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The Use of Consent as Circumstance Precluding Wrongfulness. Permissible Ground for Military Interventions on Other State’s Territory?
Master thesis MA Publiek Recht - Militair Recht - 10 ECTS
Wouter Zilverberg - 10264485
Under supervision of Prof. dr. T.D. Gill
24-06-2015
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Introduction
Ever since the terrorist attacks in New York and Washington DC on September 11th 2001, the
United States of America and many other States have been involved in some form of battle
against Islamic militants or the countries that harbour them. From a full-scale international
armed conflict in Afghanistan and Iraq to pin-point strikes on predetermined targets in
Pakistan and Yemen. Initially Al-Qaeda and the Taliban were the main adversaries in these
confrontations, but with the rise of ISIS, the civilized world has found itself a new enemy.
From the day the first shots were fired in Afghanistan, an intense debate has divided States
and scholars on questions of the legality of these operations. This thesis explores the
permissibility to use State consent as a legal basis for the use of force on the territory of
another State.
This thesis is divided in three chapters. In the first chapter, I will describe the background of
State consent and analyse the different elements of Article 20 of the Articles on State
Responsibility for Internationally Wrongful Acts in which consent is codified. In the second
chapter, I will perform three case studies into consent. The cases of the use of force against
Al-Qaeda, the Taliban and ISIS on the territory of Iraq, Syria and Pakistan will be analyzed.
In the third chapter, I will shortly relate the use of consent as a legal basis to the use of force
on the territory of another State to two other justifications: a UN Security Council mandate
and self-defense; also in the third chapter, I will answer to the main question of this thesis and
formulate some recommendations.
To prevent confusion, some explanation on terminology is in order. In this thesis, reference is
made to the Articles on State Responsibility for Internationally Wrongful Acts as adopted on
second reading by the United Nations in 2001. This document will be referred to as “the
Articles” or ASRIWA. An earlier version of the article on consent was already adopted in
1979 in the Draft Articles on State Responsibility. This document will be referred to as “the
Draft Articles”. Furthermore, frequent reference is made to the Islamic terror organization
ISIS.1 On 29 June 2014, ISIS proclaimed a caliphate and changed its name to IS for “Islamic
State”. IS or the caliphate does not qualify to be a State since it does not meet all the criteria
in the Montevideo Convention on the Rights and Duties of States. Since this thesis deals with
1 “Islamic State of Iraq and ash-Sham” or “Islamic State of Iraq and Syria”. Sometimes referred to as “Islamic State of Iraq and the Levant” (ISIL).
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State Responsibility, it is important to distinct between the caliphate and States that do meet
the criteria in the Montevideo Convention. Where ever the word State is used in this thesis it
always refer to a State that is recognized by the international community as one that meets the
criteria to be legally called a State. To prevent any confusion, the Islamic terrorist group that
proclaimed the caliphate will be consequently referred to under its former name: ISIS.
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1. Article 20 of the Articles on State Responsibility
Article 20 of the ILC Articles on State Responsibility can be seen as a codification of a
customary rule that no harm can follow to someone who agreed to the act that harmed him:
volenti non fit injuria.
In this first chapter, the theoretical background of Article 20 of the Articles on State
Responsibility for Internationally Wrongful Acts (ASRIWA) [hereinafter: the Articles] will
be explored and the different elements will be discussed. The theoretical background of
consent will be put in relation to the notion of State sovereignty. Then the International Law
Commission’s system of primary and secondary rules will be discussed. Also, the history of
the wording and placement will be shortly touched upon. The text of Article 20 will then be
broken down into five elements, which will be dealt with separately.
1.1 State sovereignty
Before anything meaningful can be said about the notion of consent, it must be discussed why
consent is sometimes needed. Consent for an otherwise wrongful act is derived from the
historical idea that States are the highest authorities in the international community.2 The
equality of those States is one of the cornerstones in international law.3 It is laid down in the
Charter of the United Nations4 and is also recognized by the Montevideo Convention on the
Rights and Duties of States.5 As a consequence, States are forbidden to intervene in the
internal affairs of other States,6 and the sovereignty of States also means that States have
exclusive jurisdiction over their own territory. Other States cannot impose their jurisdiction on
other States. The Latin maxim coined for this principle was derived from a decree by Pope
Innocent III: Par in Parem Non Habet Imperium.7,8
2 R. Portmann, “Legal Personality in International Law”, Cambridge University Press, Cambridge 2010, p. 84. 3 “The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty”, The International Development Research Centre, Ottawa 2001, p. 8. 4 Article 2(1): The Organization is based on the principle of the sovereign equality of all its Members. 5 Article 4: States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. (…). 6 M. Kinacioğlu, “The Principle of Non-Intervention at the United Nations: The Charter Framework and the Legal Debate”, Perceptions Journal of International Affairs, Summer 2005, p. 16. 7 Equals do not have authority over one another. 8 Y. Dinstein, “Par in Parem Non Habet Imperium“, Israël Law Review, Volume I, no. 3, 1966, p. 407; X. Yang, “State Immunity in International Law”, Cambridge University Press, Cambridge 2012, p. 51; ECHR Fogerty v. United Kingdom, (App. No. 37112/97) Judgement 21 November 2001, para. 34.
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The sovereignty and equality of States was restated more recently in the Declaration on
Principles of International Law concerning Friendly Relations and Co-operation among States
in accordance with the Charter of the United Nations:9
“All States enjoy sovereign equality. They have equal rights and duties and are equal
members of the international community, notwithstanding differences of an economic, social,
political or other nature.
In particular, sovereign equality includes the following elements:
a. States are judicially equal;
b. Each State enjoys the rights inherent in full sovereignty;
c. Each State has the duty to respect the personality of other States;
d. The territorial integrity and political independence of the State are inviolable;
e. Each State has the right freely to choose and develop its political, social, economic and
cultural systems;
f. Each State has the duty to comply fully and in good faith with its international
obligations and to live in peace with other States.”
From the equality of States among each other in the international community follows that that
a State can be held responsible for a breach of international law vis-à-vis another State.10 An
internationally wrongful act of a State may consist in one or more actions or omissions or a
combination of both.11
1.2 Primary and secondary rules
The ILC makes a clear distinction between two forms of rules of international law: primary
rules and secondary rules.12 The primary rules impose obligations on States and other
international entities to either do something or to refrain from doing something. A clear
example of a primary rule is the prohibition of the use of force:
9 General Assembly Resolution 2625 (1970), A/Res/25/2625. 10 Article 1 of the Articles reads: “Every internationally wrongful act of a State entails the international responsibility of that State.” 11 ILC Yearbook 2001, Vol II, part 2, p. 32, para 1. 12 ILC Yearbook 1970, Vol. II, p.306, para 66 c.
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“All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.”13
Secondary rules govern the consequences of not abiding to a primary rule. Breaching a
primary rule of international law is usually regarded as an internationally wrongful act. The
ILC observes that breaching a primary rule of international law however is not necessarily the
same as being internationally responsible. In the course of drafting the Articles, the ILC
established its view that “it would be incorrect to regard the expressions “circumstances
precluding responsibility” and “circumstances precluding wrongfulness” as mere synonyms.
Such an idea would be considered valid only by those who define a wrongful act in terms of
the responsibility resulting from that act or (…) who characterize an act as wrongful only
because the law attaches responsibility to the act in question.”14
The ILC then realized that defenses against a claim of responsibility for breaching a primary
rule of international law could be defenses against the actual wrongfulness of that particular
act instead of defenses against the primary rule of international law itself.15 This view was
also adopted by the International Court of Justice in the Gabčíkovo-Nagymaros Project
case.16
For this reason the ILC drafted chapter V of the Articles to contain articles precluding
wrongfulness of an act that otherwise would result in international responsibility. Chapter V
lists six circumstances that could preclude wrongfulness: consent, self-defense,
countermeasures, force majeure, distress and necessity. They are listed in Articles 20 - 25
ASRIWA. For the purpose of this paragraph, only Article 20 will be discussed further.
1.3 From Draft Article 29 to Article 20.
Article 20 of the current Articles started as Article 29 of the Draft Articles on State
Responsibility, it was adopted by the ILC in 1979.17 The original text was:
13 Charter of the United Nations, Article 2(4). 14 ILC Yearbook 1979, Vol. II, part 1, p. 27, para 50. 15 ILC Yearbook 1973, Vol. II, p. 176, para 12. 16 Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997, p. 7, para 48. 17 ILC Yearbook 1979 Vol. II, part 2, pp. 91-133.
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1. The consent validly given by a State to the commission by another State of a specified act
not in conformity with an obligation of the latter State towards the former State precludes the
wrongfulness of the act in relation to that State to the extent that the act remains within the
limits of that consent.
2. Paragraph 1 does not apply if the obligation arises out of a peremptory norm of general
international law. For the purposes of the present articles, a peremptory norm of general
international law is a norm accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and which can be modified only
by a subsequent norm of general international law having the same character.
This provision can be seen as a codification of a customary rule that someone who agreed to a
certain course of action cannot claim damages afterwards. It is parallel to an old defense from
Roman law: volenti non fit injuria.18
The principle that no one can claim damages for actions that he agreed to is uncontested and
has been confirmed by the ICJ.19 While discussing this article, the ILC noted that “the consent
of the injured State to an act directed against it, which would otherwise be an internationally
wrongful act, thus precluded the wrongfulness of that act. That fundamental principle had
never been placed in doubt in international jurisprudence or in State practice.”20 Not
surprisingly, consent as a circumstance precluding wrongfulness has been involved in several
cases before the International Court of Justice, but the ICJ never mentioned Article 20
explicitly. One of the most notable cases in which the Court did touch upon the notion of
consent is the Armed Activities case.21 The Court discussed the circumstances in a highly
factual manner and came to the following conclusion:
“It seems certain that from mid-1997 and during the first part of 1998 Uganda was being
allowed to engage in military action against anti-Ugandan rebels in the eastern Congo by
President Kabila when he came to power in May 1997. The DRC has acknowledged that
‘Ugandan troops were present on the territory of the Democratic Republic of the Congo with
the consent of the country’s lawful government’. It is clear from the materials put before the 18 “To the consenting, no injury is done”. 19 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). I.C.J. Reports 1986, p. 14, para 246. 20 ILC Yearbook 1979, Vol. I, p. 32, para 29. 21 Armed Activities on the Territory of the Congo, (Democratic Republic of the Congo v. Uganda), ICJ Reports 2005, p. 168.
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Court that in the period preceding August 1998 the DRC did not object to Uganda’s military
presence and activities in its eastern border area.”22
Although the principle is uncontested, the inclusion of this provision in the Articles was not.
During the second reading in the ILC, some of the countries’ commentaries to then Article 29
were discussed. The main objections that were raised were the ambiguity of the notion that
consent had to be validly given and the practicality of including a reference to peremptory
norms in the second paragraph. The Articles on other circumstances precluding responsibility
had similar paragraphs on peremptory norms. The ILC chose to remove those paragraphs
from the separate Articles and included a general referral to peremptory norms in Article 26.
Article 26 excludes the application of any of the other Articles in Chapter V to an act of a
State that is not in conformity with an obligation arising under a peremptory norm of general
international law. The questions regarding the validity of consent would be dealt with in the
commentaries.
Also a discussion arose whether it was even necessary to include consent as a separate
provision in the Articles. The fundamental question in this discussion was whether the lack of
consent would be part of the primary rule that a State had breached. If a State breaches a rule
in which a lack of consent is an element, there is no need for a secondary rule dealing with
consent, because the lack of consent has already been established. The Special Rapporteur,
James Crawford, was of the opinion that consent should be part of the primary rule and he
therefore proposed to delete then Article 29.23 He wrote:
“Article 29 dealt with consent validly given as a circumstance precluding wrongfulness. In
many cases, consent of a state, given in advance of an act, is sufficient to legalize the act in
international law, for example, consent to overflight over territory, etc. In other cases consent
given after the event may amount to a waiver of responsibility, but will not prevent
responsibility from arising at the time of the act. Thus, either consent is part of the defining
elements of the wrongful act, or it is relevant in terms of the loss of the right to invoke
responsibility. In neither case it is a circumstance precluding wrongfulness, and accordingly
Article 29 has been deleted.”24
22 Ibid., para 45. 23 ILC Yearbook 1999 Vol. II, part. 1, p. 63, para 243. 24 Crawford, 2nd Report A/CN.4/498 and Add.1–4, p. 87, para 358.
9
Crawford argued that the exception of responsibility in case of valid consent can be implicitly
read into a primary norm.25 The ILC, however, chose to deal with all six circumstances
precluding wrongfulness in a consistent manner.26 Thus, a separate article on consent was to
be included.27 In the text that was adopted in 2001, Article 29 reappeared as Article 20 in its
final form.
1.4 Five elements
“Valid consent by a State to the commission of a given act by another State precludes the
wrongfulness of that act in relation to the former State to the extent that the act remains within
the limits of that consent.”28
Above, the main elements of Article 20 are emphasized; below I will discuss those elements.
In the commentaries to draft Article 29, Roberto Ago wrote that “consent of the State must be
valid in international law, clearly established, really expressed (which precludes merely
presumed consent), internationally attributable to the State and anterior to the commission of
the act to which it refers.”29 Crawford specified this comment further in the commentaries to
Article 20:
“Consent must be freely given and clearly established. It must be actually expressed by the
State rather than merely presumed on the basis that the State would have consented if it had
been asked. Consent may be vitiated by error, fraud, corruption or coercion.”30
From these descriptions, certain different elements can be derived. Firstly, consent must be
valid under international law, secondly it must be given by a state, thirdly it must be given in
relation to a specific act and the act that follows must stay within the given limits, fourthly
consent cannot be presumed, it must be actually expressed and lastly the act that consent is
given to must not be completed yet. In the next paragraphs, each of those elements will be
discussed.
25 Similarly: D. Wippman, “Military Intervention, Regional Organizations, and Host-State Consent”, Duke Journal of Comparative and International Law, Vol. 7, 1996, p. 210. 26 R. Rosenstock, “The ILC and State Responsibility”, The American Journal of International Law, Vol. 96, 2002, p. 792; See for a critical note on that choice: V. Lowe, “Precluding Wrongfulness or Responsibilty: A Plea for Excuses”, European Journal of International Law, Vol. 10, no. 2, 1999, p. 405 - 411. 27 Yearbook 1999, Vol. I, p. 280, para 39. 28 Article 20 ASRIWA, emphasis added. 29 ILC Yearbook 1979, Vol. II, part 2, p. 112, para 11. 30 ILC Yearbook 2001, Vol II, part 2, p. 73, para 6.
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1.4.1 Valid in international law
Firstly, consent has to be valid. The ARSIWA however does not go into great detail as to
describe what rules apply to the validity of consent. The commentaries state that “whether
consent has been validly given is a matter addressed by international law rules outside the
framework of State responsibility.”31 Although the ASRIWA are silent on what exact rules
should be applied in order to assess the validity of a given consent, the commentaries provide
a range of indicators32 that can be identified as circumstances that will render consent invalid.
Since Article 20 explicitly states that the given consent must be valid, a fault among the lines
of any of these indicators will make the consent invalid. In every case, the circumstances will
have to be assessed on a factual basis to establish whether the consent is invalid.
1.4.1.1 Jus cogens and IHL
Before the validity of a given consent comes into question, it must first be assessed whether
the State could even validly consent to the relevant acts. Although States are the highest
entities in the international arena and they are free to choose to be bound to Treaties, general
logic dictates that some rules are by their nature applicable to all. Such peremptory norms are
defined as norms of general international law that are accepted and recognized by the
international community of States as a whole as a norm from which no derogation is
permitted.33 Together they are the rules of jus cogens.34,35
Jus cogens therefore prevents States from consenting to otherwise wrongful acts when the
consenting States itself would not be allowed to carry out the act. States can simply not confer
the authority to carry out certain acts to another State when they had no authority to carry out
the act themselves. This is a principle in international law that has been in force since Roman
law and there are two Roman maxims that relate to it: nemo dat quod non habet36 and nemo
plus iuris transferre potest quam ipse habet.37,38
31 Idem, para 4. 32 Idem. 33 This is the most accepted definition for jus cogens. It is introduced in Article 53of the Vienna Convention. 34 Affef Ben Mansour, “Circumstances Precluding Wrongfulness in the ILC Articles On State Responsibility: Consent”, in: J. Crawford, A. Pellet, S. Olleson, K. Parlett (Ass.) (eds), “The Law of International Responsibility”, Oxford University Press, Oxford 2010. 35 See however U. Linderfalk, “The Effect of Jus Cogens Norms: Whoever Opened Pandora’s Box, Did You Ever Think About the Consequences?”, The European Journal of International Law, Vol. 18, no.5, p. 853 for a plea that there is no correct definition for jus cogens. 36 No one can give what he does not have. Also called the nemo dat-rule. 37 Nobody can transfer more rights than he has himself. Also called the nemo plus iure rule. 38 B.A. Boczek, “International Law: A Dictionary”, Scarecrow Press, Lanham 2005, p. 210; O. Elias and C. Lim, “‘General principles of law’, ‘soft’ law and the identification of international law”, Netherlands Yearbook of International Law, Vol. 28, December 1997, p 31.
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Since a State does not possess the right to act against the rules of jus cogens, the nemo dat-
rule and the nemo plus iure-rule make it impossible for State to consent to another State to
commit an otherwise wrongful act that would constitute a breach of jus cogens. Any consent
of that nature is therefore invalid.
In the Draft Articles, this mechanism was laid down in a second paragraph to Draft Article 29.
Similar paragraphs were added to other provisions that would preclude the wrongfulness of a
State’s act. For economic reasons, the ILC opted for a general clause in Article 26 of the
Articles.39 This provision is applicable to the entire chapter of provisions precluding
wrongfulness and that made the second paragraph of Draft Article 29 superfluous.
Although this limitation of States’ capability to consent to otherwise wrongful acts is logical,
the applicability is sometimes uncertain. This is the result of a lack of clarity regarding what
rules constitute jus cogens. At this point only a couple of rules are definitely accepted as being
jus cogens, those include the prohibition of torture, slavery and genocide.40 Any consent by a
State to another State to commit those acts will therefore be invalid.
In any conflict, parties have to adhere to rules of International Humanitarian Law (IHL). A
State can therefore not validly consent to acts by another State that violate IHL rules. The
most important rules of IHL are the principles of distinction, proportionality, humane
treatment and protection.41
1.4.1.2 Other factors
When the rules of jus cogens do not prevent a State from validly consenting to acts by another
State, some other factors might invalidate the given consent.
The agent or person who gave the consent was authorized to do so on behalf of the State.
The question that needs to be answered here is whether the official who gave consent was
actually authorized to give this consent. In some cases, this assessment is more difficult than
in others. Certain officials are by virtue of their function authorized to give consent. The 1969
Vienna Convention on the Law of Treaties [hereinafter: the Vienna Convention] names the
Head of State, the Head of Government and the Minister of Foreign Affairs as officials that
39 “Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.” 40 A. Abass, “Consent Precluding State Responsibility: A Critical Analysis”, International and Comparative Law Quarterly, Vol. 53, no. 01, 2004, p. 211. 41 T.D. Gill and D. Fleck (eds), “The Handbook of the International Law of Military Operations”, Oxford University Press, Oxford 2010, p.52.
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represent their State.42 Consequently those officials do not have to produce full powers to be
able to give consent.43 However logical this might seem, it can provide undesired outcomes in
certain cases. In some States, the President functions both as Head of Government and as
Head of State. In those cases consent can be given by either the President or the Minister of
Foreign Affairs.44 In some States a Monarch is the official Head of State, but powers that are
actually invested in the Monarch can be limited by the Constitution.45 In those cases, consent
by the Monarch outside his competences may be invalid. In practice only the Head of
Government and the Minister of Foreign Affairs can diplomatically represent the State.
There also is a more subjective part: in case the official who gave consent was not authorized,
did the acting State know or should it have known about this lack of authority?
In summer 2014 a high-ranking Iraqi regional official claimed to have made a deal with US
officials about military support against ISIS insurgents. He said that upon his request the US
had promised to help.46 Was this official in his capacity as Governor of a province authorized
to make such a deal with the United States?
A similar case arose in 1960 when Belgian troops conducted operations in the Republic of
Congo. Belgian troops had entered a province of Congo at the request of the provincial
authorities who were in a conflict with the central government. The issue was discussed in the
Security Council where the Belgian representative argued: “We shall be told that
authorization should have been given by the Central Government, not by the provincial
government. But in the state of anarchy at present existing in the Congo, is it possible to
refuse assistance to the lawful, constitutional head of a provincial government constituted in
accordance with the fundamental law of the Congolese State?”47
To establish who has the authority to give consent to a breach of a certain rule will depend on
the nature of that rule and to what extend the breach is intrusive to a State’s sovereignty.
Every instance has to be assessed on the basis of the specific facts of the case. In both
instances mentioned above, it can be said that consent was given by the wrong authority.
42 Article 7(2)(a) Vienna Convention. 43 Article 2(1)(c) states that “full powers” means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty. 44 Article 226 of the Constitution of Venezuela reads: The President of the Republic is the Head of State and of the National Executive, in which latter capacity he directs the action of the government. 45 See Article 42(2) of the Dutch Constitution and Section 13 of the Danish Constitution. 46 Al Arabiya News, “Governor of Iraq’s Anbar province calls on U.S. to help against ISIS”, 14 August 2014. 47 Official Records of the Security Council, Fifteenth Year, 873rd meeting, 13–14 July 1960, para 187.
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This indicator is closely linked to the element ‘by a State’. See paragraph 1.4.2 for a
discussion of the problems that could arise in that respect.
The consent was not vitiated by coercion or some other factor.
The validity of consent can be disputed if the State that gave its consent was influenced by
one or more of four factors: error, fraud, corruption or coercion. Again, the ASRIWA do not
go into detail on the meaning of those four factors, other than that the commentaries mention
the principles concerning the validity of treaties as relevant guidance. These principles are
laid down in the Vienna Convention. The four factors that can vitiate the consent by a State
are dealt with in Articles 48 - 52 of the Vienna Convention. The four factors will be discussed
briefly.48
It is, however, important to note a major difference between the application of these rules in
respect of the conclusion of Treaties and to their applicability towards consent for otherwise
wrongful acts. When States enter into a Treaty with another State, mutual rights and
obligations can be conferred. For a State to leave a Treaty, it needs to follow the agreed
procedure, usually the same way as the Treaty was entered into. Where it comes to consent,
the transfer of rights is one way only. Before a State gives consent to another State to carry
out certain acts, the latter has no right to carry out the act, unless other circumstances
precluding responsibility apply. Consequently, the State giving consent, can revoke its
consent at any time and can do so in any way it sees fit. So where there is a formal necessity
to introduce these factors in the field of Treaty-making, this necessity in the field of consent
for otherwise wrongful acts is for diplomatic reasons at best.
Article 48: Error
Error relates to a mistake regarding the factual situation that was an essential basis for giving
consent. A State can consent to an otherwise wrongful act by another State on the
presumption that that act is critical for the survival of a part of its population. When it turns
out that the population was not in danger, the State can invoke the error as a factor that
invalidates the consent. Another example can be construed along the lines of the Savarkar
case.49,50 France had -although implicitly- consented to the arrest of Savarkar by British
personnel on French territory. This consent would have been erroneous if Savarkar had fled to 48 For a more complete discussion, see: M.E. Villiger, ‘Commentary on the 1969 Vienna Convention on the Law of Treaties’, Nijhoff Publishers, Leiden 2009. 49 UNRIAA, vol. XI (Sales No. 61.V.4), p. 243, at pp. 252–255 (1911). 50 For a more elaborate discussion of this case see para 1.4.3
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Switzerland or died before France gave its consent because that would have constituted a
clear mistake regarding the factual situation of the whereabouts of Savarkar. In these
examples, the factual mistake was critical to making the decision to give consent. Should
there be a mistake about circumstances that are less essential to the case, then that error
cannot be grounds for invoking the invalidity of the consent.
If a State was under the influence of an error, the given consent is voidable. The State has to
actively seek invocation of the error. A successful invocation of an error renders the given
consent invalid. The situation has to be repaired into the state before the otherwise wrongful
act.
Article 49: Fraud
Like an error, fraud leads to a mistaken impression of the facts, but unlike in case of an error
it is the consequence of a willful deception by another party or parties.51
The Vienna Convention is intentionally vague regarding the exact meaning of fraud. The ILC
concluded that it would suffice to formulate the general concept of fraud applicable in the law
of treaties and to leave its precise scope to be worked out in practice and in the decisions of
international tribunals.52
Fraud can be invoked as a ground for invalidating a State’s consent. The fraud has to be
proved by the State invoking it and it must be invoked before the State acknowledges its
intention to be bound. In relation to a treaty this acknowledgment can have the form of a
ratification. When dealing with consent to an otherwise wrongful act, the acknowledgment
can consist of actual cooperation with the State carrying out that act.
A fraud renders the consent voidable, the victim State has to invoke the fraud as grounds for
invalidation. The result of a successful invocation of fraud in relation to consent to an
otherwise wrongful act is that the act was never consented to and was wrongful from the
beginning.
Article 50: Corruption
Again, the Vienna Convention does not specify the meaning of corruption. It is safe to say
that for example bribery qualifies as corruption. When a negotiating official of a State is
corrupted into giving consent, the State may invoke this corruption afterwards as a ground for 51 W. Gehr, “Application of the Principles of Free Consent and Good Faith with Regard to the Termination of Treaties”, http://www.walter.gehr.net/defects.html, [visited 01-05-2015 via: http://web.archive.org/web/20081201081651/http://www.walter.gehr.net/defects.html]. 52 ILC Yearbook 1966, Vol. II, p. 244.
15
invalidation of its consent. The State has to invoke the corruption before it is acting according
to the given consent, otherwise the other Party or Parties can presume the State intends to
consent after all.
Corruption does not render the consent void. As with fraud, the victim State may invoke the
corruption of its agent as grounds for invalidating the consent. A successful invocation of
corruption in relation to consent to an otherwise wrongful act means that the consent must be
regarded as if it was never given.
Article 51 and 52: Coercion
Coercion can have two forms. A State’s representative or the State itself can be coerced into
giving consent to an otherwise wrongful act, they can occur separately or in conjunction with
one another. In the former, a State’s representative can be coerced in many different ways,
none of which need to be described in detail. The victim State can invoke the coercion and the
results will be along the line of those of corruption. The only major difference is that in this
case the consent is null and void. This means that even subsequent ratification does not repair
the situation.
In the latter, a State is coerced if it has consented to an otherwise wrongful act under threat or
because of the use of force in violation with the principles laid down in the UN Charter.53
This is a reference to Article 2(4) of the UN Charter. Apart from this explicit reference to the
prohibition of the use of force, no coercion practices are mentioned. An a contrario reasoning
could lead to the conclusion that other ways of coercion are not prohibited. This is somewhat
remarkable since there are obviously many more ways to coerce a State into giving consent
for otherwise wrongful acts. The drafters of the Vienna Convention noted this and drew up a
declaration condemning the threat or use of pressure in any form, whether military, political,
or economic, by any State in order to coerce another State to perform any act relating to the
conclusion of a treaty in violation of the principles of the sovereign equality of States and
freedom of consent.54 This declaration is broadly formulated; under certain circumstances,
regular diplomatic pressure can be regarded as economic or political pressure to act in
violation of a State’s sovereignty or free consent.55 The declaration therefore has to be seen in
53 Article 52 Vienna Convention. 54 Declaration on the Prohibition of Military, Political or Economic Coercion in the Conclusion of Treaties, annexed to the Final Act of the United Nations Conference on the Law of Treaties (UN Doc. A/CONF.39/26). 55 See for example the diplomatic pressure on Greece to perform structural economic reforms, under the threat of certain bankruptcy when it does not meet the demands. “Greece bailout: Europe turns up pressure as cash runs out”, 22-04-2015, http://www.independent.co.uk/news/business/news/greece-bailout-europe-turns-up-pressure-as-cash-runs-out-10193996.html [11-06-2015].
16
light of the era in which it was drawn up. At the time, the process of decolonization was at its
height with main portions of Africa gaining independence. The new States were worried that
the former colonizing powers would use their economic and political power to coerce them
into consenting to disadvantageous Treaties.56
Coercion was clearly established in the case of the Austrian Anschluss to 1938. The
Nuremberg Tribunal first established that the consent that Nazi-Germany relied upon to
justify the occupation of Austria had actually not been given because the relevant telegram
had not been sent. And even if the telegram had been sent, then the consent would have been
coerced and therefore not valid. The Tribunal concluded that in the end the German threat of
an armed occupation in case of any resistance was the ultimate factor behind the Anschluss.57
Similar tactics were used in the case of the seizure of Czechoslovakia. Nazi-Germany
threatened to completely destroy Prague if President Hacha would not sign a document
consenting to the incorporation of Czechoslovakia into the Third Reich.58
Coercion renders the consent void. The result of an invocation of coercion of a State is the
nullity of the consent. This coercion can be invoked by any of the Parties that are involved,
but since consent for an otherwise wrongful act is always directed at one other State, the State
invoking the coercion will always be the victim State.
1.4.2 By a State
Consent has to be given by a State. This means that a State must use some form of official or
way of communication that makes it clear that the State itself gave its consent. The starting
point of determining whether this is the case can be found in Article 4 of the Articles:
1. The conduct of any State organ shall be considered an act of that State under international
law, whether the organ exercises legislative, executive, judicial or any other functions,
whatever position it holds in the organization of the State, and whatever its character as an
organ of the central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal
law of the State.
56 See also General Assembly Resolution 2131 (1965), A/Res/20/2131. 57 Trial of the Major War Criminals Before the International Military Tribunal, Judgment of 1 October 1946, p. 192 - 194. 58 Idem. p. 197
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Based on this article, it would seem possible that any act of any Government official can be
attributed to a State including giving consent to an otherwise unlawful act. However, the
commentary to Draft Article 29 already specified that consent must be internationally
attributable to the State. The consent must emanate from an organ whose will is deemed, at
the international level, to be the will of the State, and the organ in question must also be
competent to express that will in the specific case.59
Furthermore, the commentaries to Article 20 explicitly exclude a simple attribution of conduct
of State officials or organs to the central Government on the basis of Article 4.60 This is in
line with the opinions to the Draft Articles given by several Governments, most notably that
of the United Kingdom:
“The United Kingdom, however, considers that there is no necessary identity between the
category of persons whose acts are attributable to the State and the category of persons
competent to bind the State. Minor officials, for example, belong to the first but not the
second category.”61
As discussed above, the authority of a regional Governmental body to consent to the
stationing of troops on the territory of a State can be questioned. In order to establish whether
the consent was actually given by the State, the circumstances of the case have to be assessed.
1.4.3 Actually expressed
Consent can be given explicitly or implicitly. Explicit consent can come in the form of written
consent or an invitation. In the fall of 2014, the Iraqi Government explicitly requested the
United States for assistance in their struggle against ISIL insurgents.62
In some cases consent has been given for ongoing or frequent acts by way of a treaty. The
Convention on International Civil Aviation63 is an example of such ongoing consent. It
regulates civil aviation and inter alia provides for free passing of a State’s airspace for civil
aircrafts without prior permission.64
59 ILC Yearbook 1979, Vol II, part 2 p. 113, para 15. 60 J. Crawford, ‘The International Law Commission’s Articles on State Responsibility, Introduction, Text and Commentaries’, Cambridge University Press, Cambridge, 2002, p. 163. 61 Document A/CN.4/488 and Add. 1–3, p. 131. 62 Excerpt from the annex to the letter dated 20 September 2014 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council (S/2014/691): “It is for these reasons that we, in accordance with international law and the relevant bilateral and multilateral agreements, and with due regard for complete national sovereignty and the Constitution, have requested the United States of America to lead international efforts to strike ISIL sites and military strongholds, with our express consent.” 63 Signed in Chicago on December 7th 1944. 64 Article 5 Chicago Convention on Civil Aviation.
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Implicit consent can exist when the consent was not given in writing or in any other explicit
form. The Savarkar65 case shows how a State can give implicit consent to an otherwise
wrongful act. Savarkar (an Indian national) had fled British captivity on board a ship on route
to India while docked in Marseille. He was arrested by a French police officer and returned to
the ship with the help of some British officers who had come ashore. After the British left for
India, the French Government stated that the British authorities had committed a wrongful act
by apprehending a fugitive on French territory without its consent. The case was presented for
an Arbitral Tribunal in The Hague that concluded that “[under] the circumstances (…) the
British Police might naturally have believed that the [French] brigadier had acted in
accordance with his instructions, or that his conduct had been approved.”66
The circumstances made the British officers genuinely believe that the French policeman was
acting with the approval of his authorities. The French Government had therefore implicitly
consented to their actions on French territory.
There is a fine line between implicit consent and merely presumed consent. The
commentaries refer to a presumed consent on the basis that a State would have consented if it
had been asked. The test for establishing a presumed consent seems to be that the
circumstances do not justify genuine believe that consent has been given (Savarkar) and the
acting State nonetheless has not asked for consent. Implicit consent will then be very difficult
to obtain.
1.4.4 Given act and within the given limits
When a State has consented to certain acts by another State, the latter has to stay within the
given limits of the consent to preclude the wrongfulness of its actions. As discussed before,
the Chicago Convention precludes the wrongfulness of overflight by civil aircrafts, but it does
not preclude wrongfulness of overflight by military aircrafts. For military aircrafts, special
consent has to be obtained because it falls beyond the given limits of the consent obtained via
the Chicago Convention.
These limitations are indicated by the words “given act” as well as by the phrase “within the
limits of that consent”.67
In its letter to the President of the Security Council noted above, the Iraqi Government
expressed that they had “requested the United States of America to lead international efforts
65 UNRIAA, vol. XI (Sales No. 61.V.4), p. 243, (1911). 66 Idem, p. 254. 67 ILC Yearbook 2001, Vol II, part 2, p. 73, para 9.
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to strike ISIL sites and military strongholds, with our express consent.”68 This means that any
other actions by the United States falls outside the limits of this consent and is not precluded
from wrongfulness on this basis.
The words “given act” also indicate that consent can only be given to otherwise wrongful acts
that are concretely indicated. Consent cannot have the open ended character that is regularly
used in Resolutions of the UN Security Council. The “all necessary actions” formula would
be too little concrete to be used in relation to consent.
It is important to note that a consenting State can impose conditions on giving consent to an
otherwise wrongful act. Non-compliance with these conditions, will not automatically render
the acts wrongful. An example could be that the Iraqi Government will require the United
States to pay rent for the use of airbases that they need to carry out strikes against ISIS. If the
United States stop to pay this rent, the non-compliance is a wrongful act in itself but it does
not affect the initial consent to carry out the strikes.
1.4.5 Timing
The commentaries to Article 20 are very clear in the topic of timing. Consent can be given
before the otherwise wrongful act is carried out. It could also be given during the act, but it
cannot be given afterwards.69
While consent beforehand is the most desirable option, consent during the act might in some
cases be unavoidable due to an emergency situation. Especially in case of humanitarian aid, a
State might not want to wait until the official consent has been given before it starts rescuing
victims of a natural disaster. It is however possible that a State misuses this possibility. For
example, if a State starts military operations against a terrorist group on the territory of
another State and then obtains consent for the operation on the basis that they are already
there anyway, it can be construed that this consent was not entirely freely given. The
consenting State might feel itself being coerced (see para 1.4.1.2) into giving consent.
Consent afterwards has the character of a waiver or acquiescence. This is dealt with in Article
45. A waiver is an expressly stated wish of an injured State that it will not seek to hold the
acting State responsible or that it waives the wrongfulness of the act entirely.70 For a waiver
to be effective, it has to be validly given. The same rules on validity apply as on giving
consent. 68 Annex to the letter dated 20 September 2014 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council (S/2014/691). 69 ILC Yearbook 2001, Vol II, part 2, p. 73, para 3. 70 ILC Yearbook 2001, Vol II, part 2, p. 122, para 2.
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21
2. A case study of Article 20 of the ILC Articles in Iraq, Syria and Pakistan.
In this chapter, I will apply the rules regulating consent on the military actions against ISIS in
Syria and Iraq and on the drone strikes that are carried out in Pakistan. A short introduction
into the background of those conflicts will put both military campaigns in perspective.
2.1 Are the actions on another State’s territory wrongful under international law?
As we have seen in the previous chapter, States can consent to acts by another State that
would otherwise be wrongful. Therefore the wrongfulness of those acts needs to be
established before consent is needed, in this case the wrongfulness of the air strikes on the
territory of Iraq, Syria and Pakistan. The Articles provide that there is an internationally
wrongful act of a State when conduct consisting of an action or omission is attributable to the
State under international law and constitutes a breach of an international obligation of the
State.71 The Articles define a breach of an international obligation as an act of a State that is
not in conformity with what is required of it by that obligation.72 As discussed in the previous
chapter (para 1.1) State sovereignty and the principle of non-intervention require States to
refrain from any actions on the territory of another State. An airstrike on the territory of
another State constitutes breach of that obligation.
The rules of attribution in The Articles are set out in Article 4.73 Any actions by a State organ
to that State, whatever the character of the organ and whatever its position. This view was
also adopted by the ICJ in the Difference Relating to Immunity from Legal Process of a
Special Rapporteur of the Commission on Human Rights case. The Court noted that
“[a]ccording to a well-established rule of international law, the conduct of any organ of a state
must be regarded as an act of that state.”74
The military organization might well be one of the most classic of State organs. The actions of
military personnel are attributed to States on the basis of long standing customary rules of
71 Article 2 ASRIWA. 72 Article 12 ASRIWA. 73 See para 1.4.2 74 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999, p. 62, para. 62.
22
international law.75,76 The air strikes conducted by the several air forces participating in the
coalition against ISIS can be legally attributed to their respective States. 77
2.2 Did Syria and Iraq validly consent to the wrongful acts that are carried out by Western and
Middle-Eastern powers against ISIS?
Since the focus of this case study is on the military campaigns against ISIS, the civil war in
Iraq that has been going on in Iraq from 2004 onwards is not part of this discussion.78
Following the Arab spring that unfolded in North-Africa and parts of the Middle-East in 2011,
similar protest movements started to appear in Syria. The earliest reports of protests were
made in January 2011, violence started some two months later with the regime’s strong
response to protests against President Bashar al-Assad.79 This sparked a rebellion and the
country subsequently descended into a civil war.80 In the course of the conflict, different
Syrian rebel forces where loosely tied to each other and sometimes also fighting between
them occurred. Many of the Syrian rebel factions were poorly organized, over time, three
major resistance groups remained. Firstly the Free Syrian Army (FSA), it consists of several
smaller groups that have united themselves. The FSA is the most moderate group in the
conflict, it has no outspoken religious goals and most Western powers say to support this
group, the most notable action came from France when it recognized the FSA’s political
wing, the Syrian National Council (SNC), as the legitimate representative of Syria.81,82
Secondly, the Kurdish Yekîneyên Parastina Gel (YPG), have succeeded in capturing or
holding on to parts of the territory that they consider to be Kurdistan. The YPG actively
battles both the Syrian Government as ISIS with the support of Western powers. Lastly, ISIS
75 Article 3 of the 1907 Hague Convention (IV); Article 91 Additional Protocol I 76 J. Henckaerts and L. Doswald-Beck, “Customary International Humanitarian Law, Volume I, Rules”, Cambridge Uniersity Press, Cambridge 2009, p. 530. 77 See for a discussion of attribution by the ICJ: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.United States of America), Merits, Judgment, I.C.J. Reports 1986, para 115; and by the ICTY: ICTY, Tadic case, Judgement on Appeal, 15 July 1999, paras. 137 - 145 78 As of UN Security Council Resolution 1546 (S/Res/1546 (2004)), the ICRC classified the situation in Iraq as a non-international armed conflict. ICRC: “Iraq post 28 June 2004: protecting persons deprived of freedom remains a priority”, 05-08-2004, https://www.icrc.org/eng/resources/documents/misc/63kkj8.htm [08-06-2015]. 79 P. Iddon, “A recap of the Syrian crisis to date”, 30-07-2012, http://www.digitaljournal.com/article/329590 [08-06-2015]. 80 See for a step-by-step guide: “Syria: The story of the conflict”, 12 March 2015, http://www.bbc.com/news/world-middle-east-26116868 [18-06-2015]. 81 B. Crumley, “France Recognizes Syria’s Opposition—Will the West Follow Suit?”, Time Magazine, 14 November 2012, http://world.time.com/2012/11/14/france-recognizes-syrias-opposition-will-the-west-follow-suit/ [18-06-2015]; The SNC has also on an exceptional basis been invited by the Arab League to take Syria’s seat in 2013. 82 See for reports of the collapse of this group: E. Banco, “Four Years Later, The Free Syrian Army Has Collapsed”, International Business Times, 14 March 2015, http://www.ibtimes.com/four-years-later-free-syrian-army-has-collapsed-1847116 [18-06-2015].
23
has been able to form a unified structure out of the many Islamist and fundamentalist groups
that were involved in the conflict.83 Over the years before the outbreak of the Syrian civil war,
ISIS -as part of Al-Qaeda in Iraq- had already carried out several terror campaigns in Iraq, but
the conflict in Syria gave the organization the opportunity to grow and become a more
independent organization. As a consequence of this growth, ISIS effectively took over Al-
Qaeda in Iraq and Syria. As the successor of Al-Qaeda, ISIS poses a threat to Western interest
and frequently abducts and kills foreigners. In June 2014, ISIS had conquered vast pieces of
territory in both Syria and Iraq. At that point, the international community realized it had to
step in to prevent ISIS from completely overrunning Iraq.84,85
2.2.1 Iraq’s call for assistance
Can the call for assistance by Iraq be regarded as valid consent to the military actions against
ISIS? An assessment of the five elements in Article 20 discussed in the first chapter can
provide clarity whether the recent call for assistance by Iraq in their struggle against IS can be
regarded as valid consent.
Valid under international law
As we have seen in the previous chapter, some criteria have to be met in order for consent to
be valid in international law. Firstly, the consent must not have been given for an act that
violates jus cogens. The current military actions against ISIS from the part of Iraq and the US-
led coalition do not seem to consist of any of the grave breaches of international law that
would amount to a violation of jus cogens. This means that Iraq was in fact allowed to
consent to these specific actions. The other indicators also seem to support that Iraq’s consent
was valid in international law. Iraq gave its consent by means of a written letter to the UN
Security Council that was signed by the Minister of Foreign Affairs. The message of the call
83 For a detailed explanation on the success of ISIS see: L. Napoleoni, “The Islamist Phoenix, The Islamic State (Isis) and the Redrawing of the Middle East”, Seven Stories Press, New York 2014; A. S. Hashim, “Policy Report - From Al-Qaida Affiliate to the Rise of the Islamic Caliphate: The Evolution of the Islamic State of Iraq And Syria (ISIS)”, Institute of Defence and Strategic Studies (IDSS), Nanyang Technological University (NTU), December 2014. 84 “Hagel Orders Carrier USS George H.W. Bush Into Arabian Gulf”, American Forces Press Service, Washington, June 14, 2014; A. Wordsworth, “Anti-ISIS coalition has mobilized up to 62 nations and groups”, National Post, September 26, 2014, http://news.nationalpost.com/news/mobilizing-the-world-up-to-62-nations-and-groups-have-joined-coalition-against-isis [9-6-2015]. 85 85 See for an overview of American diplomatic actions following the use of chemical by the Syrian regime: https://www.whitehouse.gov/issues/foreign-policy/syria.
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for assistance was repeated numerous times in public statements.86 Furthermore, the
circumstances do not indicate that there was error, fraud, corruption or coercion involved. The
conclusion therefore must be that the Iraqi call for assistance was valid under international
law.
By a State
The call for assistance by Iraq can be attributed to the State of Iraq because it was made in an
official manner by Minister of Foreign Affairs. Based on the Vienna Convention, this official
is one of three that by virtue of their position are capable of representing their State.
Actually expressed
The consent of a State for an otherwise wrongful act must be actually expressed, other States
may not presume the State would consent with their actions. The Iraqi Government wrote the
following to the UN Security Council:
“It is for these reasons that we, in accordance with international law and the relevant bilateral
and multilateral agreements, and with due regard for complete national sovereignty and the
Constitution, have requested the United States of America to lead international efforts to
strike ISIL sites and military strongholds, with our express consent.” [emphasis added]
Given act
With reference to the citation above, it can be established that the Iraqi Government has set
limits to the actions that it consents to. It requests the international community to strike sites
and military strongholds. Other operations that would fall outside that scope are clearly not
consented to.
Before or during the act
The official letter from the Minister of Foreign Affairs to the UN Security Council came in on
September 22nd 2014. For many international partners of Iraq, this request was the sign to start
helping it in its struggle against ISIS.87 Even before that date, the United States were in a
campaign against ISIS and providing humanitarian aid to Iraqi civilians. Those actions were
86 J. Borger and P. Wintour, “Obama vows to destroy Isis's 'brand of evil' as Iraq requests help from Britain”, The Guardian, 24 September 2014, http://www.theguardian.com/world/2014/sep/24/obama-isis-brand-of-evil-uk-air-strikes-iraq; M. Abbas, “Maliki asks for US help as ISIS expands in Iraq”, 13 June 2014, http://www.al-monitor.com/pulse/tr/security/2014/06/iraq-isis-expansion-mosul-maliki-us-assistance.html [17-06-2015]. 87 See the Dutch Government’s decision to get involved: Kamerstukken II 2014-15, 27925, nr. 506, p. 4.
25
based on separate requests from the Iraqi Government to the United States88 and on an earlier
formal request for limited action by the international community.89 In both cases the consent
was given before the actions took place so the timing of giving consent does not invalidate the
consent.
Since all of the criteria for a valid consent are met, the Iraqi Government’s call for assistance
must be regarded as a consent precluding wrongfulness as described in Article 20. In fact, this
example may be a blueprint of how the ILC had envisaged a case of consent as a circumstance
precluding wrongfulness.
2.2.2 Is the lack of protest by Syria a form of consent?
The Syrian Government has not given any public statement in which it consents to air strikes
against ISIS on Syrian territory. In fact, the Syrian Government has indicated that “any strike
which is not coordinated with the government will be considered as aggression.”90 This
message can only be understood as withholding consent for air strikes on Syrian territory.
This has not deterred some of the coalition forces from expanding the airstrikes from Iraq to
Syria. The campaign against ISIS now includes strikes on Syrian territory but the Syrian
Government has not formally protested or condemned the strikes. Can this silence be regarded
as valid consent? Since Syria has not openly consented to the airstrikes, any consent that can
be construed must be implicit. The hypothesis must be that Syria implicitly consented and as
with the case of the call for assistance by Iraq, this hypothesis will be tested by considering
whether it fulfills the five criteria that were identified in paragraph 1.4.
Valid under international law
Consent can only be valid under international law if Syria was allowed to consent to the
specific actions that are carried out. As was established above, the airstrikes against ISIS in
Iraq do not breach the rules of jus cogens. There is no apparent reason why the airstrikes
against ISIS in Syria should be regarded differently. The other indicators are less clear then
with the case of Iraq’s call for assistance. Firstly, it is difficult to obtain certainty as to who
decided not to condemn the airstrikes, therefore an assessment of the authorization of the 88 Statement by the President, 7 August 2014, https://www.whitehouse.gov/thepressoffice/2014/08/07/statementpresident [06-06-2015]. 89 UN Document S/2014/440. 90 The Guardian, “Syria offers to help fight Isis but warns against unilateral air strikes”, 26 August 2014, http://www.theguardian.com/world/2014/aug/26/syria-offers-to-help-fight-isis-but-warns-against-unilateral-air-strikes [18-06-2015].
26
agent who gave Syria’s consent cannot be made as easily as with Iraq. It is however clear that
the Syrian Government is involved on the highest level since the remarks quoted above
regarding the coordination of airstrikes were made by the Minister of Foreign Affairs. It
seems safe to conclude that the decision not to condemn the airstrikes is made on the same
level. That indicates that the agent or person who implicitly consented to the airstrikes has the
authority to do so.
The validity of consent can be vitiated by error, fraud, or coercion. There are no indications
that any of these factors played a role in Syria’s decision to remain silent since the airstrikes
in its territory began. The conclusion must be that insofar as Syria has implicitly consented to
the airstrikes, this consent is valid under international law.
By a State
Following the reasoning above that it was the Minister of Foreign Affairs or an official at a
similar level in the Syrian Government that decided not to condemn the airstrikes, that
decision can be attributed to the Syrian State.91
Actually expressed
Although Syria has not openly consented to the airstrikes, consent can have been expressed
implicitly. As established above, implicit consent exists when the actions of the consenting
State lead the acting State to the genuine conclusion that it consents to the actions.92 Merely
presumed consent exists when the acting State assumes that the victim State would have
consented if had been asked. This poses the question whether the message by the Syrian
Minister of Foreign Affairs can be understood as implicit consent to airstrikes against ISIS on
Syrian territory. There is a slight ambiguity in the remarks from the Syrian Minister of
Foreign Affairs. As stated, any strike which is not coordinated with the Syrian Government
will be regarded as an act of aggression. This implies that strikes that are coordinated would
be consented to by the Syrian Government. Not surprisingly, the international coalition that
carries out strikes at ISIS on Syrian territory has refused to directly coordinate with the Syrian
Government. However, President Assad stated that Iraq and other countries sometimes
convey a general message to the Syrian Government regarding the airstrikes.93 Although these
91 See para 1.4.1.2. 92 See para 1.4.3. 93 Assad Says Syria Gets Information on Airstrikes Against ISIS, 2 February 2015, http://www.huffingtonpost.com/2015/02/10/assad-syria-airstrikes_n_6650308.html [19-06-2015].
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messages do not go into tactical details, the Syrian Government seems to feel itself informed,
so some form of indirect coordination does exist.94
It can be argued that if the Syrian Government does not consent to airstrikes on its territory, it
should condemn the ongoing airstrikes or even physically try to prevent the airstrikes from
repeating. The Syrian Government has largely been silent on the issue, there has certainly not
been strong vocal condemnation of the airstrikes. Furthermore, the Syrian army has the
capabilities to defend its airspace. Several analyses show that Syria has the possession of
surface to air missiles that might be able to defend the airspace against incoming fighter jets
carrying out airstrikes on Syrian territory.95 There have been no reports that coalition jets have
been shot down by the Syrian army. This indicates an unwillingness to defend its territory
against the airstrikes against ISIS on the part of the Syrian Government.
Analogue to the assessment of the facts of Savarkar,96 the factual situation in Syria as
described above leads to the conclusion that the international coalition can genuinely believe
that the Syrian Government consents to the airstrikes against ISIS.
Given act
Consent must be given for a specific act and that act has to stay within the given limits. Given
the communication, and the lack thereof, by the Syrian Government, the implicit consent for
airstrikes against ISIS on Syrian territory must be understood as to only include strikes in
areas where the Government has no control over its own territory.
Before or during the act
Consent for an otherwise wrongful act can be given before or during that act. The airstrikes on
Syrian territory are ongoing,97 the timing is therefore not an element that vitiates the implicit
consent by the Syrian Government.
94 Idem. 95 For example: A. H. Cordesman, “Syria’s Uncertain Air Defense Capabilities”, the Center for Strategic and International Studies, 6 May 2013, https://csis.org/publication/syrias-uncertain-air-defense-capabilities [19-06-2015]; C. P. Atwood and J. White, “Syrian Air-Defense Capabilities and the Threat to Potential U.S. Air Operations”, The Washington Institute, 23 May 2014, http://www.washingtoninstitute.org/policy-analysis/view/syrian-air-defense-capabilities-and-the-threat-to-potential-u.s.-air-operat [19-06-2015]. 96 See para 1.4.3. 97 As of June 17th 2015, some 1617 airstrikes have been carried out on Syrian territory. See: http://www.bbc.com/news/world-middle-east-27838034 [19-06-2015].
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2.3 Has Pakistan validly consented to drones trikes on its territory?
After Al-Qaeda’s attacks on the World Trade Centre and the Pentagon at September 11th
2001, the United States started the so-called global war on terror. Initially, this resulted in a an
armed conflict with Afghanistan, but with the defeat of the Taliban there, many Al-Qaeda and
Taliban militants fled to the Federally Administered Tribal Area (FATA) region in Pakistan.
Since Pakistan is an ally of the United States in the global war on terror and the FATA region
is very in hospitable, the US troops could not enter it. In 2004, the Bush administration started
using Unmanned Aerial Vehicles (hereinafter: drones) to carry out targeted attacks at Taliban
and Al-Qaeda operatives.98 When President Obama took over from Bush, the number of
drone strikes was strongly increased.
There is no debate that the use of drones over the territory of another State is in principle a
breach of that States sovereignty.99 The US Government claims to have several grounds for
justification of the drone strikes, consent of the Pakistani Government being one of those. For
the purpose of this paragraph the alleged consent by the Pakistani Government is what will be
discussed. As established above, it can be argued that the Syrian Government has implicitly
consented to airstrikes on its territory, the situation in Pakistan may well be similar to that.
Since the Pakistani Government has never publicly consented to drone strikes, it needs to be
discussed whether it has done so implicitly.100
Valid under international law
If Pakistan has implicitly consented to the drone strikes, that consent needs to have been
validly given. Pakistan can only validly consent to an otherwise wrongful act as long as it
would have legal under international law for Pakistan to carry out that act itself.101 As a
consequence, Pakistan can only consent to the drone strikes as long as they are legal under the
rules of jus cogens and International Humanitarian Law (IHL) or Human Rights Law (HRL).
What rules constitute jus cogens is still part of debate, so far only slavery, genocide and
98 The Bureau of Investigative Journalism keeps detailed track of drone strikes in Pakistan and Yemen. See for detailed information: https://www.thebureauinvestigates.com/category/projects/drones/drones-pakistan/ [20-06-2015]. 99 Commissie van Advies Inzake Volkenrechtelijke Vraagstukken, “Advisory Report on Armed Drones”, The Hague, July 2013, p. 10. 100 The fact that the US have never officially acknowledged the existence of a drone program and that the Pakistani Government therefore had nothing to formally consent to, might be of diplomatic relevance. However, the program is widely known and Pakistan did on occasion condemn drone strikes in public so this should not pose a legal burden to consent to the drone strikes. 101 D. Wippman, “Military Intervention, Regional Organizations, and Host-State Consent”, Duke Journal of Comparative and International Law, Vol. 7, 1996, p. 215.
29
torture are firmly accepted as such.102 It needs little discussion that a drone strike -or the
drone campaign for that matter- cannot be classified as any of those.
There is however heated debate over whether the drone strikes are a breach of rules of IHL.
This debate centers on the question whether there is a non-international armed conflict in the
FATA regions. If this is the case, then the drone strikes fall under the rules of IHL. Under this
paradigm, drones strikes could be allowable as a targeted killing as long as the requirements
of distinction, precaution and proportionality are met.103 If there is no non-international armed
conflict in the FATA regions, the IHL rules and HRL rules of a law enforcement paradigm
apply. Under these rules, targeted killings are also allowed but only in very exceptional
circumstances. Most notably it adds the requirement of strict necessity, thereby imposing
extensive restraints on the use of lethal force.104
Based on this assessment, the Pakistani Government can give valid consent for a drone strike,
but it has to be decided on a case-by-case basis whether that particular strike meets the
relevant criteria.105
Other factors that might vitiate consent need to be considered as well. As was the case with
Syria’s implicit consent for airstrikes on its territory, the matter of the drone strikes in
Pakistan is dealt with on the highest levels of the Government. It seems highly unlikely to
conclude that the Pakistani Government is not involved on the same level with the decision to
consent to drones strikes, demonstrated by former Pakistani President Musharraf when
claimed to have personally consented to a couple of drone strikes.106 There is no reason to
assume that the level at which these decisions are made changed when Musharraf left the
Presidential office so the officials involved can still be regarded as having the authority to
consent to drones strikes. Consent can also be vitiated by error, fraud or coercion. Of those
three, only coercion might have merit. Pakistan reportedly considered to physically defend its
territory by shooting a drone down but did not go through with that idea because it would be
needlessly provocative.107 This could indicate that the Pakistani Government feels it is
pressed into cooperating with the drone strikes since it cannot effectively defend itself from
102 See para 1.4.1.1. 103 T.D. Gill land D. Fleck (eds.), “The Handbook of the International Law of Military Operations”, Oxford University Press, Oxford 2010, p.288 - 292. 104 Idem, p 281 - 287. 105 See for a categorical denial of the legality of US drones strikes in Pakistan: M. E. O’Connel, “Unlawful Killing with Combat Drones, A Case Study of Pakistan, 2004-2009”, Notre Dame Law School, Legal Studies Research Paper No. 09-43, 2010, available via http://ssrn.com/abstract=1501144. 106 N. Robertson and G. Botelho, “Ex-Pakistani President Musharraf admits secret deal with U.S. on drone strikes”, 12 April 2013, http://edition.cnn.com/2013/04/11/world/asia/pakistan-musharraf-drones/ [20-06-2015]. 107 A. Entous, S. Gorman and E. Perez, “U.S. Unease Over Drone Strikes”, 26 September 2012, http://www.wsj.com/articles/SB10000872396390444100404577641520858011452 [20-06-2015].
30
the strikes. However, as long as the Pakistani Government does not use all diplomatic ways to
ventilate its lack of consent,108 it can be argued that there still is room for maneuvering and
accepting a coercion claim is somewhat stretched.
Actually expressed
The Pakistani Government has not publicly consented to drones strikes on its territory. In fact,
there have been several instances where drones strikes have been condemned. In September
2012, the Pakistani Government “categorically rejected the insinuation [that it tacitly allows
US drone strikes] and reiterated Pakistan’s long-standing position on drone attacks. Drone
attacks are illegal, counterproductive, in contravention of international law and a violation of
Pakistani sovereignty.”109
However, until 2011 these condemnations were less frequent and there are strong indications
that the Pakistani Government implicitly consented to the drones strikes. These indications
consist of reports that the Pakistani intelligence services shared relevant information and the
military kept the airspace over areas where drone strikes would be carried out free from other
aircrafts.110 Several cables and documents have been leaked in which Pakistani officials have
indicated that they do not oppose the drone strikes.111 Moreover, until 2011 Pakistan has
allowed the drones to use two of its airbases.112
Pakistan’s public reactions to drone strikes have evolved over the years. In the early stages,
Pakistan denied any involvement from the part of the US and claimed it had carried out the
attacks itself or it denied the events took place at all. Later on Pakistani officials would deny
Pakistani involved and simply not comment on whether the US were involved.113 A Pakistani
108 Pakistan has yet to formally complain about the drones strikes in any international forum. 109 “Spokesperson's Response to US Newspaper Report on Drone Attacks”, 28 September 2012, http://www.mofa.gov.pk/pr-details.php?mm=MzMw [20-06-2015]; See also the press release from the Ministry of Foreign Affairs on January 19th 2015: “The Government of Pakistan condemns the US drone strike that took place in Pungai, Shawal area of North Waziristan Agency on the morning of Monday, 19 January 2015. The Government of Pakistan reiterates its well-known position that such strikes constitute a violation of its sovereignty and territorial integrity and demands their immediate cessation.” http://www.mofa.gov.pk/pr-details.php?mm=MjUyNg,, [20-06-2015]. 110 “Drones: Myths and Reality in Pakistan”, International Crisis Group Asia Report No. 247, 21 May 2013, available via: http://www.crisisgroup.org/~/media/Files/asia/south-asia/pakistan/247-drones-myths-and-reality-in-pakistan.pdf [21-06-2015]; A. Iqbal, “Drones will be used responsibly, Pakistan assures US”, Dawn, 7 October 2012, http://www.dawn.com/news/754971/drones-will-be-used-responsibly-pakistan-assures-us [21-06-2015]. 111 G. Miller and B. Woodward, “Secret memos reveal explicit nature of U.S., Pakistan agreement on drones”, Washington post, 24 October 2013; “Army chief wanted more drone support”, 19 May 2011, http://www.dawn.com/news/630057/army-chief-wanted-more-drone-support [20-06-2015]. 112 G. Miller, “Feinstein comment on U.S. drones likely to embarrass Pakistan”, LA Times, 13 February 2009, http://articles.latimes.com/2009/feb/13/world/fg-uspakistan13 [20-06-2015]. 113 B.G. Williams, ”The CIA's Covert Predator Drone War in Pakistan, 2004-2010: The History of an Assassination Campaign”, Studies in Conflict & Terrorism, Vol. 33, no. 10, 2010, p. 871 - 892.
31
intelligence official said: “Here is what I can tell you. Our troops were not involved in the
operation, but this is one of the areas where our intelligence and operational cooperation with
U.S. services is most intense. Comments on media reports that it was a Predator strike would
invoke sovereignty issues. Let’s enjoy the fact that al Qaeda has lost another key person.”114
Since the publication of all these indications of Pakistani involvement in the drone program, it
has been widely accepted that Pakistan has at least until 2011 implicitly consented to the
drone strikes.
In 2011 two incidents occurred that changed the public opinion in Pakistan drastically. Firstly,
the US carried out the raid on Osama bin Laden in Abottabad without prior notification to the
Pakistani Government and secondly, 24 Pakistani soldiers were killed in a mistaken NATO
strike at the Salalah border checkpoint. These incidents led the Pakistani Government to deny
the US the use of its airbases and mark the beginning of the denunciations of drone attacks.115
With the deterioration of diplomatic relations between Pakistan and the US, the language of
the Pakistani Government has grown stronger. By 2012, the Houses of Parliament had
adopted resolutions calling on the US to stop its drone campaign.116 The message that
Pakistan did not consent to drones strikes was echoed by the UN Special Rapporteur on
human rights and counterterrorism, Ben Emmerson. Emmerson stated that "[t]he position of
the Government of Pakistan is quite clear. It does not consent to the use of drones by the
United States on its territory and it considers this to be a violation of Pakistan's sovereignty
and territorial integrity. As a matter of international law the US drone campaign in Pakistan is
therefore being conducted without the consent of the elected representatives of the people, or
the legitimate Government of the State. It involves the use of force on the territory of another
State without its consent and is therefore a violation of Pakistan's sovereignty.” 117
By a State
Consent can only be valid if it can be attributed to the State. As established before, the
conduct of the Pakistani Government can be attributed to their highest officials. Those
114 C. Whitlock and K. Khan “Blast in Pakistan Kills Al Qaeda Commander” Washington Post, 4 December 2005, http://www.washingtonpost.com/archive/politics/2005/12/04/blast-in-pakistan-kills-al-qaeda-commander/c5c23c13-5fe0-4f31-afce-afee4708d6c5/ 115 D. Walsh, “Pakistan orders US out of drone base”, The Guardian, 30 June 2011, http://www.theguardian.com/world/2011/jun/30/pakistan-orders-us-out-drone-base [20-06-2015]. 116 R. Leiby, “Pakistan calls for end to U.S. drone attacks“, The Washington post, 12 April 2012, http://www.washingtonpost.com/world/pakistan-calls-for-end-to-us-drone-attacks/2012/04/12/gIQAN1ZFDT_story.html [20-06-2015]. 117 “Statement of the Special Rapporteur following meetings in Pakistan”, 14 March 2013, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13146&LangID=E [18-06-2015].
32
officials by virtue of their position have the capability to represent the State, so any consent
from their part can be considered to be consent by the State.
Given act
The act that a State can consent to must be made sufficiently clear and the acting State must
stay within the limits of the consent. Until 2011, the drone strikes were coordinated between
the US and Pakistani intelligence services and the Pakistani armed forces were well aware of
the places where drone strikes would be carried out. This coordination took place on a regular
basis. As long as the US do not change the places where they carry out drones strikes, they
can be considered to be concretely given and within the limits that the Pakistani Government
has imposed on its implicit consent.
Before or during the act
Consent for an otherwise wrongful act can be given before or during that act. The drone
strikes are ongoing, albeit less frequently than at their height in 2010.118 Certainly before
2011 when US and Pakistani intelligence was regularly exchanged, the Pakistani Government
was aware of drone strikes before they would take place and its implicit consent at the time
was therefore not vitiated because it was not given before or during the act. Since the
intelligence exchange has stopped, the Pakistani Government must be considered to have no
prior knowledge of drone strikes and can therefore not consent to an individual drone strike
before or during the act. Implicit consent to the drone campaign as a whole is less vulnerable
to be vitiated because it was not given in time.
If a State has consented to an otherwise wrongful act by another State, this consent can be
revoked in any way it sees fit. As seen above, until 2011 the Pakistani Government never
spoke out against drone strikes on its territory and has in fact actively supported the drone
campaign. This US can genuinely consider this behavior to be implicit consent with the drone
strikes. After 2011, Pakistan has revoked its consent through a series of denunciations and
Parliamentary resolutions so since then the US can no longer invoke Pakistani consent to
justify the drone strikes in the FATA region.119
118 Several institutes try to keep track of the numbers, but they all have to disclaim for inaccuracies. There seems to be consensus that 2010 was the year with the highest number of drone strikes. See for example: http://securitydata.newamerica.net/drones/pakistan-analysis.html [20-06-2015]. 119 Emmerson comes to the same conclusion: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN doc. A/68/389, para 53 - 54.
33
3. Conclusion
In this chapter, I will put the three case studies that were made in chapter 2 together and relate
them to alternative justifications for the use of force on the territory of another State. I will
then formulate an answer the main question: is consent a permissible ground for the use of
force on the territory of another State?
3.1 Legal grounds to use force
Over that last 15 years, Western powers and their allies have constantly been engaged in some
form of force against Islamic militants or the countries that harbor them. The justification for
these engagements was found in the three accepted legal grounds for the use of force on the
territory of another State.120 Either there was a UN Security Council mandate under Chapter
VII of the Charter,121 or a claim to be acting in self-defense,122 or express consent by the State
where the forcible interventions took place.123 These three justifications for the use of force
each have their merit. States therefore try to find multiple justifications for the same
operation. Consent has been dealt with in the previous chapters, below the two other
justifications will be discussed briefly.
UN Security Council Resolution
Chapter VII constitutes the heart of the global system of collective security envisaged in the
UN Charter.124 Acting under Chapter VII of the UN Charter, the United Nations Security
Council can adopt Resolutions that mandate States to take forcible measures on the territory
of another State without the latter State’s consent or cooperation. This usually amounts to the
formation of a multinational force carrying out the goals set out in the Resolution.
For a State that believes to have reason to use force on the territory of another State, this
justification is the most desirable. A Security Council mandate under Chapter VII puts the
120 T.D. Gill land D. Fleck (eds.), “The Handbook of the International Law of Military Operations”, Oxford University Press, Oxford 2010, p. 91. 121 Security Council Resolution 1386 (2001). 122 See the letter by the US claiming self-defense in the United States’ response to the attacks on September 11th (UN doc. S/2001/946). 123 Regarding the situation in Iraq: see the letters from Iraq to the Security Council in June and September 2014 (UN doc. S/2014/440 and S/2014/691); Regarding the situation in Yemen: see the letter from an Arabian coalition to the Security Council (UN doc. S/2015/217). 124 B. Simma, “NATO, the UN and the Use of Force: Legal Aspects”, European Journal of International Law, Vol. 10, 1999, p. 4.
34
forcible intervention squarely in the system of the UN Charter and renders it legal under
international law.
Self-defense
In some cases, States use force in self-defense. Every State has the inherent right of self-
defense under international customary law, the UN Charter regulates this right of self-defense
for all States.125 The use of force under self-defense must meet the criteria of necessity,
proportionality and immediacy.126 States therefore have to try to find other feasible options
before they can legally resort to the use of force on the territory of another State.
Traditionally self-defense is available as a legal ground for the use of force after an attack by
another State. A significant change to this practice was made after the attacks of September
11th 2001 when the United States initiated a military campaign against Al-Qaeda and the
Taliban claiming to be acting out of self-defense.127 Over the course of this campaign against
terrorist threats, the debate on the applicability of self-defense became more and more
debated. In the view of the US Government there still is an inherent right of self-defense
against a non-state actor when the State at which territory this threat is located, is not able or
willing to act against the threat.128 Although “[t]he “unwilling or unable” test is now a fairly
well settled part of the US government’s legal position (…), it remains controversial under
international law.”129 The reason of the controversy around the “unwilling and unable”
doctrine is that if it is applied to leniently, it has the potential to seriously undermine one of
the corner stones of international law: the prohibition of the use of force under Article 2(4) of
the UN Charter.
From a legal standpoint, a UN Security Council Resolution providing a mandate for the use of
force is the most attractive option. This would create a solid legal basis for the intervention
and provide clear limits as to what level of force is allowed. In the absence of a UN Security 125 Article 51 UN Charter. Article 51 provides a second legal basis for self-defense but also imposes limits on the right of self-defense based on customary international law. 126 T.D. Gill land D. Fleck (eds.), “The Handbook of the International Law of Military Operations”, Oxford University Press, Oxford 2010, p. 189. 127 UN doc. S/2001/946. “Since 11 September, [the US] has obtained clear and compelling information that the Al-Qaeda organization, which is supported by the Taliban regime in Afghanistan, had a central role in the attacks. There is still much we do not know. Our inquiry is in its early stages. We may find that our self-defense requires further actions with respect to other organizations and other States.” 128 Speech to the Annual Meeting of the American Society of International Law by H. H. Koh, “The Obama Administration and International Law”, 25 March 2010, Washintong DC, http://www.state.gov/s/l/releases/remarks/139119.htm [22-06-2015]. 129 R. Goodman, “International Law on Airstrikes against ISIS in Syria”, 28 August 2014, http://justsecurity.org/14414/international-law-airstrikes-isis-syria/ [21-06-2015].
35
Council mandate, States rely on the other two justifications. Of those other two, consent as a
justification for the use of force on the territory of another State is widely accepted but we
have seen that its application can cause considerable difficulties. Self-defense as a basis for
the use of force on the territory of another State is limited by stringent criteria and should be
regarded as last resort option.
3.2 Conclusion and recommendation
As we have seen in the case studies in the previous chapter, Iraq has followed the ILC’s rules
for providing consent for the use of force on its territory to perfection. Unfortunately, Iraq has
set an example that few other States have followed. The studies into the cases of Syria and
Pakistan have shown that States are sometimes willing to consent to, or even actively
cooperate with the use of force on their territory but refuse to publicly acknowledge their
consent. This refusal can have diplomatic reasons or it can be out of fear of electoral loss over
taking unpopular measures. In any of those cases, the secrecy shrouding the consent impairs
the legal accountability of both the consenting State as the acting State.130
These findings lead to the conclusion that consent is legally perfectly permissible as ground
for the use of force on the territory of another State but it should only be used if there is a high
enough degree of clarity on what a State has consented to. Certainly while there is no apparent
way to incorporate the “unwilling and unable” doctrine into the prohibition on the use of
force, the combination of the “unwilling and unable” doctrine and a practice in which States
give consent secretly or very implicitly, might be a very serious setback for the prohibition of
the use of force.
130 See for similar findings: D.I. Ahmood, “Rethinking Anti-Drone Legal Strategies: Questioning Pakistani and Yemeni “Consent””, Yale Journal of International Affairs, Vol. 8, no. 2, 2013, p. 1.
36
Summary
Na de aanslagen van 11 september 2001 op New York en Washington hebben de VS een
uitgebreide campagne opgezet tegen Al-Qaeda en de Taliban. Deze campagne werd
gerechtvaardigd onder het recht van zelfverdediging van Artikel 51 van het VN Handvest.
Enkele jaren later, verplaatste het toneel zich en werd ISIS de voornaamste tegenstander.
Vanaf dag één was er verhit debat over de rechtsgronden waarop het geweld in het Midden-
Oosten werd gestoeld. Inmiddels ligt er een brief van de Iraakse regering waarin wordt
verzocht steun te leveren in hun strijd tegen ISIS. De scriptie onderzoekt in welke mate een
dergelijke instemming een rechtsgrond kan zijn om geweld uit te oefenen op het grondgebied
van een andere Staat.
Staten zijn de hoogste entiteit in de internationale arena. Zij bezitten de soevereiniteit over
hun grondgebied. Artikel 20 van de Articles on State Responsibility for Internationally
Wrongful Acts (ASRIWA) bepaalt dat een geldig gegeven instemming een rechtsgrond kan
zijn voor het schenden van die soevereiniteit. Deze regel komt voort uit het Romeins recht:
volenti non fit injuria.
Dit principe is algemeen geaccepteerd maar de uitvoering zorgt voor problemen. Zoals de
Iraakse regering een brief heeft geschreven gaan andere Staten minder openbaar om met hun
instemming met bepaalde acties van andere Staten. Pakistan heeft tussen 2004 en 2011
oogluikend toegestaan dat er Amerikaans drones over het noorden het land vlogen om
precisiebombardementen uit te voeren op Taliban en Al-Qaeda militanten. Er zijn sterke
aanwijzingen dat er in die tijd ook actief is meegewerkt met deze aanvallen. Na 2011 heeft de
Pakistaanse regering haar instemming igetrokken. In Syrië worden bombardementen
uitgevoerd op stellingen van ISIS, de Syrische regering heeft een dubbelzinnig statement
afgegeven over de coördinatie van die bombardementen en zwijgt sindsdien in alle
toonaarden. Ook dit kan uitgelegd worden als instemming met de schending van de Syrische
soevereiniteit.
Omdat de klassieke interpretatie van het recht op zelfverdediging niet toestaat dat er op het
grondgebied van andere Staten geweld wordt gebruikt zonder dat aan zeer stringente
voorwaarden is voldaan, heeft de VS de “unwilling and unable” doctrine ontwikkeld. Volgens
die doctrine zouden zij gerechtigd zijn om bedreigende doelen aan te vallen op het
grondgebied van andere landen als die landen zelf geen actie kunnen of willen ondernemen
tegen die bedreiging. Deze doctrine is zeer controversieel omdat hij een grote uitzondering op
het geweldsverbod van het VN Handvest toestaat.
37
Hoewel instemming dus een goede rechtsgrond is om een inbreuk op de soevereiniteit toe te
staan, moet er zuiver mee omgesprongen worden. Als Staten in de praktijk onduidelijk zijn
over hun al dan niet afgegeven instemming en ook de “unwilling and unable” doctrine wordt
gehanteerd vormt dat tezamen een te grote inbreuk op het geweldsverbod van het Handvest.
38
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