“Manifestly Failing” and “Unwilling or Unable” as Intervention Formulas: A Critical Assessment

1

Chapter 7: “Manifestly Failing” and “Unwilling or Unable” as Intervention Formulas: A Critical Assessment Dr Ingvild Bode, University of Kent In Aiden Warren and Damian Grenfell (eds) Rethinking Intervention: Security and the Limits of Humanitarian Intervention (Edinburgh: Edinburgh University Press), forthcoming 2017.

Introduction

After 2001, states have increasingly invoked the “unwilling or unable” formula when

justifying military intervention against non-state/terrorist targets. Moreover, the closely

related term “manifestly failing” has served as a key determinant triggering the international

community’s responsibility for protecting vulnerable populations following the third pillar of

the responsibility to protect (R2P). Since 2014, the “unwilling or unable” formula has also

served to justify US-led air strikes against the so-called Islamic State in Iraq and al-Sham

(ISIS) in Syria. Given the formula’s apparent rising prominence, this chapter will critically

assess the legal foundations and policy practice of the “unwilling or unable” formula and

evaluate what this means for the evolution of intervention standards.

The inclusion of R2P in the United Nations World Summit Outcome of 2005 marked

a decisive shift in the evolution of interventions for humanitarian purposes. A key trigger of

shifting R2P to the level of the international community and thereby moving towards

intervention is determining that “national authorities manifestly fail to protect their

populations from genocide, war crimes, ethnic cleansing and crimes against humanity”

(General Assembly 2005, para. 139 emphasis added). The phrase “manifest failure”

corresponds to the “unwilling or unable” formula previously used in this context by the R2P-

defining Commission on Intervention and State Sovereignty (ICISS) (Independent

2

Commission on Intervention and State Sovereignty 2001, xi).1 Apart from this connection,

the “unable or unwilling” formula has also been used to justify military intervention in a

counterterrorism context. In September 2014, a US-led international coalition has therefore

commenced airstrikes on Islamic State in Iraq and al-Sham (ISIS) targets in Syria because

“… the government of the State where the threat is located is unwilling or unable to prevent

the use of its territory for such attacks” (Security Council 2014d, emphasis added). This is the

latest prominent example of a state using the “unwilling or unable” formula as a legal

justification for military intervention serving the purpose of self-defense against terrorist/non-

state actors on the sovereign territory of “host” states. Because this marks a departure from

the three conventional legal theories regulating the use-of-force in self-defense against

terrorist actors in “host” states—proof of established links of support or state sponsorship of

terrorist actors (the attribution standard), explicit state consent or a Security Council

authorization - this practice may indicate a shift in how interventions are justified.2

The rising prominence and, arguably, relevance of the “unwilling or unable” formula

warrants a more thorough examination of its legal foundations and policy practice. Adding to

existing literature which considers either the counter-terrorism (Deeks 2012; G. D. Williams

2012; Reinold 2011; Scharf 2013, 183–210; Ahmed 2013) or the R2P context only

(Gallagher 2014a; Gallagher 2014b; Ramos 2013; Rosenberg and Strauss 2012), this chapter

offers a critical examination of its usage across both contexts. I will proceed in three steps:

first, I discuss how the “unwilling or unable” formula relates to the fulfilment of both internal 1 Interestingly, the ICISS report also refers to the “unwilling or unable” formula in the context of the counter-terrorist use of

force (Independent Commission on Intervention and State Sovereignty 2001, 12).

2 Further, article 17 of the Rome Statute on the International Criminal Court (ICC) authorises the ICC to conduct

investigations falling under its jurisdiction if a state has been unwilling or unable to prosecute itself (International Criminal

Court 2002, 12–3). Article 17(2) and (3) outline criteria for the Court to conduct such an examination, which makes this case

distinct from the “unwilling or unable” formula in both contexts discussed in this chapter. Not only has an independent third

party, the ICC, been charged with conducting the examination, but comparatively clear criteria have also been formulated.

3

and external responsibilities (increasingly) tied to state sovereignty. Second, I examine and

compare the development of the formula in relation to first, R2P and second, counter-

terrorism. This will entail accounting for its legal bases, state and policy practice, opinio

juris, as well as inherent problems of the formulas. These parts also consider the application

of the formulas across two situations: the international intervention in Libya (R2P) and the

ongoing interventions against ISIS targets in Syria. This latter case will be discussed in a

more detailed, exploratory case study. I conclude with a summary of what these

developments might indicate in terms of evolving intervention standards.

Sovereignty and Internal/External Responsibilities

The character of the state as the legitimate sovereign authority constitutes (disputably) the

very cornerstone of international law and international order. State sovereignty has both

internal and external aspects: internally, it refers to the principal authority over its own affairs

within a particular territory and externally, that authority is acknowledged by others as

expressed by the UN Charter’s principle of non-intervention (Biersteker and Weber 1996, 2).

As the International Court of Justice has found, the state “is subject to no other state, and has

full and exclusive powers within its jurisdiction” (quoted in Hoffman 1966, 164).

Despite its supposed pride of place, sovereignty has often been recognized as a

(convenient) fiction across both aspects.3 Internally, there are many examples of states who

either do not exert effective control over their territorial space or are unable to fulfil

international commitments. Externally, breaches of the non-intervention principle have been

a repeated and deliberate characterstic of international relations (Krasner 1999), not least

3 Today’s sovereign states have long lost the “full” control and authority over what happens inside their borders, in particular

in the contexts of (economic) globalisation, the growing recognition of “transsovereign” problems and processes of regional

integration, such as in the European Union (e.g. Sassen 1996; Strange 1996; Cusimano 2000).

4

because that principle has stood in dichotomous contrast with UN Charter commitments to

human rights.

Since the 1990s, these challenges have given rise to understanding “sovereignty as

responsibility” (Deng et al. 1996), tied to specific responsibilities both vis-à-vis its own

population and the international community. It is disputed whether this responsibility-based

understanding is part of a longer tradition dating back to the 17th century or the latest in a

series of changes constituting sovereignty as a social product (Barkin and Cronin 1994;

Glanville 2014). Notwithstanding its genealogy, the responsibility dimension has a distinct

effect on how sovereignty, and therefore the nature of states themselves, is understood.

Internally, sovereignty as responsibility requires states to provide at least a minimum amount

of goods and services, in particular security, and to ensure the protection and wellbeing of

their citizens. As articulated by the UN General Assembly, should states fail on this account:

… we [the international community] are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity (General Assembly 2005, para. 139). In other words, if a state “manifestly fails,” it becomes the international community’s

— ultimately the Security Council’s — responsibility to react and protect its citizens as

agreed upon unanimously by the UN membership in 2005. The Security Council is therefore

set up as the principal organ to determine whether a state has failed in fulfilling its

responsibilities and may even authorize the use of force to protect the state’s population.

Externally, sovereignty as responsibility requires states to adhere to the international

community’s basic standards and fundamental principles. After 9/11, fulfilling international

counter-terrorism obligations, as for example outlined in Security Council Resolution (SCR)

1373, has become a key responsibility. In contrast to the provisions on R2P, these obligations

5

neither designate who has the clear authority to determine their fulfilment or failure, nor what

should be done if their failure has been ascertained. There is likewise no clear path towards

authorizing the use of force in the case of failure.

Despite these differences, both scenarios share a similar formula that helps in

deciding whether state responsibility has been fulfilled: the “unwilling or unable” test, which

the chapter turns towards examining in more detail now. Although the “unwilling or unable”

terminology has only appeared comparatively recently on the international plain, it has

already been used in a variety of contexts, as will be shown in the following sections.

“Unwilling or Unable,” “Manifestly Failing” and the Responsibility to Protect

The “unwilling or unable” formula made several prominent appearances in the ICISS’ report

entitled The Responsibility to Protect. In particular, it was used as a “test” to judge state

behaviour in pillar three, in cases where the international community takes collective action

to protect vulnerable populations. However, when the inclusion of R2P was discussed at the

World Summit in 2005, the resolution’s drafters decided on a last-minute change. Instead of

using the term “unwilling or unable,” they chose to qualify state behaviour as having

“manifestly failed” in order to trigger the international community’s response. Some sources

suggest that the latter may have been introduced to make the respective paragraph more

acceptable to the wider UN membership, as the former “was perceived to have a more

subjective quality” (Gallagher 2014b, 432; Garwood-Gowers 2013, 84).

Despite this attempt to reduce subjectivity, determining whether a state is “manifestly

failing” to protect its population from the four major crimes (genocide, war crimes, crimes

against humanity, ethnic cleansing) falling within the scope of R2P remains linked to

uncertain criteria. It may therefore still be criticized precisely for the subjective judgment it

invariably relies on. While the Security Council is clearly designated as the authority

6

evaluating manifest failure, how precisely this evaluation happens and which criteria it

applies remain unspecified. Indeed, more than 10 years after the World Summit, the

application of manifest failure in the context of R2P is characterized by unresolved issues,

ambiguities and inconsistencies (Gallagher 2014b, 433–4; Rosenberg and Strauss 2012).

Security Council practice in the years since 2005 has been inconsistent in applying R2P: the

international community has not taken responsibility for local populations even after state

authorities have demonstrably and manifestly failed to protect their populations. In this

regard, for every case of successful R2P application, such as in Libya and Cote d’Ivoire,

there have been at least as many cases of inaction, such as in Darfur and Syria.

Inconsistencies are also related to R2P discourse: major countries continue to use the

“unwilling or unable” formula in the R2P context and some key R2P scholars either use

“manifest failing” and “unwilling or unable” interchangeably or merge both terms.4 ICISS

co-chair Ramesh Thakur noted that the two formulas are really only “different wording to say

the same thing” (Thakur 2015). Both the US’ and the UK’s official endorsements of R2P

therefore refer to “unwilling or unable” rather than manifestly failing, as stated in the US

National Security Strategy of 2010:

The United States and all member states of the UN have endorsed the concept

of the ‘Responsibility to Protect.’ In so doing, we have recognized that the

primary responsibility for preventing genocide and mass atrocity rests with

sovereign governments, but that this responsibility passes to the broader

international community when sovereign governments themselves commit

genocide or mass atrocities, or when they prove unable or unwilling to take

4 Thomas Weiss, for example, speaks about the responsibility of the international community in situations “[w]hen a state is

unable or manifestly unwilling to protect the rights of its population” (Weiss 2011a, 9).

7

necessary action to prevent or respond to such crimes inside their borders.

(Obama 2010, 48 emphasis added).

In order to ascertain how the Security Council has determined a state to be

“manifestly failing” in practice, the chapter briefly considers its response to the Libyan crisis

in 2011 as the, arguably, most prominent example of R2P application.

The Libya Intervention and the Criteria of “Manifestly Failing”

In the spring of 2011, the Libyan government began to use force against its population

following popular protests against the Qaddafi rule. This situation escalated quickly as the

government lost control over many eastern cities and territories and ordered air and ground

strikes. These actions were met with condemnation by the international community, who set

up a sanctions regime against members of the Qaddafi family and an arms embargo through

SCR 1970 on 26 February (Security Council 2011b). The same resolution also referred the

situation in Libya unanimously to the International Criminal Court. Undeterred,

governmental troops continued to advance on opposition-held areas in eastern Libya. In

March 2011, Qaddafi moreover made a series of hate speeches in the course of which he

announced his intent of committing atrocities on civilians in Benghazi (Karam and Heneghan

2011; P. D. Williams and Bellamy 2012, 288). In response, the Security Council adopted

SCR 1973 declaring a no-fly zone across Libyan territory and authorizing member states “to

take all necessary measures … to protect civilians and civilian populated areas under threat of

attack in the Libyan Arab Jamahiriya” (Security Council 2011d). When the non-negotiable

demands on the Qaddafi government to end the violence against Libyan civilians were not

met, NATO Operation Unified Protector, acting with regional support, began conducting

airstrikes against military targets and infrastructure.

8

Based on this brief summary of events leading up to the R2P-based intervention, the

Security Council clearly had determined the Libyan government’s “manifest failure” to

protect its own population. But how? It is sometimes (critically) noted that only three weeks

passed between the first Council resolution 1970 and SCR 1973 authorizing the use of

military force (O’Connell 2011, 16). However, determining Libya’s manifest failure had

already started in the context of SCR 1970: the resolution “recall[s] the Libyan authorities’

responsibility to protect its population” and in “considering that the widespread and

systematic attacks … against the civilian population may amount to crimes against humanity”

prompted the applicability of R2P (Security Council 2011b, 1–2; Popovski 2011). This

determination is not only clear from the text of SCR 1970 but also from its included referral

to the ICC, whose jurisdiction only applies to the four atrocities also falling within the scope

of R2P.

This type of reasoning can also be underlined by considering the Council meeting

records in the lead-up to SCR 1970. UN Secretary-General Ban Ki-Moon as well as a range

of member states kept alluding to the “manifest failure” of Libya and what this means for the

responsibility of the international community (Security Council 2011a, 364916491; Security

Council 2011c, 4–5). The strongest of these statements came from the Permanent

Representative of Libya to the UN himself, who addressed the Council and then resigned

from his position, closing his speech with an emotive “Please, United Nations, save Libya.

No to bloodshed. No to the killing of innocents” (Security Council 2011a, 5).

In the time that passed between SCR 1970 and SCR 1973, Libya not only failed to

abide by the earlier resolution but violence against civilians also escalated. Qaddafi even

broadcast his intention and willingness to manifestly fail in fulfilling his government’s

responsibilities. In the Council deliberations that preceded the vote on SCR 1973, members

therefore seemed to confirm what SCR 1970 had assumed, namely that Qaddafi was

9

committing atrocities on Libyan civilians. Determining manifest failure therefore seems to

have followed a dual approach, but was mostly already judged at the time of SCR 1970.

Although it is demonstrably clear that Libya had manifestly failed to protect its own

population, the above discussion of events also shows that the international community’s

determination of “manifest failure” did not seem to follow a set of established criteria. Given

the situation’s clarity, especially as atrocity intentions were frankly expressed by the Libyan

president, this has not been very problematic in the Libyan case; often cited as a success for

R2P (e.g. Bellamy 2011; Weiss 2011b; Popovski 2011; Welsh 2011). Still, a tighter set of

criteria would be needed in order to make Security Council decision-making on R2P

scenarios transparent, consistent and clear. Gallagher has attempted to ascertain what

“manifestly failing” means in practice by coming up with five criteria: (1) government

intentions, (2) weapons of choice, (3) death toll, (4) number of people displaced, and (5) the

international targeting of civilians, especially women, children and the elderly (2014a, 6–12).

Lists such as these are clearly a step forward in clarifying assessments on “manifestly failing”

and therefore also increasing the accountability of decision-makers. They however remain,

for the time being and as I will also show in relation to counter-terrorist determinations of

“unwilling or unable,” purely aspirational.

“Unwilling or Unable” States in the Context of Counter-terrorism

The international community has recognized terrorist attacks as a key threat to international

peace and security since the 1970s. However, it was only after the 9/11 attacks that its

response to terrorism took on a new sense of urgency, which led to substantive changes in

(customary) international law. In an international order defined by a society of states, the

non-state nature of terrorists creates substantial challenges as to how “victim” states should

be able to respond to terrorist attacks in self-defense, in particular because these are

10

invariably planned and staged on the territory of “host” states. When considering military

intervention in these scenarios, there are three legal theories to account for: the attribution

standard, consent of the “host” state, and an authorization of the Security Council.

Starting with the attribution standard, Alexandrov stated in the mid-1990s that

“[a]ccording to the [International Law] Commission, an armed intervention into a state in

order to attack terrorists cannot be regarded as self-defense when the State itself has not been

guilty of an armed attack and has not directed or controlled the terrorists in question”

(Alexandrov 1996, 183). As indicated by SCR 1373 and 1378 related to Afghanistan

(Security Council 2001a; Security Council 2001b), customary law and state practice have

changed decisively after the 9/11 attacks. Although the Taliban were not in direct control of

Al Qaeda, they had allowed its presence and had not cooperated with the international

community when it had demanded Al Qaeda’s removal (Security Council 1999). This

highlights that the attribution standard now appears to be broader in scope, although it still

requires the establishment of some sort of link, be it tolerance of or tacit support for terrorist

actors by state authorities, in order to justify military intervention. Second, interventions by

external actors on “host” state territory can also be legal if the “host” state of terrorist actors

consents (International Court of Justice 2005; Visser 2015). This argument has a

straightforward connection to sovereignty understandings giving national authorities the

authority over decisions within its territory. Third, the Security Council may determine that a

situation constitutes a threat to international peace and security, allowing it to authorize

interventions and the use-of-force across various contexts. In this case, a clear Security

Council resolution either “deciding” or “authorizing” the intervention under Chapter VII of

the UN Charter, or in Security Council terms, the use of “all necessary measures,” would be

needed to clearly determine an intervention’s legality (Akande and Milanovic 2015).

Additionally, any use-of-force in the form of military interventions, also against non-state

11

actors, has to be necessary and proportionate. Therefore, it should be used as a last resort

once reasonable non-peaceful means have been exhausted (necessary), be commensurate with

the attack and limited to the amount needed to prevent further attacks (proportionate).

The “unable and unwilling” formula enters considerations both in relation to the

attribution standard, but in particular with regard to the necessity criterion. In brief, the

formula refers to the “right of a victim state to engage in extra-territorial self-defense when

the host is either unwilling or unable to take measures to mitigate the threat posed by

domestic non-state actors” (G. D. Williams 2012, 625). Potential legal sources of the test can

be found in international law both prior to and post-9/11, especially in documents related to

the various obligations of states not to assist or condone terrorists. Key examples are SCR

1373 of 2001, the International Court of Justice’s Corfu Channel case of 1949, and the 1970

Friendly Relations Declaration noting that:

Every State has the duty to refrain from organizing, instigating, assisting or

participating in acts of civil strife or terrorist acts in another State or

acquiescing in organized activities within its territory directed towards the

commission of such acts, when the acts referred to in the present paragraph

involve a threat or use of force (General Assembly 1970).

However, none of these explicitly link the permissibility of using force to a non-

compliant state — and only SCR 1373 represents a legally binding commitment under

Chapter VII of the UN Charter.

More scholars have therefore argued for a connection between the “unwilling and

unable” test and the necessity criterion of self-defense (G. D. Williams 2012, 630–1; Deeks

2012, 495; Dinstein 2001, 275). Judging a host state to be “unwilling or unable” to take

measures against terrorist actors therefore becomes part of determining whether the

12

extraterritorial use of force is necessary. As Williams summarises, “… if the host is willing

and able, then the use of force will be illegal and unnecessary” (2012, 630). Although this

appears to be a reasonable connection, it encounters difficulties because neither the criteria of

the “unwilling or unable” assessment nor who is entitled to make it are clearly defined.

Having also identified this “substantive indeterminacy,” Deeks examines past

“victim” state practice and opinio juris in the pre- and post-Charter era, deriving a set of six

substantive and procedural factors for the test, such as prioritization of consent and

cooperation and request to address the threat and time to respond (2012, 503, 516). Despite

Deeks offering the first substantial and practical-oriented analysis of criteria that

could/should inform the “unwilling or unable” test, it remains purely aspirational and,

moreover, restricted to the opinio juris of intervening states. While she acknowledges this

bias, her methodological choice therefore does not allow for a comprehensive picture of

customary international law, with the lacking host state opinio juris representing a key

impediment. Moreover, Deeks fails to designate a clear authority to verify the intervening

state’s “unwilling or unable” judgment — something that, following the current set-up of the

international system, should fall within the Security Council’s authority (Ahmed 2013, 21–6).

Practical Impediments of the “Unwilling or Unable” Formula

There are at least two further practical impediments to the “unwilling or unable” test as a

justification for military interventions: first, although unwillingness and inability appear to be

used interchangeably so as to generally imply a state’s ineffectiveness in meeting its

obligations, there are valid differences between the terms (Ahmed 2013, 8–9). Comparing

their meanings, the Oxford English Dictionary defines unable as “not having ability or power,

to do or perform … something specified” and unwilling as “not intending, purposing, or

desiring (to do a particular thing); … averse, reluctant” (2015a; 2015b). “Unable” therefore

13

appears to be the more objective criterion, while “unwilling” requires an accurate value

judgment about another state’s intentions, something that has long been a problem for

international policymakers and scholars alike (for a summary see Holmes 2013, 831–3).

Additionally, the two terms imply different levels of responsibility relating to state inaction.

That is, while a state’s inability to fulfil its obligations may be due to inadequate resources or

capacities and therefore may present a legitimate reason for inaction, unwillingness presumes

a purposeful decision to refrain from fulfilling these obligations either by choice or perhaps

by economic necessity as it prioritises other policy areas.

Seen in this light, it becomes apparent why some studies have therefore identified

“unwillingness” as the central determinant of the “unwilling or unable” formula: “A state that

is willing but unable to deal with domestic non-state actors will inevitably provide its consent

for the victim state to use force in its territory” (G. D. Williams 2012, 627). Providing this

consent puts the intervening state’s use-of-force on safe legal grounds. However, when

considering prominent applications of the “unwilling or unable” test, such as US targeted

killing operations against terrorist targets in Pakistan, Yemen, and Somalia, things are not as

easy as they seem (Warren and Bode 2014, 122-3). Yemen is often cited as an example of

open consent based on President Hadi’s official statements to this point (Al-Shamahi 2013).

However, not only has the Yemeni parliament issued diverging statements, but drone strikes

have also continued after Hadi’s forced resignation in January 2015 amid unclear sovereign

control, highlighting the tenuous nature of consent (Ackermann 2015).

The Pakistani case is more complicated as sources simultaneously outline tacit

consent to drone strikes by the country’s military leaders and open condemnation by its

political leaders (McNeal 2014, 697–8; Aslam 2011, 318; Zaidi 2011). Pakistan’s trajectory

illustrates an important observation: it may be opportune for a state to protest in public, while

the use of force is consented to behind closed doors. The status of consent is even more

14

difficult to ascertain in Somalia, a state that has been lacking a central government since the

early 1990s. Although there are only few reliable sources to be found, some suggest that

Somali government authorities and parliamentarians have occasionally issued statements of

support on the matter, while members of civil society have expressed concern about potential

civilian casualties (Pelton 2011). As US practice indicates, “host” state consent and the

connected determination whether the host state is “unable” to exert control over its territory,

provides for murky instead of clear-cut legal grounds.

In terms of the second practical impediment of the “unwilling or unable” test: how is

it possible to determine if a state is “unwilling or unable” in the face of state disintegration?

Are state authorities that are not in full control of their state’s territory to be automatically

counted as unable? Does it matter whether they purposely did not fulfil their responsibilities?

And if there are several parties with contested authority claims, who should be considered as

the main party whose unwillingness or inability has to be determined to justify the potential

use of force? All of these open questions point to a wide grey area inhibiting the practical

utility of the “unwilling or unable” test. I will come back to these questions and demonstrate

their problematic answers in my subsequent case study of interventions against the ISIS in

Syria.

The “Unable and Unwilling” Formula in State and Policy Practice

Despite these challenges, the “unwilling or unable” test predates post-9/11 practice, although

it has since gained traction. The most prominent cases of intervening states to have referred

to the test are Turkey against the PKK in northern Iraq (repeatedly since the mid-1990s),

Israel against Hezbollah in Lebanon (late 1970s-early 1980s, 2006), the United States against

Al Qaeda in Afghanistan, Pakistan, Yemen, and Somalia (ongoing since 2001), the Russian

Federation against Chechen rebels in Georgia (summer 2002), and Kenya against Al-Shabaab

15

in Somalia (2011) (Deeks 2012, 549–50; Scharf 2013, 204–5; Reinold 2011, 252–84; Ahmed

2013, 3). A brief comparison of these usages reveals that they only triggered limited and

restrained reactions by the international community. In the case of Russia’s 2002 air strikes in

Georgia (Security Council 2002), for example, only three actors – Georgia itself, the US, and

the Council of Europe—issued statements opposing the use-of-force, while the vast majority

of states remained silent (General Assembly and Security Council 2002; Myers 2002;

Council of Europe, Parliamentary Assembly 2002; Ruys 2010, 465–6). Similar observations

can be made with regard to other state usages of the test, leading some studies to suggest that

“in the area of self-defense, many incidents fail to elicit much of an international response,

which could be interpreted as an indicator of legal uncertainty or as tacit acquiescence”

(Reinold 2011, 257). Presuming that these state non-reactions count as consent still

represents too early a conclusion as “true” acquiescence depends above all on how long states

maintain their silence (MacGibbon 1954, 144; Peters 2015).

The “unwilling or unable” formula has gained traction through being put into regular

practice by both the Bush and the Obama administrations. Legal advisers of both

administrations, John B. Bellinger and Harold Koh, have explicitly referred to the “unwilling

or unable” reasoning in prominent speeches (Bellinger 2006; Koh 2010). During President

Obama’s tenure, the test has consistently been used as a legal justification for the

administration’s policy of interventions in the form of targeted killings outside established

theatres of conflict; in other words, when the US has used military force on the territories of

states with whom it is not at war (Brennan 2012; US Department of Justice 2013, 2).

Moreover, in September 2014, the US also provided official endorsement of the test through

referencing it in relation to the expansion of airstrikes against IS targets in Syria in official

correspondence (Security Council 2014d), something I will turn to in more detail now.

16

Intervention against ISIS in Syria: “Unwilling or Unable”?

Since August 2014, a variety of states acting as part of a US-led coalition or independently

have intervened militarily in the form of airstrikes against ISIS on both Iraqi and Syrian

territory. Interventions on Iraqi territory have been uncontroversial on legal grounds as the

country formally requested military assistance of the UN membership in late June 2014

(Security Council 2014a, 2). The US-led international coalition against ISIS has conducted

air strikes on Iraqi territory since August 2014 and has since reached a certain level of

formalization comprising approximately 60 states with varying contributions.

On Syrian territory, interventions against ISIS targets led by the US, actively

cooperating with Bahrain, Jordan, Saudi Arabia, the United Arab Emirates and with Qatari

support, have started on 22 September 2014. These air strikes have been framed as collective

self-defense on behalf of the Iraq, who requested the United States to strike ISIS sites and

military strongholds “outside Iraq’s borders,” without explicitly mentioning that strikes were

supposed to occur on Syrian territory (Security Council 2014c). The US has explicitly

referred to Syria and the “unwilling or unable” formula in this context (Security Council

2014d).

Across the second half of 2015, military interventions of individual states against non-state

targets in Syria have multiplied. As of October 2016, seven further states have conducted air

strikes on Syrian territory as part of the US-led coalition (Turkey, France, Australia, Canada,

the United Kingdom, Belgium and the Netherlands),5 while the Russian Federation has

intervened militarily after having received a request by Syrian authorities (Security Council

2015d, 4). After the November 2015 terrorist attacks in Paris linked to ISIS, France, the UK

and Germany have put forward additional broad individual/collective (preemptive) self-

5 Germany also participates in the US-led coalition, but does not fly airstrikes.

17

defense arguments to justify their interventions (Deutscher Bundestag 2015; House of

Commons 2015; Peters 2015).6

The UK and Germany were also able to refer to unanimous SCR 2249 of 20

November 2015 to legitimise actions. SCR 2249 does not, however, authorize interventions

against ISIS in Syria with reference to chapter VII of the UN Charter. The key operative

clause 5 reads:

Calls upon Member States that have the capacity to do so to take all necessary

measures, in compliance with international law, in particular with the United

Nations Charter, as well as international human rights, refugee and

humanitarian law, on the territory under control of ISIL also known as

Da’esh…” (Security Council 2015f, operative clause 5, emphasis added).

By referring to standing international law and using “calls upon” rather than “authorizes” or

“decides,” the resolution remains ambiguous as to whether it provides a legal basis for

intervention against ISIS targets on Syrian territory. While the UK and Germany have

construed it as such, legal scholars are doubtful on this matter (Akande and Milanovic 2015).

In the following section, I summarize arguments provided by intervening states as well as

other states’ reactions to these interventions, paying special attention to whether these

explicitly or implicitly evoked the “unwilling or unable” formula or in how far they referred

to other legal theories, in particular “host” state consent and the attribution standard. I mainly

study state arguments in the context of debates at the Security Council from September 2014

– December 2015. This exploratory case can therefore help in ascertaining the current

discursive standing of the “unwilling or unable” test although developments in 2015 have

clearly shown that this is a moving target.

6 Both the UK and German parliaments voted on participating in the military interventions against ISIS targets in Syria,

acting upon requests by France and the French invocation of the EU Treaty clause on mutual defense.

18

Debates about ISIS in Syria and Interventions on Syrian Territory at the Security Council:

September 2014 – December 2015

In late August 2014, the US authorized surveillance flights over Syria, with a

particular focus on the Iraqi border, which were seen as a step towards military intervention

against ISIS targets in Syria (Security Council Report 2014c). The first Security Council

debate to include substantial references to the possibility of intervening military against ISIS

in Syria was held on 19 September 2014 on “the situation concerning Iraq” at a ministerial

level. Although the topic was Iraq, more than half of the 40 states on the speakers’ list also

referred to the Syrian conflict. 7 Up until mid-December 2015, there was one further

ministerial debate dealing with the issue of ISIS at the Security Council (Security Council

2015d), while some states also made statements after the vote on S/RES/2249 (Security

Council 2015e). I will consider these two debates in chronological order.

September 2014

At the ministerial level debate on 19 September 2014, there was much discussion

about whether treating Iraq and Syria as separate situations in the fight against ISIS was still

feasible (Security Council Report 2014a; Security Council 2014b, 24). On 8 September, US

President Obama had already announced that his government’s strategy to “degrade and

destroy” ISIS may include an expansion of the air campaign to Syria (Obama 2014). The gist

of this statement was underlined by US Secretary of State John Kerry, who, speaking at

debate stated: “In the face of this sort of evil, we have only one option to confront it with a

holistic, global campaign that is committed and capable of degrading and destroying this

terrorist threat and ensuring that ISIL cannot find safe haven in Iraq, Syria or elsewhere”

7 This choice did not escape the notice of the Syrian delegation: “Some speakers today have gone beyond the agenda item

under consideration, which is the situation in Iraq. That is what is on the agenda” (quoted in Security Council 2014b, 43).

19

(Security Council 2014b, 7). This point was echoed in similar terms by several foreign

ministers, including the Iranian, French, Iraqi, Turkish and Saudi officials (Security Council

2014b). On 22 September, the US expanded its airstrikes to targets in Syria. This course of

action, described as “necessary and proportionate actions in Syria” after having determined

that “the government of the state where the threat is located is unwilling or unable to prevent

the use of its territory for such attacks” was reported to the Security Council on 23 September

(Security Council 2014d emphasis added).

This intervention was not discussed at the Council. This is remarkable because the US

had invited the Council membership and interested states for an open debate on the topic of

foreign terrorist fighters on 24 September 2014. Given the close temporal proximity to the

start of airstrikes against targets in Syria, one could have expected states to use this

opportunity for some sort of statement on the occasion. But only two states, Australia and

Estonia, referred to the ongoing strikes against ISIS in Syria and both references, albeit brief,

can be characterized as supportive. Apart from an oblique remark by Russian foreign minister

Sergey Lavrov, not even Syria addressed the intervention on its territory directly (Security

Council 2014e, 40).

A number of public statements were offered outside the Council. The United

Kingdom spoke in firm support of US action, while the US regional partners issued

statements noting their involvement that, however, did not explicitly cite the US. Speaking

against the legal viability of the “unwilling or unable” test, Russia “note[d] that such actions

can be carried out only within the framework of international law. This implies not a formal

unilateral notification of the strikes, but the existence of explicit consent of the Syrian

government or a relevant decision by the UN Security Council” (Russian Ministry of Foreign

Affairs 2014).

20

From September 2014 to June 2015, many states remained silent on the matter. Some

legal scholars, such as Deeks, interpreted this as a “silent acquiescence” of the legality of air

strikes and therefore, by association, a silent condonement of the “unwilling or unable”

formula (2014), while sceptical scholars such as Heller, instead point to the continued lack of

public state approval (2014).

As of June 2015, a total of eight states had participated in the air campaign on Syrian

territory, compared to eight states in Iraq (Mullen 2014; Drennan 2014). Moreover, the make-

up of these coalitions was almost entirely different with the US being the only joined factor:

while the Syrian campaign was composed of regional partners, Western states dominated the

campaign in Iraq. These participation differences illustrated a certain level of discomfort

when it comes to the legality of the “unwilling or unable” formula.

Still, a June 2015 summary of state practice on the matter, for example, outlined the

position of the Dutch government whose foreign minister states: “… it is now sufficiently

established in fact that there are continuous attacks from Syria against Iraq, directed by the

ISIS headquarters in Raqqah, Syria. … It is also evident that Syrian authorities are incapable

of stopping these armed attacks” (Ruys, Verlinden, and Ferro 2015, 26 emphasis added).

Canada had likewise referred to the “unwilling or unable” formula upon joining the US-led

coalition in March 2015, becoming the first Western state apart from the US to extend its

operations into Syria:

In accordance with the inherent rights of individual and collective self-defense

reflected in Article 51 of the United Nations Charter, States must be able to act

in self-defense when the Government of the State where a threat is located in

unwilling or unable to prevent attacks emanating from its territory (Security

Council 2015a emphasis added).

21

However, from February 2016, Canada ended its participation in air strikes both in Iraq and

Syria, following the election of Liberal Prime Minister Justin Trudeau. This move can be

associated both with a lack of belief both in their effectiveness and, potentially, overall

legitimacy.

July – December 2015

As noted in the introduction to this section, by December 2015, Australia, France,

Canada, Turkey, and the United Kingdom had joined the US-led coalition against ISIS in

Syria and communicated this intent in letters to the Security Council. In addition to Canada,

Australia and Turkey confirmed that Syria has been “unwilling or unable” to counter the

threat posed by ISIS (Security Council 2015b; Security Council 2015c). France and the UK,

instead, referred to individual and collective self-defense under article 51 of the UN Charter,

only, to justify their participation in military intervention, without any reference to the

attribution standard or even the “unwilling or unable” formula. In analysing statements at the

September 2015 ministerial level debate, I will therefore pay particular attention to how the

Syrian national authorities figure in state reasoning.

With 66 member states on the speaker’s list, as well as remarks by four regional

organizations, this provides a good overview on how state perspectives may have changed

(Security Council 2015d). It is important to note that not a single state mentioned the

“unwilling or unable” formula explicitly at the debate. In order to assess in how far the

formula is supported, I paid attention to whether a state spoke in favour or opposed to

military intervention against ISIS targets in Syria. Support of this intervention or of using

military means in Syria would signal an at least implicit approval of arguments as to its legal

standing.

22

Out of 66 states, 14 spoke favourably and mentioned the US-led coalition as an

important means in the fight against ISIS, while many speakers in this group also take some

part in the coalition themselves (e.g. Australia in Security Council 2015d, 69). A further 12

states spoke in favour of military means in counter-terrorism in more general terms,

frequently however highlighting how these can and should only ever be part of the

international solution (e.g. Uruguay in Security Council 2015d, 58). 13 speakers included

critical remarks about atrocities committed by the Al-Assad regime in their remarks (e.g.

Luxemburg in Security Council 2015d, 44). In the majority of cases, however, these were not

connected to the potential of military intervention to counter terrorist threats. Moreover, two

sets of seven states either voiced their opposition to military solutions to what they perceive

as political problems or highlighted non-interference and respect for national sovereignty

(e.g. Venezuela in Security Council 2015d, 16). 23 statements did not include any reference

to military intervention or the use of force. Overall, state statements, compared to those made

in 2014, indicate a growing basis of support for military intervention against terrorist targets

in Syria and therefore, at least some more implicit consent to the “unwilling or unable”

formula. As more states have intervened on Syrian territory and these states have either used

the “unwilling or unable” formula explicitly in their notifications or have implicitly condoned

its reasoning by participating in US-led interventions, the fact that many states still remain

silent on the matter potentially gives more weight to “tacit acquiescence” arguments.

Considering the content of arguments provided by France, the UK and Germany,

moreover, speaks for a broad interpretation of individual and collective self-defence under

article 51 of the UN Charter. Although their interventions still happen on Syrian territory,

they do not concern themselves with the attribution standard or the response undertaken by

the Syrian authorities at all. For some parliamentarians at the German Parliament’s debate,

debating the legality of the intervention was even construed as a “nitpicking” matter in the

23

face of the ISIS threat (Peters 2015). If these interpretations of article 51 hold, its scope

would be decidedly broader than in previous practice.

Moreover, ignoring the Syrian authorities, in these cases, is also clearly connected to

them being deemed illegitimate rather than unwilling or unable. I consider these questions

and the Syrian response in some detail in the next section.

Syria under Assad: Willing but Unable?

A key weakness of Deeks’ study on the “unwilling or unable” formula has been her

lack of attention paid to the “target” state — this section will therefore consider Syria’s

reaction as well as how it was assessed according to the “unwilling or unable” formula.

Initially, Syria had stated that it would consider US attacks on targets in Syria as an

act of aggression (Security Council Report 2014c). However, when US strikes started in

September 2014, it did not protest formally and instead, referred to having received prior

notice of the strikes (Security Council Report 2014d). Even that simple statement contains

some uncertainty as Syria held that it was notified by the US delegation to the UN, while

other sources point to prior notice being given by the Iraqi government (Security Council

Report 2014d; AP 2014). In light of applying the “unwilling or unable” formula, it is

noticeable that the US contradicted giving any official notification to the Syrian regime, so as

to avoid the semblance of “formal” coordination, arguing that “they had provided only a

general warning about the possibility of military action” (Morello and Gearan 2014). Was

Syria arguably willing to cooperate and can therefore only have been found to be unable?

Syria has contradicted this latter assessment at the Security Council, speaking in late

September 2014:

My country’s Government is an active participant in combatting the terrorist groups ISIL and Jabhat al-Nusra. We have undertaken those activities unilaterally within Syria over the past three years. We always emphasize the importance of counter-terrorism efforts, putting an end to terrorist financing

24

and combating terrorists who come to our country from other countries (Security Council 2014b, 43).

Of course, the Assad regime has worked with a broad and untenable definition of

terrorism since the Syrian conflict started, which encompasses not only those groups that

appear on the Security Council’s sanctions lists but also all groups opposed to the regime.

While Assad and the members of the Syrian delegation therefore like to portray themselves

as “a bulwark against the rise of terrorism,” actual confrontations between government force

and ISIS have been scarce (Security Council Report 2014b). Rather than being “unwilling or

unable”, the Syrian government appears to have been deemed a bit of both.

Syria may not have protested at the time as air strikes against ISIS are opportune for

the Assad government, while it could not openly consent to such strikes given the overall

political situation (Goodman 2014). At the second SC ministerial-level debate, Syria

characterised the interventions as “a flagrant violation of Syria’s national sovereignty” and

instead hailed Russian intervention, to which it had consented, as the best way forward

(Security Council 2015d, 30). This, therefore, constitutes a clear dismissal of the “unwilling

or unable” formula from a “target” state.

Conclusion: Similarities and Differences across the “Unwilling or Unable”/ “Manifestly

Failing” Formulas

This chapter aimed at comparing the “unwilling or unable” formula across two contexts of its

application: the responsibility to protect and counter-terrorism. Although the growing

international support for military intervention against ISIS in Syria appears to indicate

implicit consent to the “unwilling or unable” formula, this remains disputed, especially in

light of “target state” opinion. Given this development, this chapter aimed at providing more

25

clarity on the formula itself, its legal standing and how relevant it has been in state practice

across R2P and counter-terrorist contexts.

Although there are clear differences in terms of how force is used and the terms

employed, this analysis has identified four open questions that are similar across the two

contexts. These questions are significant as they highlight the problematic nature of the

“unwilling or unable” formula as a test to inform intervention decisions.

First, determinations of “unwilling or unable” and “manifestly failing” states both

work with uncertain criteria. This is the major and most problematic similarity. Without such

clear criteria, it is not only impossible to verify how states or the Security Council have come

to their assessments, thereby making this type of assessment reproducible under other

circumstances, but it also makes their decision-making incomprehensible and therefore

unaccountable. Given the gravity use-of-force decisions should be attributed with, this

increased intransparency is concerning, especially in the context of use-of-force decisions in

response to non-state threats. Here, not only are the criteria for “unwilling or unable”

decision-making unclear, there has also been no designated authority making these decisions

as they are argued to fall within the scope of the right to self-defence. As a consequence,

determinations have invariably been made by the intervening state, who is unlikely

positioned in an ideal information environment to make them.

Second, although there are clear differences between the terms “unwilling” and

“unable” as well as between the potential reasons that have led to a state “manifestly failing,”

both scenarios have been worked with interchangeably in practice. This is problematic

because “unwilling” and “unable” point to very different contexts that require an equally

different response in order to lead to a situation in which the state can sustainably meet its

responsibilities and obligations. Third, although the “unwilling or unable” formula was

ostensibly changed to “manifestly failing” in the World Summit Outcome on account of the

26

subjective judgment the former entailed, it appears as if that subjectivity is shared by both

terms — at least, it remains practically unclear how “manifestly failing” is anything other

than determining a state’s inability and unwillingness in disguise. Lastly, neither “manifestly

failing” nor “unwilling or unable” has been applied consistently across the UN membership.

While it is, at least, clear in the case of R2P, who can use these terms inconsistently, the

“unwilling or unable” formula has served to justify a growing number of unilateral uses of

force outside the Security Council framework (Bode 2016). This latter development is not

only threatening to the general prohibition on the use-of-force as enshrined in article 2(4) of

the UN Charter but also to even a “thin” understanding of the international rule of law.

References

Ackermann, Spencer. 2015. “White House Says Drone Strikes in Yemen Continue despite

Houthi Coup.” The Guardian. January 24.

http://www.theguardian.com/world/2015/jan/24/white-house-drone-strikes-yemen-

houthi-coup.

Ahmed, Dawood I. 2013. “Defending Weak States Against the ‘Unwilling or Unable’

Doctrine of Self-Defense.” Journal of International Law and International Relations

9 (1): 1–37.

Akande, Dapo, and Marko Milanovic. 2015. “The Constructive Ambiguity of the Security

Council’s ISIS Resolution.” EJIL: Talk! November 21. http://www.ejiltalk.org/the-

constructive-ambiguity-of-the-security-councils-isis-resolution/.

Alexandrov, Stanimir A. 1996. Self-Defense against the Use of Force in International Law.

Developments in International Law. The Hague; London; Boston, MA: Kluwer Law

International.

27

Al-Shamahi, Akubakr. 2013. “US Drones Strain on Yemeni’s Dual Loyalties.” BBC Middle

East, April 30. http://www.bbc.co.uk/news/world-middle-east-22340837.

AP. 2014. “U.S. Notified Bashar Assad’s Government Before Syria Airstrikes.” NBC News.

September 23. http://widget.perfectmarket.com/nbcnews/tbbfAd.html?wid=tbx-

rectangle-a&wpl=right-rail&wmd=rectangle-a&wwt=300&wht=250&ppn=tbx-

nbcnews.

Aslam, M.W. 2011. “A Critical Evaluation of American Drone Strikes in Pakistan: Legality,

Legitimacy and Prudence.” Critical Studies on Terrorism 4 (3): 313–29.

Barkin, J. Samuel, and Bruce Cronin. 1994. “The State and the Nation: Changing Norms and

the Rules of Sovereignty in International Relations.” International Organization 48

(01): 107–30.

Bellamy, Alex J. 2011. “Libya and the Responsibility to Protect: The Exception and the

Norm.” Ethics & International Affairs 25 (03): 263–69.

Bellinger, John B. 2006. “Legal Adviser Bellinger Speech, ‘Legal Issues in the War on

Terrorism.’” October 31. http://www.state.gov/s/l/2006/98861.htm.

Biersteker, Thomas J., and Cynthia Weber. 1996. “The Social Construction of State

Sovereignty.” In State Sovereignty as Social Construct, edited by Thomas J.

Biersteker and Cynthia Weber, 1–21. Cambridge Studies in International Relations

46. Cambridge: Cambridge University Press.

Bode, Ingvild. 2016. “How the World’s Interventions in Syria Have Normalized the Use of

Force.” February 17. http://theconversation.com/how-the-worlds-interventions-in-

syria- have-normalised-the-use-of-force-54505.

Brennan, John O. 2012. “The Efficacy and Ethics of U.S. Counterterrorism Strategy.” Wilson

Center. April 30. http://www.wilsoncenter.org/event/the-efficacy-and-ethics-us-

counterterrorism-strategy.

28

Council of Europe, Parliamentary Assembly. 2002. “Recommendation 1580. The Situation in

Georgia and Its Consequences for the Stability of the Caucasus Region.”

Cusimano, Maryann K., ed. 2000. Beyond Sovereignty: Issues for a Global Agenda. New

York: Worth.

Deeks, Ashley. 2012. “‘Unwilling or Unable’: Toward an Normative Framework for Extra-

Territorial Self-Defense.” Virginia Journal of International Law 52 (3): 481–550.

———. 2014. “The UK’s Article 51 Letter on Use of Force in Syria.” Lawfare. December

12. http://www.lawfareblog.com/2014/12/the-uks-article-51-letter-on-use-of-force-in-

syria/.

Deng, Francis Mading, Sadikiel Kimaro, Terrence Lyons, Donald Rothchild, and I. W.

Zartman. 1996. Sovereignty as Responsibility: Conflict Management in Africa.

Washington, DC: Brookings Institution.

Deutscher Bundestag. 2015. “Bundestag Billigt Einsatz Der Bundeswehr Gegen IS.”

Deutscher Bundestag. December 4.

https://www.bundestag.de/dokumente/textarchiv/2015/kw49-de-bundeswehreinsatz-

isis-freitag/397884.

Dinstein, Yoram. 2001. War, Aggression, and Self-Defense. 3rd ed. Cambridge; New York:

Cambridge University Press.

Drennan, Justine. 2014. “Who Has Contributed What in the Coalition Against the Islamic

State?” Foreign Policy. November 12. http://foreignpolicy.com/2014/11/12/who-has-

contributed-what-in-the-coalition-against-the-islamic-state/.

Gallagher, Adrian. 2014a. “Syria and the Indicators of a ‘Manifest Failing.’” The

International Journal of Human Rights 18 (1): 1–19.

29

———. 2014b. “What Constitutes a ‘Manifest Failing’? Ambiguous and Inconsistent

Terminology and the Responsibility to Protect.” International Relations 28 (4): 428–

44.

Garwood-Gowers, Andrew. 2013. “The BRICS and the Responsibility to Protect in Libya

and Syria.” In Shifting Global Powers and International Law: Challenges and

Opportunities, edited by Rowena Maguire, Bridget Lewis, and Charles Sampford, 81–

99. London: Routledge.

General Assembly. 1970. “Declaration on Principles of International Law Concerning

Friendly Relations and Co-Operation among States in Accordance with the Charter of

the United Nation. UN Document A/RES/25/2625.”

———. 2005. “World Summit Outcome Document, UN Doc. A/RES/60/1.” United Nations.

General Assembly, and Security Council. 2002. “Identical Letters Dated 15 September 2002

from the Permanent Representative of Georgia to the United Nations Addressed to the

Secretary-General and the President of the Security Council. UN Document

A/57/408–S/2002/1033.”

Glanville, Luke. 2014. Sovereignty and the Responsibility to Protect: A New History.

Chicago, IL: University of Chicago Press.

Goodman, Ryan. 2014. “Taking the Weight off of International Law: Has Syria Consented to

US Airstrikes?” Just Security. December 23. http://justsecurity.org/18665/weight-

international-law-syria-consented-airstrikes/.

Heller, Kevin Jon. 2014. “Do Attacks on ISIS in Syria Justify the ‘Unwilling or Unable’

Test?” Opinio Juris. December 13. http://opiniojuris.org/2014/12/13/attacks-isis-

syria-justify-unwilling-unable-test/.

30

Hoffman, Stanley. 1966. “International Systems and International Law.” In The Strategy of

World Order, edited by Richard A. Falk and Saul H. Mendlovitz, 134–66. New York:

World Law Fund.

Holmes, Marcus. 2013. “The Force of Face-to-Face Diplomacy: Mirror Neurons and the

Problem of Intentions.” International Organization 67 (4): 829–61.

House of Commons. 2015. “House of Commons Debate.” Www.parliament.uk. December 2.

http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm151202/debtext/15

1202-0001.htm#15120254000002.

Independent Commission on Intervention and State Sovereignty. 2001. “The Responsibility

to Protect.” http://responsibilitytoprotect.org/ICISS%20Report.pdf.

International Court of Justice. 2005. “Case Concerning Armed Activities on the Territory of

the Congo (Democratic Republic of the Congo v. Uganda). Judgment of 19 December

2005.”

International Criminal Court. 2002. “Rome Statute of the International Criminal Court.”

Karam, Souhail, and Tom Heneghan. 2011. “Gaddafi Tells Rebel City, Benghazi, ‘We Will

Show No Mercy.’” The Huffington Post, Reuters, March 17.

http://www.huffingtonpost.com/2011/03/17/gaddafi-benghazi-libya-

news_n_837245.html.

Koh, Harold. 2010. “The Obama Administration and International Law.” US Department of

State. March 25. http://www.state.gov/s/l/releases/remarks/139119.htm.

Krasner, Stephen D. 1999. Sovereignty: Organized Hypocrisy. Princeton, NJ: Princeton

University Press.

MacGibbon, I.C. 1954. “The Scope of Acquiescence in International Law.” British Yearbook

of International Law 31: 143–86.

31

McNeal, Gregory S. 2014. “Targeted Killing and Accountability.” The Georgetown Law

Journal 102 (3): 681–794.

Morello, Carol, and Anne Gearan. 2014. “Around World, Mixed Reactions to U.S.-Led

Airstrikes in Syria.” The Washington Post, September 23.

http://www.washingtonpost.com/world/national-security/around-world-mixed-

reaction-to-us-led-airstrikes-in-syria/2014/09/23/16985bb6-4352-11e4-9a15-

137aa0153527_story.html.

Mullen, Jethro. 2014. “Airstrikes on ISIS in Syria: Who’s In, Who’s Not.” CNN. October 2.

http://www.cnn.com/2014/09/23/world/meast/syria-airstrikes-countries-

involved/index.html.

Myers, Steven Lee. 2002. “Echoing Bush, Putin Asks UN to Back Georgia Attack.” The New

York Times, September 13. http://www.nytimes.com/2002/09/13/world/echoing-bush-

putin-asks-un-to-back-georgia-attack.html.

Obama, President Barack. 2010. “The National Security Strategy of the United States of

America 2010.” The White House. May.

http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.p

df.

———. 2014. “Statement by the President on ISIL.” The White House. September 10.

http://www.whitehouse.gov/the-press-office/2014/09/10/statement-president-isil-1.

O’Connell, Mary Ellen. 2011. “How to Lose a Revolution.” In The Responsibility to Protect:

Challenges & Opportunities in Light of the Libyan Intervention, e-International

Relations, 15–17. http://www.e-ir.info/wp-content/uploads/R2P.pdf.

Oxford English Dictionary. 2015a. “Unable, Adj.” OED Online. Oxford University Press.

http://www.oed.com/view/Entry/208933?rskey=FE2Efr&result=1&isAdvanced=false

#eid.

32

———. 2015b. “Un’willing, Adj.” OED Online. Oxford University Press.

http://www.oed.com/view/Entry/219591?redirectedFrom=unwilling#eid.

Pelton, Robert Young. 2011. “Enter the Drones: An In-Depth Look at Drones, Somali

Reactions, and How the War Might Change.” Somalia Report. June 7.

http://www.somaliareport.com/index.php/post/1096.

Peters, Anne. 2015. “German Parliament Decides to Send Troops to Combat ISIS − Based on

Collective Self-Defense ‘in Conjunction With’ SC Res. 2249.” EJIL: Talk! December

8. http://www.ejiltalk.org/german-parlament-decides-to-send-troops-to-combat-isis-

%e2%88%92-based-on-collective-self-defense-in-conjunction-with-sc-res-

2249/#more-13892.

Popovski, Vesselin. 2011. “Siblings, but Not Twins: POC and R2P - United Nations

University.” United Nations University. November 1.

http://unu.edu/publications/articles/siblings-but-not-twins-poc-and-r2p.html.

Ramos, Jennifer M. 2013. Changing Norms Through Actions: The Evolution of Sovereignty.

Oxford: Oxford University Press.

Reinold, Theresa. 2011. “State Weakness, Irregular Warfare, and the Right to Self-Defense

Post-9/11.” American Journal of International Law 105 (2): 244–86.

Rosenberg, Sheri, and Ekkehard Strauss. 2012. “A Common Approach to the Application of

the Responsibility to Protect.” In Operationalizing the Responsibility to Protect: A

Contribution to the Third Pillar Approach, edited by Daniel Fiott, Robert Zuber, and

Joachim Koops, 55–72. Brussels: Madariaga – College of Europe Foundation.

Russian Ministry of Foreign Affairs. 2014. “Statement by the Russian Ministry of Foreign

Affairs Regarding the Strikes on the Syrian Territory.” Embassy of the Russian

Federation, Washington DC. September 23.

33

http://www.russianembassy.org/article/statement-by-the-russian-ministry-of-foreign-

affairs-regarding-the-strikes-on-the-syrian-ter.

Ruys, Tom. 2010. “Armed Attack” and Article 51 of the UN Charter: Evolutions in

Customary Law and Practice. Cambridge: Cambridge University Press.

Ruys, Tom, Nele Verlinden, and Luca Ferro. 2015. “Digest of State Practice.” Journal on the

Use of Force and International Law, no. 1.

doi:http://dx.doi.org/10.1080/20531702.2015.1101202.

Sassen, Saskia. 1996. Losing Control? Sovereignty in an Age of Globalization. University

Seminars / Leonard Hastings Schoff Memorial Lectures. New York: Columbia

University Press.

Scharf, Michael P. 2013. Customary International Law in Times of Fundamental Change:

Recognizing Grotian Moments. Cambridge: Cambridge University Press.

Security Council. 1999. “Resolution 1267.”

———. 2001a. “Resolution 1373.”

———. 2001b. “Resolution 1378.”

———. 2002. “Statement by Russian Federation President V. V. Putin. Annex to the Letter

Dated 11 September 2002 from the Permanent Representative of the Russian

Federation to the United Nations Addressed to the Secretary-General. UN Document

S/2002/1012.”

———. 2011a. “Sixthy-Ninth Year. 6490th Meeting. UN Document S/PV.6490.”

———. 2011b. “Security Council Resolution 1970.”

———. 2011c. “Sixthy-Sixth Year. 6491st Meeting. UN Document S/PV.6491.”

———. 2011d. “Resolution 1973. The Situation in Libya.” United Nations.

———. 2014a. “Letter Dated 25 June 2014 from the Permanent Representative of Iraq to the

United Nations Addressed to the Secretary-General. UN Document S/2014/440.”

34

———. 2014b. “Sixty-Ninth Year, 7271st Meeting. UN Document S/PV.7271.”

———. 2014c. “Letter Dated 20 September 2014 from the Permanent Representative of Iraq

to the United Nations Addressed to the President of the Security Council. UN

Document S/2014/691.”

———. 2014d. “Letter Dated 23 September 2014 from the Permanent Representative of the

United States of America to the United Nations Addressed to the Secretary-General.

UN Document S/2014/695.”

———. 2014e. “69th Year. 7272nd Meeting. UN Document S/PV.7272.”

———. 2015a. “Letter Dated 31 March 2015 from the Charge D’affaires A. I. of the

Permanent Mission of Canada to the United Nations Addressed to the President of the

Security Council. UN Document No. S/2015/221.”

———. 2015b. “Letter Dated 24 July 2015 from the Chargé D’affaires A.i. of the Permanent

Mission of Turkey to the United Nations Addressed to the President of the Security

Council. UN Document No. S/2015/563.”

———. 2015c. “Letter Dated 9 September 2015 from the Permament Representative of

Australia to the United Nations Addressed to the President of the Security Council.

UN Document No. S/2015/693.”

———. 2015d. “Provisional Verbatim Record of the 7527th Meeting. UN Document No.

S/PV.7527.”

———. 2015e. “Provisional Verbatim Record of the 7565th Meeting. UN Document No.

S/PV.7565.”

———. 2015f. “Resolution 2249, UN Document S/RES/2249.”

Security Council Report. 2014a. “July 2014 Monthly Forecast: Iraq.” Security Council

Report. June 30. http://www.securitycouncilreport.org/monthly-forecast/2014-

07/iraq_6.php.

35

———. 2014b. “August 2014 Monthly Forecast: Syria.” Security Council Report. August 1.

http://www.securitycouncilreport.org/monthly-forecast/2014-08/syria_10.php.

———. 2014c. “September 2014 Monthly Forecast: Syria.” Security Council Report. August

29. http://www.securitycouncilreport.org/monthly-forecast/2014-09/syria_11.php.

———. 2014d. “October 2014 Monthly Forecast: Syria.” Security Council Report.

September 30. http://www.securitycouncilreport.org/monthly-forecast/2014-

10/syria_12.php.

Strange, Susan. 1996. The Retreat of the State: The Diffusion of Power in the World

Economy. Cambridge Studies in International Relations , ISSN 0959-6844 ; ZDB-ID:

11199714 49. Cambridge: Cambridge Univ. Press.

Thakur, Ramesh C. 2015. “Responsibility to Protect: Ten Years on.” United Nations

University, June 8.

US Department of Justice. 2013. “Department of Justice White Paper. Lawfulness of a Lethal

Operation Directed Against a US Citizen Who Is a Senior Operational Leader of Al-

Qa’ida or An Associated Force.”

http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf.

Visser, Laura. 2015. “Russia’s Intervention in Syria.” EJIL: Talk! November 25.

http://www.ejiltalk.org/russias-intervention-in-syria/#more-13869.

Warren, Aiden and Ingvild Bode. 2014. Governing the Use-of-Force in International

Relations. The Post-9/11 US Challenge on International Law. Basingstoke: Palgrave

Macmillan.

Weiss, Thomas G. 2011a. “Whither R2P?” In The Responsibility to Protect: Challenges &

Opportunities in Light of the Libyan Intervention, e-International Relations, 7–11.

http://www.e-ir.info/wp-content/uploads/R2P.pdf.

36

———. 2011b. “RtoP Alive and Well after Libya.” Ethics & International Affairs 25 (03):

287–92.

Welsh, Jennifer. 2011. “Civilian Protection in Libya: Putting Coercion and Controversy Back

into RtoP.” Ethics & International Affairs 25 (03): 255–62.

doi:10.1017/S0892679411000207.

Williams, Gareth D. 2012. “Piercing the Shield of Sovereignty: An Assessment of the Legal

Status of the ‘Unwilling or Unable’ Test.” University of New South Wales Law

Journal 36 (2): 619–41.

Williams, Paul D., and Alex J. Bellamy. 2012. “Principles, Politics, and Prudence: Libya, the

Responsibility to Protect, and the Use of Military Force.” Global Governance 18 (3):

273–97.

Zaidi, Hasan. 2011. “Army Chief Wanted More Drone Support.” Dawn. May 19.

http://www.dawn.com/2011/05/19/army-chief-wanted-more-drone-support/.