Advisory Opinion on The Wall - International Court of Justice - Article 51 of the United Nations Charter and the right of self-defense

Extract

[...] This criterion has never been formally recognised by the ICJ, but in a Resolution 2249 of 2015, the Security Council called to take "all necessary measures" against the Islamic State on Syria and Iraq's territory that had fallen under their control, which could be seen as an opening towards the exercise of self-defence against the organisation in these places. This position could thus foreshadow a progressive legal enlargement of the notion to non-state actors in the future, despite the States' lack of "effective control" on them. [...]

[...] In such cases, the ICJ faced the question of qualifying the act as an armed attack or not and ended up with the criterion of State control over the actor to solicit the right to self-defence. In fact, in Nicaragua the court affirmed that the international legislation on the use of force applied to non-state actors under the "effective control" of a country, thus implying that an armed attack might be identified in that situation. This hypothesis has later been confirmed by the Genocide case in 2007, in which the ICJ also precises the framework for the response to proxies' acts of force. [...]

[...] This exclusion of non-state actors can find an explanation in the light of the past century's context, with the establishment of a priority to limit the force demonstrations to maintain global peace. This thinking process led to the establishment of article of the UN Charter prohibiting the use of force. The text also gives the exceptions to this absolute principle, the use of force being tolerated in case of enforcement action decided by the UN Security Council (UNSC) or in case of self-defence: it seems logical, in that sense, that the application of the notion ruled by article 51 must be strictly limited to remain an extraordinary measure. [...]

[...] Lubell, Fragmented Wars: Multi-Territorial military operations against armed groups (2017) 93 International Law Studies 215 Letter dated 23 September 2014 from the Permanent Representative of the United States of America to the United Nations, addressed to the Secretary-General Letter dated 10 December 2015 from the Chargé d`affaires a.i. of the Permanent Mission of Germany to the United Nations addressed to the President of the Security Council Res 2249, UN Security Council (S/2015/890) Rt Hon J. Wright, QC MP, The modern law of self-defence (2017), International Institute for Strategic Studies A. [...]

[...] However, some States' practice reveals a larger reading of the notion, which might be necessary in the light of the modern context of conflicts' complexification. This phenomenon might therefore push the ICJ to revise its vision in the future, with precaution still not to permit interventions in other States at every opportunity. Bibliography: United Nations Charter 1945, Chapter article paragraph 4 United Nations Charter 1945, Chapter article 51 Definition of Aggression, United Nations General Assembly Resolution 3314 (XXIX) B. Simma, D.E. [...]