British Institute of International and Comparative Law

The Chatham House Principles of International Law on the Use of Force in Self-Defence
Source: The International and Comparative Law Quarterly, Vol. 55, No. 4 (Oct., 2006), pp. 963-972

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 THE CHATHAMHOUSE PRINCIPLESOF INTERNATIONAL
LAW ON THE USE OF FORCEIN SELF-DEFENCE1

'Therearefew moreimportant law thantheproperlimitsof the

questionsin international
rightof self-defence'2
'The maintenance of worldpeace and securitydependsimportantly on therebeing a
commonglobalunderstanding, andacceptance, of forceis both
of whenthe application
legalandlegitimate.'3

I. INTRODUCTION

There are few more controversialquestions in internationallaw than the properlimits

of the right of self-defence. The rules are being challengedin the light of what are seen
as new threatsfrom terrorismand from the possession of weapons of mass destruction.
The UN High-level Panel, in its reportto the Secretary-Generalof 2004, concludedthat
in all cases relatingto decisions to use militaryforce 'we believe thatthe Charterof the
United Nations, properlyunderstoodand applied,is equal to the task'.4The Principles
that follow are intended to provide a clear statementof the rules of internationallaw
'properlyunderstood'governingthe use of force by states in self-defence.
The Principleswere drawnup as a result of a study undertakenby ChathamHouse
in 2004/2005. A questionnairewas sent to a small groupof internationallaw academics
and practitionersand internationalrelations scholars in this country, asking for their
views on the criteriafor the use of force in self-defence; some of the group are listed
below. At a subsequentmeeting at ChathamHouse the participantsdiscussed a paper
which had been drawnup on the basis of the responsesto the questionnaire.Following
that meeting the Principleswere preparedat ChathamHouse.
The Principlesare intendedto provide a single source of expertinterpretationof the
rules of self-defence. It will be noted that they do not explain fully the legal reasoning
thatlies behindthe choice of certainformulationsin preferenceto othersandthe choice
of certaininterpretationsof the law ratherthan others.We have not dealt with the very
rich and extensive literature,but we have drawnon the experience of the participants
in the study. Brevity was given precedence over explanationin orderto provide prin-
ciples of some practicality.Finally, it will also be obvious thatwhile the Principlesare
intended to reflect current internationallaw, the law in this area is politically and

1 These
Principleswerefirstpublishedin a workingpaperon the ChathamHousewebsite.
<www.chathamhouse.org.uk/pdf/research/il/ILPForce.doc>.
2 CMHWaldock'The
Regulationof the Use of Forceby IndividualStatesin International
LawTheHagueRecueilDes Courts,vol 81 (1952-11),461.
3 Reportof the Secretary-General's High-levelPanelon Threats,ChallengesandChange'A
MoreSecureWorld:OurSharedResponsibility' (2004).
4 High-levelreport,Synopsisof Part3. In the resolutionincorporating the Outcomeof the
WorldSummitin Sept2005 the UN GeneralAssemblyaffirmedthattherelevantprovisionsof
theUN Charter peaceandsecu-
aresufficientto addressthefull rangeof threatsto international
rity,butdidnotdealwiththequestionas to whenit is lawfulfora stateto use forcein theexer-
cise of its inherent
rightof self-defence.

[ICLQvol 55, October2006pp963-972] doi: 10.1093/iclq/lei137

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964 Internationaland ComparativeLaw Quarterly
legally contentious, and the application of the law (and therefore the Principles) to
particular cases will often be difficult.
The Principles do not necessarily represent the views of all the participants in the study.

II. PRINCIPLESOF INTERNATIONALLAW ON SELF-DEFENCE

The Charter of the United Nations prohibits the use of force in a State's international rela-
tions except where the Security Council has authorized the use of force to maintain or
restore international peace and security; and where a state is exercising its inherent right
of individual or collective self-defence recognized by Article 51 of the Charter.5
All the Principles need to be read together.
Even in a case where a State is legally entitled to use force, there may be reasons for
prudence and principle not to exercise that right.

A. The law on self-defence encompasses more than the right to useforce in response
to an ongoing attack
Article 51 preserves the right to use force in self-defence 'if an armed attack occurs',
until the Council has taken the necessary measures. On one view, the right is confined
to circumstances in which an actual armed attack has commenced.6 But the view that
States have a right to act in self-defence in order to avert the threat of an imminent
attack--often referred to as 'anticipatory self-defence'7 - is widely, though not univer-
sally, accepted.8 It is unrealistic in practice to suppose that self-defence must in all
cases await an actual attack.

5 The question whether there is also a right to take action in exceptional circumstancesof
humanitarianemergency, or to protectfundamentalrights, is not dealt with here; nothing in this
papercan be regardedas prejudicingthe questionone way or the other.AlthoughArt 51 mentions
the right of collective self-defence, this study deals only with individualself-defence.
6 The InternationalCourtof Justice (ICJ) expressly left open the issue of the lawfulness of a
response to the threat of an imminent armed attack in the Case concerning Military and
ParamilitaryActivitiesin and against Nicaragua (Nicaraguav USA)(Merits) [1986] ICJReports,
para 194. When the question of the existence of an armedattackfeaturedin the Court's overall
reasoningon the law of self-defence, it appearedbefore the treatmentof the principlesof neces-
sity and proportionality.The same frameworkwas followed by the Courtsome 17 years later in
the Oil PlatformsCase (Case ConcerningOil Platforms(IslamicRepublicof Iran v UnitedStates
of America) [2003] ICJ Rep, where it first investigated the existence of an armed attack (paras
61-64 and 72) before it turnedto the applicationof the principlesof necessity and proportional-
ity (paras73 and 74).
7 For the purposesof this documentthe term 'anticipatory'self-defence is preferredover 'pre-
emptive' self-defence, althoughthe latter is also in currentuse, for example in the reportof the
United Nations Secretary-General'sHigh-level Panel on Threats,Challenges and Change (n 3)
para 189.
8 The United Nations Secretary-General'sresponse 'In LargerFreedom' to the High-level
Panel reportmentioned above states: 'Imminentthreats are fully covered by Article 51, which
safeguards the inherent right of sovereign states to defend themselves against armed attack.
Lawyershave long recognizedthat this covers an imminentattackas well as one thathas already
happened' (para 124). In the resolution adopting the World Summit Outcome the UN General
Assembly reaffirmedthat 'the relevantprovisions of the Charterare sufficient to addressthe full
range of threatsto internationalpeace and security' and reaffirmed'the authorityof the Security
Council to mandatecoercive action to maintainand restoreinternationalpeace and security' but
did not commenton the meaning of Art 51.

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 Chatham House Principles on the Use of Force in Self-Defence 965
The difference between these two schools of thought should not be overstated:
many of those in the first school take the view that an attack has commenced when
there are active preparationsat an advanced stage, if there is the requisite intent and
capability; and many of those in the other school require not dissimilar conditions
before force in self-defence may lawfully be used in respect of an imminent attack.
Further, those who deny the right of anticipatory self-defence may accept that a
completed attack is sufficient to trigger a right to respond in anticipationof another
attack.9
The requirementsset out in the Caroline case1omust be met in relationto a threat-
ened attack.A threatenedattackmust be 'imminent'and this requirementrules out any
claim to use force to prevent a threatemerging.11Force may be used in self-defence
only when it is necessary to do so, and the force used must be proportionate.

B. Force may be used in self-defence only in relation to an 'armedattack' whether

imminentor ongoing
* The 'armedattack' may include not only an attack against a State's territory,but
also against emanationsof the State such as embassies and armedforces.
* Force in self-defence may be used only when: the attackconsists of the threator use
offorce (not mere economic coercion,for example);when the attackerhas the inten-
tion and the capability to attack; and the attack is directedfrom outside territory
controlled by the State.
* In the case of a threatenedattack,there mustbe an actual threatof an attackagainst
the defendingState itself.
The inherentright of self-defence recognizedin Article 51 of the Charterof the United
Nations 'if an armed attack occurs' forms an exception to the general prohibition
against the use of force underArticle 2(4).
For the purpose of Article 51, an armedattackincludes not only an attack against
the territoryof the State, including its airspace and territorialsea, but also attacks
directedagainstemanationsof the State, such as its armedforces or embassies abroad.
An armedattackmay also include, in certaincircumstances,attacksagainstprivateciti-
zens abroador civil ships and airliners.12An 'armedattack'thereforeis an intentional
intervention in or against another State without that State's consent or subsequent
acquiescence, which is not legally justified.
An armed attackinvolves the use of armedforce and not mere economic damage.
Economic damage, for example, by way of tradesuspension, or by use of a computer
virus designed to paralyse the financial operationsof a State's stock exchange or to
disable the technology used to control waterresources,may have a devastatingimpact
on the victim State but the principles governing the right to use force in self-defence
are confined to a militaryattack.A purely 'economic' attackmight however give rise
to the right of self-defence if it were the precursorto an imminentarmedattack.

9 As in theCarolineincident,andin thecaseof theintervention

in Afghanistan
in 2001,which
wascategorized by theUS andtheUKas theexerciseof therightof anticipatoryself-defence(see
UN Doc S/2001/946andUN Doc S/2001/947).
10 See (n 16)below. 1 See commentary to PrincipleD below.
12 Thisstudydoesnot,however,dealwiththerescueof citizensabroad,whichraisesdifferent
issues.

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966 International and Comparative Law Quarterly
An armed attack means any use of armedforce, and does not need to cross some
thresholdof intensity.13Any requirementthata use of force must attaina certaingrav-
ity and thatfrontierincidents,for example, are excluded is relevantonly in so far as the
minor natureof an attackis prima facie evidence of absence of intention to attackor
honest mistake. It may also be relevant to the issues of necessity and proportionality.
In the case of attacksby non-stateactors,however, differentconsiderationsmay come
into play (see PrincipleD below).
The term 'armedattack'requiresthe attackerto have the intentionto attack.In the
Oil Platformscase the ICJmade referenceto this requirementwhen it inquiredinto the
question whetherthe US was able to prove that certainof Iran's actions were 'specifi-
cally aimed' at the US or thatIranhad 'the specific intention'of harmingUS vessels.14
But to the extent that this may be read as suggesting that militaryattackson a State or
its vessels do not trigger a right of self-defence as long as the attacks are not aimed
specifically at the particularState or its vessels but ratherare carriedout indiscrimi-
nately, this partof the ICJ's rulingin Oil Platformshas been criticizedas not supported
by internationallaw.
An armedattackis an attackdirectedfrom outside territorycontrolledby the State.
In its AdvisoryOpinionon the Legal Consequencesof the Constructionof a Wallin the
Occupied Palestinian Territory15the ICJ's observationsmay be read as reflecting the
obvious point that unless an attackis directedfrom outside territoryunderthe control
of the defending State the question of self-defence in the sense of Article 51 does not
normallyarise.
In the case of a threatenedattack,theremust be an actualthreatof an attackagainst
the defending State itself, whether directed against that State or by an indiscriminate
attack.This is an aspect of the criterionof necessity. It addressesthe questionwhether
it is necessary for the targetState to take action.

C. Force may be used in self-defence only when this is necessary to bring an attack
to an end, or to avert an imminentattack. Theremust be no practical alternative
to the proposed use offorce that is likely to be effective in ending or averting the
attack
The criterionof necessity is fundamentalto the law of self-defence.16Force in self-

13 Therearestatements by the International

Courtof Justicewhichsuggestthattheremaybe
instancesof theuseof forcewhicharenotof sufficientgravityas to scaleandeffectto constitute
an armedattackforthepurposeof self-defence.SeeNicaraguacase(n 6) paras191and195 and
OilPlatformscase(n 6) paras51, 63-64 and72. Butthesestatements arenotgenerallyaccepted.
14 (n 6) para64.
15 Legal Consequences of the Constructionof a Wall in the Occupied Palestinian Territory
(AdvisoryOpinion)[2004]ICJReppara139.
16 Thecriterion of 'necessity'if forceis legallyto be usedin self-defencecanbe tracedback
to thelanguageof theCarolineformula:
'[i]t will be for ... [HerMajesty's]Government to showa necessityof self-defence,instant,
overwhelming, leavingno choiceof means,andno momentfordeliberation' andtheactionmust
notbe 'unreasonable orexcessive;sincetheact,justifiedby thenecessityof self-defence,mustbe
limitedby thatnecessity,andkeptclearlywithinit.'
The ICJheld in the Nicaraguacase (n 6) that 'the specificrule wherebyself-defencewould warran
onlymeasures whichareproportionalto thearmedattackandnecessary
to respondto it' was'a rule
well established
undercustomaryinternational
law'(para176),andre-affirmed
thisin its Advisory
Opinionon theLegalityof theThreator UseofNuclearWeapons [1996]ICJReppara41)

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 Chatham House Principles on the Use of Force in Self-Defence 967
defence may be used only when it is necessary to end or avert an attack. Thus, all
peaceful means of ending or averting the attack must have been exhausted or be
unavailable. As such there should be no practical non-military alternative to the
proposed course of action that would be likely to be effective in avertingthe threator
bringing an end to an attack.Necessity is a threshold,and the criterionof imminence
can be seen to be an aspect of it, inasmuchas it requiresthattherebe no time to pursue
non-forciblemeasureswith a reasonablechance of avertingor stoppingthe attack.
Necessity is also a limit to the use of force in self-defence in that it restricts the
response to the elimination of the attackand is thus linked to the criterionof propor-
tionality.The defensive measuremust be limitedto what is necessaryto avertthe attack
or bring it to an end.
In applying the test of necessity, referencemay be made to the means available to
the State underattack;the kinds of forces and the level of armamentto hand17will be
relevant to the natureand intensity of response that it would be reasonableto expect,
as well as the realistic possibilities of resortingto non-militarymeans in the circum-
stances.18

D. A State may use force in self-defence against a threatenedattack only if that

attack is 'imminent'
There is a risk of abuse of the doctrine of anticipatoryself-defence, and it needs to be
applied in good faith and on the basis of sound evidence. But the criterion of immi-
nence mustbe interpretedso as to take into account currentkinds of threatand it must
be applied having regard to theparticular circumstancesof each case. Thecriterionof
imminenceis closely related to the requirementof necessity.
* Force may be used only when any further delay would result in an inability by the
threatenedState effectivelyto defend against or avert the attack against it.
* In assessing the imminenceof the attack, referencemay be made to the gravity of the
attack, the capability of the attacker,and the nature of the threat,for example if the
attack is likely to come withoutwarning.
* Force may be used only on a properfactual basis and a proper basis and after a
good faith assessment of thefacts.
The concept of 'imminence' reflects the Caroline formulationof 'instant,overwhelm-
ing, leaving no choice of means, and no moment for deliberation'.In the context of
contemporarythreatsimminence cannot be construedby referenceto a temporalcrite-
rion only, but must reflect the wider circumstancesof the threat.
There must exist a circumstanceof irreversibleemergency. Whetherthe attack is
'imminent'dependsuponthe natureof the threatandthe possibilityof dealingeffectively

17 Thisformulation leavesopenthequestionwhethergreatermechanised forcecanbejustified

by the reductionin riskto the lives of the defendingState'sforces,a questionwhichis more
normallydealtwithby therulesof international humanitarianlaw.
18 Inits decisionin theOilPlatforms on the'necessity'criterion.
case(n 6), theICJelaborated
It heldthat'therequirement of internationallaw thatmeasurestakenavowedlyin self-defence
musthavebeennecessaryforthatpurposeis strictandobjective,leavingno roomforany"imea-
sureof discretion" ' (para73). In practiceof coursetheassessmentof thenecessityof a particu-
lar actionis far from straightforward, and can be undertaken only on the basis of the facts
availableat thetime,butwitha goodfaithassessmentof thosefacts.

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968 International and Comparative Law Quarterly
with it at any given stage. Factorsthat may be taken into account include: the gravity
of the threatenedattack- whetherwhat is threatenedis a catastrophicuse of Weapons
of Mass Destruction(WMD); capability-for example, whether the relevant State or
terroristorganizationis in possession of WMD, or merely of materialor component
partsto be used in its manufacture;and the nature of the attack--including the possi-
ble risks of making a wrong assessment of the danger.Otherfactors may also be rele-
vant, such as the geographical situation of the victim State, and the past record of
attacksby the State concerned.
The criterion of imminence requires that it is believed that any furtherdelay in
counteringthe intended attackwill result in the inability of the defending State effec-
tively to defend itself against the attack. In this sense, necessity will determineimmi-
nence: it must be necessaryto act before it is too late. Thereis a question as to whether
'imminence' is a separatecriterionin its own right, or simply part of the criterionof
'necessity' properlyunderstood.As an additionalcriterionhowever it serves to place
added emphasis on the fact that a forcible response in these circumstanceslies at the
limits of an already exceptional legal category, and thereforerequires a correspond-
ingly high level of justification.
To the extent that a doctrine of 'pre-emption'encompasses a right to respond to
threatswhich have not yet crystallizedbut which might materializeat some time in the
future, such a doctrine (sometimes called 'preventive defence') has no basis in inter-
national law. A fatal flaw in the so-called doctrineof preventionis that it excludes by
definition any possibility of an ex post facto judgment of lawfulness by the very fact
that it aims to deal in advance with threatsthat have not yet materialized.
Each case will necessarilyturnon its own facts. A forceful actionto disrupta terror-
ist act being preparedin anotherState might, depending upon the circumstances,be
legitimate;force to attacka person who may in the futurecontemplatesuch activity is
not. While the possession of WMD withouta hostile intentto launchan attackdoes not
in itself give rise to a right of self-defence, the difficulty of determiningintentand the
catastrophicconsequences of making an errorwill be relevantfactors in any determi-
nation of 'imminence' made by anotherState.
The determinationof 'imminence'is in the first place for the relevantStateto make,
but it must be made in good faith and on groundswhich are capableof objectiveassess-
ment.Insofaras this can reasonablybe achieved,the evidence shouldbe publiclydemon-
strable.Some kinds of evidence cannotbe reasonablyproduced,whetherbecause of the
natureor source, or because it is the productof interpretationof many small pieces of
information.But evidence is fundamentalto accountability,and accountabilityto the rule
of law. The more far-reaching,and the more irreversibleits externalactions,the more a
Stateshouldaccept(internallyas well as externally)the burdenof showingthatits actions
were justifiable on the facts. And there should be properinternalproceduresfor the
assessmentof intelligenceand appropriateproceduralsafeguards.

E. The exercise of the right of self-defence must comply with the criterion of
'proportionality'
* Theforce used, taken as a whole, must not be excessive in relation to the need to
avert the attack, or bring it to an end.
* Thephysical and economic consequences of theforce used must not be excessive in
relation to the harm expectedfrom the attack.

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 Chatham House Principles on the Use of Force in Self-Defence 969
In the Caroline formulation, the principle of proportionalitywas stated to require
'nothing unreasonableor excessive; since the act, justified by the necessity of self-
defence, must be limited by that necessity, and kept clearly within it.'
The ICJ has confirmedthat it is a well-establishedrule of customaryinternational
law that a use of force in self-defence must be 'proportionalto the armedattack and
necessary to respondto it.'19
This requiresthatthe level of force used is not greaterthanthatnecessaryto end the
attackor remove the threat.As such it is anotherway of looking at the requirementof
necessity.
The proportionalityrequirementhas been said to mean, in addition,that the physi-
cal and economic consequences of the force used must not be excessive in relationto
the harm expected from the attack.20But because the right of self-defence does not
allow the use of force to 'punish' an aggressor,proportionalityshould not be thought
to refer to paritybetween a response and the harmalreadysuffered from an attack,as
this could either turn the concept of self-defence into a justification for retributive
force, or limit the use of force to less than what is necessary to repel the attack.
The force used must take into account the self-defence operation 'as a whole'. It
does not relate to specific incidents of targeting (which is a matter for international
humanitarianlaw). Thus, in the Oil Platforms case, the ICJ stated that in assessing
proportionality,it 'could not close its eyes to the scale of the whole operation'.21

F. Article 51 is not confinedto self-defence in response to attacks by States. The right

of self-defencemay apply also to attacks by non-state actors
* In such a case the attack must be large scale.
* If the right of self-defence in such a case is to be exercised in the territoryof another
State, it must be evident that that State is unable or unwilling to deal with the non-
state actors itself, and that it is necessary to use force from outside to deal with the
threat in circumstanceswhere the consent of the territorialstate cannot be obtained.
* Force in self-defence directed against the Governmentof the State in which the
attackeris found may be justified only in so far as it is necessary to avert or end the
attack, but not otherwise.
There is no reason to limit a State's right to protect itself from an attackby another
State. The right of self-defence is a right to use force to avert an attack. The source
of the attack, whether a State or a non-state actor, is irrelevant to the existence of
the right. The ICJ Wall advisory opinion should not be read as suggesting that the
use of force in self-defence is not permissible unless the armedattackis by a State.22

19
Nicaraguacase (n 6) para176;see also,para41 of theAdvisoryOpinionon theLegalityof
theThreator Useof NuclearWeapons(n 16).
20 For
example,theUnitedKingdomAttorneyGeneralstatedin theHouseof Lordson 21 Apr
2004: 'theforceusedmustbe proportionate to the threatfacedandmustbe limitedto whatis
necessaryto dealwiththethreat'(HansardHLcol 370).
21 (n 6) para77.
22 (n 15)para139:'Article51 of theCharter thusrecognizestheexistenceof aninherentright
of self-defencein thecaseof armedattackby one StateagainstanotherState.'ButtheEuropean
Unionstatement madeupontheadoptionof GeneralAssemblyresolutionES-10/18(concerning
the Walladvisoryopinion)suggeststhatEU MemberStatesandtheotherStatesassociatedwith
the statementwouldnot acceptthe possibleimplicationof the Opinionthatself-defenceis not

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970 Internationaland ComparativeLaw Quarterly
There is nothing in the text of Article 51 to demand, or even to suggest, such a limi-
tation.23
This conclusion is supported by reference to the Caroline case; the criteria in
Caroline were enunciated in the context of a maraudingarmed band, not orthodox
State-to-Stateconflict.
State practice in this field, including the recent practice of the Security Council,
gives no support to the restriction of self-defence to action against armed attacks
imputable to a State; indeed there is state practice the other way. The action against
Al Qaeda in Afghanistan in October 2001 (which was widely supportedby States)
was action in self-defence of anticipated imminent terroristattacks from Al Qaeda,
not from the Taliban. It was necessary to attack certain elements of the Taliban, in
order to pre-empt attacks from Al Qaeda. Security Council resolutions 1368(2001)
and 1373(2001) support the view that self-defence is available to avert large-scale
terrorist attacks such as those on New York and Washington on 11 September
2001.24 So too do the invocations by NATO and the OAS of their respective mutual
defence obligations
The right of States to defend themselves against ongoing attacks, even by private
groups of non-state actors, is not generally questioned. What is questioned is the
right to take action against the State that is the presumedsource of such attacks, since
it must be conceded that an attack against a non-state actor within a State will
inevitably constitute the use of force on the territorialState. It may be that the State
is not responsible for the acts of the terrorists,but it is responsible for any failure to
take reasonable steps to prevent the use of its territoryas a base for attacks on other
States. Its inability to discharge the duty does not relieve it of the duty. The right to
use force in self-defence is an inherent right and is not dependent upon any prior
breach of internationallaw by the State in the territoryof which defensive force is
used.
Thus, where a State is unable or unwilling to assert control over a terroristorgani-
zation located in its territory,the State which is a victim of the terroristattackswould,
as a last resort,be permittedto act in self-defence against the terroristorganizationin
the State in which it is located.25

availableunlessthearmedattackis by a State.'TheEuropean Unionwillnotconcealthefactthat

reservations exist on certainparagraphs of the Court'sadvisoryopinion.We recogniseIsrael's
securityconcernsandits rightto actin self-defence.'Themattercameup againin a recentcase
in theICJ;theCourtstatedthatin theabsenceof attribution of thearmedforceto a Statethereis
no rightof self-defenceagainstthatState.(Caseconcerning ArmedActivitieson theterritoryof
the Congo(Democratic Republicof the Congov Uganda)(Merits)[2005] ICJRepparas146,
147)).In linewiththe Walladvisoryopinionthisshouldnotbe readas prohibiting actionin self-
defenceagainstnon-stateactorsas such.
23 WhilecertainwritershavearguedthatArt51 concernsonlyresponsesto aggressionagainst
anotherState,theirargument basedon theFrenchtextis notpersuasive. True,theFrenchtextof
Art51 usesthetermagressionarmee,andagressionis alsothetermusedin Art39,buttheFrench
Government acceptedduringthedebateson thedefinitionof aggressionthataggressionin Art39
wasnotthesameconceptasagressionarmeein Art51;further, theEnglish,Chinese,andSpanish
textsof theCharter use differenttermsforArts39 and51.
24 It shouldhoweverbe notedthatSecurity Councilresolution1368(2001)doesnotsettlethe
matterentirely,as in thatcasetherewasalreadysignificantevidenceof a degreeof responsibility
of a State(Afghanistan) forthecontinuing to carryoutattacks.
abilityof theterrorists
25 The ICJ Judgmentin the Case concerningArmedActivities on the territoryof the Congo
((n 22) paras146and147)impliesthatunwillingness
orinabilityof a Stateto dealwithirregular

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 ChathamHouse Principles on the Use of Force in Self-Defence 971
The same criteriafor the use of force in self-defence againstattacksby States are to
be used in the case of attacksby non-stateactors,but particularconsiderationsare rele-
vant.
The attackor imminentattackby non-stateactors must be large-scale.26
For action in self-defence to be 'necessary', it must first be clear that measuresof
law-enforcementwould not be sufficient. To show the necessity of action against the
territoryof anotherState not directly responsible for the acts of the non-state group
requires,interalia, the demonstrationthatthereis no othermeans of meeting the attack
and thatthis way will do so. Terroristorganizationsare not easily rooted out by foreign
armedforces.
Where,therefore,the attackis not ongoing but imminent,the territorialStateis enti-
tled to proceed in its own way against the group on its territory.In this context the
requirementof 'imminence' means thataction in self-defence by anotherState may not
be taken save for the most compelling emergency.

G. Theprinciples regarding the right of self-defenceform only a part of the

internationalregulation of the use offorce
Article 51 of the UN Charterrequires that measures taken in the exercise of the right
of self-defence be reported immediatelyto the Security Council. The Council retains
the right and responsibilityto authorize collective militaryaction to deal with actual
or latent threats.
Any militaryaction must conformwith the rules of internationalhumanitarianlaw
governing the conduct of hostilities.

III. PARTICIPANTS

The participantsincluded:
Sir Franklin Berman QC is a barrister at Essex Court Chambers and Visiting
Professorof InternationalLaw at the Universitiesof Oxfordand Cape Town; formerly
Legal Adviser at the Foreign & CommonwealthOffice.

forces on its territoryis insufficient to create a right in self-defence against the State. However,
theCourtdoesnotanswerthequestionas to theactiona victimStatemaytakein thecaseof an
armedattackby irregularforces, where no involvementof the State can be proved. According to
Judges Kooijmansand Simma the occurrenceof an armedattackis sufficient to create a right of
action in self-defence, whetheror not the actions are attributableto a State (SeparateOpinions of
Judge Kooijmans,paras26-30 and of Judge Simma, paras7-12).
26 Itis in thiscontext(rather
thanthatof anattackby a Stateitself)thatit is relevantto consider
the ICJ's remarksin the Nicaragua judgment (n 6) para 195. The Court stated that: 'it may be
consideredto be agreed that an armedattackmust be understoodas including not merely action
by regulararmedforces across an internationalborder,but also the sending by or on behalf of a
State of armed bands, groups, irregularsor mercenaries,which carry out acts of armed force
againstanotherState of such gravityas to amountto (interalia) an actual armedattackconducted
by regularforces,"orits substantial therein."... TheCourtsees no reasonto deny
involvement
that, in customarylaw, the prohibitionof armedattacks may apply to the sending by a State of
armedbandsto the territoryof anotherState, if such an operation,because of its scale and effects,
would have been classified as an armedattack ratherthan as a merefrontier incidenthad it been
carried out by regular armedforces' (italics added).

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972 Internationaland ComparativeLaw Quarterly
James Gow is Professor of InternationalPeace and Security, and Co-Directorof the
InternationalPeace and Security Programme,King's College London.

Christopher Greenwood QC is Professorof InternationalLaw at the London School

of Economics and Political Science, and a barristerat Essex CourtChambers.

Vaughan Lowe holds the chairof Chichele Professorof Public InternationalLaw, is a

Fellow of All Souls College, University of Oxford, and a barristerat Essex Court
Chambers.
Sir Adam Roberts holds the chair of Montague Burton Professor of International
Relations and Fellow of Balliol College, University of Oxford.

Philippe Sands QC is Professor of Law and Director of the Centre of International

Courts and Tribunals at University College London, and is a barrister at Matrix
Chambers.
Malcolm Shaw QC is the Sir Robert Jennings Professorof InternationalLaw at the
University of Leicester, and is a barristerat Essex CourtChambers.
Gerry Simpson is a Reader in the Departmentof Law at the London School of
Economics and Political Science.
Colin Warbrick is Professorof Law at the University of Durham.
Nicholas Wheeler is Professor in the Departmentof InternationalPolitics at the
University of Wales, Aberystwyth.
Elizabeth Wilmshurst is Senior Fellow, InternationalLaw, at ChathamHouse, and
Visiting Professorof InternationalLaw, UniversityCollege London.
Sir Michael Wood is a Senior Fellow at the LauterpachtResearch Centre for
InternationalLaw, University of Cambridge, and a barrister at 20 Essex Street,
London;he was formerlythe Legal Adviser at the Foreign & CommonwealthOffice.
Introduction by ELIZABETH
WILMSHURST*

* SeniorFellow,International
Law,at Chatham
House.

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