12 Jul Intervention in Civil Wars Symposium: The Importance (and Limitations) of Legitimacy During Foreign Intervention in Civil Wars
[John Hursh is a lawyer, writer, and researcher focusing on the use of force, human rights, and international humanitarian law. He served as Director of Research at the Stockton Center for International Law and Editor-in-Chief of International Law Studies at the U.S. Naval War College from 2017 to 2020.]
“It can be difficult to write something interesting about something one agrees with.” So wrote Timothy Waters when reviewing Mark Drumbl’s excellent book Atrocity, Punishment, and International Law (CUP, 2007). I find myself reaching the same conclusion after reading Chiara Redaelli’s also excellent book Intervention in Civil Wars: Effectiveness, Legitimacy, and Human Rights (Hart, 2021). Redaelli’s book makes an important contribution to the impressive scholarship on the use of force published in the last decade. This scholarship has only grown in relevance following several notable instances of foreign states intervening in civil wars. In this sense, Redaelli’s work is as timely as it is interesting and serves as a natural follow-up to Eliav Lieblich’s outstanding book International Law and Civil War (Routledge, 2013).
Legal Nuance and Historical Context
There are many things to commend in Redaelli’s work. Readers will appreciate the nuance of her legal discussion and the historical grounding of her research. As Redaelli moves through the legal debates that shape her inquiry, she provides the majority and minority perspectives and connects these past perspectives to the present understanding of the law. This historically informed approach allows a fuller appreciation of current debates by showing how states and scholars arrived at these positions. A good example is Redaelli’s discussion of self-determination, including the evolution of this concept from principle to right and how it influenced the recognition of national liberation movements (NLMs) as the legitimate representative of a people in the 1960s. As Redaelli notes, more recent efforts to recognize the Libyan National Transitional Council and the National Coalition for Syrian Revolutionary and Opposition Forces as the legitimate representatives of the Libyan and Syrian people often mirror earlier debates over NLMs and encounter many of the same legal challenges (196–200).
Redaelli’s primary research objective is to assess how the human rights paradigm has affected the legal framework regulating armed interventions by foreign states in internal conflicts (251). Throughout her book, Redaelli does an excellent job identifying the tensions between different positions within the legal debates germane to her research, as well as how these tensions shape the overall debate. For example, in her discussion of intervention by invitation, she notes the persistence of the effective control doctrine and how critics of this doctrine, such as Brad Roth, argue that it endorses what amounts to a “might makes right” approach to international law (108–09). At the same time, efforts to challenge this approach, such as the democratic entitlement doctrine developed in the 1990s, clearly do not reflect state practice, as undemocratic governments still govern many states and are found throughout regional interstate organizations, as well as the U.N. Security Council.
This tension illustrates the dissatisfaction with the traditional approach of effective control, where the de facto control of a state’s territory and its population suffice as the final word on the matter, as well as the international community’s inability to agree upon an acceptable alternative to this approach. Indeed, in numerous situations, but especially within a civil war, the traditional approach does not conform to large portions of the state’s population that are fighting the government or at least sympathetic to that fight. However, stipulating that only democratic governments can speak for the state is simply a nonstarter based on state practice. Instead, and as Redaelli notes, there is a middle position reflected in the practice of regional organizations that shows a clear preference for democratic governments (113–16), but which also recognizes that an undemocratic government exerting effective control can still speak for the state and ask foreign states to intervene on its behalf. This is especially true when there is no viable democratic alternative to speak for the state (140).
Legitimacy and its Limitations
Perhaps the strongest aspect of Redaelli’s work is her discussion of government legitimacy and how perceptions of legitimacy influence both how governments exercise the right to invite foreign states to intervene in internal conflicts and how states respond to these invitations. Legitimacy is of course a slippery term, which immediately raises questions of legitimate for whom and legitimate for how long? Redaelli bases much of her discussion of legitimacy on Jean d’Aspremont and Eric De Brabandere’s conceptualization of government legitimacy that separates legitimacy of origin, which accounts for the legitimacy of how the government came to power, from legitimacy of exercise, which asks whether the government exercises its power legitimately (118–20). Discussions of legitimacy risk circularity, but international law has shown a greater willingness to challenge legitimacy of origin than legitimacy of exercise at least in part due to the inherent subjectivity in determining when a government has lost its ability to exercise authority legitimately.
For Redaelli, legitimacy is a key concept because it challenges the effectiveness doctrine, which is indifferent to how a government obtained power. This distinction is important, as it helps explain the preference for recognizing democratic (“legitimate”) governments, as well as how governments can lose legitimacy through gross and systematic violations of human rights and humanitarian law (154–58). Legitimacy is also important for Redaelli’s assessment of the doctrine of intervention by invitation—a lawful but often criticized practice of a government engaged in an internal conflict asking another state to intervene on its behalf. While legally permissible, commentators often note the ease of which militarily powerful states abuse this doctrine and the doctrine’s potentially negative effects on the right of self-determination and the principle of non-intervention.
These abuses were particularly blatant during the Cold War. In contrast, the 1990s and 2000s saw states apply this doctrine more responsibly and to achieve better ends. Here, perhaps the most positive example is the restoration of a democratically elected, but exiled government in Haiti in 1994, following a 1991 military coup. The U.N. Security Council supported this intervention through its Chapter VII authority, which somewhat complicates the analysis, but this example and others showed that legitimate, but ineffective governments could call upon more powerful states and regional organizations to intervene in a positive manner (124–31).
A wider interest in the intervention by invitation doctrine returned following the Arab Spring and especially the invocation of this doctrine by Ukrainian President Viktor Yanukovych in 2014, by Yemeni President Abd-Rabbu Mansour Hadi in 2015, and by Syrian President Bashar al-Assad also in 2015. The Ukrainian and Yemeni examples offer a close parallel, as both instances saw a democratically elected president lose government control before fleeing the country and then asking the host state to intervene and restore the ousted leader to power. But, and as Redaelli notes, despite these factual similarities President Yanukovych’s request that Russia intervene in Ukraine was met with international condemnation, whereas President Hadi’s request that the Gulf Cooperation Council or the U.N. Security Council intervene in Yemen went unchallenged (132). Indeed, Iran was only state to question the lawfulness of President Hadi’s request, calling the airstrikes that followed a violation of Yemen’s sovereignty.
The difference in response was due foremost to differing perceptions of government legitimacy. Yanukovych made his request after responding to political unrest with military action, including snipers firing at unarmed civilian protesters, which killed more than 100 people. The Ukrainian Parliament voted to remove Yanukovych before Ukrainian authorities issued an arrest warrant against him. Yanukovych had already fled to Russia when Russian President Vladimir Putin asked the Council of the Russian Federation to intervene in Ukraine. Unsurprisingly, the Council supported Putin’s request and Russian forces deployed to Crimea. Only afterwards, when justifying its use of force before the U.N. Security Council, did Russia affirm that it acted at the request of President Yanukovych (133).
While Yanukovych’s request came after he had clearly lost the legitimacy to lead the Ukrainian government, and thus consent to Russian intervention, the Yemeni example is more complicated. President Hadi had led Yemen since 2011 and faced multiple internal conflicts, including an armed conflict with al-Qaeda and with separatist fighters in southern Yemen. In September 2014, the Houthis, another non-state armed group, entered the capital Sana’a. Houthi forces arrested Hadi in February 2015, but Hadi managed to escape and flee to Saudi Arabia. In March, Hadi requested that the Gulf Cooperation Council and the U.N. Security Council intervene in Yemen and restore his government. A collation of Arab states quickly agreed to do so and delivered airstrikes against the Houthis. The Arab League and several states, including Canada, France, the United Kingdom, and the United States supported these actions. Other states and regional organizations, such as China and European Union, did not expressly support these acts, but nor did they characterize them as unlawful. Instead, they expressed their general concern and called for a political solution.
As Redaelli observes, both the Yanukovych and Hadi governments would fail the effectiveness doctrine, as neither government held effective control over the state’s territory or its population (135). However, the Yanukovych government lost its legitimacy when it responded to political unrest with excessive force that killed more than 100 people. The Hadi government had not committed such egregious violations of international human rights law and thus retained its legitimacy. And while the situation in Yemen has changed since then, the Hadi government’s subsequent actions do not alter the lawfulness of that initial request.
Still, legitimacy has its limitations and while governments that engage in gross and systematic violations of human rights and humanitarian law may lose their legitimacy, they do not automatically lose their legal authority to consent to foreign intervention. Here, the most apt example is the Assad government in Syria, which has remained in power despite committing numerous atrocities against the Syrian people. At the early stages of the Syrian civil war in 2011 and 2012, several states, the U.N. Secretary General, and numerous scholars and commentators concluded that Assad and his government had lost its legitimacy and no longer represented the will of the Syrian people. In turn, numerous governments called for Assad to resign and recognized the Syrian Opposition Council (SOC) as the true representative of the Syrian people. However, in 2015 the Russian government intervened in Syria at the request of President Assad. Although several states criticized this decision, none deemed it unlawful (160).
Libya offers a similar example, where the Gaddafi government’s repressive and violent response to Arab Spring protests led the U.N. Security Council to impose sanctions and refer the matter to the International Criminal Court. Like with Syria, numerous states concluded that the Gaddafi government was no longer legitimate and had lost the consent of the Libyan people. And like the SOC in Syria, several governments recognized the National Transitional Council as the true representative of the Libyan people. Redaelli notes that concerns over government legitimacy did not result in a loss of recognition for either the Assad or Gaddafi government, but rather “a form short of withdrawal of recognition of governments” (158). While an apt description, this form has little if any legal effect on foreign states intervening on behalf of violent and authoritarian governments such as that of Gaddafi or Assad.
In these instances, the intervention by invitation doctrine seems especially outdated with the ethos of contemporary international law and its emphasis on the protection of the rights of the individual and the centrality of human rights. Likewise, some scholars have argued that in such instances intervention by invitation violates the right of self-determination or the principle of non-intervention. State practice, however, clearly does not support this perspective and this tension remains unresolved.
Nonetheless, accountability is not entirely absent in these circumstances, and as Redaelli notes, the law of state responsibility, international humanitarian law, and treaty law specific to arms transfers all restrict the amount and type of support that an invited state may take during an intervention, especially when the host state grossly and systematically violates human rights and humanitarian law (162–72). The application of these bodies of international law remains a contentious issue, as illustrated by the legal scholarship examining the military assistance the United States provided the Saudi-led coalition that intervened in Yemen.
Thomas Franck published The Power of Legitimacy among Nations in 1990. Franck sought to demonstrate that virtually all states obeyed most international legal rules nearly all the time and argued that the more legitimate laws and institutions appeared to be, the more likely states would comply. Since then, scholars have continued to seize on the concept of legitimacy within international law, the use and abuse of this concept, and legitimacy within global affairs more broadly. Redaelli’s book is an important to contribution to this literature, as well to that on the use of force. And while conceptions of legitimacy and the use of force will remain contested topics, Redaelli’s book shows the interplay between concept and doctrine and why these debates continue to resonate, particularly within legal arguments over whether, how, and to what extent foreign states may intervene in civil wars.