International Law Class 23: Non-Intervention

1. International LawClass 23: Non-Intervention P. Brian Fisher CofC Spring 2011

2. Use of Force Basics • Jus ad bellum: when it is permissible to initiate attach • Jus ad bello: rules that govern behavior during war • Use of Force justified (Nicaragua v US) : • Act of self-defense (necessary and proportional) • Authorized explicitly by UN • Possibly as proportional “counter-measure” (less than “armed attack”)

3. Exceptions to Article 2(4)Art 51: Self-Defense • Art 51: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the UN, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council…” • Some scholars argue that the Charter explains the full parameters of self-defense; thus, it precludes “anticipatory self-defense”. • Others argue that the phrase “inherent right of self-defense” indicates that the Charter intended to incorporate the customary law of self-defense, which includes “anticipatory self-defense”

4. Nicaragua v. US1986 ICJ 14 • F: In 1979, the left-wing Sandinista government gained control in Nicaragua, while the US supported the gov’t of their neighbor El Salvador. Two years later, the US concluded that Nicaragua was aiding rebel forces in El Salvador. As a result, the US cut all economic aid to Nicaragua. By contrast, Nicaragua alleges that the Contra rebels were receiving support from the US to overthrow the Sandinistas. They also accuse the US of laying mines in Nicaragua waters. • NOTE: US disputed the ICJ’sjuris, and when the Ct asserted juris, the US withdrew from the case. However, US had already made the case for collective self-defense, in that US was coming to the aid of El Salvador, who was being attacked by Nicaragua.

5. Nicaragua v. US1986 ICJ 14 • I: Is cutting off economic aid sufficient “self-defense” justified under Article 51 (UNC) • H: No. Use of force by the US was an unjustified collective self-defense. • R: UN Charter prohibits the use of force by one state against another, except for the right of individual and collective self-defense. Here, ct ruled that an “armed attack” must be ordered by a state (and the harmed state must declare that the attack took place). Thus US violated prohibition against the use of force • Also, the court found that Nicaragua was not responsible for the arms given to the El Salvador rebels. The ct said that even if the Nicaraguan gov’t had, it would not have constituted an “attack” • Also, ct determined that there were other means (through El Salvador) to dissuade Nicaragua’s conduct. • Finally, US failed to follow procedure in alerting the SC

6. Import from Nicaragua v US(self-d) • Right of self-defense is part of CIL, predating the Charter • Acts under Self-Defense must be: 1) necessary (no other means) and 2) proportional to threat • Attack must be “armed” prior to the resort to self-defense; force or intervention below the level of an “armed attack” does not trigger the right. • However, nature of “armed attack” does not have to be “conventional” (i.e. military force)  nationals are threatened abroad, can invoke self-d to rescue, or 9/11 (nonstate actors included) • Must inform the Sec Council of “attack” before self-D can be authorized

7. Rule of Non-Intervention • Art 2.1 UN Charter: organization is based on the principle of the sovereign equality of all its Members.” • This principles mandates that every state is prohibited from interfering with the internal affairs of other state(s). • 1965, UN Gen Assembly issued the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States… • No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State… • Every State has an inalienable right to choose its political, economic, social and cultural systems, without interferences in any form by another state; • All states shall respect the rt of self-determination and independence of peoples and national, to be freely exercised without any foreign pressure, and with absolute respect for human rights and freedoms. • The contents of this Declaration are considered to be CIL (Nicaragua)

8. Nicaragua v. USnon-intervention • F: Same facts. Nicaragua alleges that the Contra rebels were receiving support from the US to overthrow the Sandinistas. They also accuse the US of laying mines in Nicaragua territorial waters. • I: Did US’ support and invasion of territorial waters violate principles and CIL of non-intervention? • H: Yes. • R: clear evidence that the US attempted to influence the Nicaraguan government through its financial support, training, weapons supply, and technologic/logistic assistance to the Contras (i.e. to overthrow the Nicaraguan government of the Nicaragua). This is a “clear breach of the principle of NI”. After 1984, US legislation limited support to the Contras to only “humanitarian assistance.” • US’ intervention cannot be justified either as a response to an intervention by Nicaragua in another C. American State. Ct rejects that intervention is justified based on “collective counter-measures” (less than “armed attack”). Acts of Nicaragua, even if true, would entitle the US ONLY to proportional “counter-measures”, not the case here.

9. Iraq Engagement: Legal? • What is necessary to justify the use of force? • Anticipatory self-defense? • Violation of non-intervention? • UN Resolutions?

10. Iraq Engagement: Legal?UN Res 1441 • Resolution 1441 stated that Iraq was in material breach of the ceasefire terms presented under the terms of Resolution 687. • Iraq's breaches related not only to weapons of mass destruction (WMD), but also the known construction of prohibited types of missiles, the purchase and import of prohibited armaments, and the continuing refusal of Iraq to compensate Kuwait for the widespread looting conducted by its troops during the 1991 invasion and occupation. • It also stated that "...false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq's obligations."

11. US Position • Negroponte (UN Amb) • “The resolution makes clear that any Iraqi failure to comply is unacceptable and that Iraq must be disarmed. And, one way or another, Iraq will be disarmed. If the Security Council fails to act decisively in the event of further Iraqi violations, this resolution does not constrain any Member State from acting to defend itself against the threat posed by Iraq or to enforce relevant United Nations resolutions and protect world peace and security.” • UN Inspectors go to Iraq: Mixed cooperation and reluctantly provide information on WMD and disarmament • "Iraq appears not to have come to a genuine acceptance -- not even today -- of the disarmament, which was demanded of it and which it needs to carry out to win the confidence of the world and to live in peace.” –Hans Blix • US Administration asserted that Iraq remained in material breach of the UN Resolutions, and US, UK and Spain invade Iraq.

12. R2P: Responsibility to Protect • A burgeoning norm or set of principles based on the idea that sovereignty is not a privilege, but a responsibility. Focus is on preventing or stopping crimes committed by state authorities against its own people. Genocide, war crimes, crimes a/g humanity and ethnic cleansing are all constitutive crimes. • Became much more prominent on Int’l scene in 2005 after Rwandan Genocide. • Lots of Qs: when can be used and implemented? Military force justified? By whom?

13. Videos • Doyle: non-intervention • Doyle: right to protect • Doyle: Non-intervention & right to protect • Iraq War: Legal? • O’Reilly’s argument on Iraq