The Identification of the Government Entitled to Invite Intervention
It is apparent that in many of these cases there has been controversy as to the right of the government to invite outside intervention. This question as to who may invite outside help arises not only in this context of civil wars but also with regard to collective self-defence, invitation to UN and regional peacekeeping forces, and rescue of foreign nationals. Academic debates about the effectiveness and legitimacy of governments have been common; writers have divided on the question whether an invitation can justify intervention only if it comes from the effective government or whether it is the legitimate government that has the right to invite assistance to maintain itself in power or to restore it to power when it has been overthrown. Such academic debate has been inconclusive in the light of the diversity of state practice. Roth’s exhaustive 1998 study demonstrated persuasively that state practice had not produced uniform doctrine as to who counts as the government with the right to invite outside intervention in this context. Cold War divisions meant that, although there was agreement as to the principles governing non-intervention, states often divided on political lines in their determination of who was the government or whether there was a government, whether there actually was an invitation and, if so, whether it was freely given.128 The (p. 101) disagreements as to who was the government in Chad and Angola are among the most dramatic examples of splits along Cold War lines; the question also arose with regard to Hungary, Afghanistan, Czechoslovakia, the Dominican Republic, and Grenada. In all these cases the claims of invitation were not accepted as a justification for the use of force and the intervention led to condemnation. But in Security Council and General Assembly debates on the use of force, although there has been discussion of the reality of the invitation and of the effectiveness or legitimacy of the government concerned, the main focus has been on the substantive issue of whether the invitation was a mere pretext for intervention.129
The prolonged Syrian intervention in Lebanon from 1976 to 2005 escaped condemnation for many years.130 Syria kept a substantial number of troops in Lebanon for almost thirty years after 1976; it maintained that it had a special ‘fraternal’ relation with Lebanon, deriving from their early unity under the Ottoman Empire until the territory was divided by France during the mandate.131 In 1975 civil war broke out in Lebanon between the Maronite Christians on one side and the Muslims and Palestinians on the other.132 Israel secretly supplied weapons to the Christians133 and Syria sent troops to Lebanon, at the invitation of the President.134 Israel and the USA initially acquiesced in the Syrian intervention; Iraq and Libya protested. But in June 1976 the Syrian intervention acquired greater legitimacy through its official absorption into an Arab League regional peacekeeping force of about 30,000 soldiers. This remained in Lebanon until 1983, and was dominated by the Syrians. From 1979 this force was intermittently involved in clashes with Israeli forces in Lebanon. Israel had invaded Lebanon in 1978 in response to a terrorist attack (for which Lebanon denied responsibility); the Security Council in Resolution 425 (1978) called on Israel to withdraw and also called for a strict respect for the territorial integrity, sovereignty and political independence of Lebanon.135 In contrast the legality of Syria’s presence was not challenged in the UN.
After 1982 the situation changed and the USA and Israel took a different line with regard to the Syrian presence in Lebanon. Israel carried out a major invasion of Lebanon in 1982 in response to minor border incidents and to a terrorist attack (p. 102) on the Israeli ambassador to the UK; it subsequently carried out a prolonged siege of Beirut.136 The Security Council again called on Israel to withdraw its forces in Resolution 520 (1982), but Israel continued to occupy southern Lebanon until 2000. From 1984 (after the peace treaty negotiated in May 1983 between Israel and Lebanon was rejected by Lebanon) Israel and the USA protested at the Syrian presence. They complained of double standards in Security Council debates on Israel and the Lebanon; they said that, in contrast to the repeated calls for Israeli troops to leave the ‘security zone’ that they occupied in south Lebanon, little had been said by other states about the presence of 50,000 Syrian troops in Lebanon.137 The USA vetoed resolutions calling for Israeli withdrawal, saying that it was necessary that all foreign forces should leave. Syria replied that its presence was based on a legitimate Lebanese request: Israel tried to give the impression that the Syrian presence was an occupation imposed on Lebanon, but in fact it was there at the request of the legitimate Lebanon government. The Arab League said that whatever might have been the circumstances of the Syrian presence it could not be equated with that of Israel.138 In December 1985 the position was formalized in the 1985 Damascus Accord; Lebanon and Syria both referred to this as an invitation justifying the continued Syrian presence. Israel challenged this, saying that the agreement simply formalized Syrian control of Lebanon.139 That is, there were occasions when the Syrian presence in Lebanon was challenged, but on the whole it was only Israel and the USA which did so without support from other states.
However, the situation changed after 9/11, and especially after Operation Iraqi Freedom in 2003. The USA increasingly accused Syria of support for terrorism against Israel and against Iraq; it began a campaign to secure the withdrawal of Syria’s troops from Lebanon. Thus, for example, in December 2003 the USA passed the Syria Accountability and Lebanese Sovereignty Restoration Act. This proclaimed that Syria was a ‘state sponsor of terror’ responsible for support for international terrorism by its provision of safe haven for organizations such as Hezbollah and various Palestinian groups including Hamas. Syria exerted undue influence on Lebanon, through the presence of its 20,000 troops; it was preventing Lebanon from complying with the requirement of Security Council Resolution 425 (1978) to deploy its troops to the southern border, and it was allowing Hezbollah to operate against Israel from southern Lebanon. The Act References(p. 103) also accused Syria of pursuing WMD, and of allowing the transfer of weapons to insurgents in Iraq. Therefore, the Act demanded that Syria should inter alia immediately halt support for terrorism, and announce its commitment completely to withdraw its armed forces from Lebanon. It imposed sweeping sanctions on Syria until it should comply with these demands.
In 2004 there was a major change in the approach of the Security Council with regard to the Syrian presence in Lebanon. The Security Council passed Resolution 1559 (2004) by 9–0–6 (Algeria, Brazil, China, Pakistan, Philippines, and Russia) to bring an end to the Syrian military presence in Lebanon. This was an extremely controversial resolution; it was not passed under Chapter VII of the UN Charter. It seemed that a majority in the Security Council was no longer willing to take at face value the argument that the Syrian troops were lawfully in Lebanon with the consent of the government.140 However, Lebanon itself spoke in opposition to the consideration of the resolution and called for its withdrawal: ‘Friendly Syria had helped Lebanon to maintain stability and security within its borders. It has fended off the radicalism and violence that are fed by Israel’s extremism and violence against the Palestinians.’ Syrian troops came to Lebanon in accordance with legitimate requests. There were no militias in Lebanon, but only the Lebanese national resistance which would remain as long as Israel occupied parts of Lebanon. Syria supported this Lebanese national resistance.
International pressure grew after February 2005; the catalyst for revolutionary change in Lebanon was the assassination of former Prime Minister Rafik Hariri on 14 February 2005.141 Suspicion fell on Syria and the pressure on it mounted.142 It finally agreed to withdraw its troops and completed this process by the end of April 2005.143 However, there were problems with regard to Hezbollah, and with the extension of the control of the government of Lebanon over all its territory. The Security Council accordingly called for the full implementation of Resolution 1559 in a series of resolutions.144 Lebanon’s position on Hezbollah was that it was not a militia but a national resistance group with the goal of defending Lebanon from Israel, and the removal of Israeli forces from Lebanon. It had first been established in response to Israel’s occupation of Lebanon in 1982. Lebanon now claimed that its concern was to recover the Shab’a farms from Israeli occupation.145 But the border which had been established by the UN at the time of the withdrawal by Israel in 2000—the Blue Line—put the Shab’a farms on the References(p. 104) Israeli side of the border, treating it as Israeli-occupied Syrian territory.146 This was only a provisional delimitation for the purpose of confirming Israel’s withdrawal under Resolution 425, without prejudice to the final determination of the boundary between Lebanon and Syria, but both Israel and Lebanon had said that they would respect this line.147 The Security Council repeatedly called for respect for the Blue Line.148 The Secretary-General reported that there were recurring violations of the Blue Line by Hezbollah and by Israel.149 These continued until a more serious conflict broke out in 2006.150 And there are still problems in 2017.
The Cold War conflicts demonstrated irreconcilable divisions among states on the question as to who could invite foreign military intervention, but they also show an impressive uniformity among states as to the prohibition of intervention to support armed opposition groups. States did not claim the legal right forcibly to overthrow a government; when they did aid the opposition they challenged the legitimacy of the government. The end of the Cold War did not bring an end to foreign intervention in civil wars, but it made it easier for the UN to play a much greater role in this area. The Security Council may now find it easier to pronounce on who is the government, partly because the UN may play a role in monitoring or supervising the conduct of elections as part of post-conflict peace-building. In recent years when the Security Council has imposed an arms embargo on a state after the outbreak of civil war it has sometimes subsequently made an express exception for the supply of arms to the government it regards as legitimate and also to states assisting that government.151
Thus the UN has often taken a clear view on the identification of the government and the right of states to support that government in a civil war. This practice indicates that it is not possible to assert that only a democratic government or only an effective government can invite military help.152 Thus in Mali, a transitional government came to power following a coup, and included some of the coup leaders; it was accepted by the Security Council although its origins were not democratic and it did not control the north of Mali.153 There was no (p. 105) challenge to the government’s right to invite help from France against Al Qaida terrorists (AQIM) in the north of its territory, and the Security Council welcomed ‘the swift action by the French forces at the request of the transitional authorities of Mali, to stop the offensive of terrorist, extremist and armed groups towards the south of Mali’ in Resolution 2100 (2013). Again, in Somalia the UN helped to create the Transitional Federal Government (TFG), and supported it in 2004–12, even though it had not been democratically elected, and was unable to assert its authority over the whole territory against the Union of Islamic Courts and later AlShabaab (joined to Al Qaida from 2012).154 When the TFG invited Kenyan troops to intervene against AlShabaab in 2011, the legality of this intervention was not challenged in the Security Council or elsewhere.155
In Libya the NATO-led military intervention authorized by the Security Council in 2011 led to the overthrow of the Gaddafi government.156 But there was no-one to fill the gap.157 Chaos ensued in the absence of a central government with a national army that could assert control over the territory. Competing militias fought for control of territory, airports, and oil resources, and the violence escalated to civil war in 2014. A Government of National Accord (GNA) was set up under the 2015 Libyan Political Agreement among some of the competing groups. It was at first based in Tunisia, and when it moved to Libya it did not exercise effective control over the whole territory and was challenged by a competing government and militias. Nevertheless the UN Security Council in Resolution 2259 (2015) (passed unanimously) expressly said that it was the ‘sole legitimate government’, and called on member states to respond urgently to its requests for assistance. In particular it urged member states to actively support the GNA in defeating ISIS; it called on them ‘to cease support to and official contact with parallel institutions that claim to be the legitimate authority’. In 2016 the AU, League of Arab States, and EU all recognized the GNA as the ‘sole legitimate government of Libya’, and stressed that the GNA was the sole legitimate recipient of international security assistance.158
(p. 106) However, the political divisions of the Cold War have resurfaced in recent years, and were manifest in the different approaches to the question who can invite military assistance in conflicts in Ukraine and Yemen. Russia denied using force to annex Crimea in 2014, but nevertheless suggested possible legal justifications for intervention in Ukraine.159 One of these was that there had been an anti-constitutional coup and the exiled President Yanukovych had invited its armed forces to act.160 Russia said that the democratically elected President had fled from the capital of Ukraine after violent protests stirred up by Western states, unhappy that he had abandoned his earlier pursuit of closer links with the EU. It could act on his invitation to protect the Russian population of Crimea against the threat allegedly posed by the new government. Similarly, Saudi Arabia’s justification for its military campaign in Yemen was that it had been invited in by elected President Hadi after he had fled from the capital to Saudi Arabia, and that it could assist him against the Houthi rebels. At an abstract level the two situations seem identical, but states generally rejected the legality of the Russian intervention in Crimea while accepting that of the Saudi operation in Yemen. Yanukovych’s invitation was dismissed as a pretext for the annexation of Crimea. In the Security Council, the UK said that there could be no invitation by a ‘former leader who abandoned his office, his capital and his country’.161 The UN General Assembly adopted Resolution 68/262 (2014) by 100–11–58; this called upon states to refrain from actions aimed at the disruption of the national unity and territorial integrity of Ukraine, including any attempts to modify Ukraine’s border through the threat or use of force.
In contrast the UN Security Council gave its express support to the Hadi government in Yemen, even though President Hadi had fled and resigned from his position.162 It repeatedly called for an end to attacks on the government; it also called on all states to refrain from military interference.163 When it met three weeks after the GCC began Operation Decisive Storm against the Houthi rebels, the Security Council did not make any criticism of the intervention. In Resolution 2216 (2015) passed by 14–0–1 (Russia) it once again called on the Houthis to end their use of violence. It also took note of President Hadi’s request for support, (p. 107) including military intervention, from the GCC. Only Iran contested the legality of the operation.164 In contrast, the UN Secretary-General recalled the Security Council’s earlier statement that states should not undermine sovereignty, independence, and territorial integrity, and should refrain from external intervention.165 The Security Council has not changed its position since then, despite public concern about the conduct of the military campaign and its impact on the population.166
Perhaps the most dramatic illustration of the principle that a government may invite outside assistance is that of Syria. It is this conflict that has stirred up commentators unhappy with the idea that a repressive regime may invite outside help (in this case from Russia and Iran) to keep itself in power; they have invoked internal self-determination and democracy in aid of their claims that there are limits on the right of a government to seek military assistance.167 But it is not only Russia and Iran that are allied to repressive regimes in the region, and the USA and the UK are reluctant to put forward any general claim that there is no legal right to support repressive or undemocratic regimes for fear that their own allies would be overthrown. The USA, Turkey, Saudi Arabia, and the other Gulf states have challenged the legitimacy of the Assad government and have intervened on the side of armed opposition groups since early in the conflict. But they have not denied that the Assad government has a legal right to invite outside assistance; they have made political and moral arguments against the legitimacy of the Assad government, as well as criticizing its military operations for violations of international humanitarian law. It is clear that they accept that Russia and Iran have a legal right to help Syria, to send troops and aircraft and to join in the military operations.168 This was powerfully illustrated by a leaked recording of the then US Secretary of State, John Kerry in 2016. He said that the USA had no legal grounds to attack Assad: ‘We don’t have a basis, our lawyers tell us, unless we have a UN Security Council resolution, which the Russians can veto and the Chinese, or unless we are under attack from the folks there, or unless we are invited in. Russia is invited in by the legitimate regime—well it’s illegitimate in my mind—but by the regime.’169 Thus, the US administration stuck to the traditional distinction between assistance to the government, even a repressive government, (lawful) and that to armed opposition forces (unlawful).
(p. 108) Forcible Intervention to Assist the Opposition
It is apparent from all the above practice that states will seek to invoke an invitation by a government to justify their invasion where this is even remotely plausible. They do not generally claim a legal right to use force to help the opposition forcibly to overthrow the government (with the possible exception of national liberation movements seeking decolonization), as the ICJ made clear in the Nicaragua case. Some writers have doubted the legal force of the prohibition of intervention to assist the opposition against the government because practice during the Cold War showed such extensive intervention to help oppositions.170 But they acknowledge that in fact those states helping the opposition have generally done so without use of their own troops; nor have they openly assisted opposition forces to operate from their territory.
The open use of a state’s own troops against a foreign government involved in civil conflict was rare. Covert action was much more common even in cases where the intervening state challenged the legitimacy of the government of the state involved in civil war. The USA, although it gave support to opposition groups in Angola, Cambodia, and Afghanistan, did not openly go beyond this to direct forcible intervention. Any direct use of force was generally, as in the Nicaragua case, carried out covertly through the Central Intelligence Agency (CIA). The supply of arms or training to opposition forces was generally covert and thus did not involve a need for legal justification. But it was in the massive financial support for opposition groups in Angola, Cambodia, Afghanistan, and Nicaragua under President Reagan that the USA seemed to come close to blatant disregard, if not rejection, of the legal principle of non-intervention. The President’s development of the ‘Reagan doctrine’ for the containment of the spread of socialism, with its rhetoric of the duty to help ‘freedom fighters’ against socialist governments, seemed to indicate that the USA was applying a new doctrine of national liberation; it was apparently adopting the doctrine developed by former colonies and socialist states during decolonization, the doctrine that it was legal for national liberation movements to use force in self-determination, to justify intervention in civil wars.171 But the Reagan doctrine was, like the Brezhnev doctrine, not put References(p. 109) forward as a legal justification of the use of force; the right to use force was still based on self-defence.172 The aid was ostensibly limited to financial assistance, sometimes portrayed as ‘non-lethal’ or ‘humanitarian’ aid.173 In all these cases the USA challenged the legitimacy of the government it was attempting to subvert. Even in the middle of the Reagan era, however, the USA was not willing to try to justify its support for the contras in Nicaragua as based on the right to support oppositions forcibly to overthrow the government. In the Nicaragua case, as was discussed above, the USA did not rely on a legal right to intervene in support of ‘freedom fighters’, but rather on collective self-defence; this was clearly regarded as important by the Court.
After the terrorist attacks of 9/11 the international consensus on the prohibition on forcible intervention to overthrow a government apparently came under pressure from the actions and the rhetoric of the USA with regard to the regime change in Afghanistan and in Iraq in 2003. The USA nevertheless continued to accuse other states—in particular, Syria and Iran—of unlawful intervention against the new governments of Afghanistan and Iraq.174 When it began Operation Enduring Freedom in Afghanistan, the USA claimed to be acting in self-defence, but it subsequently went on overthrow the Taliban regime and install a new government. There were no real objections by other states with regard to the overthrow of the Taliban—the regime had been isolated in the international community, it had not been recognized by the UN as the legitimate government of Afghanistan and had been subjected to sanctions by the UN—but this question of regime change proved much more problematic with regard to Iraq.
Very soon after 9/11 the USA said that it wanted regime change in Iraq.175 Following President Bush’s identification of Iraq as part of the Axis of Evil in the 2002 State of the Union Address, the administration began to implement the 1998 Iraq Liberation Act signed into law by President Clinton at a time of political (p. 110) weakness, but never implemented by him. This provides that ‘It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime.’ Those states opposed to the use of force against Iraq, such as France, Russia, and China, all accused the USA of using force without legal justification in order to secure an illegal regime change.176 In contrast, the UK’s legal position was that it would welcome a regime change in Iraq if that was a consequence of its actions, but that this would not be the aim of any use of force. Whereas the US policy was regime change, it was not that of the UK; the UK’s purpose was disarmament.177 The Attorney-General in his advice on the legality of the war in Iraq expressly ruled out forcible regime change as the basis for the use of force; he said, ‘regime change cannot be the objective of military action’.178
However, the Nicaragua case suggests that in international law what is decisive is not the intent of the intervening state, whether proclaimed or otherwise. The test as to whether an act of intervention is unlawful is an objective one. In response to Nicaragua’s claim that it was the aim of the USA to overthrow the government the Court held that it did not consider it necessary to seek to establish whether the intention of the USA to secure a change of governmental policies in Nicaragua went so far as to be equated with an endeavour to overthrow the Nicaraguan government. The Court held that in international law, if one state, with a view to the coercion of another state, supports and assists armed bands in that state whose purpose is to overthrow the government of that state, that amounts to an intervention by the one state in the internal affairs of the other, whether or not the political objective of the state giving such support and assistance is equally far-reaching. It did not therefore examine the intentions of the United States in this context.179 The Court confirmed this approach in Armed Activities in the Territory of the Congo (DRC v Uganda).180
There have been no subsequent claims by states that they have a legal right to provide military assistance to armed opposition forces, although the behaviour of some states is obviously not consistent with the prohibition in Nicaragua. There have been many reaffirmations of the illegality of forcible intervention to secure regime change. Just as the Security Council with regard to the conflict in the DRC drew a distinction between outside forces invited by the government and those of Uganda and Rwanda, so with regard to other conflicts References(p. 111) the Security Council has taken the same approach. When civil war broke out in Congo (Brazzaville) in 1997, Angola intervened and sent troops to support the opposition forces, which then secured victory. The Security Council, in a Presidential Statement, condemned outside intervention; it expressed concern about the grave situation and called for an end to hostilities. It condemned all external interference, including the intervention of foreign forces, in violation of the Charter of the UN and called for the immediate withdrawal of all foreign forces.181
The traditional position was again adopted with regard to intervention in the conflict in Sierra Leone. A civil war started in 1991 when opposition forces of the Revolutionary United Front (RUF) tried to overthrow the government. The RUF refused to accept the settlement ending the conflict and did not participate in the 1996 elections. It seized power in a military coup in 1997, but the UN refused to accept the overthrow of the democratically elected government under President Kabbah and this government was restored in 1998. The RUF continued their armed struggle. There were accusations that President Charles Taylor of Liberia was intervening to assist them to overthrow the government of Sierra Leone.182 Armed elements and criminal gangs operated across the borders; massive refugee flows aggravated the situation; the states in the region made accusations and counter-accusations of unlawful intervention.183 The Security Council called on all states in the region to take action to prevent armed groups from using their territory to prepare and commit attacks on neighbouring countries, but it singled out Liberia for express condemnation and sanctions. In Resolution 1343 (2001) it demanded that the government of Liberia immediately cease its support for the RUF in Sierra Leone and for other armed rebel groups in the region; called on it to expel RUF members from Liberia and to prohibit all RUF activities on its territory; and to cease all financial and military support to the RUF, including all transfers of arms and all military training. It imposed measures under Article 41 on Liberia and individual members of its government.184 Later it called on Liberian forces to refrain from unlawful incursions into Sierra Leone, and expressly determined that the active support by the government of Liberia to armed rebel groups in the region, including to rebels in Côte d’Ivoire and former References(p. 112) RUF combatants who continued to destabilize the region, constituted a threat to international peace and security in the region.185
Another example is that of Somalia. When Eritrea was accused of intervention in Somalia on the side of armed groups which aimed to destabilize the region, the Security Council imposed sanctions on it in Resolution 1907 (2009), passed by 13–1 (Libya) –1 (China).186 This resolution demanded that Eritrea cease all efforts to destabilize or overthrow, directly or indirectly, the TFG. It called on all member states, ‘in particular Eritrea’, to cease arming, training, and equipping armed groups, including AlShabaab. After the Somalia/Eritrea Monitoring Group found that Eritrea had continued to provide support to armed opposition groups, including AlShabaab,187 the Security Council in Resolution 2023 (2011) condemned the violations by Eritrea of Resolution 1907. But later the Monitoring Group reported that it had found no evidence that Eritrea was supporting AlShabaab, though it did continue to support other armed groups. Some states called for a re-examination of the sanctions.188
The Non-Aligned Movement consistently proclaims the illegality of intervention to secure regime change,189 and in 2016 Russia and China issued a Joint Declaration on the Promotion of International Law. In this they fully supported the principle of non-intervention, and condemned as a violation of this principle any interference by states in the internal affairs of other states with the aim of forging change of legitimate governments.190 This may well seem hypocritical on the part of Russia in the light of its intervention in support of Russian separatists in eastern Ukraine since 2014. Following Russia’s annexation of Crimea, pro-Russian groups in eastern Ukraine also made claims to autonomy or independence against the government. A violent struggle ensued, and the government used heavy weapons and aircraft against the separatists. It denounced the opposing forces as terrorists.191 The conflict continued and intensified at the start of 2017 References(p. 113) despite the 2015 Minsk ceasefire agreement.192 Almost 10,000 people have been killed and more than 1.7 million displaced.193 But Russia does not assert a legal right of intervention in support of an armed opposition, though it does maintain that the events in Ukraine had been provoked by ‘an externally supported coup d’etat’.194 In reply to the many accusations by Ukraine and by Western states, and despite the plausible newspaper reports of the presence of Russian troops in Ukraine, Russia maintained that any Russian troops are volunteers, veterans, or troops on holiday in Ukraine.195 The USA and UK also accuse Russia of equipping, arming, and training the separatists in violation of international law and the UN Charter.196
There is a striking similarity between Russia’s assistance to the armed opposition in Ukraine and that of the USA, the UK, Saudi Arabia, Qatar, Jordan, and Turkey to the armed opposition in Syria. But it is legally significant that in both conflicts those intervening on the side of the armed opposition did not assert a legal right to do so. In Syria, the popular uprising against the Assad government that began in 2011 turned into a prolonged sectarian conflict fuelled by foreign involvement, leaving over 250,000 dead, 5 million refugees, and 6.5 million internally displaced out of a total population of 22 million.197 Sunni states, including Saudi Arabia, Qatar, Jordan, and Turkey, assisted diverse armed opposition groups, as did the USA and the UK. The opposition included not only the Free Syrian Army (FSA), initially supported by the USA as the armed wing of the legitimate opposition, but also terrorist groups such as ISIS and the AlNusra Front (affiliated to Al Qaida ).198 These and other Islamist groups—despite the divisions between them—became militarily predominant among the opposition forces and succeeded in taking control of large areas of territory, not only in Syria but also in Iraq.199 Russia, Shiite Iran, and Hezbollah provided aid and intervened directly in support of the Assad government.200 Russia went on to take References(p. 114) a more direct role in September 2015, when it began to supply fighter aircraft, helicopters, and tanks to the government and itself to carry out air strikes on opposition forces in response to their growing military gains.201
Intervention in Syria took different forms: first, certain states supplied arms, equipment, finance, and training (all classified as intervention in the Nicaragua case) to help opposing forces to overthrow the Assad government.202 Syria repeatedly accused them of unlawful intervention.203 Those states supporting the armed opposition did not attempt to provide a legal justification for their actions. The USA and UK at first gave what they claimed was ‘non-lethal’ aid as if that label made it lawful.204 Such aid did not initially include the supply of arms, but it did include night-vision goggles, protective gear, armoured vehicles, and communications equipment (all of which could be of direct use in conflict) as well as direct financial aid. But, as we have seen, the prohibition on intervention in the Nicaragua case is a wide one, and covers this type of assistance. The USA tried to challenged the narrative that in Syria it was on the same side as the terrorist groups it was fighting in Iraq by attempting to identify a moderate opposition and to assist this opposition to establish control over military forces. But the USA and UK faced the problem that the Free Syrian Army and its successors worked with Islamist groups, including the AlNusra Front and ISIS.205
This was of concern to Austria when the UK and France successfully secured the lifting of the EU arms embargo imposed in May 2011 on all groups in Syria, in order to allow the arming of the opposition.206 Austria had strongly opposed this move. It said that the Syrian National Coalition did not have full authority and control over all armed opposition groups, and cooperated with groups which included various extremist and terrorist fighters. The supply of arms to opposition groups would be a breach of the customary principle of non-intervention and the principle of non-use of force under Article 2(4). Austria cited the Nicaragua case and the Armed Activities case as support for its position. The supply of arms would References(p. 115) also amount to a violation of Security Council Resolutions 1373 (2001) and 1624 (2005) establishing an arms embargo against individuals and entities associated with Al Qaida, in that weapons sent to the Free Syrian Army could end up in the hands of terrorist groups.207 That is, the prohibition of forcible intervention set out in the UN Charter Article 2(4) and the Declaration on Friendly Relations have been further developed in Security Council Resolutions passed after 9/11 imposing obligations to act against terrorists.208
There were also many consistent newspaper reports of covert aid by the USA, the UK, and France; they paid the salaries of opposition armed forces, provided intelligence, equipment, and training.209 The US President signed ‘secret covert action findings’ authorizing the CIA to provide arms to the rebels.210 Saudi Arabia and Qatar also provided very significant covert aid; they allowed the provision of arms and financial aid from 2012, with a significant increase in 2015.211 They did not openly claim a right to supply arms to opposition groups, and did not offer a legal justification. They have supported a range of different armed groups, including Islamist groups associated with the AlNusra Front.212 But just because aid to armed opposition forces is covert this does not mean that it does not have to be (p. 116) justified as a matter of international law. Syria repeatedly protested about Saudi Arabia’s support for terrorist groups.213
Turkey also played a major role in the conflict in Syria, but its interests did not completely coincide with those of the US-led coalition. Not only was Turkey hostile to Assad, who had in the past supported the terrorist PKK group of Turkish Kurds, it was also concerned about the threat it perceived from the Syrian Kurds in the YPG, one of the most successful opposition groups in fighting ISIS. Turkey allowed the Free Syrian Army to operate from its territory, and enabled the supply of arms and military equipment, with assistance of the CIA. It also allowed the infiltration of Islamist supporters across its border into Syria.214 It could be accused not only of active support to armed opposition groups, but also of violation of the duty of vigilance: of ‘acquiescing in organized activities in its territory directed towards the commission of terrorist acts, acts of internal strife’, as declared unlawful by the ICJ in the Armed Activities case.215 Syria sent hundreds of letters to the Security Council protesting about Turkey’s intervention, but Turkey offered no legal justification for its support for armed opposition forces.216
The next stage of intervention began after the international outcry about the 2013 chemical weapons attack, widely attributed to Assad government forces. The USA and the UK decided not to intervene directly against the Assad government to prevent future use of chemical weapons, but instead pursued a diplomatic agreement following a Russian initiative. The Assad government agreed to surrender its chemical weapons in the deal brokered by Russia and the USA in 2013.217 The USA continued to supply non-lethal aid, and also decided to supply arms to the forces of the Syrian Official Coalition, recognized by it as the legitimate government.218 It began to shift its public focus away from possible direct military action against the Assad government to the dangers posed by ISIS in Syria and Iraq and also to states outside the region.219 In 2014 the Security Council for the first time strongly condemned increased terrorist acts by organizations and individuals associated with Al Qaida, its affiliates, and other terrorist References(p. 117) groups. It called on both the Syrian authorities and opposition groups to commit to combating those groups.220 It later went further: it identified the threat from ISIS, and decided that states should prevent the direct or indirect supply to ISIS from their territories or by their nationals of arms and related material.221 The US Congress now officially authorized train and equip programmes to help to establish a ‘moderate opposition’ against ISIS in September 2014, but these efforts were less than successful.222 Accordingly in October 2015 the USA shifted its approach to that of supplying existing groups, and in particular the Syrian Kurdish force, the YPG, which had had considerable success in its conflict with ISIS. The YPG formed part of the ‘Syrian Democratic Forces’ set up in October 2015.223 Clearly, assistance in the creation of such opposition forces and the provision of arms and other support to them in taking territory from ISIS could also pose a threat to the Assad government.224
Even more controversially, the USA and other states began direct military action in Syria on the legal basis of collective self-defence of Iraq and also, in some cases, of individual self-defence against attacks by ISIS: in August 2014 the USA began to carry out air strikes against ISIS and the AlNusra Front in Syria. This operation later became Operation Inherent Resolve and was joined by many more states, including Australia, Canada, France, Belgium, Denmark, and the Netherlands.225 The air strikes (and covert actions by special forces on the ground) were carried out without the consent of the Syrian government. Syria protested that ‘if any State invokes the excuse of counter-terrorism to be present in Syrian territory without the consent of the Syrian government … its actions shall be considered a violation of Syrian sovereignty. Combating terrorism in Syria requires close cooperation and coordination with the Syrian government.’226 In 2017 the USA (p. 118) under President Trump increased the number of air strikes against ISIS and Al Qaida , and also increased the number of US marines on the ground in Syria.227 It carried out a series of direct attacks on Syrian territory. In April 2017 it carried out a cruise missile attack on Syrian government targets in response to their alleged use of chemical weapons.228 Then, in May 2017, it attacked pro-Assad Iranian militias in southern Syria, apparently in defence of US special forces present on Syrian territory without the consent of the government. Those forces were on Syrian territory to assist anti-Assad rebels against ISIS, and apparently also to help them to keep control of the territory that they had recovered from ISIS.229 In June 2017 the USA escalated further and attacked a Syrian fighter jet that it accused of showing ‘hostile intent’ to coalition forces training and advising the anti-Assad rebels it supported.230 This was the first time that the USA had shot down a Syrian warplane during the conflict. Russia condemned the action as a ‘flagrant violation of international law’.231
2 Human Security Report 2005, War and Peace in the 21st Century (2005) at 22–3. In 2016 the Deputy Secretary-General reported that the number of civil wars has tripled in the past ten years, UN Press Release GA/11781, 10 May 2016.
3 Arab League Pact Article 8 (70 UNTS 237); OAS Charter Article 15 (119 UNTS 48); OAU Charter (479 UNTS 70) Article 3; AU Constitutive Act Article 4(g) (2158 UNTS I 37733).
4 ICJ Reports (1986) 14 at para 191; ICJ Reports (2005) 168 at para 162.
7 Nicaragua case, para 184.
8 Nicaragua case, para 191.
11 Ibid, paras 206–9. The ICJ deliberately left on one side the question of the use of force by national liberation movements. Judge Schwebel, in his Dissenting Opinion, paras 179–80, was critical of this insofar as it indicated an exception to the principle of non-intervention.
12 Nicaragua case, para 246.
15 ICJ Reports (2005) 168, noted by Gathii, 101 AJIL (2007) 142.
16 For an account of events in the DRC, see 1998 UNYB 82, 1999 UNYB 81, 2000 UNYB 119, 2001 UNYB 116, 2002 UNYB 102, 2003 UNYB 113, 2004 UNYB 119. See also Okowa, ‘Congo’s war’, 77 BYIL (2006) 203.
17 On 23 June 1999 the DRC brought three cases before the ICJ against Burundi, Uganda, and Rwanda for acts of armed aggression in August 1998. It subsequently withdrew the cases against Rwanda and Burundi, but the case against Uganda continued and was decided in 2005.
18 They were apparently motivated in part by hostility to ex-President Mobutu; he had for many years supported União Nacional para a Independência Total de Angola (UNITA) opposition forces which had operated against their governments.
19 As a reflection of their involvement six states signed the Lusaka Ceasefire Agreement for the DRC on 15 July 1999: 1999 UNYB 87; Keesing’s (1999) 43051.
21 1999 UNYB 81, 2000 UNYB 119-4, 2001 UNYB 116-36.
22 See, for example, UN docs S/2002/1202, S/2002/1187; 1999 UNYB 84, 2000 UNYB 122, 2001 UNYB 122.
23 2001 UNYB 140-5. Uganda, Rwanda, and Burundi objected to the April 2001 report, and the initial accusations against Burundi were dropped. The Expert Panel issued additional reports on the self-financing nature of the conflict and the continuing illegal exploitation of the DRC’s natural resources by state and non-state actors (UN docs S/2001/1072, S/2002/1146). Rwanda rejected the accusations that it was involved in the DRC for purely economic reasons; it maintained that it was concerned to prevent Rwandan opposition forces crossing into its territory; Uganda also said that the Final Report of the Panel ignored the fact that its forces were in the DRC for genuine security reasons; Zimbabwe and Angola drew a distinction between their position and that of the uninvited forces, UN docs S/PV 4642 (2002) at 2, 11, 15; S/PV4642 Res 1 at 18.
25 SC Res 1332 (2000), 1341 (2001), 1355 (2002).
26 SC Res 1417 (2002), paras 10, 12.
27 SC Res 1355 (2001), para 10.
28 Keesing’s (2001) 43932.
29 2003 UNYB 129; Keesing’s (2003) 45331; UN Press Release SG/SM/8785, 18 July 2003.
30 46 ILM (2007) 173; Report of the Secretary-General, UN doc S/2007/156, at para 21; UN doc S/PV 5603 (2006).
31 It also claimed that its troops were in the DRC with the consent of the government for part of the time, ICJ Reports (2005) 168, paras 92–105. The Court rejected this claim: see Christakis and Bannelier, ‘Volenti non fit injuria’, 50 AFDI (2004) 102.
32 ICJ Reports (2005) 168, para 41.
34 For further discussion of the Court’s treatment of self-defence in this case, see 174 below.
35 ICJ Reports (2005) 168, paras 148–65.
40 Ibid, paras 302–3. The Court divided its consideration of Uganda’s first Counterclaim into three periods as suggested by the DRC.
41 Judges Tomka, Kooijmans, and Kateka argued that it was for the DRC to show that it had fulfilled its duty of vigilance and that in the absence of such evidence it was guilty of tolerating the activities of the rebels. Some commentators have made far-reaching claims about the consequences of a breach of the duty of vigilance in the context of the Syrian conflict, but these claims go far beyond the actual decision in the case. See Chapter 5.
42 See Nolte, Eingrefen auf Einladung (1999); Corten, ‘La rébellion et le droit international’, 374 Hague Recueil des Cours (2014) 53; Lieblich, International Law and Civil Wars (2013); Shattock, The legal limits of intervention by invitation of governments in civil wars (PhD, University of Cambridge, 2018).
43 ‘UK Materials on International Law’, 57 BYIL (1986) 614.
44 This relatively narrow conception of a civil war requires that the opposing forces control territory; this mirrors the provision in the laws of armed conflict set out in the 1977 Additional Protocol II to the 1949 Geneva Conventions Relating to the Protection of Victims of Non-International Armed Conflicts. Article 1 sets the threshold for the existence of a non-international armed conflict and the application of the Protocol at a high level, requiring that dissident armed forces or other organized armed groups exercise such control over part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. The Protocol does not apply to internal disturbances and tensions such as riots, isolated and sporadic acts of violence, and other acts of a similar nature. This threshold is higher than that set in Common Article 3 of the 1949 Geneva Conventions. Article 1(4) of Additional Protocol I provided that conflicts involving national liberation movements should be categorized as international. See Fleck (ed), The Handbook of Humanitarian Law in Armed Conflicts (3rd edn 2013), Chapter 2.
45 See Wright, ‘Legal Aspects of the Viet-Nam Situation’, 60 AJIL (1966) 750; Falk (ed), The Vietnam War and International Law, 4 vols (1968, 1969, 1972, 1978).
46 1965 UNYB 185. The UN Secretary-General said: The escalation of the conflict in Viet-Nam was perhaps the most important of developments on the international scene which had repercussion on the UN. Paradoxically the problem was one in regard to which the Organization had not been able to take any constructive action, as was to some extent understandable since the settlement reached at Geneva in 1954 prescribed no role for the UN. Moreover, neither North Viet-Nam nor South Viet-Nam was a Member of the UN and parties directly interested in the conflict had openly voiced the view that the UN as such had no place in the search for a solution to the problem. This, of course, could not in itself prevent the UN from discussing the problem, but it did militate against the Organization being able to play a constructive role at the present stage.
47 See Gray, ‘Bosnia and Herzegovina: Civil War or Inter-State Conflict?’, 67 BYIL (1996) 155.
48 See, for example, Tadic Jurisdiction, 35 ILM (1996) 132; Tadic Judgment, 36 ILM (1997) 908; Tadic Appeal, 38 ILM (1999) 1518; Celebici, 38 ILM (1999) 57; Rajic, 91 AJIL (1997) 523.
49 See Brownlie, International Law and the Use of Force by States (1963), 327; Corten, The Law against War (2010), 288, 290; Corten, ‘La rébellion et le droit international’, 374 RCDI (2014) 53; Fox ‘Intervention by Invitation’ in Weller (ed), Oxford Handbook on the Use of Force in International Law (2015), 816.
51 UN docs S/2013/17, S/2013/189, para 4. See also, Bannelier and Christakis, ‘Under the Security Council’s watchful eyes’, 26 Leiden JIL (2013) 855. On Operation Serval see <www.sdefnse.gouv.fr/operations/mali/dossier>. It terminated in July 2014 and was replaced by the larger regional force, Operation Barkhane, in partnership with Mauritania, Mali, Niger, Burkina Faso, and Chad.
52 ISIS (also known as ISIL) grew out of Al Qaida in Iraq (AQI) which had emerged after the 2003 US-led military operation against Saddam Hussein. AQI changed its name to ISIS in 2013, and declared a caliphate under the name of Islamic State in 2014. Al Qaida disowned ISIS in Feb 2014. On the rise of ISIS, see Report of the Secretary-General, UN doc S/2016/92.
53 Chulov, ‘Iran sends troops into Iraq to aid fight against ISIS militants’, The Guardian, 14 June 2014; Keesing’s (2014) 53441, 53768.
54 Iraq’s request, UN doc S/2014/691; US response, UN doc S/2014/695; UK response, UN doc S/2014/851. The USA not only carried out air strikes, it also sent in an increasing number of ground troops as ‘trainers’ of the Iraqi armed forces. In 2016–17 it increased the number of ‘advisers’ to assist the operations against ISIS. The UK has also provided nearly 1,000 ‘trainers’ on the ground.
56 See account in 109 AJIL (2015) 199. See Bannelier-Christakis, ‘Military interventions against ISIL in Iraq, Syria and Libya’, 29 Leiden JIL (2016) 743.
57 On targeted killing, see 233 below.
59 UN doc S/PV 4688 (2003).
60 See, for example, UN docs S/2012/131, S/2015/276, S/2015/873. Syria has repeatedly challenged the term ‘non-state armed opposition groups’ used in the Secretary-General’s Reports to the Security Council under SC Res 2139 (2014). See, for example, UN doc S/2017/339.
61 In 2015 Syria confirmed that it had invited Russia to cooperate in countering terrorism, UN docs S/2015/789, S/2015/792. Iran admitted that its troops were in Syria in May 2013, Keesing’s (2013) 52762. On Hezbollah’s assistance to the government, see Keesing’s (2013) 52577, 52699.
62 Its first resolutions to do so were SC Res 2139 (2014), SC Res 2170 (2014).
63 UN docs S/2013/492, S/2013/101.
64 See 113 below. The disagreements as to which groups were terrorists is also significant with regard to the implementation of ceasefire agreements in Syria; these allowed continued military action against terrorists. SC Res 2336 (2016) welcomed the efforts by Russia and Turkey to end violence in Syria after they brokered a ceasefire in December 2016. See Reports of the Secretary-General UN docs S/2017/339, S/2017/445, S/2017/541 for an account of the continued fighting.
65 See Sec-Gen Reports, UN docs S/2013/516, S/2015/624, S/2016/627, S/2016/1011.
66 SC Res 2214 (2015), 2259 (2015).
67 US Africa Command Press Release, 3 Aug 2016. The USA, the UK, and France have also sent in special forces on the ground. See Bannelier-Christakis, note 56 above, for discussion of earlier interventions in Libya by Egypt, the United Arab Emirates (UAE), and the USA. In contrast to the US reliance on consent by the GNA, France and Egypt did not seek an invitation to justify their attacks on terrorist groups in Libya: on France, see 110 AJIL (2016) 809; on Egypt see UN doc S/2015/120; Al Jazeera1, ‘Egypt launches strikes in Libya after Minya attack’, May 2017, <http://www.aljazeera.com/news/2017/05/egypt-launches-strikes-libya-minya-attack-170526200625281.html>.
68 UN doc S/PV 7927 (2017).
69 President Obama claimed that the military action in Libya was covered by the Authorization for Use of Military Force (AUMF) passed by Congress after 9/11 to authorize force against Al Qaida and associated groups. See 207 below.
70 See discussion by Bannelier and Christakis, note 56 above; Corten, The Law against War (2010) at 288; Lieblich, note 42 above at 155.
71 The impact of such facilities was indicated by the General Assembly in, for example, Resolution 51/427 (1996) on Bases and Installations on Non-Self Governing Territories, passed by 109-47-5. This expressed the strong conviction that military bases and installations in the territories could constitute an obstacle to the exercise by the people of those territories of their right to self-determination.
72 Moisi, ‘Intervention in French Foreign Policy’, in Bull (ed), Intervention in World Politics (1984), 67.
73 See 351 below (Côte d’Ivoire), 380 (Mali), 346 (CAR).
74 Alam, ‘Indian intervention in Sri Lanka and International Law’, 38 Neth ILR (1991) 346.
75 Keesing’s (1987) 35315.
77 India UN doc S/19354, Sri Lanka UN doc S/19355.
78 Keesing’s (2000) 43352, 43454, 43616, 43699, 43789, 43940.
79 Keesing’s (2001) 44339, (2002) 44606, 44609, 44931, (2003) 45234, (2005) 46938.
80 This was welcomed in SC Res 2307 (2016).
81 The Definition of Aggression Article 3(e) provides: ‘The use of armed forces of one state which are within the territory of another state with the agreement of the receiving state, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement.’ The delay by Russia in withdrawing their forces from the Baltic states (1994 UNYB 58, 576); by the UK in leaving Egypt (1947 UNYB 356); and by France in leaving Tunisia (1961 UNYB 101) were all the subject of complaint on this basis. Also the DRC claimed that Uganda’s continued use of force on its territory after its consent to the presence of the Ugandan forces had ended constituted aggression. The ICJ avoided any specific finding of aggression, but it did hold that Uganda was guilty of a violation of Article 2(4): ICJ Reports (2005) 168 at paras 42–54, 92–105, 110–11, and 165.
82 For a fuller account, see 3rd edn of this book at 85.
83 The UN Secretary-General expressed concern at the entry of the GCC troops, UN Press Release SG/SM/13445, 14 Feb 2011. See Corten, ‘La rébellion et le droit international’, 374 RCDI (2014) 53 at 161.
84 UN doc S/2011/253. The GCC accused Iran of interference, UN doc S/2011/253.
85 1956 UNYB 67. The only states defending the USSR were from the socialist bloc.
87 UN doc S/PV2932 (1990).
88 For a fuller discussion of this practice, see the 3rd edn of this book, at 88. See Chapter 4 on the use for force in protection of nationals abroad without the consent of the territorial state.
89 1964 UNYB 95; see Virally, ‘Les Nations Unies et L’Affaire du Congo’, 1960 AFDI 557; Abi-Saab, The United Nations Operation in the Congo 1960–1964 (1978).
90 2000 UNYB 195; UN doc S/PV 4139 (2000); Statement by the Secretary of State for Defence in the House of Commons, 15 May 2000. See Chapters 6 and 8 on peacekeeping in Sierra Leone.
92 Keesing’s (2000) 43552, (2001) 44330, 2000 UNYB 195, 207. The UK forces remained until July 2002 (Keesing’s (2002) 44888); they returned briefly in February 2003 because of concern about possible destabilization as a result of the conflict in Liberia (Keesing’s (2003) 45231; UN doc S/PV 4577 (2002).
93 1965 UNYB 140; Meeker, ‘The Dominican Situation in the Perspective of International Law’, 53 Department of State Bulletin (1965) 60.
94 The GA condemned the intervention in GA Res 38/7 (1983) (108-9-27). The condemnation by the Security Council was vetoed by the USA: 1983 UNYB 211. See Gilmore, The Grenada Intervention (1984).
96 Keesing’s (1989) 37113; D’Amato, ‘The Invasion of Panama was a Lawful Response to Tyranny’, 84 AJIL (1990) 516; Henkin, ‘The Invasion of Panama under International Law: A Gross Violation’, 29 Col J Trans L (1991) 293.
97 On the regional peacekeeping justification also used in the Dominican Republic and Grenada, see Chapter 8.
98 Both these episodes show the absence of a clear line between helping a government to deal with outside subversion and collective self-defence; it was not always obvious which argument the government was relying on. But the distinction does not affect the right to send troops into the state to help the government; it only affects the scope of the right to use force. See Chapter 4 on collective self-defence.
99 UN doc S/PV1441(1968), para 133; 1968 UNYB 299.
100 On the relationship between the Brezhnev doctrine and earlier US justification for its intervention in the Dominican Republic, see Franck and Weisband, Word Politics (1972).
102 Keesing’s (1991) 38687.
103 Keesing’s (1989) 36982; see Gray, ‘Self-Determination and the Break-Up of the Soviet Union’, 12 European YIL (1992) 465.
104 1980 UNYB 296 at 298, 299.
105 GA Res 35/37 (1980) (111-22-12), 1980 UNYB 296, 308.
106 Keesing’s (1991) 38437; (1992) 38725.
107 For a discussion of the Cyprus intervention and the interpretation of the Treaty of Guarantee, see Ronzitti, Rescuing Nationals Abroad (1985) at 117–34; Necatigil, The Cyprus Question and the Turkish Position in International Law (1989); 1974 UNYB 256.
108 SC Res 351, 353, 355, 356, 358, 359, 360, 361 (1974), etc.
109 This was the position of Angola, Namibia, and Zimbabwe as regards their intervention to assist the government of the DRC against Rwanda and Uganda: see 176 below.
110 Keesing’s (1980) 30261.
111 Keesing’s (1987) 35110.
112 Keesing’s (1991) 38564, (1992) 38755.
113 Keesing’s (1981) 30687, 31165.
114 The United Nations Blue Book Series, Vol V, The United Nations and Mozambique 1992–1995 (1995), 11.
116 For a general account of the conflict in Chad, see Weisburd, Use of Force (1997), 188; Alibert, ‘L’affaire du Tchad’, 90 RGDIP (1986) 368.
118 For a fuller discussion, see third edn of this book at 107.
119 For an account of events, see Ruys and Ferro, ‘Weathering the storm’, 65 ICLQ (2016) 61.
120 First as President of North Yemen from 1978 and then, after the unification of North and South Yemen in 1990, as President of the whole of Yemen.
122 See Ruys and Ferro, note 119 above.
123 UN docs S/PV 7411 (2015), S/PV 7426 (2015), S/2015/266.
125 UN docs S/2016/73, S/2017/81.
127 Ibid, para 54; UN doc S/2017/81, para 55.
128 See Roth, Governmental Illegitimacy in International Law (1998).
129 Doswald Beck, ‘The Legal Validity of Military Intervention by Invitation of the Government’, 56 BYIL (1985), 189; Mullerson, ‘Intervention by invitation’ in Damrosch and Scheffer (eds), Law and Force in the New International Order (1991), 13; Nolte, Eingreifen auf Einladung (1999).
130 For an account of Syria’s presence in Lebanon, see Report of the Secretary-General, UN doc S/2004/777.
131 An indication of this special relationship was that there were no diplomatic relations between the two states; they did not maintain embassies on each other’s territory. The Security Council later called for the establishment of normal diplomatic relations in Resolutions 1680 (2006).
132 For an account of the conflict in Lebanon, see Weisburd, Use of Force (1997), 155.
133 Bregman and El-Tahri, The Fifty Years War (1998), 157–60.
134 Keesing’s (1976) 27765; Report of the Secretary-General, UN doc S/2004/777 at para 4, 13.
138 1984 UNYB 285; UN doc S/PV 2556 (1984), UN doc S/17694 (1985).
139 UN doc S/PV 2640 (1986). In 1991 Lebanon and Syria concluded two treaties. The first in May was on coordination and cooperation; Lebanon would not allow forces hostile to Syria to operate from its territory and joint councils would coordinate policy. The second agreement in September was a mutual defence treaty. These agreements formally recognized the special position of Syria (1991 Annual Register 215).
140 UN doc S/PV 5028 (2004).
141 UN doc S/PV 5122 (2005).
142 The UN SC established an International Commission of Inquiry into the assassination by Resolution 1595 (2005). In SC Res 1757 (2005) the SC provided for the establishment of an international tribunal to try those found responsible for any terrorist crime.
143 UN doc S/PV 5172 (2005).
144 SC Res 1614 (2005), SC Res 1655 (2006), SC Res 1680 (2006).
145 Report of the Secretary-General UN doc S/2004/777 at paras 18–21.
146 Report of the Secretary-General UN doc S/2000/460. Both Syria and Lebanon said that they regarded the territory as part of Lebanon.
147 Report of the Secretary-General UN docs S/2000/460, S/2000/564, S/PV 4146 (2000), S/PV 4160 (2000).
148 S/PRST/2000/21, 18 June 2000; SC Res 1583 (2005), 1614 (2005).
149 Secretary-General’s Reports UN docs S/2004/777, S/2005/272, S/2005/673, S/2006/248, S/2006/832; UN docs S/PV 5241 (2005); S/PV 5175(2005); S/PV 5352 (2006).
152 De Wet, ‘The modern practice of intervention by invitation in Africa’, 26 EJIL (2015) 979; Roth, ‘Secessions, coups and the international rule of law’, 11 Melbourne JIL (2010) 393; Corten, note 42 above; LeMon, ‘Unilateral intervention by invitation in civil wars’, 35 NYUJILP (2003) 741.
153 See Report of the Secretary-General, UN doc S/2013/189, UKMIL in 84 BYIL (2013) 801. See Bannelier and Christakis, note 51 above.
154 For a more detailed account of the background, see Chapter 6.
155 See Kenya’s letter to the UNSC, UN doc S/2011/646. On Kenya’s possible additional justification of self-defence against AlShabaab in response to a series of kidnappings in Kenya, see also Chapter 5. The Monitoring Group on Somalia and Eritrea reported that ‘the principal impediments to security and stabilization in southern Somalia are the TFG leadership’s lack of vision or cohesion, its endemic corruption and its failure to advance the political process’, UN doc S/2011/433.
157 For criticism of the failure to plan for the aftermath of the military operation, see UK Foreign Affairs Committee, Third Report of Session 2016–17, Libya: Examination of intervention and collapse, HC 119, 14 Sept 2016. This failure is all the more disappointing in the light of past experience in Afghanistan and Iraq where the overthrow of the Taliban and Saddam Hussein governments had led to prolonged insecurity.
158 SC Res 2238 (2015); Joint Communique on Libya, Brussels, 22 Sept 2016, Unique ID:160922_11, EU External Action Service.
159 UN docs S/PV 7124, 7125 (2014); Bilkova, ‘The use of force by Russia in Crimea’, 75 ZaöRV (2015) 27.
160 UN doc S/PV 7125. Russia also said that it had been invited into Crimea by the Prime Minister. However, commentators generally agree that only the highest state authority may invite outside intervention. See, for example, Nolte, ‘Intervention by Invitation’, Max Planck Encyclopaedia on Public International Law; Corten, ‘The Russian intervention in the Ukrainian crisis’, 2 Journal on the Use of Force and International Law (2015) 17; Simma et al. (eds), The Charter of the UN: A Commentary (3rd edn 2012), 214.
161 UN doc S/PV 7125; the USA and France also accused Russia of violating Ukraine’s sovereignty.
162 Ruys and Ferro, note 119 above.
163 SC Res 2051 (2012), SC Res 2140 (2014), SC Res 2201 (2015).
165 UN Press Release SG/SM/16621, 26 March 2015.
166 UN doc S/PV 7871 (2017).
168 Syria’s invitation, UN doc S/2015/789; Russia’s response, UN doc S/2015/792.
170 Lowe, ‘The Principle of Non-intervention: Use of Force’, in Lowe and Warbrick (eds), The United Nations and the Principles of International Law (1994), 66; Weisburd, Use of Force (1997), 1–27. See contra, Mullerson, ‘Sources of International Law: New Tendencies in Soviet Thinking’, 83 AJIL (1989) 494.
171 Reisman, ‘Old Wine in New Bottles: The Reagan and Brezhnev Doctrines in Contemporary International Law and Practice’, 13 Yale JIL (1988) 171; Reisman, ‘The Resistance in Afghanistan is Engaged in a War of National Liberation’, 81 AJIL (1987), 906 and (1988), 82. Reisman seems to go further than the US government in his argument. Vertzberger, Risk Taking and Decisionmaking; Foreign Military Intervention Decisions (1998), demonstrates that despite the belligerent rhetoric President Reagan’s administration in fact took a cautious attitude to intervention.
172 Kirkpatrick and Gerson, ‘The Reagan Doctrine, Human Rights and International Law’, in Henkin (ed), Right v Might (1991), 19. D’Amato also was insistent that the doctrine did not involve the forcible overthrow of the government: ‘The Secret War in Central America and the Future of World Order’, 80 AJIL (1986) 43 at 111.
173 Keesing’s (1986) 34426; (1987) 35121, 35174; (1988) 35896. This pretence seems to have come near to being abandoned in 1987 with reports of the direct supply of Stinger missiles to the opposition forces in Angola and Afghanistan: Keesing’s (1987) 34864; (1988) 35786. Some of these weapons ended up in the hands of the Iranian opposition and of Qatar: Keesing’s (1998) 36220, 36313.
174 For accusations against Syria, see, for example, Keesing’s (2005) 46651,46714; for accusations against Iran, see, for example, Keesing’s (2005) 46905, (2007) 47679, 47780, 47867, (2007) 47679, 47722, 47780, 48063, 48102. Some of these accusations expressly allege government responsibility for intervention; others are more general claims that there is intervention by Syrian or Iranian groups or from the territory of Syria and Iran.
175 Foreign Affairs Committee Seventh Report of Session 2001–02, Foreign Policy Aspects of the War Against Terrorism, HC 384, para 204; Second Report of Session 2002–03, HC 196, para 111. See Reisman, ‘Why regime change is (almost always) a bad idea’, 98 AJIL (2004) 516.
176 UN docs S/PV 4726 and 4726 Res 1 (2003).
177 UKMIL, 73 BYIL (2002) 877 at 16/43.
178 AG’s Advice on the Iraq War, 54 ICLQ (2005) 767 at para 36.
179 Case concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Reports (1986) 14 at para 241.
180 ICJ Reports (2005) 168 at para 163.
181 S/PRST/1997/47; 1997 UNYB 112.
182 In 2003 Charles Taylor was indicted for war crimes and crimes against humanity for his part in the conflict in Sierra Leone; he is facing trial before the Special Court for Sierra Leone. On UN and regional peacekeeping in Sierra Leone, see Chapters 6 and 8.
183 Guinea accused Liberia and Burkina Faso of support for armed opposition to its government; Liberia accused Guinea and Cote d’Ivoire (2000 UNYB 180, 182; 2001 UNYB 180, 2002 UNYB 186–7; Reports of the Secretary-General UN docs S/2003/466, S/2002/494; UN doc S/PV 4405 (2001); Keesing’s (2000) 43737, 43781, (2001) 43933, 43985, 44041, 44141, (2002) 44605).
184 See Secretary-General’s Reports on Liberia’s compliance with these demands: UN doc S/2002/494; 2001 UNYB 184, 186; 2002 UNYB 168.
185 SC Res 1408, 1436 (2002) para 13; SC Res 1478 (2003).
186 UN docs S/2008/769, S/2009/388.
187 UN doc S/2011/433. The Group did, however, note that Eritrea’s support for such groups could only be understood in the context of its unresolved border dispute with Ethiopia. The SC had not taken any action on Ethiopia’s continued occupation of Eritrean territory. See 157 below.
188 See, for example, UN docs S/2014/727, S/2015/801, S/PV 7626 (2016) Russia, Senegal, China, and Venezuela; S/PV 7925 (2017).
189 Most recently, in the declaration issued at the 17th summit (2016), <www.8.irna/en/News/82235410/> when they reaffirmed their commitment to non-intervention, and rejected the illegal policy of regime change aimed at overthrowing constitutional governments. See also UN doc S/2014/573.
190 <www.rusemb.org.uk/fnapr/5645>. Though note the flexibility offered by the use of the word ‘legitimate’. See also Foreign Policy Concept of the Russian Federation (approved by President Putin on 30 Nov 2016), Document 2232-01-12-2016.
191 For example, UN doc S/PV 7154 (2014); Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination, (Provisional Measures) Ukraine v Russia, ICJ Reports 2017, paras 2, 25.
192 The SC supported the Minsk Agreement in SC Res 2202 (2015).
193 UN doc S/PV 7876 (2017).
194 UN doc S/PV 7683 (2016).
195 For example, the accusations by Ukraine, the USA, and the UK in UN doc S/PV 7154 (2014); UK in UKMIL 85 BYIL (2014) 365–6, 617–18. Russia’s position is that the pro-Russian forces in Ukraine are not its agents and do not carry out operations under its effective control, and that therefore they do not meet the Nicaragua threshold for attribution of a violation of the prohibition of the use of force.
196 UN doc S/PV 7576 (2015), S/PV 7683 (2016),
197 According to the United Nations High Commissioner for Refugees (UNHCR).
198 It changed its name in 2016 and announced that it had split from Al Qaida , but this was rejected by the USA and Russia.
199 Keesing’s (2013) 53094, (2014) 53147, 53208, 53716, 53767.
200 Keesing’s (2012) 52408, 52243; (2013) 52762, 52816. Hezbollah was designated as a terrorist organization by the GCC and the Arab League in 2016 (though this was not supported by Iraq and Lebanon), as it had been earlier by the USA, and by the EU as regards its military wing, ‘Arab League brands Hezbollah a terrorist organization’, <www.bbc.co.uk/news/world-middleeast-35789303>.
201 UN docs S/2015/789, S/2015/792; Keesing’s (2015) 54284.
202 Keesing’s (2012) 51070, 51015. For early Syrian protest at outside intervention, see UN doc S/2011/353. See also Ruys, ‘Of arms, funding and non-lethal assistance’, 13 Chinese JIL (2014) 13; Gray, ‘The Limits of Force’, 376 Hague Recueil des Cours (2014) 101.
203 See, for example, UN docs S/2011/353, S/2015/388, S/2016/703.
204 Keesing’s (2013) 52520, 52634, 52762. See, for example, UK Foreign Secretary William Hague, Oral Statement to Parliament, UK response to developments in Syria, 12 Sept 2013 <www.gov.uk/government/speeches/uk-response-to-developments-in-syria-and-chemical-weapons.ar>; Statement on Syria, 13 Jan 2014, HoC Hansard Vol 573 col 583–4; UKMIL, 83 BYIL (2012) 343–5; 85 BYIL (2014) 621. The UK and other states also funded a massive public relations campaign by the ‘moderate opposition’.
205 Keesing’s (2013) 53044, (2014) 53716, 53767.
206 UKMIL, 84 BYIL (2013) 797; Keesing’s (2013) 52699.
207 As, for example, in Nov 2013, Statement on Syria, 13 Jan 2014, HoC Hansard Vol 573 col 583–4.
208 Syria also made this argument, as for example in UN doc S/2013/348.
209 Keesing’s (2013) 52577; Borger, ‘Britain may arm Syrian rebels to save lives if conflict intensifies, says Hague’, The Guardian, 4 March 2013; Borger and Hopkins, ‘West training Syrian rebels in Jordan in drive to counter Islamists’, The Guardian, 9 March 2013.
210 Hosenball, ‘Exclusive – Obama authorizes secret US support of Syrian rebels’, Reuters, 1 Aug 2012; Keesing’s Record of World Events (2013) 52762; deYoung and Gearan, ‘US citing use of chemical weapons by Syria, to provide direct military support to rebels’, The Washington Post, 13 June 2013; The Guardian, 24 July 2013; these authorizations were apparently for small arms only, and the USA was slow to actually deliver the weapons. See Londoño and Miller, ‘US weapons reaching Syrian rebels’, The Washington Post, 12 Sept 2013. In July 2017 it was reported that the CIA was to end its covert programme to arm anti-Assad rebels in Syria, Jaffe, and Entous, ‘Trump ends covert CIA program to arm anti-Assad rebels in Syria’, The Washington Post, 19 July 2017, <https://www.washingtonpost.com/world/national-security/trump-ends-covert-cia-program-to-arm-anti-assad-rebels-in-syria-a-move-sought-by-moscow/2017/07/19/b6821a62-6beb-11e7-96ab-5f38140b38cc_story.html?utm_term=.5f74d16776a9>.
211 Wezeman, ‘Arms Transfers to Syria’, SIPRI Yearbook (2013) 269; Keesing’s (2013) 52520, 52700, 52987, 53044; Khalif and Fielding Smith, ‘Qatar bankrolls Syrian revolt with cash and arms’, The Financial Times, 16 May 2013; Black, ‘Saudis to spend millions fighting two wars in Syria’, The Guardian, 8 Nov 2103; Black, ‘Syrian rebels should be sent heavy weapons’, The Guardian, 26 Jan 2013; Gardner ‘Gulf Arabs stepping up arms supplies to Syrian rebels’, BBC, 8 Oct 2015, <www.bbc.co.uk/news/world-middle-est-34479929>. On Jordan’s role, see Hubbard, ‘Warily, Jordan assists rebels in Syrian War’, New York Times, 10 April 2014, <www.nytimes.com/2014/04/11/world/middleeast/syria.html?ref=world&_r=1>.
213 See, for example, UN doc S/2013/151, S/2013/533, S/2013/625, S/2013/727, S/2013/766, S/2014/66, S/2016/703. For Saudi Arabia’s position, and Syria’s reply see UN docs S/2014/92, S/2014/209.
214 See Hosenball, ‘Exclusive – Obama authorizes secret US support of Syrian rebels’, Reuters, 1 Aug 2012; Chulov, ‘Saudis plan to fund rebel Syrian army’, The Guardian, 23 June 2012; Syrian accusations UN doc S/2013/98; Turkey’s reply UN doc S/2013/101; see also Syrian letters UN docs S/2013/137, S/2013/151.
215 ICJ Reports (2005) 168, paras 162, 300.
216 For example, UN docs S/2013/713, UN S/PV 7316 (2014) 33, S/2014/207, S/2014/223, S/2015/276, S/2016/703, A/68/882.
217 Keesing’s (2013) 52926; SC Res 2118 (2013).
218 ‘Current Developments’, 107 AJIL (2013) 654.
219 See the Sec-Gen’s reports on ISIL, UN docs S/2016/92, S/2016/501, S/2016/830, S/2017/97.
220 SC Res 2139 (2014), para 14.
221 SC Res 2161 (2014), SC Res 2170 (2014), SC Res 2199 (2015), paras 24–7.
222 US Congressional authorization of aid to Syrian opposition, HJ Res 124 Sec 149, 19 Sept 2014. This authorized the provision of training, equipment, and supplies to appropriately vetted element of the Syrian opposition to defend the Syrian people from attacks by ISIS and to secure territory controlled by the Syrian opposition. The aim was to train 5,000 troops to fight ISIS, but only four survived, ‘Syria crisis: only four or five US-trained Syrian rebels are still fighting’, BBC, 17 Sept 2015, <www.bbc.co.uk/news/world-middle-east-34278233>.
223 Keesing’s (2015) 54348, 54411. The US supply of arms to the YPG led to disagreement with Turkey which portrayed them as allies of the PKK, and which did not want to see a Kurdish enclave on the Syrian/Turkish border. Gordon and Schmitt, ‘Trump to arm Syrian Kurds, even as Turkey strongly objects’, The New York Times, 9 May 2017, <www.nytimes.com/2017/05/09/us/politicas/trump/kurds-syria-army.html>. Turkey had led FSA forces in Syria against the YPG in Operation Euphrates Shield from August 2016 to the end of March 2017, see 195 below. It subsequently continued its air strikes against the YPG in Syria in 2017, claiming self-defence as its justification, UN doc S/2017/350.
224 For continuing Syrian protests, see for example, UN docs S/2014/372, S/2017/183.
225 On the self-defence justification, see 237 below.
226 Syria also protested repeatedly at the targeting of its infrastructure by the coalition aircraft, as for example in UN docs S/2014/846, S/2015/719, S/2017/183. Henderson, ‘The use of force against Islamic State’, 1 Journal on the Use of Force (2014) 209.
231 Filipov and Loveluck, ‘Russia threatens to treat US coalition aircraft as targets over Syria’, The Washington Post, 19 June 2017.
234 See Gray, ‘Limits on Force’, note 202 above.
235 For example, UN docs S/PV 7527 (2015) at 48, 77, 80; S/PV 7621 (2016). Many other states continue to reaffirm the Charter principles of sovereign equality and non-intervention.