Sina Etezazian is a PhD Candidate at Monash Law School.
In a recent blog post at Lawfare, Professor Ashley Deeks analyses the manner in which Turkey may lawfully protect the Turks taken hostage by the jihadist group ISIS (the Islamic State in Iraq and Syria). She contends that ‘if the Maliki government loses total control of the country, Turkey almost certainly would be legally justified in using force in Iraq to rescue its nationals’ in accordance with Article 51 of the UN Charter. She also takes the view that the forcible protection of citizens abroad may be equated with permissible self-defence when:
(1) the nationals in question face imminent threat of (or have suffered actual) injury;
(2) the host state is unwilling or unable to protect or rescue them; and
(3) the action of the intervening state clearly is limited to the goal of rescuing its nationals – that is, it is not engaging in pretextual intervention.
However, Deeks is on shaky legal ground concerning the ‘unwilling or unable’ and ‘last resort’ requirements. I do not aim here to consider the legal status of the protection of nationals abroad; I have discussed it elsewhere (and it has also been addressed in length on this and other blogs and forums since the Russian intervention in Crimea). Instead, I want to explore a distinction that can be drawn between forcible responses to territorial and non-territorial attacks with respect to the ‘unwilling or unable’ and ‘last resort’ tests, clarifying why – contrary to what Deeks asserts – Turkey might not be allowed to undertake unilateral forcible measures to protect its nationals in Iraq on the basis of the right of self-defence.
The ‘Unwilling or Unable’ Test and a Distinction between Responses to Territorial and Extraterritorial Attacks
The point that Deeks makes regarding the ‘unwilling or unable’ test can hardly be said to reflect existing law, as it is founded on the claim that ‘unwilling or unable’ extends to the protection of nationals abroad, which is itself a very controversial issue in modern jus ad bellum. Let us suppose for the sake of argument that ‘unwilling or unable’ qualifies as a new norm of customary international law that allows for the exercise of the right of self-defence against non-state actors when the host state is unwilling or unable to prevent its territory being used as a base for launching attacks against the victim state’s soil. Even allowing that position, it is extremely unlikely that its scope has been so widened as to include the military rescue of nationals threatened extraterritorially.
It is true that the ‘unwilling or unable’ test has attracted some level of support from the international community since 9/11, especially when the attack has been directed against the territory of the victim state (as was apparent from states’ reaction to the September 11 attacks). Nonetheless, the most recent trend in state practice clearly demonstrates that the argument for ‘unwilling or unable’ would be uncertain at best in scenarios where Article 51 has been invoked to rescue nationals allegedly at risk outside their territory. Read the rest of this entry…