Understanding International Law

Introduction

International law is a set of agreements, rules and treaties that bind states for the sake of peace, justice, trade and common interests. The three categories of international law are private international law, public international law and supranational law. In the above categories, public international law is the most established as it refers to rules, laws and principles of general application that is concerned with the conduct of states and international organisations. Generally international law is to be found in conventions, treaties, agreements, declarations, customs and other sources. In particular, the United Nations (UN) Charter puts forward the fundamental principles of modern public international law including the limitation of the right to use force against other states, promotion of human rights and the strict prohibition on the acquisition of territory by force. Following the above, this paper will majorly focus on the areas of prohibition of use of force, humanitarian intervention, the right to protect and a discussion of the Sierra Leone interventions. There is a lot of confusion in the area of use of force by states including military interventions. In light of the current wars in Syria, Yemen, Libya and previous wars in Afghanistan, Iraq and Ukraine, it is important to dissect the above principles of international law in an attempt to provide a sober perspective.

Prohibition of the use of force in international law

For decades, war was a policy and the norm in many countries and territories. Ancient empires like Roman, Egyptian, Sumerian, Babylonia, Persian and Assyria waged war as a way of defending themselves, acquiring more territories or settling scores. In the 1600s Europe was beleaguered by a series of wars. It was not until 1648 that the Treaty of Westphalia was signed and European states agreed to stop devastating long wars. Since the Peace of Westphalia, the world has seen a number of treaties and conventions signed to limit the ability of states to use force against another state. The Hague Peace Conference of 1899 and 1907 made rules of warfare otherwise known as jus in bello. A further attempt to limit hostilities in favour of conciliation was evidenced by the Bran Treaties between the United States and other states. After World War I, the League of Nations Covenant of 1919 made restrictions on the right to wage war by requiring states to first submit disputes to arbitration, inquiry or to the Council of the League of Nations. The Briand-Kellog Pact of 1928 was a game changer since it outlawed the right to wage war subject to the right of self-defence.

More importantly, the United Nations Charter of 1945 expressly prohibits the use of force “the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with purposes of the UN.” The prohibition on the use of force is now been considered as a general principle of international law given that nearly all countries are signatories to the UN Charter. To effect that ban, the UN has the right and obligation to resort to coercive measures against members states that derogate it. There is further obligation by states to resort to peaceful means for resolution of disputes including mediation, conciliation, arbitration and negotiation. However, the Charter is clear on its non-intervention policy in domestic affairs of a sovereign state even if it involves use of force on its own civilians. In support of provisions of the UN Charter, the General Assembly in the 1980s adopted several resolutions to promote the acceptance of the prohibition of use of force. In particular, the General Assembly passed the following: ‘Manila Declaration on Peaceful Settlement of Disputes,’ the ‘Declaration on the Prevention and Removal of Disputes and Situations which may Threaten International Peace and Security and the role of the UN in this Field,’ and the ‘Declaration on Enhancement of the Effectiveness of the Principle of Refraining from Threat or Use of Force in International Relations.’ The interpretation of Article 2(4) on the prohibition of the use of force has been an elusive topic on the international arena. There has been a back and forth debate without a conclusive interpretation of the four corners of the use of force and restrictions on self-defence as an exception to the rule. Some scholars have gone as far as arguing that the prohibition of use of force extends to political and economic coercion. Under the UN Charter, the use of force in self-defence and use of force by authorisation of the Security Council are the only recognised exemptions to the general rule in Article 2(4). In essence Article 51 of UN Charter recognises the right of member states, acting individually or collectively, to declare war against the aggressor. It further allows a member state to take military action against the aggressor until the Security Council takes steps necessary to preserve international peace and security. The meaning of prohibition of use of force today is narrower than it was perceived by the United States, Israel and the United Kingdom in the 20th Century. It was not until 1986 that the International Court of Justice deliberated on the boundaries of the right to self-defence in the Nicaragua case. The ICJ held that the US had violated international law, and in particular prohibition of the use force, when they supported the Contras in their rebellion against the Sandinistas and by mining Nicaragua’s borders.

In DRC Congo v Uganda, the ICJ held that Uganda had by engaging in military activities against the Democratic Republic of Congo in the latter’s territory violated the principle of international law against the use of force. The court rejected Uganda’s claim of self-defence just as it did in the Nicaragua case for the US. Both cases point to a trend of a narrower interpretation of Article 2(4). These and other ICJ decisions raise pertinent issues like the degree of force prescribed to be used, what happens when the aggression is by transnational non-state armed attacks? The US bombings of Islamic State (ISIS) in Syria and their arming and support of the Kurdish forces appears to be in violation principles of international law on use of force and non-intervention. More controversial, is the issue of a member state like Syria inviting another like Russia to use force in the former’s territory, just like Libya and Turkey. Is the use of force upon invitation a violation of international law? Perhaps not. Be it as it may, the Security Council has on a few occasions exercised its world police power, a second exception to use of force under the Charter, to reign errant member states. For instance, in 2011the Security Council passed a resolution authorising the use of force to protect civilian population in Libya and before that it had authorised States to take all necessary means to restore peace after Iraq invasion of Kuwait in 1990.

Humanitarian Intervention

In the 1970s, India intervened by use of force in Bangladesh, Tanzania in Uganda and Vietnam in Cambodia on the basis of protecting civilian population. Although the above interventions do not provide the best example for humanitarian intervention, they at least give an idea what it could be. Humanitarian intervention has been a grey area in international law and continues to be elusive as each day passes. There is in fact no express provisions under international law that underpins this term. It is simply a term that has developed in relation to the international principle on the use of force. Initially, it was used in reference to situations where States had to rescue their citizens from another territorial state that was unwilling to comply. Lately, the term has evolved to refer to ‘forceful interventions by a third State or States to save people from their own Government action or inaction.’ From the above definition, it is clear that the concept of humanitarian intervention is problematic considering that goes against the non-intervention principle in the UN Charter and further violates the sovereignty of a member state. The justification for this kind of intervention is a humanitarian crisis or human rights violations of such magnitude that is likely to pose a threat to international peace and security. Another argument is that large scale human rights violations constitute crimes against humanity in accordance with Rome Statute and UN Resolution hence the international community can intervention subject to Security Council resolutions and authorisation. However, the problem is which criteria is to be used in determining whether there has been gross violation of human rights that warrants intervention of the international community. There is indeed no defined threshold concerning the above concept and neither is there a general consensus amongst commentators. Some scholars have argued that a State can intervene in another State’ affairs without Security Council’s authorisation where there is gross violation of human rights amounting to crimes against humanity, all other remedies have been exhausted and the government of the state concerned is either unwilling or unable to stem the problem. On 20th September 1999, the then Secretary General of the United Nations presented his annual report to the General Assembly and stated thus:

“If, in those dark days and hours leading up to the genocide [in Rwanda], a coalition of states had been prepared to act in defence of the Tutsi population, but did not receive prompt Council authorization, should such a coalition have stood aside and allowed the horror to unfold?”

The above statement echoes the contradiction between the need to protect human rights and the idea of non-intervention and non-interference in domestic affairs of sovereign states. Following the conflict in Kosovo, the North Atlantic Treaty Organisation (NATO) was at the forefront of the humanitarian efforts to alleviate the suffering of refugees compelled to flee Kosovo after the Serbian ethnic cleansing campaign. NATO’s involvement in the conflict was limited to bombing campaigns that were aimed at helping civilians flee ethnic persecution. The international organisation’s actions were subsequently castigated for being illegal and committing human rights violations. Notably, the Report of Independent International Committee on Kosovo concluded that the NATO intervention was illegal but legitimate. It explained that the military operations were illegal because they were not sanctioned by the UN Security Council and they were legitimate because all available diplomatic avenues had been exhausted and there was no other means of resolving the situation at the time. Several commentators have castigated the actions of NATO in the conflict but an equal number has supported their actions on the basis of humanitarian intervention. In essence, NATO used force against the regime in Kosovo to stop the violence. According to Article 5 of its Treaty, NATO was basically acting in self-defence of its member state that had been attacked, however, no should orchestrate military response of the Charter without authorisation of the UN Security Council. In light of Legal Positivist approach and customary rules and treaties, NATO action was undoubtedly unlawful despite the necessity. The handling of the Kosovo situation is a controversial area that does less to support the principle of humanitarian intervention. Relatedly, the situation in Libya in 2011 prompted the UNSC to adopt Resolution (1970) in accordance with Chapter VII of the Charter. The resolution required the government forces to respect human rights, immediately cease violence in the state and further allow for international human rights monitors. A further resolution was issued in the same year imposing a no-fly zone and demanding an end to violence against civilians. Pursuant to Resolution 1973, members of the UN and NATO authorised military action against forces and mercenaries loyal to President Muamar Gaddafi. Unlike the situation in Kosovo, the UNSC resolutions passed in support of military actions in Libya were never vetoed. It follows that the UNSC made steps to protect civilians from human rights abuses and maintain international peace. Clearly, almost all the steps taken by the international community appear to have been in conformity with the interpretation of treaties, customary international law, and secondary rules. Therefore, the humanitarian intervention in Libya was legal, at least in the sphere of international law on the use of force. However, not everything that is legal is right and there is a continuing debate as to whether such intervention was the right move especially in view of the ongoing conflict in the country. The upshot of the foregoing is that humanitarian intervention has developed as a principle of international law besides self-defence and UNSC authorisation. A proper humanitarian intervention must however comply with the requirement of the UNSC authorisation, otherwise it becomes illegal. As a result, from Kosovo to Libya, the UNSC is the only body that should authorise humanitarian intervention measures in strict adherence to its duty to maintain international peace and protect human rights.

The Right to Protect

As seen in the above discussion the major bar to humanitarian intervention is the principle of state sovereignty. The Responsibility to Protect (R2P) was thus created overcome the said barrier. There was a general feeling that humanitarian intervention should supersede state sovereignty in instances of mass atrocity crimes or crimes against humanity. As more cases of states committing gross violation of human rights reached the international community, very little could be done to alleviate the suffering of civilian population in such states. Alex Bellamy (2010) observed thus ‘The international community’s actual record of preventing and halting the mass killing of civilians is staggeringly poor.’ Before the introduction R2P, the principle of humanitarian intervention was plagued indeterminacy caused by the humanitarianism versus sovereignty debate. Therefore, R2P developed as a response to the failure of the principle of humanitarian intervention that had become very controversial in 1990s. It was created to act as a new legal, moral and normative standard for the international community to live by in response to gross human right violations. The doctrine was necessitated by the interventions or lack thereof in states such as DRC, Somalia, Rwanda, Sierra Leone, East-Timor, Uganda, Yugoslavia, Iraq, Kosovo, Haiti and Liberia. Moreover, application of the principle of humanitarian intervention had been found to be selective and disjointed in many regards. Consequently, International Commission on Intervention and State Sovereignty (ICISS) issued a report in 2001 which created the doctrine of R2P. In essence, the R2P entails the concept of human security that requires each state to protect the security of its population and when it’s unwilling or unable to do so then the international community can intervene to protect the population from gross human rights violations. According to the ICISS report, the doctrine gave the international community the ‘responsibility to react to situations of compelling need for humanitarian protection and in extreme circumstances a resort to use of force.’ Moreover, it went ahead to set out six criteria upon which military intervention would be evaluated: just cause, right authority, reasonable prospects, right intention, last resort and proportional means. If a prospective military intervention passes the above criteria, then it would be considered as a just war. The R2P doctrine is based on three pillars: the first one is responsibility to prevent gross violation of human rights, the second one is the responsibility to react and the third one is responsibility to rebuild. The doctrine has been strengthened by further documents including the2005 World Summit Outcome (WSO) which called upon and emphasised on the need for states to take responsibility for human security. Significantly, the UNSC adopted Resolution 164/2006 which entrenched the notion of R2P in the legal framework of the UN. Since 2006, reports concerning the efficacy of R2P have been presented to the UN General Assembly in 2009, 2010, 2012 and a debate on the same in 2013 and 2014.

It was not long before debates between commentators, scholars and lawyers raged over the efficacy of the doctrine of R2P. In particular, Friberg-Femros and Brommeson (2013) launched a scathing attack on the doctrine arguing that it was largely incoherent since states have an obligation to intervene only in certain cases despite meeting the prescribed criteria. They further argued that there was a fundamental conflict between the implications of R2P and the criteria set by ICISS. At some point, the authors further maintain that because the criteria appears to both permissive and obligatory at the same time, it has implausible implications. Another insightful discussion on the plausibility of the doctrine has been put forward by Fiammetta Borgia who questions whether R2P has reached a level of international customary law. In so doing, the author distinguishes between responsibility of states and responsibility of the international community: the latter is merely a moral responsibility with no recognised legal framework. Additionally, the doctrine is considered unnecessary since it has no superior legal framework just like humanitarian intervention. The apparent lack of legal obligation under international law to intervene there is not much difference between the R2P doctrine and humanitarian intervention. It is also clear that there are several countries opposed to the doctrine and have been hesitant to intervene in the affairs of other sovereign states. Furthermore, there are other measures that can be used by the international community like economic sanctions, political pressure, national and international criminal courts. However, other scholars have responded to this criticism and have subsequently explained that the criteria are not in any way incompatible with the R2P. In Tim Haesebrouck’s response, he notes that the criticism is based on a misconception of how the criteria for acceptable intervention are interpreted in the ICISS report. In support of the efficacy of the R2P doctrine, an analysis of UNSC actions in the last two decades points to a doctrine that may be effective with a few reinforcements. In 2006, the UNSC invoked the R2P doctrine when it called out on Burundi to uphold its obligation to protect its population. In the same year, it made reference to the doctrine with regard to Darfur conflict and the need for protection of civilians in armed conflicts. Resolution 1970 and 1973 on the Libyan conflict addressed the responsibility to protect civilian population in accordance with R2P doctrine. Pursuant to the said resolutions, the UNSC imposed sanctions and embargo on the regime of Muammar Gaddafi and referred the matter to the International Criminal Court.

Another resolution was issued in 2011 on the post-election violence in Cote d’Ivoire, it condemned human rights violations and recalled the primary responsibility of each state to protect its civilian. Subsequently, with Resolution 1996 of 2011, the UNSC established the UN Mission in the Republic of South Sudan (UNMISS) for peace keeping purposes. A similar approach accompanied the resolution, calling for South Sudan to adhere to its primary responsibility in line with R2P. A further resolution was issued 2014 regarding the conflict in South Sudan reiterating the need to avoid gross human rights violations. In short, there is evidence of recent successes of the doctrine despite its many weaknesses highlighted above. More importantly, the doctrine of R2P is now part of international law entrenched in the UN legal framework.

Sierra Leone Intervention

In light of the foregoing discussion on the use of force, humanitarian intervention and the right to protect, it is especially interesting to note that despite the atrocities recorded in Syria the UN has not employed any of the above intervention tools. This concern, perhaps, is the reason for the unending criticism of these concepts as being selectively and disjointedly applied by the UNSC. Having stated that, it is time we took the memory lane back to the period leading to the millennium in Sierra Leone. In 1991 civil war began in Sierra Leone and there were successive coups in the country in the period leading to 1997. After a coup on May 27 1997, the military officers involved invited Revolutionary United Front fighters and they formed the Armed Forces Revolutionary Council (AFRC) to rule Sierra Leone. As a result the Commonwealth, United Nations, Organisation of African Unity, ECOWAS and European Unity condemned the coup d’état. AFRC became a government of armed rebels who unleashed terror on civilians and committed heinous crimes of humanity against the people of Sierra Leone. In 1998 ECOWAS decided to use force to oust AFRC after economic embargoes and diplomatic efforts had failed. Although ECOWAS intervention was not sanctioned by the UNSC, it was commended for driving AFRC out of power and saving civilians from their atrocities. ECOWAS intervention falls under the doctrine of humanitarian intervention and the question is whether it meets the conditional criteria for a lawful humanitarian intervention. Lee Berger (2000) applies the five criteria approach used by ‘Conditionalists’ in examination of validity of humanitarian intervention under international law. First the AFRC committed large-scale atrocities against civilians including murder, torture, rape, mutilation rape and forced labour. Secondly, ECOWAS’s primary concern was purely humanitarian when it intervened in Sierra Leone. Third, ECOWAS intervention was a regional joint action of West African states after the UN failed to take serious action. Fourth, ECOWAS intervention was limited I magnitude and duration and it did not exceed its mandate or removing AFRC. Finally, ECOWAS had exhausted all available peaceful remedies before it resorted to military intervention. The upshot of the above is that ECOWAS intervention in Sierra Leone was justified according to the requirements of humanitarian intervention doctrine. Moreover, the UNSC had failed Sierra Leone by exhibiting an apparent disinterest in the use of humanitarian intervention, especially in Africa. Undoubtedly, there are two sides to every story and the ECOWAS intervention is not different. Some scholars and commentators have criticised the move stating that the conflict was domestic affair and ECOWAS was a violation of state sovereignty hence illegal. However, the argument becomes defeatist when the same people castigate the international community for failing to act. After the military intervention of ECOWAS in 1998, the UN also joined hands and began a peacekeeping mission in the country. Unfortunately, widespread violence continued necessitating British Military intervention. British Intervention just like the ECOWAS one was unilateral and was never sanctioned by the UNSC and commentators have argued that such a trend belittles the UN and trashes state sovereignty. Just like NATO intervention in Kosovo, the British intervention can be categorised as one that was necessary and legitimate but illegal despite the primary concern being human security. Despite the shortcomings of the intervention it can be attributed to the apparent awakening of the UNSC to the plight of civilian populations in Africa under atrocious regimes. This is because it took only a year after the intervention and the ICISS came up with the principle of R2P and the doctrine was subsequently invoked in African countries like Sudan, Burundi, South Sudan and Libya. Therefore, the successful intervention in Sierra Leone remains an important mark on the topic of military intervention for humanitarian purposes. Almost 19 years after that humanitarian intervention, the concept of humanitarian intervention remains an elusive topic in the international arena and R2P despite its success is not very clear.

Conclusion

In a nutshell, the prohibition of use of force is a wide area with more questions than answers. It begins with a general rule under Article 2(4) followed exceptions under Article 51 and Chapter VII of the UN Charter and it doesn’t end thereafter. In the first place the prohibition of the use of force is a useful concept that has largely fostered international peace since WWII except for isolated cases of disregard by some countries like the United States, Russia and the United Kingdom. However, even in the instances when such countries have violated the prohibition of the use of force their justification are almost always on the grounds of self-defence, humanitarian intervention or the right to protect. While events like NATO intervention in Kosovo has been castigated for being illegal, the same organisation has been lauded for the intervention in Libya. The merits of humanitarian interventions to protect as subject to long and winded debates but it is clear that the former was legitimate but illegal while the latter was both legal and legitimate. Clearly, the doctrines of humanitarian intervention and R2P are important in light of the ongoing human rights violations in Pakistan, Syria, Myanmar, Iraq and other countries. Civilian populations need to be protected from gross human violations in spite of state sovereignty. More importantly, the international community should develop and uphold these doctrines for the sake of humanity and to avoid abuse of the same for ulterior motives.

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