Responses to Armed Attacks by Non-State Actors: A Departure from Traditional Self-Defence Approaches?

Janakan Muthukumar
Carleton University, Ottawa, Canada

The global ‘war on terror’ has led to the implementation of extraterritorial measures targeting non-state actors (NSAs). However, the complex nature of the terms ‘terrorism’ and ‘war’ introduces challenges in both legal and practical realms. This complexity allows for the enactment of tailored measures targeting NSAs. To gain a comprehensive understanding of extraterritorial measures against NSAs, it is important to examine the discourse surrounding terrorism and the empirical use of force against these entities. However, the application of such measures is often unclear, and states are often required to justify their countermeasures, typically invoking self-defence or other justifications for extraterritorial use of force. This raises important questions about the legitimacy and legality of these measures under international law.

The major challenge in implementing extraterritorial measures against NSAs lies in the limited legal framework that allows only for countermeasures against states. The current legal framework, established under Article 51 of the UN Charter, was designed to prevent inter-state conflicts and does not fully address the complexities of modern non-state threats. Additionally, legal discussions have predominantly centred on the state’s responsibility for actions attributed to NSAs, rather than addressing the specific legal complexities surrounding the use of force against them. This poses obstacles in shaping countermeasures within the international legal framework. This paper aims to assess the legality of employing extraterritorial countermeasures against NSAs without the consent of the territorial state, specifically within the framework of self-defence in international law. By January 2024 employing textual analysis of doctrinal and statutory provisions, and bolstered by case law and policy analysis, the research reflects on the complexities of the requirements of both necessity and proportionality. It considers special categories of self-defence, such as anticipatory and pre-emptive self-defence, and evaluates alternative lawful options available under international law, other than self-defence, for conducting extraterritorial countermeasures against NSAs engaged in armed attacks. Thus, it adds to the extensive discourse on the legal and policy dimensions of self-defence against NSAs.