Self-defense against non-state actors

Dimitrijević, Duško (2024) Self-defense against non-state actors. In: Современное международное право: проблемы и вызовы. Издательство Самарского университета, Самара, pp. 106-144. ISBN 978-5-7883-2061-8

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Abstract

In the doctrine of international law, there is a division around the question: Is the right of self-defense available to states against non-state actors who undertake armed attacks? According to one doctrinal point of view, such possibility does not exist in general international law. The Charter of the United Nations does not provide for this possibility either, because it bound the right to self-defense ex- clusively to states. Therefore, any armed attack carried out by non-state actors, which cannot be attributed to states, cannot provoke an armed response by the affected state, that is, the legitimate exercise of the right to self-defense. However, according to another doctrinal point of view that prevails in international practice, such a possibility still exists in situations of high-intensity and large-scale armed attack by non-state actors. Since non-state actors do not have full legal capacity and often act under the influence and control of foreign governments, the use of force by attacked states in self-defense seems a legitimate right under ius ad bellum. This approach would be a logical set of circumstances in light of the transformation of international relations and the progres- sive development of international law. However, its legal justification remains highly disputed since the right of self-defense is interpreted contrary to the rule from Article 51 of the United Nations Charter, and with reference to the existence of the customary rule on self-defense, which was allegedly not derogated after its adoption. Starting from the fact that this conceptual division in international legal doctrine has far-reaching consequences in the international practice of preserving international peace and security, the following study will consider the questions whether positive international law allows self-defense and under what conditions against non-state actors and whether the illegal use of force by non-state actors can be attributed to the state from whose territory these actors act against other states?

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