The Unwilling or Unable Doctrine Comes to Life

by Jens David Ohlin

Today the U.S. launched airstrikes against ISIS and other extremist groups within Syrian territory. In the past, airstrikes were limited to Iraqi territory, which came with the consent of the Iraq government (and were thus legally uncontroversial from the perspective of jus ad bellum). Today’s airstrikes require a sophisticated legal argument to explain the intrusion on Syria’s territorial sovereignty. Samantha Power’s letter to the United Nations indicates that the Obama administration is relying on a combination of Article 51 of the U.N. Charter and the “unwilling or unable” standard:

September 23, 2014

Excellency,

In Iraq’s letter to the United Nations Security Council of September 20, 2014, and other statements made by Iraq, including its letter to the United Nations Security Council of June 25, 2014, Iraq has made clear that it is facing a serious threat of continuing attacks from ISIL coming out of safe havens in Syria. These safe havens are used by ISIL for training, planning, financing, and carrying out attacks across Iraqi borders and against Iraq’s people. For these reasons, the Government of Iraq has asked that the United States lead international efforts to strike ISIL sites and military strongholds in Syria in order to end the continuing attacks on Iraq, to protect Iraqi citizens, and ultimately to enable and arm Iraqi forces to perform their task of regaining control of the Iraqi borders.

ISIL and other terrorist groups in Syria are a threat not only to Iraq, but also to many other counties, including the United States and our partners in the region and beyond. States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defense, as reflected in Article 51 if the UN Charter, when, as is the case here, the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will not confront these safe-havens effectively itself. Accordingly, the United States has initiated necessary and proportionate military actions in Syria in order to eliminate the ongoing ISIL threat to Iraq, including by protecting Iraqi citizens from further attacks and by enabling Iraqi forces to regain control of Iraq’s borders. In addition, the United States has initiated military actions against al-Qaida elements in Syria known as the Khorasan Group to address terrorist threats that they pose to the United States and our partners and allies.

I request that you circulate this letter as a document of the Security Council.

Samantha J. Power

His Excellency
Mr. Ban Ki-moon
Secretary-General of the United Nations
New York, NY

So the structure of the argument goes as follows. The right of response is originally Iraqi, and the U.S. right of intervention is parasitic upon the Iraqi claim. Iraq has been attacked by ISIS, thus triggering Iraq’s right of self-defense against ISIS. Furthermore, since Syria is apparently unable to adequately respond to the ISIS threat and prevent its forces from using Syria as a base of operations to launch attacks against Iraq, then Iraq is entitled to use military force against ISIS installations and forces in Syria, even without the consent of the Syrian government or authorization from the Security Council. In other words, this falls under the inherent right of self-defense that is carved out by Article 51 of the U.N. Charter as an exception to the general prohibition on the use of force contained in article 2 of the U.N. Charter. The U.S. is intervening militarily to vindicate Iraq’s self-defense interest as a case of individual or collective self-defense.

A few observations here:

First, this was a predictable development. I don’t see another avenue for the U.S. to legally defend the intervention, unless it wanted to rely on the even more controversial RTP doctrine, which isn’t terribly relevant here. Nor was a Security Council resolution possible (given Russian and Chinese positions on Syria).

Second, it will solidify the growing interpretation of the customary international law on self-defense as applying to attacks by non-state actors. I view this position as absolutely correct, pace the International Court of Justice and its unsupported statement that the Article 51 right of self-defense only applies to attacks by states (which is nowhere mentioned in Article 51 anyway). In addition to the Security Council resolution after the 9/11 attacks, the world community’s reaction to the armed conflict against ISIS will be highly relevant for crystallizing the correct interpretation of self-defense as applying to attacks from state and non-state actors alike.

Third, the world reaction to the conflict against ISIS in Syria will help resolve the uncertain status of the unwilling or unable standard for force against non-state actors in third-party territory. Although the status of the doctrine has in the past been in doubt, international law is very much an evolving creature, and years from now the present conflict will no doubt be an important exhibit in that debate. In other words, even if “unwilling or unable” is not the current state of the law, it may well be very soon on account of the present conflict, the U.S. legal justification for it, and the world’ community’s reaction to same.

 

http://opiniojuris.org/2014/09/23/unwilling-unable-doctrine-comes-life/

7 Responses

  1. “States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defense, as reflected in Article 51 if the UN Charter, when, as is the case here, the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will not confront these safe-havens effectively itself. Iraqi forces to regain control of Iraq’s borders.”

    The “must” is the key. It is purely an assertion of state power untethered from an established rule. There is little or no limitation of the state’s power to evaluate the other state’s inability or unwillingness. It is a logic of naked aggression. The acquiescence of other states will likely be not from any sense of legal obligation but of superior power to assert one state’s will. It is dangerous and extremely provocative.

  2. Ohlin: “The right of response is originally Iraqi, and the U.S. right of intervention is parasitic upon the Iraqi claim. Iraq has been attacked by ISIS, thus triggering Iraq’s right of self-defense against ISIS.”

    Power: “In addition, the United States has initiated military actions against al-Qaida elements in Syria known as the Khorasan Group to address terrorist threats that they pose to the United States and our partners and allies. …”

  3. The U.S. is asserting two different justifications, one for each target. For ISIS, the argument is collective self-defense on behalf of Iraq. For Khorasan, the argument appears to be U.S. self-defense against al-Qaeda (broadly construed), though there is some vagueness here.

  4. Over at just security there is an article about French, Dutch, and British not willing to go into Syria.

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