Course: Law of W ar and

Neutrality
⚫Course Leader: Abdurahman H.
Ismail (LLB,B.Sc, B.L, LLM, and PhD
Cand…)
⚫Venue: Linclon University , Boroma
Campus
⚫Class: LLM & M A students
Aid to the authorities of a
state (Session 3)
⚫ It would appear that in general outside aid to the
government authorities to repress a revolt is
perfectly legitimate, provided, of course, it was
requested by the government. The problem of
defining the governmental authority entitled to
request assistance was raised in the Grenada
episode.
⚫ Inthatsituation, the appeal for US
intervention
the was allegedly made by
Governor-General of the island, but
the
controversy exists as to whether this in fact did
take place prior to the invasion and whether the
Governor-General was the requisite authority to
issue such an appeal.
Cont…
⚫ The issue resurfaced in a rather different form
regarding the Panama invasion of December 1989.
One of the legal principles identified by the US
Department of State as the basis for the US action
was that of assistance to the ‘lawful and
democratically elected government in Panama’.
⚫ The problem with this was that this particular
government had been prevented by General Noriega
from actually taking office and the issue raised was
therefore whether an elected head of state who is
prevented from ever acting as such may be regarded
as a governmental authority capable of requesting
assistance including armed force from another state.
Cont…
⚫ This in fact runs counter to the test of acceptance in
international law of governmental authority, which is
firmly based upon effective control rather than
upon the nature of the regime, whether democratic,
socialist or otherwise. The general proposition,
however, that aid to recognised governmental
authorities is legitimate, would be further
reinforced where it could be shown that other states
were encouraging or directing the subversive
operations of the rebels.
⚫ In such cases, it appears that the doctrine of
collective self-defence would allow other states to
intervene openly and lawfully on the side of the
government authorities.
Cont…
⚫ Some writers have suggested that the
traditional rule of permitting third-party
assistance to governments would not extend
to aid where the outcome of the
has become uncertain or where
struggle
rebellion has become the
seriously
widespread aimed at an
government.
overthrowing d
th
⚫ While this may be politically desirable for
the third state, it may put at serious riske
entirely deserving governments.
Cont…
⚫ Practice, however, does suggest that many
forms of aid, such as economic, technical
and arms provision arrangements, to
existing governments faced with civil strife,
are acceptable.
⚫ There is an argument, on the other hand,
for suggesting that substantial assistance to
a government clearly in the throes of
collapse might be questionable as
intervention in a domestic situation that is
on the point of resolution, but there are
considerable definitional problems here.
Aid to
rebels
⚫The reverse side of the proposition is
that aid to rebels is contrary to
international law. The 1970
Declaration on Principles of
International
⚫Law emphasised that:
[n]o state shall organise, assist, foment,
finance, incite or tolerate subversive, terrorist
or armed activities directed towards the
violent overthrow of the regime of another
state, or interfere in civil strife in another
state.
Cont…
⚫ The Declaration also provided that:
e.very state shall refrain from any action aimed at the
partial or total disruption of the national unity and
territorial integrity of any other state or country.
⚫ In the Nicaragua case, the Court declared that the
principle of non intervention prohibits a state ‘to
intervene, directly or indirectly, with or without
armed force, in support of an internal opposition in
another state’ and went on to say that acts which
breach the principle of nonintervention ‘will also, if
they directly or indirectly involve the use of force,
constitute a breach of the principle of the non-use
of force in international relations’.
The situation in the Democratic
Republic of the Congo
⚫ The situation in the Democratic Republic of
the Congo in 1999 and after, with
intervention against the government by
Uganda and Rwanda (seeking initially to act
against rebel movements operating against
them from Congolese territory and then
assisting rebels against the Congo
government) and on behalf of the
government by a number of states, including
Zimbabwe, Angola and Namibia, is
instructive.
 Cont…
⚫ Inresolution (1999), the Security
recalled
1234 the inherent right of individual and collective
Council
self-defence in accordance with article 51 and
reaffirmed the need for all states to refrain from
interfering in the internal affairs of other states. It
called upon states to bring to an end the presence of
uninvited forces of foreign states.
⚫ The Council in resolution 1291 (1999) called for the
orderly withdrawal of all foreign forces from the
Congo in accordance with the Lusaka Ceasefire
Agreement.
Cont…
⚫ The situation demonstrates the UN approach,
reflecting international law, to the effect that
while aid by foreign states to the
government was acceptable, aid to rebels
by foreign states was not.
⚫ Side by side with this, the UN did recognise the
problem posed by foreign militias based in the
eastern region of the Democratic Republic of the
Congo (particularly the Rwanda Interahamwe
who had been involved in the 1994 genocide and
the Ugandan Lord’s Resistance Army) and called
for them to be disarmed.
Humanitarian
intervention
⚫ This section concerns the question as to whether
there can be said to be a right of humanitarian
intervention by individual states. The issue of
intervention by the UN in situations of
humanitarian need and as a consequence of
Security Council action is covered in the next
chapter.
⚫ It has sometimes been argued that intervention in
order to protect the lives of persons
situated within a particular state and not
necessarily nationals of the intervening state is
permissible in strictly defined situations.
Cont…
⚫ This has some support in pre-Charter law
and it may very well have been the case that in
the nineteenth century such intervention was
accepted under international law. However, it is
difficult to reconcile today with article 2(4)
of the Charter unless one either adopts a
rather artificial definition of the ‘territorial
integrity’ criterion in order to permit
temporary violations or posits the establishment
of the right in customary law.
⚫ Practice has also been in general unfavourable to
the concept, primarily because it might be
used to justify interventions by more forceful
states into the territories of weaker states.
Cont…
⚫ Nevertheless, it is not inconceivable that in
some situations the international community
might refrain from adopting a
condemnatory stand where large numbers
of lives have been saved in circumstances
of gross oppression by a state of its
citizens due to an outside intervention.
⚫ In addition, it is possible that such a right
might evolve in cases of extreme
humanitarian need.
Cont…
⚫ One argument used to justify the use of Western
troops to secure a safe haven in northern Iraq
after the Gulf War was that it was taken in
pursuance of the customary international law
principle of humanitarian intervention in an
extreme situation.
⚫ Security Council resolution 688 (1991)
condemned the widespread repression by Iraq of
its Kurd and Shia populations and, citing this, the
US, UK and France proclaimed ‘no-fly zones’ in
the north and south of the country. There was
no express authorisation from the UN .
Cont…
⚫ The Security Council by twelve votes to three
rejected a resolution condemning NATO’s use of
force. After the conflict, and after an agreement
had been reached between NATO and Yugoslavia,
the Council adopted resolution 1244 (1999)
which welcomed the withdrawal of Yugoslav
forces from the territory and decided upon the
deployment under UN auspices of international
civil and military presences.
⚫ Member states and international organisations
were, in particular, authorised to establish the
international security presence and the resolution
laid down the main responsibilities of the civil
presence.
Cont…
⚫ There was no formal endorsement of the
N ATO action, but no condemnation. It
can be concluded that the doctrine of
humanitarian intervention in a crisis
situation was invoked and not condemned
by the UN, but it received meagre
support.
⚫ It is not possible to characterise the legal
situation as going beyond this. One variant
of the principle of humanitarian
intervention is the contention that
intervention in order to restore democracy
is permitted as such under international
law.
Cont…
⚫ One of the grounds given for the US intervention
in Panama in December 1989 was the
restoration of democracy, but apart from the
problems of defining democracy, such a
proposition is not acceptable in international law
in view of the clear provisions of the UN
Charter.
⚫ Nor is there anything to suggest that even if the
principle of self-determination could be
interpreted as applying beyond the strict colonial
context to cover ‘democracy’, it could constitute
a norm superior to that of non-intervention.
Cont…
⚫ More there has been
consideration
recently, of the ‘responsibility to protect’
extensive
as a composite concept comprising the
responsibilities to prevent catastrophic situations,
to react immediately when they do occur and to
rebuild afterwards.
⚫ Such an approach may be seen as an effort to
redefine the principle of humanitarian
intervention in a way that seeks to minimise the
motives of the intervening powers and there
is no doubt that it reflects an important trend
in international society and one that is
influential, particularly in the context of UN
action.
Cont…
⚫ Such responsibilities are deemed to fall both
upon states and the international
communityinclude
notably and the to
reconstruction
commitment after intervention
or involvement. initia
l
⚫ As they have been broadly and flexibily proposed,
emphasising, for example, the obligation of
states to protect human rights on their
territory and the primary focus upon the UN
with regard to any military action, the sharp
edges of the humanitarian intervention doctrine
have been blunted, but it remains to be seen
how influential this approach may be.