Forcible intervention is a form of positive intervention. Like any other intervention it is subject to the general norm of non-intervention. However, unlike non-forcible interventions, it is subject also to the international law on the use of force. It is worthwhile to briefly comment on the relation between the two sets of norms. It could thus be said that the former covers a wider spectrum of situations than the latter; and, conversely, that while the latter’s objectives include elements of the former, it also sets out to achieve objectives of a different kind.
57
Therefore, these two frameworks of norms – while sometimes protecting the same interests – are not entirely similar. This is a necessary corollary of the fact that the principle of non-intervention has preceded the prohibition on the use of force by three centuries, although the existence of the former without the latter raised a host of doctrinal problems.58 Nevertheless, the principle of non-intervention generally rejects the use of force because it almost always represents a form of coercion inflicted upon the target state.59 As phrased in the ICISS Report, in contrast to most cases of non-forcible intervention, forcible intervention “directly interferes with the capacity of a domestic authority to operate on its own territory. It effectively displaces the domestic authority.”60
Indeed, the law on the use of force also serves to curtail coercion. However, it has further objectives – first and foremost, it is concerned with the prevention of the “scourge” of war in inter-state relations.61 Importantly, while the norm of non-intervention, because of its ambiguous nature, represents a flexible “standard,” the prohibition on the use of force is closer to an absolute “rule,” less amenable, in general, to teleological interpretation.62
Therefore, both sets of norms seek to prevent the use of force – one on counts of its rejection of external coercion, and the other mainly by virtue of its objective to prevent violent settlement of disputes, with all their economic and humanitarian consequences.
58
This problem is discussed in Chapter 5, sec. II.1 59
As the ICJ in Nicaragua held that a breach of the norm of non-intervention is “particularly obvious” where force is being used. See Nicaragua, supra note 31, ¶205; see also Dino Kritsiotis, Topographies of Force, in INTERNATIONAL LAW AND ARMED CONFLICT:EXPLORING THE FAULTLINES :ESSAYS IN HONOUR OF YORAM DINSTEIN 29,67(Michael N. Schmitt & Jelena Pejic eds., 2007).
60
ICISSReport, supra note 10, at 29;see also Oscar Schachter, The Right of States to Use Armed Force, 82 MICH.L.REV 1620,1625(1984)(“...article 2(4) remains the most explicit Charter rule against intervention through armed force.”)
61
U.N. Charter, pmbl. 62
Compare Gabriella Blum, On a Differential Law of War, 52 HARV.J.INT’L L.164,187 (2011) (discussing rules and standards in the context of international humanitarian law).
Since these are different protected interests, it seems that the two sets of norms would apply in parallel – in a complementary manner – in every instance of forcible intervention. Accordingly, any such intervention must not be contrary to the law of the use of force; in addition, it cannot be in contravention of the general norm of non- intervention, according to its contemporary understanding.63
One effect of this normative-duality is that even when an instance of use of force is legal (for instance, in self-defense), it must also conform to the norm of non- intervention.64 An example may be found in the Hague law of occupation. Even where the occupation itself is legal (by standards of the law of the use of force), the occupying party is still obliged – “unless absolutely prevented” – to respect the laws “in force” in the occupied territory.65 The mirror image of this reasoning is more intuitive: even where the norm of non-intervention does not in theory prohibit an action (such as in intervention for the protection of nationals), the limitations on armed intervention imposed by the law on use of force are not necessarily negated.
The question of consensual intervention, thus, must be viewed according to this normative-duality. Party consent should be therefore analyzed in light of its effects over the laws on the use of force, but also on counts of its interaction with the norm of non- intervention. For instance, unilateral intervention upon the consent of a non-recognized opposition group, facing a government that commits mass atrocities, might not violate the
63
Such was also the conclusion of the ICJ in Nicaragua, as it ruled that supply of arms to opposition forces is a violation of the law of use of force (but does not constitute an armed attack) and also a violation of the norm of non-intervention. See Nicaragua, supra note 31, ¶247; see also Armed Activities on the Territory of the Congo (DRC v. Uganda), 2005 I.C.J. 168 (December 19) ¶164; Kritsiotis, supra note 59, at 64. 64
For similar reasoning see WALZER,supra note 2, at xi (“[e]ven when a humanitarian crisis has rightly triggered intervention, we can still hope to minimize the coercive imposition of foreign ideas and ideologies.”)
65
norm of non-intervention per se – considering the understanding of the norm as discussed in the previous section – however, it might still violate the prohibition on the use of force.66 Conversely, consent by a recognized non-democratic regime might – in a purely hypothetical situation – legalize a forcible intervention in terms of jus ad bellum; but one can imagine a situation – if we accept that the norm is indeed affected by notions of democratic entitlement – in which the action will still be deemed a violation of the norm of non-intervention.67
66
However, as discussed in Chapter 12, the opposition might be granted recognition on counts of consideration of protection of civilians, which might result also in consent power.
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This theoretical scenario should be read in a qualified manner. As we shall see in Chapters 10 and 11, non-democratic regimes, when confronted by a pro-democratic opposition, will almost always commit atrocities, in which case their consent will be nullified, and thus cannot justify intervention whether in the realm of jus ad bellum or otherwise.