Israel’s Right to Self-Defense

The present Article examines the legality of Israel’s military intervention in Lebanon in the summer of 2006 from a jus ad bellum perspective. More specifically, it examines whether Israel could lawfully invoke the right of self-defense, taking account of the factual

circumstances, the justification given by Israel and the reaction of the international community.
The Article focuses mainly on the controversy regarding the legality of self-defense against attacks by non-state actors. In this regard, it is noted that while the restrictions on this type of self-defense may have been eased in recent years, Israel’s intervention should not be considered a new precedent towards a broad right of self-defense against terrorist groups or other types of non-state actors.

I. Introduction

On July 12, 2006, Hezbollah militants attacked an Israeli military patrol, capturing two soldiers and killing three. Israel subsequently invoked the right of self-defense and engaged in military operations to retrieve the captured soldiers while carrying out air strikes against several targets in Lebanon, such as the Rafik Hariri International Airport in Beirut. The incident escalated in the following days, when aerial bombardments by the Israeli Defence Forces (IDF) were answered by a rainstorm of Katyusha rockets targeting Haifa and other cities in northern Israel. As the IDF crossed the Blue Line, the United Nations (U.N.)-monitored border demarcation between the two countries, Israeli troops and Hezbollah militants clashed in the worst fighting in southern Lebanon since 1982. For over a month the world held its breath until, finally, a frail ceasefire was put in place at the order of the U.N. Security Council on August 14, 2006. [FN1] In all, some 116 Israeli soldiers and 43 Israeli civilians lost their lives between July 12, 2006 and August 14, 2006. On the Lebanese side, some 1,109 people–mostly civilians– were killed, as well as twenty-eight Lebanese soldiers. [FN2] Scores of people on both sides were injured or forced to flee their homes.
The dramatic events of July and August 2006 raise important questions of jus ad bellum regarding the legality of self-defense in response to attacks by non-state actors. [FN3] Chief among these questions is whether state involvement in these attacks is needed to trigger Article 51 of the U.N. Charter, [FN4] which spells out the right of self-defense and, if so, what degree of state involvement is required. The International Court of Justice (ICJ) has addressed this question in its advisory opinion on the legality of the “Palestinian Wall” [FN5] and in its judgment in the Case Concerning Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), [FN6] but it has been notoriously unable to provide a coherent answer to this polemic, to the discontent of some of its judges. Legal scholars are highly divided on the topic, although a growing number of authors have suggested that the legal restrictions on self-defense *267 ought to be eased. [FN7] States, on the other hand, do not seem to stumble over these thorny questions. Indeed, as they did in response to the 9/11 attacks, many states supported Israel’s self-defense claim without further ado, notwithstanding the fact that many were critical of the disproportionate character of Israeli attacks and the heavy loss of civilian life on the Lebanese side.
Against this background, the present Article assesses the merits of Israel’s invocation of Article 51 of the U.N. Charter. Given the fact that the initial attack emanated from Hezbollah and not from the Lebanese government, it is hard to fit Israel’s recourse to force into the traditional legal parameters of self-defense. We will therefore not only examine the legality of Israel’s actions but also their significance for the development of jus ad bellum, taking into account the reaction of the international community. I start from the widely accepted premise that custom, constituted of state practice and opinio iuris, is crucial for the determination of the scope of the legal prohibition on the use of force. [FN8] Thus, Israel’s state practice in the present case will be tested against the opinio iuris expressed by Israel, Lebanon and numerous other states in the debates of the U.N. Security Council. [FN9] In the end, while the *268 international community generally affirmed the applicability of the right of self-defense to Israel’s actions, I argue that this should not be interpreted as creating a broad legal right to exercise self-defense against attacks by non-state actors. Rather, given the circumstances in Lebanon, Article 9 of the Draft Articles on State Responsibility (Draft Articles) [FN10] may provide an alternative route to legally justify Israel’s recourse to self-defense under Article 51, while leaving in place the need for a certain degree of state involvement in armed attacks. The present analysis does not address the legality of Israel’s actions under international humanitarian law, [FN11] nor does it deal with the parallel military action in the Gaza strip during the same period.
Part II summarizes the events of July 12, 2006 as well as the responses of Israel, Lebanon and the wider international community. Part III examines whether the conditions for the recourse to self-defense were met and focuses in particular on the question of whether and to what extent “armed attacks” require the involvement of a state to legally justify self-defense under Article 51 of the U.N. Charter. Part IV contains concluding remarks.

II. The Outbreak of Hostilities and Reaction of the International Community

On the morning of July 12, 2006, Hezbollah fighters attacked an Israeli border patrol between the towns of Zarit and Shtula. [FN12] Making use of a “dead zone” in the border fence, not visible from any of the IDF outlook posts, they crossed the border and ambushed an Israeli patrol with a combination of pre-positioned explosives and anti-tank missiles. Simultaneously, Hezbollah also launched a diversionary attack, firing Katyusha rockets and mortars at Israeli military positions and border villages. The latter attack wounded five civilians. In the ambush itself, three Israeli soldiers were killed, two were wounded and two were abducted. The IDF responded with artillery fire, air strikes, and a naval bombardment. Moreover, in its first military ground operation in *269 southern Lebanon since the withdrawal of Israeli troops in 2000, the IDF summoned a mission to rescue the captured soldiers and engaged in fierce fighting with Hezbollah gunmen.
Shortly after the Zarit-Shtula incident, Israeli Prime Minister Ehud Olmert made a statement in which he argued that the Hezbollah attack was “not a terrorist attack, but the action of a sovereign state that attacked Israel for no reason and without provocation.” [FN13] He pointed out that Hezbollah is a member of the Lebanese government, stressing that Lebanon was responsible for this “act of war . . . on the sovereign territory . . . of the state of Israel” and would bear the consequences of its actions. [FN14] In accordance with the reporting obligation of Article 51 of the U.N. Charter, Israel submitted a letter to the Security Council, stating that “[r]esponsibility for this belligerent act lies with the Government of Lebanon, from whose territory these acts have been launched into Israel. Responsibility also lies with the Government of the Islamic Republic of Iran and the Syrian Arab Republic, which support and embrace those who carried out this attack.” [FN15] The statement denounced the “ineptitude and inaction” of the Government of Lebanon to exercise its jurisdiction over its own territory, despite calls thereto in several Security Council resolutions. The statement goes on to reiterate that Israel “reserves the right to . . . exercise its right of self-defense when an armed attack is launched against a Member of the United Nations.” [FN16] To this end, it would take “appropriate actions to secure the release of the kidnapped soldiers and bring an end to the shelling that terrorize[d] [its] citizens.” [FN17] The next day, however, Lebanon called for an urgent meeting of the Security Council to discuss the crisis. [FN18] Lebanon declared that it was “not aware of the events that occurred and are occurring on the international Lebanese border” and did not endorse them. [FN19] Lebanon refuted responsibility for the actions of Hezbollah and strongly condemned “the Israeli aggressions that targeted and are targeting the vital and civil Lebanese infrastructure.” [FN20] *270 Israel’s actions against Lebanon were only discussed in the margin during the Security Council meeting of July 13, 2006, which instead focused on the situation in the Gaza strip at the time (a draft resolution was defeated due to a United States veto). [FN21] However, the next day the Council did convene to discuss the Israeli-Lebanese situation. [FN22] During the debate it became clear that most of the fifteen Council members supported Israel’s invocation of self-defense in principle–the United States, Japan, the United Kingdom, Denmark, Slovakia, Greece, France, Peru, and Argentina all referred to Israel’s right of self-defense–even though they refrained from speaking out on Lebanon’s possible responsibility for the Hezbollah attacks. Only China and Qatar identified Israel’s response as “armed aggression” against Lebanon. [FN23] On the other hand, most Council members also showed sympathy for the Lebanese authorities and stressed the need for the Lebanese government to exercise full control over all of its territory. Virtually all Council members expressed concern at the targeting of civilians and civilian infrastructure in Lebanon and called for restraint, with several countries, such as Russia and France, expressly condemning the disproportionate nature of Israel’s campaign. [FN24] In the following days, Israel’s claim continued to receive implicit and explicit support from several corners, although often in combination with deep concern at the loss of civilian life. Thus, on July 16, 2006, the Group of Eight (G8), meeting in St. Petersburg, issued a declaration acknowledging Israel’s right to self-defense while calling for restraint. [FN25] Two days later, the U.S. Senate adopted a resolution “[c]ondemning Hezbollah and Hamas and their state sponsors and supporting Israel’s exercise of its right to self-defense.” [FN26] Likewise, Australian Prime Minister John Howard affirmed that Hezbollah had forced Israel into self-defense. [FN27] Even U.N. Secretary-General Annan, albeit highly critical of Israel’s excessive and disproportionate use of force, acknowledged Israel’s right to defend itself under Article 51 of the U.N. Charter. [FN28] The open debate in the Security Council of July 21, 2006 shows a similar picture. Notwithstanding deep concern or outright condemnation of the disproportionate use of force, a majority of participants agreed as a matter of principle that Israel had the right to defend itself against the attacks by Hezbollah. [FN29] This position was held by the United States, the twenty-five *271 member states of the European Union, Japan, Russia, Canada, Australia, Norway, Switzerland, Brazil, Argentina, Peru, Guatemala, and Ghana. On the other hand, the twenty-two member League of Arab States [FN30] condemned the Israeli aggression, as did China, Iran, Cuba, and Venezuela. Other countries, such as India and Indonesia, condemned the disproportionate character of Israel’s action, without addressing the self-defense question. [FN31] Thus, it appears the international community steadily grew more critical of Israel’s use of force against Lebanon, especially after the killing of four U.N. peacekeepers in an Israeli artillery and aerial attack on July 25, 2006 [FN32] and the Qana massacre [FN33] of July 30, 2006 in which twenty-eight Lebanese civilians lost their lives. Still, a majority of states, including eleven out of fifteen Security Council members, backed the invocation of Article 51 of the U.N. Charter. [FN34] Let us now turn to the merits of the casus belli.

A. Israel’s Self-defense Claim
An examination of Israel’s self-defense claim can be broken down in three parts. First, we must establish whether the Zarit-Shtula incident qualifies as an “armed attack” in the sense of the U.N. Charter’s Article 51 ratione materiae. This means that we must assess whether Hezbollah’s acts were “of such gravity” that they would qualify as an armed attack if they had been carried out by regular armed forces. Second–and this is the most difficult point to tackle from a legal perspective–we must look into the Lebanese government’s involvement in the activities of Hezbollah to verify whether the incident qualifies as an armed attack ratione personae. A third and final aspect concerns the necessity and proportionality of Israel’s response.
A preliminary remark must be made. Several officials and media sources have questioned Israel’s motives in going to war against Lebanon. Some have suggested that Israel had long pre-planned its military campaign and was waiting to be provoked; others have pointed out that Israel pursued *272 wider goals than merely the return of its abducted soldiers. [FN35] Whether or not these suggestions are true is irrelevant from a jus ad bellum perspective. This follows from the Nicaragua case, where Nicaragua argued that the U.S. justification of self-defense merely served as a pretext for its contested activities. The Court rejected this argument, declaring that self-defense can be legally invoked if the appropriate conditions are met “even though there may be possibility of an additional motive, one perhaps even more decisive.” [FN36] Hence the answer: yes, self-defense may be a pretext, as long as the basic conditions are met. But were these conditions met on July 12, 2006?
1. Ratione Materiae
Our first question concerns whether the “scale and effects” of the initial attack by Hezbollah were sufficient to trigger the right of self-defense. In the Nicaragua case, the ICJ famously distinguished between the “most grave” forms of the use of force from other “less grave” forms. [FN37] Only the former qualify as “armed attacks” in the sense of Article 51. This is also evident from the ICJ’s reference to the Definition of Aggression, [FN38] adopted by the U.N. General Assembly in 1974, which the Court used as a yardstick to determine the existence of an armed attack. [FN39] Articles 2 and 3(g) of the Definition require that armed force be of sufficient gravity to constitute aggression. [FN40] As a result, a de minimis threshold has to be reached. An armed attack must involve at least a use of force producing (or liable to produce) serious consequences, epitomized by territorial intrusions, human casualties or considerable destruction of property. [FN41] Use of force below this threshold may well trigger a state’s right to take countermeasures, but it does not justify recourse to self-defense. On the other hand, a single incident such as the mining of a single vessel may be sufficient to bring into play the inherent right of self-defense. [FN42] Single incidents may also be “accumulated” so as to determine whether the threshold has been reached. [FN43] In Nicaragua, the ICJ excluded “mere frontier incidents” from the concept of “armed attack.” [FN44] Many scholars criticized this distinction as *273 artificial, arguing that some “frontier incidents” may be trivial, while others may be extremely grave. [FN45] However, the concept of frontier incidents may be useful to avoid escalation of minor incidents. It does not a priori rule out the possibility that trans-border incursions could singly or collectively amount to armed attacks. The ICJ did not provide much guidance to distinguish mere frontier incidents from armed attacks, but only referred in general terms to “scale and effects” and circumstances and motivations. [FN46] The implication seems to be, as Gray notes, that “the Court would include within ‘frontier incident’ episodes where there was no intent to carry out an armed attack, including accidental incursions and incidents where officials disobeyed orders.” [FN47] Given this understanding, the premeditated and well-organized character of the Hezbollah ambush, the ongoing nature of the abduction, combined with diversionary rocket attacks suggest that this was a deliberate “armed attack” rather than a mere “incident.” Considering the serious consequences of the attack–which included territorial intrusions, human casualties, and destruction of property–one could argue that, even though it was a relatively small-scale event, the ratione materiae criterion was fulfilled. The outcome of this analysis would be different if one were to follow the alternate version of the incident, proclaimed by the Lebanese police and later by Hezbollah. According to this version, the Israeli soldiers were captured when Hezbollah attacked an Israeli commando force trying to infiltrate the village of Ayta ash-Shab, well inside Lebanese territory. [FN48] This account seems somewhat at odds with the apparently premeditated nature of Hezbollah’s attack. [FN49] All major news agencies, including Al Jazeera, as well as the European Union and the G8, have characterized the abduction as a “cross-border” attack. Likewise, the report of the United Nations Interim Force in Lebanon (UNIFIL) states that Hezbollah “crossed the Blue Line into Israel and attacked an IDF patrol,” [FN50] and Security Council Resolution 1701 speaks of “Hezbollah’s attack on Israel.” [FN51] Therefore, we see that the answer to the question posed at the start of this section is that the attack by Hezbollah was sufficient to trigger the right to self-defense.
*274 2. Ratione Personae
The ratione personae aspect is more difficult to assess. The problem is that considerable controversy exists as to when attacks carried out by non-state actors qualify as “armed attacks” in the sense of Article 51. The text of the Article does not explicitly restrict the scope of “armed attacks” to acts of state agents, yet it has traditionally been interpreted in this way. [FN52] Thus, the U.S. Senate Foreign Relations Committee long ago declared that “the words ‘armed attack’ clearly do not mean an incident created by an irresponsible group of individuals, but rather an attack by one state upon another.” [FN53] On the other hand, literature also suggests that self-defense can be exercised against attacks by non-state actors when there is a certain degree of state involvement in the attacks, a situation which is sometimes labeled “indirect military aggression.” [FN54] In addressing this controversy, the International Court of Justice has applied the reasoning of Article 3(g) of the Definition of Aggression, which was taken to reflect customary international law. Thus, the Court extended the notion of “armed attack” to “the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its substantial involvement therein.” [FN55] Nevertheless, the application and interpretation of this phrase has become increasingly contested. This is a consequence of evolutions in state practice, recent resolutions adopted by the Security Council, and, last but not least, subsequent ICJ jurisprudence. As a result, there are currently three broad lines of reasoning. [FN56] On the one hand, some argue that self-defense can only be exercised when attacks by non-state actors can be imputed to a State in accordance with established rules on state responsibility. On the other extreme, some argue that state involvement has become irrelevant and that one should only look at the gravity of the attack to determine the appropriateness of self-defense. In between, a third position claims that state involvement remains a precondition albeit under a lower threshold than that of state responsibility. Hereafter, we will examine these positions in the context of the Israeli-Lebanese conflict. It is argued that Israel’s actions fail to meet the ratione personae threshold, not only if one sticks to the general rules on state *275 responsibility, but also when a somewhat lower state involvement standard is adopted. Subsequently, an alternative route is suggested to act against states failing to prevent cross-border attacks by non-state actors by falling back on a somewhat neglected rule of state responsibility, dealing with conduct carried out in the absence or default of official authorities.
i. State responsibility
As mentioned above, the ICJ in the Nicaragua case used Article 3(g) of the Definition of Aggression as a yardstick for the legality of self-defense against attacks by non-state actors. This article refers to the “sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State . . . or its substantial involvement therein.” [FN57] Although the wording “sending by or on behalf of” seems to imply agency, the additional reference to “substantial involvement therein” suggests that this yardstick–which the Court held to be part of the primary rules of the jus ad bellum–is not necessarily identical to the secondary rules concerning state responsibility, but may actually be broader. Indeed, the phrase “substantial involvement” was the result of long debates regarding the degree of state involvement needed to establish “aggression.” [FN58] Some delegations wanted to include “support,” “acquiescence,” and “encouragement of organization” of armed bands. Others wanted to reserve “aggression” to cases of “open and active participation.” [FN59] The implication of the Court’s reference to Article 3(g) therefore seems to be that self-defense may go beyond situations where attacks by non-state actors are imputable to a state and also covers situations where a state is “substantially involved” in their activities. At the same time, however, the ICJ took a narrow view of such involvement and discarded the idea that “the provision of weapons or logistical or other support” could amount to an armed attack. [FN60] Although the giving of sanctuary to non-state actors did not arise on the facts in Nicaragua, it is assumed that the Court implicitly rejected that acquiescence or the inability to control armed bands operating on a state’s territory could constitute an armed attack. [FN61] In the end, the Court’s narrow interpretation seemed to de facto limit self-defense to attacks that are actually attributable to states. This position was heavily attacked by Judge Schwebel and Judge Jennings as well as by several scholars. Judge Jennings, for example, pointed out that, “it becomes difficult to understand what it is, short of direct attack by a state’s own forces, that may not be done apparently without a lawful response in the form of . . . self-defence.” [FN62] *276 If ever there was a gap between the Court’s interpretation of Article 3(g) of the Definition of Aggression and the rules on state responsibility, it seems to have been closed in two recent ICJ cases. Thus, in the Palestinian Wall advisory opinion, the Court stated that Article 51 U.N. Charter recognized, “the existence of an inherent right of self-defense in the case of armed attack by one State against another State.” [FN63] Since Israel had not claimed that the attacks it suffered were in fact “imputable to a foreign state,” the right of self-defense could not be invoked to justify the building of the “Palestinian Wall.” [FN64] And in DRC v. Uganda, the Court invoked the wording of Article 3(g) Definition of Aggression, albeit dropping the reference to “substantial involvement.” [FN65] The Court seemed to follow the view that the deplorable attacks against Uganda by armed groups acting from Congolese territory were due to the Democratic Republic of the Congo’s (DRC) inability to control events along its border and concluded that the attacks were “not attributable” to the DRC. Given the absence of state responsibility, the preconditions for the exercise of self-defense were deemed absent, meaning that the Court “did not need to enquire” whether Uganda’s actions had abided by the standards of proportionality and necessity.
Given the jurisprudence of the ICJ, it is little wonder that Israel traveled the road least contested and invoked state responsibility. Indeed, while reporting to the Security Council, Israel took the position that Lebanon was responsible for Hezbollah’s attack and that, as a result, this was not a terrorist attack, but rather the action of a sovereign state. [FN66] If this were true, then there would be no doubt that Israel could lawfully invoke Article 51 of the U.N. Charter. However, one would first need to demonstrate that Hezbollah’s actions could be attributed to the Lebanese government in accordance with the stringent rules on state responsibility, enshrined in the International Law Commission’s authoritative Draft Articles on State Responsibility. [FN67] In principle, Draft Article 4 limits state responsibility to acts carried out by state organs exercising legislative, executive, judicial or other functions, as long as they are acting in their official capacity. [FN68] Draft Article 7 makes clear that this also covers occasions where agents exceed their authority or contravene their instructions. In this context, Israel emphasized the fact that Hezbollah is part of the Lebanese government. [FN69] Hezbollah has indeed participated as a political party in Lebanese elections since 1992 and at the time of the crisis it held fourteen seats in the 128-member Parliament. It was, *277 moreover, a minority partner in the Cabinet, where it held two minister posts (Energy and Water, and Labour). It had also endorsed a third Cabinet position, namely that of Fawzi Salloukh, minister for Foreign Affairs. Nevertheless, to conclude from this participation that the July 12 attack was carried out by state agents is not acceptable. The mere fact that Hezbollah held two minister posts obviously does not imply that all Hezbollah militants would become state agents. This might be different if Hezbollah were leading the government, as Hamas did at the time in the Occupied Palestinian Territories. In such a situation, one could argue that the military wing of Hezbollah would become an extension of the government’s security apparatus, implying that its actions would be imputable in the sense of Draft Article 4. Yet, in the present context, Draft Article 4 does not apply.
This means that we have to look at the exceptions to the rule that states are only responsible for acts of their organs. Three main exceptions exist. The first two are laid down in Draft Article 8, according to which the conduct of a person or a group of persons shall be considered an act of a state if the person or group of persons is in fact acting on the specific instructions of the state or is under the direction or control of the state in carrying out the conduct. [FN70] With regard to the latter exception, the ICJ suggested that the litmus test is the existence of “effective” control or direction. [FN71] The third exception deals with situations where a state explicitly acknowledges and adopts conduct by non-state actors as its own (Draft Article 11; both requirements have to be fulfilled cumulatively). This situation surfaced in the Tehran case where the ICJ held that the Iranian policy of placing pressure upon the United States by not ending the hostage-crisis in the U.S. embassy and various Iranian authorities’ compliance with this policy transformed the occupation of the U.S. embassy into acts of Iran. [FN72] None of these exceptions apply in the present situation. As the Secretary-General remarked, it was clear that the Lebanese government had no advanced knowledge of the attack. [FN73] The Lebanese government immediately distanced itself from Hezbollah’s attack and informed the Security Council that it was not aware of the events and did not endorse them. [FN74] Moreover, whereas Israel accused Iran and Syria of “supporting and embracing” those who carried out the attack, it did not accuse Lebanon of supporting Hezbollah, let alone of “effectively controlling” Hezbollah. Instead, Israel merely spoke of Lebanon’s “ineptitude and inaction” in exercising jurisdiction over its own territory, blaming the government for not implementing Security Council Resolution *278 1559. [FN75] The latter resolution had called for the withdrawal of all foreign forces from Lebanon as well as the disbanding and disarmament of all Lebanese and non-Lebanese militias. [FN76] It had partially been implemented as a result of the withdrawal of most Syrian forces from Lebanese territory. [FN77] However, the Lebanese government had failed to dismantle Hezbollah, thus allowing the country to become a “hotbed of violence and a cesspool of terrorism.” [FN78] Israel argued that it was compelled to act “not against Lebanon, but against the monster that Lebanon had allowed to hold it hostage.” [FN79] Like virtually all U.N. Members during the Security Council debates of July 14 and 31, Israel supported the position that the Lebanese government should extend its sovereign jurisdiction over the whole of its territory, a position that formed the basis for Resolution 1701. [FN80] In other words, the Lebanese government was not seen as the problem, but as part of the solution.
Now that we have established that the July 12 attack was not imputable to the Lebanese government in the sense of Draft Articles 4, 8 or 11, does this mean that self-defense was excluded in the present context? If one adheres to the proposition that the exercise of self-defense against attacks by non-state actors requires state responsibility, the answer would at first sight be affirmative. However, the latter position is increasingly criticized for rendering self-defense against attacks by non-state actors virtually always impossible. [FN81] First, it is highly unlikely that a state would explicitly acknowledge an attack and adopt it as its own in the sense of Draft Article 11, knowing that doing so would make it the possible target of a counterattack. Second, in most situations of alleged “indirect military aggression,” states are involved by indirectly providing assistance, training, financial and logistical support, rather than by giving specific instructions or exercising effective control over attacks. In such circumstances, a state sponsor commits an internationally wrongful act. For example, the Declaration on Friendly Relations proclaims that “no state shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another state, or interfere in civil strife in another state.” [FN82] Nonetheless, the state victim of an attack by non-state actors would only be allowed to resort to peaceful countermeasures. The state supporting the attack would effectively be shielded from the use of military force.
*279 In an age where terrorism is universally recognized as one of the most serious threats to international peace and security, [FN83] a strict insistence on the need for state responsibility seems untenable. Such a position has also been challenged by several judges of the ICJ. In relation to the Palestinian Wall advisory opinion, for example, Judge Kooijmans, Judge Buergenthal, and Judge Higgins all emphasized that nothing in the text of Article 51 stipulates that self-defense is available only when an armed attack is made by a state. [FN84] Both Judge Kooijmans and Judge Buergenthal suggested that Security Council Resolutions 1368 and 1373 marked a new approach to self-defense, regretting that the Court had by-passed these new elements. [FN85] Judge Higgins has written separately to reiterate her earlier criticism of the Court’s reliance on the Definition of Aggression in the context of the Nicaragua case. [FN86] Criticism had grown stronger by the time of the DRC v. Uganda case, where the role of irregular forces was at the heart of the dispute. Several judges regretted that the Court had not taken the opportunity “to clarify the state of the law on a highly controversial matter, marked by great controversy and confusion–not the least because it was the Court itself that ha[d] substantially contributed to this confusion by its Nicaragua judgment. . . .” [FN87] Judge Kooijmans and Judge Simma were mainly concerned with a phenomenon “which in present-day international relations has unfortunately become as familiar as terrorism,” namely the almost complete absence of government authority in the whole or part of the territory of a state. [FN88] Both suggested that in such circumstances one should only look at the scale and effects of an attack to determine the applicability of Article 51. Judge Koroma, on the other hand, argued that a state’s “massive support for armed groups, including deliberately allowing them access to its territory” could be characterized as an “armed attack.” [FN89] Finally, Judge ad hoc Kateka rejected the idea that “the provision of arms, coupled with ‘logistical and other support”’ could not qualify as an armed attack. [FN90] These separate and dissenting opinions acquire a particular meaning if we look at recent evolutions in state practice and opinio iuris. Here we notice a trend of abandoning the need for state imputability in two different scenarios, namely cases where a state supports the activities of non-state actors and cases where a state is unable to prevent non-state actors from carrying out attacks.

All Rights Reserved Theme by 404 THEME.