Is the Principle of Negative Equality in Civil Wars Still Valid? An Analysis of “Decisive storm” Under the Law of Armed Conflict

http://www.bbc.com/news/world-middle-east-29293849
http://www.bbc.com/news/world-middle-east-29293849

Although the beginnings of the Arab Spring’s revolutions might seem similar, their evolutions are totally different; the Yemeni revolution is no exception. The situation in Yemen has recently evolved dramatically, leaving the state in a civil war. This leaves limited choices for the legitimate Yemeni president Hadi to seek foreign assistance. Based on the invitation by President Hadi, a Saudi Arabian-led coalition constituted of ten Arab states launched a military operation against the Houthi rebels known as “Decisive Storm”. Although the traditional “negative equality” doctrine of international law prohibits intervention in civil wars on either side of the parties, I argue in this post that there is no room for applying this principle in the Yemeni case for two reasons: first, I believe that the principle itself is no longer applicable in contemporary international law, second even if it is, the Yemeni case lacks the requirements for the application of this doctrine.

The principle of the prohibition of intervention in civil wars emerged in post Cold War era based on 1975 resolution of the Institute de Droit International (IDI), in an attempt to limit military interventions and the use of force by superpowers in internal conflicts and in order to guarantee self-determination. However, this previously mentioned resolution allows two exceptions, which are the provision of humanitarian aid in art (4) and the response to unlawful foreign intervention in art (5).

The principle of “negative equality” is no longer applicable

Recent state practice as analyzed by Dapo Akande & Zachary Vermeer here   breaks with the general rule of non-intervention in civil wars. This state practice indicates that third states can lawfully intervene alongside with governments with or without the latter’s consent in cases of terrorist attacks. Examples include the French intervention in Mali based on an invitation from the Malian president which was reflected under UN SC Resolution 2085 which affirmed that assisting Mail is based on respecting its sovereignty. Other  examples  are the US led coalition against ISIS in Iraq and Syria backed by the Iraqi president’s invitation and the US intervention in Afghanistan in 2001 with no condemnation from the international community.

This practice has been further developed in cases that fit with the magnitude of human tragedy to fall under a broader concept of R2P without any invitation. Examples include the intervention in Iraq known as “Desert fox operation in 1998, Kosovo in 1998, Georgia in 2008, Libya in 2011, and the recent intervention in Iraq to rescue the Yazidis in 2014.

The principle of negative equality does not apply in Yemen.

The principle of negative equality lacks the basis for application in the case of Yemen. First, tracing the history of the principle and the reasons behind it proves that it is driven by the necessity to limit intervention by superpowers in order to pave the way for exercising self-determination by the opposition when they seek it. In addition, according to IDI Res 1975, if a foreign state unlawfully intervenes with the rebels, it allows a third state to lawfully intervene alongside with the government. Finally, the effective control test might not be the sole test for deciding the legitimacy for presidents in contemporary international law.

Self-determination

 

http://events.tru.ca/event/2014/international-seminar-indigenous-self-determination

http://events.tru.ca/event/2014/international-seminar-indigenous-self-determination

The principle of non intervention in civil wars is a purpose–based norm that seeks to guarantee peoples the right to exercise self determination as expressed in the UN Human Rights Covenants of 1966 and in GA resolution 2625 (XXV). In the context of civil war, peoples should have the right to choose their own governments without interference by third states, which was clear in the articulation of Art 1(a) of IDI Res 1975. According to the language of the article that describes rebels as “insurgent movements”, those rebels should be seeking self determination and to be supported by a significant part of the population, which was affirmed by M. Dietrich Schindler in his interim report presented at the IDI session in Rome in 1973:[1]

“..assistance to the established government in case of civil wars … is illegal … when the insurgents, without having received any substantial assistance from abroad, succeed in establishing their control over a significant part of the territory and are supported by a large part of the population” (translated from French, emphasis added).

In addition, Georg Nolte and Doswald-Beck argue that third state intervention, even by consent, is unlawful if it is against the expressed will of a significant part of the population such as in uprisings which meet the requirements of the right to self-determination. By applying these criteria to the Houthis, although that they have effective control over a significant part of the territory, they are not supported by a significant part of the Yemeni population which does not represent an exercise of self-determination. To illustrate, although the religious sect (Zaydi) which most the Houthis are affiliated to, represent about one third of the Yemeni population, not all the Zaydis are supporting the Hountis.

Counter- intervention

http://www.islamicinvitationturkey.com/wp-content/uploads/2011/11/Irans-military-drill.jpg
http://www.islamicinvitationturkey.com/wp-content/uploads/2011/11/Irans-military-drill.jpg

 

One of the exceptions to the non-intervention in civil wars principle is the case of counter intervention as expressed in Art(5) of IDI Res 1975. To illustrate, if a foreign state intervenes on the side of the rebels in any of the ways expressed by the resolution which vary from military to financial to economic support, this gives third states the right to intervene on the side of the government. Therefore, the Iranian arming of the Houthis is considered unlawful intervention according to the ICJ judgment in Nicragua Case where the court considered arming the rebels as unlawful intervention. In addition, according to Hojatoleslam(a Shiite clerical rank just below that of Ayatollah and a representative of Supreme Leader Ayatollah Ali Khamenei to the Iranian Revolutionary Guard Corps (IRGC)), Yemen has become an area of their territorial hegemony, which was later affirmed by Ali Akbar Velayati, the foreign affairs adviser to Khamenei(and was further analyzed by Aliaa Makady here in this blog). In addition, there is a Yemeni evidence- based claim affirmed by Reuter’s investigations of the Iranian support to the Houthis with no official declared denial from Iran. Therefore, this triggers the lawful right of the Yemeni government to seek assistance from third states, which is what happened in the “Decisive Storm” operation by the Saudi Arabian led coalition.

Invitation by the president

After the adoption of the United Nations Charter, there has been a debate concerning the legality of intervention by invitation. Christine Gray, argues in her book “International Law and the Use of Force” that consent by the government does not legalize state intervention in a civil war with two exceptions either UNSC authorization or a counter intervention.On the other hand, Yoram Dinstein’s argument is that state practice, such as the French intervention in Mali or US airstrikes against ISIS in Iraq and Syria proves that consent by the government may legalize intervention. This position was affirmed by ICJ in the Nicaragua Case:

“…it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition.”

Furthermore, there has been a debate over the existence of “effective control” standard over Yemen by the president Hadi in order to determine his capacity to consent for intervention. State practice shows that this standard is not always decisive; there are some cases in which the international community disregarded territorial effectiveness and replaced it with accepting the internationally recognized governments, such as Somalia and Libya.

To sum up, the situation in Yemen reached the edge of a civil war and the threshold of a human tragedy. However, there is no room for applying the principle of non- intervention in civil wars because state practice in the contemporary international law showed that it is no longer applicable. Second, even if we were to assume that this principle is still valid, there are three reasons to disqualify its application in the case of Yemen: first the “Decisive Storm” operation falls under a counter-intervention in response to Iran’s prior intervention on the side of the Houthi rebels. Second, the Houthis lack support by the Yemeni people, so there is no room for a claim of self determination, and finally, the effective control standard is no more the sole determinant of the legitimacy of presidents in having the capacity to consent to foreign interventions.

[1]IDI Year book, 468, 1973.

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Why ISIS is not there yet? Challenges and Opportunities For Prosecuting ISIS before the International Criminal Court

hthttp://edition.cnn.com/2014/09/03/opinion/isis-atrocities-propaganda/
hthttp://edition.cnn.com/2014/09/03/opinion/isis-atrocities-propaganda/

The successive brutal massacres by ISIS (Islamic State in Iraq and al-Sham) represented a “rule of terror”, varying from beheadings, slaughtering, and abduction, to systematic killings, driven by their declared goal to establish their version of the Islamic Caliphate. ISIS’s goal is to control all Muslim states, as well as extending to all non-Muslim ones, which it aims to reach through applying terrorist, inhumane methods. This leaves no doubt that ISIS’s existence and acts are real threats to the international peace and security. This blog post analyzes whether members of ISIS can be prosecuted before the International Criminal Court (ICC).

Generally, terrorism is interpreted within the context of violence with the intention to “create a climate of fear” in order to achieve political goals. Failure to tackle terrorism in domestic legislation efficiently and comprehensively may indicate a general inability or a political unwillingness on the part of the concerned state. This raises the debate of the complementarity role of the ICC. The controversies between the pros and cons of adding the crime of terrorism in the Rome Statute are based on the lack of a comprehensive definition of terrorism. Unlike other international crimes, which fall under customary international law, there is no consensus between jurists on a definition of terrorism, based on the risk of over or under inclusiveness or over exclusiveness.

Although the lack of a comprehensive definition hinders adding terrorism as a distinct crime under the ICC’s jurisdiction, some terrorist attacks may be characterized as either crimes against humanity or war crimes. However, although two examples of war crimes (namely ‘taking hostages’ and ‘systematic attack against civilians’) match terrorist attacks, war crimes require the existence of an armed conflict -whether of an international or non-intentional character- which excludes terrorist attacks that occur outside the context of armed conflicts.

On the other hand, the absence of wartime conditionality in crimes against humanity makes it possible to encompass terrorism, if it is committed in a wide-spread systematic way. Although Art (7) of the Rome Statute includes crimes against humanity committed by non-state actors such as terrorist militias, it excludes some terrorist attacks which do not fall under the criteria of Art (7), for example burning alive the Jordanian fighter pilot Maaz al-Kassasbeh which lacks the civil status conditionality of the victims according to Art (7) of the Rome Statute. These types of acts still aim at terrifying a population or coercing a government in conformity with the criteria set by The International Convention for the Suppression of Terrorist Bombings, adopted by the GA. Res. 52/164.

The crimes committed by ISIS are “tailor-made for ICC intervention”. According to the Pre-Trial chamber of the ICC, the criteria for investigating crimes against humanity are: – there must be a systematic attack against civilians, and the perpetrator must have “the capability to perform acts which infringe on basic human values”, hierarchy, the control of territory, and financial support.

Basing on the previous point, the number of atrocities committed by ISIS between 2013 and 2015 and its systematic tactics, including the brutal and systematic killings and abductions of members of religious and ethnic minorities such as Yazidis in a number of different states including Libya, Iraq, and Syria, destruction of archaeological sites, the beheading of soldiers and journalists in Syria and Iraq as well as civilians in Libya shows that it meets the requirements set by the ICC for categorizing actions as a ‘crimes against humanity.’ In addition, the geographical distribution of the territory it controls in Syria, Iraq and Libya shows the depth and extent of massive influence of the group.

http://controversialtimes.com/news/lone-survivor-seal-says-300-marines-could-defeat-isis-if-obama-let-them/
http://controversialtimes.com/news/lone-survivor-seal-says-300-marines-could-defeat-isis-if-obama-let-them/

Another limited possibility could be ISIS’s prosecution under the crime of aggression, which requires the aggressor to be a state. Although there is a debate about whether ISIS fulfills the requirements of being a state under The Montevideo Convention on the Rights and Duties of States in 1933, there is an incident by the SC Res 405 in 1977 when it considered non state actors as aggressors in case of mercenaries in the People’s Republic of Benin. However, the ICC Statute provision concerning the crime of aggression will only come into effect starting 2017.

On the other hand, although the crimes committed by ISIS qualify as the subject matter of jurisdiction of the ICC under crimes against humanity, the ICC cannot -in principle- start an investigation into these atrocities because neither Iraq, Libya nor Syria have ratified the Rome Statue. This lack of ratification hinders the investigation process of ISIS. It is important to note that the Nigerian ratification enabled the ICC to pursue an investigation concerning the terrorist group Boko Haram and its attacks.

However, there are still two options for the ICC to prosecute ISIS which are; first the public prosecutor’s authority to start an investigation on the situation under article (15). However, this is still limited to the territorial and personal basis of jurisdiction of the court. In this case, considering that the territorial aspect is not available (because the states where the crimes are being committed did not ratify the ICC), there are many members of ISIS (about 3000) that hold citizenship of a European state which ratified the Rome Statute thus triggering the jurisdiction of the court. Although the most important are the leaders of the group rather than the minor members and that such investigation is not sufficient to deter the group, but at least this will weaken its forces and take a step toward combating the group internationally.

The second alternative is referral from the United Nations Security Council, which affirmed in its previous resolutions 1368 (2001), 1373 (2001), and 1566 (2004) that terrorism is considered a threat to international peace and security and recently Res 2170 (2014)which strongly condemned the acts of ISIS.The feasibility of this alternative depends on the political interests of the five permanent members of the Security Council and their political cost-benefit calculations which allowed a referral of the case in Libya in 2011 under SC Res 1970 and hindered a counterpart resolution on Syria despite the similar brutal circumstances. Such a referral would potentially cover all crimes committed within Syria in the context of the civil war in which ISIS is currently engaged.

http://abcnews.go.com/WN/fullpage/isis-trail-terror-isis-threat-us-25053190
http://abcnews.go.com/WN/fullpage/isis-trail-terror-isis-threat-us-25053190

To sum up, the broad variety of acts which could be labeled as terrorist acts still impede the drafting of a comprehensive definition of terrorism. As a result it cannot be included as one of the international crimes in the Rome Statute. However, the necessity for finding common characteristics between some terrorist attacks, crimes against humanity, and war crimes provides an opportunity for including the terrorist attacks. A case in point is the ISIS terrorist attacks in Iraq, Syria, and Libya which meet the requirements of ‘crimes against humanity’ according to the Rome Statute. Therefore, the two viable options for ICC’s prosecution of ISIS  which are a referral from the UN Security Council or the public prosecutor’s starting of an investigation of the crimes committed by ISIS’s perpetrators who hold a citizenship of a state which has ratified the ICC’s Rome Statute.