State practice on the use of force against non-state actors : generating new rules of customary international law

Abstract

This research examines how states react to attacks by non-state actors from outside their territories since the coming into force of the Charter of the United Nations in 1945. Article 2 (4) of the Charter prohibits states from resorting to force in their international relations, a rule which has crystalized into a customary norm among states. This prohibition notwithstanding, states can use force in self-defence in response to an ‘armed attack”, a term understood to denote acts of states only. Notwithstanding, states have over the years resorted to forceful measures against non-state actors within the territories of other states apparently without satisfying the attribution requirement. Such practices, though not new, have gathered considerable momentum since the 9/11 terrorists’ attacks on the United States of America leading to claims from states and authors alike, of the emergence of new customary rules. Considering the notoriety of the prohibition against the use of force in international law, this research investigates these claims. Using both doctrinal and non-doctrinal methodologies, the research surveys the relevant practices of states and the opinion of publicists on the issue. It finds that the 9/11 attacks have had tremendous effect on the way states and publicists react to and perceive attacks by non-state actors. Some states have claimed the right to self-defence against non-state actors without attributing their actions to the host-state. Such practices however, have been controversial and inconsistent, meeting stiff opposition from many states. Considering the requirements for the crystallization of new customary rules in international law therefore, the research finds that claims to new customary rules are premature, and not reflective of the general and uniform practices of states. It recommends among other things, that the UNSC fulfil its mandate of preserving global peace and security by taking timely and appropriate measures against all threats to international peace and security, including attacks by non-state actors and illegal use of force by powerful states.