Self-defence against non-state actors: The interaction between self-defence as a primary rule and self-defence as a secondary rule

Abstract

This article examines the law of self-defence as applied to non-state attacks in light of the coalition air strikes against ISIL in Syria. It critiques the two current interpretations of the law of self-defence - one based on attribution and the other on the 'unable or unwilling' test - for failing to address adequately the security threat posed by non-state actors or for not addressing convincingly the legal issues arising from the fact that the self-defence action unfolds on the territory of another state. For this reason, itproposes analternative frameworkwhich combines the primary rule of self-defence to justify the use of defensive force against non-state actors, with the secondary rule of self-defence to excuse the incidental breach of the territorial state's sovereignty.