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THE FORCIBLE ‘PROTECTION OF NATIONALS ABROAD’
DOCTRINE: A HISTORIC RIGHT USED TODAY.
By: Jeroen Alexander Thijs.
Student Number: 3267229.
Supervisor: Otto Spijkers.
Master Thesis.
Master Programme in Public International Law.
Utrecht University.
Date: 8 October 2014.
1
ABSTRACT.
Recent events in the Middle East and Ukraine have shown that in the beginning of the twenty-
first century the world is still a dangerous place. What rights do States have today to protect
their nationals outside of their borders when those nationals are threatened with injury due to
hostage situations or armed conflict? The forcible ‘protection of nationals abroad’ doctrine,
which could give States the right to intervene when their nationals are threatened, has been used
to justify forcible interventions by States abroad. This historic right has been controversial since
the adoption of the Charter of the United Nations with among its main principles the prohibition
on the threat or use of force. Scholars are divided about the legitimacy of the doctrine and its
place within the framework of the prohibition on the threat or use of force. The thesis examines
‘concrete’ customary evidence to see if there is support for the legitimacy of the doctrine under
international law and the acceptance of it by the international community, what conditions
should govern the doctrine before it can be invoked, and how would this doctrinal right be
compatible with the prohibition on the threat or use of force of the Charter of the United
Nations? In the end it is concluded that there is, at least at the moment, not enough ‘concrete’
customary evidence supporting acceptance of the doctrine by the international community and
legitimacy of the doctrine under international law. Nonetheless recent interventions indicate a
change in attitude towards an acceptance or acquiescence by the international community on
the use of the doctrine. The thesis further concludes what rules should govern when the
doctrines existence and legitimacy is accepted on the basis of the ‘concrete’ customary
evidence, and how these conditions would legitimize the use of the doctrine under the inherent
right to self-defence of Article 51 of the Charter of the United Nations.
TABLE OF CONTENTS.
INTRODUCTION.................................................................................................................... 2
PART I. ..................................................................................................................................... 3
A. The ‘protection of nationals’ doctrine............................................................................. 3
B. Article 2(4) of the Charter of the United Nations. .......................................................... 4
C. Doctrinal Debate. ............................................................................................................ 5
PART II..................................................................................................................................... 7
A. The United Kingdom and France in Egypt (the Suez Crisis, 1956)................................ 8
B. United States in Lebanon (1958)................................................................................... 11
C. Belgium in the Congo (1960)........................................................................................ 12
D. Belgium and the United States in the Congo (1964)..................................................... 14
E. The United States in the Dominican Republic (1965). ................................................. 16
F. Israel in Uganda (the Entebbe Incident, 1976).............................................................. 19
G. France in Mauritania (1977 – 1979).............................................................................. 22
H. France, Belgium and the United States in Zaire (1978)................................................ 23
I. France in Chad (1978-1979). ........................................................................................ 24
J. The United States in Iran (1980)................................................................................... 25
K. The United States in Grenada (1983)............................................................................ 27
2
L. The United States in Panama (1989)............................................................................. 30
M. France in Gabon (1990)............................................................................................. 32
N. France and Belgium in Rwanda (1990)......................................................................... 33
O. France in Chad (1990)................................................................................................... 34
P. France and Belgium in Zaire (1991 and 1993). ............................................................ 35
Q. The Multinational Evacuation Operation in Rwanda (1994)........................................ 36
R. France in the Central African Republic (1996)............................................................. 37
S. The Russian Federation in Georgia (2008). .................................................................. 37
T. The Russian Federation in Ukraine (Crimea, 2014). .................................................... 39
PART III. ................................................................................................................................ 41
A. Evaluation...................................................................................................................... 41
B. Conclusion..................................................................................................................... 48
C. Further Research. .......................................................................................................... 49
BIBLIOGRAPHY. ................................................................................................................. 49
INTRODUCTION.
Unrest in the Middle East, Northern and Sub-Saharan Africa, and Ukraine show how dangerous
the world in the beginning of the twenty-first century still is. The number of kidnappings by
radicalized Islamic organizations of foreign nationals, and the intervention of the Russian
Federation in Ukraine justified by their wish to protect the Russian population in Ukraine, leads
to the question which legitimate actions States could take under international law to protect
their citizens outside of their borders. The question is not a new one, and has been a major
source of debates by legal scholars, the Security Council, and the General Assembly of the
United Nations.
The doctrine on which raging debates are held is that of the forcible ‘protection of nationals
abroad’ doctrine (hereinafter ‘the ‘protection of nationals’ doctrine’ or ‘the doctrine’). A
number of States have claimed to have a right to forcibly protect their nationals abroad when
those are threatened with injury. But the division of the academic community on the legitimacy
of this doctrine results in a grey area on the stance of international law. Nonetheless due to the
reasons stated above the debate on this topic is now still as important as it was before. Moreover
the growing influence of non-State actors on the playing-field of international law, largely in
conflict and hostage situations, stresses the importance. This is because the position of these
actors under international law is also unclear. With the doctrinal stand-off between academic
opponents and supporters of the doctrine it is difficult, purely on theoretical grounds, to find a
way out of the impasse. Customary evidence could indicate an acceptance or rejection of the
doctrine under international law.
The thesis will therefore discuss the following research-question: is there ‘concrete’ customary
evidence supporting the legitimacy and the acceptance of the ‘protection of nationals’ doctrine
by the international community, what conditions should govern the doctrine before it can be
invoked, and how would this doctrinal right be compatible with the prohibition on the threat or
use of force of the Charter of the United Nations?
3
For a good understanding of the doctrine and the legal debate, Part I examines the theory behind
the doctrine by assessing academic literature and primary legal sources. The examination
focusses on the theoretical rules governing the doctrine, its relationship with the prohibition on
the threat or use of force and a summary of the different schools of thought discussing the
legality of the doctrine in light of that prohibition.
The second Part compares the theoretical framework discussed in Part I with ‘concrete’
customary evidence portrayed by twenty post-Charter interventions where the doctrine was
invocated as at least one of the justifications. ‘Concrete’ customary evidence encompasses the
explicit use of the doctrine by States justifying an intervention, and statements and actions made
by other States reacting to the invocation of the doctrine, as opposed to deducing customary
evidence of the doctrine from other statements or actions by States not directly in relation to
the doctrine. Subsequently the ‘concrete’ customary evidence will be analysed in order to
conclude if the international community supports the existence and legitimacy of the doctrine.
This ‘concrete’ customary evidence will be found by analysing, where possible, Security
Council, General Assembly and State documents. This method has been chosen in order to
ensure that the research is as objective as possible by limiting the possible subjective
interpretations of other customary evidence not directly concerned with the doctrine.
The final Part III of the thesis evaluates the findings of Part II. The evaluation combines the
relevant historic circumstances, the theory of Part I and the analyses of Part II, thereby
answering the research questions and explains the authors view on the use of the doctrine in the
future.
PART I.
Before a thorough examination of ‘concrete’ customary evidence is possible it is necessary to
establish the theoretical framework where the doctrine should be a part of. First the theory
governing the doctrine will be discussed, followed by an examinations of the friction of the
doctrine with the Charter of the United Nations, and finally the most prominent schools of
thought used in the doctrinal debate, rejecting or accepting the legality of the use of the doctrine
as a justification for intervention, will be addressed.
A. The ‘protection of nationals’ doctrine.
One of the first writers mentioning a right to protect one’s nationals abroad was Vattel.1
In the
eighteenth century he asserted that “[w]hoever uses a citizens ill, indirectly offends the state,
which is bound to protect this citizen; and the sovereign of the latter should avenge his wrongs,
punish the aggressor, and, if possible, oblige him to make full reparation; since otherwise the
citizen would not obtain the great end of the civil association, which is safety.”2
He thereby
indicated that when one’s national is ill-treated by another State, the former State has got the
right to use force to ensure that citizens safety against the latter State. Nowadays scholars and
States tend to define the doctrine with three conditions as they were spelled out by Waldock.3
1
Vattel, 2008.
2
Ibid., p. 298
3
Waldock, 1952, p. 467; Dinstein, 2011, pp. 255-256; Thompson, 2012, pp. 628-629; Eldred, 2008, p.
255; this definition was also explicitly used by the United Kingdom justifying the Suez intervention in
1956: PREM 11/1126, on the right of intervention.
4
First there must be an imminent threat of injury to nationals, second a failure or inability on the
part of the territorial sovereign to protect them and third the measures taken must be strictly
proportional to the object of protecting them against injury.4
It is generally accepted that the ‘protection of nationals’ doctrine was considered to be lawful
in the nineteenth and the beginning of the twentieth century.5
This is supported by the Anglo-
Spanish arbitrations of 1925,6
where it was concluded that “it cannot be denied that at a certain
point the interest of a State in exercising its protection over its nationals [...] can take precedence
over territorial sovereignty, despite the absence of any conventional provisions. The right of
intervention has been claimed by all States; only its limits are disputed.”7
Nowadays the legality
of the doctrine as a justification for a forcible intervention in another State is, at best,
questionable.8
The adoption of the Charter of the United Nations, with the prohibition on the
threat or use of force as one of its main principles,9
complicates the acceptance of the legality
of a right permitting the unilateral use of force in another State under certain circumstances.
B. Article 2(4) of the Charter of the United Nations.
After the horrors of the Second World War the Charter of the United Nations (hereinafter ‘the
Charter’) was adopted in October 1945. One of the main principles of the United Nations and
its Members is the prohibition on threat or use of force. Article 2(4) of the Charter reads:
“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 matter
inconsistent with the Purposes of the United Nations.”
Even though this principle only refers to the Members of the United Nations, article 2(6)
declares that “the Organization shall ensure that States which are not Members of the United
Nations act in accordance with these Principles so far as may be necessary for the maintenance
of international peace and security.” Presently, the Charter is so widely ratified that it is
generally accepted that article 2(4) has to be considered as part of customary international law
and a jus cogens norm,10
and as such binding upon the whole international community.11
Nonetheless the extend of this prohibition remains a subject of debate.
The prohibition on the threat or use of force was elaborated upon in the 1970 Declaration on
Principles of International Law (hereinafter ‘the Declaration’). First, aggressive wars constitute
a crime against peace, for which States will be responsible under international law. Moreover
States will have a duty to refrain from using propaganda for aggressive wars. Second, States
have a duty to refrain from threatening or using force to violate existing boundaries, lines of
demarcation, or as a means of solving international disputes. Third, there is a duty for States to
refrain from actions of reprisal involving the use of force. Fourth, force may not be used to
deprive peoples of their inherent right to self-determination and independence. And finally,
4
Waldock, 1952, p. 467.
5
Ruys, 2008, p. 235; O'Connell, 1970, p. 303-304; for pre-Charter interventions under the justification
of the doctrine see: Lillich, Wingfield, & Meyen, 2002, pp. 25-36.
6
Anglo-Spanish Arbitrations (1925), Reports of International Arbitral Awards Vol. II, pp. 615-742.
7
Bowett, 1958, pp. 87-88.
8
Shaw, 2008, p. 1145; Eldred, 2008, p. 254; Grimal & Mellin, 2011, p. 541.
9
Article 2(4) of the Charter of the United Nations (1945).
10
Thompson, 2012, p. 634.
11
Shaw, 2008, p. 1123.
5
States have a “duty to refrain from organising, instigating, assisting or participating in acts of
civil strife or terrorist acts in another State” and must not encourage the organization of armed
bands, irregular forces for the incursion into the territory of another State.12
It must be noted that it is debated whether the Declaration does constitute a binding document.
Nonetheless the text represents an important contribution to clarify the key principles in the
Charter,13
following the example of the International Court of Justice.14
When one takes this
declaration into consideration, it is clear that a number of pre-Charter practices are not allowed
anymore. But is this equally true for the unilateral use of force in pursuance of the protection
of one’s nationals?
The prohibition mentioned in article 2(4) is not absolute, two exceptions to it are explicitly
mentioned in the Charter. The first exception is when the Security Council of the United Nations
(hereinafter ‘the Security Council’) mandates the use of force by a decision under Chapter VII
of the Charter, in cases when it “determine[s] existence of any threat to the peace, breach of the
peace, or acts of aggression.”15
The second exception to the prohibition is the use of force in
cases of self-defence. Every Member has got “the inherent right of individual and collective
self-defence if an armed attack occurs against [it].”16
A strict interpretation of the prohibition
would lead to the conclusion that any use of force that is not pursuant to these two exceptions
violates the prohibition on the threat or use of force.
C. Doctrinal Debate.
Even though the ‘protection of nationals’ doctrine is not explicitly mentioned as an exception
in the Charter, scholars continue to disagree whether the doctrine is a legitimate justification
for the use of force. The two schools of thought in the doctrinal debate are either the
‘restrictionists’ school or that of the ‘counter-restrictionists’.17
The restrictionists hold that the doctrine is not a legitimate justification for the use of force
against or in another State. The theory is based on three arguments. First it holds that the
principal goals of the United Nations are the maintenance of international peace and security.
Second it argues that the United Nations has a monopoly on the use of force, except in cases of
self-defence pursuant article 51 of the Charter. Finally it asserts that if States were allowed to
use force for any other purpose than self-defence, they would be provided with a ready legal
pretext for geopolitical intervention.18
This is a legitimate point where it stresses that States
should not be able to intervene in other countries when it is not under attack or a part of a
conflict, and that a right to intervene on other grounds could surpass the idea of the prohibition
of Article 2(4) and the peaceful settlement of disputes. Moreover also the restrictionists narrow
interpretation of the inherent right of self-defence of Article 51 of the Charter would supports
this assumption. Nonetheless such a narrow interpretation of the Article 2(4) could strip a State
of enforcing one of its main obligations, to protect their own nationals from harm. According
to the restrictionists a State is only allowed to use force in self-defence after an armed attack
12
Declaration on Principles of International Law concerning Friendly Relations and Co-operations
among States in Accordance with the Charter of the United Nations (1970).
13
Rosenstock, 1971, p. 735.
14
Military and Paramilitary Activities Case (Nicaragua v United States), I.C.J. Reports 1986, para. 191.
15
Art. 39 Charter of the United Nations (1945).
16
Art. 51 Charter of the United Nations (1945).
17
Eldred, 2008, p. 254; Gordon, 1977, p. 123; Arend & Beck, 1993, p. 73.
18
Arend & Beck, 1993, p. 105.
6
upon its own State territory. There is a clear distinction being made between an armed attack
upon nationals in another State and an armed attack upon a State’s own territory.19
Thus the
restrictionists school interprets article 2(4) of the Charter as a general and absolute prohibition
on the use of force. Thereby completely blocking any possibility to assert that the doctrine could
be part of legitimate self-defence or another exception to the prohibition.
On the other hand the counter-restrictionists maintain that the doctrine can be a legitimate
justification for the use of force.20
Three separate perspectives, justifying the use of the
‘protection of nationals’ doctrine, predominate in this school. First the idea that the use of force
in pursuance of the protection of one’s nationals abroad does not violate article 2(4) of the
Charter, and thus constitutes a third exception to the prohibition.21
Second the view that the
doctrine is a form of unilateral humanitarian intervention.22
And third the notion that the
doctrine is a legitimate exercise of the State’s inherent right to self-defence. 23
A brief
explanation of the rationale of these different perspectives is needed in order to be able to
recognize them in the State practice.
The rationale behind the theory that the doctrine does not violate the prohibition on the threat
or use of force lies in the text of article 2(4) of the Charter. As the doctrine is not aimed against
the territorial integrity or political independence of any State it does not violate those aspects
of a State’s sovereignty and cannot violate the prohibition.24
The general assertion, at the basis
of this theory, is that it is not the intention of the intervening State to “usurp the sovereign
government or annex its territory; it is instead focused on the rescue of its citizens in accordance
with the doctrine.”25
When such an interpretation of the prohibition is accepted then there could
be more than just one extra exception to the prohibition on the threat or use of force, for example
the protection of vital interests.26
Such a conclusion would mean that every forcible action in
another State could be justified when it is not aimed at the territorial integrity or the political
independence of a State. This would seriously undermine the effectiveness of Article 2(4) of
the Charter and would confirm the concern the restrictionists have on a readily legal pretext for
the use of force.
The humanitarian justification for the doctrine can only be accepted in case the doctrine of
humanitarian intervention is legitimate. The primary purpose of humanitarian intervention is
the protection of individuals or groups of individuals against their own government. Thereby it
goes beyond the ‘protection of nationals abroad’ doctrine, because it is not necessary that there
is a link between the injured individuals and the intervening State.27
When it is legal for a State
to intervene with the use of force for the protection of nationals of another country, it is difficult
not to conclude that an intervention would also be legal when one’s own nationals are
threatened. Moreover just like the ‘protection of nationals’ doctrine, there is evidence that the
humanitarian doctrine was also accepted before the adoption of the Charter as being part of
customary international law.28
In order to fit the humanitarian doctrine into the framework of
19
Ibid., p. 106.
20
Eldred, 2008, p. 255.
21
Zedalis, 1990, p. 221; Thompson, 2012, pp. 634-638.
22
Grimal & Mellin, 2011, p. 542; D'Angelo, 1980-1981, p. 492.
23
Bowett, 1958, p. 187.
24
Thompson, 2012, p. 636.
25
Ibid., p. 636.
26
See Part II section A.
27
Lillich, Wingfield, & Meyen, 2002, p. 332.
28
Shaw, 2008, p. 1155.
7
the prohibition on the threat or use of force the realists interpretation of the prohibition links
the humanitarian doctrine to the rights and duties of States under the Charter. They maintain
that when the United Nations does not act, the pre-Charter customary law right of humanitarian
intervention revives, and a State may intervene as they did under pre-Charter international
law. 29
While such an interpretation of the prohibition could legitimize the doctrine of
humanitarian intervention and thus also that of the ‘protection of nationals’ doctrine, it has to
be noted that, at the moment, the acceptance of a humanitarian intervention is as questionable
as the ‘protection of nationals’ doctrine.30
The third theory maintains that the doctrine is a form of legitimate exercise of self-defence.
This theory has its basis in the terminology of article 51 of the Charter. According to the Charter
the right of a State to defend themselves exists when an ‘armed attack’ occurs against that
State.31
It can be argued that an attack on nationals abroad could be seen as an attack on the
injured individuals State, which then fulfils the condition that an armed attack has occurred
against them.32
Another explanation focuses on the term of ‘inherent right’ used in the
Charter.33
This explanation asserts that this term indicates that the adoption of the Charter has
not displaced the pre-Charter customary law of self-defence, of which the ‘protection of
nationals’ doctrine was a part.34
This assumption is supported by the fact that the rules
concerning the right of self-defence are itself part of customary international law, known as the
Caroline criteria,35
and have survived the adoption of the Charter. Of the three leading
supporting theories of the doctrine, the last one is the most uncontroversial and would fit most
easily into the framework of the prohibition on the threat or use of force.
Thus whereas in theory it is generally accepted that the doctrine is governed by the conditions
set by Waldock, the legitimacy of the doctrine depends on how to interpret the prohibition on
the threat or use of force under Article 2(4) of the Charter. In the end the opponents of the
doctrine, the restrictionists, assume that Article 2(4) contains a general and absolute prohibition
on the threat or use of force, moreover they hold that the only unilateral use of force can be
pursuant to the inherent right of self-defence of Article 51 of the Charter, but this exception
must be narrowly interpreted and does not include the right contained in the ‘protection of
nationals’ doctrine. Among the supporters of the doctrine, the counter-restrictionists, the most
uncontroversial school of thought is that the doctrine could be legitimized under the inherent
right of self-defence by using a broader interpretation of Article 51 of the Charter than the
restrictionists are using.
PART II.
In light of this theoretical background twenty post-Charter interventions, where the doctrine
was used as at least one of the justifications by the intervening State, will be compared. The
majority of the list of incidents was gathered and described by Richard B. Lillich,36
and these
span from 1945 to 1996. The last two incidents concern the interventions by the Russian
Federation into Georgia and Ukraine.
29
D'Angelo, 1980-1981, pp. 492-493.
30
Shaw, 2008, p. 1156.
31
Article 51 of the Charter of United Nations (1945).
32
Zedalis, 1990, p. 235.
33
Article 51 of the Charter of United Nations (1945).
34
Zedalis, 1990, p. 238.
35
Shaw, 2008, p. 1131.
36
Lillich, Wingfield, & Meyen, 2002.
8
The examination of these interventions will focus on the applicability of the three conditions
set by Waldock on the actual definition of the doctrine. This to determine that the doctrine was
applicable and to verify that the doctrine is governed by these conditions. Secondly statements
made before the Security Council, General Assembly and in State documents will be examined
in order to see if there is any ‘concrete’ customary evidence that would support one of the
schools of thought the acceptance of the doctrine by the international community, and the
legitimacy under international law. It has to be noted that these sources are not of a legal but of
a political nature. Nonetheless when keeping this in mind it is possible to find evidence for the
legal use and value of the doctrine.
In examining the statements regarding the interventions focus will be given to the intervening
State(s) and the five permanent Members of the Security Council; the Republic of China (now
the People’s Republic of China), France, the Union of Soviet Socialist Republics (now the
Russian Federation), the United Kingdom of Great Britain and Northern Ireland, and the United
States of America.37
The five permanent Members their attitudes towards these interventions
and the doctrine allows for comparisons being made throughout the years. This is due to their
permanent seating in the Security Council. Moreover their right to veto resolutions38
give them
a great influence on the use of force in the world, and thereby in indicating the (il)legality of
justifications for the use of force. Nonetheless it should be kept in mind that these States
represent only a fraction of the total sovereign States in the world, and by themselves cannot
create customary international law.
A. The United Kingdom and France in Egypt (the Suez Crisis, 1956).
The first incident after the adoption of the Charter, where force was justified by using the
doctrine, was during the Suez Crisis. In July 1956 Nassar, the President of Egypt, pronounced
that the Suez Canal was being seized by the Egyptian Government.39
The Canal was of great
importance to western nations, and especially to France and the United Kingdom.40
Moreover
Nassar threatened Britain’s and France’s influence in the Middle East.41
Immediately after the
seizure of the Suez Canal, and the nationalization of the Suez Canal Company, the United
Kingdom started to look for opportunities that would legitimize an intervention in Egypt.42
France, which was evenly firm in its conviction of the seizure, informed Britain that it was
prepared to undertake joint actions against Egypt.43
This opportunity presented itself when on the twenty-ninth of October the State of Israel
invaded Egypt and assaulted Egyptian forces across the Sinai dessert.44
France and the United
Kingdom immediately condemned this invasion and imposed an ultimatum demanding that
both sides should withdraw from the Suez Canal.45
On the thirtieth the United States submitted
37
Article 23(1) of the Charter of the United Nations (1945).
38
Article 27(3) of the Charter of the United Nations (1945).
39
Kissinger, 1994, p. 530.
40
SC Meeting 751, UN Doc. S/PV. 751 (1956), p. 8 at 46.
41
Scott, 1996, p. 207.
42
Marston, 1998, pp. 776-777.
43
Kissinger, 1994, p. 532.
44
GA Meeting 561, UN Doc. A/PV.561, p. 10 at 135; this was previously agreed upon in a secret
document between Israel, the United Kingdom and France during meetings at Sèvres, France, see
Marston, 1998, p. 798.
45
Kissinger, 1994, p. 541; SC Meeting 749, UN Doc. S/PV. 749 (1956), p. 3 at 4.
9
a resolution before the Security Council ordering the Israeli forces to immediately withdraw.46
But to the surprise of the international community both the United Kingdom and France vetoed
this resolution47
and intervened in the conflict the next day.48
Two grounds were invoked by the United Kingdom and France as a justification for the
intervention. One of those grounds was the protection of nationals at Ismailia.49
This was
communicated by the Lord Chancellor to the Cabinet in a memorandum on the twenty-ninth of
October. The memorandum held that:
“(1) The combined effect of the Pact of Paris, the Charter of the United Nations and the
General Assembly's "United [sic] for Peace" resolution of 1951 is that force may
lawfully be used or threatened only (a) on the express authority of the United Nations
or (b) in self-defence.
(2) Self-defence undoubtedly includes a situation where the lives of a state's nationals
are threatened.
(3) Article 51 of the Charter does not impair this customary right nor does that Article
cut down the customary right by restricting self-defence to cases where the attack
provoking it has actually been launched. It would be a travesty of the purposes of the
Charter to compel a defending state to allow its assailant to deliver the first and perhaps
fatal blow.
(4) The tests of whether such an intervention is necessary under customary international
law are: (i) whether there is an imminent threat of injury to nationals; (ii) whether there
is a failure or inability on the part of the territorial sovereign to protect the nationals in
question; (iii) whether the measures of protection are strictly confined to the object of
protecting them against injury. […]”50
This statement clearly underlines the view that an attack on one’s nationals abroad could be
deemed as an armed attack in the wording of article 51 of the Charter, and as such gives the
State of those nationals the right to defend themselves. It indicates that the doctrine has been
used as a legal justification in this case. Moreover the test described in paragraph 4 of the
memorandum fully complies with the conditions described by Waldock. Nonetheless during
the meetings before the Security Council just a marginal reference was made to the doctrine as
a justification for the intervention by the United Kingdom or France.51
The main argument the United Kingdom stressed before the Security Council was that their
“vital interests would be endangered if free passage [of the Canal] were interrupted,”52
and that
the United Kingdom has “a right to defend these vital interests.”53
Moreover the ambassador
46
U.S. Draft Resolution, UN Doc. S/3710 (1956).
47
SC Meeting 749, UN Doc. S/PV. 749 (1956), p. 31 at 186..
48
SC Meeting 751, UN Doc. S/PV. 751 (1956), p. 2 at 9.
49
PREM 11/1129, on the right of intervention, at 6; found in: Marston, 1998, pp. 800-801.
50
PREM 11/1126, on the right of intervention.
51
SC Meeting 749, UN Doc. S/PV. 749 (1956), p. 24 at 141.
52
SC Meeting 751, UN Doc. S/PV. 751 (1956), p. 8 at 46.
53
Ibid., p. 8 at 47.
10
further stated that “[o]ur intervention is not aimed at the sovereignty of Egypt, still less at the
territorial integrity of Egypt.”54
France’s arguments before the Security Council were in line with those of the United Kingdom.
The representative stated that “the French Government stresses the temporary character of the
presence of its troops in the Canal Zone and emphasizes that it does not intend to infringe upon
Egyptian sovereignty in any way,”55
and that “the French Government cannot accept the
accusation that it has acted in a manner contrary to the principles of the Charter.”56
Thus in this case the use of the doctrine justifying the interventions was marginal. The main
justification used was that their intervention, to protect their ‘vital interests’, was not aimed at
the territorial integrity of Egypt which seems to indicate that they are trying to evade the
prohibition of article 2(4) of the Charter. The legitimacy of this argument can be surely
disputed, but the wording used could indicate a view that an extra exception to the prohibition
on the threat or use of force exists in the eyes of the United Kingdom and France. Moreover the
Memorandum of the Lord Chancellor to the Cabinet indicates that the United Kingdom views
the doctrine as being a part of the Article 51 of the Charter, thereby interpreting the right to
self-defence in a broad way.
The Soviet Union was harsh in condemning the intervention. The ambassador stated that the
action “represents a gross violation of the obligations they have assumed under the United
Nations Charter,”57
and that the “far-fetched and strained explanation is merely intended as a
screen for the aggressive operations of the United Kingdom and France against the Egyptian
State.”58
This attitude towards the intervention clearly indicates a restrictionists school of
thought accepted by the Soviet Union. Thus although the condemnation was not explicitly
directed at the use of the ‘protection of nationals’ doctrine, the use of the doctrine would not be
accepted likewise.
President Eisenhower addressed the intervention by the United Kingdom and France on the
television stating that “[a]s it is the manifest right of any of these nations to take such decisions
and actions, it is likewise our right – if our judgement so dictates – to dissent. We believe these
actions to have been taken in error. For we do not accept the use of force as a wise and proper
instrument for the settlement of disputes.”59
It has to be noted that no such statements were
made by the United States before the Security Council.
China did not discuss the intervention by France and the United Kingdom. Their statements
before the Security Council only discussed the Israeli invasion of Egypt.60
The reason for the
lack of comment in the intervention is not clear, but it is safe to assert that at the least China did
not condemn the use of the doctrine as a justification.
After the veto by France and the United Kingdom the Security Council adopted resolution 119
on the thirty-first of October, referring the matter to the General Assembly of the United Nations
54
Ibid., p. 9.
55
Ibid., p. 11 at 63.
56
Ibid., p. 11 at 63.
57
Ibid., p. 2 at 11.
58
Ibid., p. 3 at 12.
59
Kissinger, 1994, p. 541.
60
SC Meetings 748 – 751, UN Doc. S/PV. 748 – 751 (1956).
11
under the procedure of the ‘Uniting for Peace’ resolution of 1950.61
None of the three following
resolutions adopted by the General Assembly discussed the legality of the intervention by the
United Kingdom and France.62
Moreover the focus of the General Assembly’s discussion was
“to attend to peace first and right afterwards,”63
and as such did not discuss the legitimacy of
the use of the doctrine justifying the intervention.64
B. United States in Lebanon (1958).
In the spring of 1958 internal, regional, and international factors together created an extremely
unstable situation in Lebanon that led to open warfare between pro-government and opposition
forces.65
On the fourteenth of July a coup d’état took place in Iraq where the Iraqi royal family
and a number of European and United States citizens were murdered. Afraid for other similar
coups in pro-Western countries, like Lebanon, Eisenhower acceded to the request of the
Lebanese President Chamoun for military assistance.66
Although the American intervention in
Lebanon was primarily based upon the request of the Lebanese President, Eisenhower
proclaimed that the intervention was aimed at protecting about 2.500 United States nationals in
Lebanon.67
By a press release and a message to the United States Congress Eisenhower addressed the
legality of these actions by referring to their inherent right under Article 51 of the Charter for
individual and collective self-defence.68
This was reiterated before the Security Council on the
fifteenth.69
No more notion was given to the use of the doctrine in justifying their intervention.
Eventually the primary justification for the intervention was based upon collective self-defence
upon the request of the Lebanese Government,70
and this position was reiterated before the
Security Council.71
This indicates that in this case the doctrine was used more as a supporting
argument and as a moral justification towards the American public, rather than a legal
justification for the intervention.
Due to the fact that the primary legal basis for the intervention was collective self-defence upon
the request of Lebanon, no legal objections were raised regarding the doctrine. The responses
of the United Kingdom72
and France73
condoning the American actions followed the United
States arguments and described the action as being in accordance with Article 51 of the Charter.
Also China “wholeheartedly supports the action that the United States has taken,”74
and “is in
full accord with the principles and purposes of the United Nations.”75
61
SC Resolution 119, UN Doc. S/3721 (1956).
62
GA Resolution 997 (ES-I), 2 November 1956; GA Resolution 998 (ES-I), 4 November 1956; and GA
Resolution 999 (ES-I), 4 November 1956.
63
GA Meeting 562, UN Doc. A/PV.562, p. 18 at 2.
64
GA Meetings 561-572, UN Doc. A-PV.561-572.
65
Lillich, Wingfield, & Meyen, 2002, p. 44; the Lebanese army remained neutral in the conflict.
66
Dept. St. Bull. Vol. 39 (1958), p. 181.
67
Ibid., pp. 181-182.
68
Ibid., pp. 181-183.
69
SC Meeting 827, UN Doc. S/PV. 827 (1958), p. 6-8; Dept. St. Bull. Vol. 39 (1958), p. 186.
70
Lillich, Wingfield, & Meyen, 2002, p. 46.
71
SC Meeting 827, UN Doc. S/PV. 827 (1958), p. 7.
72
Ibid., pp. 16-17.
73
SC Meeting 828, UN Doc. S/PV. 828 (1958), p. 2.
74
Ibid., p. 5.
75
Ibid.
12
On the other hand the Soviet Union condemned the American intervention on the basis of the
collective self-defence rationale, but did not discuss the ground of protection of American
citizens.76
Moreover the amendments proposed by the Soviet Union on the Japanese draft
resolution in the Security Council held “that the landing of United States troops in Lebanon
constitutes intervention in the domestic affairs of that country and is therefore contrary to the
purpose and principles of the United Nations.”77
Even though the rejection of the collective
self-defence rational can be disputed, their attitude towards non-intervention supports the
assertion that they hold the prohibition on the threat or use of force to be of an absolute an
general character, in conformity with the restrictionists school of thought.
It is interesting to note that the doctrine was used besides a request of the territorial sovereign.
As we will see this is a frequent practice by intervening States. This could indicate that either
only the consent of the territorial sovereign legitimizes the intervention and that the doctrine is
used more as a moral and political argument, or that both justifications have a legitimate legal
value in justifying the intervention.
C. Belgium in the Congo (1960).
On the thirtieth of June 1960 the Congo got their independence from Belgium. Within five days
Belgian and other Europeans nationals were attacked by mutinying Congolese forces of the
‘Force Publique’ in Léopoldville and Thysville (now Kinshasa and M’banza N’gungu).78
As a
reaction to this violence Belgium decided to send paratroopers into the Congo on the tenth of
July.79
At that time the only legal framework between Belgium and the Congo was the Treaty
of Friendship, which only provided provisions for military assistance with mutual consent, and
the recognized Congolese Government did not request any assistance from Belgium.80
In their address to the Security Council the Belgium Government explained their decision to
intervene in the Congo. The intervention was done “with the sole purpose of ensuring the safety
of European and other members of the population and of protecting human lives in general.”81
And further strengthening the intentions of Belgium, their representative stated that: “we had a
right to intervene when it was a question of protecting our compatriots, our woman, against
such excesses,” and that they had waited until the last moment before it was decided to
intervene.82
At the end of its address to the Security Council, the principles of the intervention
were summarized:
“(1) The purpose of the Belgian Military intervention in the Congo is purely
humanitarian.
(2) The intervention has been strictly proportionate to the objective sought, namely
the protection of the lives of Belgian nationals.
76
SC Meeting 827, UN Doc. S/PV. 827 (1958), p. 21.
77
UN Doc. S/4063, para. 3.
78
Rouvez, 1994, p. 319.
79
Lillich, Wingfield, & Meyen, 2002, p. 98; UN Doc. S/PV. 873 (1960), pp. 33-34.
80
Renton, Seddon, & Zeilig, 2007, p. 88.
81
SC Meeting 873, UN Doc. S/PV. 873 (1960), p. 34.
82
SC Meeting 877, UN Doc. S/PV. 877 (1960), pp. 18-19.
13
(3) It is limited in its scope by its objective. It is limited in time since it is conceived
as a temporary action.
(4) In intervening, Belgium is not pursuing any political design or seeking to
interfere in any way in the domestic politics of the Congo.”83
Due to the fact that the doctrine is the primary and only justification given by Belgium it must
have some legal value in justifying the intervention. The justification made by the Belgian
representative fulfils the conditions set by Waldock. Especially the summary indicates the
importance that the actions are proportional to the objective. Moreover the first paragraph seems
to indicate an assertion that the doctrine falls under a humanitarian right of intervention.
Nonetheless it is not clear what the exact interpretation should be given to ‘humanitarian’ in
this context.
On the fourteenth of July the Security Council, without referring to the doctrine, called upon
the Belgian Government to withdraw all its forces from the Congo and authorized to provide
the Congolese Government with “such military assistance as may be necessary.”84
The two
resolutions that followed addressed the Belgian Government to make haste with the withdrawal
of their forces and requested from all States to refrain from actions against the territorial
integrity and political independence of the Congo.85
It has to be noted that although a request
for an Belgian withdrawal indicates a condemnation of the Belgian intervention, it does not
indicate a rejection of the use of the doctrine as justification.
As a reaction to the intervention the Soviet Union stated that “[i]t should be emphasized that
talk about the need for protecting ‘the lives of residents’ and restoring ‘order’ in other countries
is a well-worn device which was used on more than one occasion during the nineteenth and
twentieth century to conceal armed intervention by the Colonial Powers in the countries of Asia,
Africa and Latin America,”86
The continuance of these methods show the predatory nature of
the ‘new-style’ colonialism and cannot conceal the fact that Belgian action was one of
aggression which is “the grossest violation of the basic principles of the United Nations.”87
This
strengthens the assertion that the Soviet Union holds the restrictionists school approach as the
right interpretation of the Charter.
The United Kingdom characterized the Belgian actions as making “parallel efforts to protect
the lives or to facilitate the withdrawal of Belgian nationals or of other communities threatened
with violence,88
and that the “Belgian troops have performed a humanitarian task for which my
Government is grateful, and for which, we believe, the international community should be
grateful.”89
Besides the United Kingdom France also supported the Belgian intervention. With
regard to the doctrine their representative stated that “[t]heir mission of protecting lives and
property is the direct result of the failure of the Congolese authorities and is in accord with a
recognized principle of international law, namely, intervention on humanitarian grounds.”90
Thus both the United Kingdom and France see the Belgian actions as a legitimate form of
83
Ibid., p. 30.
84
SC Resolution 143, UN Doc. S/4387 (1960).
85
SC Resolution 145, UN Doc. S/4405 (1960); SC Resolution 146, UN Doc. S/4426 (1960).
86
SC Meeting 873, UN Doc. S/PV. 873 (1960), p. 19.
87
Ibid., p. 19.
88
Ibid., pp. 25-26.
89
Ibid., p. 26.
90
Ibid., p. 28.
14
humanitarian intervention to protect lives. This indicates an acceptance of such a right, but
differs from the self-defence justification used by them in the Suez incident. Moreover the
French approach accepts the second condition set by Waldock; a failure or inability to act on
the part of the territorial sovereign.
In this case the United States and China did not comment on the legality of the Belgian actions.
They both stated that it was not the time for any condemnation but an instantaneous response
was important to help the Congolese government restore peace and order.91
D. Belgium and the United States in the Congo (1964).
After the incident in 1960 the United Nations Operation in the Congo was established to provide
the government of the Congo with military assistance.92
In the spring of 1964 numerous revolts
had broken out and on the thirtieth of June the forces of the United Nations needed to withdraw
from the eastern regions.93
When after six weeks the tides began to turn in the favour of the
Governmental forces, Christophe Gbenye, President of the revolutionary regime, announced on
the twenty-sixth of September that the “approximately 1600 foreigners remaining in the
Stanleyville area [...] would not be allowed to leave.”94
Among those hostages where 500
Belgians, 700 other nationals from Europe, and 400 Indians and Pakistanis.95
The fate that awaited these ‘hostages’ was explained by the representative of the United States.
He stated before the Security Council, responding to the claim that the threats were not real,96
that “many of the hostages were deliberately killed [...] the total of those already tortured and
slaughtered amounted to 35 foreigners.”97
Among these deaths were Americans and Belgians.98
He further mentioned a telegram from a rebel general that gave the order that all Americans and
Belgians needed to be kept in a secure place and exterminated in case of a bombing of the
region.99
When political and diplomatic negotiations did not prove to be successful it became
increasingly apparent to the United States and Belgium that military measures would have to
be used in order to extract the hostages to safety. This resulted in the sending of Belgian
paratroopers to Stanleyville on the twenty-fourth of November. In the end these paratroopers
evacuated about 2000 people in the following four days.100
The contribution of the United
States to the intervention was limited to supplying the transport aircraft for the mission.101
It is
clear that these circumstances could fulfil the three conditions set by Waldock, and as such
supports the usage of the doctrine in this case and strengthens the assumption that the doctrine
is governed by the Waldock conditions. However it has to be noted that the intervention was
carried out with the authorization by the Congolese Government,102
and as such it is only safe
91
SC Meeting 873, UN Doc. S/PV. 873 (1960), pp. 15, 29.
92
SC Resolution 143, UN Doc. S/4387 (1960); Lillich, Wingfield, & Meyen, 2002, p. 49.
93
Lillich, Wingfield, & Meyen, 2002, pp. 49-50.
94
Ibid., p. 50.
95
Ibid.
96
SC Meeting 1174, UN Doc. S/PV. 1174 (1964), p. 15.
97
Ibid., pp. 15-16.
98
Ibid., p. 16.
99
Ibid.
100
Lillich, Wingfield, & Meyen, 2002, p. 52.
101
UN Doc. S/6062 (1964), p. 2.
102
SC Meeting 1174, UN Doc. S/PV. 1174 (1964), p. 12.
15
to interpret the use of the doctrine as a secondary justification. Nonetheless the request of the
Congolese Government was just only briefly touched upon by Belgium and the United States
during the debates before the Security Council.
The justification given by the United States on the day of the attack was the liberation of
hostages whose lives were in danger.103
Afterwards the American representative stated before
the Security Council that the actions were primarily taken in the pursuance of the protection of
the lives of American citizens.104
Moreover the justification by the U.S. State Department
clearly underlined the humanitarian aspect of the mission.105
Only due to the presence of a
consent by the Congolese Government it is not clear how this secondary justification must be
interpreted, as having mere political, moral or legal value.
The Belgian justification was also constructed around the concept of the ‘protection of
nationals’ doctrine, instead of the authorization given for the mission. The Belgian Minister of
Foreign Affairs addressing the Security Council stated that “the Stanleyville operation was not
a military operation. It was not a matter of helping the Congolese National Army. It was not a
matter of conquering or retaining any particular territory. It was a question of saving between
1.500 and 2.000 persons whose lives were in danger.” 106
They dubbed the action as a
humanitarian operation,107
and stated that “the Belgian Government had a special responsibility
towards the men, women and children it had sent to the Congo.”108
It is interesting that special
emphasis has been given to the view that the intervention did not violate the territorial
sovereignty of the Congo, and that the protection of the Belgian nationals could be seen as a
humanitarian operation. This gives an indication that the use of the doctrine has some legal
value in this case. Moreover the Belgian argument strengthens the school of thought that it is
legitimate for a State to intervene when the intervention is not aimed at the territorial integrity
of a State.
In its declaration the Soviet Union representative held that “[a]s for the “humanitarian motives”
in which those guilty of aggression against the Congo now try to cloak their criminal activities,
that hypocritical pretence is by no means new and will deceive no one,”109
and that “[h]istory
is full of examples of how imperialism, on the false pretext of “ensuring the security” of white
diplomats, settlers and missionaries, has used violence on the peoples of the countries invaded
by it.”110
Moreover the Soviet Union also found the request of the Congolese Government as
nothing but a pretext for aggression.111
From this comment it can be concluded that the Soviet
Union does not only find the doctrine a false pretext, but it can be assumed that they do not
recognize such a pretext whatsoever. Moreover it supports the assertion that the doctrine was
used as a legal justification, and being mere political or moral.
China did not question the threatening circumstances the hostages were in, they only questioned
the necessity of the intervention.112
Moreover they were “fully satisfied with the statements
103
UN Doc. S/6062 (1964), p. 2.
104
SC Meeting 1174, UN Doc. S/PV. 1174 (1964), p. 13.
105
UN Doc. S/6062 (1964), p. 1.
106
SC Meeting 1173, UN Doc. S/PV. 1173 (1964), p. 3.
107
Ibid., p. 10.
108
Ibid., p. 12.
109
SC Meeting 1178, UN Doc. S/PV. 1178 (1964), p. 21.
110
Ibid.
111
Ibid., p. 23.
112
SC Meeting 1177, UN Doc. S/PV. 1177 (1964), p. 26 at 120.
16
made in this Council by the representatives of Belgium and the United States that the operation
was necessary to save the lives of the hostages, and that is was a humanitarian mission, and
nothing more.”113
By discussing the necessity of the intervention, it seems that China accepts
the existence of the doctrine as a legal justification. Nonetheless it is still not clear how to
interpret the notion of ‘humanitarian’ in this statement, there is no direct indication that China
accepts the doctrine of humanitarian intervention.
The United Kingdom held that the United States and Belgium “have incontrovertibly
established the motive and justification of the operation,”114
and that “the object of the operation
was solely one of saving lives.”115
Hereby it is clear that the United Kingdom supported the
operation, moreover this could indicate the acceptance the usage of the doctrine as a legal
justification. Nonetheless the acceptance of the United Kingdom could also be founded upon
the request of the Congolese Government. France was more explicit why they accepted the
legitimacy of the operation. Their representative based the legality of the operation on the fact
that it “was duly authorized by the Government which is [...] the legal Government of the
Democratic Republic of the Congo.”116
This indicates that according to France the request of
the Congolese Government was the primary basis justifying the intervention.
Thus while it is not clear if the United States used the doctrine as a legal justification or a
political one, the statements made by the representatives of Belgium, the Soviet Union, China
and the United Kingdom support the assumption that the doctrine was interpreted as having a
legal value. However it is not clear which school of thought is supported by the supporters of
the intervention. Dubbing the intervention as being humanitarian in nature could indicate that
it is part of the broader right of humanitarian intervention, but no explicit support for the
doctrine of humanitarian intervention becomes apparent from this case. In the end the request
from the Congolese Government cannot be ignored when discussing the legitimacy of this
operation, especially when France based their support solely on this request and did not discuss
the doctrine.
E. The United States in the Dominican Republic (1965).
On the twenty-fourth of April 1965 a coup d’état took place in the Dominican Republic. The
uprising was aimed at ousting the leader of the junta government Donald Reid Cabral. On the
twenty-sixth it seemed that the military situation in the Dominican Republic had reached a
stalemate and that the civil authority had completely broken down. During this stalemate the
loyalists to the junta government requested the United States for a military intervention, the
United States turned this request down.117
However the Department of State instructed the United States embassy in the Dominican
Republic to request both parties involved in the conflict for an immediate ceasefire, in order to
allow a safe and orderly evacuation of United States citizens. The evacuation commenced on
the twenty-seventh, with the landing of about 50 United States marines, for the establishment
of a helicopter landing area and the facilitation of the evacuation operation.118
The next day the
113
Ibid., p. 26 at 122.
114
SC Meeting 1175, UN Doc. S/PV. 1175 (1964), p. 4.
115
Ibid.
116
SC Meeting 1176, UN Doc. S/PV. 1176 (1964), p. 15.
117
Lillich, Wingfield, & Meyen, 2002, pp. 58-59.
118
Ibid., pp. 59-60.
17
United States was informed by the head of the loyalists operations that “the junta was in no
position to guarantee the safety of Americans or other foreigners in Santa Domingo,”119
and
loyalists again requested a military intervention by the United States.120
On the same day President Johnson stated in a press release that he had “ordered the Secretary
of Defence to put the necessary American troops ashore in order to give protection to the
hundreds of Americans who are still in the Dominican Republic and to escort them safely back
to this country.”121
This position was reiterated in a letter to the Security Council, on the twenty-
ninth of April, where the Security Council was informed of America’s military presence in the
Dominican Republic for the protection of American nationals and on invitation of the
Dominican authorities.122
These circumstances would fulfil the first two conditions set by
Waldock, thereby the invocation of the doctrine is in line with the theory. Besides on the same
day the Organization of American States (hereinafter ‘the OAS’) decided to convoke a meeting
of the Ministers of Foreign Affairs, to address the situation.123
On the thirtieth of April,
President Johnson again invoked the ‘protection of nationals’ doctrine, but also added a third
argument for the intervention, “that people trained outside the Dominican Republic are seeking
to gain control.” 124
The following day President Johnson ordered new troops into the
Dominican Republic, which attempted to enforce a ceasefire between the two belligerent
parties. Still the President maintained that this mission was solely for the purpose of the
protection and evacuation of United States nationals.125
The next day another force of 6.500 men was sent to the Dominican Republic, but this time
Johnson did not rely on the protection of nationals argument but proclaimed what became to be
known as the ‘Johnson Doctrine’.126
This held that “[t]he American nations cannot, must not,
and will not permit the establishment of another Communist government in the Western
Hemisphere.”127
Finally on the sixth of May the OAS, which had already adopted a resolution
calling for a ceasefire,128
adopted a resolution calling for the creation of an Inter-American force
with the “sole purpose [...] that of cooperating in the restoration of normal conditions in the
Dominican Republic, in maintaining the security of its inhabitants and the inviolability of
human rights, and in the establishment of an atmosphere of peace and conciliation that will
permit the functioning of democratic institutions.”129
This force finally ended the hostilities,
and departed the Dominican Republic on the twenty-first of September 1966.130
In this case the doctrine was not used as an exclusive justification. It was combined with the
idea of regional peacekeeping under the auspices of the OAS, and the request from the
119
Ibid., p 60; SC Meeting 1196, UN Doc. S/PV. 1196 (1965), p. 14.
120
Statement by President Johnson, April 28, Dept. St. Bull. Vol. 52 No. 1351 (1965), p. 738.
121
Statement by President Johnson, April 28, Dept. St. Bull. Vol. 52 No. 1351 (1965), p. 738; SC
Meeting 1196, UN Doc. S/PV. 1196 (1965), p. 14.
122
Letter to President of Security Council, April 29, Dept. St. Bull. Vol. 52 No. 1351 (1965), p. 739; SC
Meeting 1196, UN Doc. S/PV. 1196 (1965), p. 15.
123
Tenth Meeting of the Ministers of Foreign Affairs (Final Act), May 1, 1965 – March 6, 1970, pp. 1-
2.
124
Statement by President Johnson, April 30, Dept. St. Bull. Vol. 52 No. 1351 (1965), p. 742.
125
Statement by President Johnson, May 1, Dept. St. Bull. Vol. 52 No. 1351 (1965), p. 743.
126
Lillich, Wingfield, & Meyen, 2002, p 62.
127
Statement by President Johnson, May 2, Dept. St. Bull. Vol. 52 No. 1351 (1965), p. 746; SC Meeting
1196, UN Doc. S/PV. 1196 (1965), pp. 16-17.
128
Tenth Meeting of the Ministers of Foreign Affairs (Final Act), May 1, 1965 – March 6, 1970, p. 9.
129
Ibid., p. 11.
130
Lillich, Wingfield, & Meyen, 2002, p 62.
18
Dominican Government. The legality of the operation is primarily based upon the latter
justification. Moreover it is not clear if the use of the doctrine had any legal value, and if so it
is also not clear what school of thought would legitimize the use. Nonetheless up until the
proclamation of the ‘Johnson Doctrine’ the conditions governing ‘protection of nationals’
doctrine were seemingly being fulfilled. The sending of troops to evacuate nationals is a
proportionate action to safeguard their lives and keep them from harm. Nonetheless by sending
in forces to enforce a ceasefire and later to prevent a communist Government from establishing
in the Western Hemisphere violates the proportionality of the doctrine. This could have been
the reason that in the end when the actions went beyond what could be legitimized by the
doctrine another justification was found and created.
As a reaction to the intervention the Soviet Union requested an urgent meeting of the Security
Council in order to discuss, as they called it, “the armed interference by the United States in the
internal affairs of the Dominican Republic.”131
The “act of aggression by the United States
imperialism [...] is, like the acts of the colonialists in the past, being engaged in on the outworn,
false pretext of “protecting American lives”,”132
and that it “constitutes nothing other than an
act of direct aggression against the people of that small country.”133
It is clear that the Soviet
Union interprets that the doctrine is being used as a legal justification and moreover rejects it.
Nonetheless it has to be noted that the representative also goes into great lengths arguing that
the circumstances would not legitimize the invocation of the doctrine.134
This indicates a
twofold approach of the Soviet Union. First they do not accept the existence or legitimacy of
the doctrine under international law and second if such a right should exist then the
circumstances would not allow such an ‘invasion’ by the United States. Moreover the draft
resolution proposed by them only condemns the intervention and does not mention the use of
the doctrine.135
In the end the restrictionists school of thought still seems to be applicable on
the views of the Soviet Union.
The Chinese representative noted that there was a difference between aggression and
intervention, and that “[t]he United States action in the Dominican crisis is admittedly an act of
intervention,”136
and that it “was intended to accomplish the dual purpose of protecting
American lives and forestalling a communist take-over.”137
Moreover China was satisfied with
the facts presented by the United States that supported the American pretexts.138
Besides China
accepted the doctrine as a legal justification, after reviewing the circumstances and the
arguments of the United States, this could indicate that the doctrine as such is according to
China a legitimate pretext.
The United Kingdom supported the intervention and thanked them for evacuating British
nationals.139
As to the legality of the action they held that the United States was requested “to
take steps to protect foreign nationals whose lives were in danger,”140
and that they “fully
understand [...] what prompted the emergency action taken by the United States
131
UN Doc. S/6316 (1965).
132
SC Meeting 1196, UN Doc. S/PV.1196 (1965) p. 3.
133
Ibid.
134
Ibid., pp. 3-5.
135
Union of Soviet Socialists Republics: draft resolution, UN Doc. S/6328 (1965).
136
SC Meeting 1202, UN Doc. S/PV. 1202 (1965), p. 4.
137
Ibid.
138
Ibid., pp. 4-5.
139
SC Meeting 1198, UN Doc. S/PV. 1198 (1965), p. 13.
140
Ibid.
19
Government.”141
Thus the acceptance of the United Kingdom is twofold, first the request from
the Dominican Government and second the ‘protection of nationals’ doctrine. This could
indicate that the request of the territorial sovereign could be crucial for the legality of the
doctrine as a legal justification.
The French representative stated that they “fully understand that with the onset of a situation
of civil war and the violent clashes taking place, the Government of the United States should
have been concerned for the safety of its nationals and should have wished to see their
evacuation.”142
Indicating that such circumstances were present which could legitimize the
intervention. But he continues “however, as in many similar cases in the past such operations
should be limited in their objective, in their duration and in the scope of the measures applied.
Should this not be the case we would have to recognize that, owing to the dispatch and landing
of a considerable number of United States troops, we are faced with a genuine armed
intervention the necessity of which is not apparent.”143
Thus indicating that the doctrine could
legitimize the intervention, if it is proportional to the purpose which is the protection of one’s
nationals. Nonetheless by examining the legitimacy of the pretext by the circumstances present,
France accepts the existence of such a pretext.
So again it can be concluded by the reactions of four permanent members that the doctrine was
used as a legal justification, and the statements indicate an acceptance of the use of the doctrine
as a legal justification. Moreover the lack of any address to the compatibility with the Charter
could indicate the view of a separate exception to the prohibition on the use of force.
F. Israel in Uganda (the Entebbe Incident, 1976).
On the twenty-seventh of June, 1976, an Air France flight was hijacked after take-off from
Athens’ airport. The aircraft was forced to divert to Benghazi, where it refuelled, and continued
to Entebbe airport in Uganda.144
The hijacked aircraft arrived at Entebbe on the twenty-eighth,
where the four hijackers were joined by six others. All the hostage-takers were Palestinian, and
members of the Palestinian Liberation Organizations.145
At Entebbe the passengers and crew
were taken into an airport building under guard of the hijackers.146
The hijackers demanded the
release of fifty-three Palestinian and pro-Palestinian prisoners, supposedly incarcerated in
Kenya, Switzerland, France, West Germany, and forty of them in Israel.147
According to Israel, though refuted by Uganda and its President Amin, it appeared that the
hijackers were aided by the Ugandan armed Forces.148
The next day all Israeli hostages were
separated and brought to another part of the airport. On the thirtieth of June, forty-seven non-
Israeli hostages were set free,149
and the next day 100 French hostages were also released by
the hijackers.150
The remaining Israeli hostages remained under guard by the hijackers with the
141
Ibid.
142
Ibid., p. 24.
143
Ibid.
144
SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 9 at 78; Margo, 1977, p. 306.
145
SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 3 at 23, p. 8 at 70; Sheehan, 1976-1977, p. 146.
146
SC Meeting 1939, S/PV. 1939 (1976), p. 3 at 24; Margo, 1977, p. 306.
147
SC Meeting 1939, S/PV. 1939 (1976), p. 4 at 27; Sheehan, 1976-1977, p. 146; Margo, 1977, p. 306.
148
UN Doc. S/12123 (1976), p. 3; SC Meeting 1939, UN Doc. S/PV. 1939, p. 9 at 80-81, 92-94;
Sheehan, 1976-1977, pp. 146-147; Margo, 1977, pp. 307-308.
149
SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 4 at 27.
150
Ibid., p. 4 at 28.
20
alleged support of Ugandan forces.151
After the release of all non-Israeli hostages, the hijackers
announced that they would still hold Israel responsible for fulfilling their demands.152
Unable and unwilling to comply with the demands, Israel decided on a rescue mission in order
to secure the release of the remaining hostages. The mission commenced on the third of July
when three Israeli aircraft flew into Entebbe airport, and after exchange of fire all the hijackers
and twenty of Ugandan soldiers were killed. In addition to the human losses a number of
Ugandan aircraft were damaged.153
Within the hour all the Israeli hostages were liberated, and
on board of a plane heading towards Israel.154
After the intervention a meeting of the Security
Council was requested by the Organization of African Unity, where they would have liked to
see the Israeli intervention condemned as an act of aggression towards the sovereign State of
Uganda. 155
This attitude towards the Israeli intervention gives a clear indication of a
restrictionists interpretation of the prohibition on the threat or use of force by the Members of
the Organization of African Unity.
Before the Security Council the Israeli representative held that “[t]he right of a State to take
military action to protect its nationals in mortal danger is recognized by all legal authorities in
international law,”156
and by quoting Bowett,157
Brierly158
and O’Connell159
used the theory of
a separate exception to the prohibition on the use of force if it is not aimed at the territorial
integrity of the sovereign. Moreover Israel also justified the use of the doctrine under the theory
of self-defence; “[t]he right of self-defence is enshrined in international law and in the Charter
of the United Nations and can be applied on the basis of the classic formulation, as was done in
the well-known Caroline Case” which “was the exact situation which faced the Government of
Israel.”160
Due to the fact that the doctrine was the only justification used in this case supports
the assumption that the doctrine has legal value and not being a political or moral justification,
moreover Israel followed the conditions set by Waldock in justifying the usage.161
The Soviet Union noted before the Security Council that “there exist no such laws in the world,
no moral or international laws, which could justify such aggressive action,”162
and that the
Israeli action “is an act of direct, flagrant aggression and outright violation of the Charter of
United Nations, especially of Article 2, paragraph 4.”163
Moreover as a reaction to the Israeli
representative the Soviet representative noted that “[h]is attempt to justify the act of aggression
that is committed by references to the right of States to defend their citizens was unfounded and
inadmissible.”164
Even under these circumstances the Soviet Union rejects the existence of the
doctrine as a legitimate justification for intervention. It is then without question that the Soviet
Union holds a restrictionists view on the usage of the doctrine.
151
Sheehan, 1976-1977, p. 147.
152
Margo, 1977, p. 308.
153
UN Doc. S/12124 (1976), p. 2; SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 4 at 31; Margo,
1977, p. 309.
154
Sheehan, 1976-1977, p. 147.
155
UN Doc. S/12126 (1976), p. 2; UN Doc. S/12128 (1976).
156
SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 13 at 106.
157
SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 13 at 106; Bowett, 1958, p. 87-88.
158
SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 13 at 107; Brierly, 1963, p. 427-428.
159
SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 13 at 108; O'Connell, 1970, p. 303-304.
160
SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 14 at 115
161
Ibid., p. 7-17.
162
SC Meeting 1941, UN Doc. S/PV. 1941 (1976), p. 17 at 152.
163
Ibid., p. 18 at 162.
164
SC Meeting 1942, UN Doc. S/PV. 1942 (1976), p. 22 at 195.
21
The People´s Republic of China, which in 1971 took over the permanent seat of the Republic
of China (nowadays Taiwan),165
considered the action by Israel as a “premeditated and naked
act of aggression committed against a sovereign State,”166
and “[i]t constitutes a gross violation
of the United Nations Charter.”167
Thereby completely rejecting the intervention. It has to be
noted that the doctrine was not mentioned at all by the Chinese representative, but as it was the
only justification it can at least be concluded that China did not accept the use of the doctrine
under these circumstances.
The representative of the United Kingdom stated that “[w]hat surely emerges very clearly from
all of this is the need to avoid a repetition of a situation in which, notwithstanding the
preoccupation which many of us have with the obligation of every State to respect the
sovereignty and territorial integrity of all States, a Government is driven to take unilateral action
within the territory of another State in order to ensure the safety of its citizens.”168
Next the
United Kingdom representative noted “that the Council should concentrate its attention [...]
towards the avoidance of such events in the future, rather than seeking to pass judgement on
what took place at Entebbe.”169
The lack of any discussion by the United Kingdom on the usage
of the doctrine in this case is surprising, because it could have supported their previous opinion
on the subject. Nonetheless the United Kingdom does not reject the legality of unilateral action
from a Government, it only states that such action must be avoided which indicates that such
action is not preferred but could still be considered legal.
The French representative held that “[a]t first sight there would not seem to be any doubt that
the surprise attack by an armed force on a foreign airport for the purpose of achieving an
objective by violence indeed constituted a violation of international law.”170
But remembering
that “[t]he Israeli intervention had the purpose and effect of freeing certain Israeli citizen,”171
and “[i]f there was a violation of the sovereignty of Uganda, it was not in order to infringe the
territorial integrity or the independence of that country but exclusively to save endangered
human lives.”172
Moreover France mentions that “[o]ne could well invoke here article 2 of the
Definition of Aggression [...] which deals with what is “prima facie” an act of aggression and
says that it is permissible to judge it “in the light of other relevant circumstances”.”173
This
contribution by the French representative indicates that France accepts the doctrine as a legal
justification, and moreover tries to argue that the doctrine does not have to be in conflict with
the Charter and as such could be seen as a separate exception to article 2(4).
The United States held that “Israel’s action in rescuing the hostages necessarily involved a
temporary breach of the territorial integrity of Uganda. Normally, such a breach would be
impermissible under the Charter of the United Nations. However, there is a well-established
right to use limited force for the protection of one’s own nationals from an imminent threat of
injury or death in a situation where the State in whose territory they are located is either
unwilling or unable to protect them. The right, flowing from the right of self-defence, is limited
165
GA Resolution 2758, UN Doc. A/RES/2758(XXVI) (1971).
166
SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 24 at 224.
167
Ibid.
168
SC Meeting 1940, UN Doc. S/PV. 1940 (1976), p. 12 at 99.
169
Ibid.
170
SC Meeting 1943, UN Doc. S/PV. 1943 (1976), p. 7 at 43.
171
Ibid.
172
Ibid., p. 7 at 45.
173
Ibid.
22
to such use of force as is necessary and appropriate to protect threatened nationals from
injury.”174
These requirements were met by Israel according to the United States.175
Thus the
United States accepted the doctrine in this case as a legitimate justification, and concluded that
it is a part of the inherent right of self-defence. The requirements cited for such a right of self-
defence are very similar to the Caroline criteria, which hold the customary rules concerning
self-defence,176
and the conditions set by Waldock. Moreover no reference has been made for
the view that the attack on one’s nationals constitutes an armed attack on the State of those
nationals. Indicating the acceptance of the view that the traditional customary right of self-
defence included the protection of one’s nationals abroad and has survived the adoption of the
Charter. Moreover the detailed explanation of the legality of the doctrine indicates the United
States trying to develop customary evidence for the doctrine being a legally accepted
justification.
G. France in Mauritania (1977 – 1979).
The ‘Fronte Popular para la Liberación de Sakiet el Hamra y Rio de Oro’, better known as the
Polisario Front, was established in 1973. It had the object of achieving self-determination of
the Western Sahara. In their pursuance of this objective they launched guerrilla attacks against
Mauritania, which had annexed a third of the Western Sahara in 1975. These attacks resulted
in the signing of military agreements between Mauritania and France.177
On the first of May
1977 Polisario commandos took six French nationals hostage after they attacked the City of
Zouérate, a town in the north-eastern part of Mauritania. Two more French hostages were taken
on the twenty-fifth of October.178
As a reaction to these abductions France increased their assistance to Mauritania with
commencing operation Lamentin, which had the dual purpose of assisting the Mauritian forces,
as well as the protection of French nationals. 179
The French intervention that followed
encompassed the sending of Jaguar bomber planes to support the 12.000 French forces who
were already assisting the Mauritanian troops.180
These planes conducted air-strikes on the
Polisario forces on the twelfth, thirteenth, and eighteenth of December.181
Eventually the
twenty-third of December negotiations between France and the Polisario Front led to the release
of all eight French hostages.182
In a letter to the Security Council on the twenty-first of December Libya, which backed the
Polisario Front,183
expressed its concern about the statements coming from the French Ministry
of Foreign Affairs, and the Minister of Defence, that “[t]hese actions and statements by France
are a reversion of the old methods of colonialism, for they only can be considered as acts of
direct interference in the affairs of the African countries.”184
Reacting to this letter, France
legitimized their actions and statements by stating that “France cannot fail to take an interest in
174
SC Meeting 1941, UN Doc. S/PV. 1941 (1976), p. 8 at 77.
175
Ibid., p. 8 at 78-81.
176
Shaw, 2008, p. 1131.
177
Rouvez, 1994, p. 167.
178
Lillich, Wingfield, & Meyen, 2002, p. 100.
179
Rouvez, 1994, p. 167.
180
Lillich, Wingfield, & Meyen, 2002, p. 100.
181
Rouvez, 1994, pp. 167-168.
182
Rouvez, 1994, p. 168; Lillich, Wingfield, & Meyen, 2002, p. 100.
183
Rouvez, 1994, p. 167.
184
UN Doc. S/12500 (1977).
23
the fate of its nationals who are contributing to the development in Mauritania” and “[i]n the
face of the persistent threats against our compatriots [...] it is the duty of the French
Government, as it would be the duty of any Government in the world with respect to its
nationals abroad, to provide protection for them.” In line with this reasoning French “air force
units [...] may take action to help maintain the security of [its] nationals in Mauritania when the
latter are endangered, doing so only at the request of the Mauritanian Government.”185
Thus
where France stresses that it is their duty to provide protection for their nationals abroad, it
places special emphasis on the fact that Mauritania requested such assistance. This indicates
that at least the request of the territorial sovereign was essential for the legality of the air
bombing campaign conducted by the French forces. This conclusion is supported by a statement
made by former French ambassador to Gabon, Pierre Dabezies, mentioning three conditions
which are necessary before France is able to intervene; “[t]he existence of a defence agreement
between France and the country involved; an explicit demand by the latter; and freedom of
decision for the French Government, which, in no instance, could be committed automatically.”
But he added that “French interventions depend less on precise criteria than on
circumstances,”186
which could indicate that these conditions are more guidelines than strict
legal criteria.
In May of 1978 French Jaguar bombers were again used against the Polisario commandos
under the same double justification of the protection of their nationals upon the request of the
territorial sovereign. The French Minister of Foreign Affairs noted that the locations where the
air strikes had taken place, were places where French nationals were in danger.187
Finally the
last intervention under the same justification took place in 1979, and encompassed again an
aerial operation against the Polisario Front.188
Eventually an agreement was reached between
Mauritania and the Polisario Front in august of 1979, whereby Mauritania relinquished all its
claims on their territories in the Western Sahara.189
Justifying the last use of force in Mauritania the French Minister of Foreign Affairs stressed
before Parliament that “[o]ne cannot claim that our military action in Mauritania, which was in
conformity of Article 51 of the UN Charter in particular, has been contrary to the international
obligations of France, nor the requirements of international law.”190
In this case the military
agreements between France and Mauritania, as well the request for assistance from the latter,
have had a great importance in justifying the legality of the intervention. It can be concluded
that the legality of the interventions were primary based upon the collective self-defence by the
request from Mauritania, and not an assertion that the threat of the French nationals gave France
the right to defend themselves.
H. France, Belgium and the United States in Zaire (1978).
On the eleventh and twelfth of May 1978 Katangese rebels entered the province of Katanga in
the south-east of Zaire, and occupied Kolwezi. During the attack and in its aftermath around
900 people were killed, of which 120 of them were European nationals.191
As a reaction to this
violence and in a response to the request of the Government of Zaire French and Belgian troops
185
UN Doc. S/12503 (1977).
186
Rouvez, 1994, p. 133.
187
Lillich, Wingfield, & Meyen, 2002, p. 101.
188
Ibid., p. 103.
189
Rouvez, 1994, p. 168.
190
Lillich, Wingfield, & Meyen, 2002, p. 103.
191
Ibid., p. 100.
24
landed near Kolwezi on the nineteenth and twentieth of May to provide military assistance to
the Zairian forces.192
The Belgian Prime Minister Tindemans, justifying the intervention, stated before Parliament
that Zaire “is a sovereign State where Belgium cannot simply intervene and that, consequently,
an authorization from the Zairian authorities was required to conduct a rescue operation.”193
Thus whereas Belgium on two previous occasions invocated the doctrine as a legitimate
justification for their intervention into the Congo, now they hold that authorization from the
territorial sovereign is required when conducting such operations. Thereby indicating that even
when the doctrine is accepted as a legitimate justification, authorization from the territorial
sovereign is still an essential condition for the intervention to be legitimate.
The French President Giscard d’Estaing justified the operation “as a normal exercise of the
legitimate and inalienable right of France to protect its citizens abroad.”194
Thereby deviating
from the condition that a French intervention must be based upon the existence of a defence
agreement with the territorial sovereign. Such a treaty did not exist between France and Zaire.195
This indicates that, as the former Ambassador to Gabon stated, the decision to intervene
depends more on the circumstance than on the formal conditions. Moreover the statement of
the French President indicates the acceptance of the doctrine being a legitimate justification for
a forcible intervention. Nonetheless it is not clear how the doctrine must be seen in the light of
the prohibition on the use of force, as a humanitarian, self-defence or separate exception.
Moreover it does not indicate whether the authorization of Zairian Government was essential
for the legitimacy of the intervention.
Even though the United States did not commit ground troops, they supported the French, and
Belgian intervention by air support,196
and had some 2000 paratroopers on alert.197
President
Carter stated that “[o]ur action in Zaire was an appropriate and measured response to the
situation”198
and that “[o]ur action to support the rescue efforts in Zaire was taken pursuant to
present law.”199
Thereby accepting the legitimacy of the rescue operation, but not indicating
whether it was legitimate because it was requested by the territorial sovereign or because the
doctrine is applicable in this situation.
I. France in Chad (1978-1979).
The rebel group Frolinat (Front de Libération Nationale du Tchad) caused unrest in Chad, and
started to gain ground in 1975 when the Chadian President Malloum ordered the withdrawal of
all French troops stationed in Chad.200
In February 1978, having taken advantage of the French
withdrawal, the Frolinat group had conquered and now controlled strategic Chadian cities. At
this time the French Minister of Foreign Affairs concluded that the 4.000 French citizens, living
in Chad, were not in immediate danger.201
When the rebels approached the Chadian capital of
192
Ruys, 2008, p. 241.
193
Ibid., p. 241.
194
Lillich, Wingfield, & Meyen, 2002, p. 101.
195
Rouvez, 1994, p. 133.
196
Ibid., p. 338.
197
Odom, 1993, pp. 74-75.
198
News Conference May 25th
, Dept. St. Bull. Vol. 78 No. 2016 (July 1978), p. 17.
199
Ibid., p. 18.
200
Rouvez, 1994, p. 154.
201
Lillich, Wingfield, & Meyen, 2002, pp. 101-102.
25
N´Djamena to within 250 kilometres, where most of the French nationals lived, the cooperation
accord of 1976 was invoked to justify any French action taken against the rebels. France also,
upon request by the Chadian Government, deployed 2.500 troops to Chad to support such
actions.202
Their objective was described by the French Foreign Minister as “helping the
legitimate government find a political compromise to the rebellion.”203
After three French
nationals were killed, France stepped up their military efforts. On the twenty-seventh of April
1978 Jaguar bomber planes provided air support to cover the Chadian forces defending Salal,
and on the 19th
of May 100 troops helped Chadian forces opposing a Frolinat advance at Ati.
All this time France never made an attempt to evacuate their nationals.204
These actions of intervention or rather military assistance by France are not legitimized by the
usage of the doctrine. But in the winter of 1979 the Chadian Government again requested the
assistance of France against the rebels. On the fifteenth of February France started the
preparations for the evacuation of their nationals. The evacuation commenced when four French
nationals lost their lives in the conflict. In the end France did not only repatriate their own
citizens but also nationals from other countries. No additional French forces were used for the
evacuation, except for those already in Chad.205
The actions taken by France in this case follow the conditions mentioned by Pierre Dabezies
and also fulfil the conditions set by Waldock. Moreover it supports the view that France would
only intervene, even when the lives of their nationals are in danger, upon the request of the
territorial sovereign. Also the lack of international comments on these actions supports the
legitimacy of this approach. Nonetheless there is no indication to conclude that France does not
support the unilateral use of the doctrine when their nationals are threatened and no assistance
is requested or consent given by the territorial sovereign.
J. The United States in Iran (1980).
On the fourth of November 1979 the United States’ Embassy in Teheran was stormed by
hundreds of armed Iranian students.206
In the course of the attack all the personnel present at
that time was taken hostage, moreover other United States personnel and citizens were also
taken hostage an brought to the embassy.207
The militants demanded from the United States that
the former Shah of Iran, who stayed in the United States, should be returned to Iran for trial.
This was refused by the United States Government.208
The next day the Iranian Government
fell and the subsequent Government, led by Ayatollah Khomeini, endorsed the actions of the
militants.209
Thereby it was clear that the Iranian Government was unwilling to release the
American citizens.
Among other efforts by the United States to secure the release and return of the hostages, a
meeting of the Security Council was requested in order to discuss ways to obtain the release of
202
Rouvez, 1994, p. 155.
203
Lillich, Wingfield, & Meyen, 2002, p. 102.
204
Ibid.
205
Ibid.
206
D'Angelo, 1980-1981, p. 506.
207
I.C.J. U.S. v Iran: United States Diplomatic and Consular Staff in Teheran (merits), I.C.J. Reports
1980, p. 13.
208
Lillich, Wingfield, & Meyen, 2002, p 64; Dept. St. Bull. Vol. 79, p. 50.
209
D'Angelo, 1980-1981, p. 507
26
their nationals.210
On the fourth of December resolution 457 was adopted, which called upon
the Iranian Government for the immediate release of all United States personnel.211
When this
call from the Security Council was not followed by Iran, another resolution was adopted also
demanding the release of the hostages. Moreover this resolution stated that when the Iranian
Government failed to comply with the resolution, the Security Council would adopt “effective
measures under Articles 39 and 41 of the Charter of the United Nations.”212
In the meantime the case was brought before the International Court of Justice (hereinafter ‘the
ICJ’),213
which ordered in a provisional measure on the 15th
of December demanding the
“immediate release, without any exception, of all persons of United States nationality who are
or who have been held in the Embassy [...] or have been held as hostages elsewhere, and afford
full protection to all such persons.”214
Nonetheless the Iranian Government still refused to
comply with any such request.215
Pursuant to the failure of Iran to release the hostages a draft
resolution was proposed by the United States during the meeting of the Security Council on the
seventh of January. This draft resolution would institute broad economic sanctions against
Iran.216
But on the thirteenth the resolution was vetoed by the Soviet Union.217
After the failure of the diplomatic, political, and judicial demands for the release of the hostages
President Carter approved a plan for a military rescue mission on the eleventh of April 1980.218
The mission was carried out on the twenty-fourth, but needed to be cancelled before completion
due to mechanical problems. During the withdrawal of the American forces two helicopters
collided, which left eight American crew members dead and others injured.219
According to statements from the White House, and President Carter the rescue mission was
“ordered for humanitarian reasons, to protect the national interests of this country, and to
alleviate international tensions,”220
and “ordered this rescue mission [...] in order to safeguard
American lives.”221
Moreover the United States, pursuant to article 51 of the Charter, reported
the mission to the Security Council claiming it was an exercise of its “inherent right of self-
defence, with the aim of extracting American nationals who have been and remain the victims
of the Iranian armed attack on our Embassy.”222
The legal argument used here is in line with
the arguments used justifying the Israeli intervention in Uganda. This strengthens the assertion
that the United States is accepting the usage of the doctrine as a part of the right to self-defence.
Nonetheless it is not clear how the doctrine would be a part of the right of self-defence, as a
210
Lillich, Wingfield, & Meyen, 2002, p 64.
211
SC Resolution 457, UN Doc. S/RES/457 (1979).
212
SC Resolution 461, UN Doc. S/RES/461 (1979).
213
I.C.J. U.S. v Iran: United States Diplomatic and Consular Staff in Teheran (application), 29
November 1979.
214
I.C.J. U.S. v Iran: United States Diplomatic and Consular Staff in Teheran (provisional measures),
I.C.J. Request for the Indication of Provisional Measures, 15 December 1979.
215
I.C.J. U.S. v Iran: United States Diplomatic and Consular Staff in Teheran (judgement), I.C.J.
Reports 1980, p. 35.
216
UN Doc. S/13735 (1980), pp. 2-3.
217
Dept. St. Bull. Vol. 80 No. 2035 (February 1980), p. 71; the German Democratic Republic also voted
against the resolution.
218
D'Angelo, 1980-1981, p. 508.
219
White House Statement, 25 April 1980, Dept. St. Bull. Vol. 80 No. 2039 (June 1980), p. 38.
220
Ibid.
221
Presidents Statement, 25 April 19801, Dept. St. Bull. Vol. 80 No. 2039 (June 1980), p. 38.
222
UN Doc. S/13908 (1980).
27
part of the old customary right, or that the attack on one’s nationals constitutes an armed attack
in the sense of Article 51 of the Charter.
In a reaction to the mission Iran denounced the raid as an act of war in which the United States
invaded Iranian territory and did not respect international law. 223
Nonetheless Iran did not
request a meeting from the Security Council to consider the legality of the mission. They only
complained about “the military aggression of the United States.”224
No other communications
or discussion took place within the Security Council concerning the incident.225
The statements
made by Iran clearly support the restrictionists school of thought concerning the prohibition on
the use of force, much in line with the previous attitude adopted by the Soviet Union on the
subject.
Even though the intervention was condemned after the fact by the Soviet Union, China, Saudi
Arabia, India, Cuba, and Pakistan, and supported by the United Kingdom, Italy, West Germany,
the European Economic Community, Australia, Israel, and Egypt, the reactions did not concern
their views on the usage of the doctrine as a legal justification by the United States.226
In its final judgement the International Court of Justice noted that “[n]o doubt the United States
Government may have had understandable preoccupations with respect to the well-being of its
nationals held hostage in its embassy for over five months. [...] Nevertheless, in the
circumstances of the present proceedings, the Court cannot fail to express its concern in regard
to the United States’ incursion into Iran,”227
and that “[t]he Court therefore feels bound to
observe that an operation undertaken [during the hearings], from whatever motive, is of a kind
calculated to undermine the respect of the judicial process in international relations.”228
Nonetheless “the Court must point out that neither the question of the legality of the operation
of 24 April 1980, under the Charter of the United Nations and under general international law,
nor any possible question of responsibility flowing from it, is before the Court.”229
Thus even
though the United States got a reprimand regarding the timing of the intervention, the Court
could not and did not pass any judgment on the legality of the intervention under international
law.
This case clearly shows that the acceptance of the doctrine is primarily based on the basis of
capitalist versus communist countries and as such the legitimacy of this and other operations
depends on which side intervenes. Nonetheless it has to be noted that even though the countries
rejecting the legitimacy of the intervention did not explicitly reject the existence of the doctrine,
which could indicate that they could accept the doctrine under other circumstances.
K. The United States in Grenada (1983).
In the beginning of October 1983 the Grenadian Government under Prime Minister Maurice
Bishop was overthrown by a resistance movement led by Deputy Prime Minister Bernard
Coard. On the fourteenth Bishop was put under house arrest, and when his supporters tried to
223
D'Angelo, 1980-1981, p. 509.
224
UN Doc. S/13915 (1980), p. 2.
225
Report of the Security Council 16 June 1979 – 15 June 1980, UN Doc. A/35/2(SUPP), p. 49.
226
Eichensehr, 2008, p. 456; Lillich, Wingfield, & Meyen, 2002, p 67.
227
I.C.J. U.S. v Iran: United States Diplomatic and Consular Staff in Teheran (judgement), I.C.J.
Reports 1980, p. 43 at 93.
228
Ibid.
229
Ibid., p. 43 at 94.
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014
The Forcible Protection of Nationals Abroad 8 October 2014

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The Forcible Protection of Nationals Abroad 8 October 2014

  • 1. THE FORCIBLE ‘PROTECTION OF NATIONALS ABROAD’ DOCTRINE: A HISTORIC RIGHT USED TODAY. By: Jeroen Alexander Thijs. Student Number: 3267229. Supervisor: Otto Spijkers. Master Thesis. Master Programme in Public International Law. Utrecht University. Date: 8 October 2014.
  • 2. 1 ABSTRACT. Recent events in the Middle East and Ukraine have shown that in the beginning of the twenty- first century the world is still a dangerous place. What rights do States have today to protect their nationals outside of their borders when those nationals are threatened with injury due to hostage situations or armed conflict? The forcible ‘protection of nationals abroad’ doctrine, which could give States the right to intervene when their nationals are threatened, has been used to justify forcible interventions by States abroad. This historic right has been controversial since the adoption of the Charter of the United Nations with among its main principles the prohibition on the threat or use of force. Scholars are divided about the legitimacy of the doctrine and its place within the framework of the prohibition on the threat or use of force. The thesis examines ‘concrete’ customary evidence to see if there is support for the legitimacy of the doctrine under international law and the acceptance of it by the international community, what conditions should govern the doctrine before it can be invoked, and how would this doctrinal right be compatible with the prohibition on the threat or use of force of the Charter of the United Nations? In the end it is concluded that there is, at least at the moment, not enough ‘concrete’ customary evidence supporting acceptance of the doctrine by the international community and legitimacy of the doctrine under international law. Nonetheless recent interventions indicate a change in attitude towards an acceptance or acquiescence by the international community on the use of the doctrine. The thesis further concludes what rules should govern when the doctrines existence and legitimacy is accepted on the basis of the ‘concrete’ customary evidence, and how these conditions would legitimize the use of the doctrine under the inherent right to self-defence of Article 51 of the Charter of the United Nations. TABLE OF CONTENTS. INTRODUCTION.................................................................................................................... 2 PART I. ..................................................................................................................................... 3 A. The ‘protection of nationals’ doctrine............................................................................. 3 B. Article 2(4) of the Charter of the United Nations. .......................................................... 4 C. Doctrinal Debate. ............................................................................................................ 5 PART II..................................................................................................................................... 7 A. The United Kingdom and France in Egypt (the Suez Crisis, 1956)................................ 8 B. United States in Lebanon (1958)................................................................................... 11 C. Belgium in the Congo (1960)........................................................................................ 12 D. Belgium and the United States in the Congo (1964)..................................................... 14 E. The United States in the Dominican Republic (1965). ................................................. 16 F. Israel in Uganda (the Entebbe Incident, 1976).............................................................. 19 G. France in Mauritania (1977 – 1979).............................................................................. 22 H. France, Belgium and the United States in Zaire (1978)................................................ 23 I. France in Chad (1978-1979). ........................................................................................ 24 J. The United States in Iran (1980)................................................................................... 25 K. The United States in Grenada (1983)............................................................................ 27
  • 3. 2 L. The United States in Panama (1989)............................................................................. 30 M. France in Gabon (1990)............................................................................................. 32 N. France and Belgium in Rwanda (1990)......................................................................... 33 O. France in Chad (1990)................................................................................................... 34 P. France and Belgium in Zaire (1991 and 1993). ............................................................ 35 Q. The Multinational Evacuation Operation in Rwanda (1994)........................................ 36 R. France in the Central African Republic (1996)............................................................. 37 S. The Russian Federation in Georgia (2008). .................................................................. 37 T. The Russian Federation in Ukraine (Crimea, 2014). .................................................... 39 PART III. ................................................................................................................................ 41 A. Evaluation...................................................................................................................... 41 B. Conclusion..................................................................................................................... 48 C. Further Research. .......................................................................................................... 49 BIBLIOGRAPHY. ................................................................................................................. 49 INTRODUCTION. Unrest in the Middle East, Northern and Sub-Saharan Africa, and Ukraine show how dangerous the world in the beginning of the twenty-first century still is. The number of kidnappings by radicalized Islamic organizations of foreign nationals, and the intervention of the Russian Federation in Ukraine justified by their wish to protect the Russian population in Ukraine, leads to the question which legitimate actions States could take under international law to protect their citizens outside of their borders. The question is not a new one, and has been a major source of debates by legal scholars, the Security Council, and the General Assembly of the United Nations. The doctrine on which raging debates are held is that of the forcible ‘protection of nationals abroad’ doctrine (hereinafter ‘the ‘protection of nationals’ doctrine’ or ‘the doctrine’). A number of States have claimed to have a right to forcibly protect their nationals abroad when those are threatened with injury. But the division of the academic community on the legitimacy of this doctrine results in a grey area on the stance of international law. Nonetheless due to the reasons stated above the debate on this topic is now still as important as it was before. Moreover the growing influence of non-State actors on the playing-field of international law, largely in conflict and hostage situations, stresses the importance. This is because the position of these actors under international law is also unclear. With the doctrinal stand-off between academic opponents and supporters of the doctrine it is difficult, purely on theoretical grounds, to find a way out of the impasse. Customary evidence could indicate an acceptance or rejection of the doctrine under international law. The thesis will therefore discuss the following research-question: is there ‘concrete’ customary evidence supporting the legitimacy and the acceptance of the ‘protection of nationals’ doctrine by the international community, what conditions should govern the doctrine before it can be invoked, and how would this doctrinal right be compatible with the prohibition on the threat or use of force of the Charter of the United Nations?
  • 4. 3 For a good understanding of the doctrine and the legal debate, Part I examines the theory behind the doctrine by assessing academic literature and primary legal sources. The examination focusses on the theoretical rules governing the doctrine, its relationship with the prohibition on the threat or use of force and a summary of the different schools of thought discussing the legality of the doctrine in light of that prohibition. The second Part compares the theoretical framework discussed in Part I with ‘concrete’ customary evidence portrayed by twenty post-Charter interventions where the doctrine was invocated as at least one of the justifications. ‘Concrete’ customary evidence encompasses the explicit use of the doctrine by States justifying an intervention, and statements and actions made by other States reacting to the invocation of the doctrine, as opposed to deducing customary evidence of the doctrine from other statements or actions by States not directly in relation to the doctrine. Subsequently the ‘concrete’ customary evidence will be analysed in order to conclude if the international community supports the existence and legitimacy of the doctrine. This ‘concrete’ customary evidence will be found by analysing, where possible, Security Council, General Assembly and State documents. This method has been chosen in order to ensure that the research is as objective as possible by limiting the possible subjective interpretations of other customary evidence not directly concerned with the doctrine. The final Part III of the thesis evaluates the findings of Part II. The evaluation combines the relevant historic circumstances, the theory of Part I and the analyses of Part II, thereby answering the research questions and explains the authors view on the use of the doctrine in the future. PART I. Before a thorough examination of ‘concrete’ customary evidence is possible it is necessary to establish the theoretical framework where the doctrine should be a part of. First the theory governing the doctrine will be discussed, followed by an examinations of the friction of the doctrine with the Charter of the United Nations, and finally the most prominent schools of thought used in the doctrinal debate, rejecting or accepting the legality of the use of the doctrine as a justification for intervention, will be addressed. A. The ‘protection of nationals’ doctrine. One of the first writers mentioning a right to protect one’s nationals abroad was Vattel.1 In the eighteenth century he asserted that “[w]hoever uses a citizens ill, indirectly offends the state, which is bound to protect this citizen; and the sovereign of the latter should avenge his wrongs, punish the aggressor, and, if possible, oblige him to make full reparation; since otherwise the citizen would not obtain the great end of the civil association, which is safety.”2 He thereby indicated that when one’s national is ill-treated by another State, the former State has got the right to use force to ensure that citizens safety against the latter State. Nowadays scholars and States tend to define the doctrine with three conditions as they were spelled out by Waldock.3 1 Vattel, 2008. 2 Ibid., p. 298 3 Waldock, 1952, p. 467; Dinstein, 2011, pp. 255-256; Thompson, 2012, pp. 628-629; Eldred, 2008, p. 255; this definition was also explicitly used by the United Kingdom justifying the Suez intervention in 1956: PREM 11/1126, on the right of intervention.
  • 5. 4 First there must be an imminent threat of injury to nationals, second a failure or inability on the part of the territorial sovereign to protect them and third the measures taken must be strictly proportional to the object of protecting them against injury.4 It is generally accepted that the ‘protection of nationals’ doctrine was considered to be lawful in the nineteenth and the beginning of the twentieth century.5 This is supported by the Anglo- Spanish arbitrations of 1925,6 where it was concluded that “it cannot be denied that at a certain point the interest of a State in exercising its protection over its nationals [...] can take precedence over territorial sovereignty, despite the absence of any conventional provisions. The right of intervention has been claimed by all States; only its limits are disputed.”7 Nowadays the legality of the doctrine as a justification for a forcible intervention in another State is, at best, questionable.8 The adoption of the Charter of the United Nations, with the prohibition on the threat or use of force as one of its main principles,9 complicates the acceptance of the legality of a right permitting the unilateral use of force in another State under certain circumstances. B. Article 2(4) of the Charter of the United Nations. After the horrors of the Second World War the Charter of the United Nations (hereinafter ‘the Charter’) was adopted in October 1945. One of the main principles of the United Nations and its Members is the prohibition on threat or use of force. Article 2(4) of the Charter reads: “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 matter inconsistent with the Purposes of the United Nations.” Even though this principle only refers to the Members of the United Nations, article 2(6) declares that “the Organization shall ensure that States which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.” Presently, the Charter is so widely ratified that it is generally accepted that article 2(4) has to be considered as part of customary international law and a jus cogens norm,10 and as such binding upon the whole international community.11 Nonetheless the extend of this prohibition remains a subject of debate. The prohibition on the threat or use of force was elaborated upon in the 1970 Declaration on Principles of International Law (hereinafter ‘the Declaration’). First, aggressive wars constitute a crime against peace, for which States will be responsible under international law. Moreover States will have a duty to refrain from using propaganda for aggressive wars. Second, States have a duty to refrain from threatening or using force to violate existing boundaries, lines of demarcation, or as a means of solving international disputes. Third, there is a duty for States to refrain from actions of reprisal involving the use of force. Fourth, force may not be used to deprive peoples of their inherent right to self-determination and independence. And finally, 4 Waldock, 1952, p. 467. 5 Ruys, 2008, p. 235; O'Connell, 1970, p. 303-304; for pre-Charter interventions under the justification of the doctrine see: Lillich, Wingfield, & Meyen, 2002, pp. 25-36. 6 Anglo-Spanish Arbitrations (1925), Reports of International Arbitral Awards Vol. II, pp. 615-742. 7 Bowett, 1958, pp. 87-88. 8 Shaw, 2008, p. 1145; Eldred, 2008, p. 254; Grimal & Mellin, 2011, p. 541. 9 Article 2(4) of the Charter of the United Nations (1945). 10 Thompson, 2012, p. 634. 11 Shaw, 2008, p. 1123.
  • 6. 5 States have a “duty to refrain from organising, instigating, assisting or participating in acts of civil strife or terrorist acts in another State” and must not encourage the organization of armed bands, irregular forces for the incursion into the territory of another State.12 It must be noted that it is debated whether the Declaration does constitute a binding document. Nonetheless the text represents an important contribution to clarify the key principles in the Charter,13 following the example of the International Court of Justice.14 When one takes this declaration into consideration, it is clear that a number of pre-Charter practices are not allowed anymore. But is this equally true for the unilateral use of force in pursuance of the protection of one’s nationals? The prohibition mentioned in article 2(4) is not absolute, two exceptions to it are explicitly mentioned in the Charter. The first exception is when the Security Council of the United Nations (hereinafter ‘the Security Council’) mandates the use of force by a decision under Chapter VII of the Charter, in cases when it “determine[s] existence of any threat to the peace, breach of the peace, or acts of aggression.”15 The second exception to the prohibition is the use of force in cases of self-defence. Every Member has got “the inherent right of individual and collective self-defence if an armed attack occurs against [it].”16 A strict interpretation of the prohibition would lead to the conclusion that any use of force that is not pursuant to these two exceptions violates the prohibition on the threat or use of force. C. Doctrinal Debate. Even though the ‘protection of nationals’ doctrine is not explicitly mentioned as an exception in the Charter, scholars continue to disagree whether the doctrine is a legitimate justification for the use of force. The two schools of thought in the doctrinal debate are either the ‘restrictionists’ school or that of the ‘counter-restrictionists’.17 The restrictionists hold that the doctrine is not a legitimate justification for the use of force against or in another State. The theory is based on three arguments. First it holds that the principal goals of the United Nations are the maintenance of international peace and security. Second it argues that the United Nations has a monopoly on the use of force, except in cases of self-defence pursuant article 51 of the Charter. Finally it asserts that if States were allowed to use force for any other purpose than self-defence, they would be provided with a ready legal pretext for geopolitical intervention.18 This is a legitimate point where it stresses that States should not be able to intervene in other countries when it is not under attack or a part of a conflict, and that a right to intervene on other grounds could surpass the idea of the prohibition of Article 2(4) and the peaceful settlement of disputes. Moreover also the restrictionists narrow interpretation of the inherent right of self-defence of Article 51 of the Charter would supports this assumption. Nonetheless such a narrow interpretation of the Article 2(4) could strip a State of enforcing one of its main obligations, to protect their own nationals from harm. According to the restrictionists a State is only allowed to use force in self-defence after an armed attack 12 Declaration on Principles of International Law concerning Friendly Relations and Co-operations among States in Accordance with the Charter of the United Nations (1970). 13 Rosenstock, 1971, p. 735. 14 Military and Paramilitary Activities Case (Nicaragua v United States), I.C.J. Reports 1986, para. 191. 15 Art. 39 Charter of the United Nations (1945). 16 Art. 51 Charter of the United Nations (1945). 17 Eldred, 2008, p. 254; Gordon, 1977, p. 123; Arend & Beck, 1993, p. 73. 18 Arend & Beck, 1993, p. 105.
  • 7. 6 upon its own State territory. There is a clear distinction being made between an armed attack upon nationals in another State and an armed attack upon a State’s own territory.19 Thus the restrictionists school interprets article 2(4) of the Charter as a general and absolute prohibition on the use of force. Thereby completely blocking any possibility to assert that the doctrine could be part of legitimate self-defence or another exception to the prohibition. On the other hand the counter-restrictionists maintain that the doctrine can be a legitimate justification for the use of force.20 Three separate perspectives, justifying the use of the ‘protection of nationals’ doctrine, predominate in this school. First the idea that the use of force in pursuance of the protection of one’s nationals abroad does not violate article 2(4) of the Charter, and thus constitutes a third exception to the prohibition.21 Second the view that the doctrine is a form of unilateral humanitarian intervention.22 And third the notion that the doctrine is a legitimate exercise of the State’s inherent right to self-defence. 23 A brief explanation of the rationale of these different perspectives is needed in order to be able to recognize them in the State practice. The rationale behind the theory that the doctrine does not violate the prohibition on the threat or use of force lies in the text of article 2(4) of the Charter. As the doctrine is not aimed against the territorial integrity or political independence of any State it does not violate those aspects of a State’s sovereignty and cannot violate the prohibition.24 The general assertion, at the basis of this theory, is that it is not the intention of the intervening State to “usurp the sovereign government or annex its territory; it is instead focused on the rescue of its citizens in accordance with the doctrine.”25 When such an interpretation of the prohibition is accepted then there could be more than just one extra exception to the prohibition on the threat or use of force, for example the protection of vital interests.26 Such a conclusion would mean that every forcible action in another State could be justified when it is not aimed at the territorial integrity or the political independence of a State. This would seriously undermine the effectiveness of Article 2(4) of the Charter and would confirm the concern the restrictionists have on a readily legal pretext for the use of force. The humanitarian justification for the doctrine can only be accepted in case the doctrine of humanitarian intervention is legitimate. The primary purpose of humanitarian intervention is the protection of individuals or groups of individuals against their own government. Thereby it goes beyond the ‘protection of nationals abroad’ doctrine, because it is not necessary that there is a link between the injured individuals and the intervening State.27 When it is legal for a State to intervene with the use of force for the protection of nationals of another country, it is difficult not to conclude that an intervention would also be legal when one’s own nationals are threatened. Moreover just like the ‘protection of nationals’ doctrine, there is evidence that the humanitarian doctrine was also accepted before the adoption of the Charter as being part of customary international law.28 In order to fit the humanitarian doctrine into the framework of 19 Ibid., p. 106. 20 Eldred, 2008, p. 255. 21 Zedalis, 1990, p. 221; Thompson, 2012, pp. 634-638. 22 Grimal & Mellin, 2011, p. 542; D'Angelo, 1980-1981, p. 492. 23 Bowett, 1958, p. 187. 24 Thompson, 2012, p. 636. 25 Ibid., p. 636. 26 See Part II section A. 27 Lillich, Wingfield, & Meyen, 2002, p. 332. 28 Shaw, 2008, p. 1155.
  • 8. 7 the prohibition on the threat or use of force the realists interpretation of the prohibition links the humanitarian doctrine to the rights and duties of States under the Charter. They maintain that when the United Nations does not act, the pre-Charter customary law right of humanitarian intervention revives, and a State may intervene as they did under pre-Charter international law. 29 While such an interpretation of the prohibition could legitimize the doctrine of humanitarian intervention and thus also that of the ‘protection of nationals’ doctrine, it has to be noted that, at the moment, the acceptance of a humanitarian intervention is as questionable as the ‘protection of nationals’ doctrine.30 The third theory maintains that the doctrine is a form of legitimate exercise of self-defence. This theory has its basis in the terminology of article 51 of the Charter. According to the Charter the right of a State to defend themselves exists when an ‘armed attack’ occurs against that State.31 It can be argued that an attack on nationals abroad could be seen as an attack on the injured individuals State, which then fulfils the condition that an armed attack has occurred against them.32 Another explanation focuses on the term of ‘inherent right’ used in the Charter.33 This explanation asserts that this term indicates that the adoption of the Charter has not displaced the pre-Charter customary law of self-defence, of which the ‘protection of nationals’ doctrine was a part.34 This assumption is supported by the fact that the rules concerning the right of self-defence are itself part of customary international law, known as the Caroline criteria,35 and have survived the adoption of the Charter. Of the three leading supporting theories of the doctrine, the last one is the most uncontroversial and would fit most easily into the framework of the prohibition on the threat or use of force. Thus whereas in theory it is generally accepted that the doctrine is governed by the conditions set by Waldock, the legitimacy of the doctrine depends on how to interpret the prohibition on the threat or use of force under Article 2(4) of the Charter. In the end the opponents of the doctrine, the restrictionists, assume that Article 2(4) contains a general and absolute prohibition on the threat or use of force, moreover they hold that the only unilateral use of force can be pursuant to the inherent right of self-defence of Article 51 of the Charter, but this exception must be narrowly interpreted and does not include the right contained in the ‘protection of nationals’ doctrine. Among the supporters of the doctrine, the counter-restrictionists, the most uncontroversial school of thought is that the doctrine could be legitimized under the inherent right of self-defence by using a broader interpretation of Article 51 of the Charter than the restrictionists are using. PART II. In light of this theoretical background twenty post-Charter interventions, where the doctrine was used as at least one of the justifications by the intervening State, will be compared. The majority of the list of incidents was gathered and described by Richard B. Lillich,36 and these span from 1945 to 1996. The last two incidents concern the interventions by the Russian Federation into Georgia and Ukraine. 29 D'Angelo, 1980-1981, pp. 492-493. 30 Shaw, 2008, p. 1156. 31 Article 51 of the Charter of United Nations (1945). 32 Zedalis, 1990, p. 235. 33 Article 51 of the Charter of United Nations (1945). 34 Zedalis, 1990, p. 238. 35 Shaw, 2008, p. 1131. 36 Lillich, Wingfield, & Meyen, 2002.
  • 9. 8 The examination of these interventions will focus on the applicability of the three conditions set by Waldock on the actual definition of the doctrine. This to determine that the doctrine was applicable and to verify that the doctrine is governed by these conditions. Secondly statements made before the Security Council, General Assembly and in State documents will be examined in order to see if there is any ‘concrete’ customary evidence that would support one of the schools of thought the acceptance of the doctrine by the international community, and the legitimacy under international law. It has to be noted that these sources are not of a legal but of a political nature. Nonetheless when keeping this in mind it is possible to find evidence for the legal use and value of the doctrine. In examining the statements regarding the interventions focus will be given to the intervening State(s) and the five permanent Members of the Security Council; the Republic of China (now the People’s Republic of China), France, the Union of Soviet Socialist Republics (now the Russian Federation), the United Kingdom of Great Britain and Northern Ireland, and the United States of America.37 The five permanent Members their attitudes towards these interventions and the doctrine allows for comparisons being made throughout the years. This is due to their permanent seating in the Security Council. Moreover their right to veto resolutions38 give them a great influence on the use of force in the world, and thereby in indicating the (il)legality of justifications for the use of force. Nonetheless it should be kept in mind that these States represent only a fraction of the total sovereign States in the world, and by themselves cannot create customary international law. A. The United Kingdom and France in Egypt (the Suez Crisis, 1956). The first incident after the adoption of the Charter, where force was justified by using the doctrine, was during the Suez Crisis. In July 1956 Nassar, the President of Egypt, pronounced that the Suez Canal was being seized by the Egyptian Government.39 The Canal was of great importance to western nations, and especially to France and the United Kingdom.40 Moreover Nassar threatened Britain’s and France’s influence in the Middle East.41 Immediately after the seizure of the Suez Canal, and the nationalization of the Suez Canal Company, the United Kingdom started to look for opportunities that would legitimize an intervention in Egypt.42 France, which was evenly firm in its conviction of the seizure, informed Britain that it was prepared to undertake joint actions against Egypt.43 This opportunity presented itself when on the twenty-ninth of October the State of Israel invaded Egypt and assaulted Egyptian forces across the Sinai dessert.44 France and the United Kingdom immediately condemned this invasion and imposed an ultimatum demanding that both sides should withdraw from the Suez Canal.45 On the thirtieth the United States submitted 37 Article 23(1) of the Charter of the United Nations (1945). 38 Article 27(3) of the Charter of the United Nations (1945). 39 Kissinger, 1994, p. 530. 40 SC Meeting 751, UN Doc. S/PV. 751 (1956), p. 8 at 46. 41 Scott, 1996, p. 207. 42 Marston, 1998, pp. 776-777. 43 Kissinger, 1994, p. 532. 44 GA Meeting 561, UN Doc. A/PV.561, p. 10 at 135; this was previously agreed upon in a secret document between Israel, the United Kingdom and France during meetings at Sèvres, France, see Marston, 1998, p. 798. 45 Kissinger, 1994, p. 541; SC Meeting 749, UN Doc. S/PV. 749 (1956), p. 3 at 4.
  • 10. 9 a resolution before the Security Council ordering the Israeli forces to immediately withdraw.46 But to the surprise of the international community both the United Kingdom and France vetoed this resolution47 and intervened in the conflict the next day.48 Two grounds were invoked by the United Kingdom and France as a justification for the intervention. One of those grounds was the protection of nationals at Ismailia.49 This was communicated by the Lord Chancellor to the Cabinet in a memorandum on the twenty-ninth of October. The memorandum held that: “(1) The combined effect of the Pact of Paris, the Charter of the United Nations and the General Assembly's "United [sic] for Peace" resolution of 1951 is that force may lawfully be used or threatened only (a) on the express authority of the United Nations or (b) in self-defence. (2) Self-defence undoubtedly includes a situation where the lives of a state's nationals are threatened. (3) Article 51 of the Charter does not impair this customary right nor does that Article cut down the customary right by restricting self-defence to cases where the attack provoking it has actually been launched. It would be a travesty of the purposes of the Charter to compel a defending state to allow its assailant to deliver the first and perhaps fatal blow. (4) The tests of whether such an intervention is necessary under customary international law are: (i) whether there is an imminent threat of injury to nationals; (ii) whether there is a failure or inability on the part of the territorial sovereign to protect the nationals in question; (iii) whether the measures of protection are strictly confined to the object of protecting them against injury. […]”50 This statement clearly underlines the view that an attack on one’s nationals abroad could be deemed as an armed attack in the wording of article 51 of the Charter, and as such gives the State of those nationals the right to defend themselves. It indicates that the doctrine has been used as a legal justification in this case. Moreover the test described in paragraph 4 of the memorandum fully complies with the conditions described by Waldock. Nonetheless during the meetings before the Security Council just a marginal reference was made to the doctrine as a justification for the intervention by the United Kingdom or France.51 The main argument the United Kingdom stressed before the Security Council was that their “vital interests would be endangered if free passage [of the Canal] were interrupted,”52 and that the United Kingdom has “a right to defend these vital interests.”53 Moreover the ambassador 46 U.S. Draft Resolution, UN Doc. S/3710 (1956). 47 SC Meeting 749, UN Doc. S/PV. 749 (1956), p. 31 at 186.. 48 SC Meeting 751, UN Doc. S/PV. 751 (1956), p. 2 at 9. 49 PREM 11/1129, on the right of intervention, at 6; found in: Marston, 1998, pp. 800-801. 50 PREM 11/1126, on the right of intervention. 51 SC Meeting 749, UN Doc. S/PV. 749 (1956), p. 24 at 141. 52 SC Meeting 751, UN Doc. S/PV. 751 (1956), p. 8 at 46. 53 Ibid., p. 8 at 47.
  • 11. 10 further stated that “[o]ur intervention is not aimed at the sovereignty of Egypt, still less at the territorial integrity of Egypt.”54 France’s arguments before the Security Council were in line with those of the United Kingdom. The representative stated that “the French Government stresses the temporary character of the presence of its troops in the Canal Zone and emphasizes that it does not intend to infringe upon Egyptian sovereignty in any way,”55 and that “the French Government cannot accept the accusation that it has acted in a manner contrary to the principles of the Charter.”56 Thus in this case the use of the doctrine justifying the interventions was marginal. The main justification used was that their intervention, to protect their ‘vital interests’, was not aimed at the territorial integrity of Egypt which seems to indicate that they are trying to evade the prohibition of article 2(4) of the Charter. The legitimacy of this argument can be surely disputed, but the wording used could indicate a view that an extra exception to the prohibition on the threat or use of force exists in the eyes of the United Kingdom and France. Moreover the Memorandum of the Lord Chancellor to the Cabinet indicates that the United Kingdom views the doctrine as being a part of the Article 51 of the Charter, thereby interpreting the right to self-defence in a broad way. The Soviet Union was harsh in condemning the intervention. The ambassador stated that the action “represents a gross violation of the obligations they have assumed under the United Nations Charter,”57 and that the “far-fetched and strained explanation is merely intended as a screen for the aggressive operations of the United Kingdom and France against the Egyptian State.”58 This attitude towards the intervention clearly indicates a restrictionists school of thought accepted by the Soviet Union. Thus although the condemnation was not explicitly directed at the use of the ‘protection of nationals’ doctrine, the use of the doctrine would not be accepted likewise. President Eisenhower addressed the intervention by the United Kingdom and France on the television stating that “[a]s it is the manifest right of any of these nations to take such decisions and actions, it is likewise our right – if our judgement so dictates – to dissent. We believe these actions to have been taken in error. For we do not accept the use of force as a wise and proper instrument for the settlement of disputes.”59 It has to be noted that no such statements were made by the United States before the Security Council. China did not discuss the intervention by France and the United Kingdom. Their statements before the Security Council only discussed the Israeli invasion of Egypt.60 The reason for the lack of comment in the intervention is not clear, but it is safe to assert that at the least China did not condemn the use of the doctrine as a justification. After the veto by France and the United Kingdom the Security Council adopted resolution 119 on the thirty-first of October, referring the matter to the General Assembly of the United Nations 54 Ibid., p. 9. 55 Ibid., p. 11 at 63. 56 Ibid., p. 11 at 63. 57 Ibid., p. 2 at 11. 58 Ibid., p. 3 at 12. 59 Kissinger, 1994, p. 541. 60 SC Meetings 748 – 751, UN Doc. S/PV. 748 – 751 (1956).
  • 12. 11 under the procedure of the ‘Uniting for Peace’ resolution of 1950.61 None of the three following resolutions adopted by the General Assembly discussed the legality of the intervention by the United Kingdom and France.62 Moreover the focus of the General Assembly’s discussion was “to attend to peace first and right afterwards,”63 and as such did not discuss the legitimacy of the use of the doctrine justifying the intervention.64 B. United States in Lebanon (1958). In the spring of 1958 internal, regional, and international factors together created an extremely unstable situation in Lebanon that led to open warfare between pro-government and opposition forces.65 On the fourteenth of July a coup d’état took place in Iraq where the Iraqi royal family and a number of European and United States citizens were murdered. Afraid for other similar coups in pro-Western countries, like Lebanon, Eisenhower acceded to the request of the Lebanese President Chamoun for military assistance.66 Although the American intervention in Lebanon was primarily based upon the request of the Lebanese President, Eisenhower proclaimed that the intervention was aimed at protecting about 2.500 United States nationals in Lebanon.67 By a press release and a message to the United States Congress Eisenhower addressed the legality of these actions by referring to their inherent right under Article 51 of the Charter for individual and collective self-defence.68 This was reiterated before the Security Council on the fifteenth.69 No more notion was given to the use of the doctrine in justifying their intervention. Eventually the primary justification for the intervention was based upon collective self-defence upon the request of the Lebanese Government,70 and this position was reiterated before the Security Council.71 This indicates that in this case the doctrine was used more as a supporting argument and as a moral justification towards the American public, rather than a legal justification for the intervention. Due to the fact that the primary legal basis for the intervention was collective self-defence upon the request of Lebanon, no legal objections were raised regarding the doctrine. The responses of the United Kingdom72 and France73 condoning the American actions followed the United States arguments and described the action as being in accordance with Article 51 of the Charter. Also China “wholeheartedly supports the action that the United States has taken,”74 and “is in full accord with the principles and purposes of the United Nations.”75 61 SC Resolution 119, UN Doc. S/3721 (1956). 62 GA Resolution 997 (ES-I), 2 November 1956; GA Resolution 998 (ES-I), 4 November 1956; and GA Resolution 999 (ES-I), 4 November 1956. 63 GA Meeting 562, UN Doc. A/PV.562, p. 18 at 2. 64 GA Meetings 561-572, UN Doc. A-PV.561-572. 65 Lillich, Wingfield, & Meyen, 2002, p. 44; the Lebanese army remained neutral in the conflict. 66 Dept. St. Bull. Vol. 39 (1958), p. 181. 67 Ibid., pp. 181-182. 68 Ibid., pp. 181-183. 69 SC Meeting 827, UN Doc. S/PV. 827 (1958), p. 6-8; Dept. St. Bull. Vol. 39 (1958), p. 186. 70 Lillich, Wingfield, & Meyen, 2002, p. 46. 71 SC Meeting 827, UN Doc. S/PV. 827 (1958), p. 7. 72 Ibid., pp. 16-17. 73 SC Meeting 828, UN Doc. S/PV. 828 (1958), p. 2. 74 Ibid., p. 5. 75 Ibid.
  • 13. 12 On the other hand the Soviet Union condemned the American intervention on the basis of the collective self-defence rationale, but did not discuss the ground of protection of American citizens.76 Moreover the amendments proposed by the Soviet Union on the Japanese draft resolution in the Security Council held “that the landing of United States troops in Lebanon constitutes intervention in the domestic affairs of that country and is therefore contrary to the purpose and principles of the United Nations.”77 Even though the rejection of the collective self-defence rational can be disputed, their attitude towards non-intervention supports the assertion that they hold the prohibition on the threat or use of force to be of an absolute an general character, in conformity with the restrictionists school of thought. It is interesting to note that the doctrine was used besides a request of the territorial sovereign. As we will see this is a frequent practice by intervening States. This could indicate that either only the consent of the territorial sovereign legitimizes the intervention and that the doctrine is used more as a moral and political argument, or that both justifications have a legitimate legal value in justifying the intervention. C. Belgium in the Congo (1960). On the thirtieth of June 1960 the Congo got their independence from Belgium. Within five days Belgian and other Europeans nationals were attacked by mutinying Congolese forces of the ‘Force Publique’ in Léopoldville and Thysville (now Kinshasa and M’banza N’gungu).78 As a reaction to this violence Belgium decided to send paratroopers into the Congo on the tenth of July.79 At that time the only legal framework between Belgium and the Congo was the Treaty of Friendship, which only provided provisions for military assistance with mutual consent, and the recognized Congolese Government did not request any assistance from Belgium.80 In their address to the Security Council the Belgium Government explained their decision to intervene in the Congo. The intervention was done “with the sole purpose of ensuring the safety of European and other members of the population and of protecting human lives in general.”81 And further strengthening the intentions of Belgium, their representative stated that: “we had a right to intervene when it was a question of protecting our compatriots, our woman, against such excesses,” and that they had waited until the last moment before it was decided to intervene.82 At the end of its address to the Security Council, the principles of the intervention were summarized: “(1) The purpose of the Belgian Military intervention in the Congo is purely humanitarian. (2) The intervention has been strictly proportionate to the objective sought, namely the protection of the lives of Belgian nationals. 76 SC Meeting 827, UN Doc. S/PV. 827 (1958), p. 21. 77 UN Doc. S/4063, para. 3. 78 Rouvez, 1994, p. 319. 79 Lillich, Wingfield, & Meyen, 2002, p. 98; UN Doc. S/PV. 873 (1960), pp. 33-34. 80 Renton, Seddon, & Zeilig, 2007, p. 88. 81 SC Meeting 873, UN Doc. S/PV. 873 (1960), p. 34. 82 SC Meeting 877, UN Doc. S/PV. 877 (1960), pp. 18-19.
  • 14. 13 (3) It is limited in its scope by its objective. It is limited in time since it is conceived as a temporary action. (4) In intervening, Belgium is not pursuing any political design or seeking to interfere in any way in the domestic politics of the Congo.”83 Due to the fact that the doctrine is the primary and only justification given by Belgium it must have some legal value in justifying the intervention. The justification made by the Belgian representative fulfils the conditions set by Waldock. Especially the summary indicates the importance that the actions are proportional to the objective. Moreover the first paragraph seems to indicate an assertion that the doctrine falls under a humanitarian right of intervention. Nonetheless it is not clear what the exact interpretation should be given to ‘humanitarian’ in this context. On the fourteenth of July the Security Council, without referring to the doctrine, called upon the Belgian Government to withdraw all its forces from the Congo and authorized to provide the Congolese Government with “such military assistance as may be necessary.”84 The two resolutions that followed addressed the Belgian Government to make haste with the withdrawal of their forces and requested from all States to refrain from actions against the territorial integrity and political independence of the Congo.85 It has to be noted that although a request for an Belgian withdrawal indicates a condemnation of the Belgian intervention, it does not indicate a rejection of the use of the doctrine as justification. As a reaction to the intervention the Soviet Union stated that “[i]t should be emphasized that talk about the need for protecting ‘the lives of residents’ and restoring ‘order’ in other countries is a well-worn device which was used on more than one occasion during the nineteenth and twentieth century to conceal armed intervention by the Colonial Powers in the countries of Asia, Africa and Latin America,”86 The continuance of these methods show the predatory nature of the ‘new-style’ colonialism and cannot conceal the fact that Belgian action was one of aggression which is “the grossest violation of the basic principles of the United Nations.”87 This strengthens the assertion that the Soviet Union holds the restrictionists school approach as the right interpretation of the Charter. The United Kingdom characterized the Belgian actions as making “parallel efforts to protect the lives or to facilitate the withdrawal of Belgian nationals or of other communities threatened with violence,88 and that the “Belgian troops have performed a humanitarian task for which my Government is grateful, and for which, we believe, the international community should be grateful.”89 Besides the United Kingdom France also supported the Belgian intervention. With regard to the doctrine their representative stated that “[t]heir mission of protecting lives and property is the direct result of the failure of the Congolese authorities and is in accord with a recognized principle of international law, namely, intervention on humanitarian grounds.”90 Thus both the United Kingdom and France see the Belgian actions as a legitimate form of 83 Ibid., p. 30. 84 SC Resolution 143, UN Doc. S/4387 (1960). 85 SC Resolution 145, UN Doc. S/4405 (1960); SC Resolution 146, UN Doc. S/4426 (1960). 86 SC Meeting 873, UN Doc. S/PV. 873 (1960), p. 19. 87 Ibid., p. 19. 88 Ibid., pp. 25-26. 89 Ibid., p. 26. 90 Ibid., p. 28.
  • 15. 14 humanitarian intervention to protect lives. This indicates an acceptance of such a right, but differs from the self-defence justification used by them in the Suez incident. Moreover the French approach accepts the second condition set by Waldock; a failure or inability to act on the part of the territorial sovereign. In this case the United States and China did not comment on the legality of the Belgian actions. They both stated that it was not the time for any condemnation but an instantaneous response was important to help the Congolese government restore peace and order.91 D. Belgium and the United States in the Congo (1964). After the incident in 1960 the United Nations Operation in the Congo was established to provide the government of the Congo with military assistance.92 In the spring of 1964 numerous revolts had broken out and on the thirtieth of June the forces of the United Nations needed to withdraw from the eastern regions.93 When after six weeks the tides began to turn in the favour of the Governmental forces, Christophe Gbenye, President of the revolutionary regime, announced on the twenty-sixth of September that the “approximately 1600 foreigners remaining in the Stanleyville area [...] would not be allowed to leave.”94 Among those hostages where 500 Belgians, 700 other nationals from Europe, and 400 Indians and Pakistanis.95 The fate that awaited these ‘hostages’ was explained by the representative of the United States. He stated before the Security Council, responding to the claim that the threats were not real,96 that “many of the hostages were deliberately killed [...] the total of those already tortured and slaughtered amounted to 35 foreigners.”97 Among these deaths were Americans and Belgians.98 He further mentioned a telegram from a rebel general that gave the order that all Americans and Belgians needed to be kept in a secure place and exterminated in case of a bombing of the region.99 When political and diplomatic negotiations did not prove to be successful it became increasingly apparent to the United States and Belgium that military measures would have to be used in order to extract the hostages to safety. This resulted in the sending of Belgian paratroopers to Stanleyville on the twenty-fourth of November. In the end these paratroopers evacuated about 2000 people in the following four days.100 The contribution of the United States to the intervention was limited to supplying the transport aircraft for the mission.101 It is clear that these circumstances could fulfil the three conditions set by Waldock, and as such supports the usage of the doctrine in this case and strengthens the assumption that the doctrine is governed by the Waldock conditions. However it has to be noted that the intervention was carried out with the authorization by the Congolese Government,102 and as such it is only safe 91 SC Meeting 873, UN Doc. S/PV. 873 (1960), pp. 15, 29. 92 SC Resolution 143, UN Doc. S/4387 (1960); Lillich, Wingfield, & Meyen, 2002, p. 49. 93 Lillich, Wingfield, & Meyen, 2002, pp. 49-50. 94 Ibid., p. 50. 95 Ibid. 96 SC Meeting 1174, UN Doc. S/PV. 1174 (1964), p. 15. 97 Ibid., pp. 15-16. 98 Ibid., p. 16. 99 Ibid. 100 Lillich, Wingfield, & Meyen, 2002, p. 52. 101 UN Doc. S/6062 (1964), p. 2. 102 SC Meeting 1174, UN Doc. S/PV. 1174 (1964), p. 12.
  • 16. 15 to interpret the use of the doctrine as a secondary justification. Nonetheless the request of the Congolese Government was just only briefly touched upon by Belgium and the United States during the debates before the Security Council. The justification given by the United States on the day of the attack was the liberation of hostages whose lives were in danger.103 Afterwards the American representative stated before the Security Council that the actions were primarily taken in the pursuance of the protection of the lives of American citizens.104 Moreover the justification by the U.S. State Department clearly underlined the humanitarian aspect of the mission.105 Only due to the presence of a consent by the Congolese Government it is not clear how this secondary justification must be interpreted, as having mere political, moral or legal value. The Belgian justification was also constructed around the concept of the ‘protection of nationals’ doctrine, instead of the authorization given for the mission. The Belgian Minister of Foreign Affairs addressing the Security Council stated that “the Stanleyville operation was not a military operation. It was not a matter of helping the Congolese National Army. It was not a matter of conquering or retaining any particular territory. It was a question of saving between 1.500 and 2.000 persons whose lives were in danger.” 106 They dubbed the action as a humanitarian operation,107 and stated that “the Belgian Government had a special responsibility towards the men, women and children it had sent to the Congo.”108 It is interesting that special emphasis has been given to the view that the intervention did not violate the territorial sovereignty of the Congo, and that the protection of the Belgian nationals could be seen as a humanitarian operation. This gives an indication that the use of the doctrine has some legal value in this case. Moreover the Belgian argument strengthens the school of thought that it is legitimate for a State to intervene when the intervention is not aimed at the territorial integrity of a State. In its declaration the Soviet Union representative held that “[a]s for the “humanitarian motives” in which those guilty of aggression against the Congo now try to cloak their criminal activities, that hypocritical pretence is by no means new and will deceive no one,”109 and that “[h]istory is full of examples of how imperialism, on the false pretext of “ensuring the security” of white diplomats, settlers and missionaries, has used violence on the peoples of the countries invaded by it.”110 Moreover the Soviet Union also found the request of the Congolese Government as nothing but a pretext for aggression.111 From this comment it can be concluded that the Soviet Union does not only find the doctrine a false pretext, but it can be assumed that they do not recognize such a pretext whatsoever. Moreover it supports the assertion that the doctrine was used as a legal justification, and being mere political or moral. China did not question the threatening circumstances the hostages were in, they only questioned the necessity of the intervention.112 Moreover they were “fully satisfied with the statements 103 UN Doc. S/6062 (1964), p. 2. 104 SC Meeting 1174, UN Doc. S/PV. 1174 (1964), p. 13. 105 UN Doc. S/6062 (1964), p. 1. 106 SC Meeting 1173, UN Doc. S/PV. 1173 (1964), p. 3. 107 Ibid., p. 10. 108 Ibid., p. 12. 109 SC Meeting 1178, UN Doc. S/PV. 1178 (1964), p. 21. 110 Ibid. 111 Ibid., p. 23. 112 SC Meeting 1177, UN Doc. S/PV. 1177 (1964), p. 26 at 120.
  • 17. 16 made in this Council by the representatives of Belgium and the United States that the operation was necessary to save the lives of the hostages, and that is was a humanitarian mission, and nothing more.”113 By discussing the necessity of the intervention, it seems that China accepts the existence of the doctrine as a legal justification. Nonetheless it is still not clear how to interpret the notion of ‘humanitarian’ in this statement, there is no direct indication that China accepts the doctrine of humanitarian intervention. The United Kingdom held that the United States and Belgium “have incontrovertibly established the motive and justification of the operation,”114 and that “the object of the operation was solely one of saving lives.”115 Hereby it is clear that the United Kingdom supported the operation, moreover this could indicate the acceptance the usage of the doctrine as a legal justification. Nonetheless the acceptance of the United Kingdom could also be founded upon the request of the Congolese Government. France was more explicit why they accepted the legitimacy of the operation. Their representative based the legality of the operation on the fact that it “was duly authorized by the Government which is [...] the legal Government of the Democratic Republic of the Congo.”116 This indicates that according to France the request of the Congolese Government was the primary basis justifying the intervention. Thus while it is not clear if the United States used the doctrine as a legal justification or a political one, the statements made by the representatives of Belgium, the Soviet Union, China and the United Kingdom support the assumption that the doctrine was interpreted as having a legal value. However it is not clear which school of thought is supported by the supporters of the intervention. Dubbing the intervention as being humanitarian in nature could indicate that it is part of the broader right of humanitarian intervention, but no explicit support for the doctrine of humanitarian intervention becomes apparent from this case. In the end the request from the Congolese Government cannot be ignored when discussing the legitimacy of this operation, especially when France based their support solely on this request and did not discuss the doctrine. E. The United States in the Dominican Republic (1965). On the twenty-fourth of April 1965 a coup d’état took place in the Dominican Republic. The uprising was aimed at ousting the leader of the junta government Donald Reid Cabral. On the twenty-sixth it seemed that the military situation in the Dominican Republic had reached a stalemate and that the civil authority had completely broken down. During this stalemate the loyalists to the junta government requested the United States for a military intervention, the United States turned this request down.117 However the Department of State instructed the United States embassy in the Dominican Republic to request both parties involved in the conflict for an immediate ceasefire, in order to allow a safe and orderly evacuation of United States citizens. The evacuation commenced on the twenty-seventh, with the landing of about 50 United States marines, for the establishment of a helicopter landing area and the facilitation of the evacuation operation.118 The next day the 113 Ibid., p. 26 at 122. 114 SC Meeting 1175, UN Doc. S/PV. 1175 (1964), p. 4. 115 Ibid. 116 SC Meeting 1176, UN Doc. S/PV. 1176 (1964), p. 15. 117 Lillich, Wingfield, & Meyen, 2002, pp. 58-59. 118 Ibid., pp. 59-60.
  • 18. 17 United States was informed by the head of the loyalists operations that “the junta was in no position to guarantee the safety of Americans or other foreigners in Santa Domingo,”119 and loyalists again requested a military intervention by the United States.120 On the same day President Johnson stated in a press release that he had “ordered the Secretary of Defence to put the necessary American troops ashore in order to give protection to the hundreds of Americans who are still in the Dominican Republic and to escort them safely back to this country.”121 This position was reiterated in a letter to the Security Council, on the twenty- ninth of April, where the Security Council was informed of America’s military presence in the Dominican Republic for the protection of American nationals and on invitation of the Dominican authorities.122 These circumstances would fulfil the first two conditions set by Waldock, thereby the invocation of the doctrine is in line with the theory. Besides on the same day the Organization of American States (hereinafter ‘the OAS’) decided to convoke a meeting of the Ministers of Foreign Affairs, to address the situation.123 On the thirtieth of April, President Johnson again invoked the ‘protection of nationals’ doctrine, but also added a third argument for the intervention, “that people trained outside the Dominican Republic are seeking to gain control.” 124 The following day President Johnson ordered new troops into the Dominican Republic, which attempted to enforce a ceasefire between the two belligerent parties. Still the President maintained that this mission was solely for the purpose of the protection and evacuation of United States nationals.125 The next day another force of 6.500 men was sent to the Dominican Republic, but this time Johnson did not rely on the protection of nationals argument but proclaimed what became to be known as the ‘Johnson Doctrine’.126 This held that “[t]he American nations cannot, must not, and will not permit the establishment of another Communist government in the Western Hemisphere.”127 Finally on the sixth of May the OAS, which had already adopted a resolution calling for a ceasefire,128 adopted a resolution calling for the creation of an Inter-American force with the “sole purpose [...] that of cooperating in the restoration of normal conditions in the Dominican Republic, in maintaining the security of its inhabitants and the inviolability of human rights, and in the establishment of an atmosphere of peace and conciliation that will permit the functioning of democratic institutions.”129 This force finally ended the hostilities, and departed the Dominican Republic on the twenty-first of September 1966.130 In this case the doctrine was not used as an exclusive justification. It was combined with the idea of regional peacekeeping under the auspices of the OAS, and the request from the 119 Ibid., p 60; SC Meeting 1196, UN Doc. S/PV. 1196 (1965), p. 14. 120 Statement by President Johnson, April 28, Dept. St. Bull. Vol. 52 No. 1351 (1965), p. 738. 121 Statement by President Johnson, April 28, Dept. St. Bull. Vol. 52 No. 1351 (1965), p. 738; SC Meeting 1196, UN Doc. S/PV. 1196 (1965), p. 14. 122 Letter to President of Security Council, April 29, Dept. St. Bull. Vol. 52 No. 1351 (1965), p. 739; SC Meeting 1196, UN Doc. S/PV. 1196 (1965), p. 15. 123 Tenth Meeting of the Ministers of Foreign Affairs (Final Act), May 1, 1965 – March 6, 1970, pp. 1- 2. 124 Statement by President Johnson, April 30, Dept. St. Bull. Vol. 52 No. 1351 (1965), p. 742. 125 Statement by President Johnson, May 1, Dept. St. Bull. Vol. 52 No. 1351 (1965), p. 743. 126 Lillich, Wingfield, & Meyen, 2002, p 62. 127 Statement by President Johnson, May 2, Dept. St. Bull. Vol. 52 No. 1351 (1965), p. 746; SC Meeting 1196, UN Doc. S/PV. 1196 (1965), pp. 16-17. 128 Tenth Meeting of the Ministers of Foreign Affairs (Final Act), May 1, 1965 – March 6, 1970, p. 9. 129 Ibid., p. 11. 130 Lillich, Wingfield, & Meyen, 2002, p 62.
  • 19. 18 Dominican Government. The legality of the operation is primarily based upon the latter justification. Moreover it is not clear if the use of the doctrine had any legal value, and if so it is also not clear what school of thought would legitimize the use. Nonetheless up until the proclamation of the ‘Johnson Doctrine’ the conditions governing ‘protection of nationals’ doctrine were seemingly being fulfilled. The sending of troops to evacuate nationals is a proportionate action to safeguard their lives and keep them from harm. Nonetheless by sending in forces to enforce a ceasefire and later to prevent a communist Government from establishing in the Western Hemisphere violates the proportionality of the doctrine. This could have been the reason that in the end when the actions went beyond what could be legitimized by the doctrine another justification was found and created. As a reaction to the intervention the Soviet Union requested an urgent meeting of the Security Council in order to discuss, as they called it, “the armed interference by the United States in the internal affairs of the Dominican Republic.”131 The “act of aggression by the United States imperialism [...] is, like the acts of the colonialists in the past, being engaged in on the outworn, false pretext of “protecting American lives”,”132 and that it “constitutes nothing other than an act of direct aggression against the people of that small country.”133 It is clear that the Soviet Union interprets that the doctrine is being used as a legal justification and moreover rejects it. Nonetheless it has to be noted that the representative also goes into great lengths arguing that the circumstances would not legitimize the invocation of the doctrine.134 This indicates a twofold approach of the Soviet Union. First they do not accept the existence or legitimacy of the doctrine under international law and second if such a right should exist then the circumstances would not allow such an ‘invasion’ by the United States. Moreover the draft resolution proposed by them only condemns the intervention and does not mention the use of the doctrine.135 In the end the restrictionists school of thought still seems to be applicable on the views of the Soviet Union. The Chinese representative noted that there was a difference between aggression and intervention, and that “[t]he United States action in the Dominican crisis is admittedly an act of intervention,”136 and that it “was intended to accomplish the dual purpose of protecting American lives and forestalling a communist take-over.”137 Moreover China was satisfied with the facts presented by the United States that supported the American pretexts.138 Besides China accepted the doctrine as a legal justification, after reviewing the circumstances and the arguments of the United States, this could indicate that the doctrine as such is according to China a legitimate pretext. The United Kingdom supported the intervention and thanked them for evacuating British nationals.139 As to the legality of the action they held that the United States was requested “to take steps to protect foreign nationals whose lives were in danger,”140 and that they “fully understand [...] what prompted the emergency action taken by the United States 131 UN Doc. S/6316 (1965). 132 SC Meeting 1196, UN Doc. S/PV.1196 (1965) p. 3. 133 Ibid. 134 Ibid., pp. 3-5. 135 Union of Soviet Socialists Republics: draft resolution, UN Doc. S/6328 (1965). 136 SC Meeting 1202, UN Doc. S/PV. 1202 (1965), p. 4. 137 Ibid. 138 Ibid., pp. 4-5. 139 SC Meeting 1198, UN Doc. S/PV. 1198 (1965), p. 13. 140 Ibid.
  • 20. 19 Government.”141 Thus the acceptance of the United Kingdom is twofold, first the request from the Dominican Government and second the ‘protection of nationals’ doctrine. This could indicate that the request of the territorial sovereign could be crucial for the legality of the doctrine as a legal justification. The French representative stated that they “fully understand that with the onset of a situation of civil war and the violent clashes taking place, the Government of the United States should have been concerned for the safety of its nationals and should have wished to see their evacuation.”142 Indicating that such circumstances were present which could legitimize the intervention. But he continues “however, as in many similar cases in the past such operations should be limited in their objective, in their duration and in the scope of the measures applied. Should this not be the case we would have to recognize that, owing to the dispatch and landing of a considerable number of United States troops, we are faced with a genuine armed intervention the necessity of which is not apparent.”143 Thus indicating that the doctrine could legitimize the intervention, if it is proportional to the purpose which is the protection of one’s nationals. Nonetheless by examining the legitimacy of the pretext by the circumstances present, France accepts the existence of such a pretext. So again it can be concluded by the reactions of four permanent members that the doctrine was used as a legal justification, and the statements indicate an acceptance of the use of the doctrine as a legal justification. Moreover the lack of any address to the compatibility with the Charter could indicate the view of a separate exception to the prohibition on the use of force. F. Israel in Uganda (the Entebbe Incident, 1976). On the twenty-seventh of June, 1976, an Air France flight was hijacked after take-off from Athens’ airport. The aircraft was forced to divert to Benghazi, where it refuelled, and continued to Entebbe airport in Uganda.144 The hijacked aircraft arrived at Entebbe on the twenty-eighth, where the four hijackers were joined by six others. All the hostage-takers were Palestinian, and members of the Palestinian Liberation Organizations.145 At Entebbe the passengers and crew were taken into an airport building under guard of the hijackers.146 The hijackers demanded the release of fifty-three Palestinian and pro-Palestinian prisoners, supposedly incarcerated in Kenya, Switzerland, France, West Germany, and forty of them in Israel.147 According to Israel, though refuted by Uganda and its President Amin, it appeared that the hijackers were aided by the Ugandan armed Forces.148 The next day all Israeli hostages were separated and brought to another part of the airport. On the thirtieth of June, forty-seven non- Israeli hostages were set free,149 and the next day 100 French hostages were also released by the hijackers.150 The remaining Israeli hostages remained under guard by the hijackers with the 141 Ibid. 142 Ibid., p. 24. 143 Ibid. 144 SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 9 at 78; Margo, 1977, p. 306. 145 SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 3 at 23, p. 8 at 70; Sheehan, 1976-1977, p. 146. 146 SC Meeting 1939, S/PV. 1939 (1976), p. 3 at 24; Margo, 1977, p. 306. 147 SC Meeting 1939, S/PV. 1939 (1976), p. 4 at 27; Sheehan, 1976-1977, p. 146; Margo, 1977, p. 306. 148 UN Doc. S/12123 (1976), p. 3; SC Meeting 1939, UN Doc. S/PV. 1939, p. 9 at 80-81, 92-94; Sheehan, 1976-1977, pp. 146-147; Margo, 1977, pp. 307-308. 149 SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 4 at 27. 150 Ibid., p. 4 at 28.
  • 21. 20 alleged support of Ugandan forces.151 After the release of all non-Israeli hostages, the hijackers announced that they would still hold Israel responsible for fulfilling their demands.152 Unable and unwilling to comply with the demands, Israel decided on a rescue mission in order to secure the release of the remaining hostages. The mission commenced on the third of July when three Israeli aircraft flew into Entebbe airport, and after exchange of fire all the hijackers and twenty of Ugandan soldiers were killed. In addition to the human losses a number of Ugandan aircraft were damaged.153 Within the hour all the Israeli hostages were liberated, and on board of a plane heading towards Israel.154 After the intervention a meeting of the Security Council was requested by the Organization of African Unity, where they would have liked to see the Israeli intervention condemned as an act of aggression towards the sovereign State of Uganda. 155 This attitude towards the Israeli intervention gives a clear indication of a restrictionists interpretation of the prohibition on the threat or use of force by the Members of the Organization of African Unity. Before the Security Council the Israeli representative held that “[t]he right of a State to take military action to protect its nationals in mortal danger is recognized by all legal authorities in international law,”156 and by quoting Bowett,157 Brierly158 and O’Connell159 used the theory of a separate exception to the prohibition on the use of force if it is not aimed at the territorial integrity of the sovereign. Moreover Israel also justified the use of the doctrine under the theory of self-defence; “[t]he right of self-defence is enshrined in international law and in the Charter of the United Nations and can be applied on the basis of the classic formulation, as was done in the well-known Caroline Case” which “was the exact situation which faced the Government of Israel.”160 Due to the fact that the doctrine was the only justification used in this case supports the assumption that the doctrine has legal value and not being a political or moral justification, moreover Israel followed the conditions set by Waldock in justifying the usage.161 The Soviet Union noted before the Security Council that “there exist no such laws in the world, no moral or international laws, which could justify such aggressive action,”162 and that the Israeli action “is an act of direct, flagrant aggression and outright violation of the Charter of United Nations, especially of Article 2, paragraph 4.”163 Moreover as a reaction to the Israeli representative the Soviet representative noted that “[h]is attempt to justify the act of aggression that is committed by references to the right of States to defend their citizens was unfounded and inadmissible.”164 Even under these circumstances the Soviet Union rejects the existence of the doctrine as a legitimate justification for intervention. It is then without question that the Soviet Union holds a restrictionists view on the usage of the doctrine. 151 Sheehan, 1976-1977, p. 147. 152 Margo, 1977, p. 308. 153 UN Doc. S/12124 (1976), p. 2; SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 4 at 31; Margo, 1977, p. 309. 154 Sheehan, 1976-1977, p. 147. 155 UN Doc. S/12126 (1976), p. 2; UN Doc. S/12128 (1976). 156 SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 13 at 106. 157 SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 13 at 106; Bowett, 1958, p. 87-88. 158 SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 13 at 107; Brierly, 1963, p. 427-428. 159 SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 13 at 108; O'Connell, 1970, p. 303-304. 160 SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 14 at 115 161 Ibid., p. 7-17. 162 SC Meeting 1941, UN Doc. S/PV. 1941 (1976), p. 17 at 152. 163 Ibid., p. 18 at 162. 164 SC Meeting 1942, UN Doc. S/PV. 1942 (1976), p. 22 at 195.
  • 22. 21 The People´s Republic of China, which in 1971 took over the permanent seat of the Republic of China (nowadays Taiwan),165 considered the action by Israel as a “premeditated and naked act of aggression committed against a sovereign State,”166 and “[i]t constitutes a gross violation of the United Nations Charter.”167 Thereby completely rejecting the intervention. It has to be noted that the doctrine was not mentioned at all by the Chinese representative, but as it was the only justification it can at least be concluded that China did not accept the use of the doctrine under these circumstances. The representative of the United Kingdom stated that “[w]hat surely emerges very clearly from all of this is the need to avoid a repetition of a situation in which, notwithstanding the preoccupation which many of us have with the obligation of every State to respect the sovereignty and territorial integrity of all States, a Government is driven to take unilateral action within the territory of another State in order to ensure the safety of its citizens.”168 Next the United Kingdom representative noted “that the Council should concentrate its attention [...] towards the avoidance of such events in the future, rather than seeking to pass judgement on what took place at Entebbe.”169 The lack of any discussion by the United Kingdom on the usage of the doctrine in this case is surprising, because it could have supported their previous opinion on the subject. Nonetheless the United Kingdom does not reject the legality of unilateral action from a Government, it only states that such action must be avoided which indicates that such action is not preferred but could still be considered legal. The French representative held that “[a]t first sight there would not seem to be any doubt that the surprise attack by an armed force on a foreign airport for the purpose of achieving an objective by violence indeed constituted a violation of international law.”170 But remembering that “[t]he Israeli intervention had the purpose and effect of freeing certain Israeli citizen,”171 and “[i]f there was a violation of the sovereignty of Uganda, it was not in order to infringe the territorial integrity or the independence of that country but exclusively to save endangered human lives.”172 Moreover France mentions that “[o]ne could well invoke here article 2 of the Definition of Aggression [...] which deals with what is “prima facie” an act of aggression and says that it is permissible to judge it “in the light of other relevant circumstances”.”173 This contribution by the French representative indicates that France accepts the doctrine as a legal justification, and moreover tries to argue that the doctrine does not have to be in conflict with the Charter and as such could be seen as a separate exception to article 2(4). The United States held that “Israel’s action in rescuing the hostages necessarily involved a temporary breach of the territorial integrity of Uganda. Normally, such a breach would be impermissible under the Charter of the United Nations. However, there is a well-established right to use limited force for the protection of one’s own nationals from an imminent threat of injury or death in a situation where the State in whose territory they are located is either unwilling or unable to protect them. The right, flowing from the right of self-defence, is limited 165 GA Resolution 2758, UN Doc. A/RES/2758(XXVI) (1971). 166 SC Meeting 1939, UN Doc. S/PV. 1939 (1976), p. 24 at 224. 167 Ibid. 168 SC Meeting 1940, UN Doc. S/PV. 1940 (1976), p. 12 at 99. 169 Ibid. 170 SC Meeting 1943, UN Doc. S/PV. 1943 (1976), p. 7 at 43. 171 Ibid. 172 Ibid., p. 7 at 45. 173 Ibid.
  • 23. 22 to such use of force as is necessary and appropriate to protect threatened nationals from injury.”174 These requirements were met by Israel according to the United States.175 Thus the United States accepted the doctrine in this case as a legitimate justification, and concluded that it is a part of the inherent right of self-defence. The requirements cited for such a right of self- defence are very similar to the Caroline criteria, which hold the customary rules concerning self-defence,176 and the conditions set by Waldock. Moreover no reference has been made for the view that the attack on one’s nationals constitutes an armed attack on the State of those nationals. Indicating the acceptance of the view that the traditional customary right of self- defence included the protection of one’s nationals abroad and has survived the adoption of the Charter. Moreover the detailed explanation of the legality of the doctrine indicates the United States trying to develop customary evidence for the doctrine being a legally accepted justification. G. France in Mauritania (1977 – 1979). The ‘Fronte Popular para la Liberación de Sakiet el Hamra y Rio de Oro’, better known as the Polisario Front, was established in 1973. It had the object of achieving self-determination of the Western Sahara. In their pursuance of this objective they launched guerrilla attacks against Mauritania, which had annexed a third of the Western Sahara in 1975. These attacks resulted in the signing of military agreements between Mauritania and France.177 On the first of May 1977 Polisario commandos took six French nationals hostage after they attacked the City of Zouérate, a town in the north-eastern part of Mauritania. Two more French hostages were taken on the twenty-fifth of October.178 As a reaction to these abductions France increased their assistance to Mauritania with commencing operation Lamentin, which had the dual purpose of assisting the Mauritian forces, as well as the protection of French nationals. 179 The French intervention that followed encompassed the sending of Jaguar bomber planes to support the 12.000 French forces who were already assisting the Mauritanian troops.180 These planes conducted air-strikes on the Polisario forces on the twelfth, thirteenth, and eighteenth of December.181 Eventually the twenty-third of December negotiations between France and the Polisario Front led to the release of all eight French hostages.182 In a letter to the Security Council on the twenty-first of December Libya, which backed the Polisario Front,183 expressed its concern about the statements coming from the French Ministry of Foreign Affairs, and the Minister of Defence, that “[t]hese actions and statements by France are a reversion of the old methods of colonialism, for they only can be considered as acts of direct interference in the affairs of the African countries.”184 Reacting to this letter, France legitimized their actions and statements by stating that “France cannot fail to take an interest in 174 SC Meeting 1941, UN Doc. S/PV. 1941 (1976), p. 8 at 77. 175 Ibid., p. 8 at 78-81. 176 Shaw, 2008, p. 1131. 177 Rouvez, 1994, p. 167. 178 Lillich, Wingfield, & Meyen, 2002, p. 100. 179 Rouvez, 1994, p. 167. 180 Lillich, Wingfield, & Meyen, 2002, p. 100. 181 Rouvez, 1994, pp. 167-168. 182 Rouvez, 1994, p. 168; Lillich, Wingfield, & Meyen, 2002, p. 100. 183 Rouvez, 1994, p. 167. 184 UN Doc. S/12500 (1977).
  • 24. 23 the fate of its nationals who are contributing to the development in Mauritania” and “[i]n the face of the persistent threats against our compatriots [...] it is the duty of the French Government, as it would be the duty of any Government in the world with respect to its nationals abroad, to provide protection for them.” In line with this reasoning French “air force units [...] may take action to help maintain the security of [its] nationals in Mauritania when the latter are endangered, doing so only at the request of the Mauritanian Government.”185 Thus where France stresses that it is their duty to provide protection for their nationals abroad, it places special emphasis on the fact that Mauritania requested such assistance. This indicates that at least the request of the territorial sovereign was essential for the legality of the air bombing campaign conducted by the French forces. This conclusion is supported by a statement made by former French ambassador to Gabon, Pierre Dabezies, mentioning three conditions which are necessary before France is able to intervene; “[t]he existence of a defence agreement between France and the country involved; an explicit demand by the latter; and freedom of decision for the French Government, which, in no instance, could be committed automatically.” But he added that “French interventions depend less on precise criteria than on circumstances,”186 which could indicate that these conditions are more guidelines than strict legal criteria. In May of 1978 French Jaguar bombers were again used against the Polisario commandos under the same double justification of the protection of their nationals upon the request of the territorial sovereign. The French Minister of Foreign Affairs noted that the locations where the air strikes had taken place, were places where French nationals were in danger.187 Finally the last intervention under the same justification took place in 1979, and encompassed again an aerial operation against the Polisario Front.188 Eventually an agreement was reached between Mauritania and the Polisario Front in august of 1979, whereby Mauritania relinquished all its claims on their territories in the Western Sahara.189 Justifying the last use of force in Mauritania the French Minister of Foreign Affairs stressed before Parliament that “[o]ne cannot claim that our military action in Mauritania, which was in conformity of Article 51 of the UN Charter in particular, has been contrary to the international obligations of France, nor the requirements of international law.”190 In this case the military agreements between France and Mauritania, as well the request for assistance from the latter, have had a great importance in justifying the legality of the intervention. It can be concluded that the legality of the interventions were primary based upon the collective self-defence by the request from Mauritania, and not an assertion that the threat of the French nationals gave France the right to defend themselves. H. France, Belgium and the United States in Zaire (1978). On the eleventh and twelfth of May 1978 Katangese rebels entered the province of Katanga in the south-east of Zaire, and occupied Kolwezi. During the attack and in its aftermath around 900 people were killed, of which 120 of them were European nationals.191 As a reaction to this violence and in a response to the request of the Government of Zaire French and Belgian troops 185 UN Doc. S/12503 (1977). 186 Rouvez, 1994, p. 133. 187 Lillich, Wingfield, & Meyen, 2002, p. 101. 188 Ibid., p. 103. 189 Rouvez, 1994, p. 168. 190 Lillich, Wingfield, & Meyen, 2002, p. 103. 191 Ibid., p. 100.
  • 25. 24 landed near Kolwezi on the nineteenth and twentieth of May to provide military assistance to the Zairian forces.192 The Belgian Prime Minister Tindemans, justifying the intervention, stated before Parliament that Zaire “is a sovereign State where Belgium cannot simply intervene and that, consequently, an authorization from the Zairian authorities was required to conduct a rescue operation.”193 Thus whereas Belgium on two previous occasions invocated the doctrine as a legitimate justification for their intervention into the Congo, now they hold that authorization from the territorial sovereign is required when conducting such operations. Thereby indicating that even when the doctrine is accepted as a legitimate justification, authorization from the territorial sovereign is still an essential condition for the intervention to be legitimate. The French President Giscard d’Estaing justified the operation “as a normal exercise of the legitimate and inalienable right of France to protect its citizens abroad.”194 Thereby deviating from the condition that a French intervention must be based upon the existence of a defence agreement with the territorial sovereign. Such a treaty did not exist between France and Zaire.195 This indicates that, as the former Ambassador to Gabon stated, the decision to intervene depends more on the circumstance than on the formal conditions. Moreover the statement of the French President indicates the acceptance of the doctrine being a legitimate justification for a forcible intervention. Nonetheless it is not clear how the doctrine must be seen in the light of the prohibition on the use of force, as a humanitarian, self-defence or separate exception. Moreover it does not indicate whether the authorization of Zairian Government was essential for the legitimacy of the intervention. Even though the United States did not commit ground troops, they supported the French, and Belgian intervention by air support,196 and had some 2000 paratroopers on alert.197 President Carter stated that “[o]ur action in Zaire was an appropriate and measured response to the situation”198 and that “[o]ur action to support the rescue efforts in Zaire was taken pursuant to present law.”199 Thereby accepting the legitimacy of the rescue operation, but not indicating whether it was legitimate because it was requested by the territorial sovereign or because the doctrine is applicable in this situation. I. France in Chad (1978-1979). The rebel group Frolinat (Front de Libération Nationale du Tchad) caused unrest in Chad, and started to gain ground in 1975 when the Chadian President Malloum ordered the withdrawal of all French troops stationed in Chad.200 In February 1978, having taken advantage of the French withdrawal, the Frolinat group had conquered and now controlled strategic Chadian cities. At this time the French Minister of Foreign Affairs concluded that the 4.000 French citizens, living in Chad, were not in immediate danger.201 When the rebels approached the Chadian capital of 192 Ruys, 2008, p. 241. 193 Ibid., p. 241. 194 Lillich, Wingfield, & Meyen, 2002, p. 101. 195 Rouvez, 1994, p. 133. 196 Ibid., p. 338. 197 Odom, 1993, pp. 74-75. 198 News Conference May 25th , Dept. St. Bull. Vol. 78 No. 2016 (July 1978), p. 17. 199 Ibid., p. 18. 200 Rouvez, 1994, p. 154. 201 Lillich, Wingfield, & Meyen, 2002, pp. 101-102.
  • 26. 25 N´Djamena to within 250 kilometres, where most of the French nationals lived, the cooperation accord of 1976 was invoked to justify any French action taken against the rebels. France also, upon request by the Chadian Government, deployed 2.500 troops to Chad to support such actions.202 Their objective was described by the French Foreign Minister as “helping the legitimate government find a political compromise to the rebellion.”203 After three French nationals were killed, France stepped up their military efforts. On the twenty-seventh of April 1978 Jaguar bomber planes provided air support to cover the Chadian forces defending Salal, and on the 19th of May 100 troops helped Chadian forces opposing a Frolinat advance at Ati. All this time France never made an attempt to evacuate their nationals.204 These actions of intervention or rather military assistance by France are not legitimized by the usage of the doctrine. But in the winter of 1979 the Chadian Government again requested the assistance of France against the rebels. On the fifteenth of February France started the preparations for the evacuation of their nationals. The evacuation commenced when four French nationals lost their lives in the conflict. In the end France did not only repatriate their own citizens but also nationals from other countries. No additional French forces were used for the evacuation, except for those already in Chad.205 The actions taken by France in this case follow the conditions mentioned by Pierre Dabezies and also fulfil the conditions set by Waldock. Moreover it supports the view that France would only intervene, even when the lives of their nationals are in danger, upon the request of the territorial sovereign. Also the lack of international comments on these actions supports the legitimacy of this approach. Nonetheless there is no indication to conclude that France does not support the unilateral use of the doctrine when their nationals are threatened and no assistance is requested or consent given by the territorial sovereign. J. The United States in Iran (1980). On the fourth of November 1979 the United States’ Embassy in Teheran was stormed by hundreds of armed Iranian students.206 In the course of the attack all the personnel present at that time was taken hostage, moreover other United States personnel and citizens were also taken hostage an brought to the embassy.207 The militants demanded from the United States that the former Shah of Iran, who stayed in the United States, should be returned to Iran for trial. This was refused by the United States Government.208 The next day the Iranian Government fell and the subsequent Government, led by Ayatollah Khomeini, endorsed the actions of the militants.209 Thereby it was clear that the Iranian Government was unwilling to release the American citizens. Among other efforts by the United States to secure the release and return of the hostages, a meeting of the Security Council was requested in order to discuss ways to obtain the release of 202 Rouvez, 1994, p. 155. 203 Lillich, Wingfield, & Meyen, 2002, p. 102. 204 Ibid. 205 Ibid. 206 D'Angelo, 1980-1981, p. 506. 207 I.C.J. U.S. v Iran: United States Diplomatic and Consular Staff in Teheran (merits), I.C.J. Reports 1980, p. 13. 208 Lillich, Wingfield, & Meyen, 2002, p 64; Dept. St. Bull. Vol. 79, p. 50. 209 D'Angelo, 1980-1981, p. 507
  • 27. 26 their nationals.210 On the fourth of December resolution 457 was adopted, which called upon the Iranian Government for the immediate release of all United States personnel.211 When this call from the Security Council was not followed by Iran, another resolution was adopted also demanding the release of the hostages. Moreover this resolution stated that when the Iranian Government failed to comply with the resolution, the Security Council would adopt “effective measures under Articles 39 and 41 of the Charter of the United Nations.”212 In the meantime the case was brought before the International Court of Justice (hereinafter ‘the ICJ’),213 which ordered in a provisional measure on the 15th of December demanding the “immediate release, without any exception, of all persons of United States nationality who are or who have been held in the Embassy [...] or have been held as hostages elsewhere, and afford full protection to all such persons.”214 Nonetheless the Iranian Government still refused to comply with any such request.215 Pursuant to the failure of Iran to release the hostages a draft resolution was proposed by the United States during the meeting of the Security Council on the seventh of January. This draft resolution would institute broad economic sanctions against Iran.216 But on the thirteenth the resolution was vetoed by the Soviet Union.217 After the failure of the diplomatic, political, and judicial demands for the release of the hostages President Carter approved a plan for a military rescue mission on the eleventh of April 1980.218 The mission was carried out on the twenty-fourth, but needed to be cancelled before completion due to mechanical problems. During the withdrawal of the American forces two helicopters collided, which left eight American crew members dead and others injured.219 According to statements from the White House, and President Carter the rescue mission was “ordered for humanitarian reasons, to protect the national interests of this country, and to alleviate international tensions,”220 and “ordered this rescue mission [...] in order to safeguard American lives.”221 Moreover the United States, pursuant to article 51 of the Charter, reported the mission to the Security Council claiming it was an exercise of its “inherent right of self- defence, with the aim of extracting American nationals who have been and remain the victims of the Iranian armed attack on our Embassy.”222 The legal argument used here is in line with the arguments used justifying the Israeli intervention in Uganda. This strengthens the assertion that the United States is accepting the usage of the doctrine as a part of the right to self-defence. Nonetheless it is not clear how the doctrine would be a part of the right of self-defence, as a 210 Lillich, Wingfield, & Meyen, 2002, p 64. 211 SC Resolution 457, UN Doc. S/RES/457 (1979). 212 SC Resolution 461, UN Doc. S/RES/461 (1979). 213 I.C.J. U.S. v Iran: United States Diplomatic and Consular Staff in Teheran (application), 29 November 1979. 214 I.C.J. U.S. v Iran: United States Diplomatic and Consular Staff in Teheran (provisional measures), I.C.J. Request for the Indication of Provisional Measures, 15 December 1979. 215 I.C.J. U.S. v Iran: United States Diplomatic and Consular Staff in Teheran (judgement), I.C.J. Reports 1980, p. 35. 216 UN Doc. S/13735 (1980), pp. 2-3. 217 Dept. St. Bull. Vol. 80 No. 2035 (February 1980), p. 71; the German Democratic Republic also voted against the resolution. 218 D'Angelo, 1980-1981, p. 508. 219 White House Statement, 25 April 1980, Dept. St. Bull. Vol. 80 No. 2039 (June 1980), p. 38. 220 Ibid. 221 Presidents Statement, 25 April 19801, Dept. St. Bull. Vol. 80 No. 2039 (June 1980), p. 38. 222 UN Doc. S/13908 (1980).
  • 28. 27 part of the old customary right, or that the attack on one’s nationals constitutes an armed attack in the sense of Article 51 of the Charter. In a reaction to the mission Iran denounced the raid as an act of war in which the United States invaded Iranian territory and did not respect international law. 223 Nonetheless Iran did not request a meeting from the Security Council to consider the legality of the mission. They only complained about “the military aggression of the United States.”224 No other communications or discussion took place within the Security Council concerning the incident.225 The statements made by Iran clearly support the restrictionists school of thought concerning the prohibition on the use of force, much in line with the previous attitude adopted by the Soviet Union on the subject. Even though the intervention was condemned after the fact by the Soviet Union, China, Saudi Arabia, India, Cuba, and Pakistan, and supported by the United Kingdom, Italy, West Germany, the European Economic Community, Australia, Israel, and Egypt, the reactions did not concern their views on the usage of the doctrine as a legal justification by the United States.226 In its final judgement the International Court of Justice noted that “[n]o doubt the United States Government may have had understandable preoccupations with respect to the well-being of its nationals held hostage in its embassy for over five months. [...] Nevertheless, in the circumstances of the present proceedings, the Court cannot fail to express its concern in regard to the United States’ incursion into Iran,”227 and that “[t]he Court therefore feels bound to observe that an operation undertaken [during the hearings], from whatever motive, is of a kind calculated to undermine the respect of the judicial process in international relations.”228 Nonetheless “the Court must point out that neither the question of the legality of the operation of 24 April 1980, under the Charter of the United Nations and under general international law, nor any possible question of responsibility flowing from it, is before the Court.”229 Thus even though the United States got a reprimand regarding the timing of the intervention, the Court could not and did not pass any judgment on the legality of the intervention under international law. This case clearly shows that the acceptance of the doctrine is primarily based on the basis of capitalist versus communist countries and as such the legitimacy of this and other operations depends on which side intervenes. Nonetheless it has to be noted that even though the countries rejecting the legitimacy of the intervention did not explicitly reject the existence of the doctrine, which could indicate that they could accept the doctrine under other circumstances. K. The United States in Grenada (1983). In the beginning of October 1983 the Grenadian Government under Prime Minister Maurice Bishop was overthrown by a resistance movement led by Deputy Prime Minister Bernard Coard. On the fourteenth Bishop was put under house arrest, and when his supporters tried to 223 D'Angelo, 1980-1981, p. 509. 224 UN Doc. S/13915 (1980), p. 2. 225 Report of the Security Council 16 June 1979 – 15 June 1980, UN Doc. A/35/2(SUPP), p. 49. 226 Eichensehr, 2008, p. 456; Lillich, Wingfield, & Meyen, 2002, p 67. 227 I.C.J. U.S. v Iran: United States Diplomatic and Consular Staff in Teheran (judgement), I.C.J. Reports 1980, p. 43 at 93. 228 Ibid. 229 Ibid., p. 43 at 94.