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Bobby posted on Monday about the UK decision to target and kill a UK national in Syria who was part of ISIS. (Another UK national also died in the strike.) Bobby’s post discusses the similarities between the UK legal theory, as it’s been presented publicly, and the legal theory the U.S. Government asserted in its strike on Anwar al-Awlaki. As Bobby notes, the United Kingdom’s theory is that it was acting in national self-defense against an imminent or continuing threat to the United Kingdom (which it cast as a “direct threat” in which the UK target was “seeking to orchestrate specific and barbaric attacks against the West”). But there is an aspect of the UK legal theory that merits emphasis.
Embedded in the theory justifying the UK strike in Syria is the idea that the Syrian government was unwilling or unable to suppress that threat. The UK government has not invoked the concept in explicit terms in explaining why it believes that the strike was lawful. But Prime Minister Cameron articulated that the strike was necessary – in his words, there was “no other means to stop them.” To conclude that the strike was necessary implies that it would have been impossible or ineffective to ask Syria to exercise military or police force to stop the threat. That is, because Syria was unwilling or unable to stop the threat, it was necessary for the UK itself to undertake the strike.
We should not be surprised that this is where the UK ended up. Daniel Bethlehem QC, former legal adviser to the Foreign Office, included the concept in his paper entitled, “Principles relevant to the scope of a state’s right of self-defense against an imminent or actual armed attack by nonstate actors.” In that paper, he wrote that the requirement for consent to use force in self-defense against a non-state actor in another state’s territory does not operate when there is a reasonable and objective basis for concluding that the third state is unwilling or unable to restrain the armed activities of the non-state actor, such that it is necessary for the state to act in self-defense, with no other reasonably available means to address an imminent or actual armed attack.
It’s also worth noting that France, too, appears to be prepared to invoke the “unwilling or unable” concept in the Syria context. The Wall Street Journal reported Tuesday that France is preparing to engage in strikes against ISIS on Syrian territory to suppress direct threats to France. If that occurs, France almost certainly will rely on the same legal theory as the United Kingdom. And Australia, whose ground forces already have been fighting ISIS in Syria, has committed to participate in airstrikes there, apparently relying on a collective self-defense of Iraq/unwilling and unable theory. These actions will add important state practice to the growing pile.