Inhibition of military assistance to governments in internal armed conflict?

(To Giuseppe Paccione)
18/04/15

Since the beginning of the air attacks, conducted by the air forces of the United States of America, against the forces of ISIS - Islamic State Iraq & Syria - present on both Syrian and Iraqi territory since August 2014 and, today , including from Jordan, after ISIS killed a Jordanian air force pilot, who declared war on the Islamic terrorist group, the legality of such attacks has been the subject of extensive debate, still ongoing.

Much of the discussion has focused on whether the collective self-defense - of Iraq - allows or allows the use of armed coercive action against non-state actors in foreign territories, where the territorial state, think of Syria, is not able or unwilling to stop the attacks themselves.

However, the lawfulness of the air strikes, which are operating on Iraqi soil and beyond, considering that Egypt is also attacking the jihadist forces on Libyan soil, where the terrorist group linked to ISIS is present, does not seem to have completely caused the controversial debates. The presence of the consensus by the Baghdad government, recognized internationally, of the use of military aircraft by foreign forces seems to ensure the total legitimacy of foreign military actions against ISIS, according to jus ad bellum, so evident that it does not require any comment . On the other hand, regarding the consent to the use of force, it is noted that the legality of what has been defined as intervention on invitation or military assistance on request, has traditionally been more controversial than the mere declaration suggested.

Part of the doctrine, and even some states, has argued that there is a general prohibition or inhibition on military assistance to governments in the presence of civil wars or internal or non-international conflicts or internal rebellions. This aspect was particularly felt during the Cold War and seemed to represent an attempt to limit the indirect use of force by the super powers. The norm is said to derive from the inhibition of intervention in the internal affairs of States, as well as from the principle of self-determination. The argument advocated by those in favor of the norm is that intervention even with the assent of the government denies the people the right to govern their own issues and determine their future policy. In short, on this point, international law assures the right to rebel against the government. Others have expressed doubts that a rule, which forbids assistance to a government in internal conflicts, has never emerged.

In my analysis, I try to point out that the recent state practice of using force in Iraq against ISIS suggests that the evidence of opinius juris in relation to this rule is today quite fragile.

According to the Resolution of the Institute Droit International on the principle of non-involvement in civil conflicts, of the 1975, third States must refrain from assisting the parties in an internal conflict or civil war that is being fought in the territory of another State. This resolution defines a civil war as an internal armed conflict between the determined or recognized government of a state, internationally, and one or more insurrectional movements that aim to bring down the government or the political, social and economic order of the state, or to obtain secession or self-government for a part of the state, or between two or more groups that contend for control of the state in the absence of a given government. The resolution recognizes exceptions that allow for the provision of purely humanitarian aid and a potential counter-intervention right, in which the illegal intervention has already taken place in favor of the other party involved in the civil war.

The existence of a similar prohibition to that found in the IDI Resolution of 1975 has been recognized by most scholars of international law. In an interesting piece that includes a careful compilation of the practice, it was asserted that there is substantial doubt whether a state can validly assist another government to suppress a rebellion, at least in the form of sending troops.

Someone else claims if there is an internal armed conflict rather than a mere internal disorder, it was accepted that there is an obligation not to intervene, even before the government's request, in the absence of the authorization of the UN Security Council or international organizations of a regional nature, unless there was previously foreign intervention against the government.

Furthermore, a minority of internationalist scholars limits the permitted use of armed coercive action, id est la forza, with the consent to respond to external interference or protect citizens, without extending to the solution of internal struggles. Furthermore, State declarations can be found to support a restrictive point of the lawfulness of the consensual use of force in internal situations.

In a document of British foreign policy, for example, made public in the 1984, it is established that any form of interference or assistance is inhibited, except in cases of gender of humanity, when a non-international conflict (in the sense of domestic war or intestine) is taking hold and the control of the territory of the state is divided between the parties in struggle, although an exception is also recognized that allows a counter intervention in favor of a party that is in conflict in response to the previous external intervention on the opposite side .

However, the restrictive view of the lawfulness of consensual force is quite far from being accepted. Indeed, there is that doctrine which maintains that the general prohibition on military assistance to the governments involved in an internal conflict is inconsistent with the practice of the state. From here, we can add, by example, that the apparent acceptance of the international community of lawfulness of the French military intervention in favor of the Malaysian government of Mali in 2013, despite the fact that the Islamist rebels controlled the north of the country and that seemed to reach the capital.

On the principle level, the equation of civil war situations with the exercise of the right of self-determination seems to be problematic. The fact is that the people can take up arms as tools to support that right, it can not be said that for the reason that there is an armed group, then it is enough the military tool to participate in what has become a conflict indoor; this indicates that the right to self-determination is a corollary of the ability of a party to actually use violence. The ability of an armed group to conduct a civil war does not necessarily mean that it has the title to represent a people in the terms granted to that period, according to the principle of self-determination.

In international law, similarly, one of the prerogatives agreed upon by the government is the possibility of sanctioning the activity within the territory of another State. It is not clear how military assistance with consensus is not a violation of the prohibition or inhibition of intervention in domestic or internal matters of a state, when the civil war does not cross the threshold. - even not considering the difficulty of saying what is the current threshold - but that it becomes a violation of this principle once it is in the presence of a non-international conflict.

The continuous dichotomies on the subject were apparent when the IDI took up the issue between the years 2009 and 2011. In his report, one of the speakers supported the possibility that the 1975 Resolution did not reflect the practice of the state in the changed political environment of the post Cold War, although some IDI members were not of the same opinion. The IDI Resolution, adopted in the 2011, on the matter of the request for military assistance, while recalling the 1975 Resolution, did not explicitly reiterate its prohibition on military support to governments in the face of a non-international or domestic conflict. Furthermore, it was alleged that military assistance is prohibited when it is exercised in contrast or in violation of the United Nations Charter, the principle of non-intervention, the self-determination of peoples, the equal right and generally accepted standards of rights. of the human person and, in particular, when its object is to support a government established against its people. The further resolution of the 2011 clearly clarifies that its application was only intended for situations of internal tensions and disturbances, under the threshold of the armed international conflict as, precisely, stated in the article 1 of the II Additional Protocol to the Geneva Conventions.

The conflict between the Iraqi government and the ISIS forces seems to fall within the scope of the restricted prohibition of the IDN resolution of the 1975. When air strikes began, the Islamic State already exercised control over a very large portion of Iraqi territory, allowing for prolonged and concerted military operations to be carried out and which it still continues to do. Ergo, if the ban on assisting governments in intra-or non-international conflicts only applies to conflicts that fall under the definition of Article 1 of the II Additional Protocol, that condition would seem acceptable in this case. The ongoing conflict seems, therefore, to seem to provide a useful test as if the inhibition proposed in the IDI Resolution is part of contemporary international law, at present. It is therefore important to note that states, participating in air strikes, in legitimately justifying their actions, have largely emphasized the general assertion that military action on the territory of a state with the assent of its government is to be considered lawful, without any reference to the prohibition of military support to the government - or to the governments involved - in an internal conflict.

For example, the US authorities have stated that in compliance with international law, any action taken, including those of the air forces, would be compatible with international law, after the Iraqi government had requested military assistance. The Americans themselves have been called and, therefore, invited to take these actions by the government of Baghdad and that it is provided with international normative foundations to be able to intervene militarily. The president himself of the United States of America B. Obama has asserted, in a note sent to the congress, that the military actions in Iraq have been adopted in concert with the Iraqi authorities; as well as the London Government has stated that international law is clear in supporting that the use of armed coercive force in international relations is prohibited, except in limited exceptions. In addition, international law is always clear that the prohibition does not apply to the use of coercion by a State on the territory of another State, if the territorial State presents the request or consent to be supported. It is evident, in this case, that Iraq has consented to the use of armed force by some states to defend itself against ISIS.

It is known that this synthesis contained no reference to the inhibition of military support or assistance to a government in a domestic conflict, despite Britain's earlier approval of this restriction in the 1984 Foreign Office document. Similarly, the motion was adopted by the House of Commons, authorizing the participation of England in airstrikes in Iraq, because it referred to the Iraqi government's request for international support to defend itself against the threat of ISIS which is spreading terror within the 'Iraq, and this clear legal basis favors action on Iraqi soil.

Likewise, statements by other states of the coalition on the lawfulness of the use of armed force with the assent of local or territorial government have been expressed. France, by way of example, justified its lawfulness in accordance with the United Nations Charter, according to which each State, in exercising its sovereignty, may require another State to assist it. Even Canada, approving its participation deemed lawful to air strikes on ISIS goals, said that legally permitting authorization is based on the fact that the democratically elected government of the Iraqi people invited and asked to be assisted and supported in order to fight against the self-proclaimed Islamic State. Therefore, it does not require the authorization of the Security Council. Australia also felt that operating in Iraq with the assent, approval and placet of the Baghdad government respects the parameters of the use of force determined by international law. The Berlin government also expressed the same opinion. The generality of these statements, concerning the lawfulness of the consensual use of force, in the absence of any reference to the inhibition on unilateral assistance to the governments involved in non-international conflicts, seems to weigh against the existence of this prohibition as part of international law contemporary.

Other interpretations, therefore, are feasible. It could be argued that the real reason lies in the fact that air strikes are to be considered lawful and that their legality has been accepted by most of the states of the international community; it is not that there is a ban on military assistance to governments in internal conflicts, but they fall into one of the established exceptions to this rule.

An exception apparently known in the 1975 IDI Resolution, and clearly accepted by the doctrine, allows unilateral assistance to the government where opposition forces in the non-international conflict are themselves to receive external assistance. It could be argued that the intervention against the Islamic State falls in this area since ISIS is not just an Iraqi movement, but also that group that controls part of the Syrian territory and recruits the so-called foreignfighters. Iraq referred to the existence of a shelter or a real ISIS headquarters on Syrian soil, as a factor that needed its own request for assistance. In justifying their participation in air strikes, foreign leaders have unexpectedly emphasized that ISIS threatens not only Iraq, but, because of its commitment to counter terrorism, even their nations. This picture of the Islamic State as not merely an internal threat, but both regional and international, can be interpreted as an attempt to bring the conflict out of the category of internal war or internal conflict, and, thus, as a tacit recognition, at least not in contradiction with a general rule by which military assistance to governments in a civil war is banned. Believing that the objectives professed by ISIS are not limited to conquering Iraqi power, but the realization of a large caliphate that will erase the borders of the entire Middle East area, the classification of conflict as something other than a purely internal war seems plausible.

It was also stated that a major exception to the ban on military assistance to governments during the civil wars was discussed; such assistance to a government is considered lawful when a state assists another state during a joint fight against terrorism. If such an exception exists, then the use of force against the Islamic State would fall into it. However, the problem that arises immediately is that it ensures the decision that a particular group is a terrorist group. Instead, determined or determined governments often attempt to portray their opponents as terrorists to politically delegitimize and be able to lawfully demand external support against terrorists.

A problem with trying to carve out these exceptions to the supposed norm is that the circumstances indicated by them seem to refer more to motivations or reasons, for which States provide military assistance to other States, as opposed to the lawful justification of the intervention. Whenever States take action, they will no doubt have a political motivation to take such action and often in the case of very serious action such as the use of force. It would be wrong, therefore, to consider that the motivation or ratio is on the same level as legal justification, as if it misunderstood the binding element of the opiniojuris.

While those states intervening in Iraq against the Islamic State, the latter is considered a terrorist group that poses itself as an international threat and that performs atrocities against the population, these States have specifically the legal reasons to undertake the armed coercive action usually focused in general terms and not focused on the lawfulness of the use of force with the full consent of the government of the territorial state. Ergo, the states' positions on air strikes against ISIS in Iraq do not seem to support the existence of a general ban on the use of armed force at the government's request during a domestic or domestic conflict.

On the other hand, it is true that there is a trend to justify military assistance to governments in terms of the perceived legitimacy of the government in the face of its opponents; for example, if he is democratically elected or if he is trying to assume his responsibility to protect his population from atrocities. Although, in principle, states seem to have held such factors of lawfulness that separate from their circumscribed legal justification of the use of force against ISIS, there are some cases where these factors are apparently interwoven in the legal matter .

(photo: US DoD archive)