CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ SOME CRITICAL REFLECTIONS ON THE EXTENDED USE OF MILITARY FORCE… internal armed conflict would be questionable and subject to controversy. Otherwise, the staying of foreign forces on the territory of another state and even establishment of military bases there may be approved in conformity with the constitutional principles of the country. The states also have an indisputable right to conclude self- defence treaties or treaties on collective security. 6. Self-defence and Armed Attack by Non-state Actors The Al Qaeda attacks against the World Trade Center and Pentagon on Septem- ber 11, 2001 accelerated not only academic discussions on the use of force by non- state actors but also influenced the counter-terrorist practice of states, starting with President Bush’s doctrine on “war against terrorism“. The “war against terrorism“ became part of the US National Security Strategy and was then accepted by the UK government and other NATO countries as an integral part of the inherent right of individual or collective self-defence, enabling even its pre-emptive character. Art. 51 of the UN Charter provides for a right of self-defence in response to an actual armed attack only. There is, however, a widely recognized opinion that the right of self- defence is also available when an armed attack is imminent. But interpretation of an “imminent“ armed attack may lead often to controversy. It is not easy to decide what exactly constitutes an armed attack. To rely in customary international law on the Caroline incident reflected in the Webster-Ashburton correspondence of 1842 seems to be a little obsolete and easy abusive. The state may often have a tendency to use armed force in anticipation of an “imminent“ armed attack. Besides, various theories of pre-emptive and preventive armed attack and self-defence as well exist. Recognition by the SC that large-scale terrorist actions from abroad may constitute an armed attack and the position that the force may be used in self- defence against those harbouring terrorists started a new and broader approach to the concept of self-defence. Various statements appeared that self-defence is not a static concept. Stressing new security threats and existing dangerous situations, doctrines of anticipatory and pre-emptive self-defence not only against an imminent armed attack by states but against an already existing armed attack by non-state actors appeared. In this way a rigid approach to the law on self-defence embodied in the UN Charter was abandoned by the practice of the USA and NATO countries with some doctrinal support. Following the 9/11 attacks in the United States it seems to be widely accepted that states have a right of self-defence against armed attacks by non-state actors. This approach was reflected in the UN SC resolutions 1368 and 1373 of 2001. Nevertheless, there is still controversy about what the notion of an “imminent“ attack means generally and by non-state actors as legal entities in international law particularly. Any use of force by non-state actors may address the availability of ius ad bellum and ius in bello norms. The resolutions which were approved by


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