25 Fall 2025 situation,” the victim state may use force to eliminate or at least significantly reduce reasonably foreseeable future threats.”108 For Gill and Fleck, “the right of self-defence is an exception to the prohibition of the use of force which provides for a recognised legal basis for the use of transboundary force in response to a prior or impending illegal use of force originating or directed from abroad with the aim and purpose of halting the attack and forestalling the occurrence of further attacks in the immediate future from the same source.”109 Meara concludes that more “recent state practice, most notably in the context of the response to transnational terrorism, points to an increased willingness of states to accept more expansive defensive action to counter further threats from the same source.”110 69. Ruys, having analysed State practice, concludes “that if a state has been subject to a series of armed attacks, and if there is a considerable likelihood that more attacks will imminently follow, then self-defence is not automatically ex¬cluded”, otherwise States “would have little defence against consecutive pin-prick attacks whereby opposing forces withdraw imme¬diately after having carried out an attack.”111 Commenting on this finding by Ruys, Meara adds: “This logic is inescapable and remains applicable today, especially in the context of armed attacks by NSAs [non-State actors] deemed to be terrorists. Sporadic, but often devastating, attacks, possibly across a number of geographical locales, might occur under the umbrella of a continuing threat comprising past and imminent armed attacks. The most recent state practice relating to the international community’s response to Daesh reinforces the propos¬ition that states have a lawful right to respond to such a continuing threat.”112 70. Finally, when determining the immediacy of future possible attacks, if the concept is to have meaning, immediacy cannot be understood in a narrow sense, in relation to a specifically identified armed attack, but must be analysed in the broader factual context, taking into account a number of relevant factors. Bethlehem proposes the following contextual elements: “Whether an armed attack may be regarded as ‘imminent’ will fall to be assessed by reference to all relevant circumstances, including (a) the nature and immediacy of the threat, (b) the probability of an attack, (c) whether the anticipated attack is part of a concerted pattern of continuing armed activity, (d) the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action, and (e) the likelihood that there will be other opportunities to undertake effective action in self-defence that may be expected to cause less serious collateral injury, loss, or damage. The absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of a right of self defence, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent.”113 On this point, specifically in the context of a terrorist threat, the Leiden Policy Recommendations On Counter-Terrorism And International Law note that it should be borne in mind that “terrorists typically rely on the unpredictability of attacks in order to spread terror among civilians.”114 108. Zemach, p. 340, referring to David Kretzmer, The Inherent Right to Self-Defence and Proportionality in Jus ad Bellum, 24 EUR. J. INT’L L. 235, 239 (2013) and Michael N. Schmitt, Counter-Terrorism and the Use of Force in International Law, in George C. Marshall European Center for Security Studies, The Marshall Center Papers, No. 5 (2002), at 20. 109. Gill and Fleck, The Handbook of the International Law of Military Operations, OUP, 2015, p. 213 (hereinafter ‘’Gill and Fleck’’). 110. O’Meara, p. 81. 111. T. Ruys, “Armed Attack” and Article 51 of the UN Charter: Evolutions in Customary Law and Practice (Cambridge University Press) (2010), p. 106. 112. O’Meara, p. 83. 113. Daniel Bethlehem, Self-Defense against an Imminent or Actual Armed Attack by Nonstate Actors, 106 AM. J. INT’L L. 770 (2012), p. 775, p. 775-776 (hereinafter “Bethlehem”). 114. Leiden Policy Recommendations On Counter-Terrorism And International Law, Netherlands International Law Review, LVII: 531-550, 2010, para. 46 (Hereinafter “Leiden”). On this aspect, see also Amos N. Guiora, Anticipatory SelfDefence and International Law—A Re-Evaluation, Journal of Conflict & Security Law (2008), Vol. 13 No. 1, 3–24.
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