By Steven Young for GlobalJusticeBlog.com
Traditional states once were the only entities with the power to work extra-territorially in a significant manner. This power was manifest through diplomacy, economics, and the use and threat of force. The United Nations (U.N.) was formed in order to control states and the manner in which force was used internationally. Authors of the Charter of the United Nations envisioned a framework of an international community of nation-states. [i] In recent years non-state groups, such as ISIS, have entered into the international scene using force and the threat of force. There have, for millennia, been non-state violent actors; either as pirates of the oceans, or as rebels within their home states. The problem is that international law, given in treaties, custom, and case law, does not address independent non-state actors in a way that allows states to defend themselves from the non-state violent actors that ignore borders and cross into various states.
The International Court of Justice (ICJ), the judicial component of the U.N., could have hamstrung a states’ ability to defend themselves from attacks made by non-state actors when it ruled against Uganda in Dem. Rep. Congo v. Uganda, a decision that adversely affects International Law. This blog will discuss this case and how it has negatively impacted international law and a state’s options for self-defense.
According to the U.N. Charter, Article 51 a sovereign state can only use force if it is in self-defense of an armed attack, actions that must later be approved by the U.N. Security Council.[ii] Article 51 is essentially an exception to the prohibition on the use of force in U.N. Charter, Article 2(4).[iii] The ICJ determined in Dem. Rep. Congo v. Uganda that “attacks by a non-state actor that are not attributable to a State are not armed attacks within the scope of article 51, and therefore do not entitle the victim State to respond with force in self-defense.”[iv]
The ICJ’s determination that a non-state actor cannot be the perpetrator of an armed attack stems from the international legal doctrine of “attribution.” The doctrine of attribution holds states responsible for events and actions taking place within their borders. A contemporary example this would be that the Country of Iraq could hold the Country of Syria responsible for the attacks made by the Islamic State[v] in Iraq. This paradigm is no longer accurate. Stephanie Barbour argues: “attribution is impossible when non-State actors are located in a failed or weak state that is simply unable to control them.”[vi]
There is also a theory that failed, or partially failed, states are a fallacy and that powerful countries merely promote that idea in order to justify their extra-territorial power. There are examples of states in the midst of civil war that still retain sovereignty (the Khmer Rouge in Cambodia, and post-WWII China, etc.). There are, however, militant armed groups operating from states that are unable to control them. These groups should not be allowed to spread.
The International Law Commission’s Articles on State Responsibility state that, when actions are committed on the instruction or under the direction of a State; when the conduct involves elements of governmental authority; or in special cases of insurrectional movements, a state will be held responsible for the acts committed by organizations from that state.[vii] This is an attempt to encourage the countries of the world to take care of their own problems, and to recognize that if the government is involved in actions, the government will be responsible for the results of those acts. It is clear that the ILC wants to follow the trend of keeping states responsible for what happens within their borders.
In many cases non-state actors have the capabilities to engage in de facto armed attacks and the states in which they are based are unable to control them. In Dem. Rep. Congo v. Uganda, the Congolese Civil War had for years spread violence and ensnared the peoples of various neighboring countries including Uganda. The Democratic Republic of Congo (DRC) filed claims against Uganda to which Uganda entered counter-claims. The DRC claimed that Uganda had committed acts of armed aggression and was actively supporting rebel groups inside Congo. Uganda answered that it was acting in self-defense, giving three justifications that self-defense was necessary. First, Uganda argued that the combined forces of the DRC, the Sudan and anti-Ugandan rebels across the Ugandan border threatened Uganda’s sovereignty and security. Second, Uganda argued that the DRC directly commanded and supported the attacks perpetrated by the armed groups into Uganda. Third, Uganda argued that the DRC had allowed the use of its territory by armed groups as a base for attacks on Uganda.[viii]
The ICJ condemned Uganda’s response to the rebel attacks only when the response spilled over into DRC territory. The court did not find that the rebel attacks could be attributed to The DRC. This means that the requirements in Article 51 of the U.N. Charter were not met and Uganda was not justified in a forceful military occupation. The ICJ did not object to Uganda defending itself, but condemned Uganda’s offensive actions when they went over the border into the DRC. The application of the U.N. Charter and International law to this case failed Uganda and, though the ICJ’s statute states that the Court’s decisions do not establish precedent, the decision indicates what the international community sees as acceptable.
Uganda’s arguments failed because they could not explicitly prove the DRC was the source of the attacks. The DRC was in no position to control such large armed groups. Though the attacks originated in the DRC, that government was not the source of the attacks. But that does not mean that the DRC loses its sovereignty. The ICJ would have found for Uganda if one fact had been different. If, instead of attacking the Congo rebels within the DRC, Uganda had only fought them within Uganda, there would have been no issue. It was when Ugandan troops crossed the border that International Law began to frown on Uganda’s actions. It was because of sovereignty that Uganda lost, not because of the force they used. It is important to note that Uganda occupied the former rebel camps in the DRC after the fighting had finished. Perhaps the ICJ would not have condemned Uganda had they pulled their forces out immediately after combat operations ended. But it seems to be a dangerous tactic to withdraw from a rebel stronghold and give them an opportunity to reoccupy the area. Perhaps the ICJ should allow for a state, when attacked by non-state violent actors, to respond with force even into another state’s territory, as long as the home state is apprised of the situation and is given an opportunity to take over from the “invaders.”
It is because of violent non-state actors in areas like this that many countries are more inclined to accept the right to self-defense against non-state actors in spite of failing the test from Nicaragua v. United States[ix] (holding that a country’s right to self-defense can be triggered by an attack by a non-state actor as long as the conduct is imputable to another state). Iran[x], Russia[xi], and the United States[xii] have all asserted a right to self-defense against non-state violent actors. In some of those cases, the force was arguably used for too long. Defense is one thing, but nation-building is a different thing entirely.
Applying the ICJ’s decision in Dem. Rep. Congo to the events of today would hamstring the states that would be in the best position to defend against non-state armed actors. To hold Iraq or Syria accountable for being unable to stop acts and attacks committed by the Islamic State will not help those in the region defend themselves from a very real, albeit not state-sponsored, threat.
In the meantime, something needs to be done about non-state armed attacks. There are groups in the world, Islamic State, Al-Qaeda, that test the traditional boundaries of international law. International law would require a state-oriented solution to the problem of non-state actors, which could take the form of empowering the failed or struggling states where such groups are residing. Bolstering states to the point at which they may control, administer, and regulate their own sovereign territory on their own would go a long way toward lessening the reach and power of armed and belligerent non-state groups. The international community could fight non-state violent actors for states unable to do so on their own. Or we could teach, support, and stabilize states to enable them to fight non-state violent actors on their own. This approach would minimize the need for intervention, a disfavored and suspect international act. Unfortunately, the increasingly failed experiment in Iraq (and perhaps even Afghanistan) does not support this strategy.
Thomas Franck, a proponent of interventions that can be “illegal-but-legitimate,” indicates that the international community’s responses to unauthorized interventions show that the “jury of states has not rescinded Charter Article 2(4) or replaced it with an understanding that, now, anything goes.”[xiii] Frank claims that when a genuine humanitarian crisis is avoided because a state intervened “the international community does not sanction the intervening state as harshly as it would a normal breach of Article 2(4).”[xiv]
This indicates that the international community is prepared to give leeway to nations that need to defend themselves in situations that are not covered by the U.N. Charter. It seems that most actors in the international arena are willing to let states act positively and proactively for international stability; this, however, only indicates that customary law is changing and that in international legal decisions require that treaties, such as the U.N. Charter, take precedence over custom.
International Law needs to adapt to modern circumstances. Individual states need to be free to defend their sovereignty from enemies that are not states. Currently, individual states may not pursue all options in an effort to hold others responsible for attacking or threatening their territory because the current position of international law is that a state defending itself from a non-state threat could be guilty of violating the U.N. Charter, and subject to punishment at the discretion of the U.N. Security Council.
Steven Young is a is a JD Candidate, Class of 2016. Young’s entry to the GlobalJusticeBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.
[i] The U.N. Charter only allows for states to be members, and the decisions it makes are for the states included. See U.N. Charter Chapter II, Article 4, “1. Membership in the United Nations is open to all other peace-loving states….”
[ii] See U.N. Charter, Chapter VII, Article 51.
[iii] “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
[iv] Stephanie A. Barbour, Zoe A. Salzman, “the Tangled Web”: The Right of Self-Defense Against Non-State Actors in the Armed Activities Case, 40 N.Y.U. J. Int’l L. & Pol. 53 (2008), see Dem. Rep. Congo v. Uganda, 2005 I.C.J. 1, P 2 (Dec. 19).
[v] Though they are a self-proclaimed “Islamic State,” their statehood is not recognized in the international community.
[vi] Id. at 83.
[vii] The Articles on the Responsibility of States include: (i) acts carried out on the instructions of a State organ or under its direction or control, (ii) conduct involving elements of governmental authority, carried out in the absence of the official authorities; (iii) in the special case of responsibility defined circumstances for the conduct of insurrectional movements and; (iv) in cases of conduct not attributable to the State under one of the earlier articles which is nonetheless adopted by the State, expressly or by conduct, as its own.” Draft Articles on the Responsibility of States, U.N. GOAR, 56th Sess., Supp. No. 10, art. 50, U.N. Doc A/56/10 (2001).
[viii] See, e.g. Counter-Memorial Submitted by the Republic of Uganda, Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), PP 52-53 (Apr. 21, 2001), (justifying Uganda’s troop placements in Congo as necessary against further incursion by the rebels into Uganda).
[ix] Nicaragua v. United States  ICJ Rep 14, para 195
[x] Cf UN Doc. S/1999/781, at 141-142, where Iran justified its cross-border incursions into Iraq
[xi] See Id., at 194 (where Russia asserted the right to respond extraterritorially, by force, to Islamist terror networks).
[xii] Cf UN Doc. S/1998/780, US invoked Article 51 to justify bombing Al Qaeda bases in Sudan and Afghanistan.
[xiii] Thomas M. Franck, Interpretation and Change in the Law of Humanitarian Intervention, in Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, at 230.