Intervention in Civil Wars Symposium: Beyond Humanitarian Intervention–Human Rights and Jus Ad Bellum

[Erin Pobjie is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany. She is a member of the International Law Association’s Committee on the Use of Force: Military Assistance on Request, and co-convener of the European Society of International Law’s Interest Group on Peace and Security.]

Introduction

Individuals are victims of war, but until now have not been directly recognised as rights holders or beneficiaries with respect to the body of international law prohibiting resort to force, the jus ad bellum. Yet recent developments in international law justify a critical reappraisal of the intersection between individual rights and the jus ad bellum. In her accessibly written and illuminating book, Intervention in Civil Wars: Effectiveness, Legitimacy, and Human Rights (Hart: 2021), Chiara Redaelli clarifies the international legal framework on armed intervention in internal conflicts and analyses State practice to determine if international law in this area is changing. In doing so, she highlights the emerging role of human rights in the international legal framework regulating military intervention in civil wars. This role extends beyond the well-rehearsed debates on humanitarian intervention:

‘Discussions on humanitarian interventions highlight the nexus between the ban on the use of force, the principle of non-intervention, and the human rights paradigm. However, the significance of human rights has more far-reaching implications at the level of jus ad bellum. Accordingly, this study seeks to pinpoint the bearing of human rights on foreign interventions in internal conflicts.’ (p3)

In this post, I would like to focus on the connections Redaelli identifies between international human rights law (IHRL) and jus ad bellum in the area of intervention in civil wars and link this to broader questions of the rights of individuals with respect to violations of jus ad bellum. As Eliav Lieblich notes in his forthcoming EJIL article ‘The Humanization of Jus ad Bellum: Prospects and Perils’, few scholars ‘have addressed the intersection between the individualization of war, IHRL, and the law on the resort to inter-state force’ (among them he counts Frédéric Mégret, myself, Tom Dannenbaum and William Schabas). Yet recent developments in international law increasingly lend tentative support to the notion – perhaps held intuitively by many – that individuals are (or at least, should be) the ultimate beneficiaries of the modern jus contra bellum. Redaelli’s book highlights these increasing connections between human rights and jus ad bellum with respect to military intervention on invitation.

Human rights and consent to armed intervention

In her book, Radaelli argues that ‘human rights have been affecting jus ad bellum in a pervasive and profound fashion’. (p251) This is due to the importance of human rights in determining who may consent to armed intervention on behalf of a State. Redaelli identifies a 3-pronged structure for answering this question, including legitimacy of origin (the recognition of democratically elected governments that do not exercise effective control over territory and population) and legitimacy of exercise (illegitimacy of governments which commit gross and systematic violations of IHRL and international humanitarian law (IHL) against their own populations, and the legitimacy of rebel groups fighting against such governments, e.g. in Libya and Syria). However, as Redaelli acknowledges, human rights and legitimacy are not the be-all and end-all in determining who may validly consent to foreign forcible intervention in a civil war: effectiveness (the recognition of undemocratic governments in effective control where there is no democratic alternative) remains a ground for recognition of a government inviting foreign intervention.

Legitimacy of exercise and the right to consent

While Redaelli convincingly demonstrates these criteria through an analysis of State practice, the arguments regarding legitimacy of exercise are less clear. According to this argument, a government which commits gross and systematic violations of IHRL and IHL against its own population forfeits its legitimacy, and which is instead conferred upon certain opposition groups fighting against it as representative of the people (p258-9). However, ‘this does not necessarily entail a loss of consent power’ of the illegitimate government (p254), since State practice does not support that support that illegitimate governments who commit mass violations of IHRL and IHL against their own populations forfeit their right to consent to intervention (although some States do not ‘explicitly affirm’ such a right, e.g. the US refusing Assad’s invitation to intervene in Syria – for an incisive legal analysis of that situation, see Claus Kreß).

In this analysis, it is unclear why the forfeiting of legitimacy does not automatically result in a forfeiture of power to validly consent to intervention. Perhaps this is because, as Redaelli notes in other parts of the book, legitimacy of a government is still not the sole criterion for validly issued consent and in certain circumstances, effectiveness may suffice. But since she also argues that this is only case when there is no viable legitimate alternative, it could be made clearer if a government which loses its legitimacy due to committing massive IHRL and IHL violations against its own population in a situation where there is a viable democratic alternative may still issue a valid invitation to another State to military intervene in an internal conflict. In any case, Redaelli correctly notes there are other limitations under international law to States rendering assistance to other States which violate IHRL and IHL, either because of international responsibility for giving aid and assistance in the commission of wrongful acts, or due to the duty to ensure respect for IHL.

Individuals and jus ad bellum

The ultimate claim of the book connects to broader questions of the relationship between individual rights and jus ad bellum. This connection is advanced in several sections, namely chapter 2 part III (non-intervention, sovereignty and human rights), chapter 5 (human rights and intervention) and chapter 8 part III (R2P and interventions in favour of rebels). Redaelli concludes:

‘This analysis highlights that legitimacy is resurfacing and that human rights have emerged as a parameter of legitimacy. Specifically, the preference for democratic governments has been framed in terms of rights: on the one hand, it has been grounded in the emerging right to democratic governance; on the other hand, it is deemed to reflect and protect the right to internal self-determination of people. Furthermore, heinous violations of human rights and International Humanitarian Law (IHL) could lead to disqualifying a government once considered legitimate.’

On this view individuals enjoy a cacophony of rights under international law with respect to uses of force in foreign intervention in civil wars. This increasing emphasis on the individual in the law on the use of force seems to bear out the statement of the ICTY in its famous passage that ‘[a] State-sovereignty-oriented approach has been gradually supplanted by a human- being-oriented approach. Gradually the maxim of Roman law hominum causa omne jus constitutum est (all law is created for the benefit of human beings) has gained a firm foothold in the international community as well.’ (Prosecutor v Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1, 2 October 1995, §97)

As Redaelli argues,

‘[t]hese legal developments, which see the respect of human rights as an integral component of sovereignty, confirm that the protection of individuals has become a cornerstone of the international legal order. Although this development is unquestioned per se, it raises numerous fundamental questions, in particular as to the consequences faced by governments that commit gross and systematic violations of human rights and humanitarian law against their own populations.’ (p154, footnotes omitted)

This is an excellent departure point for raising the broader questions about individual rights and jus ad bellum.

Human rights comes into play at multiple levels in an armed intervention to assist a government that is massively violating the rights of its own population. As Redaelli argues, such a government loses legitimacy (although it may still validly consent to intervention), and assisting States are liable for rendering aid and assistance in the commission of internationally wrongful acts. If State practice consolidates around the eschewing of invitations issued by such illegitimate governments (as happened in Syria), then a State which militarily intervenes to assist that government may in future be committing an act of aggression and thus ‘ipso facto’ violate the right to life of individuals in that State (and possibly, also of their own soldiers) who are harmed or killed in the conflict. With the activation of the International Criminal Court’s jurisdiction over the crime of aggression, as I have argued elsewhere, this may also confer the right on individuals who suffer harm caused by the crime of aggression to be recognised as victims before the ICC and seek reparations from the convicted person. As I then argued, ‘this represents this represents a surprising and significant development in the history of the crime of aggression that has passed virtually unnoticed.’ The connections Redaelli draws between IHRL and jus ad bellum with respect to intervention in civil wars may therefore be read against the context of this and other emerging developments in international law towards what Lieblich terms the ‘humanization of jus ad bellum’.

Conclusion

Redaelli’s lucid analysis and threefold conclusions on human rights and intervention in civil wars are a useful contribution to scholarship and offer a comprehensible interpretation of recent State practice in this area. In the final part of her book, she discusses the dangers of legitimacy. Lieblich in his recent article also cautions a careful appraisal of the ‘humanization of jus ad bellum’. They are right to draw attention to the risks of securitisation of human rights and the individualisation of jus ad bellum. Still, the recognition of individuals as potential rights holders or beneficiaries with respect to the jus ad bellum connects to a broadening conceptualisation of international peace and security which places human security at the forefront and is worthy of further discussion and debate.