Self-defense against nonstate actors: reflections on the "Bethlehem principles".

Author:Wilmshurst, Elizabeth

Daniel Bethlehem has set down sixteen principles relevant to the scope of a state's right of self-defense against an imminent or actual armed attack by nonstate actors "with the intention of stimulating a wider debate." (1) While these principles "are published under [the author's] responsibility alone," they have "nonetheless been informed by detailed discussions over recent years with foreign ministry, defense ministry, and military legal advisers from a number of states who have operational experience in these matters." (2)

Exercises such as this one are welcome if they seek to achieve as broad a consensus as possible on the interpretation of the rules of international law on the use of force and on their application. What is needed, if the rules are to be more readily obeyed, is a far greater degree of common understanding among governments (and others) as to what the rules are, as well as greater support for the United Nations, and particularly for a Security Council that is effective and seen to be legitimate.

Attempts to reach agreement on the international law on the use of force are not new. The Chatham House Principles of International Law on the Use of Force in Self-Defence were drawn up in 2005 following discussion among academics, legal practitioners in the United Kingdom, and current and former legal advisers to the UK Foreign and Commonwealth Office. (3) The Chatham House principles were "intended to provide a clear statement of the rules of international law 'properly understood' governing the use of force by states in self-defence"; (4) they included discussion of the use of force against nonstate actors. A wider exercise, involving government advisers, academics, and legal practitioners from a number of states, was undertaken under the auspices of the Dutch government and concluded in April 2010 with the Leiden Policy Recommendations on Counter-terrorism and International Law. (5) Its aims were "to address the challenges that combating international terrorism poses to international law," (6) and the recommendations included material on the use of force against terrorist groups. The International Law Association's Committee on the Use of Force, which has a wide composition, is currently working on related matters. (7)

The processes for these principles and recommendations have included persons with governmental experience, including the present authors. But Bethlehem gives particular emphasis to the governmental participation in the exercise in which he was involved. Attempts in the United Nations to secure endorsement of principles about self-defense have not been successful, (8) and the governmental discussions that lie behind Bethlehem's principles no doubt anticipated that a select group of government representatives might reach agreement among themselves when the UN membership as a whole could not. (9)

This emphasis on governmental participation is explained by a key factor motivating Bethlehem's approach: it is what he describes as a doctrinal divide "between those who favor a restrictive approach to the law on self-defense and those who take the view that the credibility of the law depends ultimately upon its ability to address effectively the realities of contemporary threats." (10) Although at one point we are told that the new principles are "not intended to be enabling of the use of force," (11) the author's standpoint appears clear:

The reality of the threats, the consequences of inaction, and the challenges of both strategic appreciation and operational decision making in the face of such threats frequently trump a doctrinal debate that has yet to produce a clear set of principles that effectively address the specific operational circumstances faced by states. (12) So the first question for a reader of the Bethlehem principles is whether they are intended either to reflect existing law or, instead, to state what, in the view of some, operational requirements demand. Bethlehem's explanations leave some doubt. A footnote tells us that the principles "do not purport to reflect a settled view of the law or the practice of any state." (13) What then? While not accompanied by detailed commentaries, the principles are preceded by an illuminating note. (14) They are said to be an attempt to propose what "the appropriate principles are, and ought to be." (15) They are described as setting out "the contours of the law" and as "intended to work with the grain of...

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