Kazakhstan: Another Intervention by Invitation that Played Out as Expected

[Seyfullah Hasar is a lecturer in international law at Dicle University, Turkey and author of the forthcoming book State Consent to Foreign Military Intervention during Civil Wars, published by Brill]

What started as peaceful protests against a sharp rise in fuel prices in Kazakhstan turned into a violent confrontation between the protestors and security forces. The President, claiming that the situation was taken advantage of by terrorists, including those of foreign origin, asked for military assistance from the Collective Security Treaty Organization (CSTO), a security alliance consisting of post-Soviet States Armenia, Belarus, Kazakhstan, Kyrgyzstan, Russia and Tajikistan. Upon this appeal, on 6 January 2022 the CSTO Collective Security Council decided to send the CSTO Collective Peacekeeping Forces to Kazakhstan and the mission was announced to be completed starting from 13 January 2022 upon the request of the Kazakh President. Such military interventions by invitation are not an infrequent occurrence in international relations, most recent examples of which being the interventions by Rwanda and Russia in the Central African Republic that started in 2020 and the interventions by the Southern African Development Community and Rwanda in Mozambique that started in 2021.

It is well established in international law that a State in the exercise of its sovereignty can consent to foreign military intervention in its territory through its rightful government. International law scholars, however, have long been divided on whether a government beset by an internal conflict or civil war can request military assistance from other States in order to put down an internal opposition. This is due to the alleged implications of such assistance for the principles such as non-intervention, which safeguards the political independence of States, and self-determination, which entitles the people of a State to determine their own future. As to State practice, as I have shown in my forthcoming book by Brill based on more than 45 post-Cold War incidents of such interventions by invitation, there barely is an instance where the intervention was portrayed by the involved States in a way that can be interpreted as a suppression of a popular opposition group at the request of the government. Intervening States usually put forward claims such as that they intervene to counter terrorism, address a threat to their national security (sometimes with the claim of self-defense) or to the region, counter a prior illegal intervention in the inviting State, assist the inviting State in the exercise of its collective self-defense, rescue nationals or foreigners, maintain law and order, bring stability, protect vital infrastructure, prevent a humanitarian crisis or genocide, protect the democratically elected government, or ensure a secure environment for the elections, or that they are not taking a side in the internal conflict.

The controversy in the literature on the interpretation of the relevant State practice importantly boils down to whether such purposes/objectives relied on by the intervening States are out of policy reasons and thus do not imply opinio juris for the purpose of the identification of a rule of customary international law. (See, for example, here and here.) Those who do not see legal value in those objectives claim the non-existence of any prohibition of intervention in internal conflicts or civil wars, so long as the intervention is requested by the rightful government. My book, in addition to revealing clear opinio juris indicating the unlawfulness of influencing civil wars by force, contends that these objectives are more likely to be also legally pertinent to the primary justification of consent. This is in the sense that the relevant State conduct mired with the mentioned objectives indicates an avoidance on the part of the intervening States to be seen as influencing by force widespread civil conflicts and this behavior is in line with the principle of the political independence of States and the right to self-determination of peoples.

While the right to self-determination is conventionally known to be a right bestowed upon peoples subjected to alien subjugation, domination or exploitation in the context of colonialism, not only these peoples are the addressees of this right. As the Friendly Relations Declaration, among other UN General Assembly resolutions, recognizes, ‘all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development’. Reference to ‘all peoples’ implies that not only colonial peoples, but also the whole population of an already existing independent State is entitled to choose their political status without external interference. This is also understood a contrario from the words of the Supreme Court of Canada in the case of Reference re Secession of Quebec, where the court addressed the internal right to self-determination of the people of Quebec province of Canada, that ‘the reference to “people” does not necessarily mean the entirety of a state’s population. To restrict the definition of the term to the population of existing states would render the granting of a right to self-determination largely duplicative’.

It is from this perspective that the legality of a foreign intervention aimed at propping up a government in an internal conflict severe enough to challenge the authority of the government proves controversial. (See also, for example, here (para. 21-2), here (274-8), here (50-2) and here.) Such a foreign intervention has the effect of preventing the people of the State in question from choosing their own political status ‘without external interference’. The fact that in such a case the government is not coerced, that is the intervention is at its request, is not of value as the right to self-determination pertains to the people of the State, not the government or the State itself. The intervention, however, may avoid falling foul of the principle of self-determination on account of not being aimed at implicating the people’s right to determine their own future, but, for example, aimed at countering terrorism or other criminal activity, or preventing a humanitarian crisis. It is based on this understanding that the above-mentioned practice of presenting various purposes indicating an avoidance to be seen as arbitering an internal conflict relates to the legal principle of self-determination and thus cannot be deemed to be only of political relevance.

Moreover, as also contended by Corten, since practice essentially conforms with theory, especially with the erga omnes principle of self-determination as he argued, one has to prove the emergence of a contradictory practice and opinio juris to argue that there is a definite right for third States to militarily intervene in an internal conflict merely in order to influence it in favor of the government.

The intervention in Kazakhstan was no exception to this practice in the sense that it was depicted by the authorities as anything but a foreign intervention aimed at influencing a purely internal matter. The Chairman of the CSTO Collective Security Council, Prime Minister of the Republic of Armenia, announced that the CSTO decided to intervene ‘In connection with the appeal of the President of the Republic of Kazakhstan Kassym-Jomart Tokayev and in view of the threat to national security and sovereignty of the Republic of Kazakhstan caused, among other things, by aggression from outside’, ‘in order to stabilize and normalize the situation in that country’, ‘in accordance with Article 4 of the Collective Security Treaty’, which stipulates that if a member State is subjected to an armed attack, other member States shall provide the required assistance to that member State at its request in accordance with Article 51 of the UN Charter.

Other official and public statements by the relevant authorities showed that Kazakh government requested the assistance against a ‘terrorist threat’ and ‘an invasion by gangs trained from abroad’. The aim was ‘to put a barrier to terrorists, criminals, looters and other criminal elements’. The mission was exclusively peacekeeping. The main tasks of the peacekeeping forces were ‘the protection of important state and military facilities, assistance to the law enforcement forces of the Republic of Kazakhstan in stabilizing the situation and returning it to the legal field’. Kazakh President defined the situation also as ‘an attempted coup d’état’ and claimed that the military actions against the government were being ‘coordinated from a single center’. He claimed that, using the discontent of the population in several regions, ‘Religious radicals, criminal elements, outlaw bandits, marauders and bullies appeared as if on cue … followed by armed militants’. He also talked against the questioning of the legitimacy of the intervention, arguing that they ‘never used and will never use armed force against peaceful demonstrators’. What further evidenced in this case the avoidance of influencing an internal conflict was that the leaders of Russia, Belarus and Armenia stressed in their phone call that one of the main tasks of the CSTO peacekeeping forces in Kazakhstan was to prevent foreign gangs from entering Kazakhstan, so that the people of Kazakhstan themselves can solve their internal problems on their own.

In sum, according to the official account, what happened in Kazakhstan was a coup attempt organized by terrorist militants of foreign origin, where bandits, criminals or rioters were also involved, rather than a popular uprising, and the CSTO intervention came to counter this external threat to the country, so that the Kazakh people can solve their internal problems on their own. This case as such follows the trend outlined above, the trend of resorting to different purposes/objectives that indicates on the part of the States concerned an avoidance of being seen as involving in an intervention aimed at influencing an internal conflict – an avoidance that has the effect of making an intervention compatible with the principle of political independence of States and of self-determination of peoples. If the official account concerning this intervention were true, therefore, the intervention would not fall foul of the relevant principles of international law. That is, unless invalidated on some other account, such as the request being made under duress for example, requesting assistance in this instance can be deemed a lawful exercise of State sovereignty on the part of Kazakhstan. This is how critical that the objectives/purposes States put forward for interventions by invitation are factually viable. To conclude, the existence of a valid invitation is not enough for the CSTO intervention to be judged as lawful and it is legally important for the Kazakh President to carry through his pledge that ‘In the near future, after the completion of the preliminary investigation, we will present to the world community additional evidence of the preparation and conduct of terrorist aggression against our country’.