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The Use of Force in International Law - A Case-Based Approach edited by Ruys, Tom; Corten, Olivier; Hofer, Alexandra (17th May 2018)

Part 1 The Cold War Era (1945–89), 25 The Soviet Intervention in Afghanistan—1979–80

Georg Nolte, Janina Barkholdt

From: The Use of Force in International Law: A Case-Based Approach

Edited By: Tom Ruys, Olivier Corten, Alexandra Hofer

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 November 2019

Subject(s):
Humanitarian intervention — Applicable law

(p. 297) 25  The Soviet Intervention in Afghanistan—1979–80

I.  Facts and Context

The Soviet intervention in Afghanistan began on 25 December 1979.1 Within a few days about 50,000 Soviet soldiers crossed the border between the Soviet Union and Afghanistan.2 It was the first military intervention by the USSR against a member state of the Non-Aligned Movement. Many observers regarded it as an attempt to force a change of allegiance with dangerous consequences for international peace in the bipolar system.3

Afghanistan had always pursued an independent foreign policy towards Iran, Pakistan, and the Soviet Union. However, after Afghan communists seized power in April 1978, the country began to implement socialist reforms which provoked resistance in the population and which led to a first flow of refugees to Pakistan.4 The new government’s dependence on the Soviet Union grew due to internal instability, which in turn further undermined its legitimacy.5 After infighting within the Afghan Communist party, Hafizullah Amin took power in September 1979. He tried to regain legitimacy by stalling the reform process and cautiously opening Afghanistan to Pakistan and the United States.6

Fearing Amin would ‘do a Sadat’,7 the Soviet Union massively supported the opposition headed by Babrak Karmal and finally moved its troops into Afghanistan on 25 December 1979. Amin died in the night of 27 December 1979 during an attack against his palace.8 The circumstances of his death are not entirely clear. The Soviet Union claimed that Amin (p. 298) fell prey to an internal coup d’état9 while other states claimed that Amin was killed by Soviet troops.10

II.  The Positions of the Main Protagonists and the Reaction of Third States and International Organizations

1.  USSR

The USSR claimed it was defending Afghanistan against an ‘imperialist intervention’11 and alleged that requests to intervene had been ‘frequently’ made by the ‘Afghan Government’ to which it had ‘responded positively’,12 without, however, specifying the circumstances and the author of the purported requests. The Soviet Union further tried to substantiate its justification by ‘taking into account the common interests of both countries in questions of security, as enshrined in the Treaty of Friendship’, signed 5 December 1978.13 According to this treaty the parties ‘shall consult with each other and shall, by agreement, take the necessary steps to ensure the security, independence and integrity of the two countries’.14

The USSR not only relied on the right to collective self-defence15 but also suggested to act in accordance with the right to individual self-defence by stating that ‘it would not allow Afghanistan to be turned into a beach-head for preparations of imperialist aggressions directed against the Soviet Union’16 and that ‘[t]he unceasing armed intervention, the well advanced plot by external forces of reaction created the real threat that Afghanistan would lose its independence and be turned into an imperialist military bridgehead on our southern border’.17

2.  Afghanistan

The new government headed by Karmal issued a statement whereby it claimed that it had ‘asked the USSR for urgent political moral and economic assistance, including military assistance, which the government of the Democratic Republic of Afghanistan had earlier repeatedly requested from the government of the Soviet Union’ and that ‘[t]he government of the Soviet Union ha[d] satisfied the Afghan side’s request’.18 Statements made by the Afghan Foreign Minister during discussions in the UN Security Council further confirmed the USSR’s justification.19

(p. 299) 3.  United Nations

After the Soviet Union vetoed a proposed resolution of the Security Council on the intervention on 7 January 1980, the Security Council called for an emergency session of the General Assembly based on the ‘Uniting for Peace’ resolution.20 The draft resolution submitted to the emergency session condemned the intervention and was sponsored by twenty-four developing countries and supported by many others.21 In total, 104 nations voted in favour of the resolution in which the General Assembly:

strongly deplore[d] the recent armed intervention in Afghanistan which is inconsistent with that principle; [and] Called for the immediate, unconditional and total withdrawal of foreign troops from Afghanistan in order to enable its people to determine their own form of government …22

The resolution was described by one commentator as ‘the worst defeat suffered by the USSR in that forum since the Korean War’.23 The condemnation was reaffirmed annually until Soviet withdrawal in 1988.24

4.  Individual states

Many states denounced the intervention in individual statements.25 In their condemnations, states were critical of the unclear circumstances and questionable authorship of the alleged request for intervention.26 The invocation by the Soviet Union of the Treaty of Friendship was particularly criticized as a mere pretext that was open for manifold abuse in the future.27 Some states explicitly referred to the character of the intervention as a sudden, massive and brutal invasion.28 A few states stated that even if Amin’s government had made a valid request the invitation of foreign troops amounted to a violation of the right of self-determination and was therefore invalid.29

5.  Reactions in other fora

During an extraordinary meeting in January 1980, the Islamic Conference of Foreign Ministers ‘strongly condemned’ the Soviet ‘military aggression’ and called for the ‘immediate and unconditional withdrawal’ of the Soviet forces.30

(p. 300) In 1981, a conference of foreign ministers of the Non-Aligned Countries called ‘for a political settlement on the basis of the withdrawal of foreign troops and full respect for the independence, sovereignty, territorial integrity and non-aligned status of Afghanistan and strict observance of the principle of non-intervention and non-interference’. This position was reiterated in 1983 and 1986 at the New Delhi and Harare Summits of the Heads of States of the Non-Aligned States.31

III.  Questions of Legality

The Soviet Union invoked different grounds as justification of the lawfulness of its intervention: a specific invitation by the Afghan Government (subsection 1); Article 4 of the Treaty of Friendship (subsection 2), the right of collective self-defence (subsection 3), and the right of individual self-defence (subsection 4). The first claim was clearly the most important one.

1.  Intervention by invitation

According to customary international law at the time of the intervention, a request by a state for military intervention could, as a general rule, preclude a violation of the right of self-determination, the principle of non-intervention and the prohibition of the use of force as enshrined in Article 2(4) of the UN Charter and customary international law.32 However, this justification is subject to requirements concerning the author and time of the request as well as the scale of the intervention, which were not met by the Soviet Union’s intervention in Afghanistan.

At the time of the intervention it was controversial whether a request precluding the wrongfulness of a military intervention could be issued by a government that was faced with an internal uprising or whether—due to the principle of self-determination and the principle of non-intervention—a state could only request assistance against an intervention by a foreign power.33 State practice at that time, though, did not indicate that requests issued by internally contested governments could have no justifying effect.34 However, it (p. 301) seems that a government needed to exercise a minimum degree of independent effective control from foreign military forces in order to be able to represent the state for the purpose of issuing a valid invitation.35 Generally, this condition has been interpreted liberally, including in cases in which internationally recognized and formerly internally established governments had lost control over substantial parts of the territory.36

The Soviet Union did not specify the author of the request. The Afghan representative in the Security Council, however, explained on 5 January 1980 that ‘numerous requests’ had been issued by ‘Afghanistan during the last two years’ that were ‘promptly reaffirmed’ by the new government upon taking power on 27 December 1979.37 The first request had allegedly been made during an official visit of President Taraki to Moscow in December 1978 ‘when Amin was also present’ and ‘repeated by the Government of the Democratic Republic of Afghanistan during Amin’s rule’.38

This formulation does not allege a specific request by Amin that was extended before the intervention started. It is also highly unlikely that such a request was actually issued since Amin’s regime was criticized by the intervening State for ‘cruel repressions … against those segments on which the April revolution relied’39 and ‘tyranny’40 and because he was killed two days after the invasion.41 It is noteworthy that, during the Security Council debates, the majority of states did not question Amin’s authority to speak for the state, even though at the time of the intervention Amin seems to have lost effective control over substantial parts of Afghanistan’s territory and population.42

Karmal’s request could also not justify the intervention; Karmal came into office as Head of Government only after the intervention had started.43 An ex post invitation indicates a lack of consent at the time of the intervention44 and suggests that it does not represent a free choice of the government.45 In general, state practice shows that an ex post invitation issued by a government that was installed immediately after the intervention is in general not sufficient grounds to justify an intervention.46

(p. 302) The lawfulness of the intervention was also called into question because of its scale. It was argued that, due to the peremptory character of Article 2(4) of the UN Charter, consent could only justify small-scale police or military operations,47 whereas the intervention and stationing of more than 50,000 soldiers and their direct involvement in a military conflict was not justified.48 Such a distinction cannot, however, be found in customary international law.49

Moreover, according to the principle of non-intervention, an intervention must not lead to the inviting government’s removal from effective control.50 The chronology of events, however, suggests that the Soviet Union removed the Amin regime and installed Karmal as Head of Government and thereby violated the principle of non-intervention.

It was also discussed whether the principle of self-determination could impose limitations on military interventions.51 However, as this right originally developed against the background of decolonization, its content and consequences outside of the colonial context were still contentious at that time.52 Since it is generally the government that represents a people when exercising its right of self-determination, not every intervention at the request of an internally contested government is necessarily a violation of that right.53 In any event, the right to self-determination can only play a role if the armed activities of internal opposition groups are not based on external support.54 In the case of Afghanistan, however, the violent internal opposition was significantly supported by the United States, Pakistan, the People’s Republic of China, Saudi Arabia, and a number of other Islamic states who provided weapons and finances to the opposition groups.55

2.  Article 4 of the Treaty of Friendship between the Soviet Union and Afghanistan

The Soviet Union furthermore relied on Article 4 of the Treaty of Friendship.56 It is not clear, however, whether the USSR relied on the treaty as a separate justification57 or merely as an argument to illustrate the alleged ad hoc, consent of the government.58 It is very doubtful whether the abstract agreement in a treaty as such may justify a military intervention.59 State practice indicates that an abstract agreement cannot substitute ad hoc, (p. 303) consent.60 In addition, the Treaty of Friendship is unclear regarding the question whether it can be relied upon to justify a military intervention. It also explicitly requires a specific agreement regarding the intervention.61 The Soviet Union could therefore not justify the intervention by relying on the Treaty of Friendship.62

3.  Right of collective self-defence

The right of collective self-defence requires an armed attack against a state and a valid request for military support by the attacked state.63 An armed attack can be assumed if a third state militarily and financially supports insurgents within a state’s territory.64 The violent opposition within Afghanistan was supported by foreign powers.65 However, the right to resort to collective self-defence requires a valid request by the attacked state. Such a request was not present for the same reasons that a request for an intervention by invitation was not present.

4.  Right of individual self-defence

Concerning the right of individual self-defence, the Soviet Union failed to substantiate the assertion that an armed attack against the Soviet Union itself had occurred, through Afghanistan.66 The statement of the Soviet Union may be read as claiming that Afghanistan was unable to prevent its territory from being used as the basis of an ‘imperialist attack’.67 However, the Soviet Union failed to substantiate that such an armed attack actually existed or that it was imminent.

IV.  Conclusion: Precedential Value

The reactions by states to the Soviet intervention in Afghanistan confirmed that an intervention based on the consent of the affected state is valid only if certain requirements are met. These requirements mainly concern the authority of the organ that issues the invitation and the circumstances under which the request is made. The reaction of a large majority of states to the Soviet intervention in Afghanistan confirmed the standard that had been formulated in 1956 by the ‘Special Committee of the General Assembly on the Problem of Hungary’:

The act of calling in the forces of a foreign State for the repression of internal disturbances is an act of so serious a character as to justify the expectation that no uncertainty should be allowed to exist regarding the actual presentation of such a request by a duly constituted government.68

(p. 304) Even though the existence of a request by Amin was not accepted, his authority to issue an invitation was not called into question despite his government’s internal weakness.69 The question of the legality of an intervention by a foreign State upon request of an internally weak regime came up again in the 1983 intervention by the United States in Grenada70 and subsequent state practice seems to confirm that internally weak regimes may not only, in general, invite foreign troops, but also that the requirement of effective control has to be interpreted liberally.71 Finally, the ICJ in the Case concerning Armed Activities on the Territory of the Congo accepted Uganda’s invocation of consent issued by the Government of the Democratic Republic of Congo (DRC),72 even though the Court classified the situation in the DRC as a ‘civil war’73 and an ‘armed conflict’.74 However, the question remains to what extent the principle of self-determination may limit the host state’s authority to invite foreign troops.75 Further, the rejection of an ex post invitation issued by a newly installed government after the intervention was in line with hitherto existing state practice76 and was confirmed by subsequent practice.77

The question of the permissible scale of an intervention was also discussed, albeit inconclusively.

As far as the resort to the right of collective self-defence is concerned, both the absence of a reaction to this claim in some critical statements as well as some references to this right in others, suggest that the requirements for an invitation to intervene and that of a request for collective defence are identical regarding the author of the request and regarding their formal and temporal limits.

The Soviet intervention in Afghanistan is one of the first incidents after 1945 in which a state claimed the right to individual self-defence to be exercised in another state whose territory was allegedly used by non-state actors for attacks against its own territory. The claim by the Soviet Union that the Afghan state was too weak to prevent such an attack can be interpreted as a claim of state responsibility based on its inability to effectively prevent armed groups from making armed incursions into neighbouring states. This claim did not receive much attention at the time, the most obvious reason being a blatant lack of evidence.

(p. 305) By establishing the UN Good Offices Mission in Afghanistan and Pakistan (UNGOMAP) in 1988, the UN re-emerged as key actor in the peacekeeping process after a long period of inactivity during the Cold War.78

From a political perspective, the intervention marked the first attempt of the USSR to expand the Breshnev doctrine to an intervention into a member state of the Non-Aligned Movement. By doing so, the Soviet Union lost its ‘nimbus’ to be more ‘progressive’ than the United States with regard to foreign interventions79 and incurred immense costs, which accelerated its economic downturn and contributed to its later disintegration as a state and to the collapse of the socialist bloc.80

Footnotes:

1  Olivier Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Hart 2010) 269; Louise Doswald-Beck, ‘The Legal Validity of Military Intervention by Invitation of the Government’ (1985) 56 British Year Book of International Law 189, 231; Afghanistan (May 1980) 26 Keesing’s Record of World Events 30230; Antonio Tanca, Foreign Armed Intervention in Internal Conflict (Martinus Nijhoff 1993) 32.

2  Georg Nolte, Eingreifen auf Einladung. Zur völkerrechtlichen Zulässigkeit des Einsatzes fremder Truppen im internen Konflikt auf Einladung der Regierung (Springer 1999) 274; Marc Weller, ‘Terminating Armed Intervention in Civil War: The Afghanistan Peace Accords of 1988, 1991 and 1993’ (1994) 5 Finnish Yearbook of International Law 505, 511f.

3  US President Carter, The State of the Union Address Delivered Before a Joint Session of the Congress (23 January 1980) <http://www.presidency.ucsb.edu/ws/?pid=33079> accessed 21 December 2016: ‘the greatest threat to peace since Second World War’; UNSC Verbatim Record (5 January 1980) UN Doc S/PV.2185, 15 [147] (Egypt); UNSC Verbatim Record (6 January 1980) UN Doc S/PV.2187, 9 [98] (Costa Rica); UNSC Verbatim Record (7 January 1980) UN Doc S/PV.2189, 2 [11] (Zambia); ibid 5 [46] (Bangladesh); UNSC Verbatim Record (7 January 1980) UN Doc S/PV.2190, 9 [82] (Chile).

4  Doswald-Beck (n 1) 230.

5  Christopher J Le Mon, ‘Unilateral Intervention by Invitation in Civil Wars: The Effective Control Test Tested’ (2002–2003) 35 New York University Journal of International Law 741, 779; David Ross, ‘Beyond the Soviet Invasion: Afghanistan and the Concept of Self-Determination’ (1990) 48 University of Toronto Faculty of Law Review 92, 99, and 102; Weller (n 2) 510f.

6  Nolte (n 2) 274.

7  David N Gibbs, ‘Afghanistan: The Soviet Invasion in Retrospect’ (2000) 37 International Politics 233, 236.

8  W Michael Reisman and James Silk, ‘Which Law applies to the Afghan Conflict’ (1988) 82 Yale Law School Legal Scholarship Depository 459, 472f; Arthur Mark Weisburd, Use of Force: The Practice of States Since World War II (Pennsylvania State University Press 1997) 45.

9  UN Doc S/PV.2190 (n 3) 12 [112f].

10  UNSC Verbatim Record (5 January 1980) UN Doc S/PV.2186, 12 [95] (Kampuchea); UN Doc S/PV.2187 (n 3) 5 [42] (Singapore), 6 [61] (Spain); Further: Joseph J Collins, ‘The Use of Force in Soviet Foreign Policy: The Case of Afghanistan’ (1983) 3(3) Conflict Quarterly 20, 24; Kwaw Nyakameh-Blay, ‘Intervention in International Law: Grenada and Afghanistan Compared and Contrasted’ (1985) Australian International Law News 6, 8; Reisman and Silk (n 8) 481.

11  UN Doc S/PV.2186 (n 10) 3 [17].

12  ibid 3 [15]–[17].

13  American Society of International Law, ‘Afghanistan-Union of Soviet Socialist Republics: Treaty of Friendship, Good Neighborliness and Cooperation, Done at Moscow December 5, 1978’ (January 1980) 19 (1) International Legal Materials 1–3.

14  ibid.

15  UN Doc S/PV.2186 (n 10) 3 [19]; UN Doc S/PV.2185 (n 3) 3 [17].

16  UN Doc S/PV.2186 (n 10) 3 [15]–[19].

17  ‘General Secretary L. I. Brezhnev in an interview with Pravda on January 13th, 1980’ Special Report Executive Intelligence Review (22–28 January 1980) 32.

18  Appeal by the Government of Afghanistan, Pravda, 29 December 1979 (citing Radio Kabul), translated in 31 Common Digest of Soviet Press, nº 52, 2, quoted in Eyal Benvenisti, The International Law of Occupation (OUP 2012) 178.

19  UN Doc S/PV.2190 (n 3) 10 [89].

20  UNSC Res 462 (9 January 1980) UN Doc S/RES/462(1980); Benvenisti (n 18) 179.

21  Benvenisti (n 18) 179.

22  UNGA Resolution ES-6/2 (14 January 1980) UN Doc A/RES/ES-6/2.

23  Anthony Arnold, Afghanistan: The Soviet Invasion in Perspective (Hoover Press 1985) 115.

24  Benvenisti (n 18) 179.

25  Benvenisti (n 18) 179; Nolte (n 2) 276; Weisburd (n 8) 45; except for socialist states and a few allied states: UN Doc S/PV.2186 (n 10) 10 [70]ff (Bulgaria); ibid 15 [121] (Poland); UN Doc S/PV.2189 (n 3) 4 [32]ff (Mongolia).

26  UN Doc S/PV.2185 (n 3) 8 [76] (Pakistan); UN Doc S/PV.2186 (n 10) 5 [37] (China); ibid 7 [51] (United Kingdom); ibid 14 [114] (Saudi Arabia); 16 [130] (New Zealand); UN Doc S/PV.2187 (n 3) 2 [17] (United States); ibid 5 [42]f (Singapore).

27  UN Doc S/PV.2186 (n 10) 6 [39] (China); UN Doc S/PV.2187 (n 3) 3 [24] (United States).

28  UN Doc S/PV.2186 (n 10) 6 [39] (China); ibid 9 [59] (Colombia); ibid 14 [114] (Saudi Arabia); UN Doc S/PV.2187 (n 3) 3 [23]–[24] (United States).

29  UN Doc S/PV.2186 (n 10), 14 [114] (Saudi Arabia: ‘Those Soviet troops continue to be deployed to quell all resistance to the authority which was installed against the will of the Moslem Afghan people, in whom alone lies the right to self-determination, free from outside interference.’); UN Doc S/PV.2187 (n 3) 9 [96] (Costa Rica); ibid 13 [126] (Liberia); UN Doc S/PV.2189 (n 3) 5 [46]f (Bangladesh).

30  Final Declaration of First Extraordinary Session of the Islamic Conference of Foreign Ministers (Islamabad, 27–29 January 1980) <http://ww1.oic-oci.org/english/conf/fm/All%20Download/frmex1.htm> accessed 21 December 2016.

31  See the reference to the New Delhi Summit 1981 in: Final Documents of 7th Conference of Heads of State or Government of Non-Aligned Countries (New Delhi, 7–12 March 1983) in Letter dated 30 March 1983 from the Permanent Representative of India to the United Nations addressed to the Secretary General (30 March 1983) UN Doc A/38/132 Annex, 36 [114]; ‘Nonaligned Nations seek Pull-out from Afghanistan’ The Washington Post (14 February 1981) <https://www.washingtonpost.com/archive/politics/1981/02/14/nonaligned-nations-seek-pullout-from-afghanistan/4096b3c7-c2f9-4d10-a31c-893abc2decab/?utm_term=.9f7b768375dc> accessed 21 December 2016.

32  Although the interventions in Hungary (1956), in Muscat and Oman (1957), in Jordan (1958), in the Congo (Stanleyville Operation) (1964), Czechoslovakia (1968), and Cambodia (1979) were criticized by the majority of states, the International Law Commission in the ‘Eight Report of the Special Rapporteur Roberto Ago’ (1979) UN Doc A/CN.4/318 and Add.1 to 4, 31–32 [60] held that this was based on the lack of fulfilled requirements and not due to a lack of a justification based on consent as such; see for opinio juris: UNGA RES 3314 (14 December 1974) UN Doc A/RES/3314 (XXIX), Article 3(e); UNSC Res 387 (31 March 1976) UN Doc A/RES/387; this was then confirmed in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits, Judgment) [1986] ICJ Reports 1986 14, 126 [246]: ‘intervention is allowable at the request of the government’.

33  Institut de Droit International, ‘The Principle of Non-Intervention in Civil Wars’ (14 August 1975); Doswald-Beck (n 1) 251; Peter Malanczuk, Akehurst’s Modern Introduction to International Law (Routledge 1997) 325f; Tanca (n 1) 26ff, 36f, 49f.

34  Claus Kreß, ‘Major Post-Westphalian Shifts and some important Neo-Westphalian Hesitations in the State Practice on the Use of Force’ (2014) 1(1) Journal on the Use of Force and International Law 11, 18; Nolte (n 2) 544 and 637 referring to Greece (1946), Sikkim (1949), Nepal (1951 and 1953), Gabon (1964), Chad (1968), Sierra-Leone (1971), Burundi (1972), Lebanon (1976), Liberia (1979).

35  Georg Nolte, ‘Intervention by Invitation’ (2010) Max Planck Encyclopedia of Public International Law [18]; David Wippman, ‘Military Intervention, Regional Organizations, and Host State Consent’ (1996) Duke Journal of Comparative and International Law 209, 211f.

36  Doswald-Beck (n 1) 198f, relying on France in Chad (1979), Cuba’s intervention in Angola (1976); Nolte (n 35) [17f]; Nolte (n 2) 577f referring to the Syrian intervention in Lebanon (1976).

37  UN Doc S/PV.2190 (n 3) 10 [89].

38  UN Doc S/PV.2185 (n 3) 11 [100].

39  General Secretary Brezhnev (n 17) 32.

40  ibid.

41  UN Doc S/PV.2185 (n 3) 8f [76] (Pakistan); UN Doc S/PV.2186 (n 10) 5f [37] (China); ibid 7f [51] (United Kingdom); ibid 14 [114] (Saudi Arabia); ibid 16 [130] (New Zealand); Le Mon (n 5) 779; Nyakameh-Blay (n 10) 14.

42  Doswald-Beck (n 1) 198f relying on a survey made by Le Monde and Keesing’s, specifically Afghanistan, ‘Intensification of Warfare between Government Forces and Moslem Rebels -Government Changes—Alleged Involvement of Foreign Powers’ (October 1979) 25 Keesing’s Records of World Events 29878; see also Henry S Bradsher, Afghanistan and the Soviet Union (Duke University Press 1985) 123f who claims the that the ‘Soviets were running’ the regime as the civilian ministries and the armed forces were largely infiltrated by Soviet officials; Reisman and Silk (n 8) 470f.

43  Bradsher (n 42) 180f; Keesing’s (n 1) 30232; Nyakameh-Blay (n 10) 14.

44  Compare International Law Commission (n 32) 37 [72].

45  Institut de Droit International, Report of the 10th Commission on ‘Present Problems of the Use of Force in International Law: Intervention by Invitation’ (Rapporteur: M Gerhard Hafner) (Session de Naples, 2009) 73 Annuaire de Droit International 326: ‘the ex-post issuance could vitiate the validity of the consent’ referring in footnote 281 to the ILC, Yb 2001 Vol II(2) UN Doc A/CN.4/SER.A/2001/Add.1 73 ‘where reference is made to the referendum held in Austria in April 1938 concerning the “Anschluss”; the Nüremberg Tribunal denied that Austrian consent had been given by means of this referendum; otherwise it would have been coerced and could not have been used to excuse the annexation’.

46  No valid consent by the Heng Samrin government in Cambodia to the intervention by Vietnam in 1979 as it came only into power by means of the Vietnamese intervention, Corten (n 1) 270; Natalino Ronzitti, ‘Use of Force, Jus Cogens and State Consent’ in Antonio Cassese (ed), The Current Legal Regulation of the Use of Force (Martinus Nijhoff 1986) 162; Hafner (n 45) 321; Soviet Intervention in Hungary 1956 being rejected as consent was given ex post by a government formed after the intervention, Corten (n 1) 267f.

47  Ronzitti (n 46) 159.

48  UN Doc S/PV.2186 (n 10) 6 [39] (China); ibid 9 [59] (Colombia); ibid 14 [114] (Saudi-Arabia); UN Doc S/PV.2187 (n 3), 3 [23]–[24] (United States).

49  ILC, Yb 1979 Vol II(2) 110–111 [5]-[7]; according to Article 3(e) of UNGA Res 3314 (n 33) the consent encompasses also the degree of force that amounts to an aggression.

50  Nolte (n 35) [20].

51  UN Doc S/PV.2186 (n 10) 14 [114] (Saudi Arabia: ‘Those Soviet troops continue to be deployed to quell all resistance to the authority which was installed against the will of the Moslem Afghan people, in whom alone lies the right to self-determination, free from outside interference.’); UN Doc S/PV.2187 (n 3) 9 [96] (Costa Rica); ibid 13 [126] (Liberia); UN Doc S/PV.2189 (n 3) 5 [46f] (Bangladesh).

52  Nolte (n 2) 575.

53  ibid.

54  Corten (n 1) 301 referring to state practice: no condemnation of British intervention in Greece in 1946 as rebels were supported by neighbouring states, whereas there was condemnation of US and UK intervention in Lebanon in 1958 due to a lack of external interference; Doswald-Beck (n 1) 251.

55  Nolte (n 2) 280f; Weller (n 2) 519.

56  UN Doc S/PV.2185 (n 3) 2 [16].

57  Nolte (n 2) 589.

58  Corten (n 1) 257 arguing that ‘the argument of intervention consented to by a treaty was not invoked by the USSR’ but that the treaty served to ‘justify the simple presence of its troops in the territories in question’; Tanca (n 1) 33, arguing that the treaty specified the request for collective self-defence.

59  In favour: David Wippman, ‘Treaty-Based Intervention: Who Can Say No?’ (1995) 62 University of Chicago Law Review 616, 654; requiring an ad hoc request in the specific case: Institut de Droit International Resolution on Military Assistance on Request (Rapporteur: M Gerhard Hafner) (8 September 2011) Rhodes Session <http://www.idi-iil.org/app/uploads/2017/06/2011_rhodes_10_C_en.pdf> (IDI Rhodes Resolution) Article 4(3); Corten (n 1) 257; Hafner (n 48) 328, 392f; Nyakameh-Blay (n 10) 15; Wilhelm Wengler, ‘L’Interdiction de recourir à la force. Problèmes et tendences’ (1971) 7 Revue belge de droit international 441–44.

60  Nolte (n 2) 351, 589f.

61  ‘… shall consult with each other and shall, by agreement, take the necessary steps to ensure the security, independence and integrity of the two countries’ in Nyakameh-Blay (n 10) 15.

62  Nolte (n 2) 589; Nyakameh-Blay (n 10) 15.

63  As confirmed later in Nicaragua (n 32) 105 [194], [199].

64  As confirmed later in Nicaragua (n 32) 103 [195].

65  Nolte (n 2) 280f; Weller (n 2) 519.

66  Nyakameh-Blay (n 10) 18f.

67  See section II.1.

68  UNGA, Report of the Special Committee on the Question of Hungary (1957), Supplement 18, UN Doc A/3592 [266]. See also Chapter 5 ‘The Soviet Intervention in Hungary—1956’ by Eliav Lieblich.

69  Doswald-Beck (n 1) 198f.

70  Compare for Grenada (1983): Benvenisti (n 18) 180; Heike Krieger, Das Effektivitätsprinzip im Völkerrecht (2000) 275; John Norton Moore, ‘The United States Action in Grenada. Grenada and the International Double Standard’ (1984) American Journal of International Law 145, 165f; Nyakameh-Blay (n 10) 6. See Chapter 32, ‘The Intervention of the United States and other Eastern Caribbean States in Grenada—1983’ by Nabil Hajjami in this volume.

71  See Nolte (n 2) 577, referring to the cases of Chad 1981 and 1992, Lebanon 1980, Sierra Leone 1991, and Tajikistan 1992.

72  Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Reports 2005 168, 197 [46f].

73  ibid 242 [212].

74  ibid [214].

75  Georg Nolte, ‘The Resolution of the Institut de Droit International on Military Assistance on Request’ (2012) Revue belge de droit international 241, 256–58.

76  See n 46.

77  The request ex post issued by the newly installed government in Grenada in 1983 was rejected (Rein A Müllerson, International Law, Rights and Politics: Developments in Eastern Europe and the CIS (New International Relations 1994) 45; Nyakameh-Blay (n 10) 15); the legality of the US intervention in Panama in 1989 was not accepted by the UNGA Res 240 (29 December 1989) UN Doc A/RES/44/240, even though the United States also relied on the consent of the newly installed government headed by Endara (Letter from the United States to the President of the Security Council (20 December 1989) UN Doc S/21035).

78  Adam Roberts, ‘Afghanistan and International Security’ 3–42 and Michael N Schmitt, ‘The War in Afghanistan: A Legal Analysis’ 307–42 both in (2009) 85 International Law Studies.

79  Nolte (n 2) 281f.

80  Roberts (n 78) 6.