A. Legal Conditions: What Legal Effects Exist for the Right of Peoples to Self-Determination?

Debates about the conditions in which the legality of intervention by invitation is rooted mainly concern the importance of the right to the self-determination of peoples, which must be taken into account in each particular case. Two major doctrinal trends can be identified when addressing this question. The first tends to deny any such limit of the kind – at least if consent has been given by the government of a state; in contrast, the second asserts that the lawfulness of an intervention depends in part on respect for the obligation not to interfere with a people’s choice of political regime.Footnote ⁸

For those subscribing to the first trend, if a government has consented to an outside military intervention, that intervention is not prohibited by Article 2(4) of the UN Charter, no matter its object and effects.Footnote ⁹ They rely on well-established practice to argue that military cooperation between governments is generally well accepted, including when it is a matter of intervening in internal conflicts. They base this argument on an excerpt from the case concerning Military and Paramilitary Activities in and against Nicaragua, in which the International Court of Justice (ICJ) affirmed that:

The only condition the Court laid down that a state must meet if it is to ‘intervene at any moment in the internal affairs of another State’ is that it must receive a ‘request’ from the ‘government of the State’. No restriction on the object or effects of the intervention by such invitation is set out.

Those subscribing to the second trend, meanwhile, propose a different interpretation of existing international law. In the Nicaragua case, the ICJ does not deal directly with intervention at the invitation of a government, although it does condemn intervention in favour of the rebels. The only thing the Court specifies is that an intervention at the request of the government is ‘allowable’ (not ‘allowed’) – an expression that leaves the door open for various circumstances surrounding the invitation, including in connection with its object and effects.Footnote ¹¹ In that respect, this second position underscores the principle of the right of peoples to self-determination, as is notably set out in Article 1 common to the United Nations’ International Covenants on Civil and Political Rights (ICCPR), and on Economic, Social, and Cultural Rights (ICESCR):Footnote ¹² ‘All peoples have the right to self-determination. By virtue of that right, they freely determine their political status, and they freely pursue their economic, social, and cultural development’.Footnote ¹³

In the same vein, Resolution 2625 (XXV) of the UN General Assembly states that ‘all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development’.Footnote ¹⁴ This Resolution also enounces that ‘no State shall organise, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State’.Footnote ¹⁵ As these last words confirm, the principle of non-intervention may prohibit not only foreign military support in favour of the rebels but also, in some circumstances, that in favour of the governmental authorities. From this perspective, the state cannot be reduced to its government alone; its other constituent parts must also be taken into account, including its territory and its population.Footnote ¹⁶ By intervening in an internal conflict, even at the invitation of government authorities, a state would indeed be using force in international relations in a manner ‘inconsistent with the Purposes of the United Nations’, which purposes include establishing respect for the peoples’ right to self-determination.Footnote ¹⁷

The Institut de droit international (IDI) has adopted two resolutions enshrining such reasoning. The first dates back to 1975 and is entitled ‘The Principle of Non-Intervention in Civil Wars’, Article 2 of which provides that:

1. 1. Third States shall refrain from giving assistance to parties to a civil war which is being fought in the territory of another State.

2. 2. They shall in particular refrain from:

   1. a) sending armed forces or military volunteers, instructors or technicians to any party to a civil war, or allowing them to be sent or to set out;

   2. b) drawing up or training regular or irregular forces with a view to supporting any party to a civil war, or allowing them to be drawn up or trained;

   3. c) supplying weapons or other war material to any party to a civil war, or allowing them to be supplied … Footnote ¹⁸

According to this provision of what is known as the Wiesbaden Resolution III, intervention in civil wars is prohibited whether it is in support of the rebels (which no one contests) or in support of the government. Even if it were criticised as not reflecting customary law, it is submitted that, to some extent, this provision reflects established practice: as will be observed below, states never avowedly support a government acting against its own population.Footnote ¹⁹ At the same time, a reading of the IDI’s Wiesbaden Resolution III might suggest that there exists a ‘negative equality’ between the rebels and the government in the given contexts.Footnote ²⁰ Some have even evoked a ‘strict abstentionist’ approach, prohibiting any form of external support, whether in favour of the rebels or of the government.Footnote ²¹ Such terminology is misleading, however. The IDI recognised that possibilities for providing certain forms of help in favour of the authorities subsisted – notably, in the case of ‘counter-intervention’ (Article 5). We will return to that notion later, but it must be understood from the start that, in customary international law, there is a radical distinction between military support in favour of the rebels, which is presumably unlawful, and military support in favour of the government, which is presumably lawful. This does not mean that international law does not establish any limit to such support, precisely because the right to the self-determination of peoples must be respected. At its Rhodes session in 2011, the IDI followed that line of reasoning and adopted a more nuanced drafting of its Resolution, entitled ‘Military Assistance on Request’, which was applicable to ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, including acts of terrorism, below the threshold of non-international armed conflict’.Footnote ²² Article 3(1) of what is known as the Rhodes Resolution II reads:

Accordingly, many legal writers emphasise the need to ensure that outside intervention – even if it is based on consent validly given by a government – is not designed to interfere in internal affairs.Footnote ²⁴ This doctrinal trend – which can be characterised as the ‘IDI view’ – is not limited to situations of civil wars or non-international armed conflict (NIAC), as is sometimes suggested.Footnote ²⁵ Logically, the principle of self-determination has a general scope of application, and it must be respected in any situation, whether an armed conflict or not. The cases of The Gambia, which will be examined in this chapter, or of Venezuela, as evoked in another chapter in this volume,Footnote ²⁶ confirm this conclusion.

Finally, a terminological clarification must be made.Footnote ²⁷ Some authors have evoked a ‘purpose-based approach’, in which the purpose of an (invited) intervention (its ‘object’, as the IDI puts it) may never interfere in an internal conflict.Footnote ²⁸ Yet the problem with this terminology lies in the difficulty of establishing the purpose and, to some extent, the intention of the intervening state. It seems preferable, then, to refer to the more objective criterion of the ‘object and effects’ of the intervention, which must not violate the right of the population in the inviting state to exercise its right to self-determination. Thus what matters most is determining whether or not this right has been respected considering the effects of the intervention, whatever the intentions of the intervening state may have been.

B. Aim and Methodology

This chapter resides within the framework of this debate regarding intervention by invitation and pursues two key objectives. First, it aligns with the doctrinal trend embodied by the IDI view in emphasising that intervention by invitation is unlawful if it implies interference in an internal situation that would be contrary to the right of peoples to self-determination. An attempt shall therefore be made to show that, in practice, states never avowedly provide military support for a government to help it to quell internal disorder. Without reproducing all the elements that I have developed in my previous writing on that topic,Footnote ²⁹ I shall concentrate more specifically on practice subsequent to the adoption of the Rhodes Resolution II in 2011. Instead of referring to a large number of cases,Footnote ³⁰ with all the difficulties that follow in providing in-depth analysis of the states’ legal positions, I have selected a few emblematic cases to examine in great detail. Our focus will mostly be on military operations in Mali (2013), Iraq (2014), Syria (2015), Yemen (2015), and The Gambia (2017). Each example will concentrate on the basis of the local authorities’ consent and, in each of these case studies, I will attempt to identify what arguments the intervening states made and to what extent third states, as well as the competent international organisations, accepted those arguments. In this way, emphasis shall be placed on the criterion of the opinio iuris as a constituent component of custom, pursuant to the method followed by the ICJFootnote ³¹ and reflected in the works of the International Law Commission (ILC) on the identification of customary international law.Footnote ³²

As will be seen, in practice, it is often difficult to identify the legal component of justification. It is well known that states invoke ambiguous discourses without clearly distinguishing their legal, political, or moral components; as jurists, it is our task to try to determine to what extent those discourses reveal a legal conviction that the right to self-determination limits the lawful possibilities to intervene in an internal conflict. Given the systematic reference to arguments aimed at reconciling the practice of intervention with this right, I strongly believe they do limit the lawfulness of a given intervention. However, we must be perfectly aware that other interpretations tend to reduce relevant official discourses to mere political statements. Thus a careful reading of the justifications given by the intervening states is necessary and must be undertaken on a case-by-case basis, even if other interpretations of those cases could, of course, also be proposed. In sum, in view of the difficulty of separating law from politics in this field, we must be both ambitious and modest. What follows should therefore be considered one possible – even if it is, in my view, the more convincing – interpretation of a practice that is particularly difficult to apprehend in legal terms.

Second, this research will highlight the growing role of the UN Security Council in appraising and characterising the conditions relevant to the legal validity of intervention by invitation. As shall be observed, the Security Council intervened in all the recent case studies on which this chapter will focus. By adopting resolutions, it pronounced on the authority that was entitled to give its consent, and in parallel on the legitimacy of the object and effects of the intervention. These two features are intrinsically connected: depending on its interpretation of the right of peoples to self-determination, the Security Council can disqualify certain groups from representing all or part of a state’s population; at the same time, it will justify support for the authorities fighting against these groups. The case of ISIL is undoubtedly the most emblematic in this respect, but it is far from the only one. This practice of the Security Council is relatively innovative. To make sense of its political reasons, we might remember that, during the Cold War period, the Council was unable to make pronouncements on interventions conducted on the basis of the argument of consent given by the local authorities, such as Belgium’s intervention in the Democratic Republic of the Congo in 1964, that of the USSR in Afghanistan in 1979 or of the United States in the Dominican Republic in 1965.Footnote ³³ In the 1990s, the Security Council tended to proceed by way of authorisation, even when the official authorities had given their consent, as was the case in Somalia in 1992, Haiti in 1994, and Albania in 1996.Footnote ³⁴ In recent years, a new practice seems to have emerged: no longer does the Council necessarily authorise any military intervention, but rather it centralises and multilateralises the appraisal of the circumstances in which the invitation has been formulated.Footnote ³⁵

To explore these two key threads, we shall consider in turn the official justifications invoked by intervening states on the basis of an invitation. The aim is not to assess the sincerity of those justifications in each case but rather to show to what extent they confirm the legal limits that can be deduced from the right to the self-determination of peoples. We will first examine ‘counter-intervention’ – that is, the intervention designed to fight against irregular forces that have received prior aid from abroad (section II) – and continue by looking at the fight against international terrorism (section III). We shall then consider whether the repression of secession (section IV) or the protection of democracy (section V) are arguments that have been both invoked and accepted as justifying military intervention by invitation, without infringing on the right to the self-determination of peoples.

Despite the diverse case studies analysed in this chapter, I submit that a common line of argument will emerge: an outside intervention is not prohibited – and may even be required – when its object is to support a government faced with military actions against it, perpetrated by rebels linked with terrorist groups containing foreign elements that threaten the security of third states. In such a situation, the right of peoples to self-determination does not prevent a foreign intervention in favour of the official authorities – especially when the UN Security Council has recommended and recognised it as legitimate. For precisely this reason, we shall return, in the final part of the chapter, to the importance of the Security Council’s role and to the implications of its actions (section VI).

Before expanding on each of these points, three preliminary observations might usefully be made. First is the strong presumption of legality that characterises a situation in which an intervention has been conducted at the invitation of an official government. If a state intervenes against the will of a state and invokes an exception to the prohibition on the use of force (such as self-defence), it must prove that the legal conditions of this exception are met (such as the existence of an ‘armed attack’). By contrast, an intervention by invitation (at least if the latter has been given by the official government of a state) is presumed to be perfectly legal: as mentioned earlier, it is generally conceived of as an act of cooperation, not as a ‘use of force’ against a state. Consequently, the intervening state is not obliged to establish the legitimacy of its purpose nor is there any pre-existing list of legitimate purposes. Still, anyone who challenges the legality of the intervention has to establish that, in the circumstances, the intervention is incompatible with the right (of the people concerned) to self-determination. This burden of proof is difficult to bear, because states will systematically present their interventions as perfectly compatible with this right. Thus this official discourse tends, as we will see, to confirm that there are at least some theoretical legal limits to the possibilities of outside intervention in an internal conflict.

Second, it should be clarified that I will adopt a classical perspective in the chapter, tending to interpret existing positive law.Footnote ³⁶ The limitations of such an approach are familiar enough and have been decried in studies that take a critical approach.Footnote ³⁷ They relate essentially to the open interpretation of texts stating the relevant legal principles and of texts expressing the position of the states concerned. For some, rhetorical reference to the right to self-determination reveals a utopian view, disconnected from practice that reveals an unlimited right to intervene on the basis of an invitation given by a government; for others, to reduce law to a mere practice of intervention would simply be ‘apologetic’ of the power of the states – and, for this cohort, the necessity of respect for the universally recognised right to self-determination should therefore be emphasised. Faced with such indeterminate legal reasoning, another – more critical – approach might be envisaged, highlighting the tensions surrounding the classical legal debate. This is a perfectly legitimate and feasible avenue of investigation, and I have explored it elsewhere.Footnote ³⁸ Yet the debate in positive law does indeed exist and, within it, the various legal arguments are marshalled, evaluated, and challenged, even if they are sometimes difficult to assess.Footnote ³⁹ In this sense, even if it cannot be separated from it, law cannot be simply reduced to politics. There is a battlefield in the legal domain too (sometimes characterised as ‘lawfare’), and interpretations arise from it that, at a given moment in time and in a precise context, tend to influence political debate.Footnote ⁴⁰ From this perspective, far from an idealist, utopian, or naive conception, taking up a position in positive law may be a conscious strategic choice tending to restrict the possibilities that justify the use of force.

Based on the classical elements of custom recognised by the ICJ and the ILC, I have taken a positivist approach to appraising the practices of the UN Security Council.Footnote ⁴¹ As Vera Gowland-Debbas states:

This perspective differs to a large extent from that espoused by Gregory Fox elsewhere in this volume:Footnote ⁴³ the UN Security Council is not systematically considered a vehicle for expressing customary law when it makes a decision in a specific case. The organ has not been conceived of as a judge or a ‘jury’,Footnote ⁴⁴ designed to deliver judicial review of the practices of states. It rarely makes any legal pronouncement; rather, it acts pragmatically, as a political body.Footnote ⁴⁵ The relevant provisions of the UN Charter also support argument that the Council is not a legislative body. Despite acting on ‘behalf’ of its member states (Article 24) and being entitled to take mandatory decisions that those members must respect (Article 25), the Security Council is not supposed to elaborate general norms or rules beyond specific situations envisaged in Articles 33 and 39 of the Charter.Footnote ⁴⁶ Article 39 even more specifically states that the Council’s role is to ‘decide what measures shall be taken … to maintain or restore international peace and security’, and hence Security Council resolutions must be considered a lex specialis that, according to Article 103 of the Charter, shall prevail over any other legal obligation applicable in the case at hand.Footnote ⁴⁷ This does not mean, of course, that Council practice cannot be used to identify a customary norm – although this would require not only the establishment of a constant practice but also the identification of an opinio iuris that can be deduced from both the resolutions adopted and the positions taken by the UN member states in relation to those resolutions.Footnote ⁴⁸ More concretely, this means that the Security Council’s approval or condemnation of a specific intervention does not, as such, reveal anything about the state of customary law.Footnote ⁴⁹ All will depend on the reasons for its approval or condemnation: was it motivated by a ‘legal duty’,Footnote ⁵⁰ a ‘sense of legal right or obligation’?Footnote ⁵¹ Or rather by ‘extralegal motives for action, such as comity, political expediency or convenience’?Footnote ⁵² It is only in the first hypothesis that a (new) norm of customary law can be identified.

The present chapter was devised along the following lines. Each section will follow the same line of reasoning:

• in each section A, it will set out the general relations between the main argument (i.e., counter-intervention, the fight against international terrorism, the repression of secession, and the protection of democracy) and self-determination in broad terms (section A);

• this exposition of the legal framework will make it easier to understand the argument as it has been concretely invoked in the case at hand (in section B), as well as to highlight the problems it has caused (in section C); and

• on this basis, in each section D, we will be able to envisage the decisive role of the Security Council in addressing (or circumventing) those problems.

All in all, the aim is not to demonstrate the illegality of a given intervention, but to establish to what extent each of the cases analysed reveals an opinio iuris confirming the importance of self-determination and the decisive role of the Security Council in appraising it in each particular situation.

Finally, it must be stressed that this chapter is limited to an interpretation of the rule prohibiting the use of force (ius contra bellum); it does not extend to other rules, such as the principle of non-intervention in general, or rules of international humanitarian law (IHL) (ius in bello). In this sense, it differs from the approach Dino Kritsiotis follows elsewhere in this volume.Footnote ⁵³

A. The Existing Legal Framework: Counter-Intervention and Self-Determination

According to Article 5 of the IDI’s Wiesbaden Resolution III (titled ‘Foreign Intervention’):

The provision clearly exposes the logic of the mechanism behind counter-intervention. If one party – in particular, the irregular forces – has been supported by a foreign state, the government party may legitimately obtain backing to quell the rebellion and, by the same token, the initial outside intervention.Footnote ⁵⁵ In such a situation, support for irregular forces has called into question the right of the people of the state concerned to determine its political regime without outside interference. By supporting the government so that it is able to restore its authority, a party cannot therefore be accused of infringing upon the people’s right to self-determination; on the contrary, such support is designed instead to end the violation of this principle. The ‘counter-intervention’ may even take place in the name of protecting the people’s right to self-determination.

In this context, it should be noted that the initial support for the rebel forces may take on a variety of more or less intense forms. The most serious of these may be characterised as an armed attack – that is, when a foreign state ‘sends’ irregular forces into the territory of another state or has ‘substantial involvement’ in such an action, to refer to the criteria used by states when defining aggression.Footnote ⁵⁶ The state attacked by a foreign state’s irregular forces may then call for help from other states to exercise its right of collective self-defence. In this exceptional situation, Article 51 of the UN Charter provides that such third states then have grounds to act not only in the territory of the state where the civil war is being waged but also in the territory of the state to which an armed attack can be imputed because of the military actions by rebel forces.

A more limited form of intervention may arise when a foreign state tolerates its territory being used by armed bands to attack the authorities of a state, or provides financial support for such irregular forces, or even supplies them with weapons. If we confine ourselves to the ICJ precedents,Footnote ⁵⁷ we are then dealing with a violation of the prohibition of the threat or use of force, according to Article 2(4) of the Charter, but not an ‘armed attack’ within the meaning of Article 51. The consequence is that the state targeted by armed bands does not have a right of self-defence, but it can nonetheless call on other states to intervene against such bands in its own territory (i.e., not in the territory of the infringing state).Footnote ⁵⁸

A third hypothesis exists when rebels are themselves foreign, or have found support among foreign private persons or entities, but are not assisted or tolerated by any state. In this particular instance, not only is there no ‘armed attack’ within the meaning of Article 51, but neither is there any ‘use of force’ within the meaning of Article 2(4). All the same, it is very difficult to consider liability for the rebel movement as the will of all or part of the population of the state concerned. The population might even consider its right to determine its political future without outside interference to be infringed upon by the actions of foreign private actors. It is logical, then, to accept that the government might validly request military aid from another state to put down such incursions by irregular forces. That request would not be in violation of the right to self-determination of the people concerned but rather an attempt to uphold it. As in the second hypothesis, military intervention must obviously remain confined within the territorial boundaries of the concerned state.

The counter-intervention mechanism may be illustrated by substantial practice. Beyond the first hypothesis, which is aimed less at intervention by invitation in the technical sense than at collective self-defence (the case of the Democratic Republic of the Congo comes to mind, which was supported by Angola, Zimbabwe, and Chad in reaction to the armed attack on it by Rwanda and Uganda in 1998Footnote ⁵⁹), it might be worth mentioning the examples of the intervention by the United Kingdom and the United States in Lebanon and Jordan in 1958,Footnote ⁶⁰ by France in Chad in the 1970s,Footnote ⁶¹ or by the forces of the Commonwealth of Independent States in Tajikistan in the 1990s.Footnote ⁶² In this respect (as the last of these examples illustrates), it was not necessary to claim that irregular forces had been sent in, or even helped, by a foreign state to justify the intervention by invitation. Even if it cannot always be readily distinguished from the second hypothesis, the third hypothesis does seem to have been reflected in practice for some time now.

Some legal commentators think that if the state has received a valid invitation from the government of another state, it is allowed to intervene in an internal conflict with no legal limit deriving from an additional condition. To my mind, the practice just mentioned hardly squares with this traditionalist position; rather, it reduces the state to the will of its current government alone, potentially justifying massive outside interference in a conflict or an essentially internal crisis. By reading the discourse from the states in question, what is significant is that they do not assume such a hard-nosed, or even cynical, view of international relations; on the contrary, they insistently present their action as a ‘counter-intervention’ by linking the rebel forces to foreign states or elements. And this observation holds both for the government that intervenes in the conflict and the government calling for aid. The same pattern prevails in recent practice, as the Yemen case study will now demonstrate more clearly, illustrating both the difficulties that may surround the argument of counter-intervention and the role that the Security Council may play in this context.

B. Invocation of Counter-Intervention in the Yemeni Context

The events of what has been called the Arab Spring in 2011 did not concern only Tunisia, Egypt, Libya, Syria, and Bahrain; in Yemen, violent demonstrations broke out in the capital, Sana’a, protestors demanding the departure of Ali Abdallah Saleh, president of the reunited state (and, before that, of North Yemen) since 1990.Footnote ⁶³ Through mediation led by the Gulf Cooperation Council (GCC), the parties accepted a transition plan and Vice-President Abdo Rabbo Mansour Hadi was designated interim president on 4 June 2011. His appointment was confirmed by elections held the following year (he was the sole candidate and won 99.8 per cent of the vote), and he is officially still in office at the time of writing. Hadi’s rule, however, was contested from the outset – especially by the ‘Houthis’, a rebel force in the northwest of the country, who contend that the Zaidite tribes have been marginalised by the central authorities since reunification.Footnote ⁶⁴ In point of fact, these forces have exerted their control over the mountainous regions close to Saudi Arabia since 2004; after engaging in the Arab Spring in 2011 to overthrow President Saleh, they became his allies, with the common objective of bringing down his successor. In September 2014, making the most of a lack of resistance to certain factions of the army that had remained loyal to former President Saleh, the Houthi forces gained ground and occupied the capital, Sana’a. President Hadi and those close to him were arrested, forced to resign, and imprisoned.Footnote ⁶⁵ However, the president managed to escape and take refuge in the coastal city of Aden. From there, on 24 March 2015, he called on Saudi Arabia and other members of the GCC for help. He then fled to Riyadh, and Saudi Arabia launched Operation ‘Decisive Storm’ on 26 March 2015.Footnote ⁶⁶ This massive military operation – subsequently renamed ‘Renewal of Hope’, then ‘Golden Arrow’ – was directed against the Houthi rebels and continues at the time of writing.Footnote ⁶⁷

From the outset, the ‘counter-intervention’ argument has been reflected in the leading protagonists’ discourse justifying the action. The letter from President Hadi inviting the GCC states to intervene is indicative:

A similar logic is reflected in the statement issued by the Kingdom of Saudi Arabia, the United Arab Emirates, the Kingdom of Bahrain, the State of Qatar, and the State of Kuwait, which they sent to the UN Security Council shortly after receiving the letter from President Hadi:

These declarations were not without their ambiguities. Although somewhat allusively so, counter-intervention does appear in the denunciation of support from abroad for the Houthi forces. Iran – the state accused of supporting the Houthis – is not actually named, and the nature and extent of the support it has supposedly provided to these irregular forces is not specified.Footnote ⁷⁰ President Hadi’s reference to Article 51 of the UN Charter seems to refer to the first of the hypotheses evoked above – that of collective self-defence – even if it is broadly interpreted. In this sense, the League of Arab States has:

On 21 May 2015, the Permanent Representative of Saudi Arabia to the United Nations again asserted that the purpose of the operation was ‘to rescue Yemen and protect its people and legitimacy, in accordance with the principle of self-defence’.Footnote ⁷²

At the same time, Article 51 of the Charter was not cited in the letter the intervening powers initially sent to the Security Council – unusually so for a state invoking self-defence within the meaning of that provision.Footnote ⁷³ Perhaps the defence in question here might be considered in a broader sense. The reference to the second hypothesis – that of support contrary to Article 2(4) of the Charter – does not entitle the intervening states to riposte beyond the territory of Yemen, which the intervening states did not, for that matter, seek.Footnote ⁷⁴ It is noteworthy that Saudi Arabia also claims to be protecting itself against attacks by the Houthi forces. From this perspective, there is no need to invoke the argument of counter-intervention: in accepting that its border can be crossed to prevent irregular forces based in its own territory from committing acts of force in the territory of another state, Yemen would merely be abiding by its international obligations, pursuant to existing international judicial precedent.Footnote ⁷⁵ Saudi Arabia would not, then, be intervening in an internal conflict but instead exercising its own rights against irregular armed bands. Mention of the presence of terrorist groups in Yemeni territory in connection with peace and stability in the region is an argument along the same lines: this is supposedly no longer a matter of support for a government against rebel groups in receipt of prior support from abroad but an operation designed to help that state to prevent irregular forces from attacking neighbouring states.

The fact the counter-intervention argument was nonetheless subsequently maintained as one of the essential elements in the discourse with which coalition led by Saudi Arabia justified its actions. The Permanent Representative of Yemen to the United Nations requested help to ‘find a solution to the Yemeni crisis that would end the coup d’état against the authority and legitimate institutions in Yemen, as well as the aggressive interference by Iran in the affairs of Yemen and of the wider region’, then denounced an ‘ongoing war of annihilation, which was launched by Iran for the sake of its expansionist policies’.Footnote ⁷⁶ ‘[T]hose gangs’, he claimed, would have never been able to continue rejecting those proposals if they had not been receiving financial, logistical and military support from Iran. Thanks to that support and smuggled Iranian weapons, the militias are now turning into a serious threat to Yemenis and neighbouring countries, in particular the Kingdom of Saudi Arabia.’Footnote ⁷⁷ It was, he alleged, ‘an international terrorist plot masterminded by Iran – a rogue State that sponsors international terrorism and continues to spend billions of dollars to support terrorist organizations in the region, including the Houthis in Yemen.’Footnote ⁷⁸

In more measured tones, admittedly, other states also pointed the finger at the Republic of Iran. The United Kingdom stated that ‘Iran failed to take the necessary measures to prevent the direct or indirect supply, sale or transfer of short-range ballistic missiles, missile propellant and unmanned aerial vehicles to what was then the Houthi-Saleh alliance’.Footnote ⁷⁹ Likewise, the United States spoke out against ‘Iran’s efforts to destabilise the region and spread its malign influence’, asserting that ‘Iranian weapons are getting into the hands of Yemeni militias, and these militias are using them to target the capitals of Yemen’s neighbours,’Footnote ⁸⁰ before repeating that the ‘Houthi aggression, with the support of Iran, threatens stability in the region’.Footnote ⁸¹

If we were to limit our analysis to these declarations, we would clearly be dealing with the second hypothesis – that of Iranian involvement – which would not necessarily amount to an armed attack within the meaning of Article 51 of the Charter. In any case, it would incontrovertibly justify the intervention on Yemeni territory by Saudi Arabia and its allies on the basis of the invitation from the president of Yemen.

C. Problems Raised by the Invocation of Counter-Intervention in the Yemeni Context

The example of Yemen is evidence, though, of all the problems to which the counter-intervention argument gives rise. Three points ought to be made in this respect – not to demonstrate the illegality of the intervention, but to amplify some legal problems that the Security Council has avoided, as we will observe below.

First is the question of proof.Footnote ⁸² Iran has consistently and vehemently denied providing military support for Houthi rebels, denouncing ‘unfounded allegations’,Footnote ⁸³ which it claims were ‘fabricated to distract attention from the misguided and failed policies that have led to the current political and humanitarian crisis in Yemen’:Footnote ⁸⁴

Teheran views the conflict as essentially internal and denounced the intervention of the coalition led by Saudi Arabia as contrary to ‘international law … in particular the obligation to refrain from the threat or use of force’,Footnote ⁸⁶ and an ‘aggression against Yemen’.Footnote ⁸⁷ Without showing themselves to be so critical, other states have expressed a nuanced position, calling for moderation and underscoring the need to abide by the principle of non-intervention in the affairs of Yemen.Footnote ⁸⁸ In any event, no proof had been provided of active military support from Iran to the Houthi rebels at the time when the Gulf states launched their intervention. Indeed, the intervening states had not yet even named Iran. Instead, they advanced a somewhat ambiguous line of argument, both regarding acts of outside interference that supposedly justified their operation and connecting the counter-intervention argument with others – especially those involving the fight against terrorist groups, or in defence of Saudi Arabia’s sovereignty.

Second, and in this context, some commentators have questioned the proportionality of the Gulf states’ military operation.Footnote ⁸⁹ To remain within the bounds of international law, an action in self-defence must always comply with the customary criteria of necessity and proportionality.Footnote ⁹⁰ Some authors contend that the same condition should also limit an action conducted as a counter-intervention. Should an intervention to put an end to limited outside support of a rebellion be massive, that scale would cast doubt on official justification. In reality, the intervening states might support a government not only against outside interference but also against rebel forces as such. The right of peoples to self-determination may, in other terms, justify a counter-intervention intended to restore equilibrium – that is, to nullify the effects of outside interference. But it cannot legitimise measures that go beyond that and interfere directly in the internal conflict. Now, in the present case, the scale of the military intervention by Saudi Arabia and its allies (mass bombings, presence of troops on the ground, naval blockade, etc.) is hardly comparable to the aid the Iranian state is alleged to have provided to the Houthi rebels. Luca Ferro and Tom Ruys infer from these factors that:

This criticism leads us to a third factor casting doubt on the relevance of the counter-intervention argument: the lack of effective control of the authority who formulated the consent.Footnote ⁹² At the time Abdo Rabbo Mansour Hadi issued his invitation, he had lost all control over the capital, Sana’a, and had fled to Aden, from where he eventually departed for Riyadh. Traditionally, it seems that a degree of effective control is required if a party is to be able to validly consent to a foreign military intervention; several other actions support this conclusion. In the 1990s, the UN Security Council successively authorised military operations in Somalia (1992), Haiti (1994), and Albania (1996), where consent to the intervening states had been given by official leaders who, at the time, did not possess effective authority.Footnote ⁹³ It can therefore be argued that this consent was not thought sufficient as such, since a Security Council resolution seemed to be additionally required. This condition of effective control can be understood thus: if a government no longer has any authority over its territory, it is difficult for it to claim to represent the will of the entire population, in accordance with the people’s right to self-determination.Footnote ⁹⁴

However, this condition of effective control must be relativised in several respects. First, in the three examples just mentioned, the authorities no longer exercised control over virtually any part of their national territory. In other instances, such as those of Syria and Jordan in 1958, the Democratic Republic of the Congo in 1964 and in 1998, or of Chad in the 1970s, the governments in place retained some limited degree of effective control, which explains why no one questioned, in principle, their capacity to formulate consent.Footnote ⁹⁵ In the case of Yemen, it is difficult to ascertain precisely how much of the national territory the forces of President Hadi still controlled at the time the invitation was issued. It would seem excessive, at any rate, to claim that all effective control had disappeared. Besides, under certain circumstances, a total absence of effective power is not an impediment to the valid formulation of consent: for example, when a state is entirely occupied because of an armed attack by another state (Kuwait in the months after its invasion by Iraq in 1990 comes to mind), a government in exile may validly launch an appeal for help in the context of collective self-defence. The lack of effective control in the Yemeni case is not the result of a lack of internal representation but solely of outside interference contrary to the UN Charter. The same reasoning can certainly be transposed to a lower threshold of intervention: when a foreign state unlawfully supports rebels in what was initially an internal conflict and, because of that support, the government loses all or part of its effective control, it would be paradoxical to argue that this government would no longer be in a position to invite third states to intervene on its behalf. Thus, in the case of Yemen, it could be considered that the loss of effective control by President Hadi’s regime is only the consequence of the support granted to the Houthis by Iran, in violation of the prohibition of the use of force. Here, again, the logic of a ‘counter-intervention’ must be fully respected. However, the difficulty with this argument is that it relies only on a contestable factual basis: it is difficult to assert that, without such backing, the president would have maintained effective control over the whole of his territory. There are therefore a multitude of factors that seem to have influenced the outcome of what was, at least initially, a civil war. In this context, it is doubtful that the invitation is a valid one.

Criticism of the GCC’s military intervention has nonetheless remained rare and muted.Footnote ⁹⁶ Debates in the United Nations have, above all, concerned violations of IHL observed on the ground by various non-government organisations.Footnote ⁹⁷ The conflict in Yemen has proved especially deadly for civilians, who are subjected not only to a blockade with disastrous effects on their health but also to largely indiscriminate bombings, which have hit schools or hospitals on several occasions.Footnote ⁹⁸ In principle, however, the legality of the intervention with respect to ius contra bellum seems to have gone largely unchallengedFootnote ⁹⁹ – a circumstance that, as we shall now observe, can be explained by the position taken by the Security Council in the context of this conflict.

D. The Decisive Role of the UN Security Council in the Yemeni Context

Traditionally, the use of force within a state is neither allowed nor prohibited by international law. Article 2(4) of the UN Charter prohibits it only in ‘international relations’, leaving municipal law to govern internal violence.Footnote ¹⁰⁰ In terms of ius contra bellum (and not of ius in bello or of human rights, which are obviously applicable to all situations of internal crisis or conflict), a regime of ‘legal neutrality’ has been evoked in which nothing prohibits part of the population from rebelling nor government forces from attempting to put down such a rebellion.Footnote ¹⁰¹ However, this classical regime is without prejudice in the Security Council’s adoption of the resolutions with which it tries to frame, stifle or prohibit violence within a state, or takes sides – in the name of maintaining international peace and security – with one of the factions that are engaged in the use of force.Footnote ¹⁰² For many years, the UN Security Council has thus adopted resolutions that, depending on the specificities of the situation, introduce obligations and rules for the parties to an internal conflict.

In the case of Yemen, the Security Council took a position long before the intervention by Saudi Arabia and its allies was triggered. In February 2014, when the Houthi rebellion was developing, it adopted a resolution based on Chapter VII of the Charter in which it:

It then:

In the same resolution, the Security Council decided on sanctions against ‘individuals or entities … as engaging in or providing support for acts that threaten the peace, security or stability of Yemen’.Footnote ¹⁰⁴ At this stage, it is clear that, for the Security Council, the only legitimate holder of authority in Yemen is the one arising from the peaceful transition mechanism supervised by the GCC. A contrario, the acts of violence committed by the rebel forces are prohibited in the name of maintaining international peace and security.

It should come as no surprise, then, that – one year later – the Security Council reacted in the following terms to the Houthis’ taking the capital by violence:

• Deploring the unilateral actions taken by the Houthis to dissolve parliament and take over Yemen’s government institutions …

• [ … ]

• 1. Strongly deplores actions taken by the Houthis …

• [ … ]

• 8. Demands that all parties in Yemen cease all armed hostilities against the people and the legitimate authorities of Yemen and relinquish the arms seized from Yemen’s military and security institutions … Footnote ¹⁰⁵

At this stage, President Hadi and his government were explicitly designated the official authorities of Yemen, even though they had lost much of their effective control over the territory. Support for these authorities and the correlative condemnation of irregular forces were justified by the need to maintain stability in the region, as indicated by the comments of the Permanent Representative of France to the United Nations in the debate that preceded the Council’s adoption of the Resolution:

France, like other members of the Security Council,Footnote ¹⁰⁷ echoes another paragraph of the Resolution in which the Security Council ‘[c]ondemns the growing number of attacks carried out or sponsored by Al-Qaida in the Arabian Peninsula,’ and ‘[e]xpresses concern at the ability of Al-Qaida in the Arabian Peninsula to benefit from the deterioration of the political and security situation in Yemen’.Footnote ¹⁰⁸

The logic behind the Security Council’s position can be summarised as follows: maintaining Yemen’s stability is essential to avoid the secessionist trends that might otherwise create an area favourable to terrorist activities. Support for government-elected authorities further to a peace process supervised by a regional security organisation can therefore be explained by specific considerations relating to international peacekeeping motives. Yet the Council never mentions outside support for the Houthi rebel forces nor, a fortiori, Iran – or any state that might be accused of interfering in the internal conflict.Footnote ¹⁰⁹

The same logic is reflected in the Declaration of the President of the UN Security Council of 22 March 2015:

Firm backing for President Hadi can also be found in the first resolution the Security Council adopted on the issue – Resolution 2216, adopted on 14 April 2015 – triggered by Operation Decisive Storm:

• Noting the … letter from the President of Yemen …

• [ … ]

• Condemning the growing number of and scale of the attacks by Al-Qaida in the Arabian Peninsula (AQAP),

• Expressing concern at the ability of AQAP to benefit from the deterioration of the political and security situation in Yemen, …

• [ … ]

• Reaffirming its support for the legitimacy of the President of Yemen, Abdo Rabbo Mansour Hadi …

• [ … ]

1. 1. Demands that all Yemeni parties, in particular the Houthis, fully implement resolution 2201 (2015), refrain from further unilateral actions that could undermine the political transition in Yemen, and further demands that the Houthis immediately and unconditionally:

   1. (a) end the use of violence;

   2. (b) withdraw their forces from all areas they have seized, including the capital Sana’a; … Footnote ¹¹¹

Once again, support from the President of the UN Security Council and the GCC is warranted to maintain peace and fight international terrorism.

It is also worth noting that the Security Council makes no mention of outside support for irregular forces in the texts it adopted at that date nor had it mentioned them in the debates that preceded adoption of those texts.Footnote ¹¹² When the Council refers to the letter of 24 March written by the Permanent Representative for Yemen, it carefully selects an excerpt consistent with the logic it has been defending for months, never mentioning the reference to self-defence that can be found elsewhere in the letter. The same remark holds for its reference to the resolution of the Arab League of 29 March 2015, which also evokes self-defence within the meaning of Article 51 of the Charter.Footnote ¹¹³ The Security Council does not reproduce this argument. True, the Security Council does establish control mechanisms and sanctions, so that no military support can be provided to the irregular forces operating in Yemen,Footnote ¹¹⁴ but it does not denounce any state for interfering in the conflict – especially not Iran.

Confining ourselves to the relevant resolutions and presidential declarations, the military operation by Saudi Arabia and its allies is justified not with respect to this argument nor, more generally, to the argument of counter-intervention, but rather as a measure designed to ensure a process of peace and stability supervised by the Security Council itself – a process that is capable of preventing destabilisation, especially in the evolving context of the activities of terrorist groups such as Al-Qaeda.Footnote ¹¹⁵ The whole justification is based on the defence of the will of the ‘people of Yemen’,Footnote ¹¹⁶ which may be interpreted as an allusion to the right of peoples to self-determination. When procedures are undertaken to implement it under international supervision, this right excludes the use of force by any group that would call into question these procedures, especially if it has been characterised as a terrorist group.

At this stage, we might draw two intermediate conclusions from the Yemen case study. First, the intervening states did not merely settle for mentioning the invitation from the country’s president to justify their operation. Of course, in this case, as in others on the international plane, states often emphasise the political rather than the legal. However, when expressing their views about the legitimacy of their action, the intervening states insisted on its legitimate object, which was allegedly to put an end to outside interference in the conflict – or perhaps even end an actual armed attack – as indicated by the meaning of Article 51 of the Charter. Given the characteristics of this discourse, it can be argued that the full respect of the right of peoples to self-determination recommended by the IDI and by numerous legal instruments was confirmed in this particular instance.Footnote ¹¹⁷

Second, all of the difficulties that attach to this counter-intervention argument (the impossibility of proving any military implication and, a fortiori, an armed attack by Iran, lack of effective control by the president at the time he made the appeal, etc.) were avoided by the Security Council, which carefully abstained from enshrining the collective self-defence argument – or, more generally, the counter-intervention argument. Of course, this reluctance can also be explained by political motivations and the difficulty of reaching an agreement between its permanent members. In any event, the Security Council instead preferred to emphasise the legitimacy of the government in place because of its origins, which were anchored in a peace process conducted under the United Nations’ own supervision. It also denounced the risks of destabilisation in the region that any challenge to the process would entail – especially given the developing activity of terrorist groups related to Al-Qaeda in the territory of Yemen. When a civil war deteriorates and threatens international peace, especially as a result of the involvement of foreign terrorist groups, the classical scheme of neutrality is no longer tenable.

In short, beyond ius contra bellum in general international law, we are faced here with an illustration of the Security Council’s prerogatives in the area of maintaining international peace and security – especially in the context of the fight against international terrorism: a characteristic that can be further illustrated by analysis of the fight against ISIL in Iraq and Syria.

A. The Existing Legal Framework: Self-Determination and the Fight against International Terrorism

Whereas they do contain a direct trace of the argument of counter-intervention, the IDI resolutions adopted during its sessions at Wiesbaden in 1975 and in Rhodes in 2011 do not evoke the fight against terror as a valid argument. Acts of terrorism are mentioned only in the scope of Rhodes, which applies to ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, including acts of terrorism’.Footnote ¹¹⁸ As for Wiesbaden, its field of application extends to all situations of civil war – especially when government forces oppose ‘insurgent movements whose aim is to overthrow the government or the political, economic, or social order of the State, or to achieve secession or self-government for any part of that State’.Footnote ¹¹⁹ This definition is also applicable to foreign terrorist groups. However, a terrorist group – especially one composed of foreign elements – cannot, by definition, claim to express the will of all or part of the population of a state. Terrorism is stigmatised as a crime and not characterised as a political struggle or a rebellion.Footnote ¹²⁰ In this context, helping a state to fight against an international terrorist movement is in no way incompatible with the right to self-determination of the people of the state.Footnote ¹²¹ Quite the contrary: to help public authorities to repress such criminal acts, as perpetrated by foreign elements, is to defend the most fundamental rights of the population – the rights to security, to freedom of expression, and to choose leaders through the peaceful exercise of political rights without external interference. In this context, the fight against international terrorism appears closely linked to the argument of ‘counter-intervention’, as set out above.Footnote ¹²²

This legal logic can be reflected in practice by two main forms of support for the authorities engaged in the fight against disturbances or disorder, especially when acts of international terrorism are in question. These forms may be distinguished by their increasing degrees of intensity.

First, it is very common for states to engage in military cooperation programmes – that is, to supply weapons, train officers, take part in joint manoeuvres, etc. In addition to mechanisms involved in regional collective security organisations – such as the North Atlantic Treaty Organization (NATO), the Organization of American States (OAS), the Association of Southeast Asian Nations (ASEAN), and the African Union – many bilateral treaties have been concluded along these lines, whether between France and the United Kingdom, with regard to certain of their former colonial possessions in Africa, or by the United States with countries of Latin America or Asia, or by China with various developing states.Footnote ¹²³ This practice may be observed more broadly in international relations, and it is generally aimed simply at allowing the state receiving assistance both to defend itself against foreign interference and, more generally, to maintain order within its own territory, pursuant to its international commitments in the matter of human rights.Footnote ¹²⁴ This obligation to maintain order may apply not only in normal situations but also in the event of civil war. Article 3 of the Wiesbaden Resolution of 1975 provides that ‘third States may … : b) continue to give any technical or economic aid which is not likely to have any substantial impact on the outcome of the civil war’.Footnote ¹²⁵ It is difficult to show that this restriction reflects customary law and it is particularly difficult to evaluate in practice – but it does mean at least that, even in a situation of civil war, a foreign state may continue to cooperate militarily with a government challenged by an irregular group: an observation that applies a fortiori if it is a terrorist group containing elements from abroad.Footnote ¹²⁶ In the latter case, it may additionally be doubted whether cooperation is limited as to its effects, as we shall subsequently observe in view of existing practice.

Another form of cooperation, beyond the supply of weapons or training, is the leading of military action in support of an operation to maintain order. Examples of this are legion. In the 1960s, the British Army supported the authorities of several African states confronted with mutinies by officers. The United Kingdom justified its actions by recalling that it was not a matter of helping those authorities in the context of civil war but of assisting with simple operations to maintain order, with no political character.Footnote ¹²⁷ In 2011, Saudi Arabia and the United Arab Emirates responded to a request from the Bahrain authorities looking to put down local demonstrations that it denounced as violent and which it said were supported from outside. The GCC immediately sent troops ‘to contribute to the maintenance of order and security’ under an ‘agreement on defence and cooperation by which the GCC countries share a responsibility for the preservation of security and stability.’Footnote ¹²⁸ Here, again, support for the authorities is meant to ensure the maintenance of order by means of the effective repression of criminal or tortious acts supported by foreign actors; it is not presented as intervention in a purely domestic political conflict.Footnote ¹²⁹

Whatever form it takes, this practice is widespread and is generally aimed at restoring law and order, without the represented repressed acts being characterised as terrorist acts. When this is the case, it is self-evident that military cooperation is not considered a fortiori to be contrary to international law. In her reference work, Christine Gray evokes the United States’ military support of the Colombian government, which was officially to counter drug-trafficking and terrorism.Footnote ¹³⁰ Likewise, in a bilateral agreement in 2008 between the two states, the presence of US troops in Iraq is justified by ‘efforts to maintain security and stability in Iraq, including cooperation against Al-Qaeda and other terrorist groups’.Footnote ¹³¹

Of course, it would be easy to denounce some of the operations just mentioned by pointing out that, in actual fact, the actions taken by the government and the state it called on for backing went well beyond the repression of serious crimes or offences – that, quite simply, they punished a peaceful political opposition movement. Some months after the military intervention in Bahrain, the IDI adopted the Rhodes Resolution II, denouncing such assistance when ‘its object is to support an established government against its own population’.Footnote ¹³² The whole difference, then, lies in appreciation of the facts – of the true motives of those intervening, or the means and effects of the intervention. However, if we confine ourselves to the states’ pronouncements, we observe significantly that – even though the argument is open to criticism – states prefer to invoke the argument of maintaining law and order and the fight against international terrorism rather than to assume responsibility for a direct intervention in an internal conflict. Here, too, it is the necessity of respect for the right of peoples to self-determination that seems to reflect customary practice.

It is important now to test this hypothesis in the context of a case study: the fight against ISIL that developed in the 2010s, primarily in Iraq and Syria.

B. Invocation of the Fight against International Terrorism in the Iraqi and Syrian Context

ISIL was created by armed opponents of the Iraqi government, which was installed in the aftermath of the 2003 US-led intervention in that country.Footnote ¹³³ Originally, its members essentially opposed the Baghdad authorities, which they accused of providing Iraq’s Shi’a majority with disproportionate benefits and of oppressing the Sunni minority with the support of foreign powers. However, ISIL quickly expressed broader ambitions: from 2013 onwards, it claimed exclusive political and theological authority over the world’s Muslims, and it succeeded in attracting many fighters from foreign countries – mainly from the Arab world, Western Europe, Russia (particularly Chechnya), and North Africa. Some sources also suggest that ISIL has been supported by – or from – other states such as Saudi Arabia or Turkey, either financially or even through the provision of arms.Footnote ¹³⁴ Moreover, the gains made against the Iraqi Army, facilitated by the massive withdrawal of US troops in 2011, enabled the organisation to acquire a considerable amount of military equipment, as well as control of numerous oil facilities. Another important element in this situation was the development of the Syrian war, which led to a power vacuum in substantial parts of the Syrian territory that ISIL would exploit. Those factors help to explain why, in 2014, ISIL was able to control an impressive stretch of territory, crossing the Iraqi–Syria boundary – a boundary ISIL denounced as a product of the colonial division of the world.Footnote ¹³⁵ This self-proclaimed ‘Islamic State’ thus managed to control a vast amount of territory, in which it installed a de facto government and elaborated a domestic political, legal, and judicial system based on a particularly radical interpretation and application of sharia law.

Numerous sources have denounced massive violations of human rights in the ISIL-controlled territories.Footnote ¹³⁶ The United Nations has labelled ISIL a terrorist organisation, as have numerous other organisations and states.Footnote ¹³⁷ By contrast, and unsurprisingly, it has itself never been recognised as a ‘state’Footnote ¹³⁸ – even though a massive military intervention was launched against it by several states. In the summer of 2014, the United States formed an international coalition against ISIL at the invitation from the Iraqi authorities. Then, a year later, Russia answered a call from the Syrian authorities and actively cooperated with them in what, officially, was also designated as an armed fight against terror. Successive defeats of ISIL marked 2017 and 2018, and, at the time of writing, it controls very few, small areas of territory in Syria and Iraq, if any. The fight against terrorism has thus formed the essential argument justifying the intervention of states in Iraq and Syria.

C. Problems Raised by the Invocation of the Fight against International Terrorism in the Iraqi and Syrian Context

The main problem with the fight against international terrorism as a justification for intervention relates to the very definition of this controversial concept;Footnote ¹⁴⁸ others can be highlighted too. Here, again, the aim is not to demonstrate the illegality of the interventions that have taken place in Iraq and Syria, but rather to highlight certain legal problems that have been circumvented thanks to the resolutions adopted by the Security Council.

D. The Decisive Role of the UN Security Council in the Iraqi and Syrian Context

A. The Existing Legal Framework: Secession and Self-Determination

If we confine ourselves to general international law, it is difficult to consider outside military intervention against secession compatible with the right to the self-determination of peoples. The phenomenon of a new state can be contemplated in two ways: in law (in relation to a right to self-determination); and in fact (in relation to the existence of a state).Footnote ¹⁸⁰ In both cases, and supposing the secessionist claim has not been supported by foreign actors, it seems difficult to accept that outside military aid should be given to help put down attempts to gain independence.

The first hypothesis in this scenario, of secession in law, deals with a people who have the right to self-determination: a right that implies the right to create a new state – by violence, if need be – against the will of a colonial or occupying power.Footnote ¹⁸¹ Third states, then, cannot have the power to quell what is designated a legitimate national liberation movement. This is not in the context of a classical civil war, in which the principle of legal neutrality prevails.Footnote ¹⁸² The people have a genuine right, which implies a corresponding duty to allow it to be exercised as a choice in self-determination, and that choice is obviously incompatible with an intervention meant to maintain the grip of a colonial or occupying power.Footnote ¹⁸³ For some, it might even be possible to contemplate one or more third states supporting the oppressed people,Footnote ¹⁸⁴ even if it is far from obvious that such support should extend to a military intervention.Footnote ¹⁸⁵ Support for the government, though, is excluded.

The second hypothesis, of de facto secession, covers not a people subject to colonial power or a foreign occupation but a minority living in an existing state.Footnote ¹⁸⁶ This context is not a people exercising its right to self-determination but an attempt at secession: an attempt to create an entity that in fact claims to fulfil all the characteristics of the state (territory, population, and sovereign government) – that is, an entity that manages to exercise its power in an effective and stable way, independently of any higher authority.Footnote ¹⁸⁷ The situation is akin to civil war, as the IDI confirmed in its Wiesbaden Resolution III.Footnote ¹⁸⁸ The principle of legal neutrality reflected in the Resolution – prohibiting support for either party in a civil war – applies.Footnote ¹⁸⁹ At first sight, providing military aid to a government to quell the choice of a part of its population to secede does not seem readily compatible with the principle of non-intervention in civil wars.

In this hypothesis of de facto secession – that which we will consider here – the right of people to self-determination should no longer be envisioned as conferring the right to create a new state but as a protection of the right of the population in an existing state to determine its political regime without outside interference. The choice of the form in a federal or confederal state, or even its division into two or more entities, is incontrovertibly a matter of its national competence. From this perspective, if an internal political debate arises and bears on the expediency of such a choice, third states are supposed to abstain from any interference and let the population of the state in question determine its own future. One objection might be that a unilateral attempt at secession challenges the territorial integrity of a state, especially if this attempt is made by violent means. Such reasoning, though, has been dismissed by the ICJ in its advisory opinion on the Unilateral Declaration of Independence of Kosovo, in which it affirmed that:

Accordingly, an attempt at secession does not a priori violate any principle of international law but falls within the national competence of the state concerned. The group that is located there and claims its independence cannot rely on any right nor is secession prohibited by international law. It is logical, from this perspective, to consider that third states should therefore refrain from supporting any of the parties in internal conflicts.

Some writers have argued that practice tends to recognise the right to intervene against a secessionist movement.Footnote ¹⁹¹ Yet practice does not seem to plead unequivocally along these lines, because it is marked by a degree of ambiguity. Some outside military operations have been conducted in support of governments against secessionist entities, but without openly declaring such support. Thus the intervention by the UN Operation in the Congo (ONUC) in the early 1960s was not presented as an intervention in favour of the Congolese government in the internal conflict opposing the secessionist forces of Katanga; rather, the repression of the secession was justified both as a peacekeeping operation, pursuant to the principle of neutrality, and as a counter-intervention, in reaction to the outside support Belgium had provided to the secessionist forces.Footnote ¹⁹² The same observation can be drawn from the NATO intervention against the Serbs in Bosnia-Herzegovina in 1995: that intervention was not justified by the right of government authorities acting to put down the attempted secession but by the implementation of Security Council resolutions authorising military operations for humanitarian purposes.Footnote ¹⁹³ Accordingly, it seems difficult to identify instances in which the fight against secession has been seen as an autonomous legitimate ground for intervention with the consent of the government. The case of Mali in 2013, however, might tend to challenge this established practice – and we examine that question in what follows.

B. Was the Repression of Secession Invoked in the Malian Context?

Early in 2012, the National Movement for the Liberation of Azawad (Mouvement national de libération de l’Azawad, or MNLA), a Tuareg movement that originally emerged in October 2011,Footnote ¹⁹⁴ successively took control of several localities in northern Mali, with the aim of establishing an independent secular state.Footnote ¹⁹⁵ On 6 April 2012, the MNLA proclaimed ‘Azawad’ independent, with reference to the ‘main international legal instruments governing the right of people to self-determination, and especially the United Nations Charter’.Footnote ¹⁹⁶

C. Problems Raised by the Invocation of Intervention by Invitation in the Malian Context

Among the problems raised by the argument of intervention by invitation as it was invoked in the Malian case are limits concerning the power and status of the Malian authorities at the time of the intervention.

First, it might be observed that the Bamako government no longer had substantial effective control over Malian territory at the time when the French intervention occurred – although it would be going too far to deny its legitimacy for that reason alone. The right to request outside military intervention to protect the Malian people is an exercise of the right of self-determination and we have already discussed the limited requirements of effective control in discussion of the Yemen context. Only those situations in which the consenting authority no longer had any power at all (e.g., Somalia in 1992) have been considered problematic.Footnote ²¹⁶ In the case of Mali, the situation was not so extreme, with the capital and a substantial part of the country still under the control of the central government at the critical point in time.Footnote ²¹⁷

Next, we must return to the problem of whether or not the government could be considered representative in the circumstances at hand. The authorities that made the application for intervention stemmed from a coup d’état that drove former President Amadou Toumani Touré from power on 22 March 2012.Footnote ²¹⁸ The military junta, styled the ‘Comité national de redressement de la démocratie et de la restauration de l’État’ (CNRDRE), justified their action in terms of the need to fight more effectively against the rebellion in the north of the country. Various actors called its legitimacy into question.

• The African Union reacted immediately by suspending Mali under Article 30 of its constituent instrument, which states that ‘Governments which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union’.Footnote ²¹⁹

• ECOWAS ‘refused to attribute any form of legitimacy’ to the CNRDRE, and suspended Mali from all its decision-making organs under the additional protocol on democracy and good governance (Articles 1 and 45(2)), and from the African Charter on Democracy, Elections, and Governance. It adopted various political, diplomatic, economic, and financial sanctions, while reiterating its ‘firm commitment to support Mali in defending its territorial integrity upon the return to constitutional order’.Footnote ²²⁰

In light of these measures and their justifications, it was doubtful that the Malian government that came to power unconstitutionally would be able to express the will of the Malian population. Admittedly, the CNRDRE clearly remains a ‘government’ (if one reads Article 30 of the constituent instrument of the African Union) to which requests and demands are made – but such recognition does not seem to extend beyond de facto power, which can be exercised only provisionally and with limitations. It would be hard to understand how, by this logic, such a government could call on other states to support it against irregular forces.

And yet this is what happened on the ground: first, for ECOWAS, in September 2012; and then, for France, in January 2013. Of equal significance is that, far from being criticised, the military intervention conducted on this basis was largely welcomed, including by those who questioned the legitimacy of the Bamako authorities. While some states may have been reluctant to trumpet their involvement, most congratulated themselves on the launch of Operation Serval. On that same day, the ECOWAS chair thanked the ‘French Government for [its] expeditious reaction aimed to stabilise the military situation in Mali’.Footnote ²²¹ Some days later, the ECOWAS heads of state and government expressed their ‘immense gratitude to France for having successfully launched operations, while observing Malian sovereignty and international legality, that contained the advance of terrorist and extremist groups’.Footnote ²²² Likewise, on 25 January, the Peace and Security Council of the African Union:

Is the legality of the French intervention founded on the consent of the Malian government? Or is it founded on Security Council Resolution 2085 (2012) and/or Article 51 of the UN Charter? Or both? What is assured is that this intervention, which is based on invitation issued by the otherwise contested authorities of Bamako, is considered to be lawful.

To better understand why states might refuse to accord any legitimacy to the government and yet consider this (illegitimate) government capable of expressing the will of the Malian population when requesting military intervention from the outside, as well as thereby to evaluate the scope of this instance, it is essential to analyse in detail the Security Council’s changed position in respect of Mali.

D. The Decisive Role of the UN Security Council in the Malian Context

The UN Security Council was particularly active in the Malian crisis.Footnote ²²⁴ By deciding on certain intricate questions with which it characterised the situation in Mali, the Security Council seemed to allow France to rely on the invitation from the Bamako authorities.Footnote ²²⁵

Initially, it appears that the Security Council denied all parties in the civil war the right to validly represent the will of the Malian population. Characteristic of this was the following presidential declaration of 26 March 2012, by which:

Accordingly, the Security Council denounced both the new authorities in Bamako and the irregular forces out of respect for Mali’s territorial integrity.

In this regard, the connection between the Malian rebels and terrorist groups from abroad was rapidly established. As early as 10 April 2012, members of the Security Council were demanding ‘an immediate cessation of hostilities in the north of Mali by rebel groups’, and expressing their ‘deep concern at the increased terrorist threat in the north of Mali due to the presence among the rebels of members of Al-Qaida in the Islamic Maghreb and extremist elements’.Footnote ²²⁷ In this context, the Security Council provided its resolute support for the measures adopted by ECOWAS.Footnote ²²⁸ On 18 June, it took note of ECOWAS’s request for authorisation ‘to ensure the protection of Malian State institutions and assist in upholding the territorial integrity of Mali and in combating terrorism’.Footnote ²²⁹ In the absence of any authority capable of issuing an invitation to intervene in the conflict, the Security Council, like the competent regional organisations, seemed to require authorisation under Chapter VII of the UN Charter to justify assistance of the ‘Malian State’ rather than the ‘government’. Of course, it is difficult to determine whether this request was inspired only by political motives of by a genuine legal conviction. In any event, such authorisation was forthcoming on 20 December 2012, with the adoption of Resolution 2085 (2012), whereby the Security Council:

• Reaffirming its strong commitment to the sovereignty, unity and territorial integrity of Mali,

• [ … ]

1. 2. Demands that Malian rebel groups cut off all ties to terrorist organizations, notably Al-Qaida in Islamic Maghreb (AQIM) and associated groups, …

   [ … ]

2. 9. Decides to authorize the deployment of an African-led International Support Mission in Mali (AFISMA) for an initial period of one year, which shall take all necessary measures …

   1. (b) To support the Malian authorities in recovering the areas in the north of its territory under the control of terrorist, extremist and armed groups and in reducing the threat posed by terrorist organizations, including AQIM, MUJWA and associated extremist groups, … Footnote ²³⁰

At this stage, the Security Council’s logic was not difficult to identify. The Malian crisis was not considered a civil war but a threat to peace in the region, because of the involvement of terrorist groups, some of which came from abroad. It was therefore because of these particular circumstances that irregular forces were called upon to relinquish their demands, including their demands for secession, as can be inferred from the reference in para. 3 of the Resolution to the territorial integrity of Mali. As for the Bamako authorities, it appears that – because it would be difficult for them to represent the will of the Malian people in conformity with the principle of self-determination – they were not considered sufficiently legitimate to issue an invitation validating foreign intervention, which is why they asked the Security Council to authorise it. Alongside this, and contrary to what a reading of some of its earlier statements might suggest, ECOWAS could plainly intervene only on the basis of such authorisation. Neither the provisions of its constituent instrument nor its collective security instrument nor self-defence could apparently provide autonomous legal grounds. In other words, the Security Council seems here, in the absence of any validly issued invitation, to have reasserted its authority pursuant to Chapters VII and VIII of the UN Charter – in particular, Article 53.

However, and second, it seems that the Security Council decided an outside military intervention could indeed be conducted, without authorisation, solely on the basis of an invitation from the Malian government. It is important to know that the African forces authorised to intervene under Resolution 2085 (2013) were not ready, for operational reasons, to take action. Making the most of this situation, the forces of AQIM and their allies launched a big offensive in late 2012 and early 2013; it was then that Paris decided, in cooperation with Bamako, to intervene on the ground. It was under these circumstances that, on 10 January 2013 (i.e., on the eve of the launch of Operation Serval), the Security Council members recalled ‘the urgent need to counter the increasing terrorist threat in Mali’ and ‘reiterate[d] their call to Member States to assist the settlement of the crisis in Mali and, in particular, to provide assistance to the Malian Defence and Security Forces in order to reduce the threat posed by terrorist organizations and associated groups’.Footnote ²³¹

In the context in which it was adopted, a press release of this kind could hardly be interpreted as anything other than a green light for French intervention. Legally, it appears the Security Council justified this in the name of assistance to the authorities in their fight against international terrorism. A reading of Resolution 2100 (2013), adopted on 25 April 2013, leaves little doubt about this, since the Security Council:

In the same Resolution, the Council reiterated its denunciation of terrorist groups and called for most rebel groups to lay down their arms while the peacekeeping operation (AFISMA) was set up, which was authorised to use force in carrying out its mandate. France itself was authorised to use force in support of the UN forces and in coordination with the UN Secretary-General, all without the legal basis of consent from the Malian government being called into question.Footnote ²³³

The shifting of the position of the Security Council raises questions. In the period before the launch of Operation Serval on 10 January 2013, the Council seems to have thought that only the authorisation technique could provide a legal foundation for an outside military intervention, in light of the difficulty of relying on an invitation from the Malian authorities. After the intervention, such an invitation appears to have been considered sufficient, in consideration of the seriousness of the situation, with terrorist forces arriving at least partially from abroad. In this context, the only way of restoring a degree of coherence was to position the Bamako authorities as engaged in a normalisation process, which would suffice to enable them to validly issue an invitation in January 2013. It is important to realise that, as of 10 April 2012, a ‘framework agreement providing for a series of steps for the restoration of constitutional order’ had been concluded between the perpetrators of the coup d’état in Mali and the mediation of ECOWAS, which the Security Council welcomed.Footnote ²³⁴ The Council members also ‘welcome[d] the appointment of a Government of National Unity in Mali’ and ‘expressed their support to the work of the Interim President of Mali, Dioncounda Traoré’;Footnote ²³⁵ on 12 October 2012, the Security Council also ‘[w]elcome[d] the appointment of a Government of National Unity in Mali’.Footnote ²³⁶

Ultimately, the Malian case study is interesting in more than one way. First, it does not challenge the IDI approach, according to which a valid intervention by invitation must respect the right of peoples to self-determination: the intervening authorities did not settle for a reference to consent provided by government authorities.Footnote ²³⁷ Like the international collective security organisations involved in the crisis, they constantly relied instead on the fight against international terrorism. This is a comparable scheme to that found in the case studies of Yemen, Iraq, and Syria. Once again, to the extent that it is a matter of preventing the perpetration of terrorist acts throughout the region (or even beyond), the consent given by the Malian government can be considered an implementation of its international obligation to not allow its territory to be used for ends contrary to the rights of other states.

Second, it was not the fight against secession, as such, that was evoked as direct and autonomous justification. Beyond the claims of the Tuareg minority in Mali, ties with groups explicitly listed as terrorist organisations were denounced. The fact that those groups included in their ranks elements from abroad seems to have been decisive. It is within this context that it is possible to understand the reference to respect for Mali’s territorial integrity and even, in some instances, the reference to a very broadly defined concept of ‘aggression’. Such factors move us far away from a situation of ‘civil war’, or of classical secessionist conflict, within the meaning of the IDI’s Wiesbaden Resolution III.

Third, the role of the Security Council was once again decisive in the case of Mali.Footnote ²³⁸ This time – and this factor is absent in the other cases analysed so far – both rebel groups and the government authorities were denied the right to express the will of all or part of the population of the state concerned. This double accusation logically led the Security Council to accept responsibility and, in the absence of any consent that might be validly issued, to authorise an intervention itself. However, in light of the changing situation on the ground, the Security Council suddenly accepted that an invitation from the Bamako authorities, while engaged in a normalisation process, could provisionally provide a basis for the French military operation. It is therefore pragmatism, rather than formal legal logic, that characterises the Security Council’s action in the Malian context – an attitude we shall see again in exploring ECOWAS’s intervention in The Gambia a few years later.

A. The Existing Legal Framework: Democracy and Self-Determination

As we saw at the start of the chapter, common Article 1 ICCPR and Article 1 ICESCR states that ‘[a]ll peoples have the right to self-determination. By virtue of that right they freely determine their political status.’ Self-determination is not envisaged here in its ‘external’ aspect – that is, with respect to another state – but rather ‘internally’, within the state itself.Footnote ²³⁹ Thus each people within a state has the right to choose its leaders. Article 1 is often connected with various other rights, such as freedom of thought or assembly, or of speech, and the right to free elections at reasonable intervals, as well as other political rights.Footnote ²⁴⁰ It is therefore fairly logical to associate self-determination with democracy, and it is on this basis that coups d’état or unconstitutional changes of government are increasingly condemned,Footnote ²⁴¹ as just seen in the example of Mali in 2012. At the same time, it is difficult to present the protection of democracy as a legitimate ground for outside intervention. This is obvious for any unilateral military intervention conducted without authorisation from the UN Security Council or invitation issued by the local authorities.Footnote ²⁴² Even in the event of an invitation, the lawfulness of such a military intervention may appear dubious.

The problem lies in defining what is meant by ‘democracy’ and in identifying those who can claim to be ‘democratic’ authorities. In the event of a civil war, each of the parties systematically claims to represent the will of the people, thereby denying such capacity to the other party. The very purpose of the internal struggle or debate is therefore to determine who can represent the will of the population (and how). Pursuant to the general principles set out above, international law in this respect is generally characterised by neutrality – and this is the case, in any event, when ius contra bellum comes into play. Here, a connection must be made between the internal and external aspects of the right to self-determination: without outside interference, each people has the right to determine its own political regime, including the ability to choose its own conception of democracy and the individuals who are best able to embody it. Third states cannot therefore use, as a pretext, the supposedly democratic character of one or other party, whether they are rebels or government authorities, to interfere in this debate.Footnote ²⁴³

Some authors have, however, called this conception into question, observing that democracy has been regularly invoked in support of interventions conducted at the invitation of governments.Footnote ²⁴⁴ This argument does not readily square with the discourse of intervening and third states in the three precedents so far evoked along these lines. In the case of Haiti, too, the restoration of the legitimate president who had been overthrown by a coup d’état came about only as a consequence of the Security Council’s authorisation, since the consent of President Aristide was plainly not sufficient.Footnote ²⁴⁵ The situation in Sierra Leone was different, ECOWAS forces intervening without authorisation from the Security Council against a military junta that had toppled the elected government.Footnote ²⁴⁶ At the same time, these forces – thought to be working to maintain peaceFootnote ²⁴⁷ – did not directly invoke the consent of the government but rather relied on self-defence, with the organisation’s troops present on the spot under an agreement previously accepted by all of the parties that had supposedly been attacked by the authorities in power.Footnote ²⁴⁸ Lastly, in the Côte d’Ivoire, it is recognised that the dispute in 2011 between incumbent President Laurent Gbagbo and his challenger, Allassane Ouattara, over the election results led to an outside military operation that enabled the latter to come to power.Footnote ²⁴⁹ However, the operation was not conducted on the basis of a call from Ouattara (whom the United Nations had designated the winner of the elections), but because the Security Council adopted a resolution authorising states to take all necessary measures to protect civilians affected by the conflict.Footnote ²⁵⁰ In short, the protection of democracy has been used only in support of another classical legal argument: Security Council authorisation, in the cases of Haiti and Côte d’Ivoire; and self-defence of the peacekeeping forces, in the case of Sierra Leone. Has this practice been called into question? This is the question that we will examine in what follows, in the context of the ECOWAS intervention in The Gambia – an intervention explicitly named ‘Restore Democracy’.Footnote ²⁵¹

B. Was the Protection of Democracy Invoked in the Gambian Context?

The Gambia is a fine illustration of the controversies that may arise from democracy: it was a matter of making a pronouncement on the result of elections held in the country on 1 December 2016. According to the Independent Electoral Commission of The Gambia, one of the candidates, Adama Barrow, had won the most votes – more than incumbent President Yahya Jammeh.Footnote ²⁵² But, after initially conceding defeat, the latter had had a change of heart: on 10 December, he suddenly denounced irregularities in the electoral process, refused to give up power, and instead called for new elections.Footnote ²⁵³

This move was swiftly denounced by other African states.Footnote ²⁵⁴ As early as 11 December – that is, the day after Yahya Jammeh announced he was refusing to stand down – the chair of the ECOWAS Authority of Heads of State and Government reacted forcefully:

Some days later, the ECOWAS Authority called on President Jammeh to ‘accept the result of the polls and refrain from any action likely to compromise the transition and peaceful transfer of power to the President-elect’, and it committed to taking the following measures:

1. a) To uphold the result of 1 December 2016 election in the Republic of The Gambia.

2. b) Guarantee the Safety and protection of the President-elect Mr. Adama Barrow.

3. c) The Head of States will attend the inauguration of the President-elect Adama Barrow who must be sworn in on 19 January 2017 in conformity with the Gambian constitution.

   [ … ]

4. h) The Authority shall take all necessary measures to strictly enforce the results of the 1 December 2016 elections.Footnote ²⁵⁶

In parallel, Dr Nkosazana Dlamini-Zuma, chair of the African Union Commission, reaffirmed ‘the imperative need for the concerned Gambian stakeholders to strictly comply with the rule of law and respect of the will of their people’,Footnote ²⁵⁷ while the Union’s Peace and Security Council called upon ‘the Government of The Gambia and all other concerned Gambian stakeholders to work together to facilitate a peaceful and orderly transfer of power to the new President of The Gambia’, and stressed the ‘determination of the AU to take all necessary measures, in line with the relevant AU Instruments, with a view to ensuring full respect and compliance with the will and desire expressed by the people of The Gambia on 1 December 2016’.Footnote ²⁵⁸ In another decision, the AU Council affirmed its ‘zero tolerance policy with regard to coup d’état and unconstitutional changes of government in Africa’, and specified that, ‘as of 19 January 2017, President Yahya Jammeh would no longer be recognised as the legitimate Head of State of The Gambia’. That Council then threatened Yahya Jammeh with ‘serious consequences in the event that his action causes any crisis that could lead to political disorder, humanitarian or human rights disaster, including loss of innocent lives and destruction of properties’. Lastly, it commended ‘ECOWAS for its principled stand with regard to the situation in The Gambia, and reaffirm[ed]s its full support to the decisions adopted by ECOWAS … including the consideration to use all necessary means to ensure the respect of the will of the people of The Gambia.’Footnote ²⁵⁹

Despite these condemnations and this pressure, Yahya Jammeh still had not left office by 19 January. On that day, Adama Barrow was nevertheless solemnly sworn in as the new president in the premises of the Gambian Embassy in Dakar, Senegal.Footnote ²⁶⁰ Hours later, at the invitation of new President Barrow, ECOWAS forces announced its launch of Operation ‘Restore Democracy’, Senegalese military units crossing the boundary with The Gambia without meeting any resistance.Footnote ²⁶¹ It was in this context that, after some ultimate negotiations, Jammeh left the country for Equatorial Guinea on 21 January 2017. Since that date, Adama Barrow has effectively held office as president of the Republic of The Gambia, with no further contest.

So it is both in the name of the will of the Gambian people and therefore their right to self-determination, as well as in the name of respect for democracy, that this intervention by invitation was justified – an argument that, under the circumstances, raised certain questions, as the intervening powers themselves recognised.

C. Problems Raised by the Invocation of Intervention by Invitation in the Gambian Context

First of all, it should be pointed out that the operation was conducted in observance of the results in a contestable Gambian electoral procedure. Even before the vote was held, organisations for the defence of human rights denounced the conditions surrounding the electoral campaign, which were said to favour the incumbent president (Yammeh).Footnote ²⁶² ECOWAS announced that it would refuse to supervise, and therefore legitimise, the process;Footnote ²⁶³ observers from the European Union were prevented from entering The Gambia.Footnote ²⁶⁴ Only a small contingent from the African Union was finally able to act as impartial observer.Footnote ²⁶⁵ As for the Gambian Electoral Commission, it denounced irregularities, determining that they did not affect the outcome of the vote.Footnote ²⁶⁶ It was on this basis that Yahya Jammeh seized on ‘serious and unacceptable abnormalities which have reportedly transpired during the electoral process’, going on to ‘recommend fresh and transparent elections which will be officiated by a God-fearing and independent electoral commission’.Footnote ²⁶⁷ An appeal was immediately laid before the Supreme CourtFootnote ²⁶⁸ and the National Assembly. Given the exceptional circumstances, those domestic bodies decided to formally extend the incumbent president’s term of office for three months.Footnote ²⁶⁹

Was it legitimate for outside actors to substitute their own assessment regarding the legality of the elections for that of a competent Gambian court of law or legislative assembly? This is the paradox of an international norm meant to protect the ‘rule of law’, since it is in the name of respect for Gambian law that procedures and courts instituted by that same law were ultimately called into question.Footnote ²⁷⁰ In this case, outside actors questioned the independence of the Supreme Court judges, who allegedly had been subjected to strong pressure from the powers that beFootnote ²⁷¹ – but it may be questioned whether the judicial systems of every member state of ECOWAS, or of the African Union, and all the electoral processes within those countries are themselves beyond reproach. This difficulty seems to plead in favour of the traditional principle of neutrality in situations of civil war or internal disorder, without prejudice to the action of the Security Council, which shall be examined below.

A second difficulty raised by Operation ‘Restore Democracy’ is that of the fragile – to say the least – authority of the person who issued the invitation, Adama Barrow.Footnote ²⁷² He became president only after hastily swearing the oath in Senegalese territory.Footnote ²⁷³ It is difficult to state an opinion on the legality of this act under Gambian law, but one cannot help harbouring a few doubtsFootnote ²⁷⁴ – particularly as another oath was later sworn on 18 February 2017, in the capital Banjul, at the national festival celebration.Footnote ²⁷⁵ And we might add that Adama Barrow’s first political act was to consent to an outside military intervention in The Gambia. According to some sources,Footnote ²⁷⁶ the operation may even have begun before that consent was issued, which may legitimately cast doubt on its validity.Footnote ²⁷⁷

Beyond these formal considerations, what prompts more questions in the case of Adama Barrow is his total lack of effective control at the time when he invited ECOWAS troops from Dakar to intervene. Barrow did so without controlling the tiniest parcel of Gambian territory. This plainly poses a problem with respect to the condition of effective control being exercised by the inviting authority.Footnote ²⁷⁸ The situation is not comparable to that which prevailed in Mali, Syria, Iraq, or even in Yemen, where President Hadi, even though driven from the capital, still held a degree of control over part of the territory.Footnote ²⁷⁹ Here, instead we are faced with an authority in exile – an exile following not a foreign intervention or occupation but purely the result of internal conflict. And as a simple opposition candidate claiming victory in the elections, Adama Barrow never exercised any effective control, which again separates this from the other comparable case studies. Under the circumstances, as already pointed out, custom would seem to consecrate the need to rely on Security Council authorisation, as in Somalia, Haiti, or even Côte d’Ivoire. Never has an authority devoid of any effective control been able to issue an invitation capable of forming an autonomous legal basis for outside military intervention.

In the case of The Gambia, the intervening forces implicitly admitted the weakness of the intervention by invitation argument. In its decision of 15 December 2016, ECOWAS ‘Request[ed] the endorsement of the AU and the UN on all decisions taken on the matter of The Gambia’.Footnote ²⁸⁰ Two days later, Senegal filed a draft resolution with the Security Council, by which draft approval was to be given to the will manifested by ECOWAS to take ‘all necessary means’ to settle the situation in The Gambia.Footnote ²⁸¹ On 13 January 2017, during a Security Council debate, Mohamed Ibn Chambas, the UN Secretary-General’s Special Representative for West Africa, confirmed that ‘ECOWAS intends to seek the endorsement of the African Union Peace and Security Council and the formal approval of the Security Council to deploy troops to the Gambia’.Footnote ²⁸²

This position is perfectly in keeping with the terms of the appeal made by Adama Barrow himself: ‘I hereby make a special appeal to ECOWAS, AU, and the UN, particularly the Security Council, to support the government and people of the Gambia in enforcing their will, restore their sovereignty and constitutional legitimacy.’Footnote ²⁸³ The invitation was made very generally to the two regional organisations, ECOWAS and the African Union, but more ‘particularly’ to the Security Council.Footnote ²⁸⁴

It might even be argued that the invitation does not cover an action by the two regional organisations without authorisation from the UN Security Council. Even so, this constant and resolute concern for the inviting authority and the invited powers to refer to the Security Council is significant: the invitation itself does not seem to be an autonomous and sufficient legal basis for interventionFootnote ²⁸⁵ – a position that is easy to understand in the context of customary law. It cannot readily be claimed, then, that the invocation of the restoration of democracy is sufficient to circumvent the necessity to respect the right of a people to determine their own political regime without external interference. If this had been the case, the constant reference to the requirement of the authorisation – or at least the support – of the Security Council would have been meaningless, legally speaking. The case of The Gambia therefore relates more particularly to the need to take the Council’s position into account, which may also reveal why the lawfulness of this intervention has not been called into question.Footnote ²⁸⁶

D. The Decisive Role of the UN Security Council in the Gambian Context

The UN Security Council showed itself to be particularly active in the case of The Gambia. Three key points emerge from a reading of the resolutions or declarations that it adopted during the crisis. First, the Council denied all legitimacy to President Jammeh’s refusal to recognise the outcome of the elections of 1 December 2016. A statement released to the press on 10 December reads:

Accordingly, the Security Council members considered the elections transparent and that the decision of the Gambian Independent Electoral Commission was entirely legitimate. They called for compliance with the will of the Gambian people and hence, in a certain way, with the right to self-determination internally. They based their position on the regional instruments of international law adopted by ECOWAS and the African Union.

Second, and alongside this, the Security Council recognised Adama Barrow as the legitimate president-elect. In a presidential declaration of 21 December 2016, while reiterating its position with respect to Yahya Jammeh:

This recognition was reiterated on the day Barrow was first invested in Dakar, when the Security Council adopted a resolution in which it:

1. 1. Urges all Gambian parties and stakeholders to respect the will of the people and the outcome of the election which recognized Adama Barrow as President-elect … ;

2. 2. Endorses the decisions of ECOWAS and the African Union to recognize Mr. Adama Barrow as President of the Gambia;

3. 3. Calls upon the countries in the region and the relevant regional organisation to cooperate with President Barrow in his efforts to realize the transition of power.Footnote ²⁸⁹

The Security Council therefore called on the states and organisations of the region to ‘cooperate’ with ‘President Barrow’, who was plainly considered to be an authority in a position to represent the Gambian people and express their will.Footnote ²⁹⁰

Yet – and this third is a significant factor – the Security Council did not give any ‘authorisation’ to those states or organisations to intervene.Footnote ²⁹¹ True, it ‘commends’, ‘welcomes’, and ‘expresses its full support to’ the action of ECOWAS and the African Union – but, in spite of the will initially expressed by Senegal,Footnote ²⁹² no authorisation to use ‘all necessary means’ is to be found in the final text of the Resolution, which does not refer either to Chapter VII of the UN Charter, or to the existence of a threat to international peace. An examination of the debates that surrounded the adoption of this Resolution confirms that several states rejected the argument of authorisation.Footnote ²⁹³ Those states developed a narrative presenting the measures as non-coercive (under Article 52 of the UN Charter) and not as coercive measures requiring Security Council authorisation (under Article 53).Footnote ²⁹⁴ The Council also evoked ECOWAS’s ‘mediation’, preferring not to categorise the military operations as such. This does not mean that military intervention was excluded, but, under such circumstances, it would be on the basis of another legal foundation rather than its own resolution that such an intervention would unfold.Footnote ²⁹⁵ The invitation from the president is explicitly evoked, with, for example, the United Kingdom’s affirmation: ‘[I]t’s very clear that if President Barrow asks for assistance, then that’s something as the legitimate president of Gambia he’s perfectly entitled to do.’Footnote ²⁹⁶ Thus the Security Council – or at least some of its members – followed the line taken in other instances, such as Sierra Leone in the 1990s, in which it had, without authorising them, given its blessing to military operations by ECOWAS aiming to restore power to authorities that had won the elections but been victims of a coup d’état.Footnote ²⁹⁷ Unlike in Sierra Leone, however, the Security Council made its pronouncement before the intervention in The Gambia was launched.

To conclude, it is worth underscoring a number of lessons that both diverge and converge with those of the recent practice examined above. First, the intervening states did not settle for the invitation from the president of The Gambia, particularly since his status was somewhat open to debate. This is probably why Senegal and ECOWAS insisted on the legitimacy of their objective to restore democracy – that is, to protect the internal right of the Gambian people to self-determination.

Second, at the same time, it is not certain if argument of self-determination would again be considered sufficient to justify an intervention by invitation, which can be understood both for reasons of principle (in the name of what outside powers could claim to impose their own conception of democracy) and because of the specific circumstances of the case at hand (especially the doubtful validity of the office of Adama Barrow and his complete absence of any effective control). The connection was therefore systematically made with the support of the Security Council, which seized on the matter from the outset. As in other cases, this strategy can be explained by political considerations – especially the broad legitimacy provided by such support. But, given the terms contained in some of the discourses at which we have looked in this chapter, it cannot be excluded that the obtention of an authorisation (or at least an approval) was considered as a legal requirement. In this sense, and even if it is not exempt from certain ambiguities, I argue that this case study exposes as problematic any outside military interference in an internal conflict without the approval of the Security Council.

The Security Council adopted a somewhat ambiguous position. Declining the request for authorisation from Senegal, which would have brought the operation within the ambit of Article 53 of the Charter, the Council preferred to validate the authority of the new president of The Gambia, apparently conceiving the ECOWAS action as non-coercive, pursuant to Article 52. This avoided the creation of a (new) precedent of authorisation to use force in an internal electoral dispute, for the benefit of a decentralised action carried out by regional organisations, pursuant to Chapter VIII of the UN Charter. Perhaps even more so than in respect of Yemen, Syria, Iraq, and Mali, then, the Security Council seems, to have played a decisive part in appraising the conditions surrounding the intervention by invitation in The GambiaFootnote ²⁹⁸ – a role that does, however, raise a number of questions at which we will now look in the final part of the chapter.

A. Towards a Rationalisation of the Appraisal of the Right to Self-Determination of Peoples?

Finally, it is submitted that practices in recent years do not challenge the IDI position, which establishes that an outside intervention in favour of a government must respect the right of the concerned people to exercise their right to self-determination. Whether in Yemen, Iraq, Syria, Mali, or The Gambia, states that have intervened on the basis of an invitation have not merely mentioned the existence of that invitation and pointed out that it was issued by an official authority of the state. There is no trace of cynical discourse, whereby it would suffice for two governments to cooperate militarily to enable one or other to help to put down an insurrection or internal challenge, while denying third states the capacity to criticise them in the name of international law. On the contrary, those systematically intervening relied on additional arguments related to the right to the self-determination of the people in the state in which the intervention occurred. In the case of Yemen and Saudi Arabia, the GCC claimed to act in response to an earlier intervention by Iran because of its alleged support of the Houthi rebels. In the case of Iraq and Syria, with the Western states on one side and Russia on the other, more emphasis was placed on the fight against international terrorism. France finally invoked the same reason in the case of Mali, too. In these three instances, terrorist activities were also denounced as threats to the security of third states – a factor that definitively excludes the principle of neutrality traditionally applied in cases of purely internal conflicts. Lastly, with respect to the unique context of intervention in The Gambia, Senegal and ECOWAS claimed to be acting to restore democracy – but, given the intricate character of that ground, at the same time they called for an authorisation, or at least the backing, of the Security Council.

This brings us to the second lesson of this study: the UN Security Council played a crucial role in each of the cases examined. First, it appraised and sometimes reconfigured the objectives as they were advanced by the intervening states. In the case of Yemen, the Council did not mention the implication of Iran but emphasised the fight against international terrorism as a decisive factor. In the cases of Iraq, Syria, and Mali, this was again the objective given precedence: it was understood that the involvement of foreign elements in the terrorist groups was not unrelated to the idea of counter-intervention. In this context, the Security Council also logically discredited these groups in political terms, denying them the right to claim to represent all or part of the population of the state concerned – as was the case for ISIL and for AQIM, for example. In parallel, the Security Council also legitimised certain contested public authorities, such as President Hadi in Yemen, the Malian government that came to power by a coup d’état, or President Barrow in The Gambia. In all three cases, limited, precarious, or even non-existent effective control was evident. And, in all of the precedents examined, the argument of consent was thus evaluated, reshaped, and reinforced according to Security Council action. In this way – as it had in the past, especially in Côte d’IvoireFootnote ²⁹⁹ – the Council decided on conflicting claims concerning both the interpretation of internal law and the result of the electoral process. Thus it is unsurprising that the intervening states systematically invoked the positions taken by the Security Council.

Backing from the Security Council for these interventions tends to both multilateralise and rationalise the interpretation of the right of peoples to self-determination.Footnote ³⁰⁰ It also answers criticisms of subjectivity that might be made of it: because what is the meaning of this right if it is left to be determined sovereignly and subjectively by the intervening states themselves? To measure the advance that the role of the Security Council may represent, one need only compare the different cases analysed in this chapter with that of the 2014 Russian intervention in Ukraine. In the instances in which the Security Council played a decisive role, there was very little criticism of the military interventions consented to, in Yemen, Iraq and Syria, and Mali or The Gambia. By contrast, during the Ukrainian crisis, when the Security Council was unable to act because one of its five permanent members was directly involved, the intervention drew strong criticism.Footnote ³⁰¹ Russia relied on the consent of a president whom it claimed had been illegally ousted, who had fled to Moscow, and who no longer had any effective authority over any part of Ukrainian territory. Russian troops unilaterally moved into Crimea,Footnote ³⁰² resulting in the proclamation of independence in this part of the Ukraine and its annexation by Russia. The UN General Assembly, seized by the question,Footnote ³⁰³ firmly condemned the annexation and asked states not to recognise its effects.Footnote ³⁰⁴ It can be readily seen in this particular case, then, that paralysis of the Security Council leaves the door open to unilateral and subjective interpretations, and that serious disagreements among states are logically apparent. This is a situation that seemed to be the norm during the Cold War period; by contrast, the other cases examined in this chapter attest to a growing trend towards objectification of the condition of respect for the right of peoples to self-determination, which frames intervention by invitation.

However, this trend towards increased objectivity should not be overestimated. By simply making incidental pronouncements on certain legal conditions of this type of intervention, the Security Council leaves the states concerned unsupervised. It no longer proceeds, as it did in the 1990s, to authorise the use of force by defining its objectives nor does it establish any control mechanisms to contain the resulting military actions.Footnote ³⁰⁵ It should not be forgotten that – other than in a few cases, such as Iraq in 1990 or Libya in 2011 – the technique of authorisation has mostly been grafted onto invitation issued by the states concerned, whether in Somalia, Bosnia-Herzegovina, Haiti, Albania, Yugoslavia, Afghanistan, or Iraq (in the last three instances, after military operations were conducted unilaterally).Footnote ³⁰⁶ This practice had already been perceived as a form of retreat from the spirit of the UN Charter, which requires instead that the Security Council should itself undertake actions to maintain or restore international peace.Footnote ³⁰⁷ But in instances like those of Yemen, Iraq, Syria, Mali, or The Gambia, not only does the Security Council decline to act directly, but also it declines to authorise and supervise the actions of states. Instead, it gives them carte blanche to act in a decentralised manner, merely validating the argument of intervention with consent. In this sense, the centralisation that can be deduced from recent practice must be understood in a very relative way.Footnote ³⁰⁸ Moreover, it is reasonable to question the legality and the legal effects of such practice.

B. A Lawful Practice? What Legal Effects?

Other than in the particular instance of collective self-defence, there is often a tendency to consider consent an autonomous legal basis for military intervention. Yet the connection between consent and Security Council action appears quite obvious, if we follow the logic of the UN Charter. Thus three situations can be identified, which appear have been accepted by the UN member states.

1. 1. It may be that the Security Council decides to limit the possibilities of outside military intervention by deciding on an arms embargo, for example. A decision of the kind may exclude military action on the basis of self-defence (as in the case of Bosnia-Herzegovina, during the 1992–95 war),Footnote ³⁰⁹ but also on the basis of an intervention by consent (as in the case of Somalia in 2006).Footnote ³¹⁰ The Security Council may also more directly require the withdrawal of foreign forces, even though they have been invited in by a state; this is how it acted in 2004, when Syrian troops were stationed in Lebanon, with the consent of the Lebanese government.Footnote ³¹¹ In such cases, it is clear that compliance with Security Council resolutions must prevail over any other possible legal justification for the use of force.

2. 2. The Security Council may give an authorisation to justify intervention in states whose government or authorities no longer exercise sufficient effective control. Its action then makes the military operation lawful, independently and, as the case may be, above and beyond the invitation issued by the official representatives of the concerned state. We can place in this category a long string of peacekeeping operations conducted both with the consent of the parties and under the supervision of the Security Council, which may also, in some instances, grant UN forces on the ground authorisation to use force to perform their mission.Footnote ³¹² This is then a hybrid arrangement combining government consent and Security Council action, pursuant to the UN Charter.

3. 3. As the cases analysed have demonstrated, in recent years the Security Council seems to have given precedence to a new arrangement consisting of the informal validation of interventions by consent to be conducted without its formal authorisation. The exceptional scheme of things already observed in the case of Sierra Leone in 1996 seems to be repeating itself. It has transformed into standard practice without ever becoming the subject of any real controversy.

Accordingly, the discretionary competence conferred on the Security Council by the Charter seems to have led to a new arrangement in institutional customs.

If it is accepted that this possibility now constitutes a customary practice, what remains is to ask: what legal effects may follow in each particular case of intervention by invitation? In this respect, two hypotheses may be posited.

1. 1. If the Security Council has validated the argument of consent prior to the triggering of an operation, then its validity cannot readily be called into question. It is hard to imagine, however fragile the argument in the abstract, that the consent of an authority should be challenged when the Security Council has clearly validated the possibility that the authority might invite a third state to intervene, whether in the name of legitimate purposes that it sets out in its resolutions or in other statements of its position.

2. 2. Then – and here we move into the prospective domain – the question arises whether the states that intervene on the strength of an invitation should not also seek a sort of prior approval from the Security Council. The practice whereby states (such as Saudi Arabia in Yemen, the United States in Iraq, Russia in Syria, France in Mali, or Senegal in The Gambia) inform the Security Council about their actions could be an argument in favour of this.Footnote ³¹³ But the procedural requirement set out in Article 51 of the Charter is not systematically reflected in practice with respect to intervention by invitation, with the consequence that it is not easy to claim that this is, at present, a customary norm.Footnote ³¹⁴ A fortiori, care is required when it comes to asserting that the Security Council’s validation might, from now on, be a substantive criterion on which the lawfulness of an intervention by consent depends. Taking into account the probable use of the right to veto in situations in which a permanent member is involved, this condition would lead to a radical restriction of the right to intervene at the invitation of a government. Such a reduction would undeniably challenge the classical presumption in favour of the legality of such an intervention – and this is why it seems premature to plead in favour of it.

For these reasons, while the recent practice of intervention by invitation may cast some light on the legal context, it simultaneously raises further questions. Looking beyond positive law, it is difficult not to be mindful of the tension that persists between deeds and words – between a commonplace, hard-nosed interventionist practice and states’ eagerness to explain away their actions through an appropriate discourse. Against this background, this practice also suggests that the various alternative justifications (counter-intervention, counter-terrorism, self-determination, etc.) given by the intervening states largely deprive the doctrine of non-intervention of all normative constraining effect.