Initial Thoughts on the UK Attorney General’s Self-Defence Speech

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This is part of a series of posts discussing the UK Attorney General’s speech on the Modern Law of Self-Defence. See also the other posts in the series by Monica Hakimi and Marko Milanovic.

It’s a pleasure to be able to contribute to this EJIL:Talk! discussion of the speech this week by the UK Attorney General, Jeremy Wright QC MP, on “The Modern Law of Self-Defence”. There are two elements of the speech that strike me as especially notable, and on which I’d like to give my initial thoughts here: the invocation of the so-called ‘unwilling or unable’ test and, particularly, the meaning of ‘imminence’ in relation to anticipatory self-defence.

Unwilling or Unable

The explicit acceptance by the UK of the ‘unwilling or unable’ concept, while brief, is a conspicuous feature of the Attorney General’s speech. The speech roots itself in tradition, with nods to the power and weight of history (stretching right back to the 1795 Jay Treaty, as well as, of course, including the obligatory self-back-patting over Britain’s role in the end of the international slave trade). However, there’s no hiding the novelty of the UK’s acceptance of the hugely controversial notion of responding to armed attacks (actual or imminent) even in cases where there is no ‘host state’ involvement whatsoever, simply on the basis of the unwillingness or inability of the state to prevent a non-state actor attack. The US has espoused the ‘unwilling or unable’ doctrine for years, of course, but the UK has not, at least not explicitly.

Admittedly, the Attorney General’s speech is not the first British invocation of unwilling or unable. In November 2015, David Cameron, then Prime Minister, argued before Parliament that the UK’s action in Syria was justified because “the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq” (as well as making the same assertion, the same week, in a memorandum to the Foreign Affairs Select Committee). However, these statements by the Prime Minister were the first clear articulations of the British acceptance of an unwilling or unable test, and were expressed very specifically in relation to action taken against ISIS in Syria. To my knowledge, the Attorney General’s speech acts as the first unequivocal confirmation that the UK has adopted unwilling or unable in genere. This is not a surprising fact, of course, but – to my mind – it is not a positive one either.

Put simply, and leaving aside policy, like Kevin Jon Heller (and many others) I remain unconvinced that state practice supports an unwilling or unable test in relation to self-defence actions taken against non-state actors (and, by unavoidable extension, the state(s) on/from which they are operating). The question of whether the law should allow for military action in such circumstances is a different matter: one that I will unapologetically sidestep. As the law stands, though, for my money, it does not.

The Meaning of Imminence

Although the Attorney General stated that the focus of his speech was “the law of self-defence, in particular against non-state actors”, and while the brief references to unwilling and unable are striking, the main substantive contribution of the speech, in my view, is its attempt to engage with the concept of imminence in relation to anticipatory action: an issue that, legally, is actually just as relevant to anticipatory action against states sensu stricto as it is to action against non-state actors.

While there are those who maintain that any form of anticipatory action is unlawful unless an armed attack has occurred [see, e.g., Olivier Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Hart, 2010), 407-411], it is fair to say that the majority of states and commentators now accept that anticipatory action may, exceptionally, be lawful if an armed attack is imminent. It is well-known that the UK takes this position: as the Attorney General states, “the long-standing UK view is that Article 51 of the UN Charter does not require a state passively to await an attack, but includes the ‘inherent right’…to use force in self-defence against an ‘imminent’ armed attack…”.

The problem with the conclusion – assuming that one accepts it – that international law allows for anticipatory action in self-defence in relation only to imminent attacks is that it tells us very little unless it is clear what is meant by imminence. This problem isn’t new, but it remains crucial: if imminence is the standard, then we need to know what it requires as a matter of law. As I have noted elsewhere [(2015) 2 Journal on the Use of Force and International Law 97, 104-105], there have been relatively few serious attempts to engage with not merely the need for imminence but also the meaning of imminence in relation to anticipatory self-defence. Having said that, one excellent recent consideration of this question appeared in Noam Lubell’s chapter in Marc Weller’s impressive Handbook [‘The Problem of Imminence in an Uncertain World’ in Marc Weller (ed), The Oxford Handbook of the Use of Force in International Law (OUP, 2015) 695]; another perspective on the issue can be found in Sir Daniel Bethlehem’s piece in the American Journal of International Law [(2012) 106 AJIL 769] (upon which the Attorney General relies heavily). Nonetheless, there remain comparatively few such attempts to put meat on imminence’s bones.

It is, therefore, commendable (and pleasing) that the Attorney General – on behalf of the UK Government more generally – has attempted to tackle this question explicitly, and to set out a position on it at a level of depth not previously done by the UK (or most other states). However, as Monica Hakimi has already noted in her contribution to this discussion of the Attorney General’s speech, “the devil is very much in the details here.” In essence, in approaching the question of what ‘imminence’ entails, the Attorney General repeats and endorses Sir Daniel’s 5 criteria for the (context-specific) evaluation of whether an attack is imminent. These criteria have been set out and discussed in both Monica’s post and that of Marko Milanovic, so I won’t repeat them again here.

Nonetheless, I will say that I agree with Marko that the restatement of these criteria does not meaningfully break new ground (at least in terms of the argument made, irrespective of whether one accepts it), and that I concur with both Monica and Marko that the criteria are unclear and open to interpretation (when has it ever been otherwise when it comes to interpretations of ad bellum standards?). In particular, the Bethlehem criteria potentially allow for the use of force against threats that are temporally remote, especially if the effects of the threat materialising would be significant (again, as discussed by Monica Hakimi). That seems rather too open-ended to me. Moreover, I find the Attorney General’s restatement of another claim made by Sir Daniel in relation to imminence in his AJIL piece especially troubling:

“[t]he absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of a right of self-defense, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent.”

The Attorney General doesn’t merely repeat this statement, he is explicit that it both “reflects and draws upon what has been a settled position of successive British Governments” and “must be right”.

Personally, I think the Wright/Bethlehem position here goes further than other recent notable formulations of imminence (such as Lubell’s notion that the attack needs to be “specific and identifiable” [supra, 702], or the statement of the Georgia Commission that there must be “an objectively verifiable, concretely imminent attack” [Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, vol I (2008) 254]). I find it difficult to reconcile the need for a specific, identifiable and concrete imminent attack with the argument that all that is required is a general finding that there will be an imminent attack of some kind, somewhere. As a policy matter, for me, the UK’s understanding of imminence as presented by the Attorney General allows for too much eye-of-the-beholder discretion and, thus, is open to abuse. And, as a legal matter, I’m not at all sure such a reading of imminence is supported by state practice (other than by the usual suspects that the Attorney General identifies – the US, Canada, Australia and New Zealand – and a handful of others). This, thus, feels to me more a statement of what the UK would like imminence to mean, not what it actually means.

Those who take a traditional position on the law governing self-defence (sometimes, somewhat reductively, called ‘restrictionists’) may well applaud the reaffirmation by the Attorney General of the UK’s long-maintained view that ‘non-imminent’/pre-emptive self-defence is unlawful. I certainly do. But, in practice, the implications of this position are contingent on the adopted understanding of imminence. The Attorney General is very careful to state that the UK’s “approach does not…in any way dispense with the concept of imminence.” However, it is worth recalling that the infamous US National Security Strategy of 2002 didn’t either, at least terminologically. While imminence was to all intents and purposes abandoned by the US’s ‘Bush Doctrine’, the 2002 National Security Strategy actually argued that the US “must adapt the concept of imminent threat”: the US didn’t claim that imminence wasn’t the standard, it just interpreted it in a way that went beyond all recognition.

While the interpretation of imminence presented by the Attorney General – based on Sir Daniel’s formulation – obviously doesn’t come close to the unrestricted credibility-bypass of the Bush Doctrine, and while I’m pleased that a genuine effort has been made by the UK Government to spell out what it sees imminence as entailing, I nonetheless have concerns about the wide scope of interpretation that it allows, especially in the context of ‘imminent’ attacks that cannot be pinpointed, even loosely, to a specific time or target.

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Aurel Sari says

January 13, 2017

Good points, but I am not convinced that what we heard from Jeremy Wright went beyond what has been said before on behalf of the Government. Consider this statement by his predecessor, Lord Goldsmith, made in 2004:

"It must be right that states are able to act in self-defence in circumstances where there is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack."


James A Green says

January 13, 2017

Thanks for the comment Auriel. Whether it was a 'settled position' is perhaps arguable, but you're quire right that the reading of imminence wasn't novel in that sense - but I feel this speech (with all the publicity it had etc) certainly solidifies that reading on the part of the UK pretty concretely. And I'm more concerned with the statement that it 'must be right' than anything else!

Kriangsak Kittichaisaree says

January 13, 2017

Re: Imminence (encore!)

Let’s look at the UN Secretary-General’s report "In Larger Freedom: Toward Security, Development and Human Rights for All", submitted to the UN General Assembly on 21 March 2005, which has a section on "Use of Force" (see, esp. paras. 122-125). The Report tells us how UN Member States have disagreed whether States have "the right to use military force pre-emptively, to defend themselves against imminent threats"; whether they have "the right to use it preventively to defend themselves against latent or non-imminent threats"; and "whether they have the right – or perhaps the obligation – to use it protectively to rescue the citizens of other States from genocide or comparable crimes". The UNSG concludes:

“Imminent threats are fully covered by Article 51, which safeguards the inherent right of sovereign States to defend themselves against armed attack. Lawyers have long recognized that this covers an imminent attack as well as one that has already happened.”

Where threats are not imminent but latent, the UNSG considers that it is the UN Security Council that is entrusted by the UN Charter to use military force, including preventively, to preserve international peace and security.

Circular or helpful?

Jordan J Paust says

January 13, 2017

Anticipatory self-defense, which is manifestly inconsistent with express language in Article 51 ("if an armed attack occurs"), does not seem to be a majority preference. It had not been some ten years ago.
The UK had long ago claimed the right to engage NSAs whi were attacking from another country. See re The Caroline, and the footnotes re Lord Campbell et al.

James A Green says

January 13, 2017

Kriangsak – the In Larger Freedom Report is both circular and helpful, I think. Helpful, in that it further confirms that the Bush doctrine of ‘non-imminent’ anticipatory action is nonsense. But circular in the sense that it still is somewhat contingent on the meanings ascribed to both ‘imminent’ and ‘latent’.

Jordan – I’d agree that, 10 years ago, it would have been difficult to see a majority of support for anticipatory action to even an imminent threat (I think I said so in my 2009 book, in fact). And I am still very wary of those who uncritically accept it even today (see my JUFIL piece from 2015, cited in the blog): but I think that, while a notable number of scholars and states still believe any forced used before the armed attack has actually occurred is unlawful per se, the majority view is now that this may be acceptable if imminent. I may be wrong (I have not undertaken an exhaustive survey), but that’s my sense. And I’m not sure I’m 100% swayed by the Article 51/textual argument against anticipatory action, because the equally authoritative French text is more equivocal (‘dans le cas où un Membre des Nations Unies est l’objet d’une agression armée’). For me, the issue turns on the state practice (which, I accept, is mixed). As for self-defence against non-state actors, of course I agree this has been the UK’s position stretching well back. But I’m not convinced that’s the same as ‘unwilling or unable’ – i.e., where there’s literally no link whatsoever to the ‘host state’ – which, even for the US, is a much newer formulation.

Jordan J Paust says

January 13, 2017

James: thanks for your further views. My ssrn article addresses the French version and notes that it may be less restrictive.
I suspect you mean imminent attack because, logically, an imminent threat is not yet an actual threat.
Yes, hardly anyone accepted the Bush claim for preemptive self-defense and it was even more loose than preemptive.

Dan Joyner says

January 13, 2017

Hi James,
Thanks for a great piece and comments. I've now read the AG's statement several times and, maybe I'm just being overly pedantic or maybe I'm missing something, but I actually don't see where he explicitly accepts the “unwilling or unable” test for use of force against non-state actors. Here are the only two places where I see the unwilling or unable standard explicitly discussed in the speech:

“But the situation we face today does not always allow for the possibility of using criminal law enforcement measures to stop attacks – when attacks are planned from outside our territory and where the host state is unable or unwilling to act. . .

A number of states have also confirmed their view that self-defence is available as a legal basis where the state from whose territory the actual or imminent armed attack emanates is unable or unwilling to prevent the attack or is not in effective control of the relevant part of its territory.”

In the first passage, he says that we can't always use criminal law approaches where the state in which the actor is located is unwilling or unable to act. In the second passage, he says that other states have adopted the unwilling or unable test for justifying use of force against a non-state actor.

But in neither passage does he actually, explicitly say that the U.K. adopts this view.

Now, one could say that, taking the rest of his speech as context, he is implicitly endorsing the unable or unwilling test. But when I read the piece I thought it was clear that he actually stayed away from explicitly endorsing the concept, as if to intentionally hedge on making it formally part of UK policy.

Am I missing something? It's entirely possible, but as I said I've read over the whole speech a few times and I don't see anywhere else that he explicitly mentions the unwilling or unable test.


Marty Lederman says

January 13, 2017

Dan: "Unable & unwilling" is not the test for what triggers the right to use force in self-defense in another unconsenting state--it's merely an ordinary, uncontroversial application of the necessity requirement, i.e., a precondition to the use of force, once the "armed attack" threshold is met. Obviously, if the host state is willing and able to stop the NSA's attacks, then it would be impermissible for the threatened state to use force without host state consent.

The real dispute is whether the right of self-defense includes cases where the armed attack comes from nonstate actors and is in no way "attributable" to the host state. I do read Wright's speech as confirming an affirmative answer to that question, at least implicitly. Which is hardly surprising, seeing as how, as I've argued several times here already, virtually no states (as opposed to publicists) have publicly adopted the opposite view.

James A Green says

January 14, 2017

Thanks for the comments everyone. I appreciate the engagement.

Jordan – yes, absolutely, I mean imminent attack. I try to avoid using ‘imminent threat’, precisely for the reason you give. But, occasionally, as the term is so ubiquitous in the literature, I accidentally slip into using it, especially in quick-fire responses to blog comments…

Dan – I don’t think you’ve missed anything at all. This is a very important point. On reflection, I think I overstated things (certainly, my use of the word ‘explicit’ went too far). Equally, I do think the implication here is very clear indeed – contextually, I struggle to read it as meaning anything else, or the AG would have avoided the language entirely (in a much publicised, open-ended speech), even if technically it is, as you say, strictly an implicit acceptance. So I’d suggest you may be slightly understating things: the middle ground between what we’ve said is probably about right! But I do take the point, and would tone down with reflection if I was writing the post now (the price of setting out your immediate thoughts, hours after reading something, in a blog post…).

Marty – I take your points here, but I certainly struggle with the idea that, even as an element of the necessity calculation, unwilling or unable is an ‘uncontroversial application’ when it demonstrably is controversial. I don’t think it’s helpful to deny that fact, whatever one’s view on the substance. Take pro-choice and pro-life groups: both can argue that their position is correct, based on whatever criteria they are applying, but neither can credibly argue that the concept of abortion is an uncontroversial one, precisely because of the fact that the number of people in the other group – taking a different view – is so large.

Marty Lederman says

January 14, 2017

Dan: I apologize for not being clear on this. My point is that *everyone* agrees that *if* State A can ever use force in State B's territory against a nonstate actor whose attacks are *not* attributable to State B, State A can only do so if State B is itself unable or unwilling to stop the NSA's attacks itself--otherwise (i.e., if State B can and will stop the attacks), there's no necessity for State A to use force, and it would be unlawful.

The real dispute--and here, I agree with you that there certainly is one among scholars and publicists, even if not among states--is not about "unwilling/unable," but instead about the antecedent question whether an "armed attack" by a nonstate actor can *ever* be the basis for a use of force in self-defense, on the territory of a nonconsenting state, where the NSA's attacks are in no meaningful sense attributable to the "host" state.

That is to say: "Unwilling or unable" is restrictive rather than permissive; it is not a *justification* of the use of force, but instead a necessary condition precedent to the use of force, once another justification has been met.

Marty Lederman says

January 14, 2017

Sorry: Meant to write "Jim," not "Dan," of course!