CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE USE OF FORCE AGAINST THE ISLAMIC STATE ȍ JUS AD BELLUM ASPECTSȎ of pre-emptive self-defence. This concept, especially when applied to terrorist groups, is however highly controversial. 115 5.3 Self-Defence against the Acts of Non-State Actors – Actors? Apart from the nature of the “armed attack”, its initiators also merit attention. Article 51 of the UN Charter does not specify who the armed attack triggering the right to self-defence should originate from. For a long period, the predominant opinion was that it should originate from a State. The ICJ confirmed this view in the Israeli Wall Case, where it referred to “the existence of an inherent right of self-defence in the case of armed attack by one State against another State”. 116 Under this approach, acts of non-state actors can only trigger the right to self-defence on the condition they are attributed to a State. This seems to be confirmed by Resolution 3314 (1974) on the Definition of Aggression which includes “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein” (par. 3g), among acts amounting to an act of aggression of a State. This provision is often quoted when terrorist attacks are concerned. 117 It, however, applies solely when a terrorist group has a direct support of a State. This is clearly not the case in the relationship between the IS and Syria. Yet, some scholars suggest that the regulation may be gradually changing. Speaking about “the militarization of the fight against terrorism”, 118 they argue that international law can accommodate self-defence against non-state actors, primarily terrorist groups. 119 It can do so either by expanding the criteria under which acts of non-state actors are attributed to States or by sanctioning armed retaliatory measures against non-state actors as such. The two approaches, though conceptually different, largely meet in identifying the situations in which terrorist attacks amounting to an armed attack would trigger the right to self-defence. Three such situations are suggested: terrorists operating in an ungoverned space, a State harbouring a terrorist group, and a State unwilling or unable to suppress terrorist groups in its territory. The three situations partly overlap but they are not completely identical. 5.3.1 Terrorists Operating in an Ungoverned Space The first situation is that of a State lacking control over a part or a whole of its territory which turns into an ungoverned space. This space can be used by terrorist or criminal non- state actors taking advantage of the messy environment. The concept is often linked to the so called failed states, described as entities, “which, though retaining legal capacity, has for all practical purposes lost the ability to exercise it”. 120 Yet, it has been invoked with respect to non- 115 See FRANCK, Thomas M., Recourse to Force. State Action Against Threats and Armed Attacks, Cambridge University Press, 2002, pp. 97-108; or SCHMITT, Michael N., Preemptive Strategies in International Law, Michigan Journal of International Law, Vol. 24, 2003-2004, pp. 513-548. 116 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2014, par. 139. 117 See, for instance, BECKER, Tal, Terrorism and the State: Rethinking the Rules of State Responsibility, Hart, Oxford and Portland, 2006, p. 177; and VÄRK, René, Terrorism, State Responsibility and the Use of Armed Force, ENDC Proceedings, Vol. 14, 2011, p. 95. 118 TAMS, Christian J., op. cit. , p. 392. 119 Ibidem. See also O’CONNELL, Mary Ellen, Lawful Self-Defense to Terrorism, University of Pittsburgh Law Review, Vol. 63, 2002, pp. 889-908; ARIMATSU, Louise, SCHMITT, Michael M., op. cit. 120 THÜRER, Daniel, The “failed State” and international law, International Review of the Red Cross, No. 836, 1999, p. 732.

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