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The Principle of Sovereign Equality with Respect to Wars with Non-State Actors

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Abstract

The desire to defend a state against attacks by a non-state actor requires thinking about counter-attacking without violating the sovereign equality of the territorial state because targeting a non-state actor on the territory of that state may violate its sovereignty. This paper evaluates the main views on self-defense by states against non-state actors by studying the Just War Theory and argues that self-defense against a non-state actor is allowed if the counter-attack complies with the principle of sovereign equality. Sovereign equality is the prohibition of states from dominion over other states because states are equal to one another. This principle can be respected by allowing self-defense against non-state actors to occur only if the state consented to the use of force on its territory or if that state is incapable of controlling or unwilling to control the non-state actor.

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Notes

  1. Francisco Suarez mentions this objection but rejects it himself (Reichberg et al. 2006, p.350). As Luban claims, this objection also applies to wars between NSAs and states, because although NSAs are not equal to states, punishment is not a just cause for wars between them, because warring parties cannot “[…] judge the justice of their own wars impartially” (Luban 2012, p.318).

  2. See, for example, Thomas Aquinas in Reichberg et al. 2006, 177.

  3. All references will be given with the original publication date in brackets.

  4. In the early Christian tradition of just war, the kind of punishment that was in view was retributive punishment—that is to say a morally motivated response to past wrongdoing.

  5. See David Luban (2012) for a detailed account on the history of war as punishment.

  6. Michael Walzer defines aggression as such, because, as he argues, “aggression opens the gates of hell” for the reason that it challenges rights that are worth dying for (2006a [1977], p.52). However, sovereignty is no longer absolute. In addition, not every infringement of sovereignty triggers a war.

  7. Recently, the United Nations established the Responsibility to Protect initiative, which is an emerging norm that calls for intervention by the international community in conflicts internal to a nation that is failing to protect (or guilty of harming) its citizens from Mass Atrocity Crimes (U.N. Doc. A/308 (2009)).

  8. The NSAs at that time were pirates and privateers.

  9. This perspective leaves little room for civil war and revolution. However, The Geneva Conventions chisel a wedge into the claim that only states are actors in war, because Article 3 of the Third Geneva Convention states that if one of the parties to a civil war is a state, both parties to the conflict are bound to humanitarian provisions.

  10. This view is based on the conception of a world order existing out of states: an international order. International law would according to this conception regulate the relationships between states. Jeremy Bentham first used the term international law (Shaw 2008, p.1; Bentham 1781).

  11. Scholars who support this view are, among others, Thomas Aquinas (Reichberg et al. 2006), St. Augustine (La Croix 1988; Reichberg et al. 2006), Marcus Tullius Cicero (1998 [51 B.C.]), Hugo Grotius (2001 [1625]), David Rodin (2002), Emerich de Vattel (1758), Francisco de Vitoria (La Croix 1988; Reichberg et al. 2006), and Michael Walzer (2006a [1977], 2006b).

  12. This view is supported by Giovanni da Legnano (1917, p.307), David Luban (1980), Rosa Brooks (2004), David Koller (2005), Nicholas Fotion (2006), and Jeff McMahan (2009) among others. For a detailed account on Legnano’s theory of reprisals, see Jasonne Gabher O’Brien (2002, pp.25–55).

  13. From Jeff McMahan’s (2009) perspective, military force may be used against individuals who are fighting an unjust war.

  14. This is the quality of sovereignty as in Article 4 of United Nations Charter. Brownlie describes sovereignty as the central pillar of international law (Brownlie 2008, p.287).

  15. The exception to this generalization is the case of an NSA operating entirely on and from the high seas.

  16. Yoram Dinstein endorses this view by referring to the Corfu Channel case (2005, 244; ICJ 1949, Corfu Channel, p.22).

  17. The relationship between the responding state and the NSA will not be discussed here; rather the focus is on the sovereignty of the territorial state.

  18. The requirement of “failing to control” could be interpreted in the sense of failing to react to an armed attack of an NSA after the fact, and of failing to prevent an armed attack launched by an NSA. The latter is less preferable, because it alters the Caroline criteria of immediacy, necessity, and proportionality (1840–1842).

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Acknowledgments

Part of this research was conducted while visiting Georgetown University and I would like to thank the Kennedy Institute of Ethics, and the Department of Government for their hospitality. An earlier version of this paper was presented at the 2012 International Society for Military Ethics (ISME) Conference at the University of San Diego, the 2012 Society for Christian Philosophers Midwest Regional Conference at Hendrix College, the Law Research Fellows Collaborative of Georgetown University, and the 2012 Gallatin Interdisciplinary Graduate Student Conference: Global Justice and Ethics at New York University. I would like to thank members of these audiences for their feedback. I would also like to thank Virginia Held, David Luban, Roland Pierik, Peter Rijpkema, Yolande Jansen, and an anonymous referee for their helpful comments and suggestions.

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Correspondence to Hadassa A. Noorda.

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Noorda, H.A. The Principle of Sovereign Equality with Respect to Wars with Non-State Actors. Philosophia 41, 337–347 (2013). https://doi.org/10.1007/s11406-013-9435-4

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