In the last 15-20 years, military interventions into domestic conflicts have been named as ultima ratio to fulfil the so called Responsibility to Protect (R2P) or to execute one’s right to self-defence. In this debate we have to consider that there are UN Security Council authorized interventions, which are in compliance with international law and there are uni-or multilateral interventions, like the actual interventions of France, USA and Great Britain in Syria.
If and under which circumstances a military intervention is legal or legitimate depends on various conditions and is not always that clear. Who is intervening, why and which intentions are behind an intervention are just some of the questions which the International Institute for Peace (IIP) and the Renner Institute discussed on the 22th of February 2016 in the Diplomatic Academy in Vienna.
Following the brutal terrorist attacks in Paris on 13 November 2015 France invoked – for the first time – the Mutual Defence Clause (art 42 para 7, TEU), asking the respective member states of the European Union to support them in the fight against IS. However, there arise questions of legality and legitimacy when a military intervention into a sovereign country is planned. The UN SC Resolution 2249 from November 2015 states to fight IS with “all necessary means”, which normally includes military actions, but it also says that this has to occur “in compliance with international law” which prohibits the use of force.
Francois Hollande explicitly called the attacks an act of war which emphasizes his argumentation of self-defence. Principally there are just two exceptions of the prohibition of force, namely self-defence (Art. 51 UN Charter) and Chapter VII actions to restore international peace and security. The Security Council only can authorize Chapter VII actions, which it obviously did not in his resolution 2249.
In the case of France the Mutual Defence Clause states that if an EU country is the victim of armed aggression on its territory, the other EU countries have an obligation to aid and assist it by all the means in their power, in accordance with Article 51 of the UN Charter. In the case of the IS, which has de-facto territory, acts as a quasi-state, it also acts not only clandestine and over a long period of time, one can argue that self-defence is proper. However, the main problem is the term armed aggression. Not every terrorist attack automatically is also an armed aggression. Especially when - like it was the case in France- the perpetrators have merely been of Belgian and French nationality. It is not that simple to impute them to Syria or to the IS on Syrian territory. At least it is worth a discussion.
Many experts and observers, however, have been surprised that Holland was referring himself to the Mutual Defence Clause instead of the Solidarity Clause (Art. 222 TFEU), which would have been more suitable to the actual occurrence, because it explicitly refers to the term terrorist attacks. So why then did he choose to invoke the Mutual Defence Clause? It seems that this decision was based on interior politics and because France wanted to have the power of the ultimate decision. Contrarily to the Mutual Defence Clause, the Solidarity Clause enables the European Union and its institutions to act, whereas the Mutual Defence Clause leaves the decisions with the respective member states.
Recognising the existence of the Mutual Defence Clause one has to accept that the European Union has developed itself into a military alliance. But how is this compatible with the specific character of the security and defence policy of certain member states like e.g. the neutral Austria? The solution is the second sentence of the clause - the so called Irish Clause. It gives an opting-out option for all those states: ”This shall not prejudice the specific character of the security and defence policy of certain member states”. Interestingly, all states and not as one would assume just the neutral states, subsequently, referred to this clause, which – in the end – weakened it dramatically.
Considering the ambiguity of the air strikes from the USA, GB and France Russia is in a different position. Contrarily to USA, GB and France the Syrian regime asked Russia for its support to fight IS. Russia, therefore, is acting – at least from a legal point of view – legitimately in Syria whereas the others are not. Obviously - from a moral point of view – Russia’s actions are not that legitimate because there are various reports which state that Russia is not just fighting the IS but also moderate rebels and that the suffering of the civil population is not proportional to the actual achievements.
This leads us to the most important question about military interventions. When is a military intervention legitimate?
Many argue that there has to be a just cause, a right intention, the military intervention has to be the ultima ratio, it has to be proportional and there should be reasonable prospects of success. The main question now is: Who decides if it is a just cause?
After the genocide in Rwanda in 1994 and the genocide/mass murder in Srebrenica 1995 – as well as other crimes against humanity – the NATO alliance for the first time in 1999 was intervening militarily in a sovereign state without a mandate of the Security Council and without the notion of self-defence. This so called humanitarian intervention has and still is seen as ambiguous in many ways. From a legal point of view it is well accepted that the intervention was not justified, but from humanitarian aspects many say that it has been necessary in order to protect civilians. The problem which arose after the NATO operation is that it opened the floodgates to military interventions under the patronage of a single country or a coalition of the willing and it opens the floodgates to abuse of power. In order to prevent misuse the international community and the heads of states accepted a political document in 2005 called the Responsibility to Protect (R2P). Principally each state is responsible to protect its respective citizens. If a state is not willing or able to meet its obligation the international community has a subsidiary obligation to protect civil population from harm. R2P therefore shall not be used to force a regime change but to protect civilians. The protection of civilians lies in the centre of the concept.
The difference, however, between R2P and humanitarian intervention is that a Security Council mandate is needed – if there is a military intervention intended - and that R2P includes a responsibility to prevent, to react and to rebuild. The dimension of a military intervention in this regard has to be the ultima ratio and it has to be authorized by the Security Council. However, the R2P is not legally binding but it is a political document which outlines the political reality of international relations.
When we look at Libya, the intervention was clearly a R2P case, unfortunately one has to admit that the situation has not improved but worsened radically. Russia regularly claims that the mandate has been exceeded and that a regime change has been forced by the international community. However, one also has to admit that the situation in Libya, if there would not have been a military intervention, would have worsened radically; to what extent, nobody is able to say.
To centralize the decision making process about military interventions at the Security Council is very often criticised because it depends strongly on political conditions. However, it is the only instrument which we have and although not every intervention turned out to meet the intended goals, there still are many resolutions (Afghanistan, Mali, Democratic Republic of Congo, Central African Republic …) which work quite well.
It is important to note that military interventions should be the last resort and that there should be all possible means considered before intervening militarily into another country. It is often in the minds of people that military interventions bring fast solutions, which in reality is often an illusion.
Stephanie Fenkart