When and How is Intervention Acceptable?

The drama is unfolding as I write and events may well overtake me – but some of these reminiscences may merit a longer durability. At an ephemeral level the military intervention and seizing of the head of government in Venezuela (let alone any future administrative occupation and control) by the US sends a dismal signal to the rest of the world – and could be taken to be an encouragement to Xi Jin Ping to invade Taiwan and Russia to occupy other parts of Europe or those states which have recently gained independence from Moscow. Therein lies a danger, especially if we are seeing a polarisation into a new Monroe Doctrine (now, seemingly, referred to as a “Donroe” doctrine) of superpowers acting with impunity in their own “back yards”. No doubt from the perspective of the White House this is a manifestation of MAGA and securing the USA’s defences and strength in a polarised and dangerous world in which control of the “Western Hemisphere” (including Greenland) means denial of influence or interference from both China and Russia (it is true that they both have lost their foothold in Venezuela). It will be portrayed as bolstering the land of the free and the home of the brave as a beacon for the troubled world.

What is the extent of President Trump’s ambition for Venezuela with its massive crude oil reserves on which he has already set his eyes? Is it, by way of a referendum of the people of Venezuela to incorporate it as a state of the United States? For a narcissist leader it would firmly put him in the record books! The greatest expansion of the USA was by buying territory (Louisiana Purchase 1803) although maybe the vendors did not really know what they were giving! Alaska was bought from Russia in 1867. Hawaii was annexed in 1898 after the overthrow of its government. Samoa was acquired by the United States in 1900 after a civil war and the US Virgin Islands were purchased from Denmark in 1917 (maybe Greenland will succumb to the same fate!). The Panama Canal Zone was bought in 1904 but returned to Panama in 1979. I mention all this just to show that there is plenty of precedent for such territorial aggrandisement which could include Venezuela with popular consent: after Chavez and Maduro with the offer of US bribes and prosperity as well as the votes of the diaspora in Florida desperate to go home it is perhaps not too far-fetched to think that there could be popular support. 

This, of course, is not the first time the US has flexed its muscles in its own back-yard (without much regard for international law): the invasion of Granada under Ronald Reagan (neglecting to give prior warning to the Head of State the UK Queen!) in 1983 - following the invasion there was an interim government appointed and then a general election (a useful precedent?). Then there was the intervention in Libya in 2011 - described by President Obama as his “worst mistake” because there was no ongoing political plan and, clearly, the lesson of the invasion of Iraq in 2003 which suffered from the same defect, had not been learned. Coupled with the disaster of the Vietnam War and then Afghanistan it is perhaps fair to state that, on balance, US military involvement overseas has not been particularly successful. We must now await the outcome of Venezuela. Will that be the end? Speaking aboard Air Force One President Trump noted that Cuba now faces serious economic difficulties due to the loss of Venezuelan oil support “Cuba looks like it’s ready to fall. I don’t know how they’re going to hold on. All their money came from Venezuela, from Venezuelan oil. They’re not getting any of that anymore". There are many Cuban exiles in USA and even more Americans who long for legitimate Cuban cigars (presently denied them)!  Maybe Colombia will be next. Who will stop him (hardly Congress – at least until the mid-term elections – and many Americans will see a manifestation of MAGA in what is being done and feel proud? 

We are already into a post-rules-based-order system in which, as in most periods of history, might has been right (it was this on which the colonial system was based) and we have been beguiled only recently in historic terms by the belief that we can apply rules of war and conduct on states that have no realistic fear of meaningful punishment. The retribution comes later when revolution and regime-change strike - as they always do!

The much-quoted Westphalian world (the two Treaties in 1648 which ended the Thirty Years War in which some eight million people had perished), while safeguarding Christians of non-dominant denominations their right to practice their faith, established the exclusive sovereignty of each party over its lands, people, and agents abroad. The Peace of Westphalia established the precedent of peace reached by diplomatic congress and a new system of political order in Europe based on the concept of co-existing sovereign states. The Westphalian principle of the recognition of another state’s sovereignty and right to decide its own fate remains one of the foundations of international law today but the subsequent creation of human rights mechanisms such as the Geneva treaties now also encompasses the interest of other states and international organisations in what states can do legitimately both within and outside their own borders – untrammelled sovereignty has been curtailed by the rule of law even if, in reality, it is a paper tiger.

As we have just celebrated the eightieth anniversary of the first gathering of the newly created United Nations in Methodist Central Hall, London, it is timely to ask for how long and extensively have we lived under the international rules-based system or is it a comforting fiction that we have mouthed to make ourselves feel that humanity had finally found a substitute for brute force and conquest. Certain measures in the past have attempted to create reassurance between the major nuclear powers through greater transparency (indeed, I was part of one myself when British nuclear scientists and I went to Moscow in the early 1980s at the request of the Soviet Academy of Sciences to discuss mutual inspection of nuclear tests) yet many of these have been eroded or ignored. As another example, the Treaty on Open Skies established a programme of unarmed aerial surveillance flights over the entire territory of its participants. The Treaty was designed to enhance mutual understanding and confidence by giving all participants, regardless of size, a direct role in gathering information about military forces and activities of concern to them. It entered into force on 1 January 2002 and currently has 32 party states. Yet on 22 November 2020 the United States withdrew from the treaty followed by Russian formal withdrawal in December 2021 citing the US withdrawal and the inability of member nations to guarantee that information gathered would not be shared with the USA. Maybe we should be thankful that 32 other countries still subscribe.

In answering the question posed above, however, we need to separate principle and intent from practice and reality. Franklin Roosevelt’s vision was of an United Nations which governed international relations and he was prepared to sacrifice the liberties and future of Poland in order to ensure that the then Soviet Union under Stalin signed up to it – for without Russia it could not be globally embracing. The problem was, as with so many international treaties, that to get as many other states as possible to subscribe they had to feel that the obligation was not threatening to their basic sovereignty. It is easy to see now how the seeds of its own impotence were sewn in giving the five victorious nations of the Second World War (which, of course, included Nationalist China and not Mao’s communist regime) a right of veto in the Security Council; we now see that as a cause of the inability of the Security Council to act according to its mandate but at the time was a price necessary to pay for adherence. Moreover, there was a common view among many of the Western states that the next war was to be with Russia and was almost inevitable. The direct consequence was the nuclear arms race and the Cold War – living under the threat of Mutually Assured Destruction (MAD) could hardly be argued as living under the rule of law. Perhaps it is amazing that in so many international treaties states have been prepared to trade a degree of sovereignty for what was perceived to be a greater good and reinforced security (NATO’s Article 5 commits a non-combatant participant to war if another is attacked; the International Criminal Court [ICC] requires states to renounce the impunity of their Heads of State etc). 

It is no surprise, therefore, that as the very basis of the UN was and remains the nation state that nation states will limit any real interference with their autonomy. While the good intentions and principles for a fair world free from the scourge of war were enshrined in the organs of the UN, what they lacked along with so many subsequent treaties was an effective mechanism for enforcement. So how are decisions enforced, if at all? Article 10 of the UN Charter, which defines the functions and powers of the General Assembly, states “The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and … may make recommendations to the Members of the United Nations or the SC or to both on any such questions or matters.” In other words, resolutions adopted by the General Assembly on agenda items are considered to be recommendations. They are not legally binding on the Member States. The only resolutions that have the potential to be legally binding are those adopted by the Security Council.  The website of the UN states that its work “is carried out in many ways - by courts, tribunals, multilateral treaties - and by the Security Council, which can approve peacekeeping missions, impose sanctions, or authorize the use of force when there is a threat to international peace and security, if it deems this necessary.” 

The International Court of Justice, designed to adjudicate on issues between states (such as territorial disputes), is competent to entertain a dispute only if the states concerned have accepted its jurisdiction (hence a long-standing campaign by some INGOs to encourage mandatory jurisdiction – but even that would leave open the matter of enforcement of a judgement).  The ICC’s provisions apply only to those states that have ratified it – which, therefore, excludes China, India, Russia, and the United States.  It is true that the Security Council can approve peacekeeping missions, impose sanctions or authorize the use of force when there is a threat to international peace and security but we are then back to the problem of the use or threat of use of the veto which has so often rendered the UN ineffective. To examine examples of attempted enforcement is beyond the scope of this article but the lack of effective enforcement is a permanent hindrance to the realistic observation of the rule of international law. In the current geo-political climate this is hardly likely to be remedied.

Global reaction to the violation of Venezuelan sovereignty has been interesting. Significant parts of the British Labour Party (although the Government is trying to hedge its bets) have expressed opposition; the Conservatives have sat on the fence with it being too early to judge! So what are the legal implications of what, on its face, is a gross breach of international law against aggression (a crime within the jurisdiction of the International Criminal Court but only in respect of those recognising it - the US is not a signatory). Is it enough to have legal condemnation? The use of a camouflaged US aircraft to sink a Venezuelan ship returning to harbour has been condemned as a war crime. There is the long-delayed hearing in the International Criminal Court of the case of The Gambia seeking a determination that Myanmar’s treatment of the Rohingya is genocide. Will judgements or even international consensus on these issues bring the alleged perpetrators to punishment? There may be some sanctions in some cases but otherwise the world will merely stand by.

The USA has never recognised Maduro as Head of State of Venezuela (significantly, with some exceptions, those who do so are within the Chinese or Russian sphere of influence). None in the Western sphere of influence have recognised Maduro. Lawyers will argue that his seizure (albeit from within Venezuela’s sovereign territory) was a legitimate law enforcement action following his indictment in USA (presupposing that it is recognised in Venezuela). Is it akin to the search and kill action that took out Osama bin Laden in 2011? On 16 March 1998, Libya issued the first official Interpol arrest warrant against him which was still in place at his death and on 4 November 1998 he was indicted by a Federal Grand Jury in New York on charges of Murder of US Nationals Outside the United States, Conspiracy to Murder US Nationals Outside the United States and Attacks on a Federal Facility Resulting in Death). There were several attempts to kill him in different jurisdictions until he was shot and killed by Navy Seal operatives in Abbottabad, Pakistan. Few will mourn both the death of bin Laden and the arrest of Maduro but they both arguably represent extra-international-judicial authority – another nail in the coffin of the rules-based order. 

We all are having to adjust to a new, authoritarian, uncertain and unprincipled world until humanity once again wakes to the knowledge that the rule of enforceable law should apply as equally to the international order as it does in a local community.

Keith Best TD, MA is a former Conservative Member of Parliament (MP) for Anglesey/Ynys Môn and served as the Parliamentary Private Secretary to the Secretary of State for Wales. Major in airborne and commando (artillery) forces, practising barrister, liveryman (Loriner), and Freeman of the City of London, Keith was named one of the 100 most influential people in public services in the UK by Society Guardian. Keith has made significant contributions to international refugee and human rights initiatives, including serving as Vice Chair of the European Council on Refugees and Exiles and as a member of the Foreign Secretary’s Advisory Panel on Torture Prevention. He is the Chair & CEO of the Wyndham Place Charlemagne Trust, Chair of the Universal Peace Federation (UK), patron of TEAM Global, and a trustee of several national and international organisations. 

The views and opinions expressed in our International Insights are strictly those of the authors and do not necessarily reflect the views, policies, or positions of TEAM Global or its affiliates.