Acts of War and the Right to Self Defence in International Law – What are States bound by?

Conventional definitions of war are insufficient in the face of increasing global terror. These definitions must be revisited to provide states with the appropriate means to protect themselves against such acts of aggression.

by Manasa Venkataraman (@nasac)

Recent global events raise many important questions about what constitutes an “act of war”, and what actions a nation-state is authorized to take in response to armed aggression. International law, the legitimizing force behind international relations contains interesting, and often overlapping, parameters to determine whether an action constitutes war and whether a sovereign nation is allowed to use armed force against such attacks.

It is interesting to note that for a system that was built to ensure global peace, the term “acts of war” has not been defined by the United Nations. Various authors of international law, nevertheless, have defined war[1] as containing certain ingredients such as: (i) the use of armed force by one state against another; (ii) the disruption of international peace; and (iii) the imposition of the victorious state’s conditions of peace upon the defeated state. Although it does not throw light on what an “act of war” means, the United Nations General Assembly Resolution 3314 defines an “act of aggression” as a crime against international peace, and acknowledges that such an act gives rise to international responsibility.

Excluding non-state actors from the definitions of war and aggression limits their application considerably, in the current global system. A number of questions arise from such a limited categorization: Do attacks by non-state actors against another nation constitute war? What protections are available to the attacked state? Do such wrongs give rise to “international responsibility” or “state responsibility”? How does one determine whether the non-state actors were sponsored by their own country? As it turns out, the answers to these questions vary considerably.

It is evident that newer modes of warfare are emerging in a changing global power structure. This is why, over the years, with the effects of acts of aggression by non-state actors being felt globally, it has become necessary to revisit what amounts to war. Mary Kaldor, in her work “New and Old Wars” states that “new wars” are characterized by a mixture of state and non-state aggressors. The end goal of such acts are political, rather than physical; and that identity politics forms the basis of such actions. In her commentary, Kaldor also insists that the solutions to “new wars” must also be novel.

In conventional rules of international warfare, the unjustified use of force by one sovereign state against another has been termed to constitute war, nevertheless, in times where attacks by non-state actors is increasing, it appears necessary to modify this definition. Including attacks by non-state actors within the definition of war is important as it allows the wronged state to redress these wrongs with equivalent use of force – a justification known as “state responsibility”.

Under the prevailing system, it is Article 51 of the Charter of the United Nations that gives sovereign states the right to self-defence in response to armed attack against them. Owing to its vagueness, Article 51 has been interpreted to include armed attacks carried out against a state by non-state actors as well, furthermore, the International Court of Justice has reiterated that state sponsored terrorist attacks legitimise an armed defence response. However, the self defence exercised by a state must be proportionate to the initial aggression against it. Further, certain decisions of the International Court of Justice lay down that the right of self-defence under Article 51 is exercisable against non-state actors only in the event the attacking entity is harboured by a sovereign state. Sovereign states also have the inherent right to redress wrongs done to them by international delinquents – the right of states to redress such grievances is known as “state responsibility”.

However, geopolitics is not so straightforward. While international law sets out the principles on the basis of which interactions between states are to be developed, and grants states the right to defend themselves against armed aggression, the reality is often influenced by diplomatic and political constraints.

Manasa Venkataraman is a Research Associate at the Takshashila Institution and tweets from @nasac

[1] See: J. G. Starke’s definition of war in An Introduction to International Law; William Edward Hall’s definition of war in Driefonte