International Law and Civil Wars

Intervention and Consent

Eliav Lieblich

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781135069216
• Topic: Law
• Subtopic: Military & Maritime History
• Index: Law

This book examines the international law of forcible intervention in civil wars, in particular the role of party-consent in affecting the legality of such intervention.

In modern international law, it is a near consensus that no state can use force against another – the main exceptions being self-defence and actions mandated by a UN Security Council resolution. However, one more potential exception exists: forcible intervention undertaken upon the invitation or consent of a government, seeking assistance in confronting armed opposition groups within its territory. Although the latter exception is of increasing importance, the numerous questions it raises have received scant attention in the current body of literature.

This volume fills this gap by analyzing the consent-exception in a wide context, and attempting to delineate its limits, including cases in which government consent power is not only negated, but might be transferred to opposition groups. The book also discusses the concept of consensual intervention in contemporary international law, in juxtaposition to traditional legal doctrines. It traces the development of law in this context by drawing from historical examples such as the Spanish Civil War, as well as recent cases such those of the Democratic Republic of the Congo, Somalia, Libya, and Syria.

This book will be of much interest to students of international law, civil wars, the Responsibility to Protect, war and conflict studies, and IR in general.

1	The dynamics of consensual intervention

1 The wide spectrum of consensual intervention

1.1 The insufficiency of the intervention upon invitation paradigm

The attempt to define the phenomenon of “consensual” interventions, as opposed to other types of interventions, presents a significant challenge. Indeed, one can envision the pure “intervention upon invitation” scenario — in which a government explicitly, ad hoc and in a written treaty — invites a previously uninvolved state to assist it in confronting opposition groups seeking to overthrow it. In this “pure” scenario, the intervener has no independent interests in the intervention itself, beyond the fact that it was requested to assist the inviting government. Furthermore, the intervener will have no interaction with other international actors, nor will it seek any authorization from the UNSC. This altruistic — perhaps “Kantian”¹ — intervener will therefore present no other justification for its actions other than its “good-will” and the invitation itself.

However, the concept of “intervention by invitation,” while seemingly providing a clearly definable and identifiable categorization, does not reflect the reality of the contemporary international system, or the complexity of the question of intervention and consent in international law. Practically — needless to say — states will rarely display the Kantian virtues as reflected in the pure “intervention by invitation” paradigm. Legally, moreover, the term “invitation” is imprecise, since it focuses on the technical element of the question rather than on the substantive one: it merely refers to the instrument of the expression of consent. Since the potential “active” legalizing agent regarding a consensual intervention is the consent itself, it makes little sense to ask whether an invitation, in the narrow sense, has been extended. Instead, when focusing on the substantive element of consent, the term consensual intervention encompasses a much wider scope of instances. Accordingly, an abundance of complex scenarios become possible, each presenting significant legal challenges.

For instance, consent will not always be — in practice — in the form of an invitation in advance. It might be expressed, on the time continuum, not only proactively but also retroactively (when external forces are already present on the state's territory, for one reason or another), and can theoretically be conveyed, in both cases, explicitly or implicitly. Its legality, in all these cases, depends on its firm and unequivocal establishment in the relations between the consenting entity and the intervener, and cannot, as such, be simply presumed by the latter.² Moreover, consent can be ad hoc and specific, expressed in real-time in relation to a concrete instance of intervention; or, conversely, be granted in the form of a general, forward-looking intervention treaty. The latter treaties, in most cases, give rise to significant legal challenges.³ For instance, a perplexing problem can occur when a government, party to a forward-looking intervention treaty, seeks to withdraw its consent in real-time in the face of an impending intervention.⁴ In practice — setting aside, for now, the issue of legality of such situations — consent can be expressed by governments or opposition groups; the latter situation challenges, of course, the prohibition on the use of force and the norm of nonintervention as classically understood.

Furthermore, consent can be addressed to various types of external actors. It can be granted to states and to groups of states acting within a regional organization; but also to other entities such as non-state actors or multinational forces established by a UNSC resolution. When a state agrees that a non-state actor “intervene” on its behalf, the intervening group may or may not be considered as having been integrated into the consenting state's armed forces. Such a determination will be made in light of the application, in the specific circumstances, the relevant rules of international humanitarian law (IHL) and state responsibility.⁵ In cases where consent is expressed in the context of a UNSC authorized intervention, the consent, as we shall see, interacts with a Chapter VII-based mandate and supplements it.

Naturally, instances in which the consent is both proactive and explicit, and is extended ad hoc by a state to another state, are relatively simple cases — at least with regards to the relations between the consenting state and the intervener — that correspond with the classic “intervention upon invitation” paradigm. Any other combination raises difficult questions — in particular regarding the free nature of the consent,⁶ but also concerning a plethora of other issues. Indeed, the diverse modalities of consensual intervention result in a wide variety of complex cases. For instance, such a case occurs when consent is given to a foreign force which is already present in the state's territory, with many independent interests of its own, perhaps operating in conjunction with international forces.⁷ Another complex case can be when consent is granted implicitly, in parallel with a transnational armed conflict between the intervening party and a nonstate actor operating from within the consenting territorial state. This is arguably the case in some instances of the so-called “war on terror.” In such situations, as we shall exemplify shortly through the Kenyan intervention in Somalia — and as invoked by the US in the context of targeted killing operations — claims of self-defense can intertwine with the territorial state's consent.⁸ Furthermore, the lawfulness of such consensual interventions can be conditioned on the question whether the consenting state itself is involved in an internal armed conflict with the non-state actor.⁹

Since the term “consent” alludes to a wide variety of instances, this work adopts an admittedly flexible view of the situations that constitute consensual interventions. The latter term, thus, refers to every forcible intervention — unilateral or multilateral — in an internal armed conflict, undertaken in practice, in part or in whole, for the benefit of one of the parties, regarding which genuine consent can be inferred, whether explicitly or implicitly. In essence, then, a substantial element of the prima facie qualification of an intervention as consensual is the partiality of the intervention. Indeed, every non-impartial intervention is likely to further — even if only tactically — the interests of one party to the conflict over the other. Here lies the nexus between partiality and consent it is reasonable to presume — albeit in a rebuttable fashion — that a party which benefits from an intervention has consented, in some way or the other, to the operation. Therefore, we assume, for the sake of our analysis, that every de facto non-impartial intervention can be viewed as consensual, in relation to a certain party, unless the intervention is publicly and credibly rebuffed by all relevant parties. For instance, every intervention in an internal armed conflict, in which opposition forces are attacked by the intervener, and is not denounced by the territorial government as unlawful, is presumably conducted with the latter's consent. Likewise, when an intervention receives the support and cooperation of opposition groups, it is quite possible to deduce that the latter have consented to it. This realization, of course, does not prejudge the legality of the action — it merely allows us to establish that the intervention might be consensual, and that methodologically, the actual or potential legal implications of the consent can be analyzed. However — our wide definition of consensual intervention notwithstanding — when...

Table of contents

• Cover
• Half Title
• Full Title
• Copyright
• Contents
• Selected case law
• Selected UN resolutions and treaty body documents
• Selected treaties
• Acknowledgments
• Abbreviations
• Introduction
• 1 The dynamics of consensual intervention
• 2 The concepts of intervention and internal armed conflict
• 3 The modalities of forcible intervention
• 4 Internal armed conflicts and consent in the war-prerogative era and effectiveness as a source of rights
• 5 Intervention and consent in the inter-war period and the fragmentation of traditional doctrines
• 6 The preference of governments: From dichotomy to rebuttable presumption
• 7 The scope of government consent power: General thresholds
• 8 From effective control over territory to effective protection of civilians
• 9 Consent power,democracy, human rights and self-determination
• 10 Consent by opposition groups: Between recognition and humanitarian intervention; between legality and legitimacy
• Selected bibliography
• Index