The main purpose of drafting the law of war was to maintain peace and security around the world. That is why the current legal framework prohibits the use of force, except in accordance with the right to self-defence or with United Nations Security Council (UNSC) authorization. Yet, this century has been in a perpetual state of war. In the past, there have been certain deviations from this proscription on the use of force through the introduction of notions like ‘pre-emptive self-defence’ and the ‘responsibility to protect’ (R2P), according to which states could use unilateral force against other states without UNSC authorization or without the occurrence of an armed attack, in the face of an ‘imminent threat’ to the ‘security of humankind.’ This Article aims to describe and assess the unable or unwilling doctrine, which is a framework that has been used on a number of occasions to justify a victim state’s use of force against a host state in an effort to hunt down non-state perpetrators accused of waging attacks against the victim state. First, this Article discusses the notion of the responsibility to protect, commonly known as R2P, followed by the unable or unwilling test. Second, this Article discusses how this test arises and then explores the historic roots of the test. Third, this Article details the framework for applying the test, provides examples of real-world scenarios in which the test has been applied, and then critiques the application of the test in contemporary times. Finally, this Article concludes that the test is a broad interpretation of Article 51 of the United Nations (UN) Charter and deviates from the well-established law. However, it has not shifted the paradigm of law of war, as this test lacks legal conviction in the opinio juris and state practice and, hence, it is not considered a part of customary international law.
Waseem A. Qureshi,
Is the Law of War Changing in the Twenty-First Century?,
San Diego Int'l L.J.
Available at: https://digital.sandiego.edu/ilj/vol21/iss1/3