The Unraveling of Canada's Legal Justification for Force in Syria? The Trouble with "Unwilling and Unable"
Friday, May 19, 2017 at 7:56AM
craigforcese in Chapter 05: Protecting Against International Insecurity and Armed Attack, Daesh, international law, military, syria, terrorism, use of force

Events yesterday in Iraq seem likely to complicate the legal basis for Canada’s participation in the anti-Daesh coalition. As summarized by Jennifer Daskal over at Just Security:

U.S.-led forces hit a convoy carrying pro-Syrian government forces advancing inside a deconfliction zone inside Syria. The convoy was reportedly traveling toward the al-Tanf military base used by U.S. coalition forces to train anti-ISIS fighters. U.S. and coalition officials assert that the Russians “apparently” attempted to dissuade the convoy from entering the area, that they first fired warning shots and deployed two US aircraft as a show of force, and only struck the convoy after it failed to heed the warning, as a means of protecting U.S. and coalition forces.

Jennifer Daskal also reports US official statements that the “strike was a proportionate response done for purposes of force protection—an act of self-defense in an effort to protect U.S. forces.” She observes: “This is, on its face, quite plausible. And, if accurate, lawful as a matter of both international and domestic law.”

The facts remain uncertain. But I shall assume for the sake of this analysis that the convoy comprised Syrian government controlled militia or military.  And I shall assume that Syria is now actually interested in fighting Daesh (whether or not this particular convoy was tied to that effort).

If so, I am less persuaded that the strike was lawful as a matter of international law. Or more accurately, I think it undercuts that entire legal basis for the presence of Coalition forces in Syria.

The Basics

Leah Sherriff and I examine the international law of using force against a non-state actor in the territory of another state in our article on targeted killing. Interested readers will find there the detailed footnotes for the sources and principles I cite below.

To summarize, a state may not use force against another state, or on that other state’s territory without the territorial state’s consent. There are two exceptional circumstances.

The first is UN Security Council authorization. That does not truly exist for the conflict against Daesh, notwithstanding the S/Res/2249 (2015). I agree with those analyses that see this resolution as an intentionally ambiguous resolution that falls short of the language associated with Security Council authorizations on use of force.

The second exception is self-defence against an armed attack, including collective self-defence done in conjunction with a state that has suffered this attack. Self-defence against Daesh is, in fact, the legal basis for Canada’s use of force in Syria. In late October 2014, when Canada joined the American-led coalition against Daesh in Iraq, it reported to the UN Security Council that Canada was invoking individual and collective self defence under article 51 of the UN Charter, explaining “States must be able to act in self-defence when the Government of the State where a threat is located is unwilling or unable to prevent attacks emanating from its territory”.[1]  On the specifics on the Daesh case, Canada is asserting collective self-defence with Iraq against Daesh, with self-defence extended to Syria (where Daesh also operates).

But Syria itself has not consented to the use of force on its territory (and even if it had, tacitly or otherwise, it could revoke that consent). And it itself is not the originator of the armed attack. Hence we face the common post-9/11 conundrum:  Directing military force against a non-state actor almost always requires use of force on the territory of another state, including some that do not consent.

There is serious incongruity in the idea that a non-state actor may use violence whose scope and effect rises to the level of armed attack, and then hide behind the territorial sovereignty of a state that, however unwillingly or unwittingly, serves as host. And as a practical matter, some states – including, especially, the United States – have rejected a formalistic approach that would allow this shelter. These states have instead pursued a doctrine of “unwilling or unable”. In Ashley Deeks’s words:

The “unwilling or unable” test requires a victim state to ascertain whether the territorial state is willing and able to address the threat posed by the nonstate group before using force in the territorial state’s territory without consent. If the territorial state is willing and able, the victim state may not use force in the territorial state, and the territorial state is expected to take the appropriate steps against the nonstate group. If the territorial state is unwilling or unable to take those steps, however, it is lawful for the victim state to use that level of force that is necessary (and proportional) to suppress the threat that the nonstate group poses.[2]

Whether “unwilling or unable” is truly part of customary international law is hotly debated. However, the international community has demonstrated more receptivity – although certainly not enthusiasm – for the doctrine since 9/11 and especially since 2014. The United States and Turkey have reaffirmed the existence of an unwilling or unable doctrine to justify self-defence against Daesh in Syria, and they are not alone. They have been joined by Australia, Belgium, Canada, Germany, and, implicitly at least, Denmark, Norway and the United Kingdom. In response to the US notification to the United Nations, then Secretary General Ban Ki-Moon reportedly stated: “I also note that the strikes took place in areas no longer under the effective control of that [the Syrian] government.” Other states, such as Jordan, Bahrain, Qatar and the United Arab Emirates have participated in air strikes in Syria without articulating legal justifications, leading at least one commentator to posit that they are “relying on the same legal theory as the United States and UK.”

Still other states, such as France, have embarked on a similar course under the shelter of a UN Security Council resolution 2249 (2015) that is (as suggested) creatively ambiguous about the legal authority for directing force at Daesh in Syria.

Collectively, this constitutes considerable state practice and – in the case of the United States, Turkey, Canada, Australia, Belgium and Germany – emphatic opinio juris supportive of the “unable or unwilling” doctrine as a basis for invoking UN Charter Article 51 self-defence.

 

Yesterday’s Events

State practice of what is less clear. It is one thing to intrude on a state’s territory to exercise self-defence strictly limited to the attacking non-state actor. It is quite another to stray beyond this terrorist-specific targeting and direct force against the territorial state’s own assets or infrastructure.  That is why the US missile strike against the Syrian airbase after the chemical weapons attacks in April cannot be justified on the same self-defence theory supporting use of force against Daesh. (See my own views on that incident here and here.)

Yesterday’s clash with Syrian forces raises new legal doubts. They boil down to this: how can the “unwilling and unable” justification for force in Syria be maintained once the Syrian government asserts itself on its own territory against Daesh? “Unwilling and unable” begins to look like transparent pretext. Moreover, it beggars imagination that it could be used as legal justification for a Coalition forces strike staving off the very government said to be unwilling and unable in the first place.

To conclude that Coalition use of force is lawful in these circumstances you would need to accept the following:

1. Coalition forces have been lawfully employing force against Daesh because Syria was unwilling and unable.

2. The unwilling and unable justification persists even after the territorial state demonstrates it is no longer unwilling and unable.

3. And more than that, the Coalition forces may lawfully use military force to suppress efforts by the once unwilling and unable state aimed at reasserting control over its territory.

The “force protection” argument for yesterday’s Coalition strike only gets you so far. “Force protection” is not lawful self-defence if the presence of the Coalition now itself constitutes an armed attack against Syria, because the original “unwilling and unable” basis for the Coalition presence has evaporated. (Imagine this outside of the Syria context: If one state invades another, and parks itself on the second state’s territory, an effort by the invaded state to resist the invasion is not an attack against which the invading state may claim self-defence.)

Conclusion

I acknowledge that these legal niceties will determine little of what happens in Syria. And I imagine others will counter with their own legal reasoning. That might be something like this: once lawfully engaged in self-defence under an unwilling and unable doctrine, the Coalition may use such proportionate force as is necessary to end the armed attack by Daesh, including against the Syrian government if it gets in the way. Put another way, the unwilling and unable justification is a one-way-ratchet that cannot be notched back because the delinquent territorial state has a change of heart or capacity.

If that is the legal argument, it amounts to: once a failed state whose sovereignty has been suspended, always a failed state with a suspended sovereignty. That does not seem the sort of position likely to increase international stability or avoid capricious misuse in the future.

At the very least, events on the ground in Syria demonstrate clearly the risk of predicating use of armed force on a fuzzy doctrine like “unwilling and unable”.  States do not always remain unwilling.  And to use force to ensure they remain unable would be the height of absurdity.

In sum: since Canada is participating in the Coalition, it will be drawn along into a difficult legal quagmire if the anti-Daesh campaign now bleeds into an armed conflict with the Syrian government.

 


[1] Letter dated 31 March 2015 from the Deputy Permanent Representative of Canada to the United Nations addressed to the President of the Security Council, UN Doc S/2015/221 (31 March 2015)

[2] Ashley S. Deeks, “‘Unwilling or Unable’: Toward a Normative Framework for Extraterritorial Self-Defense,” (2012) 52(3) Virginia Journal of International Law 483 at 487-88.

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