International Law

ILP WP 05/01

PRINCIPLES OF INTERNATIONAL LAW ON THE USE OF

FORCE BY STATES IN SELF-DEFENCE

This publication contains:

I Principles of International Law on Self-Defence
II The list of participants
III The responses to the Questionnaire

Elizabeth Wilmshurst
October 2005

Chatham House is an independent body which promotes the rigorous study of international questions and
does not express opinions of its own. The opinions expressed in this publication are the responsibility of the
authors.
© The Royal Institute of International Affairs, 2005
This material is offered free of charge for personal and non-commercial use, provided the source is
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1
 Introduction
The purpose of this study is to provide a clear statement of the rules of international
law governing the use of force by states in self-defence. The rules are being
challenged in the light of what are seen as new threats from terrorism and from the
possession of weapons of mass destruction, and there has been controversy as to
whether they need revision or redefinition. The study was prompted by various
statements and actions by states, recent developments in the United Nations and by
decisions of the International Court of Justice.

In the resolution incorporating the Outcome of the World Summit in September 2005
the UN General Assembly affirmed that the relevant provisions of the UN Charter are
sufficient to address the full range of threats to international peace and security, and
has reaffirmed the authority of the Security Council to mandate coercive action to
maintain and restore peace and security. But the resolution did not deal with the
question as to when it is lawful for a state to use force in the exercise of its inherent
right of self-defence.

This study was undertaken because we believe that, in the light of current
challenges, it is of importance to world order that there be clarity and understanding
about the relevance and application of international law to the use of force by states.

A questionnaire was sent to a small group of international law academics and

practitioners and international relations scholars in this country, asking for their views
on the criteria for the use of force in self-defence. At a meeting at Chatham House
the participants discussed a paper which had been drawn up on the basis of the
responses to the questionnaire.

Following that meeting a set of Principles was prepared by the International Law
Programme at Chatham House. They are put forward here with the intention of
contributing to discussion and comment. Readers are encouraged to communicate
any views and reactions. Depending upon the outcome of this stage of the study,
further meetings may be held and the Principles further refined.

While the Principles are intended to give a clear representation of the current
principles and rules of international law, the law in this area is politically and legally
contentious, and the interpretation of the Principles and their application to particular
cases will rarely be without difficulty.

The Principles do not necessarily represent the views of all the participants in
the study.

Comments are invited on the Principles. Any comments should be addressed

to Iwona Newton at Chatham House ([email protected]).

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 Participants

Sir Franklin Berman QC is a barrister at Essex Court Chambers and Visiting

Professor of International Law at the Universities of Oxford and Cape Town; formerly
Legal Adviser at the Foreign & Commonwealth Office.

Daniel Bethlehem QC is Director of the Lauterpacht Centre for International Law at

the University of Cambridge, and barrister at 20 Essex Street, London.

James Gow is Professor of International Peace and Security, and Co-Director of the
International Peace and Security Programme, King’s College London.

Christopher Greenwood QC is Professor of International Law at the London School

of Economics and Political Science, and a barrister at Essex Court Chambers.

Vaughan Lowe holds the chair of Chichele Professor of Public International Law, is
a Fellow of All Souls College, University of Oxford, and a barrister at Essex Court
Chambers.

Sir Adam Roberts holds the chair of Montague Burton Professor of International
Relations and Fellow of Balliol College, University of Oxford.

Philippe Sands QC is Professor of Law and Director of the Centre of International

Courts and Tribunals at University College London, and is a barrister at Matrix
Chambers.

Malcolm Shaw QC is Sir Robert Jennings Professor of International Law at the

University of Leicester, and is a barrister at Essex Court Chambers.

Gerry Simpson is a Reader in the Department of Law at the London School of

Economics and Political Science.

Colin Warbrick is Professor of Law at the University of Durham.

Nicholas Wheeler is Professor in the Department of International Politics at the

University of Wales, Aberystwyth.

Elizabeth Wilmshurst is senior fellow, international law, at Chatham House.

Sir Michael Wood is the Legal Adviser at the Foreign & Commonwealth Office.

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 PRINCIPLES OF INTERNATIONAL LAW ON SELF-DEFENCE

The Charter of the United Nations prohibits the use of force against another
state except where the Security Council has authorised the use of force to
maintain or restore international peace and security; and where a state is
exercising its inherent right of individual or collective self-defence recognised
by Article 51 of the Charter1.

The principles set out below are intended to provide a clear statement of
international law regarding the inherent right of self-defence.

All the principles need to be read together.

Even in a case where a state is legally entitled to use force, there may be
reasons of prudence and principle not to exercise that right.

1. The law on self-defence encompasses more than the right to use force in
response to an ongoing attack.

Article 51 preserves the right to use force in self-defence “if an armed attack occurs”,
until the Council has taken the necessary measures. On one view, the right is
confined to circumstances in which an actual armed attack has commenced.2 But
the view that states have a right to act in self-defence in order to avert the threat of
an imminent attack - often referred to as ‘anticipatory self-defence’3 - is widely,
though not universally, accepted.4 It is unrealistic in practice to suppose that self-
defence must in all cases await an actual attack.
1
The question whether there is also a right to take action in exceptional circumstances of
humanitarian emergency, or to protect fundamental rights, is not dealt with here; nothing in
this paper can be regarded as prejudicing the question one way or the other. Although Article
51 mentions the right of collective self-defence, this study deals only with individual self-
defence.
2
The International Court of Justice (ICJ) expressly left open the issue of the lawfulness of a
response to the threat of an imminent armed attack in the Case concerning Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits, 1986 ICJ Rep. 14,
at para. 194). When the question of the existence of an armed attack featured in the Court’s
overall reasoning on the law of self-defence, it appeared before the treatment of the principles
of necessity and proportionality. The same framework was followed by the Court some 17
years later in the Oil Platforms Case (Case Concerning Oil Platforms (Islamic Republic of Iran
v. United States of America, 2003 ICJ Rep.) where it first investigated the existence of an
armed attack (paras. 61 to 64 and 72) before it turned to the application of the principles of
necessity and proportionality (paras. 73 and 74).
3
For the purposes of this document the term ‘anticipatory ‘ self-defence is preferred over ‘pre-
emptive’ self-defence, although the latter is also in current use, for example in the report of
the United Nations Secretary-General’s High-level Panel on Threats, Challenges and
Change: ‘A More Secure World:Our Shared Responsibility’ para.189.
4
The United Nations Secretary-General’s response “In Larger Freedom” to the high-level
panel report mentioned above states: “Imminent threats are fully covered by Article 51, which

4
The difference between these two schools of thought should not be overstated: many
of those in the first school take the view that an attack has commenced when there
are active preparations at an advanced stage, if there is the requisite intent and
capability; and many of those in the other school require not dissimilar conditions
before force in self-defence may lawfully be used in respect of an imminent attack.
Further, those who deny the right of anticipatory self-defence may accept that a
completed attack is sufficient to trigger a right to respond in anticipation of another
attack5.

The requirements set out in the Caroline case6 must be met in relation to a
threatened attack. A threatened attack must be ‘imminent’ and this requirement rules
out any claim to use force to prevent a threat emerging7. Force may be used in self-
defence only when it is necessary to do so, and the force used must be
proportionate.

2. Force may be used in self-defence only in relation to an ‘armed attack’

whether imminent or ongoing.

• The ‘armed attack’ may include not only an attack against a state’s territory,
but also against emanations of the state such as embassies and armed
forces.
• Force in self-defence may be used only when: the attack consists of the
threat or use of force (not mere economic coercion, for example); when the
attacker has the intention and the capability to attack; and the attack is
directed from outside territory controlled by the state.
• In the case of a threatened attack, there must be an actual threat of an
attack against the defending state itself.

The inherent right of self-defence recognised in Article 51 of the Charter of the United
Nations “if an armed attack occurs” forms an exception to the general prohibition
against the use of force under Article 2(4).

safeguards the inherent right of sovereign states to defend themselves against armed attack.
Lawyers have long recognised that this covers an imminent attack as well as one that has
already happened” (at para. 124). In the resolution adopting the World Summit Outcome the
UN General Assembly reaffirmed that “the relevant provisions of the Charter are sufficient to
address the full range of threats to international peace and security” and reaffirmed “the
authority of the Security Council to mandate coercive action to maintain and restore
internaitonal peace and security” but did not comment on the meaning of Article 51.
5
As in the Caroline incident, and in the case of the intervention in Afganistan in 2001, which
was categorised by the US and the UK as the exercise of the right of anticipatory self-defence
(see UN Doc. S/2001/946 and UN Doc. S/2001/947).
6
The exchange between the US and the UK agreed that there be “a necessity of self-
defence, instant, overwhelming, leaving no choice of means and no moment for deliberation”
and the use of force, “justified by the necessity of self-defence, must be limited by that
necessity, and kept clearly within it”.
7
See commentary for section 4, below.

5
For the purpose of Article 51, an armed attack includes not only an attack against the
territory of the State, including its airspace and territorial sea, but also attacks
directed against emanations of the State, such as its armed forces or embassies
abroad. An armed attack may also include, in certain circumstances, attacks against
private citizens abroad or civil ships and airliners.8 An ‘armed attack’ therefore is an
intentional intervention in or against another state without that state’s consent or
subsequent acquiescence, which is not legally justified.

An armed attack involves the use of armed force and not mere economic damage.
Economic damage, for example, by way of trade suspension, or by use of a
computer virus designed to paralyse the financial operations of a state’s stock
exchange or to disable the technology used to control water resources, may have a
devastating impact on the victim state but the principles governing the right to use
force in self-defence are confined to a military attack. A purely ‘economic’ attack
might however give rise to the right of self-defence if it were the precursor to an
imminent armed attack.

An armed attack means any use of armed force, and does not need to cross some
threshold of intensity.9 Any requirement that a use of force must attain a certain
gravity and that frontier incidents, for example, are excluded is relevant only in so far
as the minor nature of an attack is prima facie evidence of absence of intention to
attack or honest mistake. It may also be relevant to the issues of necessity and
proportionality. In the case of attacks by non-State actors, however, different
considerations may come into play (see section 6 below).

The term ‘armed attack’ requires the attacker to have the intention to attack. In the
Oil Platforms Case the ICJ made reference to this requirement when it inquired into
the question whether the US was able to prove that certain of Iran’s actions were
“specifically aimed” at the US or that Iran had “the specific intention” of harming US
vessels10. But to the extent that this may be read as suggesting that military attacks
on a state or its vessels do not trigger a right of self-defence as long as the attacks
are not aimed specifically at the particular state or its vessels but rather are carried
out indiscriminately, this part of the ICJ’s ruling in Oil Platforms has been criticised as
not supported by international law.

8
This study does not, however, deal with the rescue of citizens abroad, which raises different
issues.
9
There are statements by the International Court of Justice which suggest that there may be
instances of the use of force which are not of sufficient gravity as to scale and effect to
constitute an armed attack for the purpose of self-defence. (Nicaragua case, note 2, at
paras.191 and 195 and Oil Platforms Case,supra note 2, at paras. 51, 63-64 and 72.
But these statements are not generally accepted.
10
Note 2 above, at para. 64.

6
An armed attack is an attack directed from outside territory controlled by the State.
In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory11 the ICJ’s observations may be read as reflecting
the obvious point that unless an attack is directed from outside territory under the
control of the defending state the question of self-defence in the sense of Article 51
does not normally arise.
In the case of a threatened attack, there must be an actual threat of an attack against
the defending state itself, whether directed against that state or by an indiscriminate
attack.This is an aspect of the criterion of necessity. It addresses the question
whether it is necessary for the target state to take action.

3. Force may be used in self-defence only when this is necessary to bring an

attack to an end, or to avert an imminent attack. There must be no practical
alternative to the proposed use of force that is likely to be effective in ending
or averting the attack.

The criterion of necessity is fundamental to the law of self-defence12. Force in self-

defence may be used only when it is necessary to end or avert an attack. Thus, all
peaceful means of ending or averting the attack must have been exhausted or be
unavailable. As such there should be no practical non-military alternative to the
proposed course of action that would be likely to be effective in averting the threat or
bringing an end to an attack. Necessity is a threshold, and the criterion of imminence
can be seen to be an aspect of it, inasmuch as it requires that there be no time to
pursue non-forcible measures with a reasonable chance of averting or stopping the
attack.

Necessity is also a limit to the use of force in self-defence in that it restricts the
response to the elimination of the attack and is thus linked to the criterion of
proportionality. The defensive measure must be limited to what is necessary to avert
the on-going attack or bring it to an end.

11
Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, ICJ, 9 July 2004, at para. 139.
12
The criterion of ‘necessity’ if force is legally to be used in self-defence can be traced back to
the language of the Caroline formula:
“[i]t will be for … [Her Majesty’s] Government to show a necessity of self-defence, instant,
overwhelming, leaving no choice of means, and no moment of deliberation” and the action
must not be “unreasonable or excessive, since the act, justified by the necessity of self-
defense, must be limited by that necessity, and kept clearly within it.”
The ICJ held in the Nicaragua case (above note 2) that “the specific rule whereby self-
defence would warrant only measures which are proportional to the armed attack and
necessary to respond to it” was “a rule well established under customary international law”,
and re-affirmed this in its Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons (1996 ICJ Rep. 226)

7
In applying the test of necessity, reference may be made to the means available to
the state under attack; the kinds of forces and the level of armament to hand13 will
be relevant to the nature and intensity of response that it would be reasonable to
expect, as well as the realistic possibilities of resorting to non-military means in the
circumstances.14

4. A state may use force in self-defence against a threatened attack only if that
attack is ‘imminent’.

There is a risk of abuse of the doctrine of anticipatory self-defence, and it

needs to be applied in good faith and on the basis of sound evidence. But
the criterion of imminence must be interpreted so as to take into account
current kinds of threat and it must be applied having regard to the particular
circumstances of each case. The criterion of imminence is closely related to
the requirement of necessity.
• Force may be used only when any further delay would result in an inability
by the threatened state effectively to defend against or avert the attack
against it.
• In assessing the imminence of the attack, reference may be made to the
gravity of the attack, the capability of the attacker, and the nature of the
threat, for example if the attack is likely to come without warning.
• Force may be used only on a proper factual basis and after a good faith
assessment of the facts.

The concept of ‘imminence’ reflects the Caroline formulation of ‘instant,

overwhelming, leaving no choice of means, and no moment for deliberation’. In the
context of contemporary threats imminence cannot be construed by reference to a
temporal criterion only, but must reflect the wider circumstances of the threat.

There must exist a circumstance of irreversible emergency. Whether the attack is

‘imminent’ depends upon the nature of the threat and the possibility of dealing
effectively with it at any given stage. Factors that may be taken into account include:
the gravity of the threatened attack – whether what is threatened is a catastrophic
use of WMD; capability - for example, whether the relevant state or terrorist
organisation is in possession of WMD, or merely of material or component parts to be

13
This formulation leaves open the question whether greater mechanised force can be
justified by the reduction in risk to the lives of the defending State’s forces, a question which is
more normally dealt with by the rules of international humanitarian law.
14
In its decision in the Oil Platforms case (above note 2), the ICJ elaborated on the
”necessity”criterion. It held that “the requirement of international law that measures taken
avowedly in self-defence must have been necessary for that purpose is strict and objective,
leaving no room for any ‘measure of discretion’ ” (para.73). In practice of course the
assessment of the necessity of a particular action is far from straightforward, and can be
undertaken only on the basis of the facts available at the time, but with a good faith
assessment of those facts.

8
used in its manufacture; and the nature of the attack – including the possible risks of
making a wrong assessment of the danger. Other factors may also be relevant, such
as the geographical situation of the victim state, and the past record of attacks by the
state concerned.

The criterion of imminence requires that it is believed that any further delay in
countering the intended attack will result in the inability of the defending state
effectively to defend itself against the attack. In this sense, necessity will determine
imminence: it must be necessary to act before it is too late. There is a question as to
whether ‘imminence’ is a separate criterion in its own right, or simply part of the
criterion of ‘necessity’ properly understood. As an additional criterion however it
serves to place added emphasis on the fact that a forcible response in these
circumstances lies at the limits of an already exceptional legal category, and
therefore requires a correspondingly high level of justification.

To the extent that a doctrine of ‘pre-emption’ encompasses a right to respond to

threats which have not yet crystallized but which might materialise at some time in
the future, such a doctrine (sometimes called ‘preventive defence’) has no basis in
international law. A fatal flaw in the so-called doctrine of prevention is that it excludes
by definition any possibility of an ex post facto judgment of lawfulness by the very
fact that it aims to deal in advance with threats that have not yet materialised.

Each case will necessarily turn on its own facts. A forceful action to disrupt a terrorist
act being prepared in another state might, depending upon the circumstances, be
legitimate; force to attack a person who may in the future contemplate such activity is
not. While the possession of WMD without a hostile intent to launch an attack does
not in itself give rise to a right of self-defence, the difficulty of determining intent and
the catastrophic consequences of making an error will be relevant factors in any
determination of ‘imminence’ made by another state.

The determination of ‘imminence’ is in the first place for the relevant state to make,
but it must be made in good faith and on grounds which are capable of objective
assessment. Insofar as this can reasonably be achieved, the evidence should be
publicly demonstrable. Some kinds of evidence cannot be reasonably produced,
whether because of the nature or source, or because it is the product of interpretation
of many small pieces of information. But evidence is fundamental to accountability,
and accountability to the rule of law. The more far-reaching, and the more
irreversible its external actions, the more a state should accept (internally as well as
externally) the burden of showing that its actions were justifiable on the facts. And
there should be proper internal procedures for the assessment of intelligence and
appropriate procedural safeguards.

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5. The exercise of the right of self-defence must comply with the criterion of
‘proportionality’.
• The force used, taken as a whole, must not be excessive in relation to the
need to avert or bring the attack to an end.
• The physical and economic consequences of the force used must not be
excessive in relation to the harm expected from the attack.

In the Caroline formulation, the principle of proportionality was stated to require

“nothing unreasonable or excessive, since the act, justified by the necessity of self-
defence, must be limited by that necessity, and kept clearly within it.”

The ICJ has confirmed that it is a well-established rule of customary international law
that a use of force in self-defence must be “proportional to the armed attack and
necessary to respond to it.” 15

This requires that the level of force used is not greater than that necessary to end the
attack or remove the threat. As such it is another way of looking at the requirement of
necessity.

The proportionality requirement has been said to mean in addition that the physical
and economic consequences of the force used must not be excessive in relation to
the harm expected from the attack16. But because the right of self-defence does not
allow the use of force to ‘punish’ an aggressor, proportionality should not be thought
to refer to parity between a response and the harm already suffered from an attack,
as this could either turn the concept of self-defence into a justification for retributive
force, or limit the use of force to less than what is necessary to repel the attack.

The force used must take into account the self-defence operation “as a whole”. It
does not relate to specific incidents of targeting (which is a matter for international
humanitarian law). Thus, in the Oil Platforms Case, the ICJ stated that in assessing
proportionality, it “could not close its eyes to the scale of the whole operation”17.

15
Nicaragua case ( note 2 above), para.176; see also, para.41 of the Advisory Opinion
on the Legality of the Threat or Use of Nuclear Weapons (above note 12).
16
For example, the Attorney General stated in the House of Lords on 21 April 2004: “the force
used must be proportionate to the threat faced and must be limited to what is necessary to
deal with the threat.” (Lords, Hansard, col. 371).
17
Note 2 above, at para. 77.

10
6. Article 51 is not confined to self-defence in response to attacks by states.
The right of self-defence applies also to attacks by non-state actors.
• In such a case the attack must be large scale.
• If the right of self-defence in such a case is to be exercised in the territory
of another state, it must be evident that that state is unable or unwilling to
deal with the non-state actors itself, and that it is necessary to use force
from outside to deal with the threat in circumstances where the consent of
the territorial state cannot be obtained18.
• Force in self-defence directed against the government of the state in which
the attacker is found may be justified only in so far as it is necessary to
avert or end the attack, but not otherwise.

There is no reason to limit a state’s right to protect itself to an attack by another state.
The right of self-defence is a right to use force to avert an attack. The source of the
attack, whether a state or a non-state actor, is irrelevant to the existence of the right.
The ICJ Wall Advisory Opinion should not be read as suggesting that the use of force
in self-defence is not permissible unless the armed attack is by a state.19 There is
nothing in the text of Article 51 to demand, or even to suggest, such a limitation.20

This conclusion is supported by reference to the Caroline case; the criteria in

Caroline were enunciated in the context of a marauding armed band, not orthodox
state-to-state conflict.

State practice in this field, including the recent practice of the Security Council, gives
no support to the restriction of self-defence to action against armed attacks imputable
18
See note 22.
19
Note 11 above, at para. 139: “Article 51 of the Charter thus recognizes the existence of an
inherent right of self-defence in the case of armed attack by one State against another State.”
But the European Union statement made upon the adoption of General Assembly resolution
ES-10/18 (concerning the Wall Advisory Opinion) suggests that EU member states and the
other states associated with the statement would not accept the possible implication of the
Opinion that self-defence is not available unless the armed attack is by a state. “The
European Union will not conceal the fact that reservations exist on certain paragraphs of the
Court’s advisory opinion .We recognise Israel’s security concerns and its right to act in self-
defence.” The matter came up again in a recent case in the ICJ; the Court stated that in the
absence of attribution of the armed force to a State there is no right of self-defence against
that State. (Case concerning Armed Activities on the territory of the Congo (Democratic
Republic of the Congo v. Uganda)(Merits, 2005 ICJ Rep., at paras. 146,147)). In line with the
Wall Advisory Opinion this should not be read as prohibiting action in self-defence against
non-state actors as such.
20
While certain writers have argued that Article 51 concerns only responses to aggression
against another state, their argument based on the French text is not persuasive. True, the
French text of Article 51 uses the term aggression armée, and aggression is also the term
used in Article 39, but the French Government accepted during the debates on the definition
of aggression that aggression in Article 39 was not the same concept as aggression armée in
Article 51; further, the English, Chinese and Spanish texts of the Charter use different terms
for Articles 39 and 51.

11
to a state; indeed there is state practice the other way. The action against Al Qaeda
in Afghanistan in October 2001 (which was widely supported by states) was action in
self-defence of anticipated imminent terrorist attacks from Al Qaeda, not from the
Taliban. It was necessary to attack certain elements of the Taliban, in order to pre-
empt attacks from Al Qaeda. Security Council resolutions 1368(2001) and
1373(2001) support the view that self-defence is available to avert large-scale
terrorist attacks such as those on New York and Washington on 11 September
2001.21 So too do the invocations by NATO and the OAS of their respective mutual
defence obligations

The right of states to defend themselves against ongoing attacks, even by private
groups of non-state actors, is not generally questioned. What is questioned is the
right to take action against the state that is the presumed source of such attacks,
since it must be conceded that an attack against a non-state actor within a state will
inevitably constitute the use of force on the territorial state. It may be that the state is
not responsible for the acts of the terrorists, but it is responsible for any failure to take
reasonable steps to prevent the use of its territory as a base for attacks on other
states. Its inability to discharge the duty does not relieve it of the duty. But the right to
use force in self-defence is an inherent right and is not dependent upon any prior
breach of international law by the state in the territory of which defensive force is
used.

Thus, where a state is unable or unwilling to assert control over a terrorist

organisation located in its territory, the state which is a victim of the terrorist attacks
would, as a last resort, be permitted to act in self-defence against the terrorist
organisation in the state in which it is located22.

The same criteria for the use of force in self-defence against attacks by states are to
be used in the case of attacks by non-state actors, but particular considerations are
relevant.

21
It should however be noted that Security Council resolution 1368(2001) does not settle the
matter entirely, as in that case there was already significant evidence of a degree of
responsibility of a state (Afghanistan) for the continuing ability of the terrorists to carry out
attacks.
22
The ICJ Judgement in the Case concerning Armed Activities on the territory of the Congo
note 19 above, at paras. 146 and 147) implies that unwillingness or inability of a State to deal
with irregular forces on its territory is insufficient to create a right in self-defence against the
State. However, the Court does not answer the question as to the action a victim State may
take in the case of an armed attack by irregular forces, where no involvement of the State can
be proved. According to Judges Kooijmans and Simma the occurrence of an armed attack is
sufficient to create a right of action in self-defence, whether or not the actions are attributable
to a State (Separate Opinions of Judge Kooijmans, paras. 26-30 and of Judge Simma,
paras.7-.12).

12
The attack or imminent attack by non-state actors must be large-scale.23

For action in self-defence to be ‘necessary’, it must first be clear that measures of

law-enforcement would not be sufficient. To show the necessity of action against the
territory of another state not directly responsible for the acts of the non-state group
requires, inter alia, the demonstration that there is no other means of meeting the
attack and that this way will do so. Terrorist organisations are not easily rooted out by
foreign armed forces.
Where, therefore, the attack is not ongoing but imminent, the territorial state is
entitled to proceed in its own way against the group on its territory. In this context, the
requirement of ‘imminence’ means that action in self-defence by another state may
not be taken save for the most compelling emergency.
7. The principles regarding the right of self-defence form only a part of the
international regulation of the use of force.
• Measures taken in the exercise of the right of self-defence must be
reported immediately to the Security Council. The Council retains the
right and responsibility to authorise collective military action to deal
with actual or latent threats.
• Any military action must conform with the rules of international
humanitarian law governing the conduct of hostilities.

23
It is in this context (rather than that of an attack by a state itself) that it is relevant to
consider the ICJ’s remarks in the Nicaragua judgment (supra note 2). At para. 195 the Court
stated that: “… it may be considered to be agreed that an armed attack must be understood
as including not merely action by regular armed forces across an international border, but
also “the sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another State of such gravity as to
amount to (inter alia) an actual armed attack conducted by regular forces, “or its substantial
involvement therein. ” … The Court sees no reason to deny that, in customary law, the
prohibition of armed attacks may apply to the sending by a State of armed bands to the
territory of another State, if such an operation, because of its scale and effects, would have
been classified as an armed attack rather than as a mere frontier incident had it been carried
out by regular armed forces.” (italics added)

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