What Is The Legality Of Extraterritorial Use Of Force Against Non-State Actor By UPDF In South Sudan

By Deng Gai Gatluak

Opinion.

April 15th, 2015 (Nyamilepedia)-Following the terrorist attacks on the United States on 11 September 2001 that resulted to war on terror, launched by the United States (and most of its allies), states have increasingly used force outside their frontiers against non-state actors.

Examples of this are notably, the Israeli use of force against the Hezbollah in Lebanon, the United States intervention against Al-Qaeda in Yemen, Pakistan and Somalia, and Turkey against the Kurdish Workers Party in Iraq. The non-state actors named in the given examples are different with regards to their ideologies, purposes, tactics and capabilities. Armed non-state actors encompass terrorists, rebels, pirates, warlords, mercenaries, separatists, guerrillas, militias and freedoms fighters.

Extraterritorial use of force against non-state actors can take many forms: drone attacks, fight against pirates (for example, on Somalia territorial waters) and invasions. Furthermore, the non-state actors against whom the use of force is conducted include not only sub-national actors acting at national level, but also trans-national actors with global agenda like Al-Qaeda. It should also be noted that the collapse of communism and the complete break-down of governments in former Soviet-Union and former Yugoslavia created a fertile ground for non-state actors to flourish. Moreover, the advancement of technology gave these groups to conduct transnational attacks in different ways.

Use of force against non-state actors in the territory of another state is still a subject that needs an in-depth analysis of the concept and principles of the use of force. However, no one can deny the controversy and debate it has brought about in the area of international law. It is clearly stipulated in the UN Charter that military actions carried out against a non-state actor in another state are prohibited by Article 2(4) of the UN Charter. This article stipulates that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Consequently, any unilateral use of force, unless exceptions as provided by the UN Charter, will result in a breach of Article 2(4) of the UN Charter. In addition, the International Court of Justice in the Nicaragua Case held that the ban on the use of force is both a rule of customary international law and jus cogens. States attempt to adopt a broader interpretation of Article 51 of the UN Charter because it “provides the only escape from the prohibition of use of force”.

Extraterritorial use of force against non-state actor is mostly justified on the grounds of self-defense. This requires a compendious discussion on the legality of self-defense when used by states against non-state actors (within the territory of another state). Article 51 of the UN Charter provides that a state may exercise a right of self-defense against another state.

However, it fails to mention the nature of the party responsible for the attack or action triggering this right to self-defense. The International Court of Justice found that “Article 51 of the Charter thus recognized the existence of an inherent right of self-defense in the case of armed attack by one state against another state.

From this ruling, it can be deduced that a state may not exercise its right to self-defense against another state when there is no evidence of the latter’s involvement in actions perpetrated by non-state actors. In Armed Activities case, the International Court of Justice rejected Uganda’s claim of self-defense on the ground that attacks, while emanating from the territory of the Democratic Republic of Congo, were not directly attributable to this state.

SPLM/SPLA/IO as a Non-state actor acting as de facto regime

There are two opposing doctrines about recognition of governments: the Tobar doctrine or doctrine of legitimacy and the doctrine of the effectiveness. The latter provides that a new government which exercises effective control of a territory with a “prospect of permanency” should be recognized as de jure government. A recognition as de facto government is an acknowledgement by other states about its effectiveness. In 2013, the SPLA/IO took control of Greater Upper Nile and many parts of South Sudan. The SPLM/SPLA/IO received in South Sudan delegations from the United Nations like the Special Envoy of the Secretary-General of the UN, Francois Losseny Fall and Louis Michel from the European Union.

It may be deduced that the SPLM/SPLA/IO was acting as de facto government alongside a recognized but ineffective Government of the Republic of South Sudan which controlled only the town of Juba and Greater Bahrel Ghazal Region by then. It is relevant to analyzed whether an attack from the SPLA/IO could be attributed to the South Sudan state. The answer is no, because the GOSS had no control over the SPLA/IO. Its actions could not be imputed to the host state. If the attack could not be attributed to the state, no action of self-defense against the non-state actor was possible. The state can be held responsible only for its inability to prevent attacks perpetrated by the non-state actor.

A possible solution for the victim state is to request the consent of the recognized government which is a circumstance precluding the wrongfulness of the act. Another scenario in 2009 is when another non-state actor took power in the capital and most parts of Somalia. Al- Shabaab is considered by Ethiopia and the USA as a terrorist group. There was also a recognized but ineffective TFG which controlled only a small part of Mogadishu.

Attacks committed by Al-Shabaab could not be attributed to the Somali state represented by the recognized government. No action of self defense against the non-state actor is permitted by international law without a substantial state involvement.

In the case where a non-state actor acts as de facto regime, and where there is no de jure government in the state, its acts should be considered as acts of the state. Article 10 of Drafts Articles on State responsibility provided that a conduct of an insurrection group which becomes a new government of a state shall be considered an act of this state. For instance, acts of SPLA/IO would be attributable to South Sudan in absence of another competing faction internationally recognized. A victim state may be entitled to exercise the right of self-defense against the de facto regime.

In Conclusion;the extraterritorial use of force against a non-state actor is prohibited unless it perpetrated a large scale attack with an involvement of the state. If the action of the non-state actor amounted to an armed attack but there is no state attribution for this action, the victim state shall request the cooperation of the host state in order to prevent future attacks.

If the state intervenes forcibly without requesting the assistance of the host state, it fails to meet the test of necessity and its claim of self-defense will not be considered as lawful. In the case of a non-state actor acting as de facto regime in a state, its action will be considered as actions emanating from the state. Therefore, victim state may exercise a right of self-defense against its attacks.

Finally, the military intervention of UPDF (Uganda’s People’s Defense Force) in South Sudan’s post-Independence internal Conflict (Civil War) in its entirety is illegal and should be condemn by the regional bodies and international Community.

The Author, Deng Gai Gatluak is a South Sudanese Young Lawyer living in Nairobi Kenya and Can Be Reach Through denggaigatluak@ymail.com