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  • The Non-State Actor Threat. An Examination into the Legitimate Actions Available to a 'Victim State' Threatened by a Non-State Actor Operating From a Foreign Territory
  • Meistara
  • Terrorism at the beginning of the 21st century has prompted the international legal community to revise its position on non-state actors and the use of force in international law. The state-centric nature of the international community has in recent years been faced with non-state actors on such a scale as to demand a response from states and forcing them to take defensive measures against the non-state actors which otherwise ought to be dealt with under the domestic legal system of the state from which they operate.
    Non-state actors are a new threat to international peace and security which can take various forms such as rebel groups, terrorist groups and even pirates. Although the actors are not new per se their threat level is of a new proportion.
    As the traditional measures against non-state actors are domestic measures, certain requirements must be met in order for a state to take international measures in defence of a non-state attacker. These requirements establish the classification of a ‘victim state’ which allows for the state to resort to either non-forceful or forceful measures under international law.
    The non-forceful measures ought always to be resorted to first, in accordance with basic principles of international law for maintaining peace and security in the international community and that of a general prohibition of force. As the nature of non-state actors can influence the available peaceful options to a ‘victim state’ as well as the fact that the peaceful measures are often time consuming, the question of legitimacy of forceful measures against non-state actors frequently becomes crucial.
    Whether or not forceful measures can be used against non-state actors is dependent on various factors. These measures are exceptions under international law and must be considered in that respect, but international law does allow them under certain circumstances, such as with UN Security Council authorization as well as when it is justified by self-defence. While the UN Security Council authorization for use of force against a non-state actor is primarily dependent on whether this actor poses a threat to international peace and security, the question of self-defence is a more complex one.
    The prerequisites of self-defence are that an armed attack has occurred, and this thesis proposes that this prerequisite can be fulfilled by a non-state attacker without any attribution to another state. This is supported by interpreting relevant provisions of the UN Charter as well as examining recent state actions and judgements of the International Court of Justice relating to this issue. The fact is that a distinction needs to be made on the issue of identifying the occurrence of an armed attack and that of the subsequent exercise of self-defence. While an armed attack needs no attribution or connection to a state and can be executed fully by a non-state actor, a state may not exercise self-defence against the non-state actor in a foreign territory unless certain preconditions are met. For example, a connection between the non-state actor and the state from which the actor operates or the inability (thus resulting in a necessity argument) of such a state to prevent its territory to be used as a basis for the planning or execution of an armed attack against a ‘victim state’.
    As recent events are examined and in order to comprehensively address the issues of non-state actors as threats and the available legitimate actions a ‘victim state’ has, it seems that international law needs to clarify these issues through co-operative measures and reach a consensus on the legal issues of non-state actors. In the absence of clear information, international law is left with rules which essentially were created for inter-state relations but need to be applied to non-state and state interactions because of pure necessity, since the threat of non-state actors in the 21st century has reached a level which the domestic legal system mostly cannot deal with.

  • 4.5.2009

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