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Consent, Forcible Intervention, and Internal Justification to Use Force

  • Eliav Lieblich (a1)
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Consent has become an increasingly common legal justification for states wishing to intervene in internal strife. While the literature on this issue has increased exponentially in recent years, basic questions remain unanswered. In this brief piece, I will focus on two tricky issues: (a) Who can consent to the use of military force within a state? and (b) Under what circumstances can consent legalize forcible intervention? Concerning the latter question, this contribution identifies a missing link: usually, legal discourse deals with the issue of consent in disconnect from the question whether the internal resort to force was itself just. In this comment I suggest a preliminary way to mend this gap.

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1 See, e.g., the Russian intervention in Syria, UN Doc. S/PV.7572 (Sept. 30, 2015), p. 4; or the Saudi-led intervention in Yemen, Ruys, Tom & Ferro, Luca, Weathering the Storm: Legality and Legal Implications of the Saudi-Led Military Intervention in Yemen, 65 Int'l & Comp. L. Q. 61 (2016).

2 On these approaches, see Eliav Lieblich, International Law and Civil Wars: Intervention and Consent chs. 6–7 (2013) [hereinafter Lieblich].

3 Republic of Turkey, Ministry of Foreign Affairs, Fourth Meeting of the Libya Contact Group Chair's Statement (July 15, 2011).

4 See Benjamin Nussberger, Post-Election Crisis in the Gambia, The Security Council and the Threat of the Use of Force, EJIL: Talk! (Feb. 17, 2017), available at https://www.ejiltalk.org/post-election-crisis-in-the-gambia-the-security-council-and-the-threat-to-use-force/.

5 Military Aid and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, para. 246 (June 27).

6 See McMahan, Jeff, On the Moral Equality of Combatants, 14 J. Pol. Phil. 377, 381 (2006).

7 See generally Hakimi, Monica, Defensive Force Against Non-State Actors: The State of Play, 91 Int'l L. Stud. 1 (2015).

8 See Lieblich, supra note 2, at 31.

9 Deeks, Ashley, Consent to the Use of Force and International Law Supremacy, 54 Harv. J. Int'l L. 1 (2013).

10 Compare Hathaway, Oona A., Crootof, Rebecca, Hessel, Daniel, Shu, Julia & Weiner, Sarah, Consent Is Not Enough: Why States Must Respect the Intensity Threshold in Transnational Conflict, 164 U. Penn. L. Rev. 1 (2016).

11 See generally Lieblich, Eliav, Internal Jus ad Bellum, 67 Hastings L.J. 687 (2016).

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Proceedings of the ASIL Annual Meeting
  • ISSN: 0272-5037
  • EISSN: 2169-1118
  • URL: /core/journals/proceedings-of-the-asil-annual-meeting
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