Self-Defense Against Non-State Actors and the Myth of the Innocent State

Global Governance and Human Rights (Collected Courses of the Academy of European Law) (Nehal Bhuta & Rodrigo Vallejo eds, OUP, Forthcoming)

28 Pages Posted: 13 May 2019

See all articles by Eliav Lieblich

Eliav Lieblich

Tel Aviv University - Buchmann Faculty of Law

Date Written: April 2, 2019

Abstract

Few contemporary debates on the use of force under international law have been more contentious than the argument over the lawfulness of transnational self-defense against non-state actors. In this context, especially controversial is the claim – advanced by the US and several other states – that defensive force against non-state actors could be lawful when territorial states are “unwilling or unable” to address the threat on their own.

Of the various objections to this standard, one significant argument suggests that when a territorial state is merely unable to stop a threat, any response against a non-state actor on its territory would be unlawful. This is because that state – assuming that it has exercised due diligence to prevent the threat – is at no fault; it has therefore not violated the prohibition on the use of force; and in the absence of such a violation, there can be no self-defense on its territory.

This Chapter challenges this argument. While not defending the lawfulness of the “unwilling or unable” test per se, it rejects the view that “state innocence” should be a valid objection to it. In this context, it argues that attributing overriding importance to state innocence conjures up an old anthropomorphism in international law, in which the state is conceived as a physical person, its territory akin to a human body. On this view, a response on the territory of an "innocent state" is likened to a response against the body of an innocent human threat or shield. Yet, in any legal regime that takes individual rights seriously, it seems that rights attributed to the fictionalized body of the state cannot override those of real-life people. It follows that state innocence alone cannot be a bar to self-defense against non-state actors, at least when human life is threatened by their attacks.

Keywords: International Law, Use of Force, Self Defense, Just War, Human Rights, Non-State Actors

Suggested Citation

Lieblich, Eliav, Self-Defense Against Non-State Actors and the Myth of the Innocent State (April 2, 2019). Global Governance and Human Rights (Collected Courses of the Academy of European Law) (Nehal Bhuta & Rodrigo Vallejo eds, OUP, Forthcoming). Available at SSRN: https://ssrn.com/abstract=3364163

Eliav Lieblich (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv, IL
Israel

Register to save articles to
your library

Register

Paper statistics

Downloads
99
Abstract Views
438
rank
263,674
PlumX Metrics