A/HRC/29/51
serious threat faced by Iraq of continuing attacks from ISIL coming from safe havens in the
Syrian Arab Republic (S/2014/695). She noted that “States must be able to defend
themselves, in accordance with the inherent right of individual and collective self-defence
… when, as is the case here, the government of the State where the threat is located is
unwilling or unable to prevent the use of its territory for such attacks”. She also said that
the United States had initiated necessary and proportionate military action in the Syrian
Arab Republic in order to eliminate the ongoing ISIL threat to Iraq, including by protecting
Iraqi citizens from further attacks and by enabling Iraqi forces to regain control of Iraqi
borders.
49.
The right to self-defence as an exception to the absolute prohibition on the use of
force is enshrined in article 51 of the Charter of the United Nations and is contingent on a
State facing an imminent risk of an armed attack on its territory. Under orthodox principles
of international law, the use of force against an armed group located on the territory of
another State is only justified on grounds of self-defence if the territorial State consents, if
the actions of the group concerned are legally imputable to the territorial State or if the
territorial State is harbouring the armed group concerned. International law may also
recognize a right of cross-border pursuit where an armed group uses the territory of a
bordering State as a place to which to retreat in order to regroup before recrossing the
border for the purpose of returning to engage in armed conflict. In the absence of such a
connection, however, the extraterritorial use of force against a non-State armed group
located on the territory of another State has traditionally been regarded as a violation of
sovereignty.
50.
However, as the Special Rapporteur has previously noted,95 some States are now
taking the view that the right to self-defence can be exercised even where the non-State
armed groups have no operational connection with the host State. States adopting this
analysis hold that if, after a reasonable opportunity, the territorial State has failed
effectively to neutralize a threat that emanates from an armed group operating within its
borders, either because it is unable or unwilling to do so, then the State that is threatened
with attack is entitled under the law of self-defence to cross the territorial State’s borders
and use military force in self-defence against the group that presents the threat. As the
Permanent Representative of the United States noted in her letter to the Secretary-General,
“the Syrian regime has shown that it cannot and will not confront these safe havens [used
by ISIL for training, planning, financing, and carrying out attacks across Iraqi borders and
against Iraqi people] effectively itself”. On this analysis, the United States and its coalition
partners are entitled to use force in the Syrian Arab Republic at the request of Iraq in order
to defend Iraq and its people against attacks by ISIL, which is operating in Iraq but is using
Syrian territory for the purpose of planning and preparing its military operations, and they
are entitled to enter Syrian territory for this purpose because the Government of the Syrian
Arab Republic has shown itself unable or unwilling to deal with the threat emanating from
ISIL.
51.
Many of the 8 million Iraqis and Syrians who live in ISIL-controlled territory live in
urban areas. It has been reported, in Iraq and the Syrian Arab Republic, that ISIL
deliberately places its fighters among civilians or in civilian areas, or uses civilian
infrastructure, such as schools and hospitals, as military bases to conduct operations and
shield its fighters from attack, or to ensure civilian casualties in the event of attack. 96 Major
towns have been frequently targeted by coalition air strikes, for example the heavy
95
96
16
See A/68/389, paras. 56–57.
See OHCHR/UNAMI, “Report on the Protection of Civilians in Armed Conflict in Iraq: 11
September–10 December 2014”, pp. 10 and 17.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents