Legal but Illegitimate Interventions - Legitimacy of Governments and Intervention by Invitation under International Law

Abstract: Under international law, a government of a state is entitled to the sovereign right to invite another state to intervene militarily on its territory. This type of consensual use of military force is an exception to the rules on prohibition of use of force among states, and unlawfulness is precluded through such governmental consent. The extent to which a government is entitled to invite has been discussed and debated amongst scholars, and it is not entirely clear what the position of international law is in all cases. This is especially true if there is an internal conflict of a civil war character in the state, and this is the issue that I engage with in this thesis. This thesis investigates the legal concept of intervention by invitation, and seeks to understand its reach and limitations in times of civil war. It is concluded that a government’s ability to invite foreign intervention is mainly based on control of territory, and not on normative concerns or legitimacy of the government. Therefore, a government’s potential lack of support, or abuses of its population, is not taken into account when assessing the validity of an extended invitation. This enables also abusive or authoritarian regimes to invite foreign assistance in times of civil war. It is, in my view, problematic that the incumbent government has an absolute prerogative to invite foreign assistance without any normative criteria, which enables the incumbent government to prevail in the civil war. This thesis instead poses the suggestion that governmental legitimacy ought to be a significant criterion when assessing validity of an invitation to intervene into a country plagued by civil war or widespread internal unrest. In such an assessment, I suggest that indicators of legitimacy be consulted, in order to establish if the incumbent government indeed is legitimate, and thus is entitled to the sovereign right to invite. The question I engage with is, thus, if a regime can act as the representation of state sovereignty, if it lacks legitimacy stemming from its population. Therefore, this thesis contemplates if there is a need for international law to discuss illegitimate governments, and if an assessment of legitimacy is desirable. In this discussion the normative arguments on Humanitarian Intervention and Responsibility to Protect are discussed and analogised. A new possible order of effective protection of populations, rather than effective control of territory, is discussed. In support of the proposed legitimacy assessment, a number of indicators of legitimacy are discussed, which are supported by the frameworks of human rights and international humanitarian law. Arguments against such a legitimacy assessment are brought forward and discussed as well in this thesis, and possible risks of abuse and objectivity concerns are investigated and considered. This thesis has its starting point in the Syrian civil war, and thus the proposed legitimacy assessment is applied to this conflict in a limited case study.