Reframing intervention in civil war

By Roselina Press

A new project at Melbourne Law School establishes an interdisciplinary research team that will reframe the legal approach to foreign intervention in civil wars. It will also create new opportunities for outstanding female early career researchers in international law and related fields.

The involvement of multiple actors in Syria and Iraq, as well as the Russian military intervention in Ukraine, points to an urgent problem in contemporary international law and politics: many of today’s civil wars are being muddied by foreign involvement, creating complex debates around the legality of external intervention in internal conflicts.

The Laureate Program in International Law at Melbourne Law School, led by Professor Anne Orford, will address this problem. The program, funded by the Australian Research Council’s Laureate Fellowship Scheme from 2015-2020, establishes a major project entitled Civil War, Intervention, and International Law. This project will explore whether, and if so under what conditions, it is lawful for external actors to intervene in support of parties to a civil war.

“While this is a classical problem that has concerned international lawyers for centuries, it has become a very urgent one in recent times, with a resort to an old pattern of proxy wars and support for competing factions emerging across the Middle East, as well as the former Soviet bloc and the Great Lakes region in Africa,” Professor Orford says.

The principle of non-intervention offers the traditional answer to this question. It articulates that states are not free to intervene in the domestic affairs of other states, so that conduct such as arming, financing, or training rebels in other countries as multiple states have done in Syria – is in breach of this nonintervention principle.

This principle was reaffirmed in 1986 in an iconic decision by the International Court of Justice in the Nicaragua case (Nicaragua v. United States of America).

But the international law expert says the traditional principle of non-intervention has come under increasing pressure over the past decades.

“There has been enormous pressure to rethink the bases on which external actors can intervene in support of rebels or other parties to a civil war. That pressure has come from militarily powerful states, but also from aid organisations seeking humanitarian access to war zones, and even multinational corporations seeking to secure their personnel and investments.”

Modern-day conflicts have also become more complicated because of the range of actors involved, such as foreign fighters, non-state actors engaged in cross-border terrorist activities, and international humanitarian organisations that undertake crossborder relief operations to reach civilians in need, at times without state consent.

If the principle of non-intervention in civil wars is being eroded, a new international legal framework is necessary to inform decisions about when foreign actors can lawfully intervene, and their responsibilities if they do.

The dangers of an ‘anything goes’ approach to intervention and the resulting unrestrained militarisation of civilian life are clear from the situation in Syria.

She says her research aims to develop new legal concepts to make sense of the emerging rights and obligations of external interveners in civil wars.

“The Laureate Program aims to explore whether the principle of non-intervention is able to grasp and address these increasingly complex situations, and if not what legal concepts and frameworks are needed in its place.

“It brings together historical research, legal analysis, and critical theorising to develop a conceptual framework that can better grasp the changing patterns and practices of intervention.”

The Laureate Program also brings together an international team of postdoctoral and doctoral researchers that will work collaboratively with Professor Orford on the project over the next five years.

Laureate Program researchers

L-R: Mr Luis Bogliolo, Ms Marnie Lloydd, Dr Fabia Veçoso

Fabia Veçoso, a Postdoctoral Fellow with the Laureate Program was excited to join the research team because of the opportunity to explore a crucial problem within international law.

The topic of the project is the main question we as international lawyers are asking ourselves. International law seems to be failing to regulate or deal with war, and we can see this every day on the news.

Doctoral Scholar Luís Bogliolo says Melbourne Law School’s reputation for critical scholarship is what drew him to the Laureate Program.

“I think Melbourne Law School is one of the best places in the world to do innovative research in international law,” Mr Bogliolo says.

Each year the Laureate Program will bring to Melbourne visiting scholars and practitioners from across the world to work with the project researchers, and with interested faculty and students at the Law School.

Marnie Lloydd, also a Doctoral Scholar with the Laureate Program, says one of the factors that interested her in the project was its emphasis on international collaboration.

It is so interesting to have people who have studied and practised law in different contexts and settings. We all get to come together and learn more from each other.

As a recipient of the 2015 Kathleen Fitzpatrick Australian Laureate Fellowship, Professor Orford will also undertake an ambassadorial role to promote women in research and mentor early-career researchers in international law and related fields.

I have used the funding associated with this award to create visiting early career fellowships to enable postdoctoral and doctoral researchers to visit Melbourne and work with the Laureate Program for up to two months each year.

Christina Nowak of Bonn University in Germany joined the Laureate Program earlier this year as a Kathleen Fitzpatrick Visiting Doctoral Fellow.

“Working with Anne Orford, one of the leading experts in her field, was a pleasure and an honour. It has been very rewarding to work with a female professor,” Ms Nowak says.

Professor Orford says she hopes the Laureate Program will help inform public debates about the legal issues involved in intervention.

“The project aims to offer policy-makers and the public a clearer sense of the legal and political issues at stake in the current pressure to transform the practice of intervention, and to help make decisions about international engagement a more deliberative and informed process.”

Banner Image: Professor Anne Orford (supplied)

This article originally appeared in MLS News, Issue 15, June 2016.