What Does the “Unwilling or Unable” Standard Mean in the Context of Syria?

[Editor’s note: Ryan Goodman responds to Professor Lewis in a subsequent post. See also a response by Jonathan Horowitz]

President Obama has now announced his intentions to carry the fight against ISIS into Syria by authorizing US airstrikes against ISIS positions in that country. A couple of weeks ago Ryan Goodman had posited that the legal justification for such strikes (at international law) would be based on US claims of self-defense (either individual or collective) which would implicate the “unable or unwilling” standard that the US has used to justify other cross-border raids such as the bin Laden operation in Pakistan. However, unlike the bin Laden raid where it was fairly clear that Pakistan was unwilling or unable to cooperate with the US on the capture or killing of bin Laden, Ryan pointed out that Syria had indicated that it is willing and able to cooperate with the US in coordinating strikes against ISIS on its territory. Syria also stated that “Any strike not coordinated with the government will be considered as aggression.” Ryan found the US State Department’s apparent disinterest in the Syrian willingness to cooperate troubling, particularly given the tenuous place that the “unable or unwilling” standard already occupies in international law.

I believe that these misgivings arise from a misinterpretation of what the term “unable or unwilling” describes. Ryan reads it as describing the cooperation that the host/target state is prepared offer. Under this reading a sovereign state that is willing to cooperate with foreign strikes on its territory should therefore have a say in how or where those strikes are conducted. This interpretation would effectively give Syria a measure of control over US targeting decisions on its territory, and it appears to be what the Syrian government had in mind when it insisted on its role in “coordinating” strikes with the US.

However I believe the US position is that the phrase “unable or unwilling” describes the host/target state’s capacity to control its own territory. States have an obligation to prevent their territory from being used as a base for launching attacks on other states. If they are either unable or unwilling to prevent such attacks from being planned, prepared and executed from their territory then states that are impacted by those attacks have a right to take measures to prevent the territory from being so used. In this case Syria is unable to prevent its territory from being used by ISIS to plan, prepare and execute attacks against targets in Iraq (and depending upon who you believe, in the US as well). Whether they are willing to cooperate with the US strikes against ISIS is irrelevant to this analysis.

This strikes me as being the better position from a policy standpoint as well. A state that is unable or unwilling to effectively police its territory should not be given the right to direct the actions of an intervening state. An inability or unwillingness to control its own territory is an indication of either political instability or latent hostility towards the intervening state. If it is the former then giving the host/target state the right to direct the actions of the intervening state is likely to result in the direction being misused by that state (e.g. the ISI in Pakistan has allegedly directed drone strikes against targets of its choosing such as domestic political enemies rather than Taliban focused on targeting Americans in Afghanistan). If it is the latter then the host/target state will use its veto power to prevent the intervening state from effectively dealing with the threat.

It is important to note that this interpretation does not give the US unlimited license to act in violation of the sovereignty of other states as some opponents of the standard claim. There are limits and dangers associated with taking such a course of action. First of all, an intervening state can only take such actions after giving the host/target state a meaningful opportunity to prevent its territory from being used by the non-state actor to launch attacks. In the case of Syria, there is no question that it is unable to control the territory under ISIS control so further delays are unnecessary. Secondly, the intervening state does so at its own peril. Syria can rightfully interpret any strikes as aggression by the US and it is justified in taking steps to prevent such attacks and to destroy the drones/aircraft conducting such attacks.

I believe that it is this reading of the “unable or unwilling” standard that underlies the impending US use of force in Syria and that this standard strikes an appropriate balance between Syrian sovereignty and the US’ right to engage in collective self-defense that it will be exercising in Syria. 

About the Author(s)

Michael Lewis

Ella A. and Ernest H. Fisher Professor of Law at Ohio Northern University School of Law, Formerly Served in the U.S. Navy (1987-1995) Follow him on Twitter (@MikeLewis64).