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).

Kevin Jon Heller

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… Read more »

Kevin Jon Heller

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.

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 »

Kevin Jon Heller

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… Read more »

Kevin Jon Heller

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.

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

Kevin Jon Heller

[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… Read more »

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 »