Intervention in Civil Wars Symposium: Intervention and Emerging Popular Sovereignty Norms

[Brad R. Roth is a Professor of Political Science and Law at Wayne State University in Detroit. He is the author of Governmental Illegitimacy in International Law and Sovereign Equality and Moral Disagreement and co-editor of Democracy and International Law, Supreme Law of the Land? Debating the Contemporary Effects of Treaties within the United States Legal System, and Democratic Governance and International Law.]

Chiara Redaelli’s meticulously researched book on Intervention in Civil Wars is an indispensable resource. It is a well-organized and thorough treatment of the topic, and brings up to date the literature of the phenomenon in the wake of a multitude of recent episodes.

The book can also be classified as a contribution to the wide-ranging “democratic entitlement” literature, in the double sense of topical coverage and normative orientation. The book examines the intersection of doctrines governing armed intervention and claims for what Thomas M. Franck famously termed the “emerging right to democratic governance.” Although not a tendentious work, Redaelli’s study reflects a generally favorable outlook on the trend toward substituting electoral outcomes for effective control as the determinant of a government’s capacity to invite external intervention. 

Nonetheless, Redaelli poses an important caveat:

Assessing the real will of the people is difficult, and we may wonder whether it is feasible, or whether this assessment will always be flawed. While the transition from state sovereignty to popular sovereignty is commendable, it risks overlooking that the idea of a people is an abstraction, as much as is the idea of a state. Therefore, the question of how to respect the will of the people concretely remains an open one. [p. 260]

In response to this difficulty, she concludes: “In the absence of universally accepted criteria to resolve this dilemma, answering this question ultimately requires making a choice based on the values and objectives that we believe international law should encourage and promote.”

Quite so, at least in the most abstract sense:  Law is a purposive process. Its source material has no mechanical application to new facts, but must be brought to bear creatively in accordance with the values and objectives discerned to underlie both the particular legal order and legal order as such. Per Ronald Dworkin: “constructive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best example of the form or genre to which it is taken to belong.”

But it is important to note that international law serves crucially as a framework of accommodation among bearers of differing, and sometimes conflicting, values and objectives. Its goals include peace and coordination among those who will never reach any comprehensive agreement about the criteria of justice and legitimacy. It is thus worth putting a finer point on Redaelli’s caveat, lest it be reduced to a throw-away line by those bent on implementing a partisan set of values and objectives.

Effective Control as a Proxy for Popular Will in the Cold War Era

The period from the late 1950s to the late 1980s saw the development of an international law of peace and security predicated on a rough modus vivendi between a liberal-democratic West and a revolutionary-socialist East (respectively embracing doctrines of “containment” and “peaceful coexistence”) and the accommodation of an emergent Bandung-nationalist (“Non-Aligned”) South. Glosses on the UN Charter during this period, including most prominently the UN General Assembly’s 1970 “Friendly Relations” Declaration, reflected a pluralistic understanding of the bases of internal political authority.

Sovereign equality was expressly predicated on the equal rights and self-determination of peoples, with existing states presumed to manifest the self-determination of their respective territorial populations. That is to say, state authority was ordinarily treated as an embodiment the popular will of the encompassed political community – albeit by way of a nearly irrebuttable legal presumption in favor of the holder of “effective control through internal processes.” Popular sovereignty and realpolitik were reconciled by ideological pluralism: what was to count as popular will would be determined in accordance with locally efficacious norms, institutions, and processes. States governed by one-party regimes that tolerated no organized opposition were the sovereign equals of states holding free and fair elections.

The wisdom of associating popular will with patterns of popular acquiescence rested principally on two propositions:  First, empirical investigation presupposes both general agreement to criteria for gauging authentic popular will and an implementation of procedures embodying such agreement, neither of which appeared to be feasible. Second, even a coerced decision to acquiesce to a ruling apparatus nonetheless represents a decision, international respect for which is arguably required in deference to a popular will that cannot be presumed to trust foreign intentions, nor to prefer that foreigners bring on the very crisis that the people itself decided not to initiate.

But what about civil wars? During this era, internal armed conflict was widely perceived, not as an anomaly or as evidence of “state failure,” but as a legitimate way for questions of public order to be worked out within states. Internal wars typically succeeded in presenting themselves as struggles between ideologically-motivated factions for standing to speak for the undivided population, rather than as ethno-nationalist bloodletting or as simply the rivalrous violence of armed gangs. After all, during this period, most governments in the world traced their origins more or less directly to a coup d’état, insurrection, or decisive civil war. In the prevailing imagination, a winning faction – absent unlawful assistance from a foreign power – demonstrated its worthiness of representing a given political community by achieving and maintaining acquiescence of the bulk of the populace in that faction’s project of public order.

Civil strife, far from generating exceptions to the non-intervention rule, was precisely the circumstance in which the non-intervention norm was most strongly emphasized. Foreign involvement was understood to be motivated by geostrategic interest and ideological partisanship rather than by impartial humanitarianism. Moreover, intervention during this period tended to draw counter-intervention, leading to the escalation of conflict and the exacerbation rather than the mitigation of human rights and humanitarian law violations. The non-intervention norm militated against foreign powers being able to determine winners and losers in internal struggles (thus depriving political communities of self-determination), and against those powers obtaining undue advantage vis-a-vis one another.

The Post-Cold War Effort to Substitute Electoral Outcomes for Effective Control

In the post-Cold War era, with the resolution of the prior global geostrategic divide and the substantial abandonment of the prior agnosticism about the normative grounds of legitimate governance, neutrality in internal conflicts ceased to be the international order’s orienting principle.  International organizations sought to broker solutions that typically, if rather raggedly, predicated governmental legitimacy on liberal-democratic electoral mechanisms. Obstruction of the mechanisms so established has thereupon drawn sharply – and at times, decisively – non-neutral impositions by the UN and other external actors, in turn generating international practice and opinio juris on questions of governmental illegitimacy once considered to be “essentially within the domestic jurisdiction.”

These developments can be seen as responding to the incompleteness, at best, of the wisdom of treating effective control through internal processes as a proxy for popular sovereignty. First, circumstances arise in which the popular will manifestly rejects the ruling apparatus — occasionally through procedures that have been locally agreed upon and implemented, and occasionally in less structured manifestations that are nonetheless evident even from a wide range of ideological and cultural perspectives. (Indeed, a dictatorial ruling apparatus may by holding elections concede the crisis of its legitimacy, but then, unhappy with the results, attempt to reassert its unilateral prerogative to exercise the state’s sovereign rights.) Second, the means of coercion presently available to ruling apparatuses are so devastating that even a people desperate for liberation might acquiesce, and the potential depredations of domestic tyranny are so great that peoples cannot automatically be assumed to prefer it to foreign-sponsored governance. The difficulties of ascertaining a people’s will with respect to foreign intervention remain formidable, but not necessarily insurmountable.

The reconceptualization of popular sovereignty as connected to the operation of specific processes of political participation opens the door to greater permission of military intervention by invitation of a recognized “democratically-elected” government that either is embattled or has been ousted by forces that refused to honor the democratic mandate. The logic that supposedly (but ineffectually) limited military intervention on behalf of an established government no longer applies where a free and fair election, rather than popular acquiescence, becomes the proxy for the will of the sovereign political community.

More consequentially, elected governments that have been overthrown or that have been impeded from taking power may be able to call on foreign military assistance in establishing effective control in their national territories. The 2016-17 Gambian case is the clearest signal that an electoral mandate per se may be taken as sufficient to vest a government – or government-in-waiting – with standing to authorize the invitation and that direct involvement of the UN Security Council may not be required.

Evaluating the Departure from the Non-Intervention Norm

It is tempting to regard this erosion of the non-intervention norm as a victory for moral principle. The barriers posed by that doctrine tend to interfere with redress of morally imperative grievances. If the doctrine favored weak states, one might say that this was so only in the sense that it favored armed factions that had usurped control over territorial political communities on the global periphery, and that therefore these very sovereign prerogatives were a bane to those states’ inhabitants.

Such an attitude, however, reflects too uncomplicated a view of internal political conflict. To be sure, there are real instances of confrontation between “the regime” and “the people,” and even more frequent instances in which the regime resembles a criminal enterprise or a street gang more than anything that can properly be called a government. It is an untenable dogma to dignify, as a manifestation of a political community’s self-determination, whatever patterns of effective control might emerge from internal processes.

However, the current conventional wisdom poses a danger of over-correction. It tends to neglect the reality that coercion, force, and violence are natural consequences of societal polarization. Harsh measures and departures from liberal-democratic mechanisms have often had substantial bases of popular support. It is frequently difficult to gauge these matters in real time – and sometimes difficult in retrospect, as participants and observers often re-write their histories.

Moreover, genuine political equality is a far more complex and fraught principle than can be captured in any particular constitutional settlement, especially in political communities that are socio-economically or ethno-nationally polarized. Free and fair elections, even on terms previously agreed (in accordance with the comparative leverage of the efficacious actors of the moment), can generate outcomes that leave or place vital interests in jeopardy. Parties representing jeopardized sectors may resist or defect from the negotiated arrangement in uncompromising pursuit of a good-faith (albeit partisan) conception of what democracy requires. By overestimating the legitimacy conferred by electoral processes, interveners, in setting themselves against internal actors who resist or defect from electoral outcomes, may unduly end up merely participating in, rather than helping to resolve, civil conflicts.

In addition, history teaches that foreign intervention, however much advertised as liberating a subject populace from tyranny, may be skewed by the interveners’ interests and values, may be impaired by a sophomoric understanding of local conditions, or may be plagued by a lack of resolve to fulfill guarantees on which vulnerable local allies are led to rely. The ultimate outcome can be some new and worse predation, with even less coincidence of interests between ruler and ruled.

Conclusion

The non-intervention norm derives from an unromantic legal framework befitting an unromantic global reality. While departures from it in extreme situations are clearly justified, extreme cases generate bad dicta. As Redaelli’s work reminds us, global consensus on basic political values is easily overstated, especially given the complexity of application to unfamiliar contexts. Moreover, unilateral implementation of purported universal principles lies in the hands of untrusted – and, it is fair to say, untrustworthy – implementers. A world that jettisons the prior era’s more robust interpretation of non-intervention norm may turn out to be a more dangerous, rather than a more just or rule-of-law-oriented, world.