Defending weak states against the "unwilling or unable" doctrine of self-defense.

• Author: Ahmed, Dawood I.

1. INTRODUCTION II. INTERNATIONAL LAW ON THE USE OF FORCE AND STATE RESPONSIBILITY. 1. THE USE OF FORCE 2. THE RESPONSIBILITY OF STATES TO PREVENT ATTACKS 3. SELF-DEFENSE WITHIN INEFFECTIVE HOST STATES: A GRAY AREA? III. UNPACKING THE "UNWILLING OR UNABLE" DOCTRINE 1. NEED FOR DOCTRINE 2. LACK OF CLARITY 3. POWER INEQUALITY AND INFORMATION ASYMMETRY: DOCTRINAL CLARITY INSUFFICIENT IV. AN ALTERNATIVE FRAMEWORK FOR SELF-DEFENCE IN INEFFECTIVE HOST STATES 1. THE SECURITY COUNCIL AS FACT-FINDER AND: INFORMATION TRANSMITTER 2. INVOLVING THE UN COUNTER-TERRORISM COMMITTEE 3. LAST RESORT: ORGANIZING FACT-FINDING IN HOST STATES 4. CROSSING INTO INTERNATIONAL RELATIONS: CAN THE SECURITY COUNCIL MAKE A DIFFERENCE? V. CONCLUSION I. INTRODUCTION

   On May 2, 2011, United States Navy SEALs entered Pakistani territory, allegedly without Pakistan's consent, to "capture or kill" Osama Bin Laden. Soon after, President Obama announced that the United States had "conducted an operation that killed Osama bin Laden, the leader of AlQaeda, and a terrorist who's responsible for the murder of thousands of innocent men, women, and children." (1) Pakistan vehemently objected to a "violation of its sovereignty", (2) as it has also done for drone strikes carried out within its territory by the United States. (3) The United States, on the other hand, defended the legality of its actions. (4) Later on, it advocated that under international law it can continue to kill United States citizens associated with Al-Qaeda, whenever they "pose an imminent threat of attack to the United States" in host states without host state consent if that state is "unable or unwilling" to suppress the "threat". (5) No such limitation has been specified for the killing of non-state actors who may not be United States citizens that is, the overwhelming majority of non-state actors targeted.

   This situation is not unprecedented. Non-state actors, such as Al-Qaeda, operating within weak states such as Afghanistan and Somalia ("host states") are often suspected of launching attacks against states such as the United States ("victim states"). These victim states have at times directly attacked such actors within the territory of the host state, without the host state's consent, alleging that the latter is unwilling or unable to prevent attacks. In the past decade alone, the United States has used predator drones to target suspected militants in Pakistan, Somalia and Yemen; (6) the United Kingdom has used predator drones to target suspected militants in Afghanistan; (7) Israel has targeted Hezbollah in Lebanon; (8) Pakistan has attacked suspected militants operating out of Afghanistan; (9) and Kenya has attacked Al-Shabaab militants in Somalia. (10) Recently, Ethiopia entered Eritrean territory to "wipe out bases used by militants who it contends have attacked Ethiopian targets". (11) Even President Karzai once boasted that Afghanistan would send troops into Pakistan to reign in militants that were engaging in cross-border attacks if Pakistan would not act. (12)

   Such self-defence has been very costly. Drone strikes carried out by the United States in Pakistan have killed at least 475 civilians, including 176 children, and the presence of drones in the sky continues to "terrorize" civilians. (13) The 2006 Israeli invasion of Lebanon in response to Hezbollah's killing of three and abduction of two Israeli soldiers cost the lives of some 1000 Lebanese. (14) A Turkish air raid in 2011 targeting suspected members of the Kurdistan Workers Party ("PKK") inside Iraq killed thirty-five civilians. (15) In June 2011, Pakistan's shelling of Afghanistan in pursuit of militants cost the lives of forty-two civilians and the flight of over 12,000 people for shelter. (16)

   Thus, while victim states have genuine security concerns about attacks carried out by non-state actors, host states too need protection from the use of force by powerful victim states. Yet, as this article explains, extant scholarship on using force in ineffective host states has been fixated on the security of the victim state at the expense of the host state. First, despite the heavy human toll that host states have quite clearly had to bear, scholars tend to start from the normative premise that it is the "vulnerable" victim state that always needs protection. This is despite the high number of casualties caused by victim states. Second, certain scholars have argued that the use of force by victim states within the territory of host states is justified, uncontroversial and legal even though the pedigree of the "unwilling or unable" doctrine within international law remains uncertain. The International Court of Justice (ICJ) has not recognized the doctrine, a number of scholars argue it has no place in international law, and state practice is ambiguous. Third, scholars have considered questions of doctrine in abstract isolation from the operational reality that victim states often tend to be relatively powerful states and host states, conversely, often tend to be relatively weak and therefore unable to deter victim state misbehaviour undertaken as "self-defence". Although host states may be ineffective at suppressing non-state actors that carry out unlawful activities, they are often also, due to pervasive power inequalities, equally ineffective at holding victim states to account for arbitrary determinations of ineffectiveness. Further, even if there is a willingness on the part of the international community to step in to challenge and punish a victim state's potentially spurious claim of self-defence, this may not be possible as it may not be easily observable whether, in any given case, a particular host state was indeed de facto ineffective. While doctrine should not handicap genuine claims of self-defence where a host state is de facto ineffective, it should also not become an apology for legitimating predatory or error-prone uses of force by victim states. This zero-sum tension between the two state's security interests is succinctly captured by Kimberly Trapp who writes "where ... a host State is ... unable to prevent its territory from being used as a base of terrorist operations, in contravention of its obligations under customary international law, the victim State is left with little choice. Either it respects the host State's territorial integrity at great risk to its own security, or it violates that State's territorial integrity". (17)

   In light of the factors identified above and considering that states as diverse as the United States, Pakistan, India, Afghanistan and Kenya have used or claimed a right to use force in relatively weak states alleging self-defence, it is important to revisit the debate from a more nuanced doctrinal and policy perspective. This article takes up the task. It systematically sets out extant international legal scholarship on the use of force in ineffective host states, explains why current academic debates are incomplete and proposes remedies for dealing with the problem. Section II briefly sets out international law on the use of force and the rules of state responsibility for preventing attacks launched by non-state actors from a state's territory. It also surveys scholarly analysis of state practice and decisions of the ICJ on using force in ineffective host states. Section III queries whether there is a need for doctrine in this area and critically analyzes the existing "unwilling or unable doctrine". Section IV makes a normative proposal for involving the Security Council and Counter-Terrorism Committee as fact finders and information transmitters in determinations of host state ineffectiveness, so as to ensure a higher quality of decision-making that protects the interests of victim and host states. It also explains, by using the example of the United States-Pakistan relations, how the proposals could work. Section V concludes the article.

2. INTERNATIONAL LAW ON THE USE OF FORCE AND STATE RESPONSIBILITY

   1. The Use of Force

      The rules prohibiting states from using force are derived from the United Nations Charter (UN Charter) and customary international law. The ICJ has stated that "the prohibition on the use of force is a cornerstone of the UN Charter" (18) and the late former ICJ President Nagendra Singh referred to the non-use of force a jus cogens norm of customary international law. (19) Article 2(4) of the UN Charter states that "all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state." (20) Article 51 makes an exception for self-defensive uses of force stating that "nothing in the Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." (21) Chapter VII of the UN Charter also makes it clear that the Security Council can authorize the use of force against another state to "maintain or restore international peace and security." (22) While the ICJ reserved judgment on the issue in the Nicaragua case, some scholars opine that self-defence can also be exercised when an armed attack is "imminent". (23) The Charter also requires that "any measures taken by members in exercise of this right of self-defence shall be immediately reported to the Security Council". (24)

      The purpose of the prohibition is clear: it is an all-inclusive prohibition so as to ensure that states are left with no excuse to engage in aggression. As Louise Doswald-Beck, Secretary-General of the International Commission of Jurists noted, the prohibition on force was "enshrined in the United Nations Charter in 1945 for a good reason: to prevent states from using force as they felt so inclined". (25) A United States delegate to the 1945 San Francisco conference similarly reported that "the...