A never-ending tug-of-war: The inherent right of self-defense against non-state actors

Abstract

Within the scope of jus ad bellum, the right of self-defense attracts the greatest legal controversies. The long doctrinal debate surrounding it reveals the difficulty in determining its scope and precise limits during a unilateral military reaction against terrorist organizations. Here, we integrate this debate, arguing that this right is no longer only capable of being invoked in the event of an armed attack already perpetrated by a State, but it also does not have enough elasticity – without distorting it – to accommodate self-defense against terrorism. The cases of Afghanistan and Syria, on the one hand, reflect this controversy. On the other hand, they demonstrate the need for jus ad bellum to quickly adapt to reality. Therefore, we propose an intermediate position – the Unwilling and Unable doctrine, which allows the implemented system not to be distorted if it is properly defined, and if it is no longer indiscriminately invoked by States.