The 'Unwilling or Unable' Doctrine Unmasked: A Case Study of ISIL in Syria

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Abstract

The unwilling or unable doctrine has been extensively discussed in international law scholarship, particularly since the November 2015 Paris bombing by the Islamic State of Iraq and the Levant (ISIL). Its use by states to carry out air strikes within Syrian territory against militant ISIL forces has elicited much debate on the scope of the doctrine. However, existing scholarship has failed to interrogate adequately the underlying theoretical framework (or lack thereof) of the doctrine. Consequently, its inherently political nature and application has not been challenged. Nor has its implications for attribution in relation to non-state armed groups (NSAGs).

This paper begins with a holistic exploration of the conceptual framework of the prohibition of the use of force in international law and the exceptions thereto. It is followed by a brief review of state practice as well as an examination the use of the unwilling or unable doctrine in relation to the ongoing military activity in Syria. It proceeds to attempt to classify the doctrine/identify its place in the legal framework of international law.

Ultimately, the paper argues that the manipulation of the boundaries of the unwilling or unable doctrine is fundamentally premised on political will rather than legal theory which has, in turn, resulted in theoretical incoherence. It further argues that the unwilling or unable doctrine is, in fact, a policy rather than a legal doctrine and that the application of this policy results in the incorporation of the domestic law concept of strict liability in the public international law framework.
Original languageEnglish
Pages (from-to)69-102
JournalHague Yearbook of International Law
Volume32
DOIs
Publication statusPublished - 17 Dec 2021

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