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State Consent to Foreign Military Intervention during Civil Wars

State Consent to Foreign Military Intervention during Civil Wars

Author: Seyfullah Hasar
Publisher: Brill Nijhoff
ISBN: 9789004510449
Published In: April 2022
Format: Hardback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

HKD 1,502.90

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Contents

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Examining the legality of foreign military intervention in internal conflicts with the consent of the government, this book gives and analyses a to-the-point account of post-Cold War State practice with more than 45 incidents of such interventions on a scale neglected in current scholarship. Owing to this account, it also manages to engage in peripheral aspects of the subject overlooked in the literature, such as the impact of an ineffective arms embargo on a consensual intervention, or the consequences of the invocation by an intervening State of both consent and its right to self-defence. The book also examines, among others, the issue of the legal legitimacy and recognition of governments, the rules that can considerably constrain the scope of consensual interventions under certain circumstances, and the challenging and under-addressed implications of consensual interventions for the crime of aggression.

Abbreviations

Introduction

Problem

Methodology

Structure

Preliminary Issues

4.1 The Usage of the Term 'Civil War' in Legal Literature

4.1.1 niac s in the Sense of Common Article 3

4.1.2 niac s in the Sense of Protocol ii

4.1.3 Where Does 'Civil War' Fit in the Binary Framework of Geneva Conventions and What Does the Term Imply in the Context of Consensual Interventions?

4.1.4 Determining a Conflict as a Civil War in Practice

4.2 Prohibition of Intervention

4.2.1 Scholarly Efforts to Reveal an International Legal Regime Governing Resort to Force within Civil Wars

'Consent' in the Context of Military Interventions

Introduction: The Right to Consent to Intervention

Is Consent a Secondary Rule or Intrinsic to the Primary Rule Itself?

Consent and the Peremptory Character of the Prohibition of the Use of Force

Treaty-based Prospective Consent

Validity and Limits of Consent

5.1 Consent to Be Given Freely

5.2 Consent to Be Clearly Established and Actually Expressed

5.2.1 Contradictory and Ambiguous Reactions to Intervention

5.2.2 Secret Consent

5.3 Consent to Be Granted by a State Organ Entitled to Do So

5.4 Intervention Within the Limits of Consent

Conclusion

Capacity to Consent Recognition of Governments

Introduction: The Act of Recognition

The Doctrine of Effective Control

2.1 Irrelevancy of Constitutional Law and the Policy of Not According Formal Recognition

2.1.1 Recognition of Guaido as Interim President of Venezuela

2.2 Presumption in Favour of Established Governments During Civil Wars

2.2.1 Continued Recognition of the Assad Government in Syria

2.2.2 Continued Recognition of President Hadi of Yemen and the Derecognition of President Yanukovych of Ukraine

2.2.3 Recognition of the ntc as the Government of Libya

2.3 Illegitimacy of Governments Installed by Foreign Powers

2.4 Unwillingness to Observe International Obligations as a Reason for Non-Recognition

2.5 The Case of Failed States

2.6 The Role of International Recognition

2.7 International Recognition in the Form of Representation in the UN?

The Doctrine of Democratic Legitimacy

3.1 Non-Recognition of Governments Who Rig Elections - Venezuela and Belarus

Conclusion

Consenting to Intervention During Civil Wars Non-Intervention and Self-Determination

Introduction

Principle of Non-Intervention

2.1 The UN General Assembly and Intervention in Civil Wars

2.1.1 The 1949 Draft Declaration on Rights and Duties of States

2.1.2 The 1965 Declaration on the Inadmissibility of Intervention

2.1.3 The 1970 Declaration on Friendly Relations

2.2 The International Court of Justice and Intervention in Civil Wars

2.2.1 The Nicaragua Case

2.2.2 The drc v Uganda Case

Right to Self-Determination

3.1 Civil War as a Way of Exercising the Right to Self-Determination

3.2 Internal Self-Determination and Foreign Intervention Against Secessionist Movements

Conclusion

Other Legal Grounds That Can Limit Consensual Interventions

Introduction

No State Can Transfer More Rights Than It Has Itself

General Rule of State Complicity

3.1 Issues Concerning the Wrongfulness of the Principal Act

3.2 'Aid and Assistance' and the Shifting Responsibility of the Assisting State

3.3 'Knowledge'

Duty to Ensure Respect for International Humanitarian Law

Arms Transfer Treaties

5.1 The Arms Trade Treaty

5.1.1 Undermining Peace and Security

UN Security Council Resolutions

Domestic Law

Conclusion

Contemporary State Practice

Introduction

State Practice

2.1 Russian and cis Intervention in Tajikistan - 1992

2.2 Croatian Intervention in Bosnia and Herzegovina - 1995

2.3 French Intervention in the Comoros Reversing a Coup Backed by Foreign Mercenaries - 1995

2.4 French Interventions in the Central African Republic Against Army Mutinies - 1996

2.5 Senegal and Guinea's Intervention in Guinea-Bissau Against an Army Mutiny - 1998

2.6 Regional Countries' Intervention in the Democratic Republic of the Congo Against Ugandan and Rwandan-Backed Rebels - 1998

2.7 sadc Intervention in Lesotho Against an Army Mutiny - 1998

2.8 Namibian Intervention in Angola Against unita - 1999

2.9 Regional Countries' Interventions Against the Islamic Movement of Uzbekistan - 1999

2.10 The UK's Intervention in Sierra Leone Against the ruf - 2000

2.11 Interventions Against the Lord's Resistance Army - 2002

2.12 French Intervention in C o te d'Ivoire - 2002

2.13 ramsi Intervention in Solomon Islands - 2003

2.14 The US Drone Strikes in Pakistan - 2004

2.15 Multinational Intervention in Timor-Leste - 2006

2.16 French Intervention in Chad - 2006

2.17 New Zealand and Australian Intervention in Tonga in Response to Riots - 2006

2.18 French Intervention in the Central African Republic - 2006

2.19 Ethiopian Intervention in Somalia Against the icu - 2006

2.20 The US Interventions in Somalia Against al-Shabaab, al-Qaeda and isil - 2007

2.21 The au Intervention in the Comoros - 2008

2.22 French Intervention in Chad - 2008

2.23 The US Intervention in Yemen Against aqap and isil - 2009

2.24 Rwandan Intervention in the Democratic Republic of the Congo Against the fdlr - 2009

2.25 The gcc Intervention in Bahrain - 2011

2.26 Kenyan Intervention in Somalia Against al-Shabaab - 2011

2.27 Ethiopian Intervention in Somalia Against al-Shabaab - 2011

2.28 Multinational Intervention in the Central African Republic Against the S e l e ka Coalition - 2012

2.29 French Intervention in Mali - 2013

2.29.1 Operation Barkhane - 2014, and G5 Sahel Joint Force - 2017

2.29.2 European Task Force Takuba's Intervention in the Region - 2020

2.29.3 The US Involvement in the Region - 2013

2.30 Ugandan Intervention in South Sudan - 2013

2.31 Interventions by the US-led coalition, Iran and Russia in Iraq Against isil - 2014

2.31.1 The US's Previous Consent-Based Presence in Iraq - 2009

2.32 The US (and nato ) Interventions in Afghanistan - 2015

2.33 Interventions in Nigeria and Neighbouring Countries Against Boko Haram - 2015

2.34 Egyptian and the US Interventions in Libya Against isil - 2015

2.35 Saudi-led and the US Interventions in Yemen - 2015

2.36 Russian, Iranian and Iraqi Interventions in Syria - 2015

2.37 sadc Intervention in Lesotho - 2017

2.38 French Intervention in Chad Against the Union of Resistance Forces - 2019

2.39 Turkish Intervention in Libya Against the lna - 2020

2.40 Rwandan and Russian Interventions in the Central African Republic - 2020

2.41 sadc and Rwandan Interventions in Mozambique - 2021

Legal Statements by Canada, the UK, France, the drc, the US and Others

Conclusion

Analysis of the State Practice

Introduction

Analysis of the State Practice in the Literature

Analysis of the State Practice

3.1 General

3.2 Counter-Terrorism as a Distinct Legal Concept

3.3 Counter-Intervention and Collective Self-Defence

3.4 Invoking Both 'Consent' and 'Self-Defence'

3.5 Assistance Short of Direct Military Intervention

3.6 The Impact of the UN Arms Embargoes on Consensual Interventions

3.7 The UN Security Council's Role in Enhancing the Legality of Consensual Interventions

3.8 The Impact of Human Rights and Humanitarian Law Violations by the Consenting State on the Legality of the Consensual Interventions

Conclusion

General

Broader Implications: Controversial Nature of Consensual Interventions and the Crime of Aggression

Bibliography

Index

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