A Response to Jonathan Horowitz – Why Unwilling or Unable is Measured by a State’s Capacity to Act as Well as its Willingness to do so

Jonathan Horowitz responded to my earlier post and made two points about the “unable or unwilling” standard that I believe merit some clarification.

Jonathan begins by agreeing with Ryan Goodman’s view that Syria’s willingness to cooperate with US actions against ISIS on Syrian territory should preclude or at least forestall US actions against ISIS in Syria. This view seems to take the position that the terms “unwilling or unable” apply solely to the cooperation of the target state. If Syria is both willing and able to cooperate then it should be able to direct the actions taken by the US on Syrian territory. This reading of the standard effectively eliminates the term “unable” from the test.

The standard is written in the disjunctive because it is intended to encompass both the capacity and the willingness of the host/target state to suppress threats emanating from its territory, not merely its willingness to do so. Willingness to act against ISIS without the capacity to do so is of little value to neighboring states (in this case Iraq) threatened by ISIS. Yet that is the standard that Jonathan advances, a standard that adds nothing to the security to states that are threatened from the ungoverned spaces of the world.

Jonathan also misreads my reliance on territorial control as a proxy for the “unable” portion of the test. He is correct that the mere lack of territorial control does not mean that a state is unable to suppress threats emanating from that area. However, in the case of Syria there is little doubt that President Assad has made every possible effort to oust the rebel groups from their strongholds (as over 100,000 Syrian dead can attest to) without success. Therefore, in a situation like the one which currently prevails in Syria, the government’s prolonged inability to exercise control over an area despite massive efforts to do so provides a strong indication that the government is unable to suppress threats emanating from that area.

Finally, Jonathan claims that the “unable or unwilling” standard that I describe is “too static” and contrasts it with a “complex and dynamic” standard that he would favor. It is hard to understand why he concludes that the unable or unwilling standard is static. There is nothing in the standard which even implies that it cannot or should not be revisited if conditions change. I doubt that removing this straw man would lead him to approve of the standard as currently interpreted by the US, but it is worth making it clear that this objection is unfounded. There is no basis for believing that a host/target state that demonstrates both the willingness and the capacity to effectively suppress threats emanating from its territory would not be allowed to do so without further outside interference. 

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).