The Fight against isil in Syria. Comments on the Recent Discussion of the Right of Self-defence against Non-state Actors

The legal debate on self-defence against non-state actors is still inconclusive after two decades. At the same time, it has created a fertile ground for attempts to find a silver bullet: a new legal theory that could bridge the conceptual gap between the law of the un Charter and the expanded notion of self-defence. The article gives an overview of the legal rationales presented in relation to the fight against isil in Syria as well as scholarly comments, focusing on the emerging doctrine of ‘unwilling or unable’. It argues that the ‘unwilling or unable’ test has little to offer as a solution to the problem of responding to massive non-state violence. It does not amount to a coherent doctrine, and is in many respects at odds with established interpretations of law. The apparent simplicity of the ‘unwilling or unable test’ may be politically attractive but makes it open to abuse.