FORCE BY ARMED GROUPS AS ARMED ATTACK AND THE BROADENING OF SELF-DEFENCE

Abstract

A feature of the end of the Cold War has been the tendency in state practice to expand the right of lawful resort to force by introducing novel grounds for the exercise of the right of self-defence. These are an alleged right to use force in self-defence against armed bands, regardless of the precise involvement of another state in their activities and the introduction of a right of pre-emptive self-defence against likely threats to the security of a state. Action by armed bands is viewed as an autonomous instance of an armed attack, while at the same time the alleged right of pre-emptive self-defence marks a departure from the hitherto controversial concept of anticipatory self-defence by dispensing with the requirement of imminence of an armed attack. A factual assessment of ‘imminence’ is replaced by considerations of state security. This tendency in state practice faces the persistence by the ICJ to view the use of force as an inter-state phenomenon and to interpret resort to defensive action as narrowly as possible.