Twelve Key Questions on Self-Defense against Non-State Actors – and Some Answers

The Plea of State of Necessity: A palatable normative framework for extraterritorial self-defense against Non-State Actors

“…Additionally, this paper builds substantially on Terry Gill and Kinga Tibori-Szabó's paper of 2019, which outlined in exquisite detail the operation of necessity in the context of the customary law governing self-defense against NSAs in the territory of a third non-consenting State. In it, they claimed that "necessity (…) serve[s] as both the driver and the limiting function of the exercise of self-defense" (Gill & Tibori-Szabó, 2019). This paper aims to take up the call made by the authors to provide a normative framework susceptible of providing "some adjustments" to our current thinking about necessity in order to make it actionable in the existing Charter system governing the use of force and self-defense.…”

“…The system, dating back to the San Francisco conference in 1945, was built by and for States. It has a clear state-centric dynamic embedded in it (Kotlik, 2017), reflective of the paradigm that governed international law at the time (Gill & Tibori-Szabó, 2019); the main (and almost sole) subjects of it were States. Individuals or private groups were held to have little or no agency in the legallyrelevant exchanges governed by this branch of the law (5) .…”

“…This would mean that the scope of customary self-defense at the time of the drafting of the Charter may have indeed exceeded that of only interstate uses of force (6) . However, as observed by Gill and Tibori-Szabó (2019), several authors argue that the limitation implied by the wording of article 51 UNC was deliberately intended to reduce the scope of action of self-defense even beyond the Charter (Tladi, 2013). As pointed out: "[o]ne of the controversies regarding the effect of the Charter on the pre-1945 right of self-defense concerns NSAGs and whether these groups can qualify as authors of an armed attack" (Gill & Tibori-Szabó, 2019, p. 475).…”

“…A State-centric reading of the result of the joint reading of articles 2(4) and 51 of the UNC, in line with the freedom principle enshrined in the PCIJ's Lotus Case (1927), would thus mean that if not explicitly prohibited, then the resort to self-defense against NSAs in the territory of a third non-consenting State would be lawful (Gill & Tibori-Szabó, 2019). However, upon close examination, this view doesn't hold.…”

“…One further avenue to analyze whether the use of force system of the UNC can cater to the situation under study is that of subsequent practice (under the VCLT as complementary and subsidiary method of interpretation) relative to UN Charter law (Gill & Tibori-Szabó, 2019). As is usual in these instance, scholarly commentary covers both positions.…”