France Fails to Adopt “Unwilling or Unable” in Syria

France Fails to Adopt “Unwilling or Unable” in Syria

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.

Topics
Courts & Tribunals, Foreign Relations Law, International Human Rights Law, Middle East, National Security Law, Organizations
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Marty Lederman
Marty Lederman

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).

Karakire

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!!!!

Marty Lederman
Marty Lederman

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… Read more »

Marty Lederman
Marty Lederman

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… Read more »

Marty Lederman
Marty Lederman

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.

Martin Holterman

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.

Benjamin Davis
Benjamin Davis

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

Marty Lederman
Marty Lederman

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”… Read more »