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Juliana Santos de Carvalho

Universidade Federal do Rio Grande do Norte, Brazil.

juliana.scrv@gmail.com

2 April 2016

War is Peace? The use of self-defense against armed non-state actors and its impacts on

contemporary international law

1. INTRODUCTION

It is no doubt that the novelties of globalized society have highlighted shortcomings in

international law. From the many effects this phenomenon has entailed, the rapid-pace of

integration and the emerging role of non-state actors in the fields of global relations have had

a particularly relevant impact on the area, gradually shifting the worldview from a State-

centered approach to a pluralized perspective on the possible subjects of regulatory

frameworks. Within this context, globalization has also affected the field of international

security, setting new trends that demand adequate responses by lawmakers and law enforcers.

One of these new trends that gained worldwide attention is the increasing engagement

of violent non-state actors (NSAs) in terrorist attacks and the countermeasures to these

activities carried out by the States. Although increasingly relevant to the international

scenario today, they disrupt the traditional concept of armed conflicts by shattering the idea

that the only possible warring actors are sovereign States with defined territories. This has

peculiar consequences to key-concepts of the Law on War, especially on the right of self-

defense against armed attacks under Article 51 of the United Nations Charter.

As the exercise of such prerogative demands a territory to take place, and given that

terrorist groups do not have a territory per se, counter-terrorist activities are necessarily

carried out within an area pertaining to one or more States in which these groups operate

(“host States”, or “harboring countries”), a situation that gives rise to a conflict between two
main principles of International Law: If on one hand we have the right of States attacked by

non-state actors (“victim States”) to secure their territories against unlawful armed attacks, on

the other we have the sovereignty of host States that may be violated by an intervention from

the victim-State to combat the non-state actor based within their borders.

Results indicated that victim States have generally defended a broad concept of

attributability to host States, justifying their responses whenever harboring countries are

allegedly ‘unable’ or ‘unwilling’ to deter terrorist activities in their territories. However, the

terms by which the ineffectiveness of a host State can trigger the response of a victim State

are still unclear – a gray area which potentially contributes to illegal and disproportionate use

of self-defensive forces. In view of that, by emphasizing the importance of an authorization

from the host State for the self-defense activity to occur in its territory – or at least of a

proved link between said country and the attack that triggered it – stricter theories on host

States attributability, such as the one defended by the International Court of Justice, may

address more adequately the right of self-defense of victim States without undermining the

territorial integrity of the country the terrorist group is operating from.

With this in mind, the present study will attempt to address to what extent

international law entitles States attacked by non-state actors (“victim States”) to act in self-

defense against armed groups abroad, and whether general State practice has complied with

such provisions. Using a review of the existing literature on the subject, as well as

international court opinions, a comparative study will also be made between the theories

professed by legal scholars and practitioners regarding to this issue, so as to assess their

general applicability and analyze whether they fall short in providing an appropriate

settlement to the questions at hand.

Finally, we will try to sketch out conflict-resolution insights adapted to the

contemporary world, with the additional objective of providing a critique to doctrines that
may give room for interventionist approaches to the use of defensive forces. As a result, we

found that the establishment of a well-articulated check mechanism to deter abuses from

victim States in conjunction of the elaboration of legal binding documents governing the

exercise of self-defense in such cases presented themselves as a possible answers to reduce

possible abuses regarding counter-attacks.

2. A BRAVE NEW WORLD: THE TRANSNATIONALIZATION OF SOCIETY AND ITS IMPACTS ON


INTERNATIONAL SECURITY

On September 11th 2001, the attack on the twin towers of the World Trade Center

made the world turn their attention to New York with grief and horror. Considered by many

as the event that marked the new millennium, the attacks, later assumed by the jihadist group

Al Qaeda, were the trigger for the US self-defense campaign in Afghanistan, country where

the group was operating from.1 The mission was later expanded also to Pakistan, where, after

numerous US-led airstrikes, Osama Bin Laden, the founder of Al Qaeda, was killed.2

Also invoking their right to self-defense, Kenya launched a mission in Somalia to

retaliate against members of the group Al-Shabaab in 2011;3 Israel carried out incursions into

Lebanon to counter-attack militants from Hezbollah in 2012;4 Turkey promotes missions in

Iraq to fight the PKK to this date;5 the United States, on the request of Iraq, have led since

2014 an international military campaign to pre-emptively combat the Islamic State

1
Wintour, Patrick. 2011. "It’s Time for War, Bush and Blair Tell Taliban." The Guardian, October 7.
2011. Web. 26 Oct. 2015.
2
Bowcott, Owen. 2013. “US drone strikes in Pakistan 'carried out without government's consent”. The
Guardian. http://www.theguardian.com/world/2013/mar/15/us-drone-strikes-pakistan (October 26, 2015).
3
David McKenzie. 2011. “Kenya vows to hit Al-Shabaab across Somali border”. CNN.
http://edition.cnn.com/2011/10/16/world/africa/kenya-somalia/(October 26, 2015).
4
Urquhart, Conal, and Chris McGreal. 2011. “Israelis Invade Lebanon after Soldiers Are Seized.” The
Guardian. http://www.theguardian.com/world/2006/jul/12/israelandthepalestinians.lebanon (October 26, 2015).
5
Cakan, Seyhmus, and Ece Toksabay. 2015. “Turkish jet hit PKK targets in Iraq after soldiers killed:
sources”. Reuters. http://uk.reuters.com/article/uk-mideast-crisis-turkey-idUKKCN0PZ03L20150727 (October
2015).
combatants within Iraqi and Syrian territories;6 and France has extended their already

established mission in Syria against ISIS in response to their attacks in Paris in 2015.7

What initially may seem a random roundup on contemporary wars, all of the events

cited above share the same controversial feature for the current study of international

security: the rise of non-state actors in armed conflicts and the use of self-defensive force by

States against such groups.

However, before analyzing the impact of the activities of non-state actors in recent

wars, it is important to firstly outline the trends on international security that followed

modern globalization, stressing out the factors that have bolstered the engagement of NSAs in

armed conflicts. This is because the current phenomenon labeled as ‘transnationalization of

society’, marked by the emerging role of non-state, inter-state and supra-estate actors in the

global scenario, increasingly erodes the traditional, State-centered paradigms of international

law, exposing the need for a transnational approach to solve contemporary demands.8

In the field of international security, this transnationalization is often illustrated by the

nature and modus operandi of the new threats on the maintenance of peace around the globe.

Contemporary globalization has gone beyond the mere spheres of economic and financial

levels, extending its grasp to modern war by the means of the empowerment of individuals

and transnational groups by the Internet, the facilitation of exchanges between terror and

criminal networks and the spread of their political and military power enabled by a

6
U.N Security Council United Nations Security Council. Letter dated 23 September 2014 from the
Permanent Representative of the United States of America to the United Nations addressed to the Secretary-
General, 2014. 23 September 2014. (S/2014/695).
7
Irene Couzigou. 2016. "The Fight against the ‘Islamic State’ in Syria and the Right to Self-Defence."
E-International Relations. http://www.e-ir.info/2016/02/05/the-fight-against-the-islamic-state-in-syria-and-the-
right-to-self-defence/ (March 27, 2016).
8
On this regard, see the Report of the Study Group of the International Law Commission Finalized by
Martii Koskenniemi “Fragmentation of International Law: Difficulties Arising from the Diversification and
Expansion of International Law” (A/CN.4/L.682). para. 481.
horizontal, tree-like structure.9 This globalized reality has been commonly referred to as the

fourth generation of war, and reflects a decentralization of the tools of warfare from the hands

of States to theirs of the new actors in the modern global order.10

Despite these changes, the legal framework governing armed conflicts is still rich in

deep-seated, State-centered ideals prompted by the traditional views of the Westphalian

order. By virtue of this, many of the challenges now faced by the maintenance of peace and

security have roots in the concepts, methods and ways of waging wars stemmed from a

liberal, state-oriented order, when conflicts were fought with definite political ends, had their

phases in a distinct s order, and resulted with the subjugation of one of the warring parties to

the other.11 The so-called “traditional wars” (identified by the specialized literature as the

ones from the Modern Age to the Cold War period),12 imported, then, their hierarchized and

centralized features to the rules created to regulate wars, thereby creating fuzzy areas where

traditional principles in contemporary jus ad bellum no longer fit.

In view of this, we have today an international law that has not followed the rapid-

pace of war decentralization and, as a consequence, falls short in providing concrete solutions

to a world where States are not the sole subjects of armed conflict anymore. Within this

context, the application of core principles of the Law of War, such as the right of self-

defense, now struggles to adapt to the new trends in international security, as it will be

detailed further on this study.

9
Borgen, Christopher. 2008."A tale of two networks: Terrorism, transnational law, and network
theory." Oklahoma City University Law Review 33, at 412, 413.
10
Ibid.
11
Mei, Eduardo. 2013. “Estado, Guerra e Violência: As "novas guerras" e suas implicações para a
teoria clausewitziana da guerra”. In Paz e Guerra: Defesa e segurança entre as nações. ed. Héctor Luis Saint-
Pierre. São Paulo: UNESP, at 46.
12
Id., at 40.
3. SELF-DEFENSE AGAINST VIOLENT NON-STATE ACTORS: THE BOUNDARIES OF
INTERNATIONAL LAW

To understand the difficulties faced by security officials and legal practitioners when

confronted with an attack launched by a NSA, there is a need to first analyze the principles

underpinning the international world order. As set forth by Article 2(4) of the United Nations

Charter, global relations are to be carried out on the basis of non-aggression and diplomacy.

However, there are exceptions to this rule, notably the one established by article 51 of the

Charter, which reads as follows:

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 measures necessary to maintain international peace and security. Measures

taken by Members in the exercise of this right of self-defense 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.

As one can easily notice, in the language of Article 51 there are no pre-requisites as to

the nature of the perpetrator of the attack that can trigger the right of self-defense. This way,

similarly to the principle of non-aggression, this prerogative is conferred to the States in a

broadly manner, in order to encompass the various situations that can arise from the

international community. The only specification set out is that the State can invoke this

principle only to counter an armed attack, assuming, that the occurrence was a least a visible

and clear offensive against its territorial integrity or its citizens.13

Another discussion also relevant for the interpretation of Article 51 is that of State

attributability, that is, the possibility of an act to be attributed to a State under international

13
In regard to the specification of an armed attack, Henkin asserts that it must be: “clear, unambiguous,
subject to proof, and not easily open to misinterpretation or fabrication” – Henkin, Louis. 1979. How Nations
Behave. New York: Columbia University Press, at 142. In the same line of thought, Williamson explains that the
expressions ‘direct attack’ or merely ‘attack’ were rejected in order to restrict even further the use of force in
such occasions – Williamson, Myra. 2009. Terrorism, War and International Law: The legality of the use of
force against Afghanistan in 2001. Farnham: Ashgate Publishing Limited, at 109.
law. As indicated by Trapp, the Charter is silent on the question whether the attack must be

specifically carried out by a State and, given that its negotiation history specifically dropped

the possibility of adding the restriction ‘by any State’ after ‘armed attack’, such matter

should not be taken into account for interpretative purposes.14 Despite this consideration,

other legal texts pertaining to the issue, such as the UN Definition of Aggression and the

International Law Commission Articles on State Responsibility,15 give provisions that could

be interpreted as the recognition of non-state war-making capacity inasmuch as the attack is

directly or indirectly attributable to a State16. However, controversy still remains when in face

of an attack launched by non-State actors that does not fall under the terms of State

attributability envisioned by these articles.

This debate is not new, however. The discussions on State responsibility for

internationally unlawful acts committed by non-state actors based in their territories can at

least trace back to the 1940s. The most cited example of these early debates on the subject is

the Trail Smelter Case (1938-1941), which versed on the possibility of Canada to pay

compensations for environmental damages caused to the United States by a private Canadian

company.17 Although not settled by an international body per se, the case establishes some

insights still relevant for the matter here analyzed, indicating that a State would have the

“duty to, at all times, protect other States against injurious acts of individuals within their

jurisdiction”.18

14
Trapp, Kimberley N. 2015.“Can Non-State Actors Mount an Armed Attack?”. The Oxford Handbook
of the Use of Force in International Law. Ed. Marc Weller. Oxford: Oxford University Press, at 685.
15
See U.N. General Assembly, 29th Session. Resolution 3314(XXIX) (1974) [Definition of
Aggression]. 1974. AccessUN Readex. (4 March 2016), arts. 1 and 3(g); and UN. General Assembly, 53rd
Session. Report of the International Law Commission Supp No. (A/56/10). Official Record. New York, 2001,
arts. 2, 8, 9.
16
See Trapp (2015), at 681-683.
17
Ribeiro, Manuel de Almeida. 2015. “Responsibility of Private Entities in International
Environmental Law: Transport of Oil by Sea and Nuclear Energy Production”. In Responsibilities of the Non-
State Actor in Armed Conflict and the Market. Gal-Or, Noemi, Cedric Ryngaert, and Math Noortmann, eds.
Leiden: Brill|Nijhoff, at 219.
18
Convention for Settlement of Difficulties Arising from Operation of Smelter at Trail BC. Trail
Smelter Case (United States of America v Canada. (1938, 1941), at 1963.
From this perspective, the debates on the issue have primarily sought to indicate

which case-scenarios could give rise to liability on the part of the host State, this also

including hypothesis involving their inability or unwillingness to thwart the offensive.19 In

this regard, one can observe specialists dividing themselves into two main doctrines, which

we opted to define as: theory of the strict attributability and theory of the broad attributability.

The first theory takes into account Article 3(g) of the UN Definition of Aggression,

and therefore defends that the retaliation from the victim State is only legal when there is a

proven link between the attack and the host State – more specifically when the act of

aggression was ‘sent by’ or ‘on behalf of’ the host State.20 If there is no such substantial

involvement, this doctrine advocates for the use of force by the victim State only if the host

State expressly authorizes a military campaign.21

One of the most notable proponents of this theory is the International Court of Justice

itself, that, although having recognized, in its Corfu Channel Case, that it is “every State’s

obligation not to allow knowingly its territory to be used for acts contrary to the rights of

other States”, has issued decisions that pointed out that only attacks attributable to a State per

se that can amount to a legitimate use of the right of self-defense.22 This assumption is

distinctly delineated on the Advisory Opinion concerning to the Legal Consequences of the

Construction of a Wall in the Occupied Palestinian Territory, in which the Court states that:

Article 51 of the Charter thus recognizes the existence of an inherent right of self-

defence in the case of armed attack by one State against another State. However,

Israel does not claim that the attacks against it are imputable to a foreign State. The

19
In this sense, see Security Council Resolutions 1373, 1368 (para. 4) and 1566 (para. 3).
20
Trapp (2015), at 682.
21
See: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, [2004] ICJ Reports 136, para. 139 and Case Concerning Armed Activities on the Territory of
the Congo. (Democratic Republic of the Congo v. Uganda), Judgment, [2007] ICJ Reports 43, paras. 162, 163,
164 and 168.
22
(Democratic Republic of the Congo v. Uganda), para 146; and Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment. [1986] ICJ Reports 14, para.
195.
Court also riotes that Israel exercises control in the Occupied Palestinian Territory

and that, as Israel itself states, the threat which it regards as justifying the

construction of the wall originates within, and not outside, that territory. The

situation is thus different from that contemplated by Security Council resolutions

1368 (2001) and 1373 (200l), and therefore Israel could not in any event invoke

those resolutions in support of its claim to be exercising a right of self-defence.23

The second theory, for its turn, argues that these sorts of attacks can be attributable to

the host State, not only in cases when it has directly or indirectly sponsored the attack, but

specially when it is allegedly unwilling or unable to control the dangerous acts committed by

the terrorist organization from its territory.24 This doctrine, consequently, mitigates the

sovereignty of the host State in favor of the victim State’s necessity to secure the safety of its

citizens and its territorial integrity, enabling counter-attacks to be carried out in the host State

even without its consent.25 Many scholars defend this theory, and it is usually the one adopted

by State practice.26

4. A CRITIQUE TO THE ‘UNWILLING OR UNABLE ’ APPROACH

Although repeatedly invoked, the ‘unwilling or unable’ approach to the use of

defensive force is not yet well defined. There is still no solidly recognized standards for

States to follow while assessing the effective control and/or capacity of the host State upon

the non-state actor threat, which has provided loopholes for an overly broad and potentially

23
Palestinian Wall Advisory Opinion. para. 139.
24
Petter Viggo Jakobsen, and Jens Elo Rytter, eds. 2005. New Threats and the Use of Force.
Copenhagen: Danish Institute for International Studies. Report commissioned by the Danish Government in
December 2003, at 46.
25
Paust, Jordan J. 2010. "Self-defense targetings of non-state actors and permissibility of US use of
drones in Pakistan." Journal of Transnational Law & Policy 19(2), at 279.
26
See Lubell, Noam. 2010. Extraterritorial use of force against non-state actors. Oxford: Oxford
University Press, at 39-41, 67; Wilmshurst, Elizabeth. 2006. Chatham House Principles on the Use of Force in
Self-defence, International and Comparative Law Quarterly 55(4), at 969; Dinstein, Yoram. 2005. War,
aggression and self-defence. Cambridge: Cambridge University Press, at 245. On the general adoption of the
‘unwilling or unable’ approach by state practice, see: Van Steenberghe, Raphaël. 2010. "Self-Defence in
Response to Attacks by Non-state Actors in the Light of Recent State Practice: A Step Forward?." Leiden
journal of international law 23(1): 183-208.
abusive use of defensive force.27 Moreover, it is also noteworthy the fact that this doctrine

demonstrates a certain interventionist character to the extent that it ‘blames’ weaker States for

not being ‘able’ to control non-state actors within their territory. This is because many host

States belong to the Global South and have often suffered with economic and social crises –

situations that render the imposition of an extensive diversion of resources to combat these

threats almost absurd in view of the structural challenges faced by these nations.

For these reasons, there is a growing concern among specialists on the proportionality

and legitimacy of the use of force in such cases, mainly given the political, economic and

military inequalities between victim and host States28. To illustrate this situation, Ahmed

elaborates a table that outlines the asymmetries of power between countries attacked by non-

State actors and the nations that have been object of defensive measures during the period

of 2001 to 2011:29

TABLE 1
POWER ASYMMETRIES BETWEEN VICTIM AND HOST S TATES
Year of the
Victim State Power Rank Host State Power Rank
Conflict
2001 U.S 2 Afghanistan 77
2003 Israel 46 Syria 40
2004-2015 U.S 2 Pakistan 13
2004 Rwanda 104 DRC 127
2006-2008 Turkey 12 Iraq 36
2006 Israel 46 Lebanon 93
2010 France 10 Mali 112
2011 Pakistan 13 Afghanistan 77
2011 Kenya 65 Somalia 110
SOURCE: Ahmed, Dawood I. 2013. "Defending Weak States Against the 'Unwilling or Unable' Doctrine of Self-
Defense." Journal of International Law and International Relations 9(1), at 19.

27
Ebben, Iona. 2011. The Use of Force Against a Non-State Actor in the Territory of Another State:
Applying the Self-Defence Framework to Al-Qaeda.". Social Science Research Network. Web. 26 Oct. 2015.
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1960508>, at 4; Ahmed, Dawood I. 2013. "Defending
Weak States Against the 'Unwilling or Unable' Doctrine of Self-Defense." Journal of International Law and
International Relations 9(1), at 14.
28
In this regard, see Trapp, Kimberley N. 2007."Back to basics: necessity, proportionality, and the
right of self-defence against non-state terrorist actors." International and Comparative Law Quarterly 56(1), at
156; Walzer, Michael. 2009. "Responsibility and proportionality in state and non-state wars." Parameters 39(1):
235-282, and O'Connell, Mary Ellen. 2001. "Lawful self-defense to terrorism." University of Pittsburgh Law
Review 63: 889-908
29
See Ahmed (2013), at 19. The table is based on J. David Singer’s Composite Index of National
Capability.
In addition, the protection of the victim State’s security does not come without

consequences to the host State’s civilian population. Even when relatively accepted by the

international community as a 'legal' exercise of the right to self-defense,30 few of these

incursions have passed the ‘proportionality test’. For example, attacks promoted by the US in

Pakistan have generated a rate of at least 423 Pakistani civilian deaths, 172 of them being

children.31 The campaign of Israel in Lebanon in response to the killing of three and

abduction of two Israeli soldiers resulted in the death of about 1300 Lebanese civilians.32 The

US-led drone airstrikes to ‘preemptively’ combat the Islamic State, for their turn, killed more

than 450 civilians only during the year of 2014, according to independent sources.33

This way, while the use of defensive force against States from whose territories non-

state actors operate is not formally regulated, victim States have stretched the limits of the

principle, invading host States and generally not exercising its self-defense prerogative in

accordance to the relevant principles of customary international law, namely the requirements

of necessity, immediacy and proportionality.34 By virtue of this, it appears that the best long-

term solution for the issue is to clarify the limits to which victim States can rely on the use of

self-defense in a legally-binding document, in order to subject state practice to a clear set of

rules governing the possible situations when defensive measures can be taken, and the ways

they must be exercised.

However, as long as such document is not elaborated, there is still the need to come

up with a short-term solution aiming at overseeing the use of self-defensive force on the part

30
Van Steenberghe (2010), at 193-194.
31
"Get the Data: Drone Wars." The Bureau of Investigative Journalism.
https://www.thebureauinvestigates.com/category/projects/drones/drones-graphs (October 26, 2015).
32
Fisk, Robert. 2012. "Cloud of Syria’s War Hangs over Lebanese Cleric’s Death." The Independent.
http://www.independent.co.uk/news/world/middle-east/cloud-of-syrias-war-hangs-over-lebanese-clerics-death-
7771366.html (October 26, 2015).
33
Ross, Alice. 2015. "Hundreds of Civilians Killed in US-led Air Strikes on Isis Targets – Report." The
Guardian. http://www.theguardian.com/world/2015/aug/03/us-led-air-strikes-on-isis-targets-killed-more-than-
450-civilians-report (October 25, 2015).
34
Ahmed (2013), at 6.
of victim States, and deter these countries from abusing the principle. On this matter, Ahmed

proposes the involvement of the Security Council in determining a fact-finding mission to

assess the capacity of host States to prevent attacks emanating from non-state actors in their

territories, as a way to subject claims of host State ineffectiveness to scrutiny.35 Moreover,

the author also suggests the use of the database on counter-terrorism capacities provided by

reports submitted by UN Member States to the Counter-Terrorism Committee, in order to

improve the work of such fact-finding mission.

Still, we do perceive the necessity to combine the two solutions – that of long-term

results and the one with short-term outcomes – in a way to align them in a single path

towards a better compliance of States with the regulatory framework on the use of defensive

force. With this in mind, we suggest that the role of the Counter-Terrorism Committee on

these proposals could be expanded. Instead of acting merely as a data provider, the Security

Council could use the specialized structure of the CTC in order to establish a panel of experts

on the matter of self-defense against non-state actors.

This panel, for its turn, could then act both as an assessment and an advisory body. In

its assessment role, it could establish clear criteria on the effectiveness or ineffectiveness of

host States, and analyze the counter-terrorist capacity of such countries based on these

standards. Similarly, it could also evaluate the proportionality of responses by victim States,

should they have been already carried out. In its advisory role, the panel could recommend

good practices for host States in their preventive measures, and victim States in their

retaliation campaigns, as well as guidelines for the international community to elaborate

binding regulatory norms related to the issue.

This way, despite the political limitations such missions and bodies could face in

certain cases, the exercise of self-defense by victim States could at least have an international

35
Id., at 21-25.
supervising specialized framework to be subject to, instead of encountering the current gray

area that has enabled the misuse of the principle.

5. CONCLUDING REMARKS

The transnationalization of society is a consolidated phenomenon, and translates itself

in the field of international security as the rise of non-State actors in armed conflicts. The

international community, for its turn, needs to adapt its approaches to the maintenance of

peace to the new demands of the globalized order. However, there are still gray areas left by

State-centered perspectives that need to be tackled. One of them is the current

indetermination on the use of self-defense against non-State actors that have impaired the

adequate use of defensive force.

In view of theories that defend broader or stricter terms on the attributability of host

States in regard to attacks launched by NSAs from their territory, this paper recognizes the

possibility of self-defensive measures from victim states under Article 51 of the United

Nations Charter, yet also acknowledging that the ‘unwilling or unable’ doctrine is currently

too vague in its key concepts. This vagueness has made room for poorly-based claims of

ineffectiveness of host States, as well as interventionist perspectives to the extent it demands

unclear standards of counter-terrorism capacity from developing States. The

disproportionality of several self-defensive responses, with disastrous humanitarian damages,

has also highlighted the misuses arising from the ambiguity of such theory.

In view of this, the paper perceived the necessity for the elaboration of a legal binding

document that would clear out the criteria and limits by which such defensive measures could

be adopted, in an effort to formally reinforce the obligation of States to comply with relevant

norms and principles under the Law of War in their self-defensive retaliations. To aid in the

elaboration of such document, the establishment of a panel of experts from the Counter-

Terrorism Committee could be useful to provide advisory guidelines for legal provisions,
through its already specialized structure. The panel could also serve to assess the

proportionality of ongoing self-defensive campaigns and subject to scrutiny claims of host

State ineffectiveness.

Finally, the present study could be developed further so as to delineate the structure

by which this panel could work, as well as possible enforcement mechanisms that could be

implemented to deter abuses in defensive responses. Other points worthy of future research

are measures that could be adopted to enhance victim and host State collaboration to build

and improve counter-terrorist capacities without having to use force, given that, above all, the

right of self-defense is an exception, and not a principle to be used at unrestrained political

will.

BIBLIOGRAPHY

Ahmed, Dawood I. 2013. "Defending Weak States Against the' Unwilling or Unable'

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Borgen, Christopher. 2008. "A tale of two networks: Terrorism, transnational law, and

network theory." Oklahoma City University Law Review 33: 409-433.

Dinstein, Yoram. 2005. War, aggression and self-defence. Cambridge: Cambridge University

Press.

Ebben, Iona. 2011. The Use of Force Against a Non-State Actor in the Territory of Another

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Henkin, Louis. 1979. How Nations Behave. New York: Columbia University Press.
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Kretzmer, David. 2013. "The inherent right to self-defence and proportionality in jus ad

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Mei, Eduardo. 2013. “Estado, Guerra e Violência: As "novas guerras" e suas implicações

para a teoria clausewitziana da guerra”. In Paz e Guerra: Defesa e segurança entre as

nações, ed. Héctor Luis Saint- Pierre. São Paulo: Unesp, 39-74.

O'Connell, Mary Ellen. 2001. "Lawful self-defense to terrorism." University of Pittsburgh

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Paust, Jordan J. 2010. "Self-defense targetings of non-state actors and permissibility of US

use of drones in Pakistan." Journal of Transnational Law & Policy 19(2): 237-280.

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