13 Jul Intervention in Civil Wars Symposium: A Tour de Force on Intervention in Civil Wars by Chiara Redaelli
[Luca Ferro is a post-doctoral researcher at the Ghent Rolin-Jaequemyns International Law Institute (GRILI) of Ghent University, and a member of the ILA Committee on the Use of Force: Military Assistance on Request.]
An embarrassing confession at the start of this review: I cannot remember the last time I read a book on international law from (digital) cover to cover, instead of scanning through it and picking up only that which I could use for some work in progress. However, I devoured Chiara Redaelli’s monograph on Intervention in Civil Wars: Effectiveness, Legitimacy and Human Rights (Hart Publishing 2021). This is primarily due to Chiara’s clear and enticing prose, intersprinkled with well-chosen and thought-provoking quotes, and the academic feat of comprehensively tackling a classical topic of international law from a fresh perspective.
That perspective, namely that “the human rights paradigm has affected the legal framework regulating foreign armed interventions in internal armed conflicts” leading to “a shift from effectiveness to legitimacy, whereby human rights have emerged as a parameter of the latter” (page 262), runs through the book like an illuminating golden thread. This allows the author to limit (e.g., interventions to counter terrorism (pages 102-3)) or cut (e.g., the unwilling or unable test under the right to collective self-defense) discussion of secondary legal issues, while ensuring that the reader does not lose sight of the overarching message.
Interestingly, and admirably, the book also devotes its entire first part to sketching a historical evolution of the concepts at the heart of this topic: sovereignty, (non-)intervention and human rights. She approvingly quotes the great Antonio Cassese to explain why:
A still photograph of the current state of law would be incomprehensible – how could one understand the way the law is today if one does not study its evolution into the current state? Can we understand a human being without delving into his or her biography? Can we understand a polity without exploring his history? How, then, can we hope to understand legal parameters … if we do not trace [their] antecedents at the beginning?
But for the remainder of my post I would first like to tackle a crucial point of the analysis, with which I tend to agree: “human rights play a decisive role in identifying the organ capable to speak on behalf of the state … it rests on discussions on the emerging right to democratic governance and the right to self-determination of people” (page 6). In addition, I want to come back to the discussion on the doctrine of negative equality (pages 92-6), as I am more skeptical of its outcome and for the purpose of making a broader methodological point.
Off we go!
Determining the organ able to speak on behalf of the state
Building on Jean D’Aspremont’s distinction between legitimacy of origin and legitimacy of exercise in the age of democracy, and an analysis of recent state practice, Chiara concludes:
Democratic governments – ie endorsed by free and fair elections – are recognised even if they do not exercise effective control over the territory and population, and even when an effective but undemocratic alternative is available. … Accordingly, democratic but ineffective governments are deemed to have the capacity to consent to foreign interventions in their favour. …
The preference for democratic governments is not absolute: undemocratic governments – ie governments that have reached power through coups d’état, through elections which were not free and fair, or whose leaders have refused to step down after losing elections – are recognised as de jure governments if there is no democratic alternative. Therefore, in such circumstances they can invite foreign countries to quell an insurrection. (pages 253-4, emphasis added, but see also pages 150-1)
I accept this conclusion, but am more hesitant in putting forth that these evolutions have (already) crystallized in hard-and-fast rules of positive international law.
Taking a step back, doctrine traditionally holds (pages 199-200) that in order to determine the organ that is capable to speak on behalf of a State, two criteria are crucial:
- international recognition: in particular by the United Nations and relevant regional organizations (Hafner, page 399); and
- effective control: “[a] government which is in fact in control of the country and which enjoys the habitual obedience of the bulk of the population with a reasonable expectancy of permanence, can be said to represent the state in question and as such to be deserving of recognition” (Oppenheim, § 45).
What is more, based on a typically careful and detailed analysis, Corten concludes (page 462) that “the practice of the 2010s seems to give a preponderant role to the first of them” (translation mine).
Skipping a few steps in the interests of brevity, the entitlement to formally represent a State at, say, the United Nations presumably carries with it the prima facie (!) authority to request foreign military assistance. It is beyond doubt that the views of the international organization will be influenced by the requesting government’s legitimacy of origin, and that Chiara has eloquently set out the existing state of affairs in that regard. Democratically elected governments indeed have a greater chance of receiving the much-coveted international stamp of approval (Yemen), while the opposite is true for governments that grab power through a coup d’état (at least in its immediate aftermath, Mali 2021) or refuse to hand it over after losing a free and fair election (The Gambia).
But linking the organ entitled to request foreign intervention directly to their democratic credentials (and/or that of their rivals), without the intermediate step of recognition by international organizations, risks putting the cart before the horse. While possession of such credentials may be one of the factors that go into international recognition, it is certainly not the only or perhaps even most important one. These doubts appear to have been borne out in the Democratic Republic of the Congo, Venezuela and Myanmar.
In fairness, the author is well-aware of this conundrum:
As long as there will be no general agreement within the international community as to the criteria of legitimacy of governments and rebels, this relativity [inherent in any form of legitimacy] appears inevitable. (page 262, but see also page 151)
And so while the emphasis indeed appears to be shifting from effectiveness to legitimacy to determine the organ capable of speaking for the state, I would argue that it is international recognition that functions as the true ‘parameter for the latter’, even if informed by human rights considerations among others.
(Negative) equality between state practice, silence, and opinio juris
Even if we accept that a de jure government may validly issue an invitation for military assistance when confronted with internal turmoil, that is not sufficient by itself to legalize the ensuing intervention as further checks are required (see: Chapter 5). In that context, a heated discussion centers on the increasingly unfashionable doctrine of ‘negative equality’, which holds that “a military intervention by a third state in a state torn by civil war will always remain an illegal use of force, which cannot be justified by an invitation” (IIFFM on the Conflict in Georgia, pages 278-280). According to the author, the theory “trigger[s] more questions than it answers” (page 95). Importantly, she further notes that
state practice shows that states do not rely on the negative equality doctrine, nor do they mention it during discussions within the UNSC. Furthermore, over the past decade the reaction of the international community to interventions upon invitation of the government in situations that amount to civil wars has never criticised the right to intervene per se. Instead, criticism has focused on the modalities of the intervention, or whether the inviting party could be considered the government and thus whether it had the authority to issue the invitation. In light of these reasons, a duty to abstain in civil wars does not seem to exist under the current legal framework. (page 96)
First, one would indeed be hard-pressed to deny that there is plenty of State practice in brazen violation of the supposed prohibition. But, second, especially in the case of prohibitions under international law, scholars should not be blinded by high-profile incidents that necessarily paint a skewed picture of reality. After all, a fair assessment of relevant practice should also count abstention from action (so-called negative practice), on which the ILC Special Rapporteur rightfully noted that “[e]ven more than other forms of practice, inaction may at times be difficult to identify and qualify” (third report, § 20).
But regardless of how we count practice, the analysis will hinge on establishing accompanying opinio juris either way – an exercise which gets far less attention in the book. Consequently, the claim that States never refer to the doctrine’s basic tenets, nor criticize the right to intervene per se, appears somewhat overstated. See, for some examples: United Kingdom (page 616), France (pages 863-864), Second Berlin Conference on Libya (§§ 5, 7, 8, 28 and 36), and, more hesitantly, Russia and China on Ethiopia (here and here). Add to that the underexplored role for State silence (here and here), and I maintain that the prohibition should not be declared dead just yet – if only to avoid having to kill it off again later.
Third, Chiara is right in criticizing negative equality by pointing out that “even cases below the civil war threshold can be fought in the name of self-determination” and “violent conflicts do not necessarily entail fights for self-determination” (page 96). But therein lies the real rub: civil wars are far too easily equated to non-international armed conflicts, which indeed fundamentally clashes with an orthodox interpretation of the right to self-determination. But rather than throw the baby out with the bath water, scholars should – as a starting point – harken back to the definition offered by the Institut de droit international back in 1975:
[T]he term the term “civil war” shall apply to any armed conflict, not of an international character, which breaks out in the territory of a State and in which there is opposition between: … the established government and one or more insurgent movements whose aim is to overthrow the government or the political, economic or social order of the State, or to achieve secession or self-government for any part of that State. (emphasis added)
Conversely, assisting an allied government in their fight against internationally branded terrorists or transnational organized crime groups would not deprive the people of the requesting state from exercising “their right to self-determination and freedom and independence” through forcible action.
This moreover, and happily for the purposes of this book review, brings us full circle and reinforces Chiara’s overall message. The legal framework regulating foreign armed interventions in internal conflicts has indeed been fundamentally affected by the human rights paradigm. But re-establishing the principal role for the people’s right to self-determination in this context – as an “essential prerequisite for the existence of individual human rights” (Thürer and Burri, § 10) – and fleshing out at what point internal strife qualifies as an exercise of internal self-determination requires more scholarly attention.
Chiara deserves all the praise coming to her for writing such an accessible, comprehensive and well-researched tome on Intervention in Civil Wars. The book does not shy away from taking strong positions on perennial discussions among international lawyers and develops a sophisticated argument that nicely ties together her research conclusions. It will become mandatory reading for all international lawyers trying to wrap their heads around this complex topic. But do not take my word for it. Buy and read her book, you will not regret it!