Military Assistance

Under international law, the most important principle governing the provision of military assistance is non-intervention. Non-intervention is a bedrock of international law in general and featured in the treaties that launched the modern state system, known as the Peace of Westphalia of 1648. Today, the principle is restated in United Nations General Assembly resolutions, including: Resolution 2131 of 1965, the Declaration on the Inadmissibility of Intervention; Resolution 2625 of 1970, the Declaration on Friendly Relations; and Resolution 36/103 of 1981, also the Declaration on the Inadmissibility of Intervention. Article 1 of Resolution 36/103 provides: “No State or group of States has the right to intervene or interfere in any form or for any reason whatsoever in the internal and external affairs of other States.” The International Court of Justice applied the principle in a case with some parallels to the Venezuela situation. In the Nicaragua case, the International Court of Justice quoted Resolution 2625, “Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the régime of another State, or interfere in civil strife in another State.”Footnote ¹

Out of respect for the principle of non-intervention, therefore, only a government may request military assistance and then only within certain limits. This conclusion requires analysis of the international legal principles identifying the “government” as well as elaboration of the limits on even the government's right to request military assistance.

Identifying Governments Under International Law

In January 2019, the issue of identifying the government of Venezuela arose dramatically. Two individuals claimed to be the legal or de jure government. Maduro was inaugurated on January 10 following nationwide elections. Guaidó argued the elections were unfair and that he could therefore invoke Article 233 of the Venezuelan Constitution, which provides for the leader of parliament to step in for thirty days as interim president if the president is incapacitated, absent, or the Supreme Judicial Court so orders. Guaidó asserted that Maduro was “absent” because of the allegedly tainted elections. Guaidó further contended that the period of thirty days would only begin after Maduro actually leaves office. Both interpretations appear attenuated. Maduro has argued that such interpretations fall under the jurisdiction of the courts, not individuals. Nevertheless, over fifty states, including the United States, have recognized Guaidó as the head of government and began to take practical steps accordingly, such as declaring diplomats loyal to Maduro to be persona non grata and ordering them to leave in favor of Guaidó’s appointees.

Under international law, recognition is a political act with legal implications. States are not obligated to officially recognize governments, but states do have a duty to treat the de facto government as the government. The standard authority on this point is an award in the Tinoco Case made by former U.S. President William Howard Taft in 1923.Footnote ² Tinoco took power in Costa Rica in violation of the Costa Rican constitution. Taft ruled that because Tinoco was in effective control, on the international plane, his actions had binding effect for Costa Rica. The effective control test remains the standard to determine who the government is, regardless of whether a government changes through election, military coup, or civil war. It is a test that may not reflect democratic ideals but does make sense as a practical matter at home and abroad.Footnote ³

One important exception exists to the effective control test of government. If a government has been driven out of power by a foreign state military intervention in violation of United Nations Charter Article 2(4), which prohibits the use of force, the deposed government will not lose its status as the government. Two examples come readily to mind. When Iraq invaded Kuwait in 1990, Kuwaiti government officials fled the country and set up a government in exile. The United Nations continued to recognize the exiled officials as the government, taking military action to liberate Kuwait from Iraq, at which time Kuwaiti officials returned and resumed governing the country. Similarly, when Russian military forces moved to occupy Crimea, a region of Ukraine in 2014, it violated Article 2(4). Russia's claim to have legally annexed Crimea is invalid, and Ukraine remains the government of Crimea. As a military occupier, some of Russia's actions with respect to government services to the people living in Crimea are valid. The issuing of birth and death certificates, for example, cannot wait until Ukraine is restored to control. Internationally, however, the story is different.Footnote ⁴ Thus, if foreign states used military force to force Maduro out of power, he would remain the government owing to the violation of Article 2(4).

Limits on a Government's Right to Request Military Assistance

While only a government may request outside military assistance, even a government has limits on its right to make such requests. Principles of self-determination and human rights are most relevant to these restrictions. Governments like Kuwait's in 1990, may request assistance in collective self-defense to remove an occupier and return to power under the terms of UN Charter Article 51. That is a right limited to the needs of self-defense. Governments restored to power may not use force to take control of foreign state territory beyond the temporary needs of the military action in self-defense. The defending state may not change the regime of the attacking state or in other ways seek to punish it through the use of force.Footnote ⁵ The acquisition of territory through the use of military force has been deemed unlawful following the adoption of Article 2(4). In addition, the general principles of necessity and proportionality hold that any use of force beyond that needed to accomplish the lawful objective is unlawful.

The right of a government to request outside assistance to respond to internal armed challenges is more limited. Governments must respect human rights. Disproportionate force may not be used even in responding to armed challenges. In addition, if an armed challenge reaches the level of belligerency—a level at which it could potentially prevail militarily—outside military assistance to the government in responding to the internal challenge must end. Foreign states may not prop up a government through military assistance as France did in Mali in 2013. Russian military assistance to the government of Venezuela appears to have been lawful as the opposition has not attempted to take up arms to fight the government. That could change, at which point, Russia would be required to withdraw in the interest of self-determination. It is for the people of a state to determine their own government, not outside military force.

Humanitarian Assistance

International law places no limits on the provision of food, medicine, and shelter when populations are in genuine need.Footnote ⁶ The providers must not, however, use force to distribute humanitarian assistance. Personal self-defense and limited force to prevent theft are permitted. Using force to get past government troops with aid shipments is unlawful.

Police Uses of Lethal Force

Unless a government faces an organized armed group capable of fighting its military, it must follow peacetime law enforcement rules in containing challenges, even violent ones, to government authority. Every human being has a right to life. This right is affirmed in the International Covenant on Civil and Political Rights in Article 6: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” In peacetime, government authorities may only risk taking a life when “absolutely necessary in defence of persons from unlawful violence.”Footnote ⁷

If a government uses force beyond these limits, international and regional human rights mechanisms are available to order remedies. The cases cited in the previous paragraph are examples of such mechanisms at work. On the other hand, individuals and groups that have been victims of the excessive use of force by governments do not have a right to take up arms against the government. Even if they do not have practical access to a mechanism to receive a remedy, they have no right to use force beyond personal self-defense of the kind found in every domestic criminal law code. Killing in any other circumstance would deny the victim his or her right to life. One author wants to see a broader right by non-state actors to resort to organized armed force in self-defense but admits the law does not currently permit it.Footnote ⁸ It is this author's view that the prohibition on the use of force found in Article 2(4) is a jus cogens norm, meaning it is not subject to new exceptions that might derogate from its reach.Footnote ⁹

In addition, the general principles of necessity and proportionality apply to all uses of force. These principles alone would block any lawful resort to force by groups. Without outside military intervention or mass defections to the opposition by the state's own forces, resort to force by non-state actors has little chance of success. The Syrian Civil War, which began in 2012, is a prime example. Yet, as just discussed, outside military assistance to groups other than the government is unlawful. As for defections, this is a highly uncertain factor and as such cannot be the basis for assessing prior to a resort to force a party's chance of success required by the principle of necessity. In the case of Venezuela, it has been clear that the military has largely remained loyal to Maduro. Attempts to encourage defections have failed.

Even with defections, anti-government armed action has a poor track record. Consider the cases of Libya in 2011, Yemen in 2015, and South Sudan in 2013. Armed action against the governments have led to drawn-out, brutal conflicts. They will end eventually, as Colombia's fifty-two-year-long civil war has, through negotiation. Honduras, which also experienced a leadership crisis in 2009, did not descend into civil war. The Organization of American States played an active role in resolving the dispute. Venezuelans are already engaged in talks in Norway. It is far better to commit to those talks and avoid military confrontation at all costs.

One member of the panel pointed to a single case of U.S. military intervention that he said resulted in a successful democracy: the 1989 U.S. invasion of Panama. The United States has always maintained that “only” about three hundred people were killed and around 1,200 were wounded during fighting in which twenty thousand U.S. troops participated. Human Rights Watch and others, however, report that indiscriminate U.S. bombing killed far more. No attempt was made to support a peaceful transition of power. While Panama is more successful today than its neighbors, that does not prove an unlawful invasion and many deaths are the reasons why. Data does not support outside military intervention to achieve successful states, as Chenoweth and Stephan have shown.Footnote ¹⁰