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This chapter examines the conditions and rules attached to the exercise of self-defence, with particular reference to circumstances involving non-state actors. The requirement of necessity is shown to have added importance in measures against non-state actors. Also examined are the question of a threshold for an attack to be considered an armed attack triggering self-defence, and the concept of accumulation of attacks. The possibility of pre-emptive or anticipatory self-defence against non-state actors is analysed, as is the proportionality of self-defence.

This chapter begins the examination of whether international humanitarian law is an appropriate legal framework that can be applied to extraterritorial force against non-state actors. This includes both the possibilities of such measures being categorised as international armed conflict and non-international armed conflict. The notion of non-international conflicts as including extra-territorial circumstances is considered, as are the criteria for determination of such conflicts, including threshold of violence and identification of the parties to the conflict.

This chapter analyses the question of whether self-defence as understood in international law, encompasses the possibility of using extraterritorial force against armed groups abroad. It examines the prohibition on the use of force, and whether the concept of ‘armed attack’ as appears in the rules of self-defence, includes attacks by non-state actors. The chapter also analyses the impact on this issue caused by the potential links between the non-state actor and the state in which the group is located.

The UN Charter regulates the use of force by states. It permits states to use armed force to enforce a limited set of rights under international law. Principally, states may use force in individual or collective self-defense against a significant armed attack. Even in such a case, force may only be used against the state responsible for the armed attack and only to the extent necessary and proportional to the goal of defense. These rules limit the use of major military force to respond to terrorism. The coalition liberation of Kuwait in 1991 is an example of the lawful use of force in self-defense. The coalition use of force against Iraq in 2003 violated the law. International law clearly prohibits uses of force to pre-empt or prevent threats.

This chapter utilises the analysis conducted throughout the book, and applies it in the context of two cases. The first is the conflict between Israel and the Hezbollah in the summer of 2006. The second is the targeted killings conducted by the US in Yemen and Pakistan. The rules of the ius ad bellum are examined, as are the rules regulating the use of force, whether human rights law or international humanitarian law. The chapter concludes with a summary of the analysis and identification of the challenges yet to be resolved.

This Chapter discusses how the UN Charter’s provisions on ius ad bellum apply to cyber operations. It explores if a cyber operation amounts to a ‘use of force’ and is thus prohibited by Article 2(4) of the UN Charter and its counterpart in customary international law. It then discusses whether the state victim of a cyber operation can invoke the right of self-defence by cyber or kinetic means against it: to this purpose, it establishes under what conditions a cyber operation amounts to an ‘armed attack’ and the legal requirements for the reaction in self-defence, along with the specific problems arising in connection with their application in the cyber context and the standard of evidence required. Remedies against cyber operations below the level of armed attack are then analysed as is the role the UN Security Council can play in relation to cyber operations under Chapter VII of the UN Charter.

Chapter 2 focuses on the meaning and content of necessity. It argues for the first time that there are two different ‘types’ of necessity. In so doing, this author proposes a novel taxonomy to distinguish between them. This distinction addresses, and better explains, the two principal and distinct concerns of necessity that are reflected in state practice, International Court of Justice jurisprudence and scholarship: (a) is military force required at all in the circumstances (an issue of ‘general necessity’), and (b) if so, where must such force be directed (an issue of ‘specific necessity’)? Without general necessity, the applicability of both specific necessity and proportionality is moot. Drawing on core principles of international humanitarian law, Chapter 2 provides a clearer and more workable understanding of necessity that highlights both the weaknesses in, and opportunities for, its operation.

This chapter examines the inherent right of states to self-defence under Article 51 of the UN Charter as part of the collective security process and one of its valid causes of action. After examining the parameters of individual state self-defence, such as the ‘armed attack’ requirement under Article 51, Chapter 6 proceeds to examine the parameters of the Security Council's interference with a defensive action and limits thereon. After this the parameters of collective self-defence are examined, both under the UN Charter and as part of regional security systems, focusing on constituent instruments and practice of the Arab League, OAS, ECOWAS, SADC, EU, and NATO.

The interplay between law and rhetoric forms an important backdrop for analyzing international legal norms governing state response to cyber threats. First, the term “cyberwar” or “cyberwarfare” is used to connote a wide range of actual and potential cyber activities or threats across a broad spectrum of activity. This chapter highlights the consequences of “war” rhetoric in the cyber realm, with specific reference to lessons from the past decade of counterterrorism. It then analyzes the consequences of the term “cyber attack,” focusing on both the jus ad bellum concept of “armed attack” and the law of armed conflict definition of “attack,” particularly with regard to blurring the notion of “attack” into one unspecified and extensive term conflating two or more legal concepts. Each of these results has significant ramifications for the application of international law, the preservation of the international system, and the protection of persons during times of conflict.

This chapter discusses the debate that surrounded the Bush administration’s insistence that the 9/11 attacks gave rise to a state of armed conflict and its argument that the norms informing the state’s right to use force in self-defence had to be adapted. It discusses how these arguments informed the use of force in Afghanistan and Iraq and demonstrates how the Obama administration responded by refocusing US policy on the former. Continuity in policy exists to the extent the Obama administration argued, in the context of its use of Predator drones to target terrorists, that the US was at war with al Qaeda. It also argued that the authority to use force was not limited to ‘hot’ battlefields like Afghanistan.

Proportionality is one of the most important civilian protection rules in the Law of Armed Conflict (LOAC). In an era when combat almost always occurs in areas with substantial civilian populations, the proportionality rule is critical to protecting civilians and civilian property from the incidental and collateral consequences of attacks directed at otherwise lawful targets. The proportionality rule, however, prohibits attacks against otherwise lawful military objectives only when the attacker anticipates that civilian casualties or destruction to civilian property will be excessive in relation to the concrete and direct military advantage anticipated from the attack. Application of the proportionality rule has triggered ongoing debates over the meaning of its constituent terms: What is a military advantage? How is military advantage to be valued? What qualifies as a concrete and direct advantage? When does the knowing infliction of civilian harm qualify as excessive? Considering criminal accountability adds another layer of complexity: What is the proper standard of assessing criminal responsibility based on a violation of this obligation? This chapter explores the relationship between the duty of obedience and the implementation of the proportionality obligation at the tactical level. Given that deliberate attack planning and dynamic targeting arise in different operational contexts, each requires a different implementation focus.

This chapter reports on the legality of action against imminent threats from the armed forces of a state just outside territorial waters. It consists of many references to ‘resort to force’ or ‘the use of force’, and such terms have been employed in Article 2, paragraph 4, of the United Nations Charter and in other important instruments. Questions of defence in reaction to aerial intrusions are also considered. In addition, it deals with some considerations of a general nature relating to the concept of armed attack and the mechanics of attack, its beginning, and the quantum of force employed. It is stated that a naval force of a state which had stated its intention to attack, approaching territorial waters, might be regarded as offensive and intercepted on the high seas.

This chapter addresses how the international legal authority for nations to resort to military force to protect their security interests—generally known as the jus ad bellum—impacts use of force against al-Qaeda and associated forces. The chapter explains how traditional notions of national and collective self-defense focused on threats posed by other States evolved to address the threat posed by transnational nonstate groups. The chapter reviews U.S. interpretations of this law and explains how these interpretations frame the legal authority for contemporary counter-terror military operations in various locations around the world. It also discusses the role of the United Nations, specifically its Charter prohibiting the use of force by States and the exceptions to that prohibition.

While the humanitarian benefits of precautions undertaken to protect civilians during attacks are readily apparent, the operational and legal costs of precautions in the attack are less acknowledged. This chapter traces the nearly simultaneous growth of modern military information technology and law-of-war precautions. It showcases an array of benefits and costs of advances in military information technology and highlights underappreciated but persistent obstacles to situational awareness and decision making in military operations. It then traces the development by States, and the expansion and refinement by private commentators, of an international legal obligation to take humanitarian precautions in attacks. Finally, it identifies operational costs associated with precautions as free-standing international legal obligations. This chapter advises, in light of enforcement competencies and informational realities, that States reexamine precautions and temper public expectations concerning States' willingness and ability to undertake humanitarian precautions as they consider future development of the international law of war.

Following the 2015 Paris attacks, one of the most discussed issues is whether the Paris incidents constitute an ‘armed attack’ requisite to trigger the right of self-defence in light of the wording of Article 51 of the UN Charter of 1945. Indeed, should the responses of the Member States to the Paris attacks, activating the mutual assistance clause, be seen as a move towards the formation of a new customary rule reshaping the content of the right of individual or collective self-defence in accordance with Article 51 of UN Charter and customary law? Or should that invocation of Article 42 (7) TEU be considered a violation of the UN Charter law of self-defence? This chapter examines the textual and contextual elements of Article 51 of the UN Charter and the practice of States since then, mainly in the context of the activity of the UN Security Council. After a careful examination of those elements, it concludes that if it can be said that the existing rule in international law in both conventional and customary law allowing states to have recourse to the use of force in self-defence can only be legally exercised in the presence of an armed attack committed by a state, it can be argued that the current practice of states appears to be heading in another direction. For the drafters of Article 51 of the UN Charter the right of self-defence was already ‘inherent’. If they had been in the current situation, they may have extended this right to cases of major terrorist attacks. In view of this context, the invocation of Article 42 (7) TEU in response to a serious terrorist attack, like those in Paris in November 2015, cannot be considered a violation of Article 51 of the UN Charter. Many of the EU Member States are prepared to entertain a new interpretation of that provision, at least that portion which respects the scope of the ratione personae.

This chapter explores the consequences for effective discourse about the Law of Armed Conflict (LOAC) compliance of new technologies that intentionally or effectively mask the effects of an attack, the location or identify of the attackers, or even the very existence of an attack during armed conflict. The emergence of new weapons technologies that hinder or eliminate our ability to see the effects of attacks, to make the necessary connections between cause and effect, or to even identify the existence of an attack, may well erode the current trend towards the use of effects-driven, outcome-based analysis, which, although incorrect as a matter of law, nonetheless has captured attention. Examining how legal compliance can or would be assessed in such situations of new technologies is therefore useful to help enhance both implementation and analysis of the law. The chapter first frames the problem that new technologies may pose for assessing LOAC compliance, highlighting what may be, in essence, a new “effects problem.” These problems include situations where the effects of an attack are unclear or cannot be seen at all, where the connection between the weapon or attacker and the effects cannot be identified, and where a harm may occur but it is unclear or impossible to tell that there was an attack. The chapter then addresses the consequences of this potential new “effects problem,” examining the challenges of legal analysis in the absence of externally identifiable information about what happened, who suffered what effects, or who launched what type of weapon or attack. In addition, the chapter seeks to identify pressure points for LOAC analysis in the context of new technologies that place stressors on the traditional tools and touchstones of legal analysis.

It is almost trivial to observe that the law applying to modern armed conflicts is full of complexities. Such complexities are, after all, the bread and butter of legal academics, who have produced mountains of books and articles on the various relevant topics, but the extent of these complexities can be overstated. While legal academics debate the finer points of the interaction between international humanitarian law (IHL) and international human rights law (IHRL), in the majority of today’s armed conflicts the law is reasonably practical and clear. It might not be complied with, but that is not because of its supposed complexity or lack of clarity. If, for example, the parties to armed conflicts with the highest cost in human lives and property (e.g., in Syria or Yemen) observed only the bare fundamentals of the principle of distinction, the world would be spared much suffering. Noncompliance has little to do with the law’s complexity. But complexity is nonetheless a major feature of a subset of modern armed conflicts, especially those involving foreign intervention by Western powers. The purpose of this chapter is to clarify our understanding of how complexity works, where it comes from, and how it is managed. To do so, this chapter first develops two themes: the multiple causes of complexity and the decentralized system for managing this complexity. These themes are then explored in more detail in the context of the law on the use of force, or jus ad bellum, IHL, and IHRL.

This chapter analyses one of the core norms of international law under the two-pillar standard of thin justice—sovereignty norms, the critical rules that ban the use of force and intervention by one state in another's internal affairs. It first considers the UN Charter's prohibition on the use of force and the exception to it for a state's self-defence in response to an armed attack. It then scrutinizes claims by actors to expand or contract the norm of self-defence, by allowing states to respond to attacks by non-state actors such as transnational terrorists or to respond before an armed attack if a state would suffer grave harm by waiting to react. As for non-intervention, that norm will prove more limited than some have argued insofar as it does allow for many non-coercive transborder actions by states to influence other states. The chapter explores the justice of those limits, evaluates proposals for greater or fewer limits, and addresses some important ways in which the law has changed over time in a way that shows a greater concern for human rights.

When does foreign election interference via cyberspace violate U.S. sovereignty, and when do such violations warrant a response? When do violations of sovereignty constitute “armed attacks” or “acts of war”? This chapter posits triggers for discerning such violations of sovereignty. The rough determining factor ought to be whether activities in cyberspace were those of an authorized user. Malicious cyberspace operations that do not involve unauthorized activity should not be considered a violation of sovereignty (though they may be politically concerning). But any unauthorized state activity in another state’s networks (e.g., change of code or unauthorized access) ought to be considered a violation of sovereignty. While the U.S. Congress has the authority to “declare” war, what constitutes an “act of war” remains the discretion of the U.S. commander in chief and is almost entirely a political assessment. There is no defined legal or technical trigger to discern a cyberspace operation as an “act of war,” though something as simple as an information operation that caused mass rioting and death could conceivably be called an act of war (such as claiming the U.S. government created and disseminated the coronavirus). Notably, no cyberspace operation has to date been declared an act of war by any U.S. president.

This chapter discusses some of the uncertainties that arise in declaring war under the UN Charter. Under the Charter, military operations are justified in the eyes of international law in only two situations: the authorization of the UN Security Council in order to restore collective peace and security and the military action without the permission of the Security Council due to self-defense from an “armed attack”. It also looks at historical accounts of several nations that used military force and how they used, or maybe abused, the term of self-defense as justification of their actions. It cites four examples: the War on Terror, Invasion of Iraq, Israel's invasion of Lebanon in 2006, and the ongoing War in Darfur.