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This engaging and terrific session examined international law governing military intervention/use of force by consent and was ably moderated by Naz Modirzadeh, Harvard Law School Program on International Law and Armed Conflict. Panelists included Ashley Deeks, University of Virginia School of Law; Eliav Lieblich, Tel-Aviv University Faculty of Law; Jonathan Horowitz, Open Society Foundations; and Robert Taylor, Harvard Law School.
Professor Ashley Deeks widened the discussion’s aperture to include targeted killing with consent of a host nation and its effect on the international legal ecosystem; she assumed true consent by the host nation. She first highlighted positive effects of consent-based force under the UN Charter: that it can, for example, diminish the potential for armed conflict between territorial states and acting states; second, it demonstrates greater respect for the sovereign state’s sovereignty. Third, it avoids reliance on more contentious and difficult legal theories to justify action, such as a finding that the host nation is unable / unwilling. Finally, consent allows acting states to avoid the higher transactional costs incurred in seeking UNSCR approval. Professor Deeks also discussed four negative effects of consent; for example, it potentially obscures domestic law violations by the consenting state and potentially suppresses rigorous debate/inquiry into the acting state’s legal justifications. Finally, secret consent poses problems for democratic accountability, for both the consenting and the acting state.
Dr. Eliav Lieblich focused on who can consent, and what legal framework such consent authorizes the acting state to use. He outlined that in general, governments represent the body politic and hence can consent; this is often translated into equating the government with whomever exercises effective control regardless of legitimacy. This equation of power with authority can lead to absurd results and raises responsibility to protect issues: actual state practice is inconclusive. The Assad regime has failed to protect its territorial population but remains viewed as legitimate. Can the Syrian rebels request US use of force on Syrian territory, and hence provide legal consent per the UN Charter? The answer is different on legal (no) versus ethical (perhaps) grounds. Second, Professor Lieblich discussed the extent consent legally justifies military intervention, noting that consent by itself is insufficient to justify military intervention. There must be an inquiry whether the consenting state has authority to use force itself. This can be a complex issue because he believes international law is largely silent on when a government can lawfully use force within its boundaries.
Jonathan Horowitz focused on international human rights law (IHRL) and how it influences what a consenting state can consent to; specifically, consent to use lethal force as regulated by international humanitarian law (IHL). Consent unlocks Article 2(4) and creates legitimacy for one state to use deadly force on another state’s territory and one must look behind this opened door. States have IHRL obligations on their own territory and can’t facilitate or be complicit with another state in violating human rights law on the host nation’s territory. The analysis to use to determine whether consent violates the consenting state’s IHRL obligations hinges on the consenting state’s relationship with the intended targets. He applied this analysis to US drone strikes in Yemen with the consent of Yemen against targets that Yemen itself is not in an armed conflict against, concluding that Yemen’s consent did not and does not confer legal authority for the US to employ anything but force regulated by human rights law. However, Mr. Horowtiz consistently emphasized that human rights law is more flexible regarding the use of lethal force than many scholars and practitioners give it credit, and many consent-based situations represent instances in which both IHL and IHRL authorize the use of lethal force.
Mr. Robert Taylor noted that the use of force in another state’s territory implicates their sovereignty, as reflected in Article 2(4)’s prohibition against force in another state. Hence if the territorial state consents to / invites force by another state, then Art 2(4) is satisfied. He highlighted that the US has a strong preference to obtain consent when using force on the territory of another state, but typically there has also been another legal basis outside of consent that the US can rely upon: usually the inherent right of self-defense. The US seeks consent despite this legal justification out of respect for state sovereignty. Consenting states are typically states in distress, and hence coercion may be a concern, but as long as coercion doesn’t emanate from the acting state, the consent is still valid. According to Mr. Taylor, the harder question is who can provide valid consent, such as in the Yemen example, when the so-called legitimate government was outside its territory. Does the intended target matter to this question? He posited that third party involvement makes other states less exacting in their reading of international legal norms, and states can sidestep this by finding other legal bases besides consent. For example, against AQAP / ISIL states can rely on self-defense and this mitigates the insult to territorial inviolability and integrity. He accurately noted that Russian intervention in the Ukraine came at the request of the deposed president of the Ukraine and any whiff of valid consent was eliminated by Russia’s annexation of the Crimea. He contrasted this with Russian intervention in Syria based on Assad's invitation; while Russia’s intervention may raise right to self-determination concerns, it is not a breach of UN Charter Article 2(4) (though Russia’s complicity in war crimes is of course wrongful).
In response to an audience questions, Mr. Taylor noted that states have an obligation to prevent threats emanating from their territory hence can discharge that responsibility in some situations by consenting to the use of IHL-regulated force on their territory; he noted that a benefit of consent is that the host nation stays involved which may moderate the subsequent use of force; if states are purely relying on unable / unwilling to use force in the territory of another, this increases the likelihood of greater uses of force. Also in response to really comprehensive and thoughtful audience questions, the panelists theorized that perhaps a reverse duty of inquiry exists for consenting states to examine the acting state’s authority to use particular types of force in their territory.
Rachel E. VanLandingham, Lt Col, USAF (ret.), Associate Professor of Law, Southwestern Law School