Guest post: A Response to Kevin Heller on the Nature of Self-Defense

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.] 

Kevin was right that my Just Security post misstated the legal standard for self-defense by stating that Syria could rightfully treat US attacks on ISIS on Syrian soil as aggression if the US had established that it was acting in self-defense.  As he said, such a use of force in self-defense cures any sovereignty violation that the United States might have committed.  This is, of course, how it works in theory.  Reality is somewhat different.

In practice, any state relying on the “unable or unwilling” standard (as the United States did in Pakistan to support the bin Laden raid) will have no way of knowing whether the target state will see things the same way.  By definition a state relying on the “unable or unwilling” standard lacks permission from the host/target state to use force on its territory.  This is why I said that the US would act at its own peril in Syria.  Any state taking such action will do so at its own peril because the host/target state might believe itself to be justified in using force to repel perceived aggression.   That is why the US used its most advanced and stealthiest helicopters for the bin Laden raid because they anticipated that Pakistan might react to an unannounced incursion with force.

Further, in most incidents of anticipatory self-defense (which is what any strike relying on the “unable or unwilling” standard is likely to be based upon) the host/target state claimed that the use of force on its territory was illegal and in many cases did exercise what it maintained were its sovereign rights to respond to the incursion with force.  To use the 1967 War as an example, Israel claimed that its first strike against the Egyptian Air Force was an exercise of self-defense because Egyptian, Syrian, Jordanian and Iraqi troops were massing on its borders and Egypt had closed the Straits of Tiran to Israeli shipping.  IF Israel’s claim of self-defense was valid this would cure its sovereignty violations, and the Egyptian anti-aircraft batteries would be prohibited from firing on the Israeli planes as they bombed the Egyptian airfields.  Even if theoretically international law contained such a prohibition, would any state in Egypt’s position honor it?  The answer is self-evidently, no.

The reality is that any states relying on the “unable or unwilling” standard to support a claim of self-defense will do so while anticipating and preparing for armed resistance from the host/target state.  And host/target states which have not granted permission for others to use force on their territory will assert a right to defend their sovereignty by treating such uses of force as aggression, and by responding with force if they so choose.   The host/target state’s response, though theoretically unlawful, is very likely to occur and is something that any state relying upon the “unable or unwilling” standard will both anticipate and factor in to its decision to use force.

http://opiniojuris.org/2014/09/15/guest-post-response-kevin-heller-nature-self-defense/

8 Responses

  1. Isn’t the whole discussion a theoretical one? Since to be relevant it would require the US’s claim of self-defense against Syria/ISIS being valid. This is evidently not the case: It can’t possible be argued, that the military operations conducted by ISIS on Syria’s territory constitute an armed attack against the US under the standards of international law.

  2. I think this is an excellent post. Mine, of course, was limited to the narrow legal point. But Mike’s concerns are well-taken: no state can be sure the state that it attacks will accept its claim of self-defence — nor can it be sure the international community will accept that claim. And that is particularly true with the “unwilling or unable” standard, which has yet to find any significant international support, much as the US would like to pretend otherwise.

  3. Michael: Yes, it appears that an “unwilling or unable” limitation on the inherent right of self-defense would only be relevant if one accepts a minority viewpoint that “anticipatory” self-defense should be permissible despite the express limitation of the inherent right of self-defense in Article 51 of the U.N. Charter set forth in the phrase “if an armed attack occurs.” Once an armed attack occurs or a series of armed attacks are occurring it would be manifestly evident that the state from which the armed attacks emanate is “unable,” for that time, to control its territory.
    Lucas: yes, self-defense will not work for the U.S. since no armed attack against the U.S. by ISIS has occurred or is occurring, but collective self-defense with the consent of the Iraqi government, that is under a process of armed attacks from ISIS, works.
    Michael: I don’t know that it follows that the Egyptian military “would be prohibited” from engaging Israeli aircraft, although one might conclude that the Egyptian use of force would not be justified under self-defense [for Egypt]. Maybe I am missing something here, but is there a “prohibition”? If the Egyptian military could not respond, and did not, would the “attack” be over?

  4. This US warning would likely provoke a response from Syria with Russia in the next day or so.

    I am seeing this logic being:

    1) Because I say you are unable or unwilling to take out these people who have killed two of my people (and other people of my allies) and that I see as a threat who are on your territory,
    2) because I can I am taking (Insert Name) out in your territory with force,
    3) if you respond to my planes on your territory with your air defense you are not neutral, so
    4) I will take out your air defense systems.

    Best,
    Ben

  5. Agreed that “unwilling or unable” is not a limitation of the inherent right of self or collective self-defense and would only be relevant if a minority viewpoint regarding “anticipatory” self-defense could be accepted despite the express limitation of whatever had been self-defense under CIL in Article 51 of the UN Charter, e.g., “if an armed attack occurs.”
    Hey Ben: the Assad regime could ask Iran to provide “boots on the ground” as part of collective self-defense against ISIS. Apparently the Obama plan is now merely to contain and degrade ISIS in Syria (at least today) and not to defeat ISIS there.

  6. Yes Jordan they could do that. I am seeing this more as a joint US-Iraq (Shia – Peshmerga) effort mainly to get ISIS out of Iraq and then do hot pursuit of them into Syria.
    Best,
    Ben

  7. Michael,

    As hostilities are already underway between ISIS and Iraq (and the US), is ‘unable or unwilling’ the right test or is that better suited, as Jordan suggested, for anticipatory self-defence? Might not a better analogy be with the law of neutrality?

    If the law of neutrality is a good analogy, then at least to the extent that the US Field Manual 27-10 accurately reflects the law, if Syria fails for any reason to prevent ISIS using its territory to support ISIS operations in Iraq, Iraq (and its allies) are justified in conducting attacks in Syria. Notably, paragraph 520 of FM 27-10 does not mention any preconditions, such as Iraq calling on Syria first or requesting Syrian consent.

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