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«Eliav Lieblich Submitted in partial fulfillment of the requirements for the degree of Doctor of the Science of Law in the School of Law COLUMBIA ...»

-- [ Page 1 ] --

INTERVENTION IN CIVIL WARS: INTERVENTION

AND CONSENT

Eliav Lieblich

Submitted in partial fulfillment of the

requirements for the degree of

Doctor of the Science of Law

in the School of Law

COLUMBIA UNIVERSITY

2012

© 2012

Eliav Lieblich

All Rights Reserved

ABSTRACT

INTERVENTION IN CIVIL WARS: INTERVENTION AND CONSENT

Eliav Lieblich In modern international law, it is a near consensus that no state can use force against another – the main exceptions being self-defense and actions mandated by a U.N.

Security Council resolution. However, one more potential exception exists: forcible intervention undertaken upon the invitation or consent of a government, seeking assistance in confronting armed opposition groups within its territory. Although the latter exception is of increasing importance – for instance, in light of the need to address humanitarian catastrophes caused by civil wars, or as a potential justification for transnational drone attacks – the numerous questions it raises have received scant attention in the literature. This dissertation seeks to fill this gap, by analyzing the consent- exception in a wide context, and attempting to delineate its limits – including, perhaps, cases in which government consent power is not only negated, but might be transferred to opposition groups. The dissertation discusses the concept of consensual intervention in contemporary international law, in juxtaposition to traditional legal doctrines, seeking to reveal that nowadays, the central determinant of consent power is the consenting party’s effective protection of civilians, rather than its effective control over territory. The dissertation traces the development of law in this context by drawing from historical examples such as the American and Spanish civil wars, to recent cases such those of the DRC, Somalia, Libya and Syria.

TABLE OF CONTENTS

Acknowledgments viii Introduction: Consensual Intervention as an Exception to the Prohibition on the Use of Force 1

PART 1: THE BUILDING BLOCKS OF CONSENSUAL INTERVENTION

1 Consensual Intervention: Modalities and Dynamics 12 2 Understanding Internal Armed Conflicts 52 3 Understanding Intervention –Key Distinctions and Theoretical Issues 74 4 Defining Forcible Intervention 96

PART 2: INTERVENTION AS CHOICE: THE RIGHTS OF PARTIES TO INTERNAL

ARMED CONFLICTS IN THE PRE-CHARTER ERA

5 Internal Armed Conflicts and Consent in the Era of the Prerogative of War: A General View 117 6 Territorial Effective Control as a Source of Rights in Internal Armed Conflicts: The Belligerency and Insurgency Doctrines 153 7 Intervention and Consent in the Inter-War Period 197

–  –  –

8 The Preference of Governments: From Dichotomy to Rebuttable Presumption 229 9 The Scope of Government Consent Power: General Thresholds and the Effective Control Test 274 10 From Effective Control over Territory to Effective Protection of Civilians 303 11 Consent Power, Democracy, Human Rights and Self-Determination 356 12 Consent by Opposition Groups: Between Recognition and Humanitarian Intervention; Between Legality and Necessity 385 Conclusion and Detailed Summary 429 Key Bibliography 453

–  –  –

CHAPTER 1: CONSENSUAL INTERVENTION: MODALITIES AND DYNAMICS

I. THE WIDE SPECTRUM OF CONSENSUAL INTERVENTION

I.1 THE INSUFFICIENCY OF THE INTERVENTION UPON INVITATION PARADIGM

I.2 CONSENSUAL INTERVENTION AND MULTIPLE JUSTIFICATIONS

II. CONSENT: THE DISTINCTION BETWEEN EXTERNAL VALIDITY AND INTERNAL

CONSENT POWER

II.1 VALID AND GENUINE CONSENT AS CONFERRING REVOCABLE AGENCY UPON THE

EXTERNAL INTERVENER

II.2 INTERNAL CONSENT POWER: BETWEEN EFFECTIVENESS AND LEGITIMISM

III. EXEMPLIFYING THE DYNAMICS OF INTERVENTION AND CONSENT: CONGO 1996III.1 THE FIRST CONGOLESE CONFLICT, 1996–1997: THE OUSTING OF MOBUTU III.2 THE SECOND CONGOLESE CONFLICT, 1998–2003: WITHDRAWAL OF CONSENT AND

INVITATION OF OTHER POWERS

III.3 THE CONFLICT IN THE KIVUS, 2004–2010: PRO-GOVERNMENT INTERVENTION BY

RWANDA AND FORCIBLE MONUC OPERATIONS

IV. CONSENT AND SECURITY COUNCIL AUTHORIZED INTERVENTIONS: A COMPLEX

INTERACTION

IV.1 CHAPTER VII RESOLUTIONS AND CONSENT

IV.2 CHAPTER VII RESOLUTIONS AND WITHDRAWAL OF CONSENT

CHAPTER 2: UNDERSTANDING INTERNAL ARMED CONFLICTS

I. GENERAL

II. A WORKING DEFINITION: FROM “CIVIL WAR” TO INTERNAL ARMED CONFLICT

III. INTERNAL ARMED CONFLICTS: TYPOLOGY





III.1 THE COMPLEX THEORY OF INTERNAL ARMED CONFLICTS

III.2 STRUGGLE FOR CONTROL OVER STATE APPARATUS

III.3 STRUGGLES FOR SECESSION AND AUTONOMY

III.4 STRUGGLE FOR (RE)UNIFICATION (IRREDENTISM)

III.4 STRUGGLE FOR THE DISMANTLEMENT OF THE STATE AS PART OF A DECENTRALIZED

TRANSNATIONAL MOVEMENT

ii

CHAPTER 3: UNDERSTANDING INTERVENTION –KEY DISTINCTIONS AND

THEORETICAL ISSUES

I. INTERVENTION ACROSS DISCIPLINES – THEORETICAL FAULT-LINES AND

CLARIFICATIONS

I.1 THE MULTI-DISCIPLINARY DISCOURSE ON INTERVENTION

I.2 A LEGAL APPROACH TO INTERVENTION OR SETTING ASIDE REALISM

I.3 THE DISTINCTION BETWEEN CONSENSUAL INTERVENTION IN INTERNAL ARMED

CONFLICTS AND INTERVENTION IN POLITICAL DISPUTES

II. INTERVENTION IN INTERNATIONAL LAW: KEY DISTINCTIONS

II.1 PHYSICAL (DESCRIPTIVE) VERSUS NORMATIVE (PRESCRIPTIVE)

II.2 INTERVENTION: NON-FORCIBLE VERSUS FORCIBLE; NEGATIVE VERSUS POSITIVE; AND

UNILATERAL VERSUS MULTILATERAL

III. THE SHIFTING MEANING OF THE NORM OF NON-INTERVENTION AND ITS

INTERACTION WITH THE LAW ON THE USE OF FORCE

III.1 THE SHIFTING MEANING OF THE NORM

III.2 THE “NORMATIVE DUALITY” OF FORCIBLE INTERVENTION

CHAPTER 4: DEFINING FORCIBLE INTERVENTION

I. DEFINITION OF UNILATERAL FORCIBLE INTERVENTION – SCOPE, MEANS AND STATE

ATTRIBUTION

I.1 SCOPE, MEANS AND METHODS OF FORCIBLE INTERVENTION

I.2 “GRAVE” AND “LESS-GRAVE” FORCIBLE INTERVENTIONS

I.3 THE QUESTION OF STATE ATTRIBUTION: FORCIBLE INTERVENTION BY IRREGULAR

FORCES AND NON-STATE ACTORS

II. MULTILATERAL FORCIBLE INTERVENTION BY U.N. FORCES

III. “LESS-GRAVE” FORCIBLE INTERVENTION – THE QUESTION OF ARMS TRANSFER

TO PARTIES IN INTERNAL ARMED CONFLICTS

III.1 ARMS TRANSFERS BY PRIVATE ENTITIES

III.2 ARMS TRANSFERS TO GOVERNMENTS AND THE MOVEMENT TO SUBSTANTIVE

ANALYSIS

PART 2: INTERVENTION AS CHOICE: THE RIGHTS OF PARTIES

TO INTERNAL ARMED CONFLICTS IN THE PRE-CHARTER ERA

CHAPTER 5 – INTERNAL ARMED CONFLICTS AND CONSENT IN THE ERA OF

THE PREROGATIVE OF WAR: A GENERAL VIEW

I. AN INITIAL OVERVIEW THE BELLIGERENCY DOCTRINE

I.1 THE RATIONALE OF THE BELLIGERENCY STATUS

I.2 THE CONDITIONS FOR RECOGNITION OF BELLIGERENCY AS WIDELY UNDERSTOOD

I.3THE RESULTS OF RECOGNITION OF BELLIGERENCY IN TRADITIONAL INTERNATIONAL

LAW

II. CLARIFYING MODERN COMMENTARIES ON THE RELATION BETWEEN RECOGNITION

OF BELLIGERENCY AND CONSENSUAL INTERVENTION

iii

II.1 UNDERSTANDING THE NORMATIVE FRAMEWORK: THE USE OF FORCE IN THE ERA OF

THE WAR PREROGATIVE

II.2 THE DISCONNECTION BETWEEN BELLIGERENCY, OBLIGATIONS OF NEUTRALITY AND

CONSENSUAL INTERVENTION IN THE WAR-PREROGATIVE ERA

II.3 CONSENSUAL INTERVENTION AS CHOICE

II.4 THE MAIN CONSEQUENCE OF RECOGNITION OF BELLIGERENCY: EFFECTS ON NEUTRAL

COMMERCE

CHAPTER 6 – TERRITORIAL EFFECTIVE CONTROL AS A SOURCE OF RIGHTS

IN INTERNAL ARMED CONFLICTS: THE BELLIGERENCY AND INSURGENCY

DOCTRINES

I. THE BELLIGERENCY DOCTRINE: EARLY CASES

I.1 THE AMERICAN REVOLUTION

I.2 EARLY 19TH CENTURY CASES: THE SPANISH COLONIAL WARS

I.3 MID 19TH CENTURY CASES: TEXAS, CANADA AND OTHERS

II. THE CONSOLIDATION OF THE BELLIGERENCY DOCTRINE: THE AMERICAN CIVIL

WAR II.1 GENERAL II.2 INTERNAL APPROACHES II.3 EXTERNAL APPROACHES

II.4 THE AMORAL APPLICATION OF THE BELLIGERENCY DOCTRINE

II.4.1 The Slavery X-Factor II.4.2 John Stuart Mill and the Idea of Consensual Intervention in the Civil War

III. THE INSURGENCY DOCTRINE

III.1 INSURGENCY: THE STATUS OF REBELS WITHOUT BELLIGERENCY RECOGNITION

III.2 INSURGENCY AS LIABILITY: DOMESTIC NEUTRALITY ACTS

III.3 INSURGENCY AS PRIVILEGE: CLOSURE OF PORTS, NON-PIRACY AND POTENTIAL

RECOGNITION OF INSURGENTS AS DE FACTO GOVERNMENTS

IV. INSURGENCY AS UNRECOGNIZED BELLIGERENCY? THE CASE OF THE ORIENTAL

NAVIGATION COMPANY

CHAPTER 7: INTERVENTION AND CONSENT IN THE INTER-WAR PERIOD

I. THE LEAGUE OF NATIONS SYSTEM AND THE USE OF FORCE – FROM THE BALANCE

OF POWER TO THE POWER OF PROCEDURE

I.1 PACIFIC SETTLEMENT OF DISPUTES

I.2 COLLECTIVE SECURITY

II. THE KELLOGG-BRIAND PACT: TOWARDS A UNIVERSAL PROHIBITION ON WAR

III. THE USE OF FORCE IN INTER-WAR PERIOD AND CONSENSUAL INTERVENTION: A

DEPARTURE FROM INTERVENTION AS CHOICE

IV. THE SPANISH CIVIL WAR AND THE CRISIS OF THE TRADITIONAL LAW OF

INTERNAL ARMED CONFLICT

IV.1 CONSENSUAL INTERVENTION IN THE SPANISH CIVIL WAR

IV.2 THE NON-INTERVENTION AGREEMENT: COLLECTIVE NON-INTERVENTION

IV.3 U.S. NEUTRALITY: UNILATERAL NON-INTERVENTION iv

IV.4 THE SPANISH CIVIL WAR: BELLIGERENCY, INSURGENCY AND GOVERNMENTAL

RECOGNITION

IV.5 CONSENSUAL INTERVENTION IN THE SPANISH CIVIL WAR AS AN ILLEGAL USE OF

FORCE AND THE CALLS FOR SUBSTANTIVE ANALYSIS OF PARTIES

PART 3: INTERVENTION AND CONSENT IN THE ERA OF THE

PROHIBITION ON THE USE OF FORCE

CHAPTER 8: THE PREFERENCE OF GOVERNMENTS: FROM DICHOTOMY TO

REBUTTABLE PRESUMPTION

I. ENTER THE UN CHARTER: STATE CONSENT AS AN EXCEPTION TO THE PROHIBITION

ON THE USE OF FORCE

II. CONTAINMENT, DÉTENTE, ROLL-BACK: COLD-WAR DOCTRINES OF INTERVENTION

III. THE STRICT ABSTENTIONIST APPROACH

III.1 STRICT ABSTENTIONISM

III.2 A CRITIQUE OF STRICT ABSTENTIONISM

IV. THE REBUTTABLE PRESUMPTION IN FAVOR OF GOVERNMENTS

IV.1 THE GOVERNMENT AS REPRESENTATIVE OF THE STATE

IV.2 THE PRESUMPTION IN FAVOR OF GOVERNMENTS IN PRACTICE

IV.3 THE PRESUMPTION IN FAVOR OF GOVERNMENTS IN ICJ DECISIONS

CHAPTER 9: THE SCOPE OF GOVERNMENT CONSENT POWER: GENERAL

THRESHOLDS AND THE EFFECTIVE CONTROL TEST

I. TERRITORIAL EFFECTIVENESS IN LIGHT OF MASS ATROCITIES AND TRANSNATIONAL

TERRORISM

II. THRESHOLD QUESTIONS

II.1 REVERSING THE PARADIGM: THE EXISTENCE OF INTERNAL ARMED CONFLICT AS A

GENERAL PRECONDITION FOR FORCIBLE INTERVENTION OR INTERNAL JUS AD BELLUM

II.2 THE LEGAL IRRELEVANCE OF THE TERM “CIVIL WAR” AS NEGATING CONSENT POWER

II.3 THE FAILED STATE THRESHOLD: NO GOVERNMENT – NO PREFERENCE

II.4 BEYOND THE FAILED STATE THRESHOLD: RECOGNITION, INTERVENTION, AND THE

ROLE OF THE SECURITY COUNCIL IN SOMALIA

III. COUNTER-INTERVENTION: A DEFENSE CLAIM FOR LOSS OF EFFECTIVE CONTROL

OVER TERRITORY

CHAPTER 10: FROM EFFECTIVE CONTROL OVER TERRITORY TO



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