State Consent to Foreign Military Intervention during Civil Wars: Studies in International Criminal Law, cartea 4
Autor Seyfullah Hasaren Limba Engleză Hardback – 6 apr 2022
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Specificații
ISBN-13: 9789004510449
ISBN-10: 9004510443
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Studies in International Criminal Law
ISBN-10: 9004510443
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Studies in International Criminal Law
Notă biografică
Seyfullah Hasar is a lecturer in international law at Dicle University, Turkey. After graduating from Istanbul University and obtaining his licence to practice law, he completed his master’s and PhD at Brunel University London in 2017 and 2021 respectively.
Cuprins
Acknowledgments
Abbreviations
1Introduction
1 Problem
2 Methodology
3 Structure
4 Preliminary Issues
4.1The Usage of the Term ‘Civil War’ in Legal Literature
4.1.1 niac s in the Sense of Common Article 3
4.1.2 niac s in the Sense of Protocol ii
4.1.3 Where Does ‘Civil War’ Fit in the Binary Framework of Geneva Conventions and What Does the Term Imply in the Context of Consensual Interventions?
4.1.4 Determining a Conflict as a Civil War in Practice
4.2Prohibition of Intervention
4.2.1 Scholarly Efforts to Reveal an International Legal Regime Governing Resort to Force within Civil Wars
2‘Consent’ in the Context of Military Interventions
1 Introduction: The Right to Consent to Intervention
2 Is Consent a Secondary Rule or Intrinsic to the Primary Rule Itself?
3 Consent and the Peremptory Character of the Prohibition of the Use of Force
4 Treaty-based Prospective Consent
5 Validity and Limits of Consent
5.1Consent to Be Given Freely
5.2Consent to Be Clearly Established and Actually Expressed
5.2.1 Contradictory and Ambiguous Reactions to Intervention
5.2.2 Secret Consent
5.3Consent to Be Granted by a State Organ Entitled to Do So
5.4Intervention Within the Limits of Consent
6 Conclusion
3Capacity to Consent Recognition of Governments
1 Introduction: The Act of Recognition
2 The Doctrine of Effective Control
2.1Irrelevancy of Constitutional Law and the Policy of Not According Formal Recognition
2.1.1 Recognition of Guaidó as Interim President of Venezuela
2.2Presumption in Favour of Established Governments During Civil Wars
2.2.1 Continued Recognition of the Assad Government in Syria
2.2.2 Continued Recognition of President Hadi of Yemen and the Derecognition of President Yanukovych of Ukraine
2.2.3 Recognition of the ntc as the Government of Libya
2.3Illegitimacy of Governments Installed by Foreign Powers
2.4Unwillingness to Observe International Obligations as a Reason for Non-Recognition
2.5The Case of Failed States
2.6The Role of International Recognition
2.7International Recognition in the Form of Representation in the UN?
3 The Doctrine of Democratic Legitimacy
3.1Non-Recognition of Governments Who Rig Elections – Venezuela and Belarus
4 Conclusion
4Consenting to Intervention During Civil Wars Non-Intervention and Self-Determination
1 Introduction
2 Principle of Non-Intervention
2.1The UN General Assembly and Intervention in Civil Wars
2.1.1 The 1949 Draft Declaration on Rights and Duties of States
2.1.2 The 1965 Declaration on the Inadmissibility of Intervention
2.1.3 The 1970 Declaration on Friendly Relations
2.2The International Court of Justice and Intervention in Civil Wars
2.2.1 The Nicaragua Case
2.2.2 The drc v Uganda Case
3 Right to Self-Determination
3.1Civil War as a Way of Exercising the Right to Self-Determination
3.2Internal Self-Determination and Foreign Intervention Against Secessionist Movements
4 Conclusion
5Other Legal Grounds That Can Limit Consensual Interventions
1 Introduction
2 No State Can Transfer More Rights Than It Has Itself
3 General Rule of State Complicity
3.1Issues Concerning the Wrongfulness of the Principal Act
3.2‘Aid and Assistance’ and the Shifting Responsibility of the Assisting State
3.3‘Knowledge’
4 Duty to Ensure Respect for International Humanitarian Law
5 Arms Transfer Treaties
5.1The Arms Trade Treaty
5.1.1 Undermining Peace and Security
6 UN Security Council Resolutions
7 Domestic Law
8 Conclusion
6Contemporary State Practice
1 Introduction
2 State Practice
2.1Russian and cis Intervention in Tajikistan – 1992
2.2Croatian Intervention in Bosnia and Herzegovina – 1995
2.3French Intervention in the Comoros Reversing a Coup Backed by Foreign Mercenaries – 1995
2.4French Interventions in the Central African Republic Against Army Mutinies – 1996
2.5Senegal and Guinea’s Intervention in Guinea-Bissau Against an Army Mutiny – 1998
2.6Regional Countries’ Intervention in the Democratic Republic of the Congo Against Ugandan and Rwandan-Backed Rebels – 1998
2.7sadc Intervention in Lesotho Against an Army Mutiny – 1998
2.8Namibian Intervention in Angola Against unita – 1999
2.9Regional Countries’ Interventions Against the Islamic Movement of Uzbekistan – 1999
2.10The UK’s Intervention in Sierra Leone Against the ruf – 2000
2.11Interventions Against the Lord’s Resistance Army – 2002
2.12French Intervention in Côte d’Ivoire – 2002
2.13ramsi Intervention in Solomon Islands – 2003
2.14The US Drone Strikes in Pakistan – 2004
2.15Multinational Intervention in Timor-Leste – 2006
2.16French Intervention in Chad – 2006
2.17New Zealand and Australian Intervention in Tonga in Response to Riots – 2006
2.18French Intervention in the Central African Republic – 2006
2.19Ethiopian Intervention in Somalia Against the icu – 2006
2.20The US Interventions in Somalia Against al-Shabaab, al-Qaeda and isil – 2007
2.21The au Intervention in the Comoros – 2008
2.22French Intervention in Chad – 2008
2.23The US Intervention in Yemen Against aqap and isil – 2009
2.24Rwandan Intervention in the Democratic Republic of the Congo Against the fdlr – 2009
2.25The gcc Intervention in Bahrain – 2011
2.26Kenyan Intervention in Somalia Against al-Shabaab – 2011
2.27Ethiopian Intervention in Somalia Against al-Shabaab – 2011
2.28Multinational Intervention in the Central African Republic Against the Séléka Coalition – 2012
2.29French Intervention in Mali – 2013
2.29.1 Operation Barkhane – 2014, and G5 Sahel Joint Force – 2017
2.29.2 European Task Force Takuba’s Intervention in the Region – 2020
2.29.3 The US Involvement in the Region – 2013
2.30Ugandan Intervention in South Sudan – 2013
2.31Interventions by the US-led coalition, Iran and Russia in Iraq Against isil – 2014
2.31.1 The US’s Previous Consent-Based Presence in Iraq – 2009
2.32The US (and nato) Interventions in Afghanistan – 2015
2.33Interventions in Nigeria and Neighbouring Countries Against Boko Haram – 2015
2.34Egyptian and the US Interventions in Libya Against isil – 2015
2.35Saudi-led and the US Interventions in Yemen – 2015
2.36Russian, Iranian and Iraqi Interventions in Syria – 2015
2.37sadc Intervention in Lesotho – 2017
2.38French Intervention in Chad Against the Union of Resistance Forces – 2019
2.39Turkish Intervention in Libya Against the lna – 2020
2.40Rwandan and Russian Interventions in the Central African Republic – 2020
2.41sadc and Rwandan Interventions in Mozambique – 2021
3 Legal Statements by Canada, the UK, France, the drc, the US and Others
4 Conclusion
7Analysis of the State Practice
1 Introduction
2 Analysis of the State Practice in the Literature
3 Analysis of the State Practice
3.1General
3.2Counter-Terrorism as a Distinct Legal Concept
3.3Counter-Intervention and Collective Self-Defence
3.4Invoking Both ‘Consent’ and ‘Self-Defence’
3.5Assistance Short of Direct Military Intervention
3.6The Impact of the UN Arms Embargoes on Consensual Interventions
3.7The UN Security Council’s Role in Enhancing the Legality of Consensual Interventions
3.8The Impact of Human Rights and Humanitarian Law Violations by the Consenting State on the Legality of the Consensual Interventions
4 Conclusion
8Conclusion
1 General
2 Broader Implications: Controversial Nature of Consensual Interventions and the Crime of Aggression
Bibliography
Index
Abbreviations
1Introduction
1 Problem
2 Methodology
3 Structure
4 Preliminary Issues
4.1The Usage of the Term ‘Civil War’ in Legal Literature
4.1.1 niac s in the Sense of Common Article 3
4.1.2 niac s in the Sense of Protocol ii
4.1.3 Where Does ‘Civil War’ Fit in the Binary Framework of Geneva Conventions and What Does the Term Imply in the Context of Consensual Interventions?
4.1.4 Determining a Conflict as a Civil War in Practice
4.2Prohibition of Intervention
4.2.1 Scholarly Efforts to Reveal an International Legal Regime Governing Resort to Force within Civil Wars
2‘Consent’ in the Context of Military Interventions
1 Introduction: The Right to Consent to Intervention
2 Is Consent a Secondary Rule or Intrinsic to the Primary Rule Itself?
3 Consent and the Peremptory Character of the Prohibition of the Use of Force
4 Treaty-based Prospective Consent
5 Validity and Limits of Consent
5.1Consent to Be Given Freely
5.2Consent to Be Clearly Established and Actually Expressed
5.2.1 Contradictory and Ambiguous Reactions to Intervention
5.2.2 Secret Consent
5.3Consent to Be Granted by a State Organ Entitled to Do So
5.4Intervention Within the Limits of Consent
6 Conclusion
3Capacity to Consent Recognition of Governments
1 Introduction: The Act of Recognition
2 The Doctrine of Effective Control
2.1Irrelevancy of Constitutional Law and the Policy of Not According Formal Recognition
2.1.1 Recognition of Guaidó as Interim President of Venezuela
2.2Presumption in Favour of Established Governments During Civil Wars
2.2.1 Continued Recognition of the Assad Government in Syria
2.2.2 Continued Recognition of President Hadi of Yemen and the Derecognition of President Yanukovych of Ukraine
2.2.3 Recognition of the ntc as the Government of Libya
2.3Illegitimacy of Governments Installed by Foreign Powers
2.4Unwillingness to Observe International Obligations as a Reason for Non-Recognition
2.5The Case of Failed States
2.6The Role of International Recognition
2.7International Recognition in the Form of Representation in the UN?
3 The Doctrine of Democratic Legitimacy
3.1Non-Recognition of Governments Who Rig Elections – Venezuela and Belarus
4 Conclusion
4Consenting to Intervention During Civil Wars Non-Intervention and Self-Determination
1 Introduction
2 Principle of Non-Intervention
2.1The UN General Assembly and Intervention in Civil Wars
2.1.1 The 1949 Draft Declaration on Rights and Duties of States
2.1.2 The 1965 Declaration on the Inadmissibility of Intervention
2.1.3 The 1970 Declaration on Friendly Relations
2.2The International Court of Justice and Intervention in Civil Wars
2.2.1 The Nicaragua Case
2.2.2 The drc v Uganda Case
3 Right to Self-Determination
3.1Civil War as a Way of Exercising the Right to Self-Determination
3.2Internal Self-Determination and Foreign Intervention Against Secessionist Movements
4 Conclusion
5Other Legal Grounds That Can Limit Consensual Interventions
1 Introduction
2 No State Can Transfer More Rights Than It Has Itself
3 General Rule of State Complicity
3.1Issues Concerning the Wrongfulness of the Principal Act
3.2‘Aid and Assistance’ and the Shifting Responsibility of the Assisting State
3.3‘Knowledge’
4 Duty to Ensure Respect for International Humanitarian Law
5 Arms Transfer Treaties
5.1The Arms Trade Treaty
5.1.1 Undermining Peace and Security
6 UN Security Council Resolutions
7 Domestic Law
8 Conclusion
6Contemporary State Practice
1 Introduction
2 State Practice
2.1Russian and cis Intervention in Tajikistan – 1992
2.2Croatian Intervention in Bosnia and Herzegovina – 1995
2.3French Intervention in the Comoros Reversing a Coup Backed by Foreign Mercenaries – 1995
2.4French Interventions in the Central African Republic Against Army Mutinies – 1996
2.5Senegal and Guinea’s Intervention in Guinea-Bissau Against an Army Mutiny – 1998
2.6Regional Countries’ Intervention in the Democratic Republic of the Congo Against Ugandan and Rwandan-Backed Rebels – 1998
2.7sadc Intervention in Lesotho Against an Army Mutiny – 1998
2.8Namibian Intervention in Angola Against unita – 1999
2.9Regional Countries’ Interventions Against the Islamic Movement of Uzbekistan – 1999
2.10The UK’s Intervention in Sierra Leone Against the ruf – 2000
2.11Interventions Against the Lord’s Resistance Army – 2002
2.12French Intervention in Côte d’Ivoire – 2002
2.13ramsi Intervention in Solomon Islands – 2003
2.14The US Drone Strikes in Pakistan – 2004
2.15Multinational Intervention in Timor-Leste – 2006
2.16French Intervention in Chad – 2006
2.17New Zealand and Australian Intervention in Tonga in Response to Riots – 2006
2.18French Intervention in the Central African Republic – 2006
2.19Ethiopian Intervention in Somalia Against the icu – 2006
2.20The US Interventions in Somalia Against al-Shabaab, al-Qaeda and isil – 2007
2.21The au Intervention in the Comoros – 2008
2.22French Intervention in Chad – 2008
2.23The US Intervention in Yemen Against aqap and isil – 2009
2.24Rwandan Intervention in the Democratic Republic of the Congo Against the fdlr – 2009
2.25The gcc Intervention in Bahrain – 2011
2.26Kenyan Intervention in Somalia Against al-Shabaab – 2011
2.27Ethiopian Intervention in Somalia Against al-Shabaab – 2011
2.28Multinational Intervention in the Central African Republic Against the Séléka Coalition – 2012
2.29French Intervention in Mali – 2013
2.29.1 Operation Barkhane – 2014, and G5 Sahel Joint Force – 2017
2.29.2 European Task Force Takuba’s Intervention in the Region – 2020
2.29.3 The US Involvement in the Region – 2013
2.30Ugandan Intervention in South Sudan – 2013
2.31Interventions by the US-led coalition, Iran and Russia in Iraq Against isil – 2014
2.31.1 The US’s Previous Consent-Based Presence in Iraq – 2009
2.32The US (and nato) Interventions in Afghanistan – 2015
2.33Interventions in Nigeria and Neighbouring Countries Against Boko Haram – 2015
2.34Egyptian and the US Interventions in Libya Against isil – 2015
2.35Saudi-led and the US Interventions in Yemen – 2015
2.36Russian, Iranian and Iraqi Interventions in Syria – 2015
2.37sadc Intervention in Lesotho – 2017
2.38French Intervention in Chad Against the Union of Resistance Forces – 2019
2.39Turkish Intervention in Libya Against the lna – 2020
2.40Rwandan and Russian Interventions in the Central African Republic – 2020
2.41sadc and Rwandan Interventions in Mozambique – 2021
3 Legal Statements by Canada, the UK, France, the drc, the US and Others
4 Conclusion
7Analysis of the State Practice
1 Introduction
2 Analysis of the State Practice in the Literature
3 Analysis of the State Practice
3.1General
3.2Counter-Terrorism as a Distinct Legal Concept
3.3Counter-Intervention and Collective Self-Defence
3.4Invoking Both ‘Consent’ and ‘Self-Defence’
3.5Assistance Short of Direct Military Intervention
3.6The Impact of the UN Arms Embargoes on Consensual Interventions
3.7The UN Security Council’s Role in Enhancing the Legality of Consensual Interventions
3.8The Impact of Human Rights and Humanitarian Law Violations by the Consenting State on the Legality of the Consensual Interventions
4 Conclusion
8Conclusion
1 General
2 Broader Implications: Controversial Nature of Consensual Interventions and the Crime of Aggression
Bibliography
Index