT PURSUIT IN INTERNATIONAL LAW (Martinus Nijhoff, 2nd Edition,
2002), pp. 11-35
86
UN Convention on the Law of Sea, 1982, Articles 18-19
87
I Brownlie, International Law and the activities of Armed Bands, (198) 7 ICLQ 712-35 at 734, available at
<http://www.jstor.org/stable/pdf/755868.pdf?refreqid=excelsior%3Ab00e200bb7c722bb8b1e16b1cb3daaa4>
(Last accessed 15 July, 2017)

29
 When the subjective element of the armed attack requirement is absent or uncertain,
the State whose territory is violated may essentially engage in a number if graduated
measures that shift the onus onto the trespassing unit and force it either to terminate its
unlawful behaviour or to reveal a hostile intent. These measures constitute the prelude to the
actual exercise of the right of self-defence and form the crucial discerning factor on the slope
between police action and actual recourse to force. Even if the intruder persists in its course
of action, it is imperative that any forcible response be reasonably proportionate to the gravity
of the abuse or the threat posed.88 National Rules of Engagement and comparable instructions
to police personnel, coastguards, et cetera may vary considerably, yet their application must
always be assessed on a case-by-case basis by reference to the necessity and proportionality
criteria.

It follows from these guidelines that the permissibility of defensive action by the
territorial sovereign is heavily influenced by the animus aggressionis of the intruder. In
certain situations the subjective element may be difficult to determine. Still, there are a
number of elements that assist in establishing whether the intruder poses a threat to the
security of the territorial sovereign. A first indicator is the political context, more precisely
the friendly or hostile nature of the relationships between the territorial sovereign and the
intruding State. A second element which may reveal the hostile intention of the incursion is
its accumulated or repeated nature.

It must be stressed that forcible action within the States territory against incursions
made by NSAs generally does not bring into play the ius ad bellum framework. It is the case
that when criminals or armed bands cross their borders, States may take appropriate measures
of law enforcement. In casu, the possibility for police and the military to use lethal force is
governed primarily by the human rights law, and in case the situation amounts to an armed
conflict then it is governed by international humanitarian law. This does not mean that the
issue of self-defence may never rise. However, in order to ascertain whether forcible action
against incursions by NSAs may extend to another States territory, it must be verified
whether such incursions can amount to an armed attack in the sense of Article 51 of the UN
Charter.

In summation, the term armed attack is not defined in any clear or unambiguous
terms. The term is subject to interpretation and this has led to exploitation by States, who

88
Id., at 235

30
desire to launch aggressive actions in the name of self-defence. The term armed attack is
distinct from other terms with similar connotations such as use of force and act of
aggression. The term armed attack has a higher threshold than that of the term use of
force but a lower threshold as compared to the term aggression. This clearly indicates that
in order to invoke the right of self-defence the armed activity has to qualify as an armed
attack. The de minimis threshold required to be met in order to classify an act as armed
attack has not been specified. Although it depends from case to case, yet there are no clear
guidelines on this matter and different States interpret differently according to their
convenience. The actions of NSAs need not always have a high threshold of scale and
effects. Small-scale attacks may also qualify as an armed attack in cases of concrete
evidence of either the animus aggressionis or the accumulation of events concept.
Territorial incursions by NSAs may qualify as an armed attack even in the absence of any
armed activity provided that it is illegal incursion, with a hostile intent and there is a strong
probability of a violent event with grave consequences.

Thus, the actions of a non-state actor shall qualify as an armed attack when it attains
sufficient gravity or achieves the de minimis threshold requirement for being classified as an
armed attack. The threshold requirement has to be greater than that of the term use of force
but need not necessarily attain the level of aggression as detailed above. In case of NSAs,
the actual incidents mostly do not attain the scale and effects required for an armed attack
but the potential of grave consequences is a distinct probability and therefore, the armed
activities of the NSAs cannot be evaluated on a traditional basis as it is done in case of the
regular armed forces of a State. The doctrine of animus aggressionis and accumulation of
events are appropriate methods for the determination of the armed activities of the NSAs as
armed attack or not. It is not necessary that the attack by NSAs should always have large
scale and effects rather it sufficient if there is a hostile intent behind the attack and the
group concerned is engaged in repetitive incidents of similar nature. Further, unlawful
territorial incursions by NSAs may also be classified as armed attack if they are carried out
illegally, with a hostile intent and with the possibility of grave consequences. As the NSAs do
not fall under the classical notion of state-directed aggression, it is difficult to evaluate and
categorise them for the purposes of self-defence under Article 51. Therefore, the analysis of
the notion of armed attack has to be suitably adapted to determine the armed attack criterion
in case of NSAs.

31
 3. STATE RESPONSIBILITY FOR TRANSNATIONAL ARMED ACTIVITIES
OF NSAs

Another fundamental query concerning the provision of self-defence as provided

under Article 51 of the UN Charter is regarding the applicability of the provision against a
State wherein the NSAs conduct their major operations. In order to exert a right of self-
defence against a State, it has to be shown that the concerned State was involved in the
execution of the armed attack on the victim which constitutes a right of self-defence in
favour of the latter. This becomes more difficult in case of NSAs as they neither function
under the State authority nor are they affiliated with any department of the State.
Nonetheless, these NSAs must belong to a particular territory in the sense that there must be
someplace where they must be carrying out the initial procedures of their operation, e.g.
recruitment, training, planning etc. Henceforth in this chapter, the term host state shall be
used to denote such a territory wherein the preliminary operations of the NSAs occur and the
term victim state shall refer to the state against whom such an operation has been launched
by these NSAs.

This chapter shall examine the attribution of the armed actions of NSAs to the host
state concerned. In this respect, the chapter shall look at the inter-relation between the actions
of the NSAs and the host state. The term host state has been used in this chapter to denote
the state where the concerned NSAs are engaged in transnational armed activities are based
or undertaking their operations. It is to be stated here that the armed activities emanating from
the regular armed forces of a state are clear manifestations of the act of aggression on the part
of the state initiating such attacks and therefore, such considerations shall not form part of
this chapter. The present chapter shall only be confined to the examination of the actions of
NSAs and the inter-relation between them and the host state in order to answer the question
whether the principles of self-defence can be extended to the host state for the transnational
armed activities of the NSAs.

NSAs are obviously not directly connected with the government of a State but that
does not mean they are state-less entities. Nonetheless, they must have their bases in the
territory of some state wherefrom they begin their planning, training and recruitment process.
In respect of these activities, the territory from which such initial stages of the activities of
the NSAs are carried out is classified as the host state for the sake of analysis in this chapter.
The armed activities of the NSAs based in a host state or operating from its territory

32
 Before scrutinizing the relationship between the host state and the NSAs it is pertinent
to set down the foundations on which the state responsibility can be attributed to a state for
the actions of NSAs present on its territory, thereby imputing the armed activities of the
NSAs to that of the State. In this regard, the ILC Draft Articles on the Responsibility of
States for Internationally Wrongful Acts, 2001 (hereinafter the Articles on State
Responsibility) as well as the analysis of customary international law in certain relevant
global incidents where state responsibility was invoked by the victim state for the aggressive
actions of the NSAs shall be most enlightening. Further analysis of the relevant decisions of
the ICJ and the Resolutions of the UN General Assembly as well as the UNSC shall provide
ample documentation on this matter.

3.1.International Law governing the Attribution of State Responsibility

The ILC has formulated a Draft on the legal regime of State Responsibility for Internationally
Wrongful Acts, which accrues when a State is in violation of its international obligations. In
the following part, the implications of the Draft Articles on State Responsibility (hereinafter
DASR) on the issue of imputation of responsibility on a State for the transnational armed
attacks by NSAs is examined.

3.1.1. ILC Draft Articles on State Responsibility for the armed actions of NSAs

According to the Articles regarding state responsibility, a State is held liable only if
the two basic criteria are fulfilled:

The conduct consisting of an action or omission is attributable to the state under

international law; and
It constitutes a breach of an international obligation of the State89

The former condition is usually more difficult to satisfy. Further, the States are recognized to
be as political abstracts and hence are unable to act.90 Individuals or the humans are the only
ones who can act and such acts attribute to the particular conduct on the part of a particular
given state. State is therefore an entity which acts through humans. So, the pertinent question
involved here is whether a person qualifies as an agent of a relevant state in such

89
ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc A/56/10 (2001),
Article 2
90
German Settlers in Poland, Advisory Opinion, PCIJ Series B, No 6 (1923) 6, p. 22.

33
circumstance or whether the acts could be held as the acts done by the state itself. On the
other hand the as far as the traditional rule is concerned, the acts of the private actors are not
considered attributable to the States under the head of international law. However, it is also
recognised that the actions of de facto state agents or say, the conduct of a private actor can
be said to be associated with the function of the governmental bodies such that the acts which
are otherwise private may be deemed to be connected with the conduct of the state instead.

There are numerous grounds on which a state can be held responsible for the acts of a
private actor,91 but only three grounds are the most fundamental when it comes to NSAs.
First, if a state exercises authority over the conduct of NSAs and if they are to be positioned
as de facto agents, the state will be held answerable for their actions.92 Second, if a state
accepts the acts of a NSA as its own, the state will be held to responsible for its acts. 93 The
latter ground mentioned does not concern the situation of implied state responsibility arising
out of a failure to suppress the activities of NSAs or to prosecute the perpetrators of
transnational armed activities, but concerns the express acceptance and adoption by the state
of the conduct of the NSAs. Also, a conduct will not be considered attributable to the state if
it relates merely to the facts of such existence. The criteria for proving responsibility relates
to the idea that the conduct of the actors would be accepted and acknowledged by the state as
one of its own. Therefore, such an act of acceptance and acknowledgement, whether being
verbal or in action must be clear and unequivocal.94

Third, if there are certain exceptional cases, like when the NSAs function as an
element of the government authority in absence of the so regarded official persons or
authorities, the state can be held liable for such conducts.95 This ground is applicable in very
rare situations wherein the authorities are said to disintegrated, are under suppression or
dysfunctional at a point of time. One example could be the situation of failed states in the
context of terrorism. In such instances, the governmental system of the entire state has
collapsed on account of some revolution, natural calamity or other events of similar nature
and a situation arises wherein the government of a State is unable to perform its function in

91
DASR, Articles 4 & 11
92
Id, Article 8
93
ICJ, Nicaragua Case, Para. 115.
94
International Law Commission. 2001 Commentaries on the Draft Articles on Responsibility of States for
Internationally Wrongful Acts, P Yearbook of the International Law Commission, New York: United Nations,
vol. II, p. 47
95
DASR, Article 9

34
certain areas of its own territorial jurisdiction.96 Taking advantage of such a situation, a NSA
is likely to operate in that area and begins to organise or launch the transnational armed
attacks. Even though the government of a State is unable to exercise control over such
situations, yet it would be still held liable for the conducts of the NSAs.

The international obligation, which is binding on a State, in the given context is

developed from the international law contained in the treaty, customary principle and the
general principles of law.97 To constitute an internationally wrongful action, the fault is not a
material requirement unless expressly stated as an international obligation in the law. Hence,
the breach of obligation is independent of any intention.98 For example, a state has an
obligation not to intentionally allow the use of its resources or territory in such a way that is
detrimental to the interest of other states rights and security.99 Therefore it would be a breach
in the obligation if state knowingly allows the NSAs to operate in its territory which leads to
transnational armed activities which affects other States. In this situation the intention of the
host state is considered to be immaterial.

3.1.2. Position of the ICJ on State Responsibility for the Armed Actions of NSAs

In the context of understanding the notion of state responsibility, two of the Court of
Justice ("ICJ") cases should be given careful analysis. Both the cases can be said to have
limited the situation wherein an act of a NSA is attributable to a state, even if the acts would
be considered an "armed attack" if committed by the state itself.

In Nicaragua case, the ICJ has decisively rejected the contentions presented by the
United States. According to the court, sending armed bands into the territorial jurisdiction
of other state would be adequate to constitute an armed act. However, the supply of arms
and other support to such bands will not constitute an armed attack and hence did not
validate the use of military force exercised by the US against Nicaragua.100

On the other hand, the court has also stated in this case that the activities engaged in
by the Nicaraguan Contras cannot be imputed to the US.101 Further, it is supported by the

96
Commentaries on the DASR, p. 49
97
Commentaries on the DASR, p. 47
98
IAN BROWNLIE, SYSTEM OF THE LAW OF NATIONS: STATE RESPONSIBILITY (Oxford University Press, 1st
Edition, 1982)
99
ICJ, Corfu Channel (United Kingdom v. Albania), Merits, [1949] ICJ Reports at p. 22
100
ICJ, Nicaragua Case, [1986] ICJ Reports at Para 126-27
101
Id at 109

35
evidences that in various ways the contras were a proxy army working for the US and could
not have come into operation without any kind of financial assistance and support from the
US government. The Court did recognize the extent of the US involvement but nevertheless
held the opinion that the acts of the Contras cannot be attributable to United States. The court
states that:

The Court has taken the view ... that United States participation, even
preponderant or decisive, in the financing, organizing, training, supplying and
equipping of the contras, the selection of its military or paramilitary targets, and
the planning of the whole of its operation, is still insufficient in itself, on the
basis of the evidence in the possession of the Court, for the purpose of
attributing to the United States the acts committed by the contras in the course
of their military or paramilitary operations in Nicaragua.102
Therefore, the court opined that the evidence concerning the issue of the US exercising a
level of control in all fields so as to support the argument that the contras were acting on
behalf of US is unclear.103 Considering the situation illustrated in the present example, it is
apparent that the Court was unwilling to conclude on attributing the acts of individuals
backed by a State to the State itself unless it exercised strict authority over the actors.

Another relevant case in this regard is the Iran Hostages case.104 In this case, the
Court observed that it is only after the occupation of the Consulate was concluded that the
government of Iran can take the responsibility for the acts of the students, because only then
did the then Supreme Leader of Iran Ayatollah Khomeini convey his acceptance of the
occupation and implied that the embassy and the consular authorities were under arrest.105
This development changed the entire legal paradigm of the Hostage crisis since the
government of the State had essentially endorsed the takeover of the US embassy by the
NSAs and thus, Iran could now be held responsible for an internationally wrongful act.

Such determination by the ICJ in the cases elaborated above present a strong notion
that the ability to launch an attack on the place of habitation of the NSAs, the place where
they undergo recruitment and training, the place where they gather and stockpile their
weapons or the place where they conceive their planned attack, has its own severe limitations.
Both the cases mentioned above has clearly indicated that a state should exercise direct
authority over the actions of the NSAs or at the least explicitly permit and accept such acts as

102
Id at Para 115
103
Id at Para 109
104
United States Diplomatic and Consular Staff in Tehran (Iran v US), 1980 ICJ Reports (May 24)
105
Id at Para 26

36
its own before the acts are attributable to the state itself. Also, the financial support, training
and logistical support is not adequate enough as we gathered from the Nicaragua and Iran
Hostage case.

The manifest rationale behind the rule is that a state cannot be held liable for all the
activities that originates in its territorial jurisdiction. A state cannot possibly be expected to
control and combat all forms of such activity within its territory that violates the international
obligations if committed by the State itself. If such a liability could be exercised legitimately,
then Columbia, for instance, would be responsible for the international drug trafficking
business operating within its territory or Russia would be held liable for the operations of the
Russian Mafia.106 Therefore, even if the states have the right to control activities within their
jurisdiction, they must also have the right to exercise their judgment over the allocation of
their limited domestic resources in such a manner that it balances the States obligation
towards the international community with the obligation it has towards its own citizens. Also,
it is imprudent to expect that States with a dearth of resources, to prioritize the expenditure of
their resources mainly for the prevention of the acts of violence against the property and
citizens of other states.

Various scholars and writers have contended that the significant level of support
enjoyed by the NSAs from a particular state is adequate to attribute the transnational armed
actions of these actors to the supporting state. One of the renowned international law scholars
Oscar Schachter, has stated:

When a government provides weapons, technical advice, transportation, aid

and encouragement to terrorists on a substantial scale it is not unreasonable to
conclude that the armed attack is imputable to that government107
These scholars acknowledge that the transnational armed activities by NSAs gives a picture
of a novel yet probable threat that the international law should become accustomed to.
Although the international scholars have not arrived at a consensus on the issue whether the
support of NSAs by a State could be a possible basis upon which the particular action or
conduct of the NSAs can be attributed to the supporting state, yet it is also very much clear
there was no agreement in the years after the decision of the ICJ in the Nicaragua and Iran
106
The activities of the Russian Mafia are extensive and well-documented, from conspiring to fix the 2002
Winter Olympic Figure Skating competition, Steven Lee Myers, Figure Skating Russians See Conspiracy, One
of Tainted Gold, NY Times D2 (Aug 2, 2002)
107
Oscar Schachter, The Lawful Use of Force by a State against Terrorists in another Country, in H ENRY H.
HAN, ED, TERRORISM & POLITICAL VIOLENCE: LIMITS & POSSIBILITIES OF LEGAL CONTROL (Oceana 1st Edition,
1993), at 254

37
Hostage cases that these cases represented the law applicable to the transnational armed
activities by NSAs.

3.1.3. Customary International Law regarding State Responsibility for Acts of NSA

The response of the international community towards implementing military actions

against the States wherein these NSAs are based has undergone a substantial change since the
year 1986, signifying an increased motivation to attribute the actions of the NSAs to the
states that sponsor them. In the year 1986, the US government was involved in bombing a
number of targets in the state of Libya in reaction to the involvement of NSAs based in
Libya, in the conduct of bomb attacks on a German discotheque in which two of the three
persons killed and 79 out of 229 severely injured were all American servicemen. 108 Despite
the contentions made by the US government that the Berlin bomb attacks were in actuality
ordered by Libya, the activities of United States were widely condemned. In regards to this
incident the UN General Assembly adopted a resolution condemning the acts of the United
States by a vote of 79-28-33.109 A resolution proposed by the UNSC condemning the acts of
US was a failure only because the proposal was vetoed by the United States, United Kingdom
and France.110

With the increasing threat of transnational terrorism, the international community

became more flexible with the military actions against the states that backed the armed
activities by NSAs. There was, however, little opposition to the 1993 cruise missile attacks
against the state of Iraq for its part in the attempt to assassinate the former President George
W. Bush Sr.111 In the year 1998 when the US was involved in the bombing of specific targets
in Afghanistan and Sudan, the reaction of the international community to the US was quite
subdued.112 While the validity of the bomb attacks that occurred in the pharmaceutical factory
in Sudan was more contentious, the opposition and the protests on this matter were mostly
limited to the extent of proof given by the US government that chemical weapons were being
processed at the factory.113 It appears as if it were affirmed at a later point of time that

108
GRAY, Supra Note 33, at 162
109
General Assembly Res No 41/38, UN Doc No A/RES/41/38 (1986)
110
Sean D. Murphy, Terrorism and the Concept of 'Armed Attack" in Aricle 51 of the U.N. Charter, 43 Harv.
Intl. L. J. 41, 47 (2002)
111
Dino Kritsiotis, The Legality of the 1993 US Missile Strike on Iraq and the Right of Self-Defence, 45 ICLQ
(1996), at 162
112
GRAY, Supra Note 33, at 163
113
Id.

38
chemical weapons were, as a matter of fact, being processed at the factory it seems likely that
the international community would have condoned the actions of United States. Neither the
General Assembly nor the UNSC took any official step with respect to any of the attacks.

3.1.4. Response of the UN towards State Responsibility for Acts of NSAs

The growing concern of the US government over the subject of the transnational
armed activities by NSAs and its increasing readiness to disapprove the actions of the nation
states that support such activities of the NSAs, highlights that the narrow approach to state
responsibility observed in Nicaragua and Iran Hostage cases does not properly illustrate the
current position of international law on the subject. Although the General Assembly in 1970
confirmed that it is the duty of every state to refrain from the act of participation and
acquiescing in any kind of terrorist activity114 yet it was not until the year 1985 that the
Assembly more specifically laid emphasis that States have an obligation under the
international law to "refrain from organizing, instigating, assisting or participating in terrorist
acts in other States, or acquiescing in activities within their territory directed toward the
commission of such acts."115

In UNSC Resolution 748 of 1992, the UNSC has expressly stated the participation in
any kind of transnational armed activities by NSAs based within the territory of a State is to
be linked with the international obligation of the State on the prohibition of use of force as
per the provision of Article 2(4) of the Charter. In UNSC Resolution 748, the UNSC has also
stated that act of participation or acquiescing in the transnational armed activities by NSAs is
adequate enough to imply that the state has breached its obligation under Article 2(4). 116 In
the year 1994 and again in 1998, the UNSC severely criticised the acquiescence in the
terrorism in unrestricted terms. This trend culminated in the UNSC Resolution 1373
subsequent to the September 11 attacks.117 The eventual rise of the transnational armed
activities by NSAs can be represented in the following manner:

This growth from 1970 to the present was summed up by one commentator:
While a state may have once contended that the acts of terrorist groups did not
compel accountability on that state under Article 2(4) of the U.N. Charter and
did not subject them to aggressive measures in response under Article 51, those
situations no longer appear to be relevant, at least in the situation where an
114
General Assembly Res No 2625 (cited in note 9)
115
General Assembly Res No 40/61, UN Doc No A/RES/40/61 (1985)
116
UNSC Res No 748, UN Doc No S/RES/748 (1992)
117
UNSC Res No 1373, UN Doc No S/RES/1373 (2001)

39
 attack is as disturbing as that of the September 11 attacks targeted on the
territory of other nation state and where the connection between the terrorist
group and the sponsoring state is so well recognized and accepted by the world
community.118
The final suggestion that the norms have certainly changed is the response of the world
community to the statements made by President Bush clarifying that the United States
equates al Qaeda, and similar terrorist groups, with those states that support them.119
Repeatedly, President Bush and other officials in the Administration have stated that there is
no difference between the ones, including States, who support transnational armed activities
by NSAs and the NSAs themselves.120 Also, in his speech addressing the Joint session of
Congress on September 20, 2001, the President has stated, "From this day forward, any
nation that continues to harbour or support terrorism will be regarded by the United States as
a hostile regime,"121 and later explained in expansive terms:

America has a message for the nations of the world: If you harbour terrorists, you
are terrorists. If you train or arm a terrorist, you are a terrorist. If you feed a terrorist
or fund a terrorist, you're a terrorist, and you will be held accountable by the United
States and our friends.122

Thus, it is evident that the response of the international community towards the
desirability of attributing a State Responsible for the transnational armed activities of the
NSAs based within the territory of the state has undergone a profound change to the extent
that today the proposition that there is no difference between the NSAs and the State
harbouring them has gained wide acceptance amongst the international community.

3.2.Relationship between the State and the NSAs in order to attribute State
Responsibility

The invocation of state responsibility for the transnational armed activities of NSAs can be
duly carried out only in case there is sufficient connection between the NSAs and the host

118
Jack M. Beard, America's New War on Terror The Case for Self-defence Under International Law, 25
Harv. J. L. & Pub Pol. 559, 581-82 (2002)
119
The National Security Strategy of the United States of America 15 (2002), at p. 15, available at
<https://www.state.gov/documents/organization/63562.pdf> Last accessed on 23 July, 2017
120
President Bush's Remarks, available at <https://georgewbush-
whitehouse.archives.gov/news/releases/2001/09/20010911-16.html> Last accessed on 22 July, 2017
121
Address to a Joint Session of Congress and the American People, President Declares Freedom at War With
Fear" (Sept 20, 2001), available at <https://georgewbush-
whitehouse.archives.gov/news/releases/2001/09/20010920-8.html> Last accessed on 22 July, 2017
122
Remarks by President to Troops, President Shares Thanksgiving Meal With Troops (Nov 21, 2001), available
at <https://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010920-8.html> Last accessed on
22 July, 2017

40
state in order to impute the actions of the NSAs to the State. Based on the observations made
in the preceding part, it can be stated that there exists the following type of links between the
armed activities of the NSAs and the State:

3.2.1. State Sponsorship of NSAs

The support states provide through sponsorship comes into existence when a state directly
makes use of international terrorism as a tool of warfare to grow its strategic advantage
wherein they are unable to apply conventional ways. In the 1985 Senate report, it was
accepted that the terrorism can be a weapon for the nation states for providing protection their
own military and political authority.123 Terrorism is said to have become an important tool
that can operate an action whenever the state needs to prove its supremacy and power to the
other states without agreeing to any kind of accountability and risks of belligerency. United
States have listed various states to have associated themselves with international terrorism.
Some of them include Libya, Iraq, Syria, and South Yemen.124

3.2.2. State Support of NSAs

Supporting international terrorism comes into picture when a nation state uses its own
resources to provide support in the form of arms, explosives, equipments, training, safe
havens, financial assistance, communication and logical support, but does not actively
participate in the terrorist activity. Some of the examples in this context have been evident in
the case of countries like Soviet Union and Soviet-bloc countries including Bulgaria, Cuba,
Czechoslovakia, and East Germany who are directly backing such terrorist activities.125

3.2.3. State Toleration of NSAs

This situation exists when a state although being aware of the activities engaged in by the
terrorist activities within the territory, neither does anything to support nor suppress the
activities within their borders. There is a possibility that such terrorist groups are either self
supported or have foreign sponsors to support them. They may carry out their activities

123
Vark, R., Terrorism, State Responsibility for Private Armed Groups in the Context of Terrorism, 11
Juridica. Intl., 2006, at 190 available at
<http://heinonline.org/HOL/Page?handle=hein.journals/jurdint11&div=24&start_page=184&collection=journal
s&set_as_cursor=0&men_tab=srchresults> Last accessed on 24 July, 2017
124
Id.
125
Id.

41
mainly abroad after having arrived at a silent understanding with the host government. Some
of the alleged countries have been reported to have supporting state toleration like the
Euzkadi ta Azkatasuna (Basque National Liberty movement) in South-Western France126, for
example).

3.2.4. State Inaction against NSAs

In this case the state does not willingly avoid the international terrorism within its borders but
lacks to react effectively. In such a circumstance, the state is accountable to deal with the
concerned terrorist states. It can fulfil its responsibility by inviting either the regional
organisations or the other states to provide some assistance. One of the examples in this
context is the aerial hijacking to Mogadishu of 1977.127 Due to the inability of government of
Somalia to act effectively, they asked Western German government for assistance. If the
state is unable to respond to international terrorism and does not request assistance, then there
may be situation where the help may be provided without any formal invitation. An example
in this context is the Entebbe hostage rescue.128 Although evidences show that President Idi
Amin of Uganda may have been involved in the hijacking scheme and was not simply unable
to act, as many previously have believed. Of the all mentioned criteria, the first three criteria
are mainly related with invoking the direct responsibility of state for transnational terrorism
of NSA, whereas the last factor is more concerned with the attribution of indirect
responsibility of the nation state.

3.3.Direct Responsibility for the Actions of NSAs

Direct responsibility of a state for the armed activities of the NSAs accrues only when
the state is responsible for the acts of such private parties. In order to attribute such
responsibility to a state, the link between the host state and the NSAs should be based on
either one of the three categories mentioned above: state sponsorship, state support or state
toleration. It is apparent that in order to establish such direct responsibility of the state the
link between the NSAs and the host state belongs to one of the three categories mentioned
above has to be proved and it is extremely difficult to demonstrate such close connection
126
Id.
127
Henry Tanner, German Troops Free Hostages On Hijacked Plane In Somalia; Four Terrorists Killed In
Raid, NY Times, 18 October, 1977, available at <http://www.nytimes.com/1977/10/18/archives/german-troops-
free-hostages-on-hijacked-plane-in-somalia-four.html?mcubz=0> Last accessed on 22 July, 2017
128
James McManus & Eric Silver, Israelis jubilant as Amin laments, The Guardian, 4 July, 1976, available at
<https://www.theguardian.com/theguardian/1976/jul/04/1> Last accessed on 23 July, 2017

42
between the two. In this regard, two decisions of two different international courts shed some
interesting light on the issue. The first concerns the emergence of the effective control test
propounded by the ICJ in the Nicaragua case and the second is regarding the overall control
test which was expounded by the International Criminal Tribunal for the former Yugoslavia
(ICTY hereinafter) in the Tadic case, which was the first case tried by the ICTY.

3.3.1. Effective Control Test by the ICJ

This test requires the participation of the state in the area of direction, planning,
assistance and execution of the specific terrorist actions.129 The scope of the test has certain
limitations. Firstly, it compels the victim state an impractical obligation to show evidence of
specific direction or instructions from the host state who is connected to the transnational
armed activities of NSAs. The test, however, is not sufficient to address the situation of
contemporary threats posed by the NSAs that are involved. Further, there is no such evidence
to support that the effective control test has been widely agreed in the international legal
regime or accepted as a certain principle of customary international law. This effective
control test was conceived by the International Court of Justice (ICJ) and later included in the
Draft Articles on State Responsibility by the International Law Commission.130 In a
subsequent judgement, the court has mentioned this article as codification to the customary
law.131 Thus, a circle is created whereby the origin of the test is difficult to ascertain as it
revolves from the ICJ to the ILC DASR to customary international law.

3.3.2. Overall Control Test by the ICTY

The ICTY provided an alternative test in this context i.e. the overall control test.132 It
can be said that the tribunal opines that international law does not necessarily need that the
control exercised by the State should extend to issuing specific instructions or orders to every
attack or threat; it is sufficient proof when the state has overall authority over a NSA in
question.133 The law concerning the State Responsibility should, after all, be formed on the

129
ICJ, Nicaragua case, Para. 115
130
Commentaries on the DASR, p. 47
131
Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports (1997) 7, paras 47, 50, 53, 58,
79, 83, 123
132
Prosecutor v. Dusko Tadic, Case No IT-94-I-A, ICTY, Judgment of the Appeals Chamber, 15 July 1999,
para. 117
133
Antonio Cassesse, The Nicaragua and Tadi Tests Revisited in Light of the ICJ Judgment on Genocide in
Bosnia, 18 EJIL 2007, at p. 655, available at <https://www.uni-

43
basis of a realistic notion of the term responsibility. If the state exercises overall authority
over a NSA through being a sponsor of its finances, arms, training and general participation
in the planning and supervision of activities, it is patently unfair to ask the victim state to
prove the actual involvement of the host state or whether it directed a specific attack or not.
Nonetheless, this test is not to be considered as a revolutionary change academic discussion
on attribution of State Responsibility. The important distinction between the two test lies
merely on the factor of degree of control, not in its nature.134 In both the cases the states must
have control that should be beyond sponsoring finance, equipment of terrorist NSAs,
participation in the planning and supervision of military operations.

3.4.Indirect Responsibility: The case of Harbouring NSAs

The question of harbouring or providing safe haven to NSAs began with the
declaration of President Bush who stated that US would not distinguish between the NSAs
and the States which support them.135 This debate over this issue certainly has some validity
and cannot be completely avoided without giving some consideration. Depending on the
situation, the participation in providing assistance, providing safe haven for the NSAs may
lead to violation of many international obligations under the treaty, customary law and the
UNSC resolutions. To start with, the nation states should not intentionally allow anyone to
use ones territory in a way that threatens other states which includes the usage of territory as
base for transnational armed activities.136 Also, as a basic principle of international law every
State must refrain from organising, instigating, assisting or participating in transnational
armed activities which have adverse effects in another State or acquiescing to organised
activities within its territory that are directed towards committing such acts when the acts
referred to involve a threat or the use of armed force.137

The UNSC has also made it clear that all states must refuse safe haven to those states
that support, plan, and finance or are involved in such transnational armed activities.138 This
statement can be understood as an attempt to restore the theory of vicarious responsibility

trier.de/fileadmin/fb5/prof/OEF008/besond_Ber_Voelkerrecht/EJIL-Aufsatz_zu_Attribution__Cassese_.pdf>
Last accessed on 24 July, 2017
134
Id., at p. 656
135
White House, Statement by the President in His Address to the Nation,(2011), available at
<https://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010911-16.html> Last accessed on 22
July, 2017
136
Corfu Channel, Para 22.
137
GA Res 2625 (XXV), 24 October 1970, Annex, Section 1
138
SC Res 1373, 28 September 2001, Para 2

44
where a state is knowingly acquiesces to the harmful acts of the NSAs within its borders.
Therefore, a state that:

has or should have the knowledge of a possible transnational armed attack against
another state, or
has the ability to prevent the terrorist acts but neglects to do so, or
fails to caution the other state of such an attack by NSAs incurs State Responsibility.

The theory of vicarious responsibility was also advanced by the ICJ in the Corfu Channel
case.139 In this context, we can sketch a comparison with the law of neutrality which
provides that a neutral state may not allow belligerents to use its territory for recruiting
combatants or forming units to support them.140 The inference that can be drawn here is that
if the neutral State fails to uphold the said obligation, it automatically loses its neutrality and
is open to an aggressive attack on itself in order to deal with the enemy combatants present
within the territory of that state.

Some have contended that the responsibility of State should be expressed in the form
of connivance.141 Countries like Israel have repeatedly stated that the terrorist attacks against
them from the territory of the Lebanon and Syria were only possible due to the involvement
of their respective governments.142 Even though this notion is not implausible yet it is
unsuitable with the current norms of state responsibility on complicity. The latter become
pertinent only when one state is supporting or assisting other state in the act of committing an
international wrongful act. Furthermore, complicity renders a state accountable for its own
unlawful actions (indirect responsibility), not for the actions taken by the other state (direct
responsibility).

One should not ignore the fact that the duty to combat terrorism is a due diligence
obligation, that is to say, the observance of these obligations does not necessitate a complete
avoidance of the activities of NSAs by a State.143 If a state in good faith attempts to take all
practical steps to prevent threat or danger from the NSA, but they still end up in attacking the
other state, then the attack cannot be imputed to the host state and it cannot be held liable for
the same. However, such a condition requires a solution since the threat to the security of
139
Corfu Channel, p. 17
140
Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land,
The Hague, 18 October 1907, entry into force 26 January 1910, 100 BFSP 359, Articles 4P5.
141
D. Jinks, State Responsibility for the Acts of Private Armed Groups Chic. J. Intl. L., 4, p. 90
142
Id.
143
Vark, Supra Note 123, at 192

45
other states remains as a problem. Hence, it can be proposed that if a State endures a failure
in performing these obligations, it is not directly accountable for the conduct of such NSAs
which is not instructed or supervised by the State but it has an obligation to undergo lawful
counter-measures as per the mandate of the DASR. In simple words, if the state is not able to
handle the condition it must allow others to do the same or else, NSAs would be benefitted by
the impunity and the security of other states would still be threatened. This is a very germane
proposition at this juncture, considering the immense degree of threat and massive destructive
capabilities possessed by these NSAs. When the states become the member of the United
Nations they are not only bestowed with many privileges, but also accept certain duties so
that the other states can gain from such privileges.144 The principle of sovereignty after the
Peace of Westphalia (1648) has become more flexible now with the acceptance of
contemporary norms of sovereignty. It includes the duty to protect the interests and security
of the other nation states and at the same time fulfilling the obligations undertaken by the
states before the international community.145 This is similarly applicable in case where the
state is not capable of protection the rights of other nation states and removing the threats
threatening them.

In the situation of such objective incapacity, all counter measures must be targeted
against the aims of such NSAs. The victim state should act in good faith and the choice to use
this option should be taken as the final resort. The international community supervises such
decision through the department of UNSC. While the latter is not to be expected to deal with
these terrorist NSAs or overtly approve military sanctions, it is more likely to respond if the
victim state made any rash, inconsiderate or impulsive decision or has gone too far in its
administration. It is beyond argument that states are directly accountable under international
law for the transnational armed activities of the NSAs working within their territory, as well
as the fact that the States now have a responsibility to abstain from actively assisting the
operations of such NSAs.

As early as 1970, the United Nations General Assembly, in Resolution 2625, clarified
that a State's mere agreement in terrorist activity originating from its own territory is a breach
of international obligation.146 Various Resolutions from both the UN General Assembly and

144
UN. Charter, Article 2(2)
145
UN Doc A/59/565 (2004), Paras 29P30 for the relationship between sovereignty and responsibility
146
UNGA Resolution 2625 (XXV). Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter of the United Nations, Para 3,
available at <http://www.un-documents.net/a25r2625.htm> Last accessed on 22 July, 2017

46
the UNSC leave no supposition that assisting or harbouring terrorist groups is a breach of
states responsibility under the international law. If all that was essential for a state to take
compulsory action against the terrorist located within the territory of other state was the
failure of the state to meet up its international obligations, there would be a would be little
question that the statements of President Bush and others:

That those states harbouring terrorists will be treated as if they are themselves
terrorists-would be fully justified. It is not true, however, that the mere violation
of international norms by a state permits a wronged state to use force lawfully in
order to right the wrong or to prevent future wrongs. In fact, states are generally
not permitted to use force under international law against other states that harm
them wrongfully. Appropriately so, the rules for the use of force are much more
restrictive, allowing states to resort to force only in self-defence.147
To justify the usage of military force against terrorist groups, their act or conduct should
match to the level of an armed attack. Actions not matching this level do not qualify for a
compulsory response under the international law because the military action is a violation of
the territorial integrity of the state where terrorists have formed their base. The victim state is
limited to the law enforcement approach and the application of its own domestic law.
However, even when the terrorist are involved in the commission of an armed attack, the
authority to use force against the terrorist groups located in a state is challenging unless the
group action can be attributed to that state.148 It is so because an attack against the group is a
breach of territorial integrity of the host nation, the armed attack of the terrorists should be
attributable to that state. It is only then can a force be attempted against the terrorist in that
state or against the forces of the state itself.

In summation, the massive threat possessed by NSAs in the modern world

necessitates swift and firm action against them in order to prevent and deter any kind of
transnational armed activity. In this regard, the claims of attributing state responsibility to the
host state and exercising the right of self-defence by the victim state holds significant weight
as opposed to arguments of the host state in favour of territorial integrity and political
sovereignty. In spite of provisions in the ILC Draft Articles on State Responsibility and
several Resolutions passed by both the UN General Assembly and the UNSC as well as other
relevant evidences in favour of attributing State responsibility to the host state for the
transnational armed activities of the NSAs, the law regulating the same is not coherently
specified anywhere and there is an element of subjectivity which varies from case to case.

147
The National Security Strategy of the United States of America 15 (2002), Supra Note 119
148
Oscar Schachter, Supra Note 107

47
The host state may be directly or indirectly responsible for the transnational armed activities
of the NSAs. However the responsibility attributed to the state in case of an indirect
responsibility is to the extent of the exercise of due diligence by the State concerned. Once
due diligence obligations are met, State responsibility cannot be attributed indirectly to a
State. However, the circumstances surrounding this issue have undergone a profound change
with the adoption of the landmark Resolution 1373.

Now the host state can be held responsible indirectly for the transnational armed
activities of the NSAs. Earlier, attribution of State responsibility was possible only in case of
the existence of a direct link between the host state and the NSAs. This has been observed
most noticeably in the Nicaragua test where the ICJ introduced the effective control test in
order to deduce the link between the state and the armed bands. This was soon countered by
another proposition which was advanced by the ICTY in the Tadic case in the form of the
overall control test. It can be observed that while it was more difficult in the case of the
former test to attribute a link between the state and the NSAs, the latter made it relatively less
complicated. Gradually, the SC has come to realize that the threat posed by these NSAs is
realistic and immense especially in the aftermath of the 9/11 incident. Therefore, it has
imposed rather serious obligations on the States in the form of Resolution 1373 violation of
which imputes State responsibility for an internationally wrongful act. The Resolution has
created an obligation to suppress terrorist financing; ensure non-support of terrorist activity,
including the denial of safe haven; co-operate with each other to ensure terrorists are not
abusing the refugee system amongst many other obligations to prevent and punish such
activities. A violation of these obligations by any direct contravention by the State is an
obvious case of international wrongful act. The States in violation of this obligation are said
to be States harbouring terrorists. However, the situation is complicated when the State is
not directly responsible for such NSAs in the sense that the State is unable or incapable of
suppressing these NSAs.

The absence of any active participation on the part of the State cannot result in the
attribution of an internationally wrongful act as the State has not engaged in any conduct
which constitutes a breach of international obligations rather it is an instance of a State not
having the requisite capability of controlling the situation within its borders. This approach
has further been substantiated by classifying such obligations of the state as due diligence
requirements, thereby removing obligations of the State in such situations where the due
diligence requirements have been discharged. In other words, a State cannot be held

48
responsible for the actions of NSAs operating within its boundaries provided that it has taken
all necessary measures within its capacity to suppress these actors but has been unable to do
so despite its bona fide efforts. Such an outlook represents a paradox in the approach towards
the transnational armed activities of NSAs and its execution.

The approach recognizes that there is an immense threat possessed by NSAs today as
stated before and in the aftermath of the 9/11 incident, the SC specifically acknowledges and
takes radical steps in the form of Resolution 1373 by creating international obligation for
States which can lead to State Responsibility for the actions of NSAs operating therein,
whether such attribution accrues by active involvement or passive involvement of the State.
Nonetheless, the due diligence consideration, which although quite reasonable theoretically,
creates an escape clause which can be used by States to their advantage in order to escape
their international obligation and the entire scheme of preventing and punishing the
transnational armed activities of the NSAs shall come to nothing.

It is submitted here that a more prudent approach would be to impose State

responsibility for the transnational armed activities of the NSAs irrespective of the due
diligence requirements. It has already been accepted that NSAs in the modern times possess
significant destructive capabilities and it has been accepted that there is an urgent need to
suppress the activities of these actors. This aspect has to be combined with the fact that the
actions of the NSAs involved in transnational armed activities are affecting not only the State
wherein they are based but they affect the international community as a whole and the range
of their impact cannot be predicted. Taking such circumstances into account, it is not feasible
for a State to simply claim that it has discharged its due diligence responsibilities and allow
the activities of NSAs to flourish within its territory. At the same time, it would be
inappropriate to term such states as harbouring terrorists simply because they are unable to
suppress the NSAs operating within their territory. Therefore, a State has to either deal with
the NSAs operating within its territory through the domestic law enforcement mechanism or
conversely, allow the international community to take necessary measures to tackle with
these elements. A possibility of making it an obligation similar to the lines of the principle of
aut dedere aut judicare could be explored and a new obligation of either prevent and
punish or permit international enforcement action could be a viable solution.

49
 4. THE LEGALITY OF PRE-EMPTIVE SELF-DEFENCE AGAINST NSAs

In the previous chapters, the armed attack criterion for NSAs was analysed and once,
it was evident that NSAs are involved in conducting transnational armed activities, the inter-
relation between the said NSAs and the state from which they are operating was examined.
The next relevant query is regarding the application of the principle of self-defence against
the transnational armed activities of NSAs before the occurrence of an armed attack and
whether it is justified, although this is not permitted under the Charter provisions, especially
in the light of the modern developments and possible implementation of weapons of mass
destruction which allows NSAs to mount a severe attack in an instantaneous manner.

Article 51 of the UN Charter has specifically stated that ...the inherent right of
individual or collective self-defence if an armed attack occurs against a Member of the
United Nations... which clearly states the right of self-defence can only be invoked in case
of the occurrence of an armed attack. There is no evidence of an interpretation of the
provision which allows a state to institute a use of force in self-defence prior to the
occurrence of an armed attack. However, the realities of the modern world have undergone
severe changes as the introduction of WMDs into the scene and the ability of NSAs acquiring
the same and launching an attack instantaneous in nature leading to absolutely no opportunity
of countering it is a distinctly plausible. The necessity of countering such an eventuality
required the modification of the post-attack response mechanism which had been the
mandate of Article 51. The notion of anticipatory self-defence as a possible solution to this
predicament has already been debated and the same shall be discussed below. This chapter
shall also dissect the notion of anticipatory self-defence into various categories and discuss
the merits and demerits of each category and eventually conclude with the appropriate
response to tackle the menace posed by the NSAs in the modern world.

4.1.The notion of Anticipatory Self-defence

The first thing which comes to mind when addressing anticipatory self-defence is the
Caroline incident and the criteria set up through it. The major events in the Caroline incident
are as follows:

A rebellion by Canadians was underway in 1837; many Americans supported

the rebels with supplies and by enlisting as fighters for an invasion of Canada.
The US government did not act effectively to stop Americans from supporting
50
 the rebels. On 13 December 1837, a group of rebels, led by an American, took
control of Navy Island, located in Canada. The rebel base on Navy Island began
to receive supplies from The Caroline, operating a ferry from the US shore. On
29 December British force crossed the river, with the specific objective of
destroying The Caroline. The British commander found that the American
vessel moved to US territory, dragged the boat into the rivers current, set it on
fire; its remains were carried over Niagara Falls.149
The descriptor incident is used since the incident was not adjudged before any
tribunal or court.150 The US Secretary of State Mr. Daniel Webster is credited with the
conception of the entire doctrine of anticipatory self-defence and the statement given by him
to the UK in the aftermath of the occurrence of this incident, also known as the Webster
formula, was accepted by the UK Foreign Minister Lord Ashburton as the appropriate
standard to test the lawfulness of the incursion.151 Websters note was an attempt to describe
this limit in connection to the particular facts of the Caroline incident.152 Webster in his
statement regarding the Caroline incident focused on the following principle: immediacy,
necessity, proportionality. This well-known formula is worded as follows: necessity of self-
defence, instant, overwhelming, leaving no choice of means and no moment for
deliberation.153

Nonetheless, the notion of anticipatory self-defence which was passed in the year
1837 has undergone significant modifications to suit the requirements of the modern age. The
term anticipatory self-defence appears as an umbrella term for the various categories of
self-defence in which the right is exercised before the onset of an armed attack from the other
camp. It comprises of various concepts such as interceptive self-defence, pre-emptive self-
defence and the comparatively recently emerged preventive self-defence, however it is
differentiated from the notion of reactive self-defence, all of which is elaborated in the next
section.

4.2.Classification of Anticipatory Self-defence

First, a distinction is often made between reactive self-defence in response to an

actual armed attack, on the one hand and anticipatory self-defence which aims at

149
Abraham D. Sofaer, On the Necessity of Pre-emption, 14 EJIL (2003) 214- 215
150
Id.
151
R. Jennings, The Caroline and McLeod Cases 32 AJIL (1938), at 85
152
IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (Oxford University Press, 6th Edition, 2006)
153
G. Travalio & J. Altenburg, Terrorism, State Responsibility, and the Use of Military Force, 4 Chi. J. Intl L.
(2003), at 114-115

51
anticipating a future attack, on the other hand. Second, the latter category is often sub-divided
in two separate categories, namely self-defence against imminent attacks (in accordance
with the Webster formula) and self-defence envisaged by the US National Security Strategy.
However, the labels used to define these sub-categories vary considerably. 154 Some authors
define the former as pre-emptive and the latter as preventive self-defence.155 Anticipatory
self-defence is sometimes taken to refer to the former sub-category alone, and sometimes is
including both. In recent years, however, it has become more common to reserve the concept
of pre-emptive self-defence for military action against an imminent or proximate threat of
attack and to reserve preventive self-defence for non-imminent or non-proximate threats.
Anticipatory self-defence is thereby regarded as the overlapping denominator. This is the way
in which both terms were coined inter alia in the 2004 Report of the UN High Level Panel on
Threats Challenges and Change,156 and in the 2005 follow-up Report of UN Secretary
General.157 Third, a number of authors have introduced the additional category of
interceptive or interceptive self-defence to define cases where force is used against an
attack which is being launched, even if it has not yet crossed the border.158 In such situations,
the attack is in a way no longer imminent, but has already begun to take place albeit that the
dividing line between that and pre-emptive self-defence is a very thin one. Various categories
into which self-defence actions can be classified into is elucidated below:

Reactive self-defence stands opposite to anticipatory self-defence. Strictly reactive

self-defence (excluding interceptive action) follows when an armed attack has struck
the territory of the defending state or its external manifestations abroad. The attack
may be completed or may still be ongoing, but its material nature is to some extent an
observable fact of reality.
Interceptive self-defence covers the situation where an attack has been launched, but
has not yet struck the defending state. In casu, there must be clear and compelling
evidence that the opponent has embarked upon an apparently, irreversible course of
action, thereby crossing the legal Rubicon.159 This category is located on the fault line

154
R. Kolb, Self-defence and preventive war at the beginning of the millennium 59 ZOR (2004) 11-34, at 122-
4
155
Advisory UNSC on International Affairs (AIV), Pre-emptive Action Advisory report No. 36, July 2004
156
Report of the Secretary-Generals High Level Panel on Threats, Challenges and Change, A More Secure
World: Our Shared responsibility, 2 December 2004, UN Doc A/59/565
157
UN Secretary-General Kofi Annan, In Larger Freedom: Towards Development, Security and Human Rights
for All, 21 March 2005, UN Doc A/59/2005
158
DINSTEIN, Supra Note 24
159
DINSTEIN, Supra Note 24 at 191

52
 between reactive and anticipatory self-defence. The clearest example is the scenario
whereby a missile has been launched but is still in the air.
Anticipatory action covers both pre-emptive and preventive self-defence. Pre-emptive
self-defence is directed against an attack which has not yet been launched, but which
is imminent. This presupposes that there have been certain preparations for attack,
such as the mobilisation of conventional forces.
Preventive self-defence, on the other hand, seeks to counter diverse future threats,
which have not yet fully materialized.160 There are no concrete indications that an
attack will be launched in the near future yet action is allegedly undertaken to prevent
the threat from becoming imminent.

The focus of the current chapter shall be restricted to an analysis of the last two forms of
anticipatory self-defence in the context of its application to the transnational armed attack by
NSAs.

4.3.Pre-emptive Self-defence against NSAs

The doctrine of pre-emptive self-defence is a more streamlined version of the

anticipatory self-defence mechanism in the sense that it is applicable before the occurrence of
an armed attack, based on the imminence of an armed attack occurring. This doctrine has
been subjected to vehement academic debate by international scholars belonging to opposite
sides of the table, viz. the restrictionists and the counter-restrictionists or expansionists.

4.3.1. Arguments in favour of Pre-emptive Self-defence

The principal legal argument holds that Article 51 UN Charter failed to abrogate the
broader pre-existing customary right of self-defence, which allowed for anticipatory action.
Most of these authors agree that this right was limited to imminent threats of armed attack,
and that the conditions governing its exercise were framed in the aftermath of the Caroline
incident.161 In casu, British troops conducted an attack on American territorial waters against
a merchant vessel used by Canadian rebels and their American supporters in attacks against
Canada.162 The sinking of the ship led to a furious reaction by the US which demanded that
Britain should show a necessity of self-defence, instant, overwhelming, leaving no choice of
160
Kolb, Supra Note 154 at 124
161
HIGGINS, PROBLEMS AND PROCESSES: INTERNATIONAL LAW AND HOW WE USE IT, (Oxford University Press,
1st Edition, 1999), at 242-3
162
Jennings, Supra Note 151

53
means and no moment for deliberation. This formula, also known as the Webster formula
(after the US Secretary of State), was subsequently accepted by the UK Foreign Minister as
the appropriate standard to test the lawfulness of the incursion.163 The proponents of
anticipatory self-defence furthermore claim that the drafters of the UN Charter did not have
the intention to restrict self-defence to actual (instead of imminent) armed attacks. Instead,
the travaux and the reference to the inherent character of the right of self-defence allegedly
indicate that Article 51 was only intended to give particular emphasis in a declaratory manner
for self-defence in the case of an armed attack. Moreover, from a policy perspective, the
supporters of anticipatory self-defence stress time and again that the increasing speed and
destructive potential of modern weaponry necessitates a construction of self-defence that is
not strictly reactive in nature. Especially in light of the development and proliferation of
nuclear weapons, they argue that it would be utterly unrealistic to expect States to suffer the
first, and possibly devastating or annihilating strike.

4.3.2. Arguments against Pre-emptive Self-defence

The aforementioned arguments are, however, refuted by considerable group of

international lawyers (sometimes dubbed the restrictionists), who have consistently
interpreted the Charter provisions as proscribing recourse to military force against imminent-
and a fortiori against non-imminent- threats of attack.164 These scholars denounce the
reliance by the previous group on a pre-existing customary right of anticipatory self-defence.
In the one hand, it is called into question whether customary law in the first half of the
twentieth century really supported such right. The episodic reference to the 1837 Caroline
incident is considered anachronistic and misguided. Indeed, instead of relying on customary
practice from the decades immediately preceding the UN Charter, the expansionists invoke
a precedent which dates from an age where States were essentially free to resort to war
against one another and lacking a legal regime of self-defence.165 A number of authors have
moreover stressed that the sinking of the Caroline can hardly be regarded as an example of
anticipatory self-defence, since the vessel had already been involved in multiple military
action against Canadian territory.166

163
Id., 89
164
J.L. Kunz, Individuals and collective self-defence in Article 51 of the Charter of the United Nation', 41
AJIL, 872-9 (1947), at 878
165
BROWNLIE, Supra Note 11, pp. 17-27, at 18-19
166
DINSTEIN, Supra Note 24

54
 Second and more convincing, the restrictionists argue that even if anticipatory self-
defence was permitted in the years prior to the adoption of the Charter, pre-existing custom
was nonetheless modified by Article 51 UN Charter. In essence, it can be broken down into
two parts. First, in the light of the equal normative position of the customary and
conventional law, and in accordance with the lex posterior principle, the introduction of the
Charter rules on the use of force has removed incompatible pre-existing custom. Second,
each of the primary elements of interpretation supports the view that the occurrence of an
armed attack is a sine qua non under the Article 51 UN Charter. In accordance with the
principle of effectiveness it is hard to give a different twist to the clear wording of the phrase
if an armed attack occurs. If the drafters did not intend this phrase to be regulatory, one
might have expected them to use a different wording or to have omitted the phrase altogether
(expression unius est expression alterius).

Furthermore, Article 51 constitutes an exception to the comprehensive prohibition on

the use of force, and must accordingly be interpreted restrictively. 167 The fact that the threat
of force and threats to the peace are mentioned in Article 2(4) and 39 proves that the
drafters were aware of such situations and choose to submit incidents concerned to the
UNSC. The objects and purpose of the UN Charter only confirms this reading, since its goal
was precisely to limit the unilateral use of force as much as possible and to subject to the
control of the UNSC. When taken together, these arguments make clear that the pre-existing
custom paradigm is not only artificial but fundamentally flawed. This view is shared by a
considerable majority of legal doctrine.168 Even among proponents of anticipatory self-
defence, many concede that legal support must be sought elsewhere, 169 primarily in post-
Charter customary practice. The leading scholar Thomas Franck has claimed that a reactive
posture has become logically indefensible by the advent of a new age of nuclear warheads
and long range rocketry, nonetheless he admits that it is beyond dispute that the
negotiations at San Francisco deliberately closed the door on any claim of anticipatory self-
defence.170 In a similar vein, it may be recalled that the United States argued during the
Nicaragua proceedings that the Charter provisions on the use of force and the customary
rules were in fact identical leaving no room for other customary and general principles of
international law.
167
Id.
168
R. Ago, Addendum to the 8th Report on State Responsibility, 32 YBILC, Part I, 65-6(1980-II)
169
Bothe Supra Note 7, at 229
170
THOMAS M. FRANCK, RECOURSE TO FORCE: STATE ACTION AGAINST THREATS AND ARMED ATTACKS
(Cambridge University Press, 2002), at 74

55
 Last but not the least, restrictionists have invoked various reasons to question the
desirability of anticipatory self-defence. First, they point at the difficulty of assessing claims
of anticipatory self-defence.171 If the analysis of the proportionality of reactive self-defence is
already a complex undertaking, how much more difficult is it not to ascertain whether a State
has responded proportionally to a threatened attack that has not generated any material
effects? Also, the admissibility of anticipatory action would largely hinge upon the intention
of the opponent, i.e. a subjective element which may be difficult to substantiate by means of
convincing evidence and which may alter in the course of time. Clear and objective criteria
are largely lacking. Second, it is submitted that States can lawfully undertake a number of
precautionary measures when a threat to their security is emerging. 172 They can engage in
military preparations of their own in order to be ready in case an attack comes. In accordance
with the ILC DASR,173 they may adopt non-forcible counter-measures. Another consists in
submitting a complaint to the UNSC.174 It is true that such demarche will not always or often
result in the adoption of concrete measures, yet it may at least have the benefit of exposing
the opponents aggressive posture. Third, while the expansionists draw attention to the
speed and destructive potential of modern weaponry, restrictionists object that, especially in
the nuclear era, military escalation must be avoided since false alerts may lead to disaster.175
In the words of Henkin: it is precisely in the age of the major deterrent that nations should
not be encouraged to strike first under the pretext of prevention or pre-emption.176

4.4.The National Security Strategy and Preventive Self-defence Against NSAs

The realities of the post-September 11 period led the Bush administration in 2002 to
articulate, in very strong and public terms, a doctrine of "pre-emptive self-defence." Among
other things, the doctrine asserted an evolved right under international law for the United
States to use military force "pre-emptively" against the threat posed by "rogue states" or
terrorists who possess WMD.177 According to the Bush administration:

171
BROWNLIE, Supra Note 11 at 259-60, Randelzhofer, Supra Note 10, at 803
172
HIGGINS, Supra Note 161
173
ILC, Commentary on the Draft Articles on the Responsibility of States for Internationally Wrongful Acts,
YBILC 128 (2001-II)
174
PHILIP C. JESSUP, A MODERN LAW OF NATIONS, (Macmillan Publishers, 1st Edition, 1948) at 166
175
MANFRED LACHS, GENERAL TRENDS OF INTERNATIONAL LAW, (Martinus Nijhoff Publishers, 1st Edition,
1984) at 164
176
HENKIN, HOW NATIONS BEHAVE, (Columbia University Press, 1st Edition, 1965) at 142
177
The National Security Strategy of the United States of America 15 (2002), Supra Note 119 at 13-14,

56
 For centuries, international law recognized that nations need not suffer an
attack before they can lawfully take action to defend themselves against forces
that present an imminent danger of attack. Legal scholars and international
jurists often conditioned the legitimacy of pre-emption on the existence of an
imminent threat-most often a visible mobilization of armies, navies, and air
forces preparing to attack.
The concept of imminent threat must be adjusted to suit the capabilities and
objectives of today's adversaries. Rogue states and terrorists do not seek to
attack us using conventional means. They know such attacks would fail.
Instead, they rely on acts of terror and, potentially, the use of weapons of mass
destruction-weapons that can be easily concealed, delivered covertly, and used
without warning.178
The United States has long maintained the option of pre-emptive actions to counter a
sufficient threat to our national security. The greater the threat, the greater is the risk of
inaction-and the more compelling the case for taking anticipatory action to defend ourselves,
even if uncertainty remains as to the time and place of the enemy's attack. To forestall or
prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-
emptively.179

4.4.1. The US National Security Strategy of 2002

Although the Bush administration articulated the doctrine, acceptance of the doctrine
within the U.S. government appears widespread. In the joint resolution enacted by Congress
to authorize the use of force against Iraq in 2002-03, Congress found:

Iraq's demonstrated capability and willingness to use weapons of mass

destruction, the risk that the current Iraqi regime will either employ those
weapons to launch a surprise attack against the United States or its Armed
Forces or provide them to international terrorists who would do so, and the
extreme magnitude of harm that would result to the United States and its
citizens from such an attack, combine to justify action by the United States to
defend itself.180
These brief excerpts illustrate the twofold scope of the NSS as a project to reassess both the
threats to the US security and the means to tackle them. As regards the first aspect, the
doctrine determines the model of inter-State conventional warfare has become outdated.
Instead, new twenty-first century security threats have emerged, most notably transnational

178
Id., at 15
179
Id.
180
Joint Resolution Authorizing the Use of Force against Iraq, Pub. L. No. 107-243, 116 Stat. 1498, 1499 (2002)

57
terrorism, proliferation of weapons of mass destruction and rogue States.181 The ultimate
doom scenario would consist in a terrorist group obtaining a nuclear device and smuggling it
into US territory. The NSS analysis of the changed international security environment
strongly influenced the adoption of related doctrines and declarations in various quarters of
the world, such as NATOs Prague Summit Declaration (2002),182 the OSCE Strategy to
Address Threats to Security and Stability in the Twenty-First Century (2003),183 the
European Security Strategy (2003),184 the African Unions Solemn Declaration on a Common
African Defence and Security Policy (2004),185 as well as the report of the UN High Level
Panel on Threats, Challenges and Change (2004),186 and the follow-up report In Larger
freedom of UN Secretary-General Kofi Annan (2005).187 At the same time, substantive
divergences exist in the ways the doctrines prioritize the various old and new threats, and
in the extent to which they recognize the interrelatedness of security, economic development
and respect for human rights.

The second and most interesting aspect of the National Security Strategy concerns the
proposed means to tackle the threats identified. Indeed, the Strategy amongst others sets forth
a new model of unilateral military action, which directly challenges the Charter rules on the
use of force and which constitutes the essence of the Bush Doctrine. The NSS finds that
because of the motivations of terrorist organizations and rogue States, deterrence is of no
avail; that weapons of mass destruction have become weapons of choice rather than
weapons of last resort, and that modern technology and improved mobility has considerably
increased the destructive potential of these actors.188 In sum, given the ability to deter a
potential attacker, the immediacy of todays threats, and the magnitude of potential harm, the
reactive posture of the past is no longer appropriate. The NSS challenges the ius ad bellum
framework in a twofold manner. A first challenge implicitly flows from the declaration that:
We make no distinction between terrorists and those who knowingly harbour or provide aid
181
US National Security Strategy, Supra Note 119
182
North Atlantic UNSC, Prague Summit Declaration, Prague 21 November 2002, NATO Press Release
(2002) 127
183
OSCE Ministerial UNSC, OSCE Strategy to address Threats to Security and Stability in the Twenty-First
Century, Maastricht, 1-2 December 2003
184
European Security Strategy, A Secure Europe in a Better World approved by the European UNSC on
December 2003
185
Solemn Declaration on a Common African Defence and Security Policy 2nd Extraordinary session of the
African Union, Sirte, 28 February 2004
186
Report of the Secretary Generals High Level Panel on Threats, Challenges and Change, A More Secure
World: Our Shared Responsibility, 1 December 2004
187
UN Secretary General Kofi Annan, In Larger Freedom: Towards Development, Security and Human Rights
for All, 21 March 2005
188
US National Security Strategy, Supra Note 119

58
to them.189 The NSS also speaks out on the ratione temporis dimension. The relevant
passages merit being restated in full:

We must adapt the concept of imminent threat to the capabilities and

objectives of todays adversaries. Rogue states and terrorists do not seek to
attack us using conventional means. They know such attacks would fail.
Instead, they rely on acts of terror and, potentially, the use of weapons of mass
destructionweapons that can be easily concealed, delivered covertly, and used
without warning.
The United States has long maintained the option of pre-emptive actions to
counter a sufficient threat to our national security. The greater the threat, the
greater is the risk of inaction and the more compelling the case for taking
anticipatory action to defend ourselves, even if uncertainty remains as to the
time and place of the enemys attack. To forestall or prevent such hostile acts by
our adversaries, the United States will, if necessary, act pre-emptively.
The United States will not use force in all cases to pre-empt emerging threats,
nor should nations use preemption as a pretext for aggression. Yet in an age
where the enemies of civilization openly and actively seek the worlds most
destructive technologies, the United States cannot remain idle while dangers
gather.
The most alarming aspect of the NSS is that it broadens the doctrine of anticipatory self-
defence beyond the traditional parameters of the Webster formula. It holds that the
requirement of an imminent threat must be adapted to the capabilities and objectives of
todays adversaries, and that anticipatory action may be needed even if uncertainty remains
as to the time and place of the enemys attack. In other words, even if the NSS alludes to
pre-emptive self-defence, it could more accurately be described as an endorsement of
preventive self-defence vis-a-vis non-imminent threats, which must be prevented from
emerging. Moreover, soon after the adoption of the NSS, it became clear that the Bush
Doctrine was not intended to be a paper tiger. In the course of the year 2002, it became
increasingly clear that Iraq would become the test-case for the USs new doctrine of
preventive self-defence.

4.4.2. Application of Preventive Self-Defence by the US against Iraq

In March 2003, the US again turned to the UNSC on the issues concerning Iraq and
the result was a disagreement between the permanent members, with France, Russia and
China refusing to adopt a resolution that would authorize the automatic use of force. 190 The

189
Id., 5
190
(2003) UNYB 330-2

59
UN Secretary-General warned that if the US and others were to go outside the UNSC and
take military action it would not be in conformity with the Charter. 191 Despite strong
political protest and massive anti-war demonstrations drawing hundreds of thousands of
protesters to the streets in cities around the globe, preparations for a military intervention
went ahead. On 18 March, the UN Secretary-general decided to withdraw all UN staff from
Iraq in the light of the imminent outbreak of a large-scale military conflict.192 On 20 March,
the US, the UK and Australia informed the UNSC that they had initiated military action
against Iraq.193

With regard to the legal justifications for the intervention in Iraq, the letter to the UN
from the US representatives and other official US statements, such as the October 2002
Congressional authorization, did not refer to preventive of pre-emptive self-defence. The
absence of an express reference to Article 51 or to the right of self-defence in the letter
starkly contrasts with previous US communications to the UNSC, such as those concerning
the 2001 intervention in Afghanistan, the 1998 strikes against Sudan and Afghanistan, or the
1986 strikes against Libya,194 as well as with the explicit reliance on a UNSC authorization.
In the UNSC debate of 27 March 2003, the US again claimed that the intervention was
legitimate and not unilateral on the basis of Resolutions 678 (1990), 687 (1991) and 1441
(2002), without adding even the vaguest mention of self-defence.195 In a similar vein, the US
Legal Adviser in an article in the American Journal of International Law asserted the
foundation of the intervention lay in its authorization by the UNSC.196 Thus, the US
deliberately refrained from presenting the Iraq intervention as an application of the
contentious Bush doctrine.

The reaction of the international community to the intervention in Iraq was divided to
a large extent. Notably, most of the States deplored the intervention and labelled it as a
violation of the UN Charter.197 Only a handful of UN Members opposing the intervention
dwelled on the admissibility of anticipatory action. Algeria and Iran stressed that, even by
any stretch of the imagination, there was no imminent threat emanating from Iraq. 198 Lebanon

191
UN Secretary-Generals Press Conference, The Hague, 10 March 2003
192
(2003) UNYB 316
193
UN Doc. S/2003/350, 20 March 2003 (UK)
194
UN Doc. S/2001/946
195
UN Doc. 4726 (Resumption 1), 27 March 2003, 25
196
W.H. Taft and T.F. Buchwald, Pre-emption, Iraq and International Law, 97 AJIL (2003) 557-63
197
UN Doc. S/PV 4726, 6-7
198
Id., 10

60
noted that the invocation of self-defence was an invalid argument since Article
51...recognizes the right...only if an armed attack occurs...199 Malaysia and Yemen rejected
the pre-emptive use of force, based on mere doubts about the intention of others.200

In the end, the argument that the Iraq intervention constitutes a precedent in favour of
anticipatory self-defence is without merit. Those States supporting the operation carefully
avoided any justification based on a broad reading of Article 51 UN charter. Furthermore, a
majority of States apparently held the opinion that the operation violated the UN Charter. The
combination of both considerations can be regarded as an implicit rebuttal of the Bush
doctrine of preventive self-defence against non-imminent threats. On the other hand, as no
country seriously contended that there existed an imminent threat of attack the lawfulness of
pre-emptive self-defence was not at stake. Accordingly, opposition against the intervention
should not automatically be qualified as opposition to anticipatory self-defence as such. In
this respect, it must be noted that if the Iraq crisis is ultimately of little direct relevance to the
ratione temporis aspect under consideration, the NSS (2002) and the Iraq crisis have had an
enormous indirect effect. Both have acted as a catalyst prompting international lawyers as
well as States to reconsider their positions vis-a-vis anticipatory self-defence.

4.4.3. Critical Response of the International Scholars on Preventive Self-defence

Numerous scholars have used the Iraq war as a test case for the admissibility of
anticipatory self-defence. First of all, a number of US authors have defended the idea that the
threat emanating from the Iraqi regime warranted an exercise of the right of self-defence.201
The US Congressional Joint Resolution justified the intervention in Iraq on the basis of the
following reasons: (1) Iraq had a demonstrated capability and willingness to use weapons of
mass destruction; (2) there was a high risk that the regime would either employ those
weapons to launch a surprise attack against the US or provide them to international terrorists
who would do so; (3) the resulting harm would be of such extreme magnitude as to justify
anticipatory action by the US.202

199
Id., 35
200
Id., 8
201
M.J. Glennon, Pre-empting terrorism: the case for anticipatory self-defence, Weekly Standard, 28 January
2002, available at <http://www.weeklystandard.com/preempting-terrorism/article/2105> Last accessed on 23
July, 2017
202
US Congress Joint Resolution

61
 The scholars belonging to this group generally do not attach much significance to the
imminence standard that is the traditional hallmark of the counter-restrictionist approach.
Nonetheless, upon closer view, it is evident that they support a broader construction of self-
defence, encompassing the use of force against threats that lack the temporal imminence of
the Webster formula. In other words, they admit to greater or lesser extent the preventive
recourse to force against non-imminent threats, as envisaged by the NSS. Cohan, while
admitting that the Bush doctrine departs from the Charter rules as well as from previous
State practice, nonetheless asserts that: Anticipatory offensive intervention has emerged as a
valid doctrine. This type of intervention justifies action to literally attack and replace
tyrannical regimes that foster international terrorism, endeavour to, or actually develop and
maintain biological, chemical or nuclear weapons.203 Pierson claims that the imminence
requirement of the Caroline doctrine dealt with friendly States and suggests a more flexible
standard for self-defence in todays struggles with terrorist groups and rogue regimes.204
Other US scholars have openly advocated a non-temporal definition of imminent danger.205

Furthermore, some European scholars, while rejecting the broad parameters of the
Bush doctrine and regarding the Iraq war as unlawful, have also questioned the requirement
of temporal imminence. Hoffmeister, for example, finds that neither the Webster formula nor
the Bush doctrine provides an adequate legal framework: while the former is too restrictive to
cope with the emerging threats of the twenty-first century, the latter lacks clear and objective
criteria.206 Instead he puts forward a standard that essentially requires a combination of
aggressive statements and a capacity to mount an attack.207 Likewise, Gill deems it sufficient
that there is evidence of a credible threat of probable or, in some cases, even potential in the
foreseeable future.208

On the whole, legal scholars have almost unanimously denounced the doctrine of
preventive self-defence. Furthermore, in the immense legal literature published in the
aftermath of the Operation Iraqi Freedom, a vast majority of the international lawyers has

203
Cohan, The Bush Doctrine and the Emerging Norm of Anticipatory Self-Defense in Customary International
Law, 15 Pace Int'l L. Rev. 283 (2003) at 288
204
C. Pierson, Pre-emptive self-defence in an age of weapons of mass destruction: Operation Iraqi Freedom,
33 Denver JILP 150-178, 177 (2004-5)
205
M.L. Rockfeller, The imminent threat requirement for the use of pre-emptive military force: is it time for
a non-temporal standard? 33 Denver JILP 131-49 (2004-5)
206
H. Hoffmeister, Pre-emptive strikes- a new normative framework, 44 AdV 187-200, 191-2 (2006)
207
Id., 193-4
208
Terry D. Gill, The Temporal Dimension of Self-Defence, 11 J. Conflict & Sec. L. (2006), at 366

62
strongly denounced the admissibility of self-defence against non-imminent threats.209 In this
regard, it is worth observing that even the US Legal Adviser recognized the importance of the
imminence requirement. In a series of publications he admitted that one may not strike
another merely because the second might someday develop an ability and desire to attack
it,210 and insisted that the US recognizes the right to use force pre-emptively only when the
traditional tests of necessity and proportionality are satisfied. 211 Thus, international lawyers
agree virtually unanimously that preventive self-defence patently lacks any basis in
international law: it is diametrically opposed to the Charter framework on the use of force
and it is not supported by any shred of customary evidence in the post-1945 era.212

In addition, the doctrine is considered highly undesirable from a de lege ferenda

perspective for a variety of reasons. It would fundamentally undermine the UNSCs
responsibility to deal with threats to the peace. It is founded on a vague and subjective
threshold which is not subjective to objective verification and would consequently escape
international scrutiny. The result would be a return to the pre-Charter era, in the sense that
each State would be the judge of its own actions. Finally, some authors have warned that
preventive self-defence necessarily involves a subjective determination not only of when, but
also of how States may use force. In this context, it is warned that the doctrine could be
invoked to justify disproportionate responses seeking regime change abroad.213

A growing body of legal scholars has come to accept the admissibility of pre-emptive
self-defence along the lines of the Webster formula. Some of the authors have apparently
taken the view that customary practice endorsed this approach. Others may well have been
misguided by the NSSs bold declaration that international law has for centuries recognized
that the right of self-defence extends to imminent threats of attack. Still others may have
found that the changed international security environment, exposed by the 9/11 attacks,
warranted the abandoning of the restrictionist interpretation of Article 51 UN Charter.
Finally, some may have embraced pre-emptive self-defence as a seemingly inevitable

209
A. Anghie, The Bush administration pre-emption doctrine and the United Nations, 98 ASIL Proc 326-
9(2004)
210
TAFT & BUCHWALD, PRE-EMPTION, IRAQ, AND INTERNATIONAL LAW, 557
211
W.H. Taft IV, Pre-emptive action in self-defence, 98 ASIL Proc 331-3, at 333 (2004)
212
Vaughan Lowe, The Iraq crisis: What Now? 52 ICLQ (2003) at 865
213
M.E. OConnell, The Myth of Pre-emptive Self-defence, at 20, available at
<https://www.nyccriminallawyer.com/wp-content/uploads/2014/07/oconnell.pdf> Last accessed on 23 July,
2017

63
compromise in the confrontation between two extreme views of self-defence; one strictly
reactive, the other preventive.

While the restrictionist school of thought held the upper hand earlier, the balance may
well have tilted in favour of the counter-restrictionists. This is certainly the case in the US,
the UK and Australia, where a majority of scholars now accept that reliance on self-defence
is justified against imminent threats of attack.214 Yet, beyond the Anglo-Saxon world, support
for pre-emptive self-defence also appears to be on the rise.215 Significantly, the Institut de
Droit International in October 2007 adopted a resolution acknowledging amongst other
things that the right of self-defence extends to manifestly imminent armed attacks. 216 While
the counter-restrictonist school may be gaining ground, numerous scholars concede that the
legality of pre-emptive self-defence is and remains uncontested.217 Many prominent authors
moreover continue to insist that nothing in State practice supports and extension of the right
of self-defence beyond the parameters of Article 51 UN Charter.

4.5.Role of the UNSC in the application of pre-emptive self-defence against NSAs

The main issue with the notion of preventive self-defence as envisioned under the US
National Security Strategy or the so-called Bush Doctrine is two-fold. One, there is no clear
guidelines as to when an armed attack in the name of preventive self-defence can legitimately
be invoked and two, there is no supervising authority which can determine the legitimacy or
regulate the necessity and proportionality issues intricately linked with such a notion of self-
defence action. Further, the unilateral nature of such an attack is indeed a cause for concern
as such attacks in self-defence if it gains validity in the international order will only serve to
spur the instances of application of unilateral use of force in self-defence.

The right of self-defence as specified under Article 51 of the UN Charter can be

invoked only if an armed attack occurs against the state, whereas the notion of pre-emptive
self-defence is raised in case of there being a threat which is imminent. The term
imminent is again a term which can be subjected to various interpretations and as such, does

214
Greenwood, International Law and the Pre-emptive Use of Force: Afghanistan, Al Qaida, and Iraq, 4 San
Diego Intl. L. J., 2003
http://heinonline.org/HOL/Page?handle=hein.journals/sdintl4&div=7&g_sent=1&collection=journals (Last
accessed 16th,July,2017)
215
Bothe, Supra Note 7, Gill, Supra Note 208 at 268
216
Institut de Droit International, tenth Commission- Present problems of the Use of Armed Force in
International Law, Resolution of 27 October 2007, Santiago
217
Cassesse, Article 51, p. 1341; D INSTEIN, Supra Note 24 at 182-4

64
not specify a consistent standard for the application of self-defence in a pre-emptive manner.
It is evident that the notion of pre-emptive self-defence is not based on the requirement of
armed attack as it anticipates the occurrence of such an event before it materializes. Thus,
an instance of use of force in pre-emptive self-defence does not require the occurrence of an
armed attack, thereby negating the entire mandate of Article 51. It can be inferred that pre-
emptive self-defence is recourse to a defensive mechanism to a threat of use of force before it
actually materializes into an armed attack. This notion of self-defence goes against the very
core principle of the traditional notion of self-defence which envisages that the right of self-
defence can only be exercised if an armed attack occurs. The arguments in this regard have
been discussed above. For the current issue, it is worthwhile to remember that issues of threat
to peace or breach of the peace are governed by the UNSC under Chapter VII of the UN
Charter.

The UNSC has been held responsible under Chapter VII of the Charter to ensure the
maintenance of international peace and security and in this regard, it is within the purview of
the authority of the UNSC to invoke both financial and military sanctions against the
offending State. Such powers have been bestowed upon the UNSC in order to ensure that no
unilateral use of force is employed by any of the Member States in an indiscriminate manner.
In a critical matter with grave consequences, it is imperative that subjective interpretations be
set aside in favour of collective co-operation. Moreover, the UNSC also fulfils the duty of a
dispute settler as it plays a significant role in the pacific settlement of dispute under Chapter
VI of the UN Charter. Thus, the responsibilities bestowed on the UNSC by virtue of the
provisions contained in Chapter VI and Chapter VII of the UN Charter renders the UNSC as
an authority meant to ensure the sustenance of international peace and security. The same
was highlighted by Judge Fitzmaurice in his dissenting opinion in the ICJ advisory opinion
on the Namibia case in the following words: It was to keep the peace and not to change the
world order that the UNSC was set up.218

The determination of the threat posed by the fact of affording safe haven to terrorists
within their territory was left in the hands of the UNSC. Besides the determination of such a
threat, the SC also had the power to authorize forceful intervention in order to preserve the
peaceful conditions. Nevertheless, a valid right of exercising self-defence subsists when the

218
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding UNSC Resolution 276 (1970), Dissenting Opinion of Judge Sir Gerald Fitzmaurice,[1971] ICJ
Rep 291, at 294, para. 115.

65
transnational armed activities by NSAs are emanating from the territory of a State or if there
is an imminent threat of such an occurrence and the UNSC, as stated before, has the authority
to implement military sanctions. However, in a similar situation, a unilateral use of force by a
State based on the assumption that there is imminent threat to its security is without
justification. The principal argument behind the reason to delegitimize such unilateral use of
force in pre-emptive self-defence lies in the fact that such an option will be exercised
arbitrarily by States through a subjective appraisal of the circumstances. In order to prevent
such indiscriminate exertion of use of force, Article 39 of the UN Charter has clarified that it
is the SC which shall determine the existence of any threat to the peace, breach of the peace,
or act of aggression and shall make recommendations, or decide what measures shall be
taken.

In the case of harbouring NSAs which is in violation of the international obligation to

deny safe haven, the task of the UNSC to determine the existence of a threat to peace has
expanded to the examination of States wherein such NSAs are based and operating from in
order to assess the threat posed by these actors. The threat is analysed not only in terms of
existing or imminent attacks but also in terms of potential future attacks by the NSAs.
However, not every assessment against a State harbouring NSAs should result in recourse to
military actions as there does exist alternative in the form of economic sanctions and
diplomatic processes with that State, as illustrated by the Charter itself in the following
words:

These may include complete or partial interruption of economic relations and

of rail, sea, air, postal, telegraphic, radio, and other means of communication,
and the severance of diplomatic relations.219
An instance of such an approach was witnessed in the war against Al-Qaeda where the initial
Resolutions of the UNSC were directed towards more peaceful methods such as freezing of
funds provided to NSAs220 and condemning their financings221. In this context, Resolution
1373 specifies the following:

Decides that all states shall Freeze without delay funds and other financial
assets or economic resources of persons who commit, or attempt to commit,
terrorist acts or participate in or facilitate the commission of terrorist acts; of
entities owned or controlled directly or indirectly by such persons; and of
persons and entities acting on behalf of, or at the direction of such persons and
219
UN Charter. Article 41
220
SC Res. 1267 of 15 Oct. 1999
221
SC Res.1333 of 19 Dec. 2000

66
 entities, including funds derived or generated from property owned or controlled
directly or indirectly by such persons and associated persons and entities.222
However, there is no assurance that a peaceful approach shall yield successful results in all
cases and the need to resort to military actions might seem more conducive towards ensuring
international peace and security. The SC has the power to initiate collective military action
against states harbouring NSAs as per the specifications of Chapter VII of the UN Charter.
There does exist a couple of problems in administering such an approach by the SC. Firstly,
the political nature of the functioning of the SC and its composition, especially that of the
five permanent members with veto powers. The permanent members may use their veto
power to influence decisions of the SC and thus, actions adopted by the SC may be done with
a political motive rather than an intention of establishing international peace and security.
Secondly, execution of collective military action takes valuable time, thereby affording the
NSAs the opportunity to be warned of the oncoming assault and a time gap in which to
effectuate their escape plan. Therefore, it is crucial to maintain a balance between the
necessity of countering the situation immediately through unilateral action without waiting
for the lengthy deliberations in the UNSC on the one hand and the cautious approach
espoused by a collective military action with the authorization of the SC.

The possible abuse of pre-emptive self-defence can manifest itself in many forms
such as arbitrary exercise of the right based on subjective assessment of situation; using it for
subjectively, with prejudice or for political purposes; violation of the peremptory norm of
non-intervention. Considering the potential misuse of such a doctrine and at the same time
recognizing that the doctrine furnishes a pragmatic solution to the threat of NSAs and grave
consequences by their transnational armed activities, it is more appropriate to embrace a
midway path in the form of multilateral pre-emptive use of force in self-defence. This
allows an act of pre-emptive self-defence to be carried out in a collective manner, thereby
effectively reducing the possibility of abuse of the doctrine by any kind of subjective
assessment by States. The application of this approach by the SC can be expanded further to
include situations of a potential future transnational armed action on the part of NSAs who
are operating from within a State.

The doctrine of pre-emptive self-defence, although subject to possible abuse, is a

necessary remedy to the immense threat posed by NSAs today. However, at the same time, it
has to be implored that the notion of preventive self-defence as propounded by the US NSS
222
SC Res.1373 of 28 Sep. 2001

67
or better known as the Bush Doctrine is completely untenable. It advocates in favour of
executing a use of force in self-defence against a possible adversary even before the threat
has become imminent. This threshold of imminence forms the foundation of the difference
between the notions of pre-emptive and preventive self-defence, which although appear
similar but in fact are vastly different in theory. Pre-emptive self-defence supports the
initiation of a use of force in self-defence against an armed attack which has not yet occurred
but is imminent and has a distinct possibility of materializing in reality. Preventive self-
defence, on the other hand, does not advocates the execution of a tight so self-defence even in
the absence of any imminent attack basing its rationale on the incredible ability of the NSAs
to cause destruction preparation against is almost possible as there is no warning sign behind
such attack. Thus, pre-emptive self-defence imposes a strong burden of proof on the state
exercising the right of self-defence to prove the imminence of an attack in order to validate
the use of force in self-defence, whereas preventive self-defence dispenses with any
requirement of adducing evidence. Hence, the notion of multilateral pre-emptive self-
defence as explained above is a better alternative since it poses a lesser threat to international
peace and security.

In summation, the application of anticipatory self-defence to the transnational armed

activities of the NSAs may be classified into three distinct categories: interceptive self-
defence, pre-emptive self-defence and the preventive self-defence based on the US National
Security Strategy. The right of instituting an interceptive self-defence is uncontested and
justified on the grounds of intercepting the first strike of an actual belligerent attack. The
Caroline test, which is said to be the foundation for the notion of anticipatory self-defence,
does not hold any relevance in the Charter era. The Caroline incident took place in age where
there was absolute freedom to resort to war and any justification in favour of an armed
retaliation was readily accepted. Moreover, the provisions of Article 51 UN Charter
completely repudiated the principles expounded by the Caroline test. The pre-emptive self-
defence criteria is an expanded form of the criteria of anticipatory self-defence which is more
acceptable and relevant to the current predicament, keeping in mind that awaiting for a non-
state actor to strike first may have catastrophic outcomes. The notions of interceptive self-
defence and pre-emptive self-defence may appear similar but there exists a vital distinction
between the two. The former is based on more concrete evidence and demands a high burden
of proof while the latter abandons such requirements entirely. Secondly, interceptive self-
defence in executed in instances where the timeframe for the first strike against it is

68
extremely narrow whereas pre-emptive self-defence does not have to function under such
critical point in time. Interceptive self-defence is theoretically preferable to the latter but the
exigencies of the modern world render a more practical approach such as pre-emptive self-
defence indispensable. The concept of pre-emptive self-defence is, however, not covered
under any guidelines or unequivocal terms nor is there any supervising authority to determine
the validity of the claims of an imminent attack before launching a pre-emptive strike.
Preventive self-defence as propounded by the US National Security Strategy is an alarmingly
overreaching proposition. The approach of preventing a threat from becoming imminent or
initiating an armed attack in self-defence even when no attack is imminent form the other
side is untenable as well as precarious in nature for the purposes of a peaceful international
order. However, a more prudent approach would be to repose faith in the authority of the
UNSC to enforce collective military actions and as regards the necessity of tackling the
imminent threat from transnational armed activities by NSAs. A multilateral pre-emptive
self-defence mechanism under the aegis of the UNSC is a better alternative to unilateral
invocation of the right of pre-emptive self-defence based on a subjective assessment of the
circumstances.

69
 5. THE POSITION OF THE SECURITY COUNCIL ON SELF-DEFENCE
AGAINST NON-STATE ACTORS

The provision contained in Article 51 of the UN Charter mentions the role to be essayed
by the UNSC in the executing the principles attached to the right of self-defence under
international law. Article 51 states:

....until the UNSC has taken measures necessary to maintain international

peace and security. Measures taken by Members in the exercise of this right of
self-defence shall be immediately reported to the UNSC and shall not in any
way affect the authority and responsibility of the UNSC under the present
Charter to take at any time such action as it deems necessary in order to
maintain or restore international peace and security.
Thus, it is manifestly specified that under the provision of Article 51 of the UN Charter the
UNSC has three crucial functions in the context of right of self-defence. Firstly, the right of
self-defence extinguishes once the UNSC has initiated measures to take control of the
situation that has raised the necessity of self-defence in the first place itself. Once, the UNSC
gets involved and has begun its task of restoring peace and international order, the
continuance of the exercise of use of force is counter-productive to that end. Thus, a valid
exercise of the right of self-defence under Article 51 ends at the time when the UNSC takes
control of the volatile situation existing between the concerned nations. Second, the right of
self-defence under Article 51 mandates that the State which launches a use of force in self-
defence must report to the UNSC as soon as the offense is launched so as to exercise a
legitimate right of self-defence. Only an action which has been reported to the UNSC as an
incidence of use of force in self-defence can be considered a valid exercise of the right under
Article 51. A use of force cannot be justified by an absence of intimation to the UNSC of the
exercise of the right under Article 51 and subsequent justifications. It is essential in order to
restrict indiscriminate use of force by Member States in the name of self-defence that every
instance of invocation of Article 51 be conveyed to the UNSC as soon as possible so as to
remove any possible doubts regarding the intent of the State launching the offense. Third, it
has been explicitly stated under Article 51 that the invocation of the right of self-defence does
not preclude the UNSC from taking action in order to execute its primary responsibility of
maintaining international peace and security. It means that the UNSC has a right to take
additional or separate measures in order to ensure that the concerned incident does not
escalate or transgress its limits and turn into a full-scale war, thereby affecting international
peace and security.

70
 Apart from the responsibilities that have been clearly specified under the provision in
Article 51 regarding the role of the UNSC in the course of the exercise of the right of self-
defence, the UNSC has further significant duties to undertake especially in the current
scenario of the rise of involvement of NSA into the sphere of use-force and the consequent
extension of the entire ambit of the right of self-defence to include these NSA within its
purview. In the course of discussion in the previous chapters, some relevant issues which can
be effectively dealt with by the UNSC have already been observed. In the present chapter, the
position of the UNSC on the issue of involvement of NSA in transnational armed actions
over the years shall be evaluated. This shall be done by a scrutiny of the relevant UNSC
Resolutions tackling the issue of transnational armed actions by NSA and how these
Resolutions have progressively undergone a change in their perspective, culminating in the
remarkable UNSC Resolution 1373 of 2001.

In the contemporary world, the threat to international peace and security is under
considerable threat, and it is not emanating from the regular armed forces of a State rather it
comes in the form of NSA who are involved in the process of transnational armed actions.
Consequently, there was an urgent need to tackle this ever-increasing threat that was looming
over the modern world to have an effective legal mechanism to control and curb this menace.
In this regard, the traditional international law governing the sphere of use of force is
inadequate to provide suitable remedy in an expedient manner.223 As a matter of fact, there is
neither the existence of any treaty law nor any principle of customary law which forms an
efficient solution to the current predicament. The reasons for the absence of the same may be
due to the long duration for the formation of international customs and the ambiguous nature
of the content of customary law whereas in case of treaty law, it may be due to the lack of
participation on the part of State parties and the lack of consensus to be found in internal
deliberations. The ratification process is also rarely shown any enthusiasm and the ability to
make reservations renders the whole process futile in certain cases. 224 Thus, the need to deal
with the threat expediently was contradicted by the absence of a mechanism to do the
needful.

The answer to this conundrum was present in the form of an already existent forum in
the form of the UNSC. The object of the formation of this body was to establish and maintain

223
UN SC Res 1373 of 28 September 2001,
224
Andrea Bianchi, Enforcing International Law Norms against Terrorism: Achievements and Prospects, in
ANDREA BIANCHI (ED.), ENFORCING INTERNATIONAL LAW NORMS AGAINST TERRORISM (2004), 491 at 515.

71
international peace and security. The role of the UNSC has already been established under
Chapter V of the UN Charter but the recognition for the development of international law by
an organ of the United Nations was primarily given to the UNGA.225 Nevertheless, since the
cessation of the Cold War, the onus of the development of international law shifted from the
shoulders of UNGA to those of the UNSC. As a result of significant threats to international
peace and security emerging in recent times, the pertinence and value of the Resolutions
passed by the UNSC has increased over the years. This ultimately culminated in the passing
of the Resolution 1373 which had unprecedented ramifications which shall be elaborated later
on in the chapter.

The proliferation of the matters which pose a threat to international peace and security
has raised both the level of significance and attention attracted to the work undertaken by the
UNSC, comprising of five permanent members and ten rotating members. The composition
of the UNSC has to be kept in mind as it is very pertinent to the entire discussion on the
functioning of the UNSC on current issues. In the context of current discussion, the most
relevant part of the UN Charter is Chapter VII which conferred on the UNSC the sole
responsibility to take actions with respect to threats to the peace, breaches of the peace and
acts of aggression as suggested by the heading itself. The role of the UNSC under Chapter
VII of the UN Charter has been detailed in the next part.

5.1.Role of the UNSC under Chapter VII of the UN Charter

The United Nations Charter established within the United Nations structure an organ
known as the UNSC. Chapter V Article 24 stated that the UNSC shall as its primary
responsibility ensure the maintenance of international peace and security. Chapter VII,
entitled Action with respect to threats to the peace, breaches of the peace, and acts of
aggression, laid out the UNSCs power with respect to both determining and responding to
such threats or acts. Most pertinently, Article 41 provided the UNSC with the ability to
authorize non-military action:

The UNSC may decide what measures not involving the use of armed force are
to be employed to give effect to its decisions, and it may call upon the Members
of the United Nations to apply such measures. These may include complete or
partial interruption of economic relations and of rail, sea, air, postal, telegraphic,

225
OBED Y. ASAMOAH, THE LEGAL SIGNIFICANCE OF THE DECLARATIONS OF THE GENERAL ASSEMBLY OF THE
UNITED NATIONS (Martinus Nijhoff, 1st Edition, 1966) at 39

72
 radio, and other means of communication, and the severance of diplomatic
relations.
Similarly, Article 42 permitted military action should the UNSC deem an Article 41 response
inadequate to address an issue. Furthermore, Article 48 made any decision of the UNSC
binding upon Member States.226 Lastly, Article 51 embedded a right to self-defence within
the UNSC framework, and the main responsibilities of the UNSC in this context have already
been discussed above. Thus, the UNSC can make binding military and non-military decisions
on behalf of all UN Member States. These States are then expected to apply such measures
domestically.

5.2.Position of the UNSC against NSA prior to Resolution 1373

The incident which occurred on September 11, 2001 involving the hijacking of the
airplanes and the destruction of the twin towers of the World Trade Centre had a profound
effect on the change in approach of the UNSC to the issue of threat of transnational armed
actions of the NSA. The eventual result of the incident was the passing of the Resolution
1373. The approach of the UNSC prior to the passing of the Resolution can be described as
possessing two specific characteristics. Firstly, the Resolution has always been of a
persuasive character, relying on urging or imploring States to commit to certain agreed upon
conduct. Secondly, Article 25 of the UN Charter makes it a requirement on the Member
States to accept and carry out the decisions of the UNSC in accordance with the present
Charter. Combining the two statements made above, it can be inferred that the Resolutions
of the UNSC are binding on the Member States of the UN but it does not create any
international obligation for the States as the Resolutions themselves do not employ any such
terms in the language of the Resolution so as to create an obligation for the Member States.
On the contrary, prior to Resolution 1373 the UNSC had engaged in requesting States or
urging them to undertake the arrangements settled at the meeting of the UNSC. Secondly, the
Resolutions have always taken up a specific approach to situations, i.e. the Resolutions on the

226
Article 48 reads: The action required to carry out the decisions of the Security UNSC for the maintenance of
international peace and security shall be taken by all the Members of the United Nations or by some of them, as
the Security UNSC may determine.

73
issues of transnational armed actions of the NSA deal with specific instances of such actions
by NSA and not of a general nature.227

5.2.1. UNSC Resolution 1267 and 1333

A number of Resolutions which have been passed by the UNSC prior to the adoption
of Resolution 1373 have tackled the issue of transnational armed attacks by NSA. The
Resolutions of the UNSC adopted prior to the 9/11 incident contained sanctions which were
clearly intended for a specific state or concrete security threats. 228 For example, Resolution
1267 (1999) established a sanctions regime against the Taliban. 229 Under Resolution 1267,
the UNSC established a committee to oversee the sanctions imposed on the Taliban regime in
October 1999, including the task of supervising the reports sent by each member.230 The
UNSC has adjusted the sanctions regime a number of times since then, moving to include
individuals and groups associated with Al-Qaeda along with the Taliban and to expand the
scope of the sanctions.231 In an effort to improve its efficacy, the UNSC authorized the
creation of a monitoring team and a sanctions enforcement team early on in the process.232
The 1267 Committee is, however, quite different from those that followed it in significant
ways, all of which is derived from the fact that the sanctions regime is a function of the case-
specific counter-terrorism efforts of the UNSC.233 The Sanctions regime has specific targets
and desired outcomes. There will come a point in time when the sanctions regime may be
ended. This stands in contrast to the requirements of the UNSCs general counterterrorism
approach where States are asked to undertake measures at the national level that affect their
own citizens and will be in place indefinitely.

The next significant step came in the form of Resolution 1333 (2000) which had the
effect of prohibiting the sale of weapons as well as any form of military assistance to the
Taliban.234 Furthermore, more stringent measures were taken up in this Resolution as the

227
Jane Boulden, The Security Council and Terrorism, in VAUGHAN LOWE ET. AL., THE UNITED NATIONS
SECURITY COUNCIL AND WAR: THE EVOLUTION OF THOUGHT AND PRACTICE SINCE 1945 (Oxford University
Press, 1st Edition, 2008)
228
Monika Heupel, Adapting to Transnational Terrorism: The UN Security UNSCs Evolving Approach to
Terrorism, Security Dialogue 38, no. 4 (2007), 482.
229
SC Res 1267 of 15 Oct. 1999
230
Id., Para 6
231
SC Res 1363 of 30 July 2001
232
Id.
233
Rosemary Foot, The United Nations, Counter-Terrorism and Human Rights: Institutional Adaptation and
Embedded Ideas, 29 Human Rights Quarterly (2007), at 504
234
S/RES/1333 (2000), Para 5

74
offices of Taliban were to be closed by States within their jurisdiction.235 In order to oversee
the sanctions process and ensure that it was being adequately implemented, Resolution 1363
(2001) was passed by the UNSC.236 It is a significant detail that throughout these Resolutions,
the term employed by the UNSC was urged or called upon States and therefore, the
approach of the UNSC was to implore or request the compliance of States as opposed to
create a mandatory compliance. Again, in Resolution 1269 (1999), the UNSC employed the
non-binding language of calls upon to encourage states to cooperate on matters of terrorism
prevention.237

This trend of employment of non-binding language in its Resolutions by the UNSC

continued even in the aftermath of the 9/11 incident as Resolution 1368 which was passed on
the very next day of the occurrence of the incident merely called on states and did not
require mandatory action on the part of the Member States.238 In essence, it would hardly be
inappropriate to state these Resolutions of the UNSC merely served as ideal statements of
principle rather than creating any effective legal obligations for the Member States. A major
critic of the UNSC Resolution 1373, Kim Scheppele, has pointed out a fundamental defect in
the Resolution in that it is singling out a particular state for sanctions and only requiring
actions from all Member States in order to enforce this narrowly tailored objective.239

5.3.The Adoption of UN Resolution 1373

Resolution 1373 was passed roughly a fortnight after the occurrence of the 9/11
incident and it is to be noted that this Resolution was more substantive and comprehensive in
scope.240 Scheppele argues that it represented an essentially legislative resolution that, for
the first time in the UNSCs history, used binding authority under Chapter VII of the UN
Charter to require all Member States to change their domestic laws in very specific ways.241
Matthew Happold also asserts that it is in the form of a legislative act or statutea unilateral

235
Id., Para 8
236
SC Res. 1363 of 30 July 2001, available at <http://unscr.com/en/resolutions/doc/1363>
237
S/RES/1269 (1999)
238
S/RES/1368 (2001)
239
Kim Scheppele, The Migration of Anti-constitutional Ideas: the Post-9/11 Globalization of Public Law and
the International State of Emergency, in THE MIGRATION OF CONSTITUTIONAL IDEAS, (Ed. Sujit Choudhry,
Cambridge: Cambridge University Press, 2006) at 350
240
S/RES/1373 (2001)
241
Scheppele, Supra Note 239, at 352

75
act imposing a series of general obligations binding on all UN Member States. 242 Finally,
Monika Heupel emphasizes that the novelty of Resolution 1373 lies in the generic nature of
the responsibilities as well as the fact that the UNSC declared any act of terrorism per sea
threat to international peace and security.243 Resolution 1373 requires states to undertake
three main types of action:

A variety of measures relating to suppressing terrorist financing, including the

criminalization of provisions or collection of funds for terrorist acts, the freezing of
financial assets of people who commit or seek to commit terrorist acts, and the
prohibition of nationals from making funds and assets available for such people or
purposes;244
National measures to ensure non-support of terrorist activity, including the denial of
safe haven, bringing those involved to justice, assisting other states in criminal
investigation, and maintaining adequate border controls to prevent the movement of
terrorists;245
Cooperative measures with each other, such as exchanges of information and early
warning, ensuring terrorists are not abusing or using the refugee and asylum seekers
system, and full implementation of all the relevant conventions.246

The Resolution further makes declarations on the domestic legislation on the issue of tackling
the NSA within a territory. It states that the domestic legislations should provide that such
terrorist acts are established as serious criminal offences in domestic laws and regulations247
with punishment fitting the gravity of the actions committed. Measures relating to co-
operation between States on this issue were also mentioned in the Resolution as States were
required to give one another the greatest measure of assistance in connection with criminal
investigations or criminal proceedings relating to the financing or support of terrorist acts,
including assistance in obtaining evidence in their possession necessary for the
proceedings.248 Finally, all countries had to institute immigration reforms through effective
border controls and controls on issuance of identity papers and travel documents, and through

242
Matthew Happold, Security UNSC Resolution 1373 and the Constitution of the United Nations, 16 LJIL,
(2003)
243
Id., at 488
244
SC Resolution 1373 of 2001, Article 1
245
Id., Article 2
246
Id., Article 3
247
Id., Article 2(e)
248
Id., Article 2(f)

76
measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel
documents.249 Scheppele contends that taken together these measures delve deeply into the
domestic laws of states, into the area of criminal justice and procedure which often tend to
have constitutional implications.250 Furthermore, nothing in Resolution 1373 qualifies these
responsibilities with human rights protections.251

5.3.1. Creation of the CTC under Resolution 1373

Non-binding language has been employed in the remaining part of the Resolution,
with one important exception. The UNSC reverts back to using terms such as calls upon
States in order to urge Member States to undertake co-operative measures in the prevention
and suppression of actions of the NSA in the form of exchange of relevant information252,
ratification of any pending international conventions on counterterrorism matters253, and
carefully evaluate applications for refugee status254. The UNSC returns to its employment of
the term decides in Article 6 of the Resolution and makes a decision to create a Counter-
Terrorism Committee (CTC) in order to supervise the execution of Resolution 1373.

The CTC created under Resolution 1373, has become the core of the UNSCs broad
based counter terrorism strategy. All fifteen UNSC members are members of the CTC. The
committee operates with three sub-committees that are each responsible for monitoring the
reports of a specific group of Member States. In an effort to clarify and categorize Member
State reporting requirements, the CTC established three phases of work and reporting. In the
first phase, States should ensure that they have the appropriate legislation in place for
implementing resolution 1373, be working on ascending to all of the conventions, and have
effective executive machinery to prevent and suppress terrorist financing. 255 In the second
phase, States should have in place effective executive machinery for all aspects of Resolution
1373, but particularly those relating to police and intelligence structures, customs,
immigration and border controls, and measures to prevent access to weapons.256 In the third

249
Id., Article 2(g)
250
Scheppele, Supra Note 239 at 353
251
Id.
252
SC Resolution 1373, Article 3(a), 3(b)
253
Id., Article 3(d), 3 (e)
254
Id., Article 3(f), 3(g)
255
David Cortright et. al., An Action Agenda For Enhancing the United Nations Program on Counter-
Terrorism, available at <https://kroc.nd.edu/assets/227138/an_action_agenda.pdf> Last accessed on 20 July,
2017
256
Id.

77
phase, the CTC will consider the co-operative and other requirements of Resolution 1373.257
The initial phase of the Committees work, however, revealed that the three stages of the
work were inextricably inter-related, making monitoring of separate stages difficult or at least
artificial.258

5.4.Position of the UNSC against NSA after Resolution 1373

In the aftermath of the adoption of the remarkable Resolution 1373, the US and its
allies launched its armed offensive against Afghanistan on October 7, 2001 and termed it as
the Global War on Terror. Less than one month later, the UNSC passed Resolution 1377
reaffirming the aims of Resolution 1373. Among other things, the resolution called upon the
CTC to assist Member States with its implementation including the preparation of model
laws.259

A paradigm shift in the outlook of the UNSC towards the issue of transnational armed
activities by NSA was witnessed. Its legislative capacity proved durable as its pursuit of
international counterterrorism standardization widened. Resolution 1390 (2002) gave
observers all the more reason to believe in this new direction. The first clear indication was
the prevalent use of the binding decides terminology in the Resolution.260 Moreover, the
targeted group did not spare any individual, organization, group or associated entity and a list
of suspects to be monitored was created. This list highlighted the gradual but steady
extension of the ambit of UNSC sanctions to include NSA within it. States were not only
directed to freeze the assets of those persons or groups placed on the Sanctions Committee
list (created under Resolution 1267), but also expected to prevent the transfer of any form of
weaponry, and bar entry into or travel through their territory unless otherwise allowed on a
case-by-case basis by the Sanctions Committee.261

5.4.1. The UNSC Resolution 1540

With the passage of time, Resolution 1373 served as precedent for the adoption of
another Resolution by the UNSC which created international obligations for Member States,

257
Id.
258
Id.
259
Kim Scheppele, The Global Patriot Act, The American Prospect 22, no. 7 (29 August, 2011), available at
<http://prospect.org/article/global-patriot-act> Last accessed on 21 July, 2017
260
S/RES/1390 (2002), Paras 1-3
261
Id., Para 2

78
namely Resolution 1540. In April 2004, the UNSC sought to tackle another broad issue
which combined with the emergence of the NSA posed a grave threat to international peace
and security: weapons of mass destruction (WMDs). The UNSC utilized its authority under
Chapter VII of the UN Charter and provided no specific time and space for its action, rather it
mandated a change in the municipal legislation within every Member State. 262 Nonetheless,
Resolution 1540 is distinct from Resolution 1373 in the sense that it defined terms which are
applicable only to the particular Resolution itself.263 In particular, the suggested definition of
Non-State actor is at least an attempt towards forming a categorization of persons and
entities that has not envisaged by previous Resolutions of the UNSC. The words used in the
Resolution are as follows:

Non-State actor: Individual or entity, not acting under the lawful authority of
any State in conducting activities which come within the scope of this
resolution.
The ambiguous nature of the term is particularly challenging given the fact that Resolution
1540 is focussed specifically on these NSA. Two factors have further compounded the
problems. First, a number of Member States remained non-signatories on international
treaties addressing the proliferation of WMDs.264 Second, since such regimes involved States
themselves, there existed no substantive restriction on private parties, including business
entities as well as other NSA.265

In the operative sections, Resolution 1540 has turned to the binding language in the
same manner as Resolution 1373 and created binding international obligations on all UN
Member States. The first paragraph required States to refrain from providing any form of
support to NSA that attempt to develop, acquire, manufacture, possess, transport, transfer or
use nuclear, chemical or biological weapons and their means of delivery.266 Then, the UNSC
delved deep into national lawmaking. States had to ensure adequate physical and legal
methods to prevent trans-shipment of WMDs, including the establishment of civil and
criminal penalties for violations of these export laws. Lastly, the UNSC formed a new

262
S/RES/1540 (2004), Para 3
263
Definitions for the purpose of Resolution 1540 only include Means of delivery, Non-state actor and Related
materials.
264
Boulden, Supra Note 227, at 617
265
Id.
266
Resolution 1540, Para 1

79
committee to monitor implementation, with country reporting to be achieved within six
months.267

The structure of Resolution 1540 mirrors that of Resolution 1373 in that the UNSC
requires states to take various measures at the national level and establishes a committee to
which states must report on their existing measures and progress in implementing further
measures as required by the Resolution. By April 2006, the committee had eight experts on
its team, and had received 129 reports from member states. It has also established a process
for facilitating assistance through a clearing-house function to those states that request it.268

5.4.2. The 1566 Working Group

As part of its reaction to the Beslan attacks, the UNSC established a working group
with a mandate to consider practical measures to be imposed on individuals, groups or
entities involved in terrorist activities other than those already listed with the Al-Qaeda or
Taliban committee, including more effective ways to bring them to justice. The working
group was also tasked with considering the possibility of an international fund to provide
compensation to victims of terrorism.269 The working group consulted with member states as
well as outside experts in its deliberations. In its 2005 Report it called for continued and
stronger efforts on freezing financial assets, preventing the movement of terrorists, curbing
the supply of arms, ending public provocation to terrorism and bringing terrorists to
justice.270 Such efforts require action by Member States and the working group noted the
need to consider the differing capacity of Member States in this regard and also
organisations. All of these recommendations work to reaffirm the approach already being
taken by the UNSC.

In summation, the position of the UNSC has changed over the years. Where once it
was condemning actions against NSA as being disproportionate, it now recognizes the
immense threat posed by NSA. Resolution 1373 is a radical departure from the usual nature
of SC Resolutions in the sense that rather than requesting or imploring member states on a
subject it is deciding for all the Member States. The binding nature of the SC Resolutions
267
Resolution 1540: Universalizing Export Control Standards?, Arms Control Today, Arms Control
Association 36, no. 4 (2006), available at <https://www.armscontrol.org/act/2006_05/1540> Last accessed on 24
July, 2017
268
UN Doc. S/2006/257 of 25 April 2006
269
SC Res 1566 of 8 Oct. 2004
270
UN Doc. S/2005/789 of 16 Dec. 2005, available at
<http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2005/789> Last accessed on 23 July, 2017

80
renders this mandate as a form of legislative action undertaken by the UNSC. The Resolution
has placed an international obligation on the Member States to suppress terrorist financing,
ensure non-support of terrorist activity and denial of safe haven to terrorists among other
obligations. The failure to uphold these international obligations by the State shall lead to an
attribution of State Responsibility for the actions of NSA based within the State concerned.
Consequently, this may raise a valid claim of exercising the right of self-defence against such
a State which has been known to support the transnational armed activities by NSA, whether
actively or passively.

5.5.Possible Role to be essayed by the UNSC to tackle the threat from NSA

Thus, the UNSC has taken up a more active role in the recent past, particularly after
the September 11, 2001 incident on the USA, as compared to its response to these issues in
the initial decades of its existence. The adoption of Resolution 1373 is a landmark
achievement in the sense that it highlights the robust approach assumed by the UNSC in
response to the increase in the number of incidents involving these NSA and secondly, the
massive threat posed by these elements owing to the advances in modern technology and
enhanced capabilities of the NSA. The UNSC which has been known as a body primarily
responsible for ensuring the maintenance of international peace and security has always had
the power of instituting binding Resolutions as per the provisions of Article 25 of the UN
Charter but the same Resolutions were of a persuasive nature as they urged or requested
States to undertake certain measures. Resolution was a radical departure from the norm in the
sense that the UNSC employed a more forceful language in the Resolution as it used the term
decides for all States which effectively meant that Resolution 1373 was a form of legislative
action on the part of the UNSC and that it had now created an international obligation for the
Member States to follow, the violation of which would give rise to an internationally
wrongful act and consequent State responsibility. A further addition was made in the form of
Resolution 1540 which was regarding the prohibition on WMDs and again, the UNSC used
the terminology decides for all States thereby engaging in another piece of legislative
action. The crucial aspect in the entire narrative is the tough stance taken by the UNSC in
response to transnational armed activities of the NSA especially in the aftermath of 9/11
incident. The UNSC has acknowledged the immense threat posed by the activities of these
NSA and has committed itself to the task of repelling the danger issued by these actors in
order to ensure international peace and security prevails.

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 Nonetheless, the UNSC has to undertake much more responsibility, particularly in
response to the discussions made in the previous sections. Firstly, the UNSC has a pivotal
role to play in the entire regulation of the use of force, whether legal or illegal, as per the
provisions of Chapter VII of the UN Charter titled Action with respect to Threats to the
Peace, Breaches of the Peace, and Acts of Aggression. Article 39 of the Charter states that:

The UNSC shall determine the existence of any threat to the peace, breach of
the peace, or act of aggression and shall make recommendations, or decide what
measures shall be taken in accordance with Articles 41 and 42, to maintain or
restore international peace and security.
Thus, this provision of the UNSC allows it to determine the existence of any threat to the
peace, breach of the peace, or act of aggression. On the basis of such determination, the
UNSC is empowered to undertake further actions necessary. According to this provision, the
UNSC has the authority to determine threats to the peace, breach of the peace, or act of
aggression but one crucial term missing from the ambit of the UNSC is that of armed
attack. Armed attack is another term that has been employed in the UN Charter which
envisages a notion of use of force and at the same time, the UNSC is authorized by the
Charter to regulate all aspects of use of force by States in order to ensure international peace
and security. Article 51 permits an exception to the general and absolute prohibition on the
use of force by States in order to exercise the right of individual or collective self-defence.
This right can only be exercised after an armed attack occurs as per Article 51 but as has been
highlighted above such a right can also be exercised in a pre-emptive manner against an
imminent attack considering the exigencies of modern times. The term armed attack,
however, has not been defined anywhere in the Charter and the scene gets more convoluted
with the inclusion of NSA into the picture which was not envisaged by the Charter. The
absence of an exact and coherent definition leaves a scope for subjective interpretation by
States in order to invoke their inherent right of self-defence in an indiscriminate manner.
Needless to say that such an outcome is least desirable and a fitting solution to this
conundrum can be achieved by enlarging the power of the UNSC under Article 39 to include
the authority to make determination of the existence of an armed attack whether it be
launched by the regular armed forces of a State or NSA operating within it. Such a
determination by the UNSC would go a long way in validating recourse to the right of self-
defence and would simultaneously discourage States and prevent from invoking the right
arbitrarily by means of a subjective interpretation of the ambiguous term armed attack.

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 Similarly, the UNSC can also play a vital role in the onerous task of determining the
attribution of State responsibility for the actions of NSA residing within it and the necessary
action to be taken thereafter. Earlier, a State was held responsible for the actions of NSA
based within it only in case of the existence of a direct link between the State and the NSA.
However, with the proliferation in the frequency as well as the capability of these NSA, a
change in approach was deemed necessary, particularly in the wake of the 9/11 incident. The
UNSC adopted Resolution 1373 and this was in the form of a legislative action as explained
above. Although, there exist other UNSC Resolutions which urged or required States to
suppress the activities of these NSA, however the most significant aspect of this Resolution
was that it made it an international obligation on the part of the States to prevent the activities
and punish the NSA within their territory, failing which an internationally wrongful act can
be imputed to the State. Thus, State responsibility can now be attributed to States, even in
case of the absence of a direct link between the State and the NSA, on the indirect basis that a
State has not discharged its obligation to suppress the activities of NSA.

The State which is in violation of the aforementioned obligation is termed as a state

harbouring terrorist and an indirect link between the State and the NSA is sufficient grounds
to invoke a use of force in self-defence against the State wherein the NSA are said to be
operating from. Such an extension of the principle of self-defence is a potential threat to the
international peace and security as this allows a freedom to assault any State in the name of
acting against NSA believed to be operating within its territory. This would lead to a
precarious international order. In order to oversee that such a drastic situation does not arise,
the UNSC should take measures to determine the authenticity of threat emanating from NSA
alleged to be operating from within a States territory. Additionally, the UNSC can request
the State to deal with the situation within its boundary through its domestic law enforcement
mechanism, failing which the State should permit external agencies to apply use of force to
tackle the threat from such NSA. In fact, a possibility of creating an international obligation
on this issue in the same lines as the obligation to prosecute or extradite principle can be
examined and would present a viable solution to the present quandary.

In addition, the UNSC also has a significant role to play in the application of the
doctrine of pre-emptive self-defence as stated in the previous chapter. The implementation of
a unilateral use of force in pre-emptive self-defence as well as the doctrine of preventive self-
defence, both pose significant danger to the international peace and security. A more prudent
approach would be to repose faith in the authority of the UNSC to enforce collective military

83
actions and as regards the necessity of tackling the imminent threat from transnational armed
activities by NSA. A multilateral pre-emptive self-defence mechanism under the aegis of the
UNSC is a better alternative to unilateral invocation of the right of pre-emptive self-defence
based on a subjective assessment of the circumstances.

In the modern times, the threat to international order is posed not by the regular armed
forces of a State but by NSA conducting transnational armed activities. A state of armed
conflict may arise between two nations on the basis of the actions of NSA. Further, the
potential to cause damage by the armed activities of these NSA has enhanced massively and
in order to counter this immense threat, States may apply a use of force against a State in a
pre-emptive manner and without any considerations for the proportionality principle as it is
difficult to estimate such principle in case of a pre-emptive action. In the light of such
circumstances, the reaction of the UNSC towards the armed activities conducted by these
NSA has undergone a profound change. In the previous decades where the UNSC used to
condemn States for acting against NSA as interference in the internal affairs of another State,
now the UNSC has shifted its stance to create an international obligation on the States to
suppress these NSA. However, the threat emanating from these NSA is not adequately dealt
with under the present scenario and a lot of effort still has to be expended on this task, most
notably by the UNSC as illustrated in the preceding paragraphs. It is evident that the role and
responsibility of the UNSC has escalated to a different level as far as the governance of the
use of force regime is concerned. In the light of this increased burden on the UNSC, it is not
impractical to suggest that the composition of the UNSC be modified to increase the number
of members for practical purposes.

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 6. CONCLUSION

The provision comprising of the fundamentals of the concept of self-defence under

international law is to be found in the confines of a single Article in the UN Charter, viz.
Article 51. The provision forms one part of the two-fold exceptions to the prohibition on the
use of force as mandated under Article 2(4) of the UN Charter in rather explicit as well as
strict terms, which renders even the mere threat to use force as unlawful. Thus, the UN
Charter through the provisions of Article 2(4), Article 51 and other relevant provisions of
Chapter VII of the Charter has formed a comprehensive regime regulating and restricting the
use of force in international relations between Members, and thereby it has done all it can to
ensure the maintenance of international peace and security, which is the paramount objective
of the existence of the United Nations.

However, it is to be remembered that the framing of Article 51 took place in the

1940s when armed attack on behalf of non-state actors was unheard of and considered
insignificant for the purposes of international attention. However, the growth of the non-state
actors involved in transnational armed conflict in number as well as frequency of attacks
coupled with the destructive capability that is possessed by these non-state actors owing to
the advancement in technology renders them a serious threat to international peace and
security. In this context, the principles of self-defence under Article 51 have to be adjusted
accordingly to tackle the menace posed by such non-state actors. The concluding
observations recorded hereafter have been divided into four parts, each representing the
observations made against the corresponding research question.

Part-I

The right of self-defence can be raised only in case of the occurrence of an armed
attack. Thus, the Charter has laid down a very specific requirement under which the Member
states are permitted to invoke the right of self-defence. This simple reference to an armed
attack has actually turned to be a bone of contention, as the term is nowhere defined
specifically which leaves it open to interpretation. This has allowed Member states to invoke
the right of self-defence by dragging all instances of armed violence within the purview of
armed attack, irrespective of how contrived the arguments might be. As a result, nations in
the post-Charter era attempt to camouflage their aggressive actions under the guise of the

85
right of self-defence and have abused the provisions of Article 51 to flagrantly violate the
prohibition on the use of force.

The ambiguity in the concrete understanding of the term armed attack allowed the
situation to become complicated in case of actions involving state actors, but the situation
became exponentially complicated with the addition of non-state actors involved in
transnational armed activities. In the case of state actors, armed attack in the sense of
Article 51 is easier to deduce on account of the visibility and distinct identity of the regular
armed forces of a state. On the other hand, it is difficult to decipher armed attack by non-
state actors as they do not form part of the state machinery officially nor are they easy to
identify on account of their lack of organized behaviour and distinct identity. In fact, for all
intents and purposes, non-state actors resemble civilians more closely than the armed forces
of a state and therefore, it is extremely difficult to classify violent armed actions of such non-
state actors to the category of armed attack.

The use of terminology in the relevant provisions of the Charter is also to be given
due importance. Article 2(4) refers to the threat or use of force while Article 39 refers to
threat to the peace, breach of the peace or act of aggression while Article 51 uses the term
armed attack. The term use of force as well as act of aggression has a broader
connotation than the term armed attack and consequently, the scope of the terms used in
Article 2(4) and Article 51 do not circumscribe one another. The term use of force or act of
aggression could have been used in Article 51 but the deliberate use of the term armed
attack instead of the term use of force clearly demonstrates that the framers of the Charter
consciously wanted to ascribe a higher threshold for the invocation of the right of self-
defence against a State. It has been established by various international law scholars as well
as the ICJ in the Nicaragua case, Oil Platforms case and the Armed Activities case that the
term armed attack relates to the most grave forms of the use of force which is distinct
from less grave forms. It is only in the instance of the former occurrence that a valid right of
self-defence arises but it is not so in the latter case and that is how the terms use of force
and armed attack are distinguished. It is to be stressed here that there exists a de minimis
threshold or a minimum threshold which has to be attained before a compelling right of self-
defence arises, and only acts which transgress the borders of such de minimis threshold
qualify into the category of being considered as armed attack. Thus, the right to exercise
self-defence under international law does not arise on the mere violation of the prohibition of
the use of force but it can only be invoked in such circumstances where violation of the

86
prohibition of use of force is of such scale, gravity and having such profound effects that it
cannot be considered as a minor violation of Article 2(4). This is the standard for armed
attack or in other words, the minimum threshold which needs to be attained before an
instance of use of force can qualify as an incident of armed attack and consequently give
rise to the right of self-defence under Article 51.

Taking the aforementioned factors into account, the matter of initiating or launching
an attack against non-state actors in the due exercise of the right of self-defence under Article
51 has to be examined in a circumspect manner. As stated above, the transnational armed
activities of non-state actors possess significant threat in the contemporary world owing to
the advancement of technology, access to funds and information owing to the current phase
of globalization. In a nutshell, the non-state actors today possess sufficient lethal threat to be
equated with the regular armed forces of a nation. On this evidence, it can be stated that the
right to exercise self-defence extends not only to the armed actions of the regular armed
forces of a nation but also to the transnational armed activities of non-state actors, provided
that these activities pass the threshold requirement of armed attack.

The majority of the transnational armed activities of non-state actors are not of such a
scale as to draw an armed attack by the victim state. The victim state also has to consider the
issues of the political sovereignty of the host State over its own territory and people residing
within it. The instances of transnational armed activities of non-state actors which belong to
large scale and effects category are easier to attract the self-defence provision but the
situation is less straightforward in case of attacks belonging to a smaller scale and effects
category. In the former case, the right of self-defence can be invoked in a similar fashion as is
ordinarily used in regards to a response to armed attack by state actors. However, in the latter
case, the principles of self-defence have been adduced in order to prevent and deter future
transnational activities of the non-state actors involved.

In this regard, the validity of a claim of self-defence against non-state actors can be
tested by the relevance of the need to prevent and deter the concerned non-state actors. This
relevancy of claims can be affirmed by investigating into the intention of the non-state actors
involved in transnational armed activities. The hostile intent of the non-state actors is a
determinative factor in deciding whether the perpetrators need to be dealt with under the law
enforcement regime of the host nation or tackled by the right of self-defence exercised by the
victim state. However, the determination of hostile intent of the non-state actors involved is

87
not an effortless task particularly when there is no indication or information coming forth as
to the identity of the perpetrators or even if the identity is discovered and the intent behind
the attack is not revealed. Due care and proper investigation leading to sufficient evidence
which can attribute the hostile intent or animus aggressionis to the non-state actors is pivotal
before raising any claims for the exercise of self-defence by the victim state.

Nevertheless, one factor which is a strong indicator of the animus aggressionis of the
non-state actors involved in transnational armed activities is the concept of accumulation of
events. According to this notion, several transnational armed activities conducted by non-
state actors, even if their scale and effects is comparatively insignificant, may lead to a
response from the victim state in the due course of the exercise of the right of self-defence.
This concept states that if an armed attack is associated to the same non-state actors who have
previously masterminded similar attacks on the victim state, then the latter has justified
grounds to take armed action under the right of self-defence, not only because of the
immediate incident but also in consideration of the previous incidents as well. Another
important aspect of this concept is that it is an exception to the de minimis threshold for an
armed attack in the sense that even less grave uses of force- which according to the ICJ do
not constitute an armed attack within the meaning of Article 51 of the UN Charter- may
raise a valid right of the victim state to respond in self-defence, if the less grave use of force
concerned is part of a series of similarly connected events by the same non-state actors. The
principles of proportionality also do not apply to the accumulation of events sensu stricto. It
means that an aggravated form of armed response can be initiated by the victim state as
compared to the scale and effects of the latest armed activity perpetrated by the non-state
actors since the armed response is carried out as a consequence of the consistent needle prick
attacks by the non-state actors and a large scale response which is out of proportion to the
small scale attack is validated in order to prevent and deter the non-state actors from
instituting a future attack. However, it is also extremely probable that the lack of a strict
application of the proportionality principle can be exploited by States in order to perpetrate
attacks of a disproportionate character. Thus, both the concepts of animus aggressionis and
the accumulation of events highlight those instances when relatively small-scale attacks are
liable to be classified as armed attack.

A further instance of a possible form of threat posed by non-state actors can be in the
form of territorial incursions through land, air or sea. Territorial incursions by non-state
actors are menacing if they are of an illegal nature, with a hostile intent and an ability to

88
cause effects of intense gravity. The territorial incursion doctrine is more applicable to the
regular armed forces of a State and appropriate regulations have been framed in international
conventions such as the UNCLOS and the ICAO. In the context of non-state actors, the
territorial incursions present a significant threat owing to the enhanced capabilities of the
non-state actors. Weapons with massive destructive capacity are now being easily packaged
into smaller portable parts, which can be assembled and disassembled as per convenience. In
such circumstances, the potential threat possessed by these non-state actors, if converted into
a lethal attack, is apt to constitute an armed attack in the sense of Article 51 of the UN
Charter. The large-scale destruction and the loss of life and property caused by the incursion
via air by non-state actors into the US territory on September 11, 2001 is a prime example of
the relevance of this proposition.

It is not imperative that non-state actors have to indulge in large-scale attacks in order
to meet the threshold requirements of an armed attack. In the modern age, even non-state
actors possess as much threat, if not more, as the regular armed forces of a State. In the light
of such circumstances, it is only prudent that the traditional boundaries of the right of self-
defence be stretched in order to accommodate this new emerging threat to international peace
and security. In this regard, the qualities necessitated for an armed activity to be termed as an
armed attack is subject to a different standard of scrutiny as specified above.

Part-II

Non-state actors indulging in transnational armed activities are not stateless persons.
They may not act under the official capacity of the government of a State nor be affiliated to
the functioning of any State department, but they need to have a base of operation- a safe
haven from which they can carry out the initial stages of their planning and preparations. The
recruitment, training and supply of arms and ammunitions to these non-state actors must be
based out of some territory. In this context, non-state actors are not stateless entities and the
State where the aforementioned activities occur is termed as the host state. The State against
who the transnational armed activities are perpetrated or the victim state may have a valid
claim to exercise its right of self-defence against such non-state actors if the armed activities
are of such a nature as to be classified as an armed attack. There may be objections on
behalf of the host state citing arguments in favour of territorial integrity and political
independence amongst others. Indeed, such arguments are not without substance; however
over the years with the proliferation in the transnational armed activities of such non-state

89
actors as well as the meteoric rise in the magnitude of destructive capacity possessed by non-
state actors the claims of the victim state for exercising self-defence gains prominence over
the claims of the host state.

Once the transnational armed activities of non-state actors has achieved the status of
an armed attack, it is crucial to take into consideration the link between the host state and
the non-state actors before commencing any armed response against such State. The link
between the host state and the non-state actors can be bifurcated into two categories and on
the basis of the same, the state can either be directly responsible or indirectly responsible.
Before embarking on an elaboration of these two categories, it is important to note here that
given the present international law scenario and the serious threat posed by non-state actors
as reiterated before the issue of state responsibility, the host state in the contemporary
international law regime- especially since the passing of the Security Council Resolution
1373- is no longer able to avoid responsibility for the transnational armed activities of the
non-state actors. The only options available are whether the State is directly responsible or
indirectly. In the pre-Resolution 1373 era, state responsibility for the transnational armed
activities of the non-state actors could be attributed only in the case of a direct link existing
between the State and the non-state actors but since Resolution 1373 made it an international
obligation to deny safe haven to such non-state actors and prevent the non-state actors from
using their territory for their operations, the state responsibility for the transnational armed
activities of non-state actors has undergone a sea change. Previously, the attribution of state
responsibility for the actions of the non-state actors was determined by tests laid down by the
Courts such as the effective control test laid down by the ICJ in the Nicaragua case and the
overall control test laid down by the ICTY in the Tadic case. However, the inception of the
SC Resolution 1373 has made both the tests obsolete as the principles of state responsibility
are now extended further than ever before. The current scenario is that a state is directly
responsible for the actions of non-state actors based within its territory in the following three
conditions: the state directs or exercises control over the non-state actors thereby rendering
them as its de facto organs; the state acknowledges and adopts the conduct of non-state actors
as its own in categorical and explicit terms; the non-state actors exercise governmental
authority in the absence or in the place of official authorities of the state. On the other hand
and more crucially, a State is also responsible for the transnational armed activities of non-
state actors if such activities are carried out within that state in violation of the obligation to
deny safe haven.

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 Part-III

Pre-emptive self-defence has often been intermixed with anticipatory self-defence

which was formulated in the aftermath of the Caroline incident. The notion of pre-emptive
self defence is a slightly more streamlined version of the former doctrine, tailor made to suit
the exigencies of the modern requirements. The scholars of international law have proffered
varied arguments both in support of and against the doctrine of pre-emptive self-defence. The
researcher is against the notion that the inherent right of self-defence indicates a reference
to the inclusion of the notion of anticipatory self-defence as propounded by the Webster
formula taken up in the conclusion of the Caroline incident. The term inherent was
interpreted expansively by counter-restrictionist or expansionist scholars in order to
incorporate the right of anticipatory self-defence within the Charter regime. However, such
an interpretation was not the intention of the drafters as no mention of this is made in the
travaux preparatoires of the Charter. Moreover, it is not the case that the drafters were not
aware of the notion of anticipatory self-defence nor is it the case that they included it through
the use of the term inherent, rather it is obvious that they excluded this notion by using the
words if an armed attack occurs which means that the right of self-defence arises only after
the occurrence of an armed attack and not before it. An interpretation of the word inherent
to include the concept of anticipatory self-defence into the ambit of Article 51 would be in
direct contradiction of the plain meaning of the entire provision and have an absurd
connotation. Hence, it can be concluded that the notion of anticipatory self-defence does not
form a part of the treaty regime under the UN Charter.

As for the customary international law value of anticipatory self-defence, the Caroline
test- which was the foundation of the notion of pre-emptive self-defence has become obsolete
in the Charter era because firstly, the incident referred to an era where war was the norm and
there was no need for exercising the right of self-defence when armed reprisals seemed to be
the order of the day. The facts of the case also do not support the stance that there was an
instance of anticipatory self-defence involved in the Caroline incident although the
statements developed by the US Secretary of State Mr. Daniel Webster is pertinent in the
sense that it espouses a conceptual idea of the doctrine. However, it would be extremely
impressionable to accept the said formula as a concept of anticipatory self-defence in an age
where the entire legal regime concerning self-defence was non-existent. Secondly, even if
such a notion of anticipatory self-defence did prevail in the years after the prohibition of war
was accepted following the Kellogg-Briand Pact but just before the adoption of the Charter,

91
such concepts have been soundly rejected by the provisions of the UN Charter. This
proposition is based on the grounds of the lex posterior delegate legi priori principle which
essentially states that given the equal normative value of both treaty law and customary law,
the later law shall abrogate an earlier law. Thus, the provisions of the Charter end the entire
debate on the topic of anticipatory self-defence since it does not find any mention in the
Charter despite the fact that it was known to the drafters of the Charter.

However, the more recently conceived notion of pre-emptive self-defence has greater
relevance, especially with the advent of modern technology and globalisation allowing non
state actors greater ease of access to funds, technology and ammunition amongst other things.
The higher level of threat possessed by these non state actors has to be reiterated here as the
proposition that if these elements are allowed the opportunity to strike first may leave the
victim state with no opportunity of striking back is not only a distinct possibility but also
strongly probable. The likelihood of such an event renders pre-emptive self-defence as a
viable and rational option irrespective of the academic debate surrounding the issue. A more
radical approach emerged in the wake of the September 11, 2001 incident on the US soil in
the form of preventive self-defence which was propounded by the US NSS. This form of self-
defence action acknowledges the enhanced capacity of modern weaponry, which is easily
obtainable by the non-state actors and therefore, propounds a modification of the imminence
requirement of the doctrine of pre-emptive self-defence. This doctrine, thus, completely
discards the imminence criterion before mounting an attack in self-defence against
adversaries in order to forestall, prevent or deter non-state actors who are considered as a
threat, even in the absence of any certainty of genuine threat emanating from such non-state
actors. It is implored here that such a doctrine which was formulated and embraced in the
fallout of the 9/11 incident is untenable and poses a direct and significant threat to
international peace and security.

Although pre-emptive self-defence is apparently the need of the hour and it is

submitted here that it cannot be discarded on any theoretical basis, yet the danger of
subjective application of the doctrine for self-serving purposes is very realistic. It is in this
regard that the Security Council has to step in and play a pivotal role. A more prudent
approach would be to repose faith in the authority of the Security Council to enforce
collective military actions and as regards the necessity of tackling the imminent threat from
transnational armed activities by non-state actors. A multilateral pre-emptive self-defence
mechanism under the aegis of the Security Council is a better alternative to unilateral

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invocation of the right of pre-emptive self-defence based on a subjective assessment of the
circumstances.

Part-IV

The advent of modern technology coupled with the phenomena of globalization has made it
possible for non-state actors to possess significant threat to peace and security to the extent
that they may be more or less equated with the strength possessed by the armed forces of a
State. In this context, the Security Council plays a very crucial role as it is the organ of the
UN which has been primarily tasked with the responsibility of ensuring international peace
and security.

The position of the Security Council on the issue of tackling transnational armed activities of
non-state actors has undergone a significant transformation. In the initial instances of victim
states exercising their right of self-defence against transnational armed activities of the non-
state actors, the Security Council did not endorse the actions of the victim states, as evinced
in the case of Israels exercise of the right against Lebanon in 1968 and Tunisia in 1985 and
the US exercise of self-defence against Libya in 1986. However, the severity of the
condemnation that was issued in these cases mellowed down in the subsequent instances
when the US exercised its right of self-defence in Iraq in 1993, and Afghanistan as well as
Sudan in 1998. Since then, the frequency as well as the devastative capabilities of the
transnational armed activities of the non-state actors has increased exponentially. This has
compelled the UN Security Council to change its stance in subsequent years and this finally
culminated in the SC Resolution 1373 of 2001, which was a radical departure from the norm
by the Security Council.

The Security Council had passed Resolutions dealing with this notion of transnational armed
activities earlier as well in the form of Resolution 748 of 1992, Resolution 1189 of 1998 and
Resolution 1269 of 1999. Further, specific sanctions were issued against the Taliban
government and the non-state actors operating out of Afghanistan in the form of Resolution
1267 of 1999, Resolution 1333 of 2000, Resolution 1363 of 2000 and Resolution 1368 of
2001. The common thread binding all these relevant SC Resolutions- as is the case with SC
Resolutions generally- is the fact that these Resolutions were of a persuasive nature as the
terminology used by the SC in these Resolutions contains terms such as urged or calls
upon. The radical departure that occurred with the passing of the Resolution 1373 of 2001 is
that the SC for the first used the term decides in the Resolution. Thus, instead of requesting

93
or imploring States to act in a certain manner, the said Resolution was in more of an
obligatory nature, binding upon all the Member States and asserting that all states shall
implement the following measures. The Resolution established minimum standards to be
maintained by member states in order to counter the action of non-state actors involved in
transnational armed activities within their territory.

The Resolution 1373 was in the form of a legislative action undertaken by the Security
Council owing to the two factors associated with it. First, as per Article 25, Member States
are bound to accept and carry out the decisions of the Security Council. Second, the
mandatory or directory nature of the Resolution 1373 as opposed to the imploration sought in
previous SC Resolutions makes it an international obligation for the Member States. The
violation of the international obligation specified therein shall also result in the attribution of
state responsibility for internationally wrongful acts.

6.1.Relevant Findings and Testing of Hypothesis

The relevant findings at the conclusion of this research shall be summed in five parts, the
initial four parts recording the relevant findings made in each chapter from Chapter 2 to
Chapter 5 and the final part shall be assigned to the testing of the hypothesis taken up at the
beginning of the research.

Part-I

The term armed attack is not defined in any clear or unambiguous terms. The term is
subject to interpretation and this has led to exploitation by States, who desire to
launch aggressive actions in the name of self-defence.
The term armed attack is distinct from other terms with similar connotations such as
use of force and act of aggression. This clearly indicates that in order to invoke the
right of self-defence the armed activity has to qualify as an armed attack.
The de minimis threshold required to be met in order to classify an act as armed
attack has not been specified. Although it depends from case to case, yet there are no
clear guidelines on this matter and different States interpret differently according to
their convenience.

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 The actions of non-state actors need not always have a high threshold of scale and
effects. Small-scale attacks may also qualify as an armed attack in cases of concrete
evidence of either the animus aggressionis or the accumulation of events concept.
Territorial incursions by non-state actors may qualify as an armed attack even in the
absence of any armed activity provided that it is illegal incursion, with a hostile intent
and there is a strong probability of a violent event with grave consequences.

Part-II

The massive threat possessed by non-state actors in the modern world necessitates
swift and firm action against them in order to prevent and deter any kind of
transnational armed activity. In this regard, the claims of attributing state
responsibility to the host state and exercising the right of self-defence by the victim
state holds significant weight as opposed to arguments of the host state in favour of
territorial integrity and political sovereignty.
In spite of provisions in the ILC Draft Articles on State Responsibility and several
Resolutions passed by both the UN General Assembly and the Security Council as
well as other relevant evidences in favour of attributing State responsibility to the host
state for the transnational armed activities of the non-state actors, the law regulating
the same is not coherently specified anywhere and there is an element of subjectivity
which varies from case to case.
The host state may be directly or indirectly responsible for the transnational armed
activities of the non-state actors. However the responsibility attributed to the state in
case of an indirect responsibility is to the extent of the exercise of due diligence by the
State concerned. Once due diligence obligations are met, State responsibility cannot
be attributed indirectly to a State.

Part-III

The application of anticipatory self-defence to the transnational armed activities of the

non-state actors may be classified into three distinct categories: interceptive self-
defence, pre-emptive self-defence and the preventive self-defence based on the US
National Security Strategy. The right of instituting an interceptive self-defence is
uncontested and justified on the grounds of intercepting the first strike of an actual
belligerent attack.

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 The Caroline test, which is said to be the foundation for the notion of anticipatory
self-defence, does not hold any relevance in the Charter era. The Caroline incident
took place in age where there was absolute freedom to resort to war and any
justification in favour of an armed retaliation was readily accepted. Moreover, the
provisions of Article 51 UN Charter completely repudiated the principles expounded
by the Caroline test.
The pre-emptive self-defence criteria is an expanded form of the criteria of
anticipatory self-defence which is more acceptable and relevant to the current
predicament, keeping in mind that awaiting for a non-state actor to strike first may
have catastrophic outcomes.
The notions of interceptive self-defence and pre-emptive self-defence may appear
similar but there exists a vital distinction between the two. The former is based on
more concrete evidence and demands a high burden of proof while the latter abandons
such requirements entirely. Secondly, interceptive self-defence in executed in
instances where the timeframe for the first strike against it is extremely narrow
whereas pre-emptive self-defence does not have to function under such critical point
in time. Interceptive self-defence is theoretically preferable to the latter but the
exigencies of the modern world render a more practical approach such as pre-emptive
self-defence indispensable.
The concept of pre-emptive self-defence is, however, not covered under any
guidelines or unequivocal terms nor is there any supervising authority to determine
the validity of the claims of an imminent attack before launching a pre-emptive strike.
Preventive self-defence as propounded by the US National Security Strategy is an
alarmingly overreaching proposition. The approach of preventing a threat from
becoming imminent or initiating an armed attack in self-defence even when no attack
is imminent form the other side is untenable as well as precarious in nature for the
purposes of a peaceful international order.

Part-IV

The position of the Security Council has changed over the years. Where once it was
condemning actions against non-state actors as being disproportionate, it now
recognizes the immense threat posed by non-state actors.
Resolution 1373 is a radical departure from the usual nature of SC Resolutions in the
sense that rather than requesting or imploring member states on a subject it is deciding

96
 for all the Member States. The binding nature of the SC Resolutions renders this
mandate as a form of legislative action undertaken by the Security Council.
The Resolution has placed an international obligation on the Member States to
suppress terrorist financing, ensure non-support of terrorist activity and denial of safe
haven to terrorists among other obligations. The failure to uphold these international
obligations by the State shall lead to an attribution of State Responsibility for the
actions of non-state actors based within the State concerned. Consequently, this may
raise a valid claim of exercising the right of self-defence against such a State which
has been known to support the transnational armed activities by non-state actors,
whether actively or passively.

Part-V (Testing of Hypothesis)

It has been observed in the research conducted in this dissertation and the evidences
adduced that, the threat to international peace and security form NSA is realistic and in fact,
more pronounced than the one emanating from the regular armed forces of a State. As a
matter of fact, there are fewer instances of aggressive action on the part of armed forces of a
state as compared to the instances of transnational armed activities carried out by non-state
actors. In the wake of the 9/11 incident, the international community was awakened to the
magnitude of the danger posed before them and realized the potential of these non-state
actors can no longer be ignored. This potential was further enhanced by the advent of WMDs
and the ability of the non-state actors to procure the same without any difficulty. This resulted
in considering the expansion of the legal regime of self-defence under international law to
include non-state actors within its purview.

The research conducted herein above has already highlighted the problems related to
such an extension of the principles of self-defence, such as ambiguity of the terms armed
attack, applicability of the notion of pre-emptive self-defence under the Charter regime and
subjective assessment of the circumstances by States to their advantage. Furthermore, the
adoption of UNSC Resolution 1373 has created an international obligation to suppress the
actions of these non-state actors which is neither very well regulated nor free from ambiguity.
The introduction of the NSS by the USA in 2002 has further complicated the scenario with an
aggressive concept of preventive self-defence, which is absolutely untenable. Thus, the
emergence of the non-state actors as threats to peace and security necessitating the
application of the doctrine of self-defence to them has created a chaotic scenario for the legal

97
regime of self-defence and it is evident that the current legal regime of self-defence is
inadequate to deal with the problem suitably.

In the light of such confounding scenario prevailing with regard to the exercise self-
defence against non-state actors, it is of utmost importance that this situation be addressed
and a mechanism is formulated to govern this revolutionary change in the legal regime of
self-defence and preserve the situation of international peace and security. The said objective
cannot be achieved by a simple amendment as there are too many fine details which need to
be cogently specified and it is difficult to incorporate all of that into the provision of Article
51 of the UN Charter. Hence, the plausible solution to this conundrum lies in the creation of a
new sui generis legal regime of self-defence which is tailored to include the method of
tackling non-state actors within it. It can thus, be stated that the hypothesis taken up at the
beginning of the research which is that The principles of self-defence enshrined Under
Article 51 of the UN Charter is not adequate to tackle the problem of NSA involved in
transnational armed activities and is liable to be misused by States to their benefit to
launch attack on other States has been tested and is found to be correct.

6.2.Recommendations and Suggestions

On the basis of the averments and relevant findings made in the context of the present
research, the researcher proposes the following recommendations and suggestions:

1. The principles of self-defence as contained under Article 51 need to be expanded

into a separate sui generis system for better regulation.

The principles of the right of self-defence have expanded far beyond the contours of the
provision under Article 51, especially with the addition of non-state actors into the playing
field, which was not part of the consideration when the Charter and the provisions of self-
defence were initially drafted. The relevant as well as crucial aspects of this regime of self-
defence need to be elaborated leaving no space for ambiguity.

2. The term armed attack needs to be defined as far as possible in an exhaustive

manner and the Security Council needs to take responsibility for the
determination of an armed attack.

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The term armed attack has to be defined in as specific terms as possible so as not to leave
any scope for the abuse of the right of self-defence in case of a distorted interpretation of the
term in order to facilitate an armed attack. The Security Council under Article 39 of the UN
Charter already takes responsibility for the determination of existence of any threat to the
peace, breach of the peace, or act of aggression. In a similar, the responsibility of
determining the existence of an armed attack leading to a valid claim of exercising the right
of self-defence can be attached to the Security Council.

3. State Responsibility for the actions of non-state actors involved in transnational

armed activities has to be made more stringent, irrespective of due diligence
arguments.

With the adoption of the UN Security Council Resolution 1373, there exists an international
obligation to prevent and punish the acts of terrorism within the State and a violation of this
obligation will impute state responsibility for the actions of the terrorists. However, the state
responsibility is avoided in case due diligence requirements are met by the State and a State is
genuinely unable to take appropriate actions against these non-state actors. It is submitted that
in the context of the fearsome capabilities possessed by non-state actors in the modern world,
due diligence requirements should be done away with. Instead a new mechanism of
obligation to prevent and punish or allow international armed action should be followed in
the same lines as the principle of obligation to extradite or prosecute (aut dedere aut
judicare). As per this principle, either the host state has to undertake the responsibility to
prevent and punish non-state actors involved in transnational armed activities within its
territory through domestic law enforcement regime or allow the victim state to exercise its
right of self-defence or a collective armed offensive under the aegis of the Security Council.
The Security Council has to play a crucial role in the facilitation of the appropriate response
to tackle the non-state actors keeping in mind the contention of both sides involved.

4. Pre-emptive self-defence can only be initiated on the basis of discharging the

burden of proof as to an armed attack is imminent.

The concept of pre-emptive, although practical and necessary in nature, is rather expansive
and liable to be misused by States to their advantage. In order to prevent indiscriminate
application of this principle to all situations, regardless of whether such a response is
warranted or not, the burden of proof required has to be set in explicit manner otherwise it
would lead to sweeping application of the principle and disastrous results.
99
 5. An ad-hoc committee has to be established to facilitate appropriate response
between the host state and the victim state before going for an armed attack in
self-defence and to regulate the issues regarding self-defence.

The matters to be decided in the case of exercising self-defence, especially in the case of pre-
emptive self-defence require decisions of an immediate nature, which may be difficult to
achieve given the composition, mechanism and functioning of the Council. In this regard, a
better approach would be to set-up an ad hoc Committee comprising of representatives from
the States involved in the issue and other essential members.

6. The composition of the Security Council needs to be altered keeping in context

the exigencies of the modern legal predicament surrounding the principles of use
of force in international law.

The Composition of the Security Council sits at five permanent members with ten temporary
rotating members. Such a composition of the Council was relevant at the time of the
conception of the Council when the total membership of the UN was limited to only fifty
member states but now the number of Member states has multiplied by almost four times.
The needs and interests of the entire world population are not adequately represented at the
Security Council. This is especially relevant as most of the non-state actors that we have
discussed here belong to the third world nation and in order to expand the principles of self-
defence which may potentially be detrimental for them in the future, it is imperative that they
have a say in the proceedings at the Security Council.

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7. BIBLIOGRAPHY

7.1.International Conventions

1. UN CONVENTION ON THE LAW OF SEA, 1982

2. UNITED NATIONS CHARTER, 1945
3. VIENNA CONVENTION ON THE LAW OF TREATIES, 1969

7.2.ILC Materials

1. ILC DRAFT ARTICLES ON RESPONSIBILITY OF STATES FOR

INTERNATIONALLY WRONGFUL ACTS, 2001

7.3.UN Documents and Resolutions

1. Advisory UNSC on International Affairs (AIV), Pre-emptive Action Advisory

report No. 36, July 2004
2. General Assembly Res No 2625 (cited in note 9)
3. General Assembly Res No 40/61, UN Doc No A/RES/40/61 (1985)
4. General Assembly Res No 41/38, UN Doc No A/RES/41/38 (1986)
5. Institut de Droit International, tenth Commission- Present problems of the Use of
Armed Force in International Law, Resolution of 27 October 2007, Santiago
6. Joint Resolution Authorizing the Use of Force against Iraq, Pub. L. No. 107-243, 116
Stat. 1498, 1499 (2002)
7. Report of the Secretary Generals High Level Panel on Threats, Challenges and
Change, A More Secure World: Our Shared Responsibility, 1 December 2004
8. Report of the Secretary-Generals High Level Panel on Threats, Challenges and
Change, A More Secure World: Our Shared responsibility, 2 December 2004, UN
Doc A/59/565
9. SC Res.111 of 19 January 1956 available at
<https://unispal.un.org/DPA/DPR/unispal.nsf/0/58C97A3D38B43299852560C20071
C481> Last accessed on 18 July 2017

101
10. Second Report by Mr. J Spiropoulos on the Draft Code of Offences against the peace
and security of Mankind, 12 April 1951, (1951) YBILC, VOL. II, 67-8 (UN Doc.
A/CN.4/44),. available at
<http://legal.un.org/ilc/publications/yearbooks/english/ilc_1951_v2.pdf> (last
accessed on 21 July, 2017)
11. The opinion of R.J Alfaro in (1951) YBILC, Vol. II, 39 ( UN Doc, A/CN.4/L 8)
available at <http://legal.un.org/ilc/publications/yearbooks/english/ilc_1951_v2.pdf>
last accessed on 21 July, 2017
12. UN Department of Political and Security Affairs, Repertoire of the Practice of the
Security Council 1959-1963 (New York, 1965) 281-2; ( 1960) UNYB 40-1
13. UN Doc. 4726 (Resumption 1), 27 March 2003, 25
14. UN Doc. S/2001/370, 13 April 2001 (Iraq)
15. UN Doc. S/2002/1012,11th September 2002 (Russia)
16. UN Doc. S/2003/148,4 February 2003 (Lebanon)
17. UN Doc. S/2003/350, 20 March 2003 (UK)
18. UN Doc. S/2005/789 of 16 Dec. 2005
19. UN Doc. S/2006/257 of 25 April 2006
20. UN Doc. S/PV 1648, 23 June 1972 (Sudan. Re Israels intervention into Lebanon)
21. UN Doc. S/PV 748 30 October, 1956 (Australia)
22. UN Doc. S/PV.1107 at 2,3 April 1964, (UK), available at
<http://dag.un.org/bitstream/handle/11176/80522/S_PV.1107-
EN.pdf?sequence=17&isAllowed=y> Last accessed on 20 July 2017
23. UN Doc. S/PV.748, 30 October 1956 (US) available at <https://documents-dds-
ny.un.org/doc/UNDOC/GEN/NL5/600/74/PDF/NL560074.pdf?OpenElement> Last
accessed 22 July 2017
24. UN Doc. S/PV.749, 30 October 1956 (Israel), available at
<http://repository.un.org/bitstream/handle/11176/84002/S_PV.749-
EN.pdf?sequence=2&isAllowed=y> Last accessed on 22 July 2017
25. UN Secretary-General Kofi Annan, In Larger Freedom: Towards Development,
Security and Human Rights for All, 21 March 2005, UN Doc A/59/2005
26. UNGA Resolution 2625 (XXV). Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with the
Charter of the United Nations, Para 3, available at <http://www.un-
documents.net/a25r2625.htm> Last accessed on 22 July, 2017

102
27. UNGA Resolution 3314 (XXIX) of 14 December 1974 on Definition of Aggression,
Article 3(a) to (f)
28. UNSC Res 1566 of 8 Oct. 2004
29. UNSC Res No 1373, UN Doc No S/RES/1373 (2000)
30. UNSC Res No 748, UN Doc No S/RES/748 (1992)
31. UNSC Res. 1267 of 15 Oct. 1999
32. UNSC Res. 1269 of 19 Oct. 1999
33. UNSC Res. 1363 of 30 July 2001
34. UNSC Res. 1368 of 12 Sep. 2001
35. UNSC Res.1333 of 19 Dec. 2000
36. UNSC Res.1373 of 28 Sep. 2001

7.4.List of Cases

ICJ
1. Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa),[1971] ICJ Rep 291-326
2. Case concerning the Military and Paramilitary activities in and against Nicaragua
(Nicaragua v. United States of America) [1986] ICJ Rep 14-150
3. Case concerning United States diplomatic and consular staff in Tehran (United States
of America v. Islamic Republic of Iran) [1980] ICJ Rep 3-46
4. Case concerning Oil Platforms (Islamic Republic of Iran v. United States of America)
[2003] ICJ Rep 161-219
5. Case concerning Armed Activities on the territory of Congo (Democratic Republic of
the Congo v. Uganda) [2005] ICJ Rep 116-220
6. Case concerning the land and maritime boundary between Cameroon and Nigeria
(Cameroon v. Nigeria; Equatorial Guinea intervening) [2002] ICJ Rep 303-458
7. Corfu Channel (United Kingdom v. Albania), [1949] ICJ Rep 4-38

ICTY
1. Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Judgment of 15 July 1999

103
7.5.National Documents

USA

1. The National Security Strategy of the United States of America of September 2002,
available at <https://www.state.gov/documents/organization/63562.pdf> Last
accessed on 25 July, 2017

7.6.List of Books

1. BROWNLIE I., PRINCIPLES OF PUBLIC INTERNATIONAL LAW (Oxford University

Press, 7th Edition,2008)
2. CHESTERMAN S. ET.AL., LAW AND PRACTICE OF THE UNITED NATIONS:
DOCUMENTS AND COMMENTARY (Oxford University Press, 1st Edition,2008)
3.
OCONNELL D. P., THE INFLUENCE OF LAW ON SEA POWER 53 (Manchester
University Press, 1975)
4. DINSTEIN Y., WAR, AGGRESSION AND SELF-DEFENCE (Cambridge University Press,
5th Edition, 2011)
5. FRANCK T. M., RECOURSE TO FORCE: STATE ACTION AGAINST THREATS AND
ARMED ATTACKS (Cambridge University Press, 2002)
6. GAZZINI T. & TSAGOURIAS N., THE USE OF FORCE IN INTERNATIONAL LAW
(Ashgate Publishing Limited, 1st Edition, 2012)
7. GRAY C., INTERNATIONAL LAW AND THE USE OF FORCE (Oxford University Press,
2nd Edition,2004)
8. HARRIS D., CASES AND MATERIALS ON INTERNATIONAL LAW (Sweet and Maxwell
Publications, 7th Edition 2010)
9. HIGGINS R., PROBLEMS & PROCESS: INTERNATIONAL LAW AND HOW WE USE IT
(Oxford University Press, 1st Edition, 1999)
10. KELSEN H., THE LAW OF THE UNITED NATIONS: A CRITICAL ANALYSIS OF ITS
FUNDAMENTAL PROBLEMS (Frederick A. Praeger, 1st Edition, 2000)
11. POULANTZAS N.M, THE RIGHT OF HOT PURSUIT IN INTERNATIONAL LAW,
(Martinus Nijhoff, 2nd Edition, 2002)

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12. RUYS T., ARMED ATTACK AND ARTICLE 51 OF THE UN CHARTER: EVOLUTIONS
IN CUSTOMARY INTERNATIONAL LAW AND PRACTICE (Cambridge University Press,
1st Edition, 2010)
13. SAUL B., RESEARCH HANDBOOK ON INTERNATIONAL LAW AND TERRORISM
(Edward Elgar Publishing Limited, 1st Edition, 2014)
14. SCHWEBEL S. M., AGGRESSION, INTERVENTION AND SELF-DEFENCE (Sijthoff, 1st
Edition, 1972)
15. SHAW M. N., INTERNATIONAL LAW (Cambridge University Press, 6th Edition, 2008)
16. TRAPP K.N., STATE RESPONSIBILITY FOR INTERNATIONAL TERRORISM: PROBLEMS
AND PROSPECTS (Oxford University Press, 1st Edition,2011)

7.7.List of Articles in Edited Books

1. Boulden Jane, The Security Council and Terrorism, in THE UNITED NATIONS
SECURITY COUNCIL AND WAR: THE EVOLUTION OF THOUGHT AND PRACTICE
SINCE 1945 (Ed. VAUGHAN LOWE ET. AL., Oxford University Press, 1st Edition,
2008)
2. Randelzhofer Albrecht, Article 51, in, THE CHARTER OF THE UNITED NATIONS: A
COMMENTARY (Ed. BRUNO SIMMA, Oxford University press, 2nd Edition, 2010)
3. Schachter Oscar, The Lawful Use of Force by a State against Terrorists in another
country, in TERRORISM & POLITICAL VIOLENCE: LIMITS & POSSIBILITIES OF LEGAL
CONTROL (Ed. HENRY H. HAN, Oceana 1st Edition, 1993), at 254
4. Scheppele Kim, The migration of anti-constitutional ideas: the post-9/11
globalization of public law and the international state of emergency, in THE
MIGRATION OF CONSTITUTIONAL IDEAS, (Ed. SUJIT CHOUDHRY, Cambridge
University Press, 1st Edition, 2006)

105
7.8.List of Online Journal Articles

1. Ago R., Addendum to the 8th Report on State Responsibility, 32 YBILC, Part One, 65-
6(1980-II)<http://legal.un.org/ilc/documentation/english/a_cn4_318_add5_7.pdf>
(Last accessed 15 July, 2017)
2. Anghie A., The Bush administration pre-emption doctrine and the United Nations, 98
ASIL Proc 326-9(2004)
<http://www.jstor.org/stable/pdf/25659945.pdf?refreqid=excelsior%3Ab2cdb2eb047d
3d80ff2d015302f833d6> (Last accessed 15 July, 2017)
3. Beard J. M., America's New War on Terror the Case for Self-Defence Under
International Lax, 25 Harv. J. L. & Pub. Poly. 559, 581-82 (2002)
<http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1163&context=lawfacpu
b> (Last accessed 15 July, 2017)
4. Blum Y.Z., State response to acts of terrorism, (1976) 19 GYBIL 233 (223-37)
5. Bothe M., Terrorism and the Legality of Pre-emptive Force, 14 EUR. J. INTL. L.,
2003 <http://www.ejil.org/pdfs/14/2/412.pdf> (Last accessed 16 December, 2016)
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