The Unwilling Part of “Unwilling or Unable”

The Unwilling Part of “Unwilling or Unable”

Marty Lederman last week posted a typically comprehensive treatment of the legal issues raised by Charlie Savage’s account of the administration decision to send forces into Pakistan to kill or capture Osama bin Laden. I’d earlier criticized the CIA’s apparent view that non-self-executing treaties are not legally binding on the President, and I take Marty plainly to agree with this principle. It’s no doubt true there is yet more to learn and understand about how the CIA’s position on this question has actually manifested itself in administration decision-making, but given what we already know, I’m not sure how to avoid the already deeply concerning conclusion that as a general matter the CIA seems to have badly misunderstood the legally binding nature of treaties the United States has signed and ratified.

Where Marty and I appear to disagree is on the question (a question I set aside at the beginning of the last post) whether the United States’ incursion into Pakistan during the bin Laden mission violated Article 2(4) of the UN Charter (one of those legally binding (even if non-self-executing) treaty provisions) prohibiting the “use of force against the territorial integrity or political independence of any state.” There is of course vigorous ongoing disagreement (e.g. here and here, but this is only the tip of the iceberg) about the argument that there is any exception to the Art. 2(4) principle on the grounds that the target country is “unwilling or unable” to address the threat a non-state actor on its territory poses to the targeting country. But let’s ignore all that for now and just assume for the sake of argument that one embraces some “unwilling or unable” exception to the Article 2 prohibition. Even assuming as much, the argument the administration lawyers appear to have made in the bin Laden case goes a step beyond. In particular, because the United States did not want to risk alerting Pakistan of the operation in advance for fear that Pakistani officials would inform bin Laden, the lawyers would have had to argue that the targeting country could conclude on its own that the target country is “unwilling” to address the non-state actor threat, whether or not the country would in fact be willing if asked. In Marty’s conception, the argument would go as follows. (1) The “unwilling or unable” test “is best understood as an application of the jus ad bellum requirement of necessity.” (2) Because the United States had a reasonable and well-founded fear that elements of the Pakistani government would have tipped off bin Laden, making any subsequent intervention impossible, it was reasonable for the lawyers to conclude that the U.S. use of force “without prior Pakistani notification/coordination was, more likely than not, necessary to interdict the threat posed by bin Laden.” (emphasis mine) Put more directly, a target country can be deemed “unwilling” to address a non-state actor threat if the targeting country thinks it is “necessary” to do the targeting itself.

Marty forthrightly notes that there is no current law that informs this argument – an artifact, it seems to me, of the reality that only a handful of countries have yet recognized the “unwilling or unable” exception at all. But that does not mean there is no law here that applies.

On the contrary, there is law squarely governing whether or not one country can use force against another – Article 2(4). The fact that there is no law to support a modification to a (marginally recognized) exception does not mean that reasonable lawyers can disagree on whether the modification exists. Most broadly, in the absence of law supporting an exception to the rule, I would imagine the most logical assumption is that the rule applies. More specific to Art. 2(4), it seems impossible to reconcile the indisputable baseline meaning of the UN Charter rule – that it is impermissible to use force against the territory of another sovereign without that nation’s consent – with a proposed modification that effectively says – it is permissible to use force against the territory of another sovereign so long as the force-using nation determines that such use of force is “necessary” to address a threat.

What, then, to do about bin Laden? For there is little question that the United States was well within international (and domestic) law in going after the leader of Al Qaeda, but for the question of Pakistani sovereignty. It likewise seems reasonable for the Americans to assess that the Pakistanis would indeed have revealed the operation if asked in advance. Under the circumstances, there is at least one remaining option: the lawyers tell the President this aspect of the mission is unlawful, and the President decides to undertake the mission nonetheless. Presidents have done as much before (as in President Clinton’s decision to use force in the Balkans), accepting whatever domestic and international law consequences that might follow. Particularly where, as here, the consequences are likely to be modest, this bad option seems less worse than the call-it-lawful alternative. We do some violence to the law in the short term, but avoid the greater violence probably done in the long term by implausible interpretation – a record that now stands as evidence of state practice and opinio juris.

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Marty Lederman
Marty Lederman

Thanks for that very thoughtful and generous response, Deborah. I agree with much of it. But when it comes to your shorthand for the argument I surmised the lawyers might have made — “Put more directly, a target country can be deemed ‘unwilling’ to address a non-state actor threat if the targeting country thinks it is “necessary” to do the targeting itself.” — I’m afraid I have to take strong issue. No doubt it was my fault for not being clearer in my post, but that’s not my argument at all. Almost the opposite. The argument, instead, is this, in short: 1. Art. 2(4) would indeed prohibit the action, unless . . . 2. Either (i) Pakistan consented or (ii) it would be an exercise of the “inherent” right of self-defense that Art. 51 preserves. 3. It can only be an exercise of the “inherent” right of self-defense if the customary prerequisites for such exercise are satisfied — proportionality and necessity. 4. It was proportionate to the continuing threat. 5. Unilateral action by the U.S would *not,* however, be necessary *if* Pakistan were able and willing itself to capture/kill bin Laden, or if Pakistan would have consented (in which latter… Read more »

Jordan
Jordan

Claims were made regarding both the self-defense paradigm and the law of war paradigm. Bin Laden was continuously and directly participating in armed attacks against US military troops in Afghanistan and elsewhere — which made him a lawful target under both paradigms (see, e.g., http://ssrn.com/abstract=1718548 ).
With respect to UN 2(4), there are others who recognize that only 3 types of force are proscribed under Art. 2(4) and the third could allow use of force that on balance does not thwart but promotes the purposes of the Charter outlined, for example, in Art. 1. Further, that use of force “on” Pakistan’s territory is no simplistically use of force “against” the “territorial integrity” of Pakistan and is certainly not a use of force against Pakistan or against Pakistani territory.

Marty Lederman
Marty Lederman

Another possible variant: If they reasonably concluded that it was more likely than not that the ISI or others would undermine the operation, then that in and of itself is the equivalent that Pakistan was unable — and thus that unilateral action was necessary — even if some other Pakistani officials would have consented to US action or would have been “willing” to deal with bin Laden themselves.

Marty Lederman
Marty Lederman

Deborah: Now you’ve waded into the endless debate I’ve been having with Kevin! My view–and I believe there’s virtually no state opinio juris or practice to the contrary — is that an “armed attack” by a nonstate actor such as al Qaeda can justify the “inherent” use of self-defense against the NSA in a state where the NSA has taken refuge, even though that state is not responsible for the armed attack (it wasn’t “attributable” to the state in any strong sense), and even though if not for the “inherent” right of self-defense, the use of force *would* have violated the “territorial integrity” of the host state. Such a use of force must, however, be tailored to what is necessary to stop the continuing threat from the NSA — it does *not* provide a justification for attacks on the forces or other population of the host state, something that would violate the N&P requirements. This precisely describes the Caroline incident itself — the British targeted force at the rebels in U.S. territory, following rebel attacks, once the British became convinced that the U.S. federal government was unable, and the NY authorities were unable, to take care of the continuing threat.… Read more »

Marty Lederman
Marty Lederman

Deborah: Not that I disagree with your assessment of the better part of valor, but I don’t see what article 2 has to do with it. Everyone agrees that 2(4) is not violated if the use of force is an exercise in what Art. 51 calls the “inherent” right of self-defense–and that, by contrast, there would be a 2(4) violation if the bin Laden weren’t covered by that “inherent” power. There are all sorts of debates about what’s covered by Article 51; but what dispute is there on Art. 2?

Kevin Jon Heller

I note that Marty (1) continues to miscategorize U/U as part of the necessity test, which actually concerns the definition of an armed attack (a miscategorization that allows him to make the bizarre claim that U/U is somehow a limiting principle regarding the US’s freedom to act in self-defense), and (2) wrote a very long post about U/U that was completely silent on the imminence requirement, which actually is part of necessity.

I also note that Marty’s redescription of his argument continues to do precisely what Deborah says it does: allow the US to avoid ascertaining whether a state is actually unwilling to deal with an NSA whenever it thinks asking will make it more difficult to neutralize an NSA — a far more radical claim than even U/U, and one for which, not surprisingly, Marty offers no legal support whatsoever.

Kevin Jon Heller

Here is Christian Tams on states’ pre-9/11 understanding of self-defense and attribution — Tams being one of the many scholars Marty has simply dismissed in favour of his preferred “self-defense hasn’t changed since Caroline” argument: Self-defence was the principal ground on which states relied in order to justify their use of anti-terrorist force. The underlying argument was straightforward: setting out a broad construction of self-defence, states claimed a right to respond to attacks even if these were not carried out by another state. While these claims were made frequently, they were never received favourably by the international community. In fact, during the 1970s and 1980s, the international community rejected them almost systematically. To give but some examples, Israel’s 1985 raid on the PLO Headquarters out- side Tunis was ‘condemn[ed] vigorously’ by the Security Council, which declared it an ‘act of armed aggression… in flagrant violation of the Charter of the United Nations’ and urged other states ‘to take measures to dissuade Israel from resorting to such acts against the sovereignty and territorial integrity of all States’. Similarly, the United States’ 1986 raid on targets in Libya, while controversially discussed by commentators, was roundly rejected by the General Assembly as ‘a… Read more »

Kevin Jon Heller

And here is Christine Gray summarizing the ICJ’s Nicaragua and DRC decisions, in which the Court apparently misunderstood the jus ad bellum to limit the concept of an “armed attack” to attacks by NSAs that could be attributed to a state: In Nicaragua the question was whether Nicaragua had committed armed attacks against El Salvador, Costa Rica and Honduras that would justify the use of force by the USA in collective self-defence…. First, could attacks by irregular forces be regarded as armed attacks by a state, justifying the use of force in self-defence against that state? The Court adopted the Definition of Aggression Article 3(g) as applicable in this context. Attacks by irregular forces were imputable to states when there was “a sending by or on behalf of a state or armed bands . . . which carry out acts of armed force against another states of such gravity as to amount to . . . an actual armed attack conducted by regular forces , or its substantial involvement therein.” Today much controversy centres on this part of the judgment in the light of the terrorist attacks of 9/11. However, the Court in DRC v Uganda (decided after 9/11) reaffirmed… Read more »

Marty Lederman
Marty Lederman

I don’t want to hijack this thread with a rehearing of my numerous other disputes with Kevin on this point, which doesn’t really get to the merits of the question the Obama lawyers considered in the bin Laden case. Those of you who are interested can go back to the many earlier posts, of which this is the most recent: http://opiniojuris.org/2015/10/11/france-fails-to-adopt-unwilling-or-unable-in-syria/ For now, I will simply note that the dispute Kevin raises here is on the question whether an attack by a nonstate actor that is *not* attributable to the host state where that NSA has taken refuge can be an “armed attack” under Art. 51 that can trigger the inherent right of self-defense. Kevin insists that the answer is “no,” although the UNSC appeared to say otherwise after 9/11, despite the fact that many states are currently acting on that theory in Syria today, and even though that was the theory on which the British acted in the Caroline affair, which exemplifies the “inherent” right of self-defense preserved by Art. 51. (Kevin scoffs at my repeated reliance on the Caroline; but it would have been very surprising, indeed, if the states that signed the Charter had intended to reject… Read more »

Jordan
Jordan

It is completely unreal to suggest that the bin Laden self-defense and law of war attempt at capture was a use of force “against Pakistan”!

Kevin Jon Heller

I suggest readers take a look at Ruys book and Tams’ article and judge for themselves whether they don’t cite “even a *single* state that has insisted that only NSA attacks attributable to a state give rise to the right of self-defense under Art. 51.” Ruys and Tams would be very surprised to hear that! Again, Marty has simply wiped 1945 to 2001 out of existence — which I suppose is not surprising, because even a cursory glance over debates concerning indirect aggression and hot pursuit demonstrate that Marty is wrong. Indeed, the short extract from Tams I quoted above contains multiple examples of states insisting “that only NSA attacks attributable a state give rise to the right of self-defense under Art. 51.”

Kevin Jon Heller

“The question, instead, was whether the U.S. was entitled to support uses of force *against the Nicaraguan government*–not merely against the nonstate actor.” In mischaracterising the Nicaragua judgment, Marty is implying that there is a difference between a use of force in self-defence against an NSA and a use of force in self-defence against the state in which the NSA is located, such that Nicaragua and DRC apply only in the latter situation. That distinction has been nearly universally rejected, although Marty seems completely unaware of that fact. Here, to offer but one example, is Ruys: [A]s soon as the (unauthorized and deliberate) employment of military means is directed against individuals on the territory of another State, there is a prima facie breach of the latter’s sovereignty and of the prohibition on the use of force enshrined in Article 2(4) UN Charter. This will be so even if the intervening State strictly limits its actions to the armed group which is responsible for the cross-border attack(s), and refrains from targeting other civilian or military infrastructure. In order to be lawful, such recourse to force must either be sanctioned by the UN Security Council, or it must qualify as self-defence against… Read more »

Kevin Jon Heller

Kevin continues not to cite even a *single* state that has insisted that only NSA attacks attributable to a state give rise to the right of self-defense under Art. 51 (and the Tams and Ruys sources–both of which are very much worth reading–don’t cite any, either). Here is an excerpt from Ruys (p. 382-83): When in the 1950s, negotiations on a Definition of Aggression first commenced, there was – as in San Francisco – relatively little attention on the concept of ‘indirect aggression’. By the late 1960s, however, many States had come to realize that indirect aggression was as much a challenge to international peace and security as traditional forms of inter-State conflict, and much more widespread at that. Following the creation of the Fourth Special Committee, the controversy proved to be one of the main stumbling blocks towards a successful conclusion of the negotiations. The immediate cause for this was the explicit exclusion of self-defence against indirect aggression in the Thirteen-Power proposal. Article 3 emphasized that self-defence could be exercised only against armed attacks by another State. Those 13 powers included Colombia, Cyprus, Ecuador, Ghana, Guyana, Haiti, Iran, Madagascar, Mexico, Spain, Uganda, Uruguay and Yugoslavia. And note that those… Read more »

Jens David Ohlin

I find the critics of U/U far too focused on counting states (state practice and OJ). The argument here is about a treaty norm, not a norm of CIL. The basic contours of the debate should be a proper interpretation of article 51 of the UN Charter, not the number of states that support one particular reading of the charter. Indeed the whole point of codifying a norm in treaty law, as opposed to relying on custom, is to transcend the methodology for identifying a norm of CIL.

It seems to me that if a number of states post-Charter supported a more restrictive view of the use of force, their views cannot be a back door to amending the UN Charter.

Kevin Jon Heller

Jens, My comment above was directed at Marty’s claim that not even “a *single* state… has insisted that only NSA attacks attributable to a state give rise to the right of self-defense under Art. 51.” I cited 13 that believed in the 1960s that self-defence was limited to attacks by states, thereby excluding even attributable NSA attacks — and that example is one of literally dozens. I also find it difficult to believe that Marty would actually want self-defense to be frozen in 1847. I can’t think of a single drone strike or other act of “self-defense” in the post-9/11 era — and certainly not the raid that killed bin Laden — that would satisfy Caroline‘s definition of imminence, “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” Indeed, that is why the US has gone out of its way to claim — unpersuasively — that custom has gradually loosened the imminence requirement. To return to your comment, though, I don’t agree that debating custom is a “back door to amending the UN Charter.” That argument presumes (1) that Art. 51 was intended to have a static meaning over time, and (2) that the static meaning… Read more »

Jordan
Jordan

Kevin is correct that CIL is background for interpretation of a treaty. Further, the same opinio juris that is an element of the content or meaning of dynamic customary law will be relevant to the dynamic “ordinary” meaning of a term or phrase in a treaty. http://ssrn.com/abstact=2293188 (from a Realist perspective).

Jens David Ohlin

Jordan, if you are referring to article 31(3)(b) of the Vienna Convention, I don’t buy it. That principle should apply to the situation where evidence of subsequent practice is used to confirm the intention of the parties regarding its adoption. The situation we are debating is precisely the opposite: the subsequent practice is used as evidence to support a complete change in the content of the norm. If that were allowed, it would permit a state party to a multilateral convention to have the express terms to the treaty altered without their consent. While that might be permissible for CIL, which anticipates normative change in the absence of consent, it isn’t permissible for treaty norms, which are explicitly based on consent.