Abstract
This article considers the legality of the use of defensive force by a state against terrorists on the territory of a third state from where terrorists launched the attack. It first considers justifications based on attribution and on the “unable and unwilling” test. It concludes that these constructions leave many legal, factual, and conceptual questions unsettled. It thus goes on to put forward a construction based on the two facets of self-defence: a primary rule and substantive right which justifies the use of force against terrorist attacks; and a circumstance precluding wrongfulness (CPW) which excuses responsibility for the incidental breach of the territorial state’s sovereignty. The article then argues that the territorial state can claim compensation for any material loss caused by the self-defence action. This construction offers a more coherent understanding of the operation of self-defence and a stronger legal basis for using defensive force against terrorists on the territory of third states.
Recommended Citation
Nicholas Tsagourias,
The Use of Force Against Terrorist Attacks: The Two Facets of Self-Defence,
68
St. Louis U. L.J.
(2024).
Available at:
https://scholarship.law.slu.edu/lj/vol68/iss2/6