Law

Hi all, my name's Amelia Parker, and I'm a first-year Law student at the University of Sussex, and now that officially halfway through the year, I can tell you what studying law here really looks like and what it's going to be.

[ON SCREEN TEXT] CHOOSING SUSSEX

Why Sussex?

My answer, pretty simple and honest, I live 20 minutes away from the University and I still want to stay at home and live with my family.

In all honesty, it's the best decision I could have possibly made because I absolutely love Sussex and in one word, it's amazing.

[ON SCREEN TEXT] STARTING UNI

About a month before starting uni, I threw myself into Facebook and Instagram, typed in the University and tried to find as many group chats as possible because there are a bunch of prospective students that are just out there wanting friends so that when they actually start uni, they'll be comfortable because they'll have people around them and they won't feel like they're out of place because they're searching for new people.

[ON SCREEN TEXT] FAVOURITE THINGS

My favourite things about the University so far have been the amount of opportunities that you get thrown into.

Genuinely, there are so many you get a million emails a day every single day of different talks of different lawyers, judges, a visit to the Supreme Court, a visit to an inner court, a pupils' fair at Lincoln's Inn, a mooting competition, etc, etc. - there are millions and I've done each and every one of them, apart from criminal advocacy.

That's for next year.

[ON SCREEN TEXT] WHAT’S NEXT?

Finishing first year and then getting into second year, and hopefully that will be OK because I've heard horror stories of how hard second year is, but that's for every university, so I'm extremely excited and I need to mentally prepare myself for that.

[ON SCREEN TEXT] MY ADVICE

If you want something and if you put your mind to it, it will happen. Just try and engage with absolutely everything.

For example, throw yourself into societies so that you will never be bored and there are an endless amount of... there are so many different societies, there are over 200.

And if you're not happy with those 200 create your own.

You just need a couple of other students and it will be fine.

You can make it happen.

My name is Christian Henderson, and I'm a professor of International Law at the University of Sussex.

In today's masterclass, I'm going to be discussing the right of self-defence in International Law, specifically in response to attacks and the activities of non-state actors, and in particular, terrorist groups, which is something that has been very controversial and topical over recent years, particularly since the events of the 11th of September 2001. I'm going to be looking at how this right might operate in the context of attacks by these particular groups.

Well, this is a picture of Reyaad Khan. And you may ask, well, who is Reyaad Khan? The face may not be familiar, and the name may not be familiar either. Well, Reyaad Khan was a member of the Islamic State group and was targeted and killed by an RAF, a British RAF drone, in Syria in August 2015. Now, at the time, the United Kingdom, who carried out the drone strike, was not at war with Syria, and the United Kingdom government justified the drone strike under the right of self-defence in International Law. Now, this may not seem to be particularly odd given that we see states carrying out strikes like this against terrorist groups with relative frequency these days. And it may not seem to be particularly controversial given the rather barbaric aims which these groups tend to have. But if we look at the drone strike through the prism of International Law, then things become a little bit more murky.

International Law is generally seen to be governing the relations between states. It doesn't govern the relations between individuals or the rights and obligations of individuals directly or indeed the relations between states and individuals but primarily the relationships between states. And International Law governing the use of force in the context of these strikes, the right of self-defence is, again, very much seen to exist and operate within this interstate context. So if you look at this picture on the screen now, this is a picture of the twisted gun monument outside of the United Nations headquarters in New York. And this is significant for two reasons. First of all, the actual gun, it sort of depicts really the more traditional weaponry which the United Nations was set up to try and prevent or at least limit the use of. But secondly, you can see in the background the flags of the various member states of the United Nations. And this very much gives rise to the idea that the United Nations was set up and the law contained within the charter of the United Nations was there to try and regulate the relations between member states.

And if you look at Article two four of the UN charter, which is probably the most important provision within the United Nations charter because it prohibits the use of force between member states, you can see this interstate nature of the law in this area because it's targeted towards all member states of the United Nations and it regulates or it tries to prohibit, I should say, the use of force in the international relations, so it’s very much an interstate regulation. And this was only meant to have two exceptions to it. The first one is when the United Nations Security Council provides its authorization to states to use force against another state. But importantly, and certainly importantly for the purposes of our discussion today, it also provides for the right of self-defence of states under International Law. So these are very much seen in the interstate context for a long time.

And then came the events of the 11th of September 2001. And as you can see in the picture, this was a rather significant attack upon the United States by the al-Qaeda terror group. And very shortly after these attacks, the United Nations Security Council determined that the right of self-defence arose in the context of these strikes and the response of states to them. So we saw the United Nations Security Council affirming the right of self-defence in the context of a non-state or terror group attack. NATO also invoked Article five of its constituted charter in the context of collective self-defence. And many states, most states approved of the invocation of the right of self-defence when the US and other states launched military action against al-Qaeda in Afghanistan a month later.

So this raises a rather important question: Was this a sui generis or a one-off incident? Or can we read more into it for the purposes of International Law? Did it pose a more significant challenge to these existing inter-state rules and regulations regarding the use of force? Well, there are two questions really, which come up here. The first one is whether the acts and activities of non-state actors or terrorist groups can actually give rise or trigger the right of self-defence. And the second question, and by far the more controversial of the two, is whether states can then use military force in the territories of other states in carrying out this right of self-defence. Given the fact that these terror groups don't exist in outer space or in the high seas but within the territories of other states.

So if we look at the first question as to whether the activities of these armed terror groups can give rise to the right of self-defence, this isn't perhaps controversial anymore. If we look at the text of Article 51 within the United Nations charter, you can see that by contrast to Article two four, regarding the prohibition on the use of force, which we looked at a moment ago, it isn't set in the interstate context as much. It gives rise to the right of self-defence, regardless of who has perpetrated an armed attack against a member state. And perhaps this is how it had to be because if states at the time the UN Charter was drafted thought that they could only invoke their right of self-defence in response to an attack by a state, it might be seen to be something of a suicide club, meaning that they couldn't fully protect themselves, regardless of from where or by whom an armed attack should emanate from.

It's the second question though about where states can implement their right of self-defence, which is by far the most controversial of the two.

Because states have a right to territorial integrity, they have a right to political independence and have this sovereignty, which if states have to invoke their right of self-defence in carrying out military action within the territory of another state, they need to somehow justify.

So we could see this, if you like, sovereignty barrier being breached in perhaps two ways. The first way is if we were to say that these armed attacks by these terror groups were somehow attributable to the state concept. So the state was in some ways responsible for the armed attack by the terror group. Now, traditionally, under International Law, this can be demonstrated if the state is in somehow or some ways in effective control of the particular terror group. So if they sent them or if they issued direct instructions to them or they were under their direct control, then we can say that these actions are one of the state. This is difficult, though, to reconcile with what we saw after the events of 9/11 because the United States didn't say that the Taliban in Afghanistan were actually in effective control of that al-Qaeda, but rather that they were harboring them, which is, of course, a much lower threshold. It's difficult to fully reconcile that with this traditional inter-state and quite high threshold nature of attribution that would be required to make the actions of the non-state group fully attributable to the state.

The second way we might be able to get over this sovereignty barrier then is if we can say that the state isn't actually directly responsible for the actions of the non-state terror group, but rather that they were somehow unable or unwilling to take the necessary action required to prevent further attacks. And this unable or unwilling standard is one that has been invoked by a number of states quite recently to justify their incursions into the territories of other states. So, for example, we saw this being used by the United States, the United Kingdom, and other states in 2015 when they launched military action against the Islamic State in Syria, in collective self-defence of Iraq.

There are, though, various problems with this unable or unwilling doctrine. The first one is, how do we go about determining whether a state is indeed unable or unwilling? Is it down to the victim state or the state invoking the right of self-defence to do this? Or should it be left to a more objective body, perhaps like the UN Security Council? What does it mean actually for a state to be unable or unwilling? For example, under International Law, states have a due diligence obligation to do all that they can to ensure that their territories are not used for activities which are harmful to other states. But it's not clear if this wasn't to be met or if it was to be met, but they hadn't taken the necessary action. If this gives rise to the possibility of other states to use military force within their territory, there's also questions around the issue of consent here. If one state knows that an armed group is carrying out activities harmful to them on the territory of another state, should that state go to the territorial state where the group is based and request consent to carry out military action on its territory? And if this was the case, there would be no need to justify that through self-defence.

And perhaps lastly, there are questions around the actual legal status of this particular unable or unwilling doctrine in International Law. Only a few states have expressly invoked it. Others implicitly, and many states have either not expressed a view on it or actually opposed it. Which raises a lot of question marks around the exact position of this doctrine within International Law currently.

So what we can say is that in this very controversial area, the precise parameters of the right of self-defence against the actions of non-state groups are very much being worked out at the moment. We don't have a clear settled position on the law on this particular issue. Some perhaps might still require full effective control by a state before military action can be taken within its territory, whereas others might go completely the other end of the spectrum and say that regardless of any state control over a terror group, military action can be taken upon the territory of the state if it can be seen to be necessary, perhaps under the unable or unwilling doctrine. But both of these ends of the spectrum pose particular problems for us as international lawyers.

So the future really is how can we strike this correct balance? Where do we go as international lawyers and where do we go with states to try and ensure that this balance is appropriately struck? And this, I think, is the future question, which we'll all as international lawyers and states be focused upon. Thank you.

‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’ (Article 2.4, Charter of the United Nations (1945)

‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security…’ (Article 5.1, Charter of the United Nations (1945)