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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), 5 The Soviet Intervention in Hungary—1956

Eliav Lieblich

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: 06 April 2020

Subject(s):
Aggression — International law and international relations — Armed attack — Armed forces — International peace and security

(p. 48) The Soviet Intervention in Hungary—1956

I.  Facts and Context

As a response to the first uprising in the USSR’s post-War sphere of influence, the 1956 Soviet intervention in Hungary represents a quintessential early Cold War conflict.2 In international legal terms, the key issue arising from the Hungarian intervention concerns the legality, both in principle and in the specific circumstances, of intervention upon governmental invitation—or consensual intervention—in light of Article 2(4) of the UN Charter and complementing norms such as the principle of non-intervention. Due to its multi-staged nature and specific normative environment, it presents an especially complex case, exemplifying many of the ever-present dilemmas of such interventions. As shown here, while rather limited in clarifying these dilemmas, the Hungarian crisis highlights important post-Charter trends, namely the role of human and peoples’ rights in the context of the jus ad bellum.

Since it brought to power a pro-Soviet government that ruled Hungary for decades, it is difficult to pinpoint just when the intervention actually ended. This chapter, however, only addresses the intervention’s early stages, meaning, from the initial Soviet intervention of 23 to 24 October 1956, until the third week of November 1956, when the pro-Soviet regime consolidated its control. Naturally, it is in the first stages of an intervention that most questions of jus ad bellum arise. This chapter does not discuss jus in bello violations, nor human rights abuses committed in the months and years after the intervention (in contrast with the possible human rights violation caused by the intervention itself).

Hungary sided with Germany in the Second World War, after which it was occupied by the USSR.3 Soon enough, a Stalinist dictatorship was established under Mátyás Rákosi,4 effectively turning Hungary into one of the USSR’s ‘satellite’ states.5 As such, Soviet military units were present in Hungary long before the 1956 intervention. The initial legal basis for this presence was the 1947 Treaty of Peace, which authorized Soviet troop presence in Hungary to maintain land communication lines with Soviet-occupied Austria.6 When Soviet troops withdrew from Austria in 1955, a new justification was (p. 49) immediately found in the conclusion of the Warsaw Pact, which was interpreted as allowing Soviet presence in member states, now for the purpose of defending them against external attacks.7

Upon Stalin’s death in 1953, Soviet leader Khrushchev sought a return to Leninist ideals.8 Accordingly, the USSR pursued a ‘New Course’ in Hungary, by pushing, in the same year, for the nomination of the moderate communist Imre Nagy as Prime Minister.9 However, Nagy promoted reforms that the Kremlin did not anticipate. For this reason, he was replaced by the conservative András Hegedüs in mid-1955.10 The hope raised by Nagy’s reforms, and the deep disappointment caused by his quick dismissal, ultimately sparked the short but momentous Hungarian uprising of 1956.11

On the afternoon of 23 October, students marched in Budapest in solidarity with a contemporaneous uprising in Poland.12 Violence erupted when they attempted to enter a radio station to voice their demands for reform, and encountered several hundreds of armed guards.13 Soon enough, some Hungarian military units handed weapons to the demonstrators, and unrest and violence spread across the city.14 From here on, the crisis evolved rapidly and dramatically.

That evening, Ernő Gerő, the powerful head of the Hungarian Communist Party,15 requested that Soviet troops intervene to restore order.16 A few hours later, in the early hours of 24 October, Soviet forces stationed in central Hungary entered the capital.17 Additional Soviet units were dispatched in the following days from neighbouring countries.18 These events comprised the first wave of Soviet intervention in the Hungarian crisis.

During this first wave, the official Hungarian position was unclear to the external observer. On 24 October, Nagy—as the only credible communist figure available—was appointed prime minister once again by the Hungarian communist party (with tacit Soviet approval).19 At this stage, Nagy seemed to oppose the revolutionary demands. Indeed, that morning, state radio announced that the government asked for Soviet assistance, under the conditions of the Warsaw Pact.20 This was ostensibly confirmed by Nagy on 25 October, in a radio statement announcing that the intervention was ‘necessitated by the vital interests of our Socialist order’.21 In truth, however, Nagy refused to back Gerő’s request, and would later argue that he was coerced to make his radio statement.22 The official (p. 50) request, pre-dated to 24 October, was therefore signed retroactively by Hegedüs, by then no longer in office, several days later.23

On 25 October, the uprising intensified. After dozens of protesters were killed near the Hungarian Parliament in Budapest, the protest erupted into an armed insurgency, with fighting spreading throughout the city.24 Although Budapest remained the fulcrum of the fighting, opposition spread also to the countryside, where insurgents clashed with Soviet forces. The Hungarian army generally refrained from taking part in these clashes, although in several instances some units assisted the rebels.25

The events of 28 October marked a key turning point, sparking a rapid chain of escalation. On that day, having been convinced that the protest was a genuine popular movement, Nagy shifted his approach, and coordination between the insurgents and his government began. He reshuffled his government, declared a successful ceasefire,26 and accepted key demands of the protesters. In the next two days, he called for independence and democracy, abolished the notorious secret police (the ÁVH), reinstated the multiparty system,27 and even established a new National Guard.28 In Budapest, at least, relative calm was restored.29 Furthermore, Nagy now denied inviting the Soviet forces,30 and demanded their immediate withdrawal from Budapest, while calling for negotiations on their complete withdrawal from Hungary.31

At this point, the USSR seemed to strike a conciliatory tone. On 30 October, it issued a dramatic declaration, agreeing to negotiate equal relations with satellite states, to withdraw Soviet troops immediately from Budapest, and to negotiate complete withdrawal.32 Accordingly, Soviet units began leaving Budapest.33 However, only a day later, on 31 October, Khrushchev reneged, fearing that Hungary would completely break from the Soviet Union.34 This volte-face brought about the second wave of Soviet intervention.35

On 1 November, a second wave of Soviet troops poured across the border, aiming to crush the Hungarian uprising, just hours after others finalized their evacuation from Budapest.36 Upon learning of the new situation, Nagy summoned the Soviet ambassador and demanded the immediate withdrawal of Soviet reinforcements, to no avail. On that day, Nagy finally broke with the USSR. Hungary declared neutrality, renounced the Warsaw Pact, and appealed to the UN.37 By this time, Soviet forces had already encircled Budapest.38 Negotiations between the parties ended abruptly on 3 November, when Soviet NKVD officers arrested the Hungarian delegation.39

(p. 51) In the early morning of 4 November, five Soviet divisions moved on Budapest.40 Nagy’s final act that morning, before seeking asylum in the Yugoslav embassy, was a brief radio statement denouncing the Soviet attack.41In parallel, János Kádár, Nagy’s former ally, announced the formation of the ‘Hungarian Revolutionary Workers’ and Peasants’ Government’, blaming Nagy for his failure to fend off the ‘counter-revolutionary danger’. He furthermore declared that his government now requested Soviet assistance in ‘smashing the sinister forces of reaction’.42

Fighting between Hungarian rebels and Soviet forces ebbed and flowed over the next two weeks, before being quashed.43 On 22 November, and although he was promised safe conduct by the Kádár Government, Nagy was apprehended and transferred to Romania.44 He was executed in 1958.45 By mid-December 1957, Hungarian security forces were reconstructed and the Soviet forces largely withdrew from the streets. Yet they remained in the country for decades, supposedly to protect the state against external attacks.46

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

The legal arguments on the Hungarian crisis naturally shifted along with the changing positions of the main protagonists, in particular that of the Hungarian Government. Therefore, this section will analyse the positions as they changed with the course of events.

1.  Competence of the UN to address the crisis

The Hungarian crisis was first addressed in legal terms on 27 October 1956, when France, the United Kingdom, and the United States requested a UNSC meeting to discuss the situation, claiming that ‘foreign military forces’ were ‘violently repressing the rights of the Hungarian people’, as secured in the 1947 Treaty of Peace.47

The first question of law was whether the Hungarian crisis was of international concern, and thereby within the UNSC’s competence in accordance with Article 34 of the UN Charter, or rather, was an internal affair, and thus beyond UN competence in accordance with Article 2(7) of the Charter.48 The USSR supported the latter position, arguing that (p. 52) at hand was a rebellion against a legal government, which acted within its authority to ‘maintain law and order’.49 This, to the USSR, was not an international issue and therefore could not be placed on the Council’s agenda.50 Importantly, at this stage, Hungary itself—still not cooperating with the uprising—objected to UN involvement.51 In its letter of 28 October, Hungary declared that the events ‘have no effect whatsoever on international peace and security’, and therefore, placing them on the agenda would violate Article 2(7) of the Charter.52 Underlying the USSR’s position was the view that when foreign forces intervene to assist a government, this is not an international use of force to begin with, since force is not deployed against the will of the state.

The United Kingdom and others argued, conversely, that the fact that foreign forces were fighting in Hungary made it an international concern per se, and thus triggered UNSC competence.53 This question was resolved decisively in favour of the latter position, as the Council—and later on, the General Assembly—repeatedly voted to place the issue on its agenda, even before Hungary shifted its position on the Soviet intervention.54

2.  Discussions in the UNSC prior to the 28 October shift in Hungary’s position

The first UNSC meeting on the Hungarian crisis was held on 28 October—the same day that Nagy changed his position. Therefore, things were in flux during the meeting.55 At the time, Hungary still hoped to negotiate a solution with the USSR, and would only appeal to the UN several days later. Thus, it refrained from confronting the USSR directly. Because of this attitude, the key substantive issue was whether, even if Hungary’s Government consented to the intervention—which states doubted, but could not yet prove otherwise—such consent could trump the rights of peoples and individuals within Hungary.

The USSR’s position was three-pronged. Its first line of defence was that the Hungarian struggle was not truly internal, because the rebels represented foreign interests. According to the USSR, the United States itself constantly intervened in socialist states, and in fact, was behind the well-planned Hungarian insurgency.56 The USSR, the argument went, was not intervening in internal affairs, but rather conducting a counter-intervention in defence of Hungary. Unsurprisingly, this claim was factually disputed by western powers.57

The second Soviet argument was that it received a specific request from Hungary, and for this purpose, mobilized its forces already present in the country in accordance with the Warsaw Pact.58 As evidence for such consent, the USSR referred to the Hungarian radio statement of 24 October.59 The discussion on this point turned to the question whether the Warsaw Pact provided a legal basis for such intervention. Several states argued that the Pact, as a collective security alliance against external threats, could not justify the USSR’s actions. For instance, while the United Kingdom conceded that the Pact might (p. 53) authorize Soviet presence in Hungary, it pointed out that it did not provide for deploying these forces internally against a popular movement.60 As put by France, the Pact could not be invoked ‘by Hungarians against Hungarians’.61 Peru likewise argued that in any case, Warsaw Pact forces could not be used for ‘law and order purposes’. Such use, it argued, was a violation of the principle of non-intervention, enshrined also in Article 8 of the Pact itself, and of Article 2(4) of the UN Charter.62

Be that as it may, the argument concerning the Warsaw Pact was at this stage beside the point. Indeed, the 24 October Hungarian statement did not refer to the Pact as authorizing Soviet intervention in the crisis, but rather as authorizing the initial presence of Soviet troops in Hungary.63 The actual involvement of Soviet forces in ‘maintaining order’ was justified on account of a specific request, on top of the Warsaw Pact. Therefore, a key issue was whether this request was actually made.

France pointed out, in this context, that if the alleged Hungarian request was made on the night of 23/24 October, it would be difficult to explain how Soviet forces were already in Budapest on the next morning. To France, this implied that the intervention was premeditated by the USSR all along.64 As the day progressed, and news about Nagy’s new position kept coming in, states pressed this point further. The United States implied that genuine consent was absent, since in parallel to Hungary’s statement of the same day concerning the need to negotiate Soviet withdrawal, more Soviet forces were entering.65 Australia pointed out the contradiction between the Soviet position and the simultaneous statements coming from Nagy’s government.66

However, Hungary’s position, at least in the UNSC, was still ambiguous. Notwithstanding Nagy’s actions back home, Hungary’s representative expressed disappointment that the question was placed on the agenda and refrained from making further remarks.67 These dynamics were crucial for the exchange of legal arguments. As we shall see, because of Hungary’s unclear position, most states refrained from addressing its rights qua State—for instance, in relation to the prohibition on the use of force—but rather invoked the rights of the Hungarian people, as possible trumps against their government’s consent.68

This approach correlated somewhat with the third Soviet argument, which aimed to bolster its consent justification with arguments concerning the nature of the rebellion and its effects on basic rights. To justify Hungary’s actions, and by extension also its own in its assistance, the USSR invoked Article 4 of the Treaty of Peace, which required Hungary to act against fascist organizations.69 Unsurprisingly, just as the USSR aimed to enhance (p. 54) the consent justification with rights-based claims, the western positions sought to discredit this justification by advancing an opposite view on the nature of the uprising and its relation to human rights.

Thus, the United States, and numerous other states, emphasized that at hand was a forcible suppression of the rights of the Hungarian people, enshrined in the UN Charter and Article 2(1) of the 1947 Treaty of Peace.70 Violation of such rights, it was implied, would trump governmental consent: consent is insufficient when foreign forces are used to deny the people their basic rights. Consequently, the intervention would violate the principles of sovereignty, non-intervention, and self-determination, by depriving peoples of the freedom to decide their own political fate. Along these lines, France argued, a state cannot call foreign armies to suppress its own peoples’ freedoms.71 Iran reluctantly added that although consensual foreign intervention can sometimes be tolerated, its use to stifle popular movements is never justified.72

It should be stressed, however, that these positions did not object to consent as a valid justification per se, but rather when the rights mentioned above are violated. However, Belgium (and some other states) went a step further, by doubting whether consent could ever justify intervention, at least when the inviting government is substantially challenged. Even if there was consent by the Hungarian Government, it argued, the Soviet actions were an unlawful intervention and a violation of the right to self-determination, since the Hungarian Government could not remain in power without foreign assistance.73

3.  Discussions in the UNSC after the 28 October shift in Hungary’s position

Recall that, on 1 November, Nagy finally shifted his policy and aligned with the uprising, after the USSR reneged from its 30 October declaration in which it expressed its willingness to withdraw from Budapest and later on from Hungary at large. That day, Nagy sent an urgent message to the UN Secretary-General, informing him of his government’s demand that Soviet troops that entered Hungary in the past days be withdrawn immediately; of its renunciation of the Warsaw Pact; and of its declaration of neutrality. He appealed to the UN and the ‘four great powers’ to defend Hungary’s neutrality.74

Of course, this entailed a shift in some of the legal positions, as presented at the emergency UNSC meetings of 2 to 4 November.75 The USSR, at this stage, mainly tried to buy time. It argued that it withdrew its forces from Budapest, following the request of the (p. 55) government; other forces were still in Hungary pursuant to the Warsaw Pact, pending further negotiations. It dismissed the claim that additional forces had entered Hungary as ‘rumours’.76 Yet, even as this statement was made, Nagy communicated another letter, notifying that ‘large military units’ had crossed the border and were heading towards Budapest.77 Indeed, a peculiar situation developed, in which Soviet forces were leaving Budapest—ostensibly in line with Nagy’s demands—just as others poured into Hungary and moved towards the city. Of course, states were quick to point out this inconsistency. They noted the conciliatory Soviet statement of 30 October,78 and claimed that it was in clear contradiction with the situation on the ground.79

From this point on, it became clear that Hungarian consent—to the extent that it was ever granted—was absent. Accordingly, the discussion ceased to focus strictly on the rights of the Hungarian people, and turned also to the state rights of Hungary. Cuba decried the fact that a UN member state had been invaded.80 France noted that it was now clear that the intervention was not only against the will of the people but also against that of the government, and as such a violation of both the right to self-determination and Hungarian sovereignty.81 Peru concluded that at hand now was a use of force against a state.82

On 3 November, the United States proposed a Draft Resolution,83 noting Hungary’s new position, and calling upon the USSR to cease its intervention and to withdraw all its forces from Hungary without delay. The Draft recalled that human rights in Hungary were guaranteed by the Treaty of Peace and affirmed in general in the UN Charter, and that the Soviet intervention suppressed the efforts to assert these rights.84

A few hours after the proposal of the Draft Resolution, more drama unfolded in Budapest, as in the early hours of 4 November Soviet troops stormed the city, aiming to bring an end to the Nagy government. At an urgent UNSC meeting, convened a few hours later, the USSR modified somewhat its legal argument. Having now made a decisive step against the Nagy government—which it ostensibly came to assist just days before—it now argued that when it withdrew its forces from Budapest, a ‘counter-revolutionary coup d’etat’ took place, bringing to temporary power, ‘in part of the country’, a ‘so-called Government … headed by Imre Nagy’, which adopted ‘fascist’ policies.85 This statement, implying that the Nagy government was neither legitimate nor effective, was meant to invalidate the Nagy government’s 1 November declarations, chief among them its demands for Soviet withdrawal and the renunciation of the Warsaw Pact.86

This allowed the USSR to maintain that the Warsaw Pact was still in force and to claim—for the first time explicitly—that its forces were fighting in Hungary in accordance (p. 56) with the Warsaw Pact. Answering to previous critiques that the Pact only applied against external aggression, the USSR argued that at hand was a ‘counter-revolutionary intervention’ by external parties, and, perhaps as a measure of preventive self-defence, that action was needed to counter the ‘militarization of West Germany’ and other western moves.87 At this point, the Hungarian representative declined to make any remarks, but noted ‘unofficially’ that a new government had been formed under János Kádár.88

The vast majority of delegations condemned the deepening intervention vehemently.89 Still, the draft resolution was foiled on account of a Soviet veto.90 Immediately after, the UNSC referred the matter to an emergency special session of the UNGA, in accordance with the ‘Uniting for Peace’ procedure.91

4.  Debates in the General Assembly after Hungary again changes its position on 4 November

The Hungarian situation was first discussed in the UNGA in the Second Emergency Special Session, and thereafter in several regular sessions.92 By the time the emergency session was convened, the Kádár regime was nominally in power in Hungary.93 Accordingly, on 4 November, Kádár notified the UN Secretary-General that all of Nagy’s previous communications to the UN were invalid, and that therefore, once again, the issue was under the exclusive jurisdiction of Hungary.94 The USSR (and its allies) now argued that the actions in Hungary were conducted upon the request of the new ‘legitimate government of Hungary’.95

Of course, underlying the entire discussion was the question of government recognition. Some states claimed that Kádár’s government had been imposed by force, and therefore could not represent the state in authorizing Soviet actions. As the United States claimed, ‘[t]wo hours after the attack [on Budapest] began, the new puppet group appealed to the Soviet Union to come to its assistance’.96 Sweden, in the same vein, disregarded the Kádár request, arguing that the USSR violated the principle that the ‘stationing of troops on the territory of another country required the consent of that other state’.97 Some argued that the Kádár regime was a ‘Soviet agency’ imposed on Hungary.98 While not rejecting them (p. 57) outright, the UNGA refrained from deciding on the credentials of Hungary’s representative, and repeatedly called for elections, implicitly confirming the limited recognition of Kádár’s government.99

In terms of outcomes of the debates, reference must be made to Resolution 1004 of 4 November 1956, which outlined the general attitude that was maintained in subsequent years. The Resolution was based on several premises: human rights in Hungary were specifically guaranteed in the Treaty of Peace, and generally also in the UN Charter; Soviet actions violated these rights; and the Nagy government demanded the immediate withdrawal of Soviet forces.100 The operative clauses of the Resolution called upon the USSR to desist ‘all armed attack on the people of Hungary’, to refrain from all intervention, and to withdraw its forces from Hungary.101 Importantly, it requested the Secretary-General to initiate an investigation of the situation, and demanded relevant states to cooperate.102

Beyond the above, the opinions presented at the emergency session did not deviate much from those expressed in the UNSC. As reflected in Resolution 1004, the vast majority of states emphasized the legitimacy of the Nagy government and the validity of its declarations, while condemning in the strongest terms the unlawfulness of the Soviet actions.103 Likewise, no substantially new positions, concerning questions of jus ad bellum, were expressed in the subsequent regular sessions and resolutions of the UNGA.104

5.  Report of the Special Committee on Hungary

The Special Committee on the Problem of Hungary was established, pursuant to previous UNGA resolutions, on 10 January 1957,105 and submitted its report on 12 June that year (hereinafter ‘the Report’). The UNGA endorsed the Report on 14 September 1957.106 Overall, the Report rejected the USSR’s positions mainly on matters of fact. In terms of law, it endorsed the basic positions expressed by the majority of states at the UNSC and UNGA without much elaboration.107 Crucially, the Report devoted much attention to the issue of the existence of consent to Soviet actions, whether granted by Hegedüs on 23 October; by Nagy on 23 to 24 October or later on; or by Kádár on 4 November.

These factual findings—albeit limited by non-cooperation of the USSR and Hungary108—are critical in the assessment of the legal situation. Therefore, we will repeatedly return to the Report when conducting the legal analysis in the next section.

(p. 58) III.  Questions of Legality

It is clear from the foregoing that according to the vast majority of opinions, the 1956 intervention was completely unlawful. The intervention violated the laws on the use of force, the principle of non-intervention, the right to self-determination and human rights as guaranteed in the 1947 Treaty of Peace. This was also the opinion of most commentators at the time, barring some Soviet writers who largely followed the official line expressed by Moscow.109 However, it is still necessary to unpack these opinions in light of the prevailing legal context of the time.

1.  The Hungary intervention between strict abstentionism and government preference

The basic Soviet justification for its intervention was the existence of governmental consent, first by the Nagy government and then by Kádár. In order to assess this justification, we first need to address the legal status of intervention by invitation, or consensual invitation, as it was understood at the time. In 1956, the prohibition on the use of force was only a decade old, and the relation between Article 2(4) and consent was far from settled. Indeed, before the UN Charter, and despite some earlier attempts in limiting it, war was generally a sovereign prerogative. Government consent was therefore required only if the intervening party wished to remain in peaceful relations with the territorial state. Intervention without consent generated a state of war between the parties but was not illegal per se.110 Granted, the principle of non-intervention also governed the question of intervention, but the efficacy of this regulation was limited since it could almost always be extinguished by war.111

In the era of the UN Charter, consensual intervention is regulated both by the prohibition on the use of force, and the complementing principles of non-intervention and self-determination. The interaction between these norms raises a dilemma: on the one hand, under international law, the state speaks internationally through its government. Therefore, if a government expresses consent, the intervention cannot be viewed as a use of force against that state.112 On the other hand, Article 2(4) prohibits the use of force against the ‘political independence of the state’. If we interpret this phrase in light of the principles of non-intervention and self-determination—which imply that people must be free to determine their political destinies—an intervention in favour of a beleaguered government could be prohibited.113 This dilemma is further complicated when considering (p. 59) the relevance of substantive criteria such as democracy, human rights, or the protection of civilians, in the assessment of the power to grant valid consent to external intervention.

One approach to this dilemma denies the legality of all forcible interventions in internal struggles, and views them as violations of the principle non-intervention, and arguably, also of Article 2(4)—regardless of consent. We will call this approach strict abstentionism. To true strict abstentionists, the mere request for assistance implies that the government is no longer effective, and thus cannot represent the state.114 Unsurprisingly, strict abstentionism was particularly popular among Cold War era scholars (but not necsessarily states) who wished to minimize the potential of big-power abuse inherent in the doctrine of consensual intervention.115 In our case, if strict abstentionism is adopted, then the Soviet intervention was unlawful, whether it was requested by Gerő, Hegedüs, Nagy, or Kádár: Hungarians should have resolved the issue themselves.116

However, strict abstentionists generally recognize one exception, known as the doctrine of counter-intervention.117 Setting aside some ambiguities in this doctrine,118 its logic holds that when a prior intervention has occurred, the principle of non-intervention has already been compromised, and thus the second intervener merely restores the prior balance.119 In our case, it must be recalled that the USSR argued that the uprising in Hungary had been fomented by the United States. The purpose of this claim was both to construct the intervention as a response to an external threat, and thus within the purview of the Warsaw Pact, but also to counter claim that it intervened in Hungary’s internal affairs. However, this claim was found factually baseless. The UN Report concluded that the rebellion in Hungary was spontaneous, authentic, and nationwide,120 and was not fomented by external elements.121 These findings were confirmed by recent research, as access to American archives became available.122

Therefore, in strict-abstentionist terms, the Soviet intervention was unlawful and could not rely on the counter-intervention exception. Yet, it must be pointed out that strict abstentionism, while certainly found in the literature, is not as predominant in state practice. Indeed, in the debates on the Hungarian crisis, only Belgium, Brazil, Iran, and Ceylon invoked arguments that could be understood as adopting a strict-abstentiontist approach.123 (p. 60) As we saw, most states either questioned the factual existence of consent, or invoked substantive arguments that would negate consent in the specific instance. There was no wholesale denial of government consent as a legal justification for forcible intervention.

This correlates with the trend in post-Charter doctrine and practice, which seems to accept consent as an exception to the prohibition on the use of force, thereby recognizing a general government preference in internal strife.124 The key question, of course, concerns the scope and limits of this pro-government bias. Traditionally, a government’s power to grant valid consent was contingent upon effective control over territory. As long as the government exercised sufficient control—and what is ‘sufficient,’ in this context, largely remaining unresolved—it could validly represent the state.125 Indeed, approaches that claim that the power to consent to external assistance exists in relation to riots or unrest, but ceases when a ‘civil war’ occurs, are essentially based on effective control as a source of sovereign rights, even if not always phrased in that manner.126 Whether the relation between the power to grant consent and effective control still holds, is normatively desirable—or even whether it was key in the discourse on the Hungarian crisis—is open to debate. However, in 1956, it was the dominant approach in legal discourse.127

2.  Consent by Gerő, Nagy, or Hegedüs on 23/24 October

If effective control determined the power to consent, then, arguably, a governmental request for assistance in 23/24 October could be valid, since it was issued before the uprising became widespread in the sense of entailing loss of effectiveness. However, before asking whether a particular government could grant consent, we need to determine whether genuine consent was actually given. In legal terms, the question whether genuine consent exists is subject to relatively clear rules on the conclusion of international agreements, as entrenched in the Vienna Convention on the Law of Treaties and customary international law.128

Indeed, often, when consensual intervention is assessed, the bulk of the discussion revolves precisely around the issue of genuine consent, rather than the stickier question of (p. 61) the consenting entity’s legitimacy. In Hungary, as will usually be the case, the real-time factual situation was unclear. The UN Report, for instance, conceded (reluctantly) that it was possible that Prime Minister Hegedüs extended an invitation to the USSR on 23 October, while still in power.129 Nowadays, it is known that it was Gerő who issued the request, as head of the Hungarian Communist Party.130 International law holds, however, that state consent can be granted by a head of state, head of government, or a foreign minister, or other persons formally accredited to do so. Others can express binding consent if the states concerned—meaning, their executives—intended them to do so, whether such intention is evident from their practice or from the specific circumstances.131 As powerful as Gerő was, he did not fall within the ambit of any of these categories and therefore his consent was legally irrelevant. The USSR itself was well aware of this fact, for otherwise it would have not attempted to get Nagy, after his nomination on the 24th, to sign such a request, and when this failed, ultimately had Hegedüs sign the request retroactively.132 This clearly cannot constitute valid consent, regardless of the control exercised by the Hungarian Government at the time: Gerő was unqualified to grant consent; Nagy was not yet in power on the 23rd and refused to do so after his nomination; and Hegedüs was no longer in power when signing the request.

3.  The Warsaw Pact as an Intervention Treaty

Considering that real-time consent was absent, could the USSR rely on pre-existing consent granted in the Warsaw Pact? In other words, could the Pact be looked upon as authorizing intervention even in the absence of ad hoc consent? The general concept of ‘forward-looking intervention treaties’, raises numerous problems, and their legality remains shrouded in controversy.133 Nonetheless, this controversy does not need to be resolved here, because the text of the Pact referred exclusively to external attacks, not internal threats.134 Indeed, it seems that the USSR itself doubted the viability of the Pact as a source of consent, at least in the first stages of its intervention, as it referred to the Pact as allowing its presence in Hungary; the actual deployment of these forces against the rebels was based on specific ad hoc consent.135 Only after Nagy shifted his position and expressly denied that such consent was given did the USSR invoke the Pact as a residual legal basis for its actions, now explicitly labeling the uprising an external ‘counter-revolutionary intervention’.136 Yet, since the UN Report concluded that the Hungarian rebellion was local and spontaneous,137 this justification could not stand either.

4.  Retroactive consent by Nagy prior to the shift in his position

Recall, that following the initial intervention, Hungary objected to placing the issue on the UNSC’s agenda, and also, on 25 October, Nagy endorsed the intervention in a radio (p. 62) statement. Could this behaviour legalize the Soviet intervention retroactively—or, at least, serve as a form of waiver or acquiescence on the part of Hungary? In principle, such waiver or acquiescence is not impossible, as long as it is truly genuine, although such cases raise a strong presumption against the intervener.138 The UN Report found, however, that until the 28th, the Nagy government was hardly effective. Nagy was isolated if not detained at the party headquarters,139 and the old-guard of the communist party, headed by Gerő, issued orders in his name.140 He only gained access to parliament on the 26th, when Gerő and Hegedüs fled.141 He was not free to act until he managed to disband the ÁVH.142 The UN Report also brought evidence that Nagy was physically coerced to make his 25 October declaration.143 Moreover, independent Revolutionary Councils were set up across the country to fill the power vacuum;144 neither Nagy nor the old-guard had control even over the police in Budapest.145

Recent research paints a more complex picture, describing Nagy, at the initial stage of the uprising, as mainly conflicted and confused.146 In any case, it is clear that his government was barely effective before 28 October. If we take the effective control test seriously, it seems that in the initial stage the Nagy government could not, in any case, grant retroactive consent to the intervention.147

5.  The 28 October shift and explicit withdrawal of consent

On 28 October, Nagy called for the immediate withdrawal of Soviet forces from Budapest and for negotiations concerning complete withdrawal. By 1 November, when the Soviets backtracked from their initial conciliatory approach, these demands were made even more explicitly and were also addressed to the international community. In legal terms, the chief question at this stage related to the effects of the withdrawal of consent, whether regarding the Soviet intervention against the uprising specifically, or concerning Soviet presence in Hungary at large.

In general, withdrawal of consent to the presence of foreign forces is an absolute right, whether in relation to the Soviet forces operating in Budapest or, once the Warsaw Pact was renounced, to all Soviet forces in Hungary. When consent is withdrawn by a competent (read—effective) organ,148 the intervention is at once against the will of the state, and therefore in violation of Article 2(4) of the UN Charter, which trumps any contrary agreement, and is also of jus cogens nature.149 Indeed, several states noted that even if Hungary consented to the initial intervention (which they doubted), its new position rendered this discussion moot.150

As established above, initial consent for the actual intervention was missing in our case, and therefore withdrawal of consent—beyond clarifying the factual confusion—was not legally required. However, consent to the mere presence of troops in Hungary was arguably granted through the Warsaw Pact. The question was whether Nagy’s government was (p. 63) competent to renounce the Pact. Recall that the USSR argued that the government was incapacitated and thus its declarations were invalid. However, when considering the effective control standard, it seems that by 28 October Nagy’s government was in control, as it successfully declared a ceasefire, was endorsed by the Rebels, and proceeded to consolidate its rule through dramatic political reforms.151 It seems thus that Nagy’s 1 November declarations were entirely valid.

6.  Kádár’s consent of 4 November

On 4 November 1956, as Soviet forces took Budapest, Kádár announced his competing government and declared that he, too, now requested the assistance of the USSR. Could this consent legalize the Soviet presence and intervention, at least from this point on? This raises a sticky question, which remains of key relevance also today:152 to what extent can an intervener rely on the consent of a new government—established only as a result of its intervention—to justify its continuing presence? Logic dictates, and the reactions to the Hungarian crisis seem to affirm, that at least two conditions must exist for such consent to be valid. First, the new government must be sufficiently independent, in the sense that it is not simply an agent of the intervener; second, the new government must enjoy a measure of control independent of the intervener’s support, or at least some other type of transitional legitimacy. Furthermore, some international involvement might also be required to assure that the transition of power is genuine.153

In Hungary, none of these conditions were present. Kádár’s government did not enjoy independence, effective control, or legitimacy, and enjoyed no international endorsement. As the Report noted, when Kádár announced his government, Hungary was under effective Soviet control, and thus the government could not be considered independent. Indeed, between 4 and 11 November, the Soviet Military Commanders administrated the territory in many aspects through military orders.154 The language of these orders and their substance clarifies that the USSR was the occupying power in Hungary at the time.155 This was mirrored by the lack of effectiveness or legitimacy on part of the Kádár government.156 Kádár was not in Budapest when announcing his government or his request of assistance.157 No element of the government existed on the ground during the intervention until 6 November;158 there were virtually no Hungarian forces fighting on behalf of Kádár against the rebels;159 fighting only took place between the rebels and the USSR.160 The Parliament building was completely under Soviet control when Kádár assumed power161—after arriving, on 7 November, in a Soviet armoured vehicle.162 Accordingly, many states noted that the Kádár government was a ‘puppet’ regime; the credentials of its representatives were not positively accepted by UN bodies for several years, and the General Assembly repeatedly called for free elections.163 It seems therefore that at least in the stages relevant to our analysis, the USSR could not rely on Kádár’s consent.

(p. 64) IV.  Conclusion: Precedential Value

The vast majority of the international community has consistently condemned the Soviet intervention, and in this sense, it has sent a clear message. However, its precedential value, in terms of the legal containment of Cold War ambition, was far from positive. In political terms, the USSR’s modus operandi in Hungary was a precursor to the Brezhnev Doctrine,164 and was mirrored by similar actions by western powers.165 In legal terms, the widespread condemnation of the intervention eventually faded into attrition. The Hungarian question disappeared from the UNGA’s agenda after 1962, although its resolutions were not complied with.166 Likewise, after 1962, the UN Credentials Committee ceased to ‘not decide’ on the credentials of the Hungarian delegation, effectively conferring legitimacy on the Kádár regime.167 In a sense, then, the 1956 intervention was a key example of the limitations of the UN’s collective security system in relation to Cold War uses of force, a pattern that would repeat itself throughout the decades. Especially ironic is the fact that, previous condemnations notwithstanding, the USSR invoked similar arguments in justification of its 1968 intervention in Czechoslovakia, and, in so doing, was wholeheartedly supported by none other than Hungary, which by then won a seat at the Security Council.168

In terms of positive jus ad bellum, the 1956 intervention was of limited use in clarifying the law, although its facts, as exemplified above, are a helpful case study for legal analysis. Granted, as aforementioned, the widespread refusal to treat Kádár’s post-intervention consent as valid implies that the international community would be unlikely to accept consent by governments propped up by interveners—unless they can demonstrate a source of independent legitimacy. Nonetheless, in most of the debate on Hungary, states focused on the specifics of the case rather than on the principled issue of intervention and consent.169 Furthermore, the prohibition on the use of force itself was not discussed at length, as most attention was devoted to the principle of non-intervention and the effects of the intervention on the rights of the Hungarian people. A possible explanation could be that in real time, the factual existence of consent was unclear, and therefore it made sense, as a fallback position, to focus on the rights of the Hungarian people rather than the rights of states.170 The legal validity of intervention treaties also remained unresolved, since the Warsaw Pact was rightly understood as an external defence treaty. Moreover, the Special Committee on Hungary focused almost squarely on factual issues,171 and referred to the law only in passing.172 These ambiguities, together with the notorious zero-sum (p. 65) discussions of the Cold War era, make it rather unhelpful to search for a general precedent in Hungary, when considering the legality of modern day interventions such as in Syria or Yemen. Indeed, the dilemmas presented by the Hungarian intervention are still very much alive.173

On the other hand, the positions adopted in respect of the Hungarian crisis highlight a significant transition in the post-war legal discourse, which can guide our thinking about these dilemmas. If traditional international law on intervention was concerned with state sovereignty and the rights of third parties,174 in Hungary the gaze was fixed on the rights of people within the state. Although there is an ongoing debate, in the historiography of human rights, on the supra-national role of human rights before the 1970s,175 the idea of universal human rights was ubiquitous in 1956, at least in the argumentation on Hungary. Granted, in the absence of a universal treaty on human rights, the parties used, as a legal crutch, Article 2 of the 1947 Treaty of Peace, which made human rights in Hungary an international concern.176 The mere need to invoke this treaty is a telling example of the yet unsettled status of human rights as a universally binding legal construct. However, it was emphasized repeatedly that ‘the general principle of these rights’ was universally affirmed in the UN Charter.177 Arguably, invoking human rights when assessing the mere legality or just cause of intervention (contra human rights violations in bello) alludes to a radical—albeit crude—idea of a human rights law of jus ad bellum.

This focus on rights relates to a wider trend in post-war discussions of intervention—the diminishing role of effectiveness in the assessment of the power to grant valid consent, in favour of various substantive considerations.178 Arguably, Hungary was the first major post-Charter case in which effective control was secondary in the various arguments of the conflicting parties. For instance, when Nagy’s position on the intervention was still unclear, states did not point out that his government was ineffective, and that therefore his invitation would be invalid, but rather focused on the violation of rights caused by the intervention. On the flipside, when the USSR sought to augment its consent-based claim, it did not invoke arguments of effectiveness, but relied on Hungary’s duty to fight against fascism, enshrined in Article 4 of the same treaty. Similarly, when Nagy shifted his position, his pleas to the international community were viewed favourably, not because he consolidated effective control, but rather because his positions were aligned with the rights of the people. Likewise, the USSR’s main gripe with the Nagy government, in this stage, was not its ineffectiveness—although that argument did surface—but rather its alleged counter-revolutionary tendencies. In the same vein, Kádár’s consent was not rejected by most states because of his government’s ineffectiveness per se, but rather on account of its subjection to the USSR which undermined its claim to representativeness. These positions exemplify the limited appeal in arguments (p. 66) that rely strictly on considerations of effectiveness. They imply that consent as a valid justification is tied more to substantive rights and principles than to effective control. In this context, the discourse on Hungary can be viewed as a harbinger to the decline of effectiveness as the sole source of sovereign power in the human rights era.

Finally, it should also be observed that for better or for worse, the Soviet intervention in Hungary exemplified the legitimizing power of law, and specifically of the nascent legal discourse on jus ad bellum. On its face, some USSR actions exhibited disregard for even the most basic notions of legality: the USSR fabricated the consent of the Hungarian Government, only to overthrow the same government when it changed its policies. Still, ironically, these moves serve to uncover the argumentative power of jus ad bellum. The USSR felt a need to fabricate Hegedüs’s consent precisely because it knew that Gerő’s consent was insufficient in legal terms. If law was meaningless, and considering its super-power status, why would it feel compelled to do so? Similarly, after intervening, why bother establishing Kádár’s government to give legal pretence to this action? What was the added value in invoking the Warsaw Pact, or concluding it altogether, as a pretext for the presence of troops in Hungary? Moreover, why invoke ad hoc consent, in addition to the Warsaw Pact, if not for the USSR’s acute awareness that the Pact was a flimsy legal basis for intervention? Lastly, why argue consistently that the Hungarian situation was beyond the purview of the UN, if its legal competence was in any case meaningless? Looking back on the Soviet intervention in Hungary in 1956, the legalization of the discourse on what was several years before considered as beyond any legal regulation indeed reflects an important development.

Footnotes:

1  The author wishes to thank Stav Lavi for the extraordinary research assistance, as well as the Interdisciplinary Center (IDC) Herzliya, and the Berg Foundation for Law and History at the Buchmann Faculty of Law, Tel Aviv University, for the support.

2  Charles Gati, Failed Illusions: Moscow, Washington, Budapest, and the 1956 Hungarian Revolt (Stanford University Press 2006) 3, 148.

3  See László Borhi, Hungary in the Cold War, 1945–1956: Between the United States and the Soviet Union (Central European University Press 2004) 19–40.

4  ibid 47–48, 52–53, 207–14; Gati (n 2) 38–41; UNGA, ‘Report of the Special Committee on the Problem of Hungary’ UN GAOR 11th Session Supp No 18 UN Doc A/3592 (1957) [47].

5  For the official and unofficial means of this control controlled see Borhi (n 3) 201–02.

6  Treaty of Peace with Hungary (entered into force 15 September 1947) 41 UNTS 135 (Treaty of Peace) Art 22(1); the Soviet presence was further regulated by bilateral status-of-forces agreements. See Borhi (n 3) 226. Moreover, the USSR and Hungary concluded a bilateral mutual defence treaty in 1948, mainly against Germany and ‘any other state which might be associated’ with it. Treaty of Friendship, Cooperation and Mutual Assistance between the USSR and the Republic of Hungary (entered into force 22 April 1948) 48 UNTS 163 Art 2.

7  Treaty of Friendship, Cooperation and Mutual Assistance (entered into force 6 June 1955) 219 UNTS 24 (The Warsaw Pact) Art 5; Gati (n 2) 118; UNGA ‘Report’ (n 4) [312].

8  See Nikita Khrushchev ‘Speech at the 20th Congress of the CPSU’ (24–25 February 1956) <https://www.marxists.org/archive/khrushchev/1956/02/24.htm>.

9  Gati (n 2) 23–24, 26–32, 52–53; Borhi (n 3) 202.

10  Gati (n 2) 24–25, 33, 54–55, 64, 114–26; Csaba Békés, Malcolm Byrne, and János M Rainer (eds), The 1956 Hungarian Revolution: A History in Documents (Central European University Press 2002) XXXIV.

11  Gati (n 2) 34, 67, 116–17.

12  ibid 143.

13  ibid 147; Békés et al (n 10) XXXVII. Key among these demands were full amnesty, withdrawal of Soviet troops from Hungary, return to a multiparty system, and dissolution of the secret police. Gati (n 2) 154.

14  Gati (n 2) 147; UNGA ‘Report’ (n 4) [56]–[58].

15  Rákosi was replaced and left the country on 18 July the same year. Békés et al (n 10) XXXV.

16  ibid XXXVII; Gati (n 2) 148.

17  Békés et al (n 10) XXXVII; UNGA ‘Report’ (n 4) [58].

18  Békés et al (n 10) XXXVII–XXXVIII; Gati (n 2) 160.

19  Gati (n 2) 150–51, 161; Békés et al (n 10).

20  Gati (n 2) 151. The statement read as followed: ‘A treacherous armed assault made last night by counter-revolutionary bands has created a very grave situation … The organs of Government did not expect this bloody stab in the back. They have therefore turned for help to the Soviet units which are stationed in Hungary in conformity with the Warsaw Pact. Responding to the Government’s request, the Soviet units are assisting in the restoration of order.’ UNSC Verbatim Record (28 October 1956) UN Doc S/PV.746 [157] (USSR).

21  UNGA ‘Report’ (n 4) [230].

22  Witnesses claimed that Nagy was coerced at gunpoint. ibid [241]–[243], [245]; Békés et al (n 10) 272.

23  Gati (n 2) 151; Borhi (n 3) 244; ‘Report from Yurii Andropov Transmitting a Back-Dated Request for Soviet Intervention from András Hegedüs to CPSU CC Presidium, 28 October, 1956’ in Békés et al (n 10) 272.

24  Gati (n 2) 156–59; Békés et al (n 10) XXXVIII; UNGA ‘Report’ (n 4) [64].

25  UNGA ‘Report’ (n 4) [60], [188]; Gati (n 2) 16–162; Békés et al (n 10) XXXVIII.

26  ‘Radio Message from Imre Nagy Announcing the Formation of a New Government, 28 October 1956’ in Békés et al (n 10) 284–85 and XXXIX; UNGA ‘Report’ (n 4) [67], [238].

27  ‘Proclamation by Imre Nagy on the Creation of a Multi-Party System, 30 October 1956’ in Békés et al (n 10) 290–91.

28  Gati (n 2) 171–76; UNGA ‘Report’ (n 4) [68].

29  UNGA ‘Report’ (n 4) [186].

30  ibid [69], [242]–[243].

31  ibid [330]; ‘Proclamation’ (n 27) 291.

32  ‘Declaration by the Government of the USSR on the Principles of Development and Further Strengthening of Friendship and Cooperation between the Soviet Union and Other Socialist States, 30 October 1956’ in Békés et al (n 10) 300; UNGA ‘Report’ (n 4) [331]–[332].

33  UNGA ‘Report’ (n 4) [70], [174], [177], [333].

34  Gati (n 2) 186–89.

35  ibid 189–91.

36  ibid 191, 194–95; Békés et al (n 10) XL–XLI; UNGA ‘Report’ (n 4) [178]–[183].

37  ‘Cablegram of 1 November 1956 to Secretary-General from President of the Council of Ministers of Hungary’ (1 November 1956) UN Doc A/3251; Gati (n 2) 195–96; ‘Imre Nagy’s Declaration of Hungarian Neutrality, 1 November, 1956’ in Békés et al (n 10) 334; UNGA ‘Report’ (n 4) [74], [336]–[337].

38  Békés et al (n 10) XLI.

39  UNGA ‘Report’ (n 4) [75], [343]–[346]; Gati (n 1) 197. NKVD is the abbreviation for the ‘People’s Commissariat for Internal Affairs’, the soviet secret police.

40  Gati (n 2) 197–99; UNGA ‘Report’ (n 4) [196]–[197]; Békés et al (n 10) XLII.

41  ‘Radio Statement by Imre Nagy Announcing an Attack by Soviet Forces on the Hungarian Government’ (4 November 1956) in Békés et al (n 10) 383; Gati (n 2) 198; UNGA ‘Report’ (n 4) [76], [291]–[295].

42  UNGA ‘Report’ (n 4) [77], [268], [296].

43  Békés et al (n 10), XLIII–XLV; UNGA ‘Report’ (n 4) [196]–[214], [348]–[354].

44  UNGA ‘Report’ (n 4) [80]–[82]; Békés et al (n 10) XLVI.

45  Békés et al (n 10) XLII; Gati (n 2) 224–34.

46  UNGA ‘Report’ (n 4) [359]–[364]; Agreement between the Government of the Hungarian People Republic, and the Government of the USSR on the legal status of Soviet forces temporarily stationed on the territory of the Hungarian People’s Republic concluded in Budapest, 27 May 1957 in UNGA ‘Report’ (n 4) [112]–[117].

47  ‘Letter of 27 October 1956 from representatives of France, UK and US to President of Security Council requesting inclusion in agenda of Security Council of item entitled “The Situation in Hungary” ’ (27 October 1956) UN Doc S/3690. Other states supported this request. See, eg, ‘Letter Dated 27 October from the Representative of Italy Addressed to the President of the Security Council’ (28 October 1956) UN Doc S/3692; ‘Letter Dated 27 October from the Representative of Spain Addressed to the Secretary-General’ (28 October 1956) UN Doc S/3695; ‘Letter Dated 28 October from the Representative of Argentina Addressed to the Secretary-General’ (28 October 1956) UN Doc S/3693; ‘Letter Dated 28 October from the Representative of Turkey Addressed to the Secretary-General’ (28 October 1956) UN Doc S/3696.

48  Article 34 of the UN Charter provides that ‘The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security’ (emphasis added).

49  UNSC Verbatim Record (28 October 1956) (n 20) [20] (USSR).

50  ibid [20]–[26].

51  ibid [12]–[13] (USSR).

52  ‘Declaration of the Government of the Hungarian People’s Republic’ (28 October 1956) UN Doc S/3691.

53  UNSC Verbatim Record (28 October 1956) [30] (United Kingdom); see also [87]–[88] (France).

54  ibid [35] (The President). Interestingly, in the UNGA, Uruguay argued that whenever human rights are concerned, Article 2(7) is irrelevant and ‘international jurisdiction is unlimited’. UNGA Verbatim Record (8 November 1956) UN Doc A/PV.568 [98]–[101] (Uruguay).

55  The meeting was convened on 28 November at 16:00 NYC time. Recall that at the same day, by that time, Nagy has already shifted his position in Budapest. Békés et al (n 10) XXXIX. Therefore, some of the positions reflected at the meeting were no longer relevant.

56  UNSC Verbatim Record (28 October 1956) (n 20) [151], [153]–[155] (USSR).

57  ibid [186]–[187] (United States).

58  ibid [156] (USSR).

59  ibid [157] (USSR).

60  ibid [78]–[79] (United Kingdom); see also ibid [118] (Peru).

61  ibid [90] (France); see also ibid [108] (Cuba).

62  ibid [115]–[119] (Peru).

63  ibid [157] (USSR).

64  ibid [90] (France). Later on, France would add that in any case, the request was made by Gerő, who was not in power at the time. UNSC Verbatim Record (2 November 1956) UN Doc S/PV.752 [117] (France). This claim is imprecise: Gerő was the head of the Communist Party until the 25th, but not part of the Hungarian executive. Borhi (n 3) 238, 244–45.

65  UNSC Verbatim Record (28 October 1956) (n 20) [61] (United States).

66  ibid [136]–[140] (Australia); see also ibid1 [189] (United Kingdom); Belgium argued that the Soviet position is outdated considering the recent announcement by the Hungarian Government, see ibid [184] (Belgium).

67  ibid [195]–[196] (Hungary).

68  Yet, some states argued laconically even at this stage that the intervention amounted to a violation of Article 2(4) of the UN Charter, but without clarifying whether this was due to the invalidity of consensual intervention in principle or in the specific circumstances. See, eg, UNSC Verbatim Record (28 October 1956) (n 20) [107] (Cuba); [126] (China).

69  ibid [163] (USSR). Article 4 of the Treaty of Peace (n 6) reads: ‘Hungary, which in accordance with the Armistice Agreement has taken measures for dissolving all organisations of a Fascist type … shall not permit in future the existence and activities of organisations of that nature which have as their aim denial to the people of their democratic rights.’

70  UNSC Verbatim Record (28 October 1956) (n 20) [58] (United States). The United Kingdom argued in the same vein that Soviet intervention was ‘subversive of the whole foundation on which the United Nations is built’: [71] (United Kingdom). It also invoked Article 2(1) of the 1947 Peace Treaty, which enshrined the human rights of the Hungarian people and guaranteed ‘democratic liberty’: [74]–[76] (United Kingdom). To France, Article 2 of the Treaty of Peace restored Hungarian sovereignty and guaranteed the basic freedoms of the Hungarian people. The Soviet intervention infringed upon both rights, and was a concern to the signatory states and the international community at large: [89] (France). See also [109] (Cuba); Peru labelled the intervention a prohibited intervention in domestic affairs, specifically since it was a ‘campaign of repression’ against the provisions of the Treaty of Peace: [80] (Peru).

71  ibid [91] (France).

72  ibid [176] (Iran).

73  ibid [182]–[183] (Belgium). Brazil seemed to support this view in the General Assembly, when it argued that ‘the employment of foreign troops to fight an internal revolt when the Hungarian people was trying to decide its destiny was indefensible’. UNGA Verbatim Record (8 November 1956) UN Doc A/PV.569 [89] (Brazil). Ceylon added that it cannot ‘welcome foreign forces in a country under any pretext whatsoever, whether it be for the restoration of order or … to uphold the law of the land’: [98] (Ceylon).

74  Cablegram (n 37) [2].

75  See ‘Letter Dated 2 November 1956 From the Representatives of France, UK and US Addressed to the President of the Security Council’ (2 November 1956) UN Doc S/3723.

76  UNSC Verbatim Record (2 November 1956) (n 64) [136]–[141] (USSR).

77  ibid [146]; ‘Letter Dated 2 November to the Secretary General from the President of the Council of Ministers and Acting Foreign Minister of the Hungarian People’s Republic’ (2 November 1956) UN Doc S/3726.

78  UNSC Verbatim Record (2 November 1956) (n 64), [54]–[55] (United States).

79  ibid [57]–[58] (United States), [72]–[75] (United Kingdom); UNSC Verbatim Record (3 November 1956) S.PV.753 [41] (United Kingdom).

80  UNSC Verbatim Record (2 November 1956) (n 64) [66] (Cuba), [92] (Peru).

81  ibid [105]–[110], [117], [121]–[122] (France); see also [45]–[50] (Belgium), [68]–[69] (Australia).

82  ibid [96] (Peru); [53] (Belgium). This was also reiterated in the UNGA, see UNGA Verbatim Record (8 November 1956) (n 54) [33] (United States); [77] (South Africa); [200] (Belgium); [39] (China).

83  UNGA Draft Res (3 November 1956) UN Doc S/3730.

84  ibid preamble [2].

85  UNSC Verbatim Record (4 November 1956) UN Doc S/PV.754 [50] (USSR).

86  This position was peculiar since only a day before, the USSR itself recognized the Nagy government, by declaring that it withdrew troops from Budapest, pursuant to its request and also held negotiations with it. This inconsistency was noted later on in the General Assembly, for instance, by South Africa and the United States. UNGA Verbatim Record (4 November 1956) UN Doc A/PV.564 [34]–[35] (South Africa), [60]–[68] (United States).

87  UNSC Verbatim Record (4 November 1956) (n 85) [53] (USSR). Yet, curiously, the USSR still maintained that the issue was still an internal affair: [54].

88  ibid [67] (Hungary).

89  Belgium, for instance, labelled the action a ‘flagrant aggression’. ibid [34] (Belgium).

90  ibid [68].

91  ibid [70], [75]. UNSC Res 120 (4 November 1956) UN Doc S/RES/120; Uniting for Peace, UNGA Res 377 (V) (3 November 1950) UN Doc A/RES/377.

92  The last discussion took place in the 17th Session, 20 December 1962.

93  According to the USSR, the Kádár government was a spontaneous reaction by Hungarian statesmen to Nagy’s inability to face the fascist counter-revolutionary forces and the chaos that ensued. UNGA Verbatim Record (4 November 1956) (n 85) [101]–[104] (USSR).

94  Cablegram dated 4 November 1956 from János Kádár addressed to the Secretary-General, UN Doc S/3738 (7 November 1956); see also UNGA Verbatim Record (8 November 1956) (n 54) [3] (Hungary).

95  UNGA Verbatim Record (4 November 1956) (n 85) [10]–[13], [104] (USSR); see, eg, UNGA Verbatim Record (8 November 1956) (n 54) [35]–[37] (Poland); [62] (Bulgaria); [80] (Albania); [107]–[112] (Romania). For a lengthy and conclusive summary of the Hungarian and Soviet narratives see the statements by the respective foreign ministers in the General Assembly later on. UNGA Verbatim Record (19 November 1956) UN Doc A/PV.582 [26]–[154] (USSR).

96  UNGA Verbatim Record (4 November 1956) (n 845) [72] (United States); see also [120] (Spain), [180] (United Kingdom); UNGA Verbatim Record (8 November 1956) (n 54) [88] (Ireland), [8] (Cuba).

97  UNGA Verbatim Record (8 November 1956) (n 54) [134] (Sweden).

98  ‘The Hungarian Question’ (1956) UNYB 72; see, eg, UNGA Verbatim Record (4 November 1956) (n 85) [71]–[72] (United States).

99  The UN Credentials Committee recommended that the General Assembly take no decision on the matter pending further clarification, to the chagrin of the Hungarian delegation. ‘The Hungarian Question’ (n 98) 71, 82–83. UNGA called for free elections in the country under UN auspices. UNGA Res 1005 (ES-II) (9 November 1956) UN Doc A/RES/1005 [1].

100  UNGA Res 1004 (ES-II) (4 November 1956) UN Doc A/RES/1004, preamble.

101  ibid [1]–[2].

102  ibid [4]–[6]; see also UNGA Res 1005 (n 99) preamble, [1]; other resolutions dealt with jus in bello issues, cooperation with the investigation, and humanitarian aid. See, eg, UNGA Res 1006 (ES-II) (9 November 1956) UN Doc A/RES/1006, [1]–[3]; GA Res 1007 (ES-II) (9 November 1956) UN Doc A/RES/1007 [1]. UN Doc A/RES/1007.

103  See, generally, UNGA Verbatim Record (4 November 1956) (n 85). Several states, namely Cuba and Peru, even argued that the USSR was in violation of the Convention in the Prevention and Punishment of the Crime of Genocide. UNGA Verbatim Record (8 November 1956) (n 54) [11]–[16] (Cuba); UNGA Verbatim Record (8 November 1956) (n 73) [135]–[140] (Ceylon).

104  The 11th Session, for instance, dealt mostly with compliance with previous resolutions, non-cooperation, and humanitarian issues. See ‘The Hungarian Question’ (n 98) 73–93.

105  UNGA Res 1132 (10 January 1957) UN Doc A/RES/1132.

106  UNGA Res 1133 (14 September 1957) UN Doc A/RES/1133.

107  UNGA ‘Report’ (n 4) [322]–[323].

108  The Committee was unable to enter the territory of Hungary to observe the situation directly nor to meet Nagy in his detention, which hindered its work. UNGA ‘Report’ (n 4) [4]–[34], [44]–[45].

109  See Quincy Wright, ‘Intervention, 1956’ (1957) 51 American Journal of International Law 257; Rosalyn Higgins, ‘The Legal Limits to the Use of Force by Sovereign States: United Nations Practice’ (1961) 37 British Yearbook of International Law 269, 285–86, 308–09. For various positions, including Soviet ones, see International Commission of Jurists, The Hungarian Situation and the Rule of Law (1957); see also Kathryn Rider Schmeltzer, ‘Soviet and American Attitudes Toward Intervention: The Dominican Republic, Hungary and Czechoslovakia’ (1970–71) 11 Virginia Journal of International Law 97, 111–16; Nicholas Rostow, ‘Law and the use of Force by States: The Brezhnev Doctrine’ (1980–81) 7 Yale Journal of World Public Order 209, 209–29; for a more recent appraisal see Louise Doswald-Beck, ‘The Legal Validity of Military Intervention by Invitation of the Government’ (1985) 56 British Year Book of International Law 189, 222– 26; Georg Nolte, Eingreifen auf Einladung (Springer 1999) 79–86.

110  For a detailed analysis see Eliav Lieblich, International Law and Civil Wars: Intervention and Consent (Routledge 2013) 73–76, 90–94. Of course, this is not to say that prior to the Charter there were no attempts at limiting the sovereign prerogative to go to war. See Olivier Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Hart 2010) 51–52.

111  Lieblich (n 110) 76.

112  See Doswald-Beck (n 109) 190–92.

113  Lieblich (n 110) 124; compare Doswald-Beck (n 109) 243–44.

114  Lieblich (n 110) 124, 130–38; others label this approach ‘negative equality’. See Chapter 65, ‘The Saudi-Led Military Intervention in Yemen’s Civil War—2015’ by Luca Ferro and Tom Ruys, in this volume. For a nuanced analysis of this approach and its qualifications see Corten (n 110) 288–300; for a classic defence of strict abstentionism see Montague Bernard, On the Principle of Non-Intervention (JH & J Parker 1860); see also William E Hall, A Treatise on International Law (8th edn, Clarendon 1924) 347; George Grafton Wilson, International Law (8th edn, 1922) 93–94; Quincy Wright, ‘Editorial Comment: United States Intervention in the Lebanon’ (1959) 53 American Journal of International Law 112.

115  See, eg, Ian Brownlie, ‘International Law and the Use of Force by States’ (OUP 1963) 327; Derek Bowett, ‘The Interrelation of Theories of Intervention and Self-Defence’ in John Norton Moore (ed), Law and Civil War in the Modern World (Johns Hopkins University Press 1974) 38; cited in Doswald-Beck (n 109) 200.

116  To be clear, it is doubtful whether in actuality strict abstentionism was the customary approach in 1956. Some point out a 1975 resolution of the Institute of International Law solidified this approach, but this was two decades later. See Institut de Droit International, Resolution on the Principle of Non-Intervention in Civil Wars (Rapporteur: Dietrich Schindler) (14 August 1975) Wiesbaden Session. For a critique see Lieblich (n 110) 135–36.

117  For a discussion see, generally, Olivier Corten, Le droit contre la guerre (2nd edn, Pedone 2014) 476–512; Christine Gray, International Law and the Use of Force (OUP 2008) 92–96; see also Eli Lauterpacht, ‘The Contemporary Practice of the UK in the Field of International Law’ (1958) 7 International & Comparative Law Quarterly 92, 106; Higgins (n 109) 309–10.

118  Namely, what type of intervention can justify a counter-intervention, and the relation between counter-intervention and collective self-defence. See Lieblich (n 110) 170; Ferro and Ruys (n 114).

119  Lieblich (n 110) 169–70.

120  UNGA ‘Report’ (n 4) [129].

121  ibid [141], [143]–[145].

122  American controlled Radio Free Europe attempted to enflame the rebels, but the United States refrained from providing further material support. See Gati (n 2) 164–71.

123  See n 73.

124  See Definition of Aggression, UNGA Res 3314 (14 December 1974) UN Doc S/RES/3314, Art 3(e); Military Aid and Paramilitary Activities in and against Nicaragua (Nicaragua v US) [1986] ICJ Rep 14, [246]; concerning practice, see the comprehensive survey in Nolte (n 109) chs 10–15; Lieblich (n 110) 142–50; Beyond positive law, there are good substantive reasons to reject strict abstentionism. See Lieblich (n 110) 138–40; compare Dapo Akande and Zachary Vermeer, ‘The Airstrikes against Islamic State in Iraq and the Alleged Prohibition on Military Assistance to Governments in Civil Wars’ (EJIL: Talk!, 2 February, 2015) <http://www.ejiltalk.org/the-airstrikes-against-islamic-state-in-iraq-and-the-alleged-prohibition-on-military-assistance-to-governments-in-civil-wars/> accessed 27 July 2016.

125  Wright required that a government remain ‘in firm possession of the state’s territory’; Wright (n 114) 112; Lauterpacht’s preference of governments persisted ‘so long as the lawful sovereign authority has not been definitely supplanted’; however, the nature of the benefits of governments were so limited in effect, that it amounted in essence to strict abstentionism. Hersch Lauterpacht, Recognition in International Law (CUP 1947) 93–94, 233–34. Shachter posited that when conflict occurs ‘on a large scale involving a substantial number of people or control over significance of the country’ the preference of government is negated. Oscar Schachter, ‘The Right of States to Use Armed Force’ (1984) 82 Michigan Law Review 1620, 1642.

126  See, generally, Doswald Beck (n 109); see also Lauterpacht (n 116) 102–05; Higgins (n 109) 309–11; Resolution on the Principle of Non-Intervention in Civil War (n 116) Art 2(1); Gray (n 116) 80, 85. Some commentators drew a connection between the belligerency doctrine and the legality of consensual intervention. However, this doctrine concerned the law of neutrality and not the question of consensual intervention. Lieblich (n 110) 90–96.

127  See, generally, Lauterpacht (n 124).

128  Namely, the basic rule of pacta sunt servanda and the invalidation of coerced consent are always relevant to the assessment of the existence of consent. See Eliav Lieblich, ‘Intervention and Consent: Consensual Forcible Interventions in Internal Armed Conflicts as International Agreements’ (2011) 337 Boston University International Law Journal 339, 357–64.

129  UNGA ‘Report’ (n 4) [266].

130  See n 15.

131  See Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 Art 7.

132  Békés et al (n 10) 272.

133  On forward-looking intervention treaties see Lieblich (n 111) 194–97; David Wippman, ‘Treaty-Based Intervention: Who Can Say No?’ (1995) 62 Chicago Law Review 607; compare Oona A Hathaway et al, ‘Consent-Based Humanitarian Intervention: Giving Sovereign Responsibility Back to the Sovereign’ (2013) 46 Cornell International Law Journal 499, 555–66.

134  See Warsaw Pact (n 7) Art 4.

135  UNSC Verbatim Record (28 October 1956) (n 20) [156] (USSR).

136  See n 86.

137  UNGA ‘Report’ (n 4) [89].

138  Lieblich (n 110) 11, 25.

139  UNGA ‘Report’ (n 4) [249]–[255].

140  ibid [241]–[242].

141  ibid [233], [256].

142  ibid [89], [216]–[217], [256]–[258].

143  ibid [241]–[242].

144  ibid Chapter XI.

145  Gati (n 2) 154–55.

146  ibid 149–55.

147  Later on, on 30 and 31 October, Nagy will publicly deny, in various fora, the extension of invitation or its subsequent authorization, attributing this decision to Gerő and Hegedüs. UNGA ‘Report’ (n 4) [216], [242]–[243].

148  And I set aside the question of how a competent organ is defined nowadays, since at the time, the effective control test was prevalent the legal discourse.

149  Lieblich (n 110) 19–20; see also Definition of Aggression (n 123) Art 3(e); but see Hathaway et al (n 132) 560–63.

150  See nn 80–82.

151  UNGA ‘Report’ (n 4) [244] ch XII.

152  For instance, in Iraq and Afghanistan, continuous presence of coalition troops was authorized through the consent of governments established after previous regimes were overthrown by foreign intervention. Lieblich (n 110) 149–50.

153  Both concerning Iraq and Afghanistan the UNSC endorsed the new governments and also their requests for foreign assistance, to international acquiescence. ibid 155.

154  UNGA ‘Report’ (n 4) [598]–[614], [640].

155  Convention (IV) Respecting the Laws and Customs of War on Land (adopted 18 October 1907) Arts 42–43.

156  UNGA ‘Report’ (n 4) [80], [83].

157  ibid [297].

158  ibid [298].

159  ibid [597].

160  ibid [600].

161  ibid [622]–[629].

162  Békés et al (n 10) XLII.

163  See n 94 at 96.

164  See Leonid Brezhnev, Speech at Fifth Congress, Polish United Workers Party (12 November 1968) (Novosti Press).

165  See, eg, the US intervention in the Dominican Republic 1965, and later in Grenada (1983) (Chapters 11 and 32 in this volume). It is also noteworthy to point out the Suez conflict that took place at the same time, which although raised different legal questions, also saw a very wide British and French interpretation of the right to use force. See Chapter 4 in this volume.

166  See UNGA ‘The Question of Hungary’ (1962) UNYB 131–34.

167  Support for this approach diminished by 1962, as the last decision not to decide was passed by 5 votes to 4; see ibid 133–34.

168  UNGA ‘The Situation in Czechoslovakia’ (1968) UNYB 298–303; Chapter 13 in this volume.

169  For a comparable observation see Doswald-Beck (n 109) 223, 226; Higgins (n 109) 310–11.

170  Compare the debate on Czechoslovakia, the prohibition on the use of force was more present in the discussion as the government denied consent. (1968) UNYB 300.

171  Contrast this with the emphasis on law in modern commissions of inquiry. See, eg, UNHRC, ‘Report of the Detailed Findings of the Independent Commission of Inquiry Established Pursuant to HRC Resolution S-21/1’ (23 June 2015) UN Doc A/HRC/29/CRP4 (Report on the 2014 Gaza conflict).

172  Yet, one legally relevant finding of the Report concerned the necessity to present a clear evidence of consent. The unclear factual situation in the beginning of the intervention led the Report to conclude that ‘[t]he act of calling in the forces of a foreign State … 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’ UNGA ‘Report’ (n 4) [266]. If this approach is accepted, it can affect contemporary uses of force such as by the US in Pakistan. See Chapter 52 in this volume.

173  See, eg, Olivier Corten, ‘The Russian intervention in the Ukrainian crisis: was jus contra bellum “confirmed rather than weakened”?’ (2015) 2 Journal on the Use of Force and International Law 17, 32–35.

174  Lieblich (n 110) 96–99.

175  Compare Samuel Moyn, The Last Utopia: Human Rights in History (Belknap 2010) 1–10, with Philip Alston, ‘Does the Past Matter? On the Origins of Human Rights’ (2013) 126 Harvard Law Review 2043, 2066–74.

176  See, eg, UNSC Verbatim Record (28 October 1956) (n 20) [122] (Peru). The United Kingdom stressed that it had ‘responsibility’ to address the question as a party to the treat: [74]–[76] (United Kingdom).

See, eg, UNSC Verbatim Record (28 October 1956) (n 20) [89]–[91] (France).

177  See, eg, UNGA Res 1004 (n 100) preamble.

178  Lieblich (n 110) 153–55, 165–69; see also Ferro and Ruys (n 114).