7 Conclusion

This concluding chapter identifies what the customary international law requirements are for valid requests for military assistance. It also addresses the ambivalent relationship between this legal construct and the notion of collective security embodied in the UN Charter. On the one hand, there is the risk that military assistance provided by individual states or groups of states undermines the notion of the centralization of decisions regarding the use of force with the United Nations Security Council. It can further perpetuate the perception of neo-colonialism and imperialism that have been associated with military assistance on request ever since the Cold War. On the other hand, clauses such as article 4(j) and potentially article 4(h) of the African Union Constitutive Act and article 25 of the Economic Community of West African States Mechanism Protocol suggest that military assistance on request can be deployed as a mechanism for maintaining regional peace and security. This suggests that, depending on the context, military assistance on request can be utilized in the interests of international peace and security and could therefore be reconcilable with the notion of collective security underpinning the UN Charter.

4 Direct Military Assistance to Incumbent Governments Implicated in Violations of International Humanitarian and/or Human Rights Law

This chapter discusses the question of whether third states are prohibited from sending their armed forces to requesting states implicated in widespread violations of international humanitarian and human rights law. Article 3 of the Resolution on Military Assistance by Request of the Institut de Droit International (IDI) 2011 has stimulated the debate, in as far as it claims that the ‘sending of armed forces by one state to another state upon the latter’s request’ is prohibited if it is in violation of ‘generally accepted standards of human rights’. This statement may be read in various ways. First, it can be understood as meaning that the troops of the intervening (assisting) state themselves must adhere to international human rights standards when exercising force at the request of the territorial (recipient) state. However, article 3 of the IDI 2011 Resolution could also be interpreted as prohibiting direct military assistance that would result in the aiding or assisting of human rights violations by the recipient state. The chapter then considers the incurrence and consequences of derivative state responsibility of an intervening state under customary international law for the violations of international human rights and humanitarian law of the territorial state. In so doing, the analysis is informed by case law and doctrine relating to derivative responsibility for such violations through conduct stopping short of direct military support.

5 Formal Requirements for Valid Consent to Direct Military Assistance

This chapter explores potential formal requirements that may affect the validity of consent to direct military assistance. Customary international law only imposes two specific, formal limitations on the legal construct of military assistance on request. The first would be that the request for or consent to military assistance must be issued (and withdrawn) by the highest officials of a state, namely, the head of state and/or government. Where these two positions are not combined within the same person and there is disagreement between them as to whether consent exists, the domestic law of the country in question may be decisive in determining who has the final say in the matter. However, such disagreement between the two highest state officials is likely to be an indication of the political fragility of the consent, which should caution against relying exclusively on consent as the legal basis for the forcible measures. The second constraint imposed by customary international law concerns the requirement that ex ante consent as expressed in pro-invasion treaty clauses must be complemented by ad hoc consent at the time of the forcible measures. Apart from these two constraints, customary international law does not seem to impose any particular formal requirements on states expressing consent to forcible measures on its territory.

3 Direct Military Assistance on Request During Civil Wars

This chapter examines whether the right to self-determination in international law prevents military intervention on the side of the recognized government during a civil war. Post-Cold War state and organizational practice does not convincingly support the claim that direct military assistance at the request of a recognized government is prohibited during a civil war, otherwise known as a ‘non-international armed conflict’ (NIAC). Attempts to explain current state practice by means of counter-terrorism and counter-intervention exceptions to a general prohibition of such assistance also is not grounded in state or organizational practice, nor are such exceptions viable in practice. Instead, state and organizational practice seems to confirm the right of recognized governments to request military assistance from third states, also during civil wars/NIACs, as long as they retain their recognized, de jure status. The potential lack of ‘representativeness’ in such a situation does not seem to limit the extent to which the de jure government can act on behalf of the state (and its people) in matters pertaining to the use of force.

1 Introduction

This introductory chapter provides an overview of the concept of military assistance on request. By expressing a request for military assistance, a state essentially expresses consent to be bound by an agreement in accordance with which another subject of international law can exercise forcible measures on the requesting state’s territory. Contemporary state practice suggests that these agreements can be divided into two broad categories, the first being requests for military assistance by a state to one or more states, while the second concerns requests for military assistance made to international organizations (notably in the form of regional and sub-regional organizations). One may further distinguish between ad hoc requests for (or consent to) military assistance in response to a particular situation that has arisen in the territorial state, and ex ante consent included in a pro-invasion (guarantee) treaty clause. The chapter then looks at the key legal controversies regarding military assistance, which will be discussed in the next chapters. It concludes by clarifying key concepts and the methodology applied throughout the analysis.

6 The Relationship Between Military Assistance on Request and the Right to Individual or Collective Self-Defence

This chapter assesses the relationship between military assistance on request and the right to individual or collective self-defence. Military assistance on request and the right to individual or collective self-defence in article 51 of the Charter of the United Nations constitute two separate legal constructs under international law. Whereas the former turns on the freely-expressed consent of the de jure recognized government during the entire duration of the military intervention, the latter is triggered when a state falls victim to an armed attack. Despite the different legal criteria underpinning these two legal constructs, forcible measures in third states are sometimes justified with reference to both military assistance on request and the right to individual or collective self-defence. The chapter then shows that the evolving nature of the right to self-defence in article 51 of the UN Charter has the potential of reducing the role of consent as a mechanism for protecting state sovereignty in the jus ad bellum paradigm. This is due to the lowering of the threshold for attribution of indirect attacks, as well as the attribution of armed attacks to non-state actors. This diminished relevance of consent may under certain circumstances result in a decline in the reliance on the legal construct of military assistance on request as the legal basis for forcible measures in inter-state relations.

2 The Authority Entitled to Extend an Invitation for Direct Military Assistance

This chapter determines the authority that is required to extend an invitation for direct military assistance by forces of land, air, or sea. In so doing, it departs from the well-established principle in international law that the competence to request either direct military assistance or indirect military assistance rests with the de jure government. This is the authority whose representatives are accepted in international organizations, that accredits ambassadors, can legally enter into treaties, and can legally dispose of the state’s assets and natural resources. The chapter then identifies the criteria for the recognition of the de jure government. These criteria include in particular the traditional requirement of effective control as well as that of democratic legitimacy. In the post-Cold War era the latter has gained prominence in particular within the OAS and the AU. Once an authority is recognized as the de jure government, this triggers a strong presumption of continued de jure status. The fact that the de jure government would subsequently be confronted with an insurgency, and/or be embroiled in a sustained armed conflict with opposition groups, would not in and of itself lead to a loss of its de jure status. However, the question arises as to whether the presumption of continued recognition has any relevance in situations where the incumbent regime no longer is identifiable, or where it is challenged by an authority that claims to be democratically legitimated.