29 Fall 2025 defence in accordance with the Charter” in the context of terrorist attacks conducted by non-State actors, without any discussion of whether these acts could be attributed to a State or not.128 87. There is evidence that the invocation of self-defence against a non-State actor is a practice of States,129 and one can reasonably argue, even if one were to consider that at some point in time invocation of self-defence was limited to responding to armed attacks by States, that, at the very least, a new customary law norm has emerged recognising the possibility of invoking self-defence against non-State actors, even in the absence of an attribution of conduct to a State. Lubell, analysing State practice and discussions from publicists like Frank, Greenwood, Dinstein, and Schmitt, concludes “that self defence may lawfully be invoked in response to attacks perpetrated by non-state actors.”130 Bethlehem also considers that: “States have a right of self-defense against an imminent or actual armed attack by nonstate actors.”131 88. The Chatham House “Principles Of International Law On The Use Of Force By States In Self-Defence,” adopted in 2005 with the goal of providing “a clear statement of the rules of international law governing the use of force by states in self-defence,” indicate without any ambiguity that: “Article 51 is not confined to self-defence in response to attacks by states. The right of self-defence applies also to attacks by non-state actors.”132 The principle is adopted following an analysis of customary law (beginning with the Caroline case) and Security Council practice after September 2001. They also rely on the views of the recognised publicists who participated in the discussion and supported the principle, such as Berman, Bethlehem, Greenwood, Lowe, Roberts, Sands, Shaw, Warbrick, and Wood.133 89. The Leiden Policy Recommendations produced at the behest of the Dutch government, concluded, after a threeyear consultation process: “It is now well accepted that attacks by non-state actors, even when not acting on behalf of a state, can trigger a state’s right of individual and collective (upon request of the victim state) selfdefence.”134 90. In this specific context, it should finally be noted that one should not automatically assume that terrorist threats and attacks faced by Israel cannot be attributed to a subject of international law under the current factual circumstances. Indeed, the Oslo Accords, as consented to by the PLO – and the international law foundation for the relations between it and Israel – reflect the fact that the PLO is an entity under international law capable of signing an internationally binding agreement, which arguably constitutes a reasonable basis for considering, depending on the specific factual circumstances, that actions of certain groups over which it has a certain authority or control can be attributed to it under international rules of attribution. Going further, to the extent that Palestine claims to be, and is recognised, as a State under international law, it automatically entails that it would be subject to international law obligations, including those relating to attribution of conduct under customary international law. Palestine cannot assert its statehood under international law while at the same time rejecting the obligations that logically flow from its assertion. Equally, as noted by Judge Higgins in 2004: “Palestine cannot be sufficiently an international entity to be invited to these proceedings, and to benefit from humanitarian law, 128. UNSC Resolutions 1378 and UNSC Resolution 1373. 129. Lubell, chapter 2. 130. Id., p. 35. 131. Bethlehem, 115, p. 775. 132. Chatham House “Principles Of International Law On The Use Of Force By States In Self-Defence”, principle 6. 133. Along the same lines, the Institut de Droit International adopted a resolution in 2007 stating that: “In the event of an armed attack against a State by non-State actors, Article 51 of the Charter as supplemented by customary international law applies as a matter of principle.” 134. Leiden Policy Recommendations On Counter-Terrorism And International Law, Netherlands International Law Review, LVII: 531-550, 2010, para. 38.
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