That “Broad Consensus” for Unwilling/Unable Just Got Less Broad

by Kevin Jon Heller

A few days ago, I pointed out that Kate Martin’s “broad consensus that there is a right to use military force in self-defense when the host country is unable or unwilling to stop the attack” actually includes no more than four of the world’s 194 states. That consensus is not exactly broad — and it looks even shakier now that Russia has apparently rejected the “unwilling or unable” test in the context of Syria:

On Saturday, France launched a campaign of airstrikes against the Islamic State in Syria. Commenting on the effort, Russian Foreign Ministry spokeswoman Maria Zakharova pondered what kind of conception of ‘self-defense’ would drive one country to carry out an operation to bomb another without that country’s explicit permission.

Earlier, Prime Minister Manuel Valls was cited by French media as saying that Paris’s bombing campaign constitutes self-defense. “We are acting in self-defense,” Valls noted, according to Reuters.

In a post on her Facebook page, Zakharova pondered that “it would be nice to know more about this concept of self-defense, in the form of air strikes [on the territory of Syria,] a state which did not attack anyone, and without its consent, and about this concept’s compliance with international law.”

The spokeswoman referred to the fact that in its air campaign against ISIL, the Western coalition never once found the need to consult with Syria’s legitimate government, and on the contrary, has repeatedly declared that the elected government of Bashar Assad cannot be part of Syria’s future.Zakharova noted that she found it entertaining that “the referendum in Crimea is called an annexation, but air strikes conducted without the approval of the Security Council or of the receiving side is self-defense.”

The spokeswoman emphasized that while “it’s clear that the Islamic State is a threat to the entire world,” first two questions must be answered: “First, who was it that created ISIL? And second, on what basis are you acting on the territory of a sovereign state, bypassing a legitimate government which not only does not support, but is selflessly fighting against ISIL?”

Zakharova concluded that “this is not international law; this is its abolition in front of a shocked international community.”

If I was being picky, I would acknowledge that Zakharova did not specifically reject “unwilling or unable.” Her emphasis on the requirement of Syria’s consent nevertheless implicitly rejects “unwilling or unable” far more clearly than the statements by various governments that supposedly — according to Ashley Deeks — support the test. So it is more than fair to count Russia in the anti-“unwilling or unable” camp.

If you’re keeping score at home, that makes it: at most four states that support “unwilling or unable”; at least one state that rejects it.

And yet scholars claim that there is a “broad consensus” in favour of the test. Thus does method die not with a bang, but a whimper.

http://opiniojuris.org/2015/09/28/that-broad-consensus-for-unwillingunable-just-got-less-broad/

21 Responses

  1. Seriously? A facebook posting in which a spokesperson (quite understandably) wonders what the basis is for France’s claim of self-defense equals Russia’s rejection of the notion that a state can use self-defense against a nonstate actor where necessity and proportionality are satisfied? Evidence that Russia has now repudiated its own invocation of self-defense for its actions against Chechen rebels in Georgia?

    Wouldn’t it be more likely that Zakharova is merely asking why France has a right to act in self-defense here — e.g., Has there been an armed attack against France? What is the factual basis for thinking that Assad is unable or unwilling? Etc.

  2. Kevin, you know what, maybe you need a sort of simplified, a sort of scholastic explanation and demonstration, in order to understand the concept :

    A person is attacked , by a robber let’s say , all of a sudden in the street . Surly one may argue , that the police in such case of ad hoc assault :

    Is unwilling or unable ( or unable rather ) to protect such citizen . Since, the police can’t, he has the right of self defense, means:
    The unwilling or unable, triggers the self defense right, means:

    This is the corp of the right , what constitutes the right !! Because , if police could , he had no right , but to wait for police to take over , or lodging a complaint in the police station .
    What kind of argument is it: The west created the IS (by itself baseless)?? And since when a layman or politician spontaneously expressing thoughts, create or affect a legal consensus ?? Do you realize what you write ?? I don’t understand ??

  3. An interesting challenge could be to find one state that was actually attacked by organized armed groups that *rejects* the unwilling/unable standard in relation to its own specific circumstances.

  4. Response…To Marty: Okay, so you can question whether it is appropriate to speculate that Russia has repudiated in this instance. Personally, I think Kevin’s speculation is worthwhile.

    But, that aside, the underlying point about the overall speciousness of the congenital US reliance on Unwilling/Unable seems seems spot on.

  5. I think Eliav has posed a worthwhile thought exercise. Just as the opinio juris and state practice of coastal nations are more compelling in the development of custom pertaining to the law of the sea (as cf’d to landlocked nations), it would make sense that emerging practice would be better defined by assessing the actions of those states harmed by NSAs. In this regard, I think situations such as Kenya’s exercise of a self-defense justification in its response to attacks by al-shabaab suggest that this is (1) recognition of terrorist attacks as constituting armed attacks are not necessarily a ‘western’ phenomenon and (2) that even if it is far from clear that custom is emerging, it can’t be outright discredited as a possibility either. For the most part, I have been convinced by Kevin’s careful scrutiny of practice; but in this case, I would be reticent to lend much weight to a personal facebook posting, as Marty points out. But this is an interesting and thoughtful debate indeed!

  6. Elieblich: or what state thinks that the supposed limit is actually a limit of its inherent right of self-defense. In any even, if a state is being attacked by NSAs operating from another state it is evident that for that time period the state from which the NSA armed attacks emanate is quite “unable.”

  7. It appears that the Netherlands supports the unable or unwilling test as well, in interpretation and application of the condition of necessity that self-defence is subject to.

    See Advice by external adviser international law Prof. Nollkaemper (23 June), and the government’s reaction thereto (26 June). See also
    https://zoek.officielebekendmakingen.nl/dossier/27925/kst-27925-544?resultIndex=22&sorttype=1&sortorder=4
    Esp. answer to question 75 (only in Dutch).

  8. Thanks, Remy. As I’ve noted before, there is virtually no evidence of any states rejecting such a justification.

    Notably, the Dutch rationale, like that of the U.S., relies upon collective defense of *Iraq*, which certainly has suffered armed attacks by ISIL. The UK and France comments, however, at least suggest that those nations are engaged in self-defense on their own behalf, presumably before ISIL has engaged in any armed attacks against them–i.e.,”purely” anticipatory uses of force, or “first strikes.” This — and not the question of whether the right of self-defense extends to the prevention of armed attacks by nonstate actors — is what is truly (or potentially) groundbreaking about the UK and French rationales.

  9. Marty,

    You are completely whitewashing the Russian statement. She makes it extraordinarily clear that Russia believes the French attacks violate international law — “this is not international law; this is its abolition in front of a shocked international community.” And she makes clear that the basis for that conclusion is that Syria has not launched and armed attack and has not consented to the strikes — “a state which did not attack anyone, and without its consent.” The entire point of unwilling/unable is to make the launching of an armed attack or the consent of the targeted state irrelevant. The Russian statement is thus impossible to reconcile with the viability of unwilling/unable.

    (It’s also worth noting that government statements scholars like Deeks count toward unwilling/unable are far more ambiguous than the Russian statement, as I have noted before. I guess we only have to be precise about opinio juris when a statement makes it more difficult for the US and like-minded states to use force.)

    As for the Facebook issue, so what? I don’t recall the ILC saying that statements on social media cannot qualify as the opinio juris of a state. Do you think Zakharova is speaking only in her personal capacity? Has her statement been repudiated by another part of the Russian government?

    As for Russian hypocrisy on the issue, you are absolutely right. But they are no more hypocritical than the US, which has in the very recent past condemned unwilling/unable arguments that it disagreed with. Indeed, the hypocrisy on both sides of the debate — pro and con — is just further illustration that unwilling/unable is not a customary norm.

  10. Kevin, if you’d like to believe the Russians decided to be the first state to publicly opine that states cannot invoke self-defense against nonstate actors in a host state that has not consented nor contributed to the armed attacks, and that they decided to articulate such a novel view obliquely in a Facebook post in Russian, and thereby to condemn as unlawful their own practices, well, then, I’m afraid nothing I can say is going to dissuade you.

    Me? I’d wager there isn’t a single high-level Russian official who thinks such uses of force in self-defense are categorically prohibited by the Charter in cases where necessity and proportionality are satisfied.

  11. “The Russians decided to be the first state to publicly opine that states cannot invoke self-defense against nonstate actors in a host state that has not consented nor contributed to the armed attacks.”

    The only reason you can say something so self-evidently incorrect is that you simply dismiss as irrelevant all state practice between 1949 and 2001 — as well as any post-2001 practice that you find inconvenient. You literally seem to believe that the attribution requirement is some fiction scholars have invented to obscure the legacy of Caroline. There is obviously nothing I can say that will dissuade you from that position.

  12. Here’s a link to a recent ESIL presentation by Olivier Corten (Université libre de Bruxelles), entitled “The ‘Unable or Unwilling’ Theory; Has it Been, and Could it Be, Accepted?” He seems to subscribe to the crazy idea that unable/unwilling has not been accepted, but that it could be in the future — which is, of course, my position. Sadly, like me, he also fails to understand Marty’s point that state attribution has never been required, because the right of self-defence against NSAs has not changed since 1847.

    For the record, during his presentation, Corten cites six states as insisting that there is no right of self-defence against ISIS in Syria without Syria’s consent (Syria itself, Russia, Venezuela, Ecuador, Iran, and Cuba) and six that insist action against ISIS has to take place with the peaceful cooperation of Syria (China, Chad, Belarus, Brazil, South Africa, and India). Note that Russia is on the first list, indicating that the recent Facebook statement does, in fact, reflect Russia’s position.

  13. If you’ll permit me a bit of self-promotion and a more nuanced response from the Dutch MFA (also for those who cannot read Dutch) in a recent paper Christophe Paulussen and I wrote surveying EU Member States on such questions (see page 32 et seq. here: http://icct.nl/wp-content/uploads/2015/05/ICCT-Dorsey-Paulussen-Towards-A-European-Position-On-Armed-Drones-And-Targeted-Killing-Surveying-EU-Counterterrorism-Perspectives.pdf):

    “The Netherlands holds that self-defence under article 51 UN Charter can provide a legal basis to use force in case of an (imminent) armed attack.The Caroline-criteria provide a useful instrument in order to assess whether an attack is imminent. From this it follows that general, non-specific, threats by terrorist organisations cannot be classified as an imminent attack. Under specific circumstances it is possible that force is used in self-defence against autonomous nonstate actors.This does not require attribution to a third state but a determining factor in such cases is whether or not a state is willing and/or able to respond to attacks by NSA[s] [i.e. NonState Actors] from its territory. With respect to consent the Netherlands endorses the conclusion of the Advisory Committee on Issues of Public International Law (CAVV) that valid consent for the use of force by third states on its territory must be given by the territorial state.”

    This is similiar in many respects to what Remy points out in the recent Q&A sessions of the Dutch Parliament–that unable/unwilling can be a factor–but one crucial aspect that is key to the Dutch position is the consent piece–which, in this case with France and Syria, the Russians (and Kevin et al.) also focus on.

  14. Could it be that the authori missing the point as he misqualifies the French justification? The French justification does not seem to be based on unwilling or unable but on a quite interesting and broat interpretation of self-defence: The threat ISIL creates because of possible ties to Islamists in French banlieus.

    “Il y a un an, Paris refusait d’intervenir en Syrie et estimait alors qu’aucun cadre juridique et politique ne pouvait légitimer une intervention. Les attaques en France commanditées depuis l’Irak et la Syrie lors de cette dernière année contribuent à accréditer la légitime défense : Sid Ahmed Ghlam à Villejuif, Yassin Salhi en Isère, Ayoub El-Khazzani dans le Thalys Amsterdam-Paris…

    La légitime défense est également le moyen invoqué par le Royaume-Uni dans le cadre de ses frappes contre l’Etat islamique et plus particulièrement contre des djihadistes britanniques.”

    En savoir plus sur http://www.lemonde.fr/les-decodeurs/article/2015/09/27/5-questions-sur-les-frappes-francaises-en-syrie_4773838_4355770.html#f3ICbJ1wB3gQD4Cp.99
    http://www.lemonde.fr/les-decodeurs/article/2015/09/27/5-questions-sur-les-frappes-francaises-en-syrie_4773838_4355770.html

  15. Thanks so much, Jessica, for your efforts to pin down any public European state responses. (Not surprisingly, only two states offered responses on the record.) I look forward to reading the entire paper.

    As for the Dutch response, however, I think it’s fairly clear that they were *not* asserting that self-defense is only permissible with the host state’s consent. They were addressing two separate and independent grounds on which a use of force within the state would comply with the jus ad bellum — indeed, the discussion is preceded by a sentence stating, correctly, that there are three distinct justifications: “This memorandum outlines as legal bases; self-defence, a UN Security Council mandate and consent by the state where force is used.” The discussion of consent is about the circumstances under which an indication of state consent is “valid” and when it’s not.

  16. Marty and Jessica: it seems correct to note that some who claim a right to use force in anticipatory self-defense when an armed attack is supposedly “imminent” but has not started (as the text of Article 51 requires, i.e., “occurs”) might misread the Caroline case (which was all about self-defense claims when NSA armed attacks had occurred and were ongoing — and The caroline was supplying rebels prior to the UK attack that very date) and might also allege that “necessity” can pertain when the foreign state is “unwilling or unable.” If the text of Article 51 is met, the NSA armed attack(s) have already begun or have been occurring and it is already “necessary” to respond and the foreign state is already and/or has been “unable” so necessity has been met and there is no need for an unwilling or unable inquiry.
    THEREFOR, one should identify whether a state that is in the minority and thinks that there is some “unwilling or unable” limitation of the inherent right of self-defense is a state that is also in the minority (however somewhat large) that claims a right contrary to the text of Article 51 to engage in anticipatory self-defense.

  17. RJ, the key word is “commanditées” or ordered from Irak or Syria. The quote then notes three tragic cases on French soil. The language suggests some type of command and control structure which in fact does not exist. Inspired by, cheered on by, yes, but ordered or commanded, what is the evidence?

    I fully agree that the countries involved are trying to let an “unable or unwilling” phrase be a makeweight argument so it does not look like they are acting with impunity. You buy the makeweight, you miss the impunity. You challenge the makeweight, you see the impunity.

    Best,
    Ben

  18. Benjamin,

    exactly. So is France actually putting forward an entirely new interpretation of self-defence? An organizational connection between terrorist attacks on its soil and IS in Iraq and Syria? Unfortunately, I could not find the letter to the UNSC (yet) or any other info on their actual legal justification.

  19. I wonder if the French “legitime defense” definition might provide an answer RJ. Not sure where to find it, but I wonder.

Trackbacks and Pingbacks

  1. visite aquí

    Opinio Juris » Blog Archive That “Broad Consensus” for Unwilling/Unable Just Got Less Broad – Opinio Juris

  2. […] idea that cross-border force is justified under customary international law when a sovereign is “unwilling or unable” to prevent violence, or the negligible public and legal debate within in the United States since […]