German Constitutional Court Considers Self-Defence Against Non-State Actors a Tenable Interpretation of Article 51 of the Un Charter

Abstract

In its Order of 17 September 2019, the Second Senate of the German Federal Constitutional Court considered the question of whether the right to individual or collective self-defence under Article 51 of the Charter of the United Nations included the use of armed force against non-State actors such as the so-called “Islamic State” (ISIL). The decision has been interpreted as condoning the use of force by Germany and other Western States against ISIL in Syria. However, this is not what the Court did. The Federal Constitutional Court simly held that neither the wording nor the object and purpose of Article 51 of the UN Charter preclude the application of the right of self-defence to attacks committed by non-state actors operating on the territory of a third country. The present paper presents the relevant parts of the Court's judgment (in English translation) and puts the decision in perspective. It shows that the Federal Constitutional Court’s contribution to the debate on the scope of the right to self-defence under Article 51 of the UN Charter is much more limited than suggested by commentators.