Table of Contents
Part 1: Legal Grounds to Justify Military Intervention
A. International mechanisms within the United Nations Charter for the deployment of armed forces abroad
B. Mechanisms within the domestic systems for the deployment of armed forces abroad
- United States of America
Part 2: Motives to Impose Democracy and Results
A. Moral Basis and Criteria to impose democracy abroad
B. Results of the democratization process through military intervention
During the last State of the Union speech of his presidency, President Barack Obama mentioned the importance of learning from the past mistakes of Vietnam and Iraq. He was certainly referring to the challenges and responsibilities that come together after the invasion of a foreign country. Actually, once there, the pacification processes have proven to be very difficult, and the implementation of democracy even more so. Such action has resulted in catastrophic situations in both countries. This should make us reflect about the countries intervened militarily for the sake of implanting democracy, and question whether democracy can really be implemented through the use of force.
This paper tries to approach the concept of Democracy and military intervention with concepts of law, politics, and sociological conducts which all go together hand in hand, in order to try to shed some light on the massive number of military interventions justified in the name of democracy after the Cold War. Therefore, to write this paper, I have used varied sources from different but interrelated and interconnected disciplines in order to have a broader view of the situation. I also point out my conclusions in light of the research conducted for this paper.
The paper starts with the legal regimes working both internationally and domestically to regulate military intervention by States, with special reference to the Commonwealth and the United States when tackling domestic legislations. Secondly, this paper will focus more on the concept of Democracy used as a justification for military intervention, and finally what are the results of such an intervention.
PART 1: LEGAL GROUNDS TO JUSTIFY MILITARY INTERVENTION
A. International mechanisms within the United Nations Charter for the deployment of armed forces abroad
On September 2004, the UN Secretary General at the time, Kofi Annan, declared in a BBC radio interview that the military intervention in Iraq in 2003 was “illegal”.1 The invasion had been justified ex-ante as pre-emptive self-defence against the weapons of mass destruction (hereinafter WMD) that Iraq allegedly had in its power. Once the mistake about the WMS had been demonstrated, the war that resulted was justified ex-post facto as a way to overthrow Saddam Hussein and establish democracy. This was acknowledged by Tony Blair, the former UK Prime Minister, during a CNN interview in October 2015.2
All of these statements lead us to question, when a State is legally entitled to initiate a military intervention through the use of force. To answer this question, we should first of all consider the United Nations Charter (hereinafter UN Charter), as one of the most ratified international treaties regulating relations between States. Article 2.4 of the UN Charter prohibits the use of force against other States, and this is considered to be the rule. However, the UN Charter also acknowledges the mandate of the Security Council for the “maintenance of the international peace and security”3 which means that it can take all the necessary measures in order to ensure the compliance of member States, including authorizing military intervention against other countries.4 The second exception adduced by the Charter for the legitimate use of force is self-defence. This would mean that a State has the right to fight against any aggression made by another State.5 This concept of self- defence is not unlimited; it must satisfy the necessity and proportionality test to be considered a lawful response to the attack. Necessary means that there is no peaceful solution to avoid the threat; the only solution is to resort to force. Proportionality means that the use of force will be limited to avoid the threat, that is to say, to the force needed to repeal the attack that is coming to the State. Force cannot be used as retaliation, since the proportionality criteria is linked to defending oneself from an attack, not to responding in proportion to the attack received. The purpose is to prevent a future attack. The necessity and proportionality test was specified by the ICJ (International Court of Justice) as requisite for military intervention in the Nicaragua case, among others.6 Once a country has been attacked it is easy to argue self-defence. The real complication comes when a State has not been attacked yet and still uses force as a preventive self-defence, or pre-emptive self- defence. This concept can be traced back in the nineteenth century with the Caroline incident, where the UK entered US territory and set fire to the Caroline ship, which was used to support rebels against UK ruled colonization in Canada; at least one US national died.7 As a result, an exchange of correspondence between US and UK officials brought up the concept of the anticipatory self-defence of the UK and introduced the legitimacy of repealing an imminent attack only when the action is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”.8 Indeed, the idea of imminent threat established by the Caroline affair supposes that a military response to an upcoming threat must be a real and certain danger coming up for which all the peaceful means have been exhausted first; otherwise it would constitute an abuse of the UN Charter system.9 As for today, State practice is not consistent with what are the concrete criteria of the pre-emptive self- defence, nor are the ICJ and the UN General Assembly Resolutions.10
After the Cold War, the ideas of military intervention abroad in the name of Democracy and humanitarian reasons arose.11 However, we must keep in mind that States only can act in self-defence, and any other intervention can only be done lawfully if authorized by the Security Council on the basis of its tasks, already mentioned, under the Charter. This means that a State would still need authorization of the Security Council in order to start a military intervention against a country for the sake of democratization. Without such authorization, the intervention would be considered illegal.
B. Mechanisms within the domestic systems for the deployment of armed forces abroad ! COMMONWEALTH
The power of decision for the deployment of armed forces abroad is concentrated within the Executive power. Currently, in the UK, Canada, Australia and New Zealand, the Executive remains in control of this faculty. It is traditionally the Crown and the Kings, who would initiate wars to defend their people, and therefore the decision to wage war was in their hands alone. However, societies have become more and more democratic and those considerations today are obsolete and in need of change. Such a change would not come easily in some countries, such as the UK. “A key concern over the current deployment power is one of constitutional principle: that Parliament should be the source of the Government ’ s power and not the Crown”. 12 In fact, for such important decisions where people`s lives are put in danger and lethal force is deployed in the name of the State, it seems reasonable to take into account as many stakeholders as possible, and such as decision should be subject to accountability.13 Debates are held to determine whether Parliament should get more control over such decisions. The arguments in favour include that:
! For the sovereignty and legitimacy of the Parliament, all areas of the Executive, without exception, must be controlled through checks and balances; otherwise the Executive would be giving a mandate of deployment that would lack the authorization and support of Parliament in this decision;14
1 Tait, A. (2006), “The Legal War : A Justification for Military Action in Iraq”, Gonzaga Journal of International Law, Vol. 9- Issue 1. Available at : https://www.law.gonzaga.edu/gjil/2006/04/the-legal-war-a-
2 Interview Video to Tony Blair, “Tony Blair says he's sorry for Iraq War 'mistakes,' but not for ousting Saddam”, October 26, 2015 | Video Source: CNN. Available at : http://edition.cnn.com/2015/10/25/europe/tony-blair-iraq-war/
3 Charter of the United Nations signed at San Francisco on 26 June 1945, the constituent treaty of the United Nations, Article 24
4 Ibíd. Articles 39, 41, 42 UN Charter
5 Ibíd. Article 51 UN Charter
6 Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), 27 June 1986, at para. 176; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion 1996 ICJ Rep 226, at para. 41
7 Greenwood, C. (2011), “Self-Defence”, Max Planck Encyclopedia of Public International Law [MPEPIL]. Available at : http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690- e401?prd=EPIL
8 Extracts of correspondence between Mr. Webster to Lord Ashburton1842, “British-American Diplomacy, The Caroline Case”, notes by Miller, H. The Avalon Project. Available at : http://avalon.law.yale.edu/19th_century/br-1842d.asp
9 Deller N., Burroughs J (2003). “Jus ad Bellum: Law Regulating Resort to Force”; Human Rights Magazine Home, 2003 (Vol. 30),Winter 2003 - Laws of War, Available at : http://www.americanbar.org/publications/human_rights_magazine_home/human_rights_vol30_2003/wint er2003/irr_hr_winter03_lawregulatingresorttoforce.html
10 GREENWOOD, supra note 7
11 Kenworthy, L. (2005), “US military intervention abroad”. The Good Society. Available at : http://lanekenworthy.net/us-military-intervention-abroad/
12 HOUSE OF LORDS, Select Committee on the Constitution, 15th Report of Session 2005–06, Waging war: Parliament’s role and responsibility, Volume I: Report. Ordered to be printed 19 July and published 27 July 2006. Published by the Authority of the House of Lords. p. 17 para.37
14 Mclachlan C., “Foreign Relations Law”, (2014). Chapter II “The Foreign relations power”- 4. “The Executive”, D.2 “Deployment of armed forces”; Publisher : Cambridge Univesity press. p. 129-140