“Save in the Common Interest”: Confronting Legal Hegemonies in the Law of Self-Defense Against Terrorist Acts

Abstract

The aftermath of 9/11 has triggered expanding interpretations of selfdefense, enabling the exercise of self-defense against non-state actors. This interpretation is permitted by the wording of Article 51 of the UN Charter. However, controversies over the extension of self-defense under the Unable or Unwilling Doctrine in the aftermath of Syria, the application of selfdefense to attacks by Houthis against commercial vessels in the Red Sea, or legal concerns regarding the proportionality of the Israeli response to the October 7 attacks, illustrate some of the ongoing contestations regarding the use of force under the umbrella of counterterrorism. It is more necessary than ever to refine safeguards and constraints in the context of the resurgence of imperial ambitions or moves toward a “deal-based,” rather than a “rules-based” order. The Security Council and the International Court of Justice have only played a marginal role in curbing risks. The Gaza war has shown four radically different readings of self-defense, and the risks of rationalizing human cost through necessity and proportionality justifications. This article proposes a number of ways to curtail abuses of self-defense and confront legal hegemonies in the law governing the use of force. They include a greater focus on de-hegemonic approaches toward consent and cooperation prior to the exercise of self-defense, the development of clearer evidentiary standards, the option of compensation in case of the violation of necessity or proportionality criteria, broader transparency and discursive accountability relating to claims of self-defense under Article 51, and a reinvigoration of the role of the General Assembly.