19 Mar The Earliest Invocation of “Unwilling or Unable”
In a recent post at EJIL: Talk! on the India/Pakistan crisis, Mary Ellen O’Connell references a book chapter in which she suggests that Israel’s 1976 raid on Entebbe was the first situation in which a state invoked the “unwilling or unable” doctrine as a jus ad bellum justification for self-defense:
Christian Tams, Dire Tladi, and I will soon publish, Self-Defence Against Non-State Actors, edited by Anne Peters and Christian Marxsen (Cambridge University Press, July 2019). We have spent the last several years analyzing the law relevant to the very sort of situation unfolding on the Sub-continent. The unable/unwilling proposal is discussed throughout the book. My section raises numerous concerns, even beyond those just mentioned. For example, the terms do not appear in the UN Charter, the Charter negotiating history, or ICJ jurisprudence. They were first used in the context of international law and military force apparently by the U.S. ambassador to the United Nations to support Israel’s hostage rescue operation at Entebbe, Uganda.
I look forward to the chapter. I just want to note that the US’s reliance on “unwilling or unable” actually predates the raid on Entebbe. In fact, the doctrine was first articulated by the Nixon administration in 1970, as a way of expanding the US’s ground campaign against North Vietnamese forces in neutral Cambodia. As Brian Cuddy discusses in his superb Cornell dissertation, “Wider War: American Force in Vietnam, International Law, and the Transformation of Armed Conflict, 1961-1977,” the Johnson administration took a narrow view of the right of self-defense in situations where the neutral state was not the author of the armed attack in question. In its view, unless the territorial state (here, Cambodia) was at least complicit in the armed attack (here, multiple attacks by the NVA), self-defensive force on the neutral state’s territory was limited to “hot pursuit” (pp 76, 78):
The Office of the Legal Adviser stressed that self-defense as a justification for action in Cambodia had a very narrow application: “In situations where hostile forces are locked in close combat and one enters the territory of a neutral state it may be necessary for the other also to do so in order to defend itself. In air combat this is particularly true in view of the speed of modern aircraft, but the necessity may also arise to return fire into neutral territory or actually to move land forces across the border during an engagement with hostile forces, particularly when the engagement occurs in remote areas where the armed forces of the neutral state are not available to intern the hostile forces entering its territory.”
[T]he record of the Johnson Administration with regard to Cambodia is nonetheless clear. In the face of insistent pressure from the leading U.S. military and diplomatic personnel on the ground in South Vietnam, the administration, citing the advice of its lawyers and weighing other political and strategic factors, repeatedly refused to permit deeper strikes into Cambodia beyond those allowed under a strictly-circumscribed doctrine of operational self- defense. Meeker’s legal opinion—that strikes upon Communist base areas within Cambodia would be illegal absent Phnom Penh’s complicity in attacks that emanated from those base areas—stood for the duration of the Johnson administration. It would not, however, last long under a new president.
As Cuddy explains, the Nixon administration quickly abandoned the Johnson administration’s quite traditional view of self-defense. In 1970, John Stevenson, the State Department’s new Legal Advisor, issued a memo rejecting the idea that self-defense on neutral territory was limited to situations in which the neutral state was complicit in the armed attacks. In his view — adopted by the Nixon administration — self-defense was permissible whenever the neutral state “cannot or will not” prevent the unneutral use of its territory (pp. 83-84):
Stevenson noted that “it was impossible for the Cambodian Government to take action itself to prevent these violations of its neutral rights. … In these situations, the question arises: What are the rights of those who suffer from these violations of Cambodian neutrality?” Citing a number of cases from the nineteenth century and the World Wars, as well as legal texts from the eighteenth century through the late 1950s, Stevenson developed an argument that if a neutral government did nothing to oppose the use of its territory by a belligerent in time of war, the opposing belligerent could enter the neutral’s territory for the purposes of self-help. “We all recognize that, whatever the merits of these views prior to 1945,” summed up Stevenson in perhaps the key passage in his important memorandum, “the adoption of the United National Charter changed the situation by imposing new and important limitations on the use of armed force. However, they are surely authority for the proposition that, assuming the Charter’s standards are met, a belligerent may take action on a neutral’s territory to prevent violation by another belligerent of the neutral’s neutrality which the neutral cannot or will not prevent, providing such action is required in self-defense.”
This is the true origin of the “unwilling or unable” test. And Cuddy quite rightly has harsh words for this “invented” doctrine (p. 84):
Stevenson’s “cannot or will not” formulation subsequently shifted to an “unwilling or unable” formulation, which is the language Kissinger used in 1979 to defend the Nixon Administration’s actions in Cambodia: “it was taken for granted (correctly) that we had the right to counter North Vietnam’s blatant violation of Cambodia’s neutrality, since Cambodia was unwilling or unable to defend its neutral status.” The “unwilling or unable” legal doctrine is now a regular feature of US foreign policy, but to so glibly (and by no means correctly) take the right for granted obscures the fact that in 1970 Stevenson overturned, or at least heavily reinterpreted, the preceding decade of official legal advice on the matter and the policy that was, in part, informed by that advice. “Unwilling or unable” was, to a great extent, invented in 1970 in the context of the Cambodian Incursion.
If I were a more cynical type, I might suggest that proponents of the “unwilling or unable” doctrine don’t mention Cambodia because its invocation there during the Vietnam War set in motion events that ultimately brought the genocidal Khmer Rouge to power…
Cuddy is currently preparing a book based on his dissertation. We should all look forward to its publication. To tide you over, Cuddy discusses the Cambodia situation in this 2017 editorial in the New York Times.