Challenging and Refining the "Unwilling or Unable" Doctrine.

Author:Martin, Craig

TABLE OF CONTENTS I. INTRODUCTION 389 II. THE LAWS OF WAR AND ORIGINS OF THE DOCTRINE 394 A. Jus ad Bellum Regime Assumptions 395 B. Jus ad Bellum and IHL 399 C. Background and Origins of the Unwilling or Unable Doctrine 401 D. The Bethlehem Principles 406 III. CRITIQUE OF THE DOCTRINE 412 A. The Myth of Custom 412 B. The Perversion of Imminence 415 C. Incoherence on Armed Attack 423 D. The Conflation of Jus ad Bellum with other Regimes 427 E. Self-Judging Armed Attack, Necessity, and Unwillingness 435 IV. REFINING THE DOCTRINE 442 A. Restoring the Integrity of Jus ad Bellum 442 B. Differentiated Standards for Distinct Target State Decisions 446 C. Minimum Good Faith Standard for All Self-Judgment 452 D. Transparency and Accountability 457 V. CONCLUSION 459 I. INTRODUCTION

In the aftermath of the terrorist attacks on the United States on September 11, 2001 (the 9/11 attacks), the United States and other Western states developed legal justifications for the use of force against transnational terrorist organizations operating from within the territory of weak or sympathetic states. The primary justification articulated by the United States for using lethal force against members of the terrorist organizations themselves, as distinct from the states within which they were operating, has been that the United States is in a "transnational non-international armed conflict" with al-Qaeda, the Taliban, and associated forces. (1) This formulation soon encompassed such disparate groups as al-Qaeda in the Arabian Peninsula (AQAP), al-Shabab, Boko Haram, and Daesh (also known as the Islamic State in Syria or ISIS), to name a few. (2) But this justification, even if accepted as entirely valid, only provided authority under international humanitarian law (IHL) for the use of lethal force against the members of these armed groups in certain circumstances. It did not answer growing objections that firing missiles at people within the territory of other sovereign states, without the consent of those states, violated the international law rights of those states. (3) It was argued that such strikes constituted a use of force against the nonconsenting state, and unless it came within one of the two permissible exceptions, was in violation of the prohibition on the use of force in Article 2(4) of the United Nations (UN) Charter. (4) A justification grounded in the jus ad bellum regime, which governs the use of force against states, was thus needed to accompany the IHL rationales in defense of the lethal operations against non-state armed groups (NSAs). (5)

The United States, soon followed by other states, turned to an old doctrine from the pre-UN system of international law, now famously known as the "unwilling or unable" doctrine, to justify this use of force against NSAs operating within nonconsenting states. (6) While the doctrine has its origin in much older neutrality law, (7) it was reformulated to apply to the circumstances of states that are the victims of armed attacks (referred to here as target states) mounted by NSAs from within the territory of some other state (territorial states). (8) The updated doctrine suggested that the target states have the right, under the doctrine of self-defense in the jus ad bellum regime, to use force against the NSAs within that territorial state in response to imminent or actual armed attacks, so long as the territorial state is unwilling or unable to prevent the NSA attacks, and is unwilling to consent to the target state using force to do so itself. (9)

The killing of Osama Bin Laden in Pakistan may be the most famous instance of such a use of force against members of an NSA located in a nonconsenting state (though there remains controversy over whether Pakistan had secretly consented to the raid). (10) But the targeted killing program of the United States has involved missile strikes against members of organized armed groups and terrorist organizations in the tribal regions of Pakistan, Yemen, Somalia, Sudan, Syria, Libya, and Mali, to name just the best known theatres. (11) These were countries in which the United States was not yet involved as a belligerent in an ongoing armed conflict (in contrast to its role in Afghanistan and post-occupation Iraq), and in many instances the governments of these territorial states objected to the strikes. (12) The United States thus required some jus ad bellum justification for the use of force, and it increasingly invoked the unwilling or unable doctrine, as part of a broader claim of self-defense, for this purpose. (13) But as the United States (among others) increasingly relied upon the doctrine, the doctrine was also more frequently criticized as having little grounding in law, and as having none of the actual substance necessary to shape the decisions or in any way constrain the actions of powerful target states. (14)

In defense of the doctrine, efforts were made to provide it with a more solid grounding in the jus ad bellum regime, and to infuse it with substantive principles that would stipulate the conditions under which target states could justifiably use force against NSAs in nonconsenting territorial states. (15) This effort was led most famously by a former British government official named Daniel Bethlehem, who in 2012 published a set of sixteen principles, now commonly referred to as the "Bethlehem Principles," with the explicit goal of providing a more sound legal foundation for the doctrine. (16) Many governments and policy makers, and indeed some scholars, quickly embraced the doctrine so defined as representing the current state of customary international law. (17)

I applaud the spirit and purpose of Bethlehem's efforts, and I acknowledge his admonition that scholars must better understand the reality within which states are now operating and take seriously the threats that they must address. (18) But in this Article I argue that some aspects of his principles remain dangerously inconsistent with parts of the jus ad bellum regime and its relationship with other legal regimes, and excessively privilege the interests of powerful target states at the expense of the rights of weak territorial states. At the same time, in the spirit of his project, I propose ways of refining the principles. Thus, the Article explores how the doctrine, as articulated in the Bethlehem Principles, might be refined in ways that would pragmatically address the threats posed by NSAs operating from within unwilling states, while at the same time bringing the principles of the doctrine into greater compliance with the jus ad bellum regime, and preserving the integrity of the regime's relationships with IHL and the law of state responsibility.

The unwilling or unable doctrine, and particularly one specific policy maker's formulation of it, may at first glance seem a rather esoteric topic of limited significance. But this is misleading. The legitimacy and legality of this doctrine, which has come to be embodied and articulated by the Bethlehem Principles, is of great importance to the integrity of the jus ad bellum regime, and by extension, to the future of international peace and security. For while the doctrine cannot yet be understood as being part of customary international law, (19) and aspects of it are inconsistent with long-established principles of jus ad bellum, (20) if international law does evolve to embrace the doctrine, the threshold for using force in self-defense would be significantly lowered for all purposes and in all circumstances, and the jus ad bellum regime would be destabilized and weakened in a number of other ways, which will be explained below. Thus, while the doctrine has been developed to more effectively deal with the narrow and specific threat posed by transnational terrorist organizations, it threatens to weaken the broader jus ad bellum regime in ways that would increase the much more serious risk of interstate armed conflict. And not only is that the primary risk that the jus ad bellum regime was designed to address, but the risk of armed conflict between major powers is already far graver today than it was a scant decade ago. This is not to trivialize the threat posed by transnational terrorism, but it poses a far lesser risk to states than the prospect of interstate war. Therefore, this doctrine designed to address terrorism cannot be allowed to undermine the legal regime developed to constrain interstate use of force. As between the two, the integrity of the jus ad bellum regime is far more important. And thus understanding how the doctrine threatens to weaken the jus ad bellum regime, and considering how to bring the doctrine back into compliance with that regime, is important, particularly since refining the doctrine can be done without significantly undermining its effectiveness.

Part II of the Article begins by identifying the positions it takes on several contentious issues in jus ad bellum, in order to explain some of the assumptions and premises of its argument. It also provides some background on the history of the unwilling or unable doctrine, and then reviews the Bethlehem Principles themselves. In Part III, the Article moves to critically examine those aspects of the Bethlehem Principles that it challenges as being problematic. Specifically, it critiques how the principles: (i) have been accepted as custom; (ii) distort and weaken the concept of imminence; (iii) develop and rely upon a novel definition of the concept of "armed attack"; (iv) conflate principles of jus ad bellum with those of IHL, and import considerations of the law of state responsibility into the doctrine of self-defense; and (v) purport to confer authority on the target state to unilaterally make a number of important determinations--including the determination that the territorial state is "unwilling" to either take action or consent to such action--without unpacking and examining the differing nature of each of those...

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