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.”
[snip]
[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.
Thanks for the post Kevin. Brian Cuddy and I organised a workshop in Singapore recently addressing this very issue, and related themes, comparing the intervention in Cambodia, and the war in Vietnam, more generally, to the Arab-Israeli conflicts in 1967 and 1973:
https://mei.nus.edu.sg/event/transsystemic-law-the-indochina-and-arab-israeli-conflicts-international-legal-migrations-comparisons-and-connections-1961-1973/
We hope to publish a short selection of the papers soon and we look forward to reading your own book on the Vietnam War when it is out.
I think the Caroline incident predated Cambodia by a bit.
And therefore what, exactly? The Charter did not purport to displace the traditional justifications for–and conditions for (including necessity, which is where U&U comes in)–self-defense, at the very least once an armed attack has occurred.
See also U.S. Army Field Manual 27-10, para.520:
https://www.loc.gov/rr/frd/Military_Law/pdf/law_warfare-1956.pdf
As Stevenson pointed out, there was plenty of precedent for this description of the necessity requirement, going back a long ways.
And just to clarify for the 1001st time: U/U is not a justification for the use of force. It is a precondition, without which it is impossible to demonstrate the necessity required to use force in self-defense against a third party on the territory of a consenting state.
For those wondering, my last two comments were a response to a comment of Kevin’s, since removed, that the Caroline preceded the Charter.
Yes, I wrote that Caroline preceded the Charter. And also for the 1001st time: Marty has no understanding of the role attribution has traditionally played in the jus ad bellum, because he pretends the post-WW II era doesn’t exist.
Readers interested in a sophisticated analysis of the relationship between the UN Charter and pre-existing customary international law should read pages 7-19 & 60-68 of Tom Ruys’ book, Armed Attack and Article 51 of the UN Charter. Ruys’ discussion does not settle the customary status of unwilling/unable, but it highlights the cartoonishness of Marty’s argument that the UN Charter and post-war practice are irrelevant because unwilling/unable has been customary since the Caroline incident.
I am happy to let OJ readers judge the merits of Marty’s claim that “As for the role ‘attribution’ has played, well, it hasn’t played much at all.”
As for the larger issue, I can’t put it any better than Ruys does:
[T]he continued reliance on ‘pre-existing custom’ by a number of scholars – and on rare occasions by States – has become all the more anachronistic and absurd in light of the considerable amount of customary practice generated over the past six decades. Claims pertaining to a broad interpretation of self-defence must not be rejected per se, yet they must be tested against customary practice as it has evolved throughout the Charter era, not as it stood before the San Francisco Conference. The ‘expansionists’ for their part would do better to abandon the ‘pre-existing custom’ discourse altogether, including the far-fetched assertion that the 1837 Caroline incident authoritatively explains the contours of a twenty- first century right of self-defence.
And one more quote from Ruys, implicitly responding to Lederman’s claim that attribution “hasn’t played much at all” of a role in the development of the jus ad bellum (p. 485-86): Having examined the relevant customary practice and ICJ case law, we must again confront our key question: to what extent do cross-border attacks by non-State actors amount to ‘armed attacks’, warranting a defensive response against the non-State presence abroad and possibly against the infrastructure of the State from whose territory the attacks were prepared, directed and/or launched? In the past, as we have seen, this question was answered in a restrictive manner. A general right of hot pursuit was never recognized, and – despite the open-ended phrasing of Article 51 – purely ‘private’ attacks were excluded from its scope. Rather, it was agreed that Article 51 only applied when close links existed between the non-State actor and the latter State, which in fact employed it as an instrument of proxy warfare. Article 3(g) of the Definition of Aggression identified two possible nexus, namely (1) the ‘sending’ by a State of non-State actors carrying out attacks, or (2) the ‘substantial involvement’ in these acts. The precise meaning of ‘substantial involvement’… Read more »
Thanks for keeping the conversation so respectful and civil, Kevin. No need to rehash my “cartoonish” views here: I responded at length to Kevin’s reading of Ruys in several long comments to this post, and have nothing much new to add to it:
https://opiniojuris.org/2015/10/11/france-fails-to-adopt-unwilling-or-unable-in-syria/
I will leave it to the many fair-minded OJ readers to assess whether, in the countless discussions here and on EJIL Talk!, I have pretended that the post-WWII era does not exist.
As for the role “attribution” has played, well, it hasn’t played much at all. One could still argue, as Kevin does, that the Charter *should* properly be understood to impose an “attribution” threshold before force is used against a third party–the question we’ve debated ad nauseum on these two sites–but as most of you know, I don’t see any persuasive argument for it.
Quite right.
You got me. I thought Cambodia came first.