15 Jul Intervention in Civil Wars and the Dangers of Legitimacy
[Chiara Redaelli is a Research Fellow at the Geneva Academy of International Humanitarian Law and Human Rights and a Visiting Professor at the Faculté Libre de Droit, Université Catholique de Lille.]
I would like to begin by thanking Opinio Juris, its editors, and in particular Alonso Gurmendi and Jessica Dorsey for organising and hosting this symposium. I would also like to express my gratitude to John Hursh, Brad Roth, Luca Ferro, Erin Pobjie, Laura Iñigo, and Alonso Gurmendi for their insightful contributions. There is probably nothing better for an author than seeing friends and colleagues read and engage with her own work.
Since the adoption of the Charter of the United Nations (UN), interventions in civil wars have turned into a common practice and the relevance as to when (if ever) such forcible interferences are lawful has increased accordingly. The objective of my book is to investigate the extent to which traditional international law regulating foreign interventions in internal conflicts has been affected by the human rights paradigm. While at first sight it might seem that state practice has developed in a chaotic fashion, hence making it nearly impossible to discern the current legal framework regulating these instances, at a closer look patters emerge. Notably, the analysis conducted in my book has identified that, while the effectiveness doctrine no longer reflects the current legal framework, legitimacy is emerging as a possible alternative with regard to interventions in favour of governments and rebels alike. Specifically, the pattern suggests that human rights are being used as a parameter of legitimacy.
As highlighted by the contributions to this symposium, discussions on foreign interventions trigger crucial questions on a broader spectrum of related conundrums: the relationship between sovereignty and human rights, the juxtaposition of effectiveness and legitimacy, and the question of self-determination and intervention. The comments raised so many interesting points that it would not be possible to serve them justice here. I will address them thematically, tackling the main points and looking forward to continuing the discussion beyond this symposium.
Human Rights as Parameter of Legitimacy: The Humanization of Jus ad Bellum
Over the past decades, numerous states have invoked the governmental consent to justify their military interferences. It is widely accepted that a state can use force in another country with its consent, provided that the invitation meets certain criteria. This is confirmed by Article 20 of the ILC Draft Articles on State Responsibility. Nevertheless, during internal conflicts the question is highly debatable: are military intervention in internal conflicts lawful? And, in case of positive answer, under what circumstances? This uncertainty should not come as a surprise: a rebellion is essentially a situation where a group of people challenges the authority of the government by forcible means. It is therefore intuitive that this instance poses pivotal challenges to forcible interventions upon invitation. Is an intervention lawful? Who has the authority to express consent to an intervention? What are the criteria to identify the organ capable to speak on behalf of the state?
These and related questions have gripped scholarship and practice for years. Interestingly, while we might be tempted to consider them newly emerged challenges, an historical investigation shows that similar concerns have interested legal scholars for centuries and highlights that over the centuries we have assisted to a constant shift from legitimacy to effectiveness and back.
In the Middle Ages, sovereign authority was legitimized by God’s investiture: although legibus soluto within his own country, the king had to abide to the laws of God, which served as basis of his authority. Nevertheless, in the sixteenth century authors such as Grotius, Pufendorf, and Vattel started questioning the idea of divine legitimacy; their scepticism led them to propound effectiveness as a viable alternative to legitimacy: ‘in a time when legitimacy derived from God, preferences for de facto control over a territory and population represented a clear stand against any forms of divine and dynastic legitimacy’ (p. 252). With the American and French Revolution, the terms of the debate shifted towards legitimacy: as governments derived their power from the will of the people, popular sovereignty was established as a criterion to identify the legitimate authority. Nevertyheless, in the early twentieth century, arbitral decisions such as the Dreyfus (1901) and the Tinoco Concessions (1923) determined a new shift from legitimacy to effectiveness: ‘an effective government ought to be considered as the authority representing the state, regardless of the means used to gain power’ (p. 253). Accordingly, when the United Nations (UN) Charter was adopted, effectiveness was the default criterion to identify the government.
The emergence of human rights and the ensuing humanization of international law have determined, yet again, a crucial shift from effectiveness to legitimacy. To be sure, the role of the human rights paradigm in reshaping and influencing international law is not limited to jus ad bellum. As I have argued elsewhere, other branches of international law, such as international criminal law and international humanitarian law, have been reshaped in light of human rights. Interventions in internal conflicts have not been immune to this process. Accordingly, over the past years we have witnessed a new shift from effectiveness to legitimacy, whereby human rights have emerged as a parameter of legitimacy. It should be noted that, in my view, this is a new trend and has not attained the status of customary law yet. We are currently witnessing a moment of transition whereby the effectiveness criterion is gradually replaced by the legitimacy one, but where state practice and opinion juris do not appear sufficiently uniform and widespread to conclude that a new customary rule has emerged. We find ourselves, therefore, in the domain of lege ferenda.
My book demonstrates that the way in which the human rights paradigm has affected interventions in civil wars rests on a twofold structure. First, democratic governments – i.e. elected through free and fair elections – tend to be recognized as legitimate governments capable to speak on behalf of the state even if they are not effective, and even if another organ is currently exercising effective control over territory and population. Conversely, undemocratic governments – i.e. governments that have reached power through coups d’état et similia – are recognized as de jure governments if there is no democratic alternative. Lastly, governments that engage in gross and systematic violations of human rights and humanitarian law against their own population may lose legitimacy, although state practice shows that this does not necessarily entail a loss of consent power.
Second, opposition groups fighting against illegitimate governments may be recognized as legitimate representative of peoples. In this case
[T]he recognition was grounded on the reasons why they were fighting – rebellion against an illegitimate government – and framed in terms of human rights – the government forfeits its legitimacy due to the commission of gross and systematic violations of human rights and humanitarian law against its own population. (p. 257)
Having demonstrated that human rights have emerged as parameter of legitimacy for governments and rebels alike is not the end of the story. On the contrary – and as highlighted in several comments to the book – this conclusion triggers a number of questions and concerns.
The Dangers of Legitimacy
The idea that the sovereign power should be justified is not new. From God’s will to democratic elections, from being the member of a specific family to respecting the right to self-determination of its own people, the parameters of legitimacy have changed dramatically over the centuries. Nevertheless, they have a crucial feature in common: they often reflect the ethos of at least part of a community – be it a citizenry or the international community of states.
As the individual has been increasingly at the centre of international law, so have human rights. It is against this backdrop that my book has shown to what extent the human rights paradigm has affected interventions in internal conflicts. Nevertheless, there is always a certain degree of relativity inherent in any discussion on who is legitimate, and why. This bears a crucial challenge, which has been correctly highlighted by Brad Roth:
[I]nternational 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.
International law is indeed ultimately a compromise aimed at reconciling different values. While it would certainly be easier if the international community as a whole shared the same ethos, the importance of having different views should not be underestimated. After all, we have no guarantee that having a single, shared scale of values would prevent wars or better serve humanity. This risk has been highlighted by Roth, when he writes that: ‘unilateral implementation of purported universal principles lies in the hands of untrusted – and, it is fair to say, untrustworthy – implementers.’
Nevertheless, albeit the fact that international law aims at maintaining peace between actors that hold dramatically different views and objectives, it might be inevitable that some values will prevail over others, while the plurality of views might help counterbalancing the supremacy of certain values. The brief historical overview presented above might serve as an example in this regard. For instance, in the Middle Ages God was considered the source of power, while during the French and American revolutions the popular will gained momentum. As human rights have emerged as parameter of legitimacy, we may therefore wonder whether we should welcome this development or whether we should have a more cautious approach. Perhaps the best view would be to conclude that in medio stat virtus (virtue lies in the middle). On the one hand, as noted by Pobjie, the humanization of international law in general, and of interventions in civil wars in particular, could be regarded as a positive development, whereby the individual is finally at the centre of international law and its protection is regarded as a value per se. On the other hand, we should be cautious and vigilant when embracing a humanized international law, especially as long as there is a concrete ‘risk that States would use justice and human rights in an instrumentalized fashion either disingenuously or at least without careful consideration as to the values that deserve to be protected.’
Who Killed the Negative Equality Doctrine? Should We Get It Back?
Having highlighted the risks of legitimacy, which are probably inevitable, we may wonder what should and could be done to counterbalance these perils. It might be argued that the ideal solution would be bringing back the negative equality doctrine. According to this approach, interventions in civil wars are never lawful, inasmuch as they violate the principle of non-intervention and the right to self-determination of people. The only exception would be counter-intervention, namely the right of the incumbent government to lawfully ask for foreign help to quell the rebellion, in case a foreign country has intervened in favour of the opposition group.
In my book I have identified a number of issues raised by the negative equality approach (pp. 92-96). First, the very concept of civil war is not a legal term, and no agreed definition exists in international law, although the Institut de Droit International offered a definition in its 1975 Resolution. Second, not every internal conflict is fought in the exercise of the right to self-determination. Furthermore, state practice and opinion juris do not consistently support the existence of a duty to abstain from intervening in civil wars. Lastly, we should not forget that the International Court of Justice in the Nicaragua case has suggested that interventions upon invitation of the government are lawful:
It is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition. This would permit any State to intervene at any moment in the internal affairs of another State, whether at the request of the government or at the request of its opposition. Such a situation does not in the Court’s view correspond to the present state of international law. [§246, emphasis added.]
While the negative equality approach does not seem to be lege lata, I would argue that this is an unfortunate development. As noted by Roth and Ferro, we should not throw the baby out with the bath water: a ‘more robust interpretation of non-intervention norm’ may serve the legal framework we need to counterbalance, or at least to limit, the risks posed by the humanization of intervention in civil wars. How this might happen remains an open question which will require further investigation. While effectiveness might be criticised as endorsing a “might makes right” narrative, doctrines of legitimacy inevitably reflect moral choices that are essentially subjective, such as democracy. To conclude:
While drawing attention to the dangers of this trend, this work has demonstrated that historically jus ad bellum has been characterised by the contraposition and constant swing between effectiveness and legitimacy. There is reason to believe that similar developments will happen in the years to come. (p. 263)