Stephanie A. Barbour & Zoe A. Salzman

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This article examines the issue of the right of States to use self-defense against non-State actors that is raised by the International Court of Justice’s judgment in the case of Armed Activities on the Territory of the Congo (DRC v. Uganda). This article begins with a doctrinal examination of the Court’s self-defense analysis, focusing on the questions of armed attack by non-State armed groups and the requirement of attribution to a State. It suggests that the Court struggled with its self-defense analysis because of the difficult questions raised by the application of the international law on self-defense to non-State actors in control of an ungoverned territory. It posits that in such a situation, requiring attribution to a State is an inapposite test, which ought to be rejected in favor of holding non-State actors directly responsible. The article concludes by setting forth a prognosis for the future of international law if actors, such as the International Court of Justice, continue to miss opportunities such as the one presented in Armed Activities to engage with these questions.