Intervention with the Consent of a Deposed (but Legitimate) Government? Playing the Sierra Leone card.

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The most dramatic moment at Monday’s Security Council meeting on Ukraine came when the Russian representative, Vitaly Churkin, produced a letter, purportedly from ousted Ukrainian President Victor Yanukovych, inviting Russian military intervention. This seemed to indicate a shift in Russia’s legal justification for its actions in Ukraine. The resolution adopted by the Russian legislature authorizing the use of force referred to the alleged threat to the personnel stationed at the existing Russian bases in Ukraine, while at the previous Security Council meeting on 1 March, Mr Churkin appealed primarily to a request from government of Crimea. It appears that Russia has now decided to rely much more heavily on Yanukovych’s consent. Not only did Mr Churkin emphasise it at the Security Council; President Putin, in his press conference on Tuesday, laid great stress on it:

“[W]e have a direct appeal from the incumbent and, as I said, legitimate President of Ukraine, Mr Yanukovych, asking us to use the Armed Forces to protect the lives, freedom and health of the citizens of Ukraine.”

This shift, which has already attracted some attention in the international law blogosphere, is an understandable move. For the reasons explained by Daniel Wisehart in his post on Tuesday, both self-defence and the invitation of the Crimean government are patently inadequate as legal justifications for Russia’s use of force. There is no evidence of an armed attack on the Russian bases in the Crimea, nor can it be seriously maintained that the consent of the government of a sub‑national unit within a State can legalise military intervention, especially when the intervention is opposed by the federal government.

In contrast, it is much easier for Russia to use Yanukovych’s consent to muddy the waters. For it has been argued, with at least some plausibility, that the international community has accepted the legality of foreign military intervention in support of a ‘legitimate’ national government, despite the fact that it has lost effective control of the state. The use of force by ECOWAS in Liberia in 1990, and in Sierra Leone in 1997, could be given as examples. In Liberia, the incumbent President, Samuel Doe, dispatched a letter to ECOWAS requesting assistance at a time when his forces controlled only a small part of the capital city, Monrovia. And in Sierra Leone, after being overthrown by a military coup, the democratically elected President Ahmad Tejan Kabbah had already fled the country (just as Yanukovych has done) before he requested ECOWAS assistance to restore him to power. Despite these facts, in both cases military action met with support rather than censure from the international community.

However, this may well be a wrong reading of these precedents. It has been contended, by authors such as Marco Gestri and Olivier Corten, that in neither case did ECOWAS in fact rely on the consent of the ineffective government. In the case of Liberia, it seems that neither ECOWAS nor the participants in the later Security Council debate referred to Doe’s invitation. In Sierra Leone, ECOMOG peacekeeping forces were already present at the time of the coup; the use of force appears to have been justified as self-defence against attacks on these troops by the pro-coup forces, not on the basis of the deposed President’s consent. So it is doubtful whether international law in fact allows the use of force at the request of a deposed government, even if it is democratically or constitutionally legitimate.

Of course, even if this is allowed in international law, it is unclear whether Yanukovych can claim the mantle of democratic or constitutional legitimacy. Although he was democratically elected President in 2010, on 22 February this year, the equally democratically elected Parliament voted to remove him, 328 votes to 0. However, the Parliament has 449 members in total, and thus this vote fell short of the three-quarters majority which is apparently required by the Ukrainian constitution. Yanukovych – and Putin – assert that this action was unconstitutional, and hence an illegal coup. I agree with Daniel that it would be undesirable for the legality of military intervention to depend on potentially obscure points of domestic constitutional law.

Another basis on which Russia might justify its continuing recognition of Yanukovych, and thus the legality of its response to his request for the use of Russian forces, is to argue that his ouster was brought about by illegal intervention in Ukraine’s internal affairs by Western powers. At the Security Council meeting on 1 March, Mr Churkin asserted that such intervention had taken place:

“Why do those street demonstrations [against Yanukovych] need to be encouraged from abroad by members of the European Union? Why did the representatives of several countries of the European Union need to appear at these meetings, which were ignited by protests against a decision taken by the Ukrainian leadership? Why did some officials need to talk about stirring up the public and opposition leaders? Why did there have to be such crude interventions in the internal affairs of a sovereign State?”

There are precedents in which governments brought to power by foreign intervention have been subject to widespread non-recognition: notably, the ‘People’s Republic of Kampuchea’ government established in Cambodia following Vietnamese intervention in 1978–79. However, that regime was brought to power by the full-scale use of force, not by the less grave forms of intervention referred to in the Russian representative’s speech. Further, it appears clear that it was domestic opposition, not EU meddling, which was responsible for Yanukovych’s downfall. So even accepting, for the sake of argument, that the EU or EU member states breached the prohibition on intervention in the internal affairs of Ukraine, this does not justify Russia’s continuing recognition of Yanukovych, and certainly does not legalize its military intervention on his request.

President Putin stated, at his press conference, that Yanukovych ‘has no political future,’ while insisting that he remains the legal and legitimate President of Ukraine. The political embarrassment of association with a failed and discredited leader was presumably what delayed Russia’s decision to rely whole-heartedly on his consent. It has now put aside these concerns in order to make use of its best legal argument – although one which still fails to convince.

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bandiri says

March 6, 2014

Crimea MPs vote to join Russia!!!!

Claudio Francavilla says

March 6, 2014

Interesting article; finding a clearcut answer from a legal point of view seems impossible, though.
How do you determine who is and who is not a democratically elected president? Is it relevant? I mean, would foreign intervention be prohibited in a non-democratic country?
Moreover, how do you define "internal affairs"? Intervening in internal affairs of other countries is prohibited, but isn't ousting Mr. Yanukovich an internal affair of Ukraine?
I'm afraid the answers to the above mentioned questions are a matter of politics, rather than law. And from those answers different legal consequences arise.

Andrew Garwood-Gowers says

March 6, 2014

There is a further issue in relation to Russia's "intervention by invitation" argument: the timing of the request for assistance.

Even if we assume that Yanukovych was able to make a valid request for Russia's help, the letter of request which Russia held up on 3 March was dated 1 March. Media reports from 28 February suggest that Russian forces (assuming they were under Russian control, and were not "local self-defence forces" as Russian claims) had already been mobilised in Crimea. Therefore, the request for help came after the intervention.

According to Philip Kunig's "Intervention, Prohibition of" in the Max Planck Ency of PIL, a request or invitation "given subsequent to the interference is not sufficient for the existence of an intervention by invitation". "This is due to the fact that it is often difficult to determine whether the necessary consent has been freely given to the intervening forces and is not rather the product of hidden influence or pressure by the intervening power".

Kevin Jon Heller says

March 7, 2014

"I agree with Daniel that it would be undesirable for the legality of military intervention to depend on potentially obscure points of domestic constitutional law."

If the United States Senate decided tomorrow to hold a trial and remove Obama from power without the House of Representative bothering to impeach him first, would you describe that as an "obscure point[] of domestic constitutional law"?

Zachary Vermeer says

March 10, 2014

Thanks to you all for your comments – and sorry it has taken me a while to reply.

Claudio, I agree that the recognition of governments can appear rather messy and ‘political’ (as can the use and abuse of the term ‘intervention’). However, I don’t think that we can abandon the attempt to identify legal rules and principles applicable to this issue. Otherwise there would be a potentially large hole in the prohibition on the use of force, one which would be solely ‘political’ and not governed by law. This would sit uncomfortably with the whole jus ad bellum project of attempting to subject the use of force to legal regulation.

Andrew, thanks very much for drawing our attention to the question of the timing of the request for assistance. I agree that it is difficult to accept the validity of consent given after the commencement of the use of force. The commentary to Article 20 of the ILC’s Draft Articles on State Responsibility could also be adduced to support this view (although let’s avoid getting into the debate about whether the legality of ‘intervention by invitation’ is a product of the secondary norms of state responsibility, or of the primary norm prohibiting the use of force itself). On the other hand, in the Armed Activities case, the ICJ seemed to accept the legal effectiveness of President Kabila’s consent (prior to its withdrawal) to the presence of Ugandan forces on DRC territory, even though the use of force by Uganda (and Rwanda) in the DRC had begun before President Kabila came to power, and in fact had been instrumental to the overthrow of the previous Mobutu regime. I suppose the answer might be that you can draw a line between the intervention in the Mobutu period and that in the Kabila period, despite the factual continuity, and that consent was simultaneous with the beginning of the latter.

Professor Heller, many thanks also for your comment. You are right to point out that not all questions of domestic constitutional law which could arise will be obscure – sometimes, as in the example you give, the constitutional situation may be easy to establish. Having looked at the issue a bit more closely, and despite the welter of claims and counter-claims, it seems relatively clear that the vote to remove President Yanukovych did not meet the existing constitutional requirement for a three-quarters majority - although I am obviously no expert on Ukrainian constitutional law, and outsiders can easily get these kinds of things wrong.

However, even accepting that the vote to remove Yanukovych was invalid, there may be other issues affecting whether his request is valid under Ukrainian law. It has been claimed in comments elsewhere on this blog that Ukrainian law requires that Parliament approve any request that foreign troops be admitted to the territory - and a quick search does seem to show that both versions of the Constitution (Article 85.24 of the 2004 version, Article 85.23 of the 2010 version) contain such a provision.

More generally, I would make two points. Firstly, although the questions of constitutional law involved in determining whether a government has been legally removed or not may in some circumstances be clear, they are sufficiently likely to be unclear to make it problematic for the legality of the use of force in international law to be dependent on them. This is particularly the case since these issues are probably more prone to occur in states with complex and unstable constitutional orders. Secondly, the proposed test for allowing deposed governments to intervene often appears to be based, not on a strict application of domestic constitutional law, but on a broader concept of 'legitimacy' –a more nebulous concept. Even if it can be determined that Yanukovych’s removal was invalid under the Constitution, there is likely to be intractable disagreement about whether he retains legitimacy, weighing his status as a democratically elected President against his rejection by a large majority of the elected legislature and the human rights violations of which he is accused.

Paul says

April 30, 2014

Who gets to decide what is an "obscure" point of domestic constitutional law?

Is the 13th Amendment to the US Constitution "obscure"?
How many can recite it off the top of their head? Shall we do away with that too?

Ridiculous. Laws are not fairy tales subject to the effectiveness (or willingness) of one's memory. They are LAW, and are written and codified for a reason.