The Extent of Self-Defense Against Terrorist Groups: For How Long and How Far?
47 Israel Yearbook on Human Rights 265-316 (2017)
52 Pages Posted: 10 Mar 2017 Last revised: 3 Mar 2021
Date Written: March 7, 2017
The post-9/11 environment, in which states may use self-defense as an ongoing and overarching justification and construct for military operations, whether episodic or sustained in nature, against one or more non-state groups for more than fifteen years, poses challenges to the very concept of self-defense. In particular, the ongoing reliance on self-defense in locations and against groups not contemplated at the time of the initial incident triggering the right to self-defense raises essential questions about the extent of self-defense: how far can a state go when acting in self-defense — both in the geographical sense and in the sense of the legitimate aims of using force — and for how long does this right of self-defense last? In this era of extended campaigns against transnational terrorist groups, examination of such questions is essential to an understanding of self-defense and, therefore, an effective assessment of the legality of state action against such groups.
This article explores the extent of self-defense, particularly in the context of a state using force in self-defense against one or more terrorist groups located in one or multiple locations outside the boundaries of the State. After brief foundational background, the article examines how differing conceptions of the legitimate aims of self-defense affect the extent of self-defense and addresses the consequences of an armed conflict paradigm for the parameters of self-defense. Finally, the article raises questions that naturally follow from a state's initial success in countering a terrorist group with armed force and pose new challenges for the self-defense analysis. For example, as a state's military operations damage a group's ability to operate, it will seek new bases from which to operate in different states or regions and it may splinter into multiple groups or reconstitute itself as one or more new groups. Along with the appearance of new groups inspired by or declaring allegiance to the original terrorist group, these developments require further analysis of whether the nature and extent of self-defense changes, and how, in light of the dynamic operational environment for counterterrorism.
Keywords: self-defense, terrorism, counterterrorism, international law, jus ad bellum, necessity, proportionality, al Qaeda, ISIS, armed attack
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