France Fails to Adopt “Unwilling or Unable” in Syria

by Kevin Jon Heller

Last month, Ashley Deeks claimed that France appeared “to be prepared to invoke the ‘unwilling or unable’ concept in the Syria context.” France did indeed attacks ISIS targets in Syria. And it reported those strikes to the Secretary-General of the UN, claiming self-defence under Art. 51 of the UN Charter as a rationale for violating Syria’s sovereignty. But then something funny happened on the way to the Forum: France did not invoke the “unwilling or unable” theory. Here is its Art. 51 letter:

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Looks like the “broad consensus” in favour of “unwilling or unable” now stands at three states — the US, UK, and Australia — not four.

Hat-Tip: Thierry Randretsa, author of the blog Dommages civils.

http://opiniojuris.org/2015/10/11/france-fails-to-adopt-unwilling-or-unable-in-syria/

14 Responses

  1. Kevin, surely you realize that the French letter is *more,* not less, permissive than those of the other nations. As we’ve been over a number of times now, the “unable or unwilling” test is a means of *restricting* the exercise of force in self-defense.

    The real issue that divides us is whether the armed attack of a nonstate actor such as ISIL can be the predicate for an article 51 use of force in self-defense (or, here, collective defense of Iraq) in a nonconsenting state such as Syria. You insist that it cannot be. But no states take that view. And France here specifically rejects it, too, just as the U.S., UK, etc., have done.

    The US and UK letters expressly indicate that even after a nonstate actor’s armed attack, the victim state cannot use force in the nonconsenting state unless that latter state is unwilling or unable to address the threat–an application of the ad bellum “necessity” requirement. The France letter, surprisingly, does not even advert to that — suggesting, perhaps, that France would be entitled to act even if Syria *were* able and willing to deal with ISIL (a position that I’m confident France would not actually assert).

  2. The real issue that divides us is whether the armed attack of a nonstate actor such as ISIL can be the predicate for an article 51 use of force in self-defense (or, here, collective defense of Iraq) in a nonconsenting state such as Syria.

    You continue to illustrate that you simply do not understand how self-defence works. No one, at this point, believes that an armed attack by an NSA cannot give rise to the right of self-defense. I certainly don’t, and nothing I have ever written indicates otherwise. The question is whether, to qualify as an “armed attack” within the meaning of Art. 51, an NSA’s armed attack must be in some sense attributable to a state. As literally dozens of books and articles make clear (I’ve pointed you to a book by Tom Ruys and an article by Christian Tams), the traditional customary position prior to 9/11, established by over fifty years of practice and regularly affirmed by the ICJ, is that it must. “Unwilling or unable” is simply the attempt by certain states to eliminate the attribution requirement — which means, as we have been over again and again, that you are wrong to claim that the test is an aspect of self-defense’s necessity requirement, because it is actually an attempt to bring certain kinds of traditionally unattributable attacks by NSAs into the ambit of self-defense in the first place.

    Before you continue to accuse me of making arguments that I am quite obvioulsy not making, you should really try to understand what jus ad bellum scholars mean by the attribution requirement. Because the real issue that divides us is whether Art. 51 ever required armed attacks by NSAs to be attributable to a state in order to give rise to the right of self-defense. In rejecting that idea, you are swimming alone in a very large sea.

  3. Readers who are coming late to this debate should note that Tom Ruys, the author of the leading book on Art. 51 and the right of self-defense, wrote a long guest-post for us in which he explains why Marty’s position — that attacks by NSAs have never had to be attributable to a state in order to qualify as the kind of “armed attack” that gives rise to the right of self-defense — is incorrect. I note that Marty never responded to that post, which you can find here.

  4. Why not account for this situation by interpreting art 51 and 2(4) in present day condition?. But in a realism approach in a sense that a rule should suit the practice and will of the community. Should we hold that the so called “Armed attk” in 1945 still takes the same bearing as today?. Otherwise all in violation!!!!

  5. We don’t disagree on the basic dispute, Kevin. My formulation was simply shorthand for, or a variation of, what you write: “The question is whether, to qualify as an “armed attack” within the meaning of Art. 51, an NSA’s armed attack must be in some sense attributable to a state.” I agree. If the attack is “attributable to” the host state, in the sense you mean — e.g., the state has aided or abetted the armed attack — then it becomes, in effect, an armed attack by the state. And everyone agrees that an armed attack by a state–or for which it is responsible–can justify necessary and proportional use of force in self-defense.

    The dispute between us, such as it is, is whether an armed attack by a nonstate actor can trigger an Article 51 right of self-defense when the host state is *not* responsible for the attack.

    And on that question, every state that has spoken to the question–including France–agrees that the answer is “yes.” Even so, the self-defensive use of force must be “necessary” to address the continuing threat from the nonstate actor–and it’s not necessary if the host state is itself willing and able to address the threat.

  6. An aside on Kevin’s invocation of Tom Ruys’s fine post from March (http://opiniojuris.org/2015/03/12/guest-post-self-defence-and-non-state-actors-in-the-cold-war-era-a-response-to-marty-lederman/):

    I did not respond to the post then because I simply overlooked it. But in any event, now that I’ve reviewed it, I’m pleased to say that I agree with much of it.

    Most importantly, Professor Rhys agrees with me that the issue at hand is not “unable or unwilling” but instead whether the “inherent” right of self-defense referenced in Article 51 encompasses attacks by nonstate actors that are not (in a strong sense) “attributable to” the host state.

    Professor Rhys further appears to agree with me both that the right of self-defense *before* the Charter uncontroversially covered such cases, and that the “inherent” right of self-defense has been understood to cover such cases since 1980. (He does not cite any states that have rejected the notion over the past 35 years. And as the recent actions by many states in Syria attests, it is plainly not the common view today.)

    He also agrees with me that the seminal Caroline case is at least in *some* respects relevant to defining the “inherent” right to self-defense in Article 51: “I essentially agree,” he writes, “that the Caroline case has largely constituted the source of inspiration for the customary requirements of necessity and proportionality in the context of the right to self-defence.”

    Our only point of departure, then, appears to be what the law of the Charter was understood to be between 1945 and 1980 on the question of a requirement of state attribution for nonstate actors’ armed attacks–a question that didn’t receive much attention in that 35-year-period because there weren’t all that many instances in which states had occasion to use force in the sovereign territory of another nation without its consent against nonstate actors. (The chart at the back of Ashley Deeks’s paper cites mostly actions in Africa by France and Portugal, and the U.S. use of force in Cambodia, which is complicated by questions of consent.)

    On that score, we do disagree somewhat. My assumption has been that the states that ratified the Charter meant to incorporate the precedent of the Caroline as a whole in the notion of the “inherent” right of self-defense–that it would have been a very dramatic, and deeply counterintuitive, development if they had abandoned the right to do what the British had done in that case *assuming* that necessity and proportionality were satisfied. Professor Ruys would read the Charter to incorporate the “necessity and proportionality” aspects of the Caroline precedent, but not the “self-defense against nonstate actors that have attacked in a way not attributable to the host state” aspect. I am doubtful that the Charter meant to cut the Caroline sausage so finely–accepting some aspects of it as part of the “inherent” right to self-defense, but not others.

    Professor Ruys is, of course, absolutely correct that not *everything* that what was considered permissible back in 1837 was still deemed permissible in 1945, and that, in particular, the Charter did *not* fully incorporate the 19th-century understanding of self-preservation, which was much broader than the inherent right of self-defense. The Charter did, however, incorporate the “inherent” right of self-defense, and (at least as I have understood it) that inherent right very much included its most famous example–the Caroline precedent.

    Because Professor Ruys and I disagree only on what the law was between 1945-1980, perhaps it doesn’t much matter for present purposes: It appears to be quite literally an academic (and historical) question. Here’s what gives me some pause, however: If Professor Ruys is correct that the “inherent” right of self-defense referenced in Article 51 did *not* include Caroline-like cases involving nonstate actors, then it’s not obvious to me how and why custom (including opinio juris) since 1980 could be said to have changed that legal norm. Custom, of course, cannot supersede a prohibition in the Charter . . . unless the Charter itself contemplates that its norms will be subject to customary evolution. Is the “inherent” right to self-defense one that was understood to evolve, and possibly expand, to meet new types of threats? Perhaps, even if an “inherent” right is (as I’ve assumed) backward-looking — an effort to preserve a particular past practice — it might still be defined at a high enough level of generality to permit new applications that are sufficiently analogous to those that were previously exercised. This would be in tension, however, with Professor Rhys’s argument that the Charter states specifically *abandoned* their prior right to use force in defense against armed attacks by nonstate groups that are not attributable to the host state. Which is another reason why I find that account of what occurred in 1945 deeply counterintuitive . . . .

  7. Marty,

    Now I’m confused. My position has always been straightforward: (1) post-Charter, pre-9/11 practice clearly established that Art. 51 self-defence was permissible only in response to an NSA’s armed attack that was attributable to a state; (2) post-9/11 practice is putting pressure on the attribution requirement, because at least some states are asserting that Art. 51 self-defence applies to any armed attack by an NSA, even those that are not attributable to a state — the “unwilling or unable” situation; and (3) although the customary rule may change in the future, the practice in (2) is not yet sufficient to establish “unwilling or unable” as the current customary position.

    In response to that argument, you have just as consistently denied (2) — that attribution to a state was required by customary international law prior to 9/11. And you have to deny (2), because if attribution was required prior to 9/11, then it would behoove the supporters of “unwilling or unable” to show sufficient post 9/11 state practice and opinio juris to justify the elimination of the attribution requirement. Yet I know of not a single international-law scholar (other than, perhaps, Jordan Paust) who does not accept (2).

    PS: Ruys’ book contains literally dozens of examples post-Charter, pre-9/11 in which states insisted that only NSA attacks attributable to a state gave rise to the right of self-defense under Art. 51.

  8. Let me remind readers what Ruys says in his post:

    Marty notes en passant that the excerpt from my book contains ‘no references to any state practice or opinio iuris’ that would support Kevin’s position. Yet, if this is indeed the case, it is because the excerpt is merely the conclusion of a much more extensive chapter, which does contain ample illustrations in terms of State practice and opinio (similar and other references can moreover be found in the excellent analyses by Olivier Corten (Law Against War) and Christine Gray (International Law and the Use of Force)).

    Upon a closer reading of Marty’s comments, I doubt we can find much common ground, since our points of departure seem diametrically opposed.

  9. Kevin: See the last paragraph of my comment about the Ruys post: If the 1945 Charter prohibited these cases of self-defense, then subsequent “custom” would be of no moment — there’s still a treaty prohibition. So either these cases were part of the “inherent” right of self-defense in 1945, and remain so, or they violate the Charter . . . unless, perhaps, the “inherent” right of self-defense is properly understood to allow for post-1945 evolution based upon custom, including to cover cases that (on your view) were lawful cases of self-defense pre-Charter but that the Charter itself specifically forbade.

    At this point, however, we’re straying far from the subject of your post: In fact, the recent letters of France, Canada and Turkey support my reading of Article 51, not yours. That doesn’t make them correct, of course; but they do support my more natural reading of the language of Article 51, which refers to the “inherent” right of self-defense — a right that, by all accounts, did previously encompass these cases — and the language of which does not distinguish between armed attacks of state and nonstate actors, nor mention an “attribution to the host state” condition.

  10. Kevin: It’s probably wiser if I don’t get in the middle of this, but I was wondering whether you think there is anything in the letter you link that suggests France is trying to meet the attribution requirement. Because to me it doesn’t look like they are. Beyond invoking art. 51 in aid of Iraq, they simply stay silent on why they think this situation qualifies as self defence.

  11. The idea that “unable or unwilling” is a restrictive view ignores the dual use of such a phrase. Again, the state that wants to go in will inevitably characterize whatever the state in which the non state actor is acting to not have “done enough”. It is a one way ratchet for rationalization. The absence of “unable or unwilling” turns the focus back to the nature of the attack by the non state actor and the attribution problem to the state. It would seem to me that the acts or omissions of the state harboring the non state actor are the questions that engage that state’s responsibility. Rather than speak directly to omissions, the unable or unwilling approach, turns the issue back to the attacked state’s assessment of the host state action or omission as opposed to the focus on the host state’s action or omission. It is a very subtle way of having your cake and eating it too.
    Best,
    Ben

  12. [U]nless, perhaps, the “inherent” right of self-defense is properly understood to allow for post-1945 evolution based upon custom, including to cover cases that (on your view) were lawful cases of self-defense pre-Charter but that the Charter itself specifically forbade.

    This is almost exactly my point! Even if the Charter did not specifically forbid self-defense against unattributable NSAs attacks, the meaning of the inherent right of self-defense was not fixed by the Charter in its pre-1945 form. Pre-Charter self-defense was the law of self-defense that existed under customary international law at the time — and custom can always change. So regardless of the “inherent” right states might have had to use self-defense against unattributable NSA attacks in 1837 or 1937, state practice significantly narrowed the content of that right post-Charter, pre-9/11 to specifically require attribution. That’s the evolution Ruys discusses at great length in his book — and the evolution that no use of force scholar I know questions.

    To be sure, as I’ve said many times, the customary law of self-defense may well be evolving back toward the pre-Charter era in which attribution was not required. But the baseline of what self-defence means now is clearly the post-Charter, pre-9/11 position of states that would — and often did — reject the idea that self-defense was available in unwilling/unable situations. Hence my insistence that the burden of proof is on proponents of the unwilling/unable test to show that state practice has shifted significantly enough since 9/11 to eliminate the attribution requirement. Perhaps my view of opinio juris is — per Martin above — overly formalistic. Perhaps the evidence for unwilling/unable is stronger than I believe. We could debate that. (And have been, through my posts on what I see as Ashley Deeks’ dangerous methodologial sloppiness.) But I don’t think my position on the basic parameters of the debate is remotely controversial or idiosyncratic — and Ruys agrees, as his post indicates. Our only disagreement is that he is less sure than I am that state practice hasn’t shifted back toward eliminating the unwilling/unable requirement; he doesn’t think a definitive conclusion is possible at this point. My position is closer to Christian Tams’, who believes post-9/11 practice has relaxed but not yet eliminated the attribution requirement.

  13. OK, Kevin, I think I understand you to be saying the following:

    1. The pre-Charter right of (inherent?) self-defense allowed the use of necessary and proportionate force against a nonstate actor that had engaged in an armed attack, even if the attack was not attributable to the host state — as in the Caroline itself. (I would add: But because of the requirement of necessity, such force could not be used where the host state was willing and able to deal with the threat. And the requirement of proportionality would mean that the responsive use of force would have to be tailored to the nonstate actor (as in the Caroline case itself), and not take the form of a broader attack on the (nonculpable) host state’s forces or population.)

    2. In 1947, the Charter “did not specifically forbid self-defense against unattributable NSAs attacks” (you’re willing to assume this, in any event), i.e., it preserved the aspect of the “inherent” right described in No. 1, above. This is supported by the text of Article 51, which does not refer to states or to attribution, and by the fact that earlier drafts using the formulation “by any state against any member state” were not adopted. See, e.g., T. Frank, 95 AJIL at 840. (Of course, the Charter did arguably impose a new requirement that self-defense had to be predicated on an “armed attack,” i.e., that it could not be purely anticipatory. But that describes the Caroline, too, and is not our point of contention here.)

    3. The scope of Article 51’s “inherent” right to self-defense nevertheless could change–in either direction, to become more or less permissive–based upon post-1947 custom. I take it you are here referring to Ruy’s argument in favor of an “evolutive” approach, in which “post-Charter state practice and OJ could gradually result in modification of” the scope of Article 51.

    4. Between 1947 and 1980 (or 1986), custom *did* evolve such that Article 51 no longer privileged or preserved self-defense against nonstate actors when the armed attack was not (in at least some respect–deliberately providing sanctuary, at a minimum) attributable to the host state.

    5. There hasn’t (yet) been enough contrary practice and custom post-1986–not even with the Security Council Resolutions of 2001(!)–to shift the custom back to its 1947 position.

    I am very skeptical of Points 3 and 5–in particular, the notion that post-Charter custom might change the meaning and effect of Article 51. (That’s not to say that subsequent custom could not itself impose new restrictions–of course it could. But they wouldn’t be Charter-imposed restrictions.)

    But for present purposes, I’m willing to assume arguendo that Nos. 3 and 5 are correct. In that case, your argument would depend critically upon Point 4–that between 1947 and 1980 (or 1986), custom *did* evolve to the point where Article 51 no longer covered self-defense against nonstate actors when the armed attack was not (in at least some respect) attributable to the host state, a norm that did *not* exist in 1947 or before.

    So what about that claim about post-1947 custom?

    Even under Rhys’s “evolutive” approach, “there must be clear evidence of contradictory custom” before we can say that Article 51 has “evolved” to impose a new condition on the use of force in self-defense (or to become more permissive, for that matter). (And, of course, for a new norm to become custom, there’s a very high bar of virtually uniform practice and OJ.)

    Is there any such clear evidence of the creation of a new, contradictory custom during the first three or four decades post-Charter? This is your claim: “Ruys’ book contains literally dozens of examples post-Charter, pre-9/11 in which states insisted that only NSA attacks attributable to a state gave rise to the right of self-defense under Art. 51.”

    I suppose we disagree here, Kevin, about what “literally” means. I’ve now read the Ruys account, including the specific chapter (5.1.3) on post-1947, pre-1986 state practice. Far as I can tell, he cites virtually *no* examples, let alone “dozens,” in which states insisted that only NSA attacks attributable to a state give rise to the right of self-defense under Art. 51.

    The closest he comes is a statement by Greece, in response to the Israeli attack on the PLO in Tunisia in 1985, that “we are convinced . . . that acts of terrorism cannot in any way serve as an excuse for a Government to launch an armed attack on a third country.” But Greece also appeared to assume that Israel’s attack on Tunisia went well beyond merely a strike against the PLO itself, in which case its complaint might be understood as one about proportionality. Greece did not mention Article 51, or the Charter, at all. And as to that same incident, the U.S. said: “We recognize and strongly support the principle that a State subjected to continuing terrorist attacks may respond with appropriate use of force to defend itself against further attacks. This is an aspect of the inherent right of self-defence recognized in the United Nations Charter. We support this principle *regardless of attacker,* and regardless of victim.”

    The dearth of such pre-2001 statements about whether or not state “attribution” is required is not surprising, because with the possible exception of the Israeli attacks in Tunisia and (some) in Lebanon, it appears that the issue did not arise: In the relevant period there weren’t many cases in which host states could and would not control nonstate attacks from their territory. And thus in the handful of cases of self-defense in this period, by France, Portugal, Israel, South Africa and Southern Rhodesia, there were virtually always allegations of host-state complicity, and therefore the question of what Art. 51 allows in the absence of such complicity or host-state “attribution” rarely if ever arose.

    As Ruys notes, many states did condemn Israel’s occupation of the Sinai in 1956, but that was primarily because such an occupation of Egyptian land was thought to be grossly disproportionate to the need to prevent attacks from the Fedayeen there. According to Ruys, whether the international community would have accepted a more limited intervention specifically against Fedayeen bases in the Sinai “remains a hypothetical question.”

    Several of the other cases of self-defense in the period–which, again, *did* involve allegations of host-state complicity–were also condemned by some states as punitive reprisals, as disproportionate, or (in Africa) as part of an otherwise unlawful colonial occupation. But notably, there weren’t any claims (or in any event, Ruys doesn’t cite any) in which the objecting states argued that “only NSA attacks attributable to a state gave rise to the right of self-defense under Art. 51.”

    Indeed, as Ruys notes (p.404), on the whole, there were virtually no statements at all on the applicability of article 51, and “very little opinio juris explicitly dismissing self-defence in response to armed bands per se.” And therefore Ruys himself concludes that, in light of all these factors, including “the diversity of legal arguments for rejecting the self-defence claims, as well as the inextricable link between legal and political objections, it is extremely difficult to detract from these incidents any conclusive or generalizable findings as to the ‘ratione personae’ aspect of self-defence.” (Ruys then cites Chaier, who rejected the relevance of the post-1947 practice altogether.)

    “Extremely difficult” is putting it mildly. Far from any “clear evidence of contradictory custom” (Ruys), let alone your imaginary “literally dozens of examples post-Charter, pre-9/11 in which states insisted that only NSA attacks attributable to a state gave rise to the right of self-defense under Art. 51,” we find, in fact, almost nothing of the sort.

    And so, as I see it, we have four major touchstones for evaluating whether Article 51 reaches “armed attacks” by nonstate actors that are not attributable to the host state: (i) the Caroline; (ii) the drafting history and language of the Charter itself, in 1947, which support the proposition [as Ruys notes, we don’t have much more than that, since the drafters did not specifically consider the question of attacks by nonstate actors]; (iii) the UNSCR in 2001, which rejects your view (Franck again: “Resolution 1368 reiterates the right of self-defense by a state specifically against ‘terrorist attacks’ (para. 3). The Council clearly identifies ‘international terrorism [] as a threat to international peace and security’ against which ‘individual or collective self-defence’ may be exercised.”); and (iv) post-2001 practice, in which many states have confirmed that they agree with the UN/Franck, and in which, to my knowledge, no states have disputed that Article 51 can apply in such cases, subject, of course, to the requirements of necessity and proportionality (and, arguably, the precondition of a completed “armed attack”).

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