BACK TO BASICS: NECESSITY, PROPORTIONALITY, AND THE RIGHT OF SELF-DEFENCE AGAINST NON-STATE TERRORIST ACTORS

摘要

The International Court of Justice's decision in DRC v Uganda touches on, but fails to address, the circumstances under which a State has a right to use force in self-defence against non-State actors. In particular, the Court holds that, because the attacks carried out by anti-Ugandan rebels operating from the Democratic Republic of Congo's (DRC) territory are not attributable to the DRC, Uganda has no right to use force in self-defence against the DRC. The separate opinions in DRC v Uganda lament the Court's failure to take the opportunity to address the right to act in self-defence against non-State actors - an issue of such obvious importance to the international community in an age of terrorism. As will be examined below, there are arguably good reasons - on the facts of the case - for the Court's refusal to pronounce itself on the matter. Furthermore, its decision need not be read as absolutely precluding a use of force in foreign territory in response to armed attacks by non-State actors. The Court's continued refusal to engage the issue, however, has resulted in scholars taking extreme positions regarding the right to use force in self-defence against non-State actors - either reading the Court's jurisprudence as requiring that armed attacks always be attributable to a State before they give rise to a right to use force in self-defence in foreign territory (or supporting a similar position), or arguing that there is an emerging right under international law to use force in self-defence directly against non-State terrorist actors, irrespective of the territorial host State's non-involvement in the terrorist attacks.