Self-Defence against Non-State Actors and the Myth of the Innocent State

Few issues concerning the use of force under international law have been more contentious than the legality of self-defence against non-state actors when the territorial state is ‘unwilling or unable’ to address the threat. One objection to this standard is that when a territorial state is merely unable to stop a threat by a non-state actor, any response on its territory would be unlawful since that state has not violated international law and is thereby ‘innocent’. This chapter challenges this claim. It argues that the argument from ‘state innocence’ anthropomorphizes and conceives the state as a physical person, its territory akin to a human body. Yet, when taking human rights seriously, rights attributed to the reified body of the state cannot override those of real-life people. It follows that state innocence alone should not exclude self-defence against non-state actors, at least when human life is threatened by their attacks.