The Legality of Military Intervention in Venezuela: FAQ

The possibility of military intervention in Venezuela was ruled out this week. But if it resurfaces later, it would need support in the international legal order: the lack of a clear legal basis for a military action can affect the legitimacy of its ends.

Photo: United Nations University, retrieved.

What’s the international legal framework regulating the use of force? 

International law prohibits the use of force among states in international treaties, most importantly in the Charter of the United Nations (Article 2.4) and the Charter of the Organization of American States (Article 22). It’s also founded in customary international law, a set of rules that originates in the actual practice of the majority of states.

The UN Charter contains two specific exceptions to this prohibition. First, the right to self-defense (Article 51) applied whenever a state is the victim of an “armed attack.” Second, as part of the collective security system set up by the Charter, to authorize forcible measures under Chapter VII whenever there is a breach of the peace, threat to the peace or act of aggression (Article 39). This exception could be relevant to the Venezuelan situation since the crisis, by destabilizing the region, could constitute a threat to the peace of the hemisphere. It’s, however, an unlikely possibility as it would meet with vetoes from Russia and (potentially) China.

Are there other exceptions to the prohibition of force, not included in the UN Charter?

In legalese: it depends. Time and again, states have attempted to broaden existing exceptions or find new ones, with the view of opening new avenues for the lawful use of force. Not all of these arguments have been accepted; in the questions that follow, we consider the exceptions that relevant actors and/or media reports consider as bases for the forcible removal of Maduro from power by foreign states.

What is intervention by invitation?

The Charter system is generally not breached when a state consents to the use of force in its territory by another state. In recent practice, states have requested military assistance from their allies, though frequently with UNSC approval, whether expressly (through a Resolution authorizing force) or implied (through other statements). In January, 2013, for instance, Mali requested France’s intervention to combat terrorist groups in its Northern provinces, with the implied approval of the UNSC.

What happens when there are competing claims to be the government of a state?

Sometimes, as in Venezuela today, there is uncertainty over who is authorized to grant consent on behalf of the state. These are highly complex scenarios (entire books have been written about them!) that usually require a case-by-case approach. Generally, it’s accepted that a government needs to have sufficient and effective control over the state apparatus/territory, to be recognized and capable of speaking in its name.

Sometimes, democratic legitimacy can play a role, when a representative but ineffective head of state requests the intervention. Take, for example, the case of Adama Barrow, in Gambia. He was elected in 2016, but the incumbent, Yahya Jammeh, refused to step down. Barrow requested military assistance by ECOWAS and was allowed to remain in power, but, again, with the implied consent of the UNSC.  

This is the main point of controversy for Venezuela. Guaidó neither has effective control of the government nor can he hope to receive implied consent from the UNSC. His purported ability to request intervention rests solely on his democratic legitimacy, which, on its own, is unlikely to satisfy the requirements of international law, as evidenced by the Lima Group statement.

What is humanitarian intervention?

Humanitarian intervention is a legal theory that seeks to justify use of force to protect people in another state from gross and systematic violations of human rights, including at the hands of the authorities when the state is unable or unwilling to safeguard the population.

This purported exception to the UN-Charter regime could be applicable to the Venezuelan situation: Venezuelans have been subjected to gross and systematic violations of their human rights and the Maduro regime has been unable (as a result of the economic crisis) and unwilling (as evidenced in the recent denial of access to humanitarian aid) to protect its population.

Nevertheless, this basis for military intervention is controversial and few states have openly invoked it, even when it seemed to be the most fitting justification for their actions. For example, Tanzania didn’t rely on it when it intervened in Uganda to remove Idi Amin in 1978, and neither did most NATO member states when they intervened in Kosovo in 1999 (with the exception of Belgium). Recently, when the U.S., the UK and France bombed Syrian targets in April 2018 in response to the use of chemical weapons against civilians, only the UK openly invoked humanitarian intervention as a legal basis for the strikes. The vast majority of states did not support the UK’s rationale, including the U.S. and France, which suggests the legality of humanitarian intervention under current international law is highly questionable.

What is the doctrine of “Responsibility to Protect”?

The doctrine of “Responsibility to Protect” (R2P) was adopted by the UN General Assembly (UNGA) in the World Summit Outcome of 2005. Pursuant to this doctrine, each state has the responsibility to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity. When states fail to prevent these crimes from occurring within their territory, the responsibility to protect falls on the international community. Pursuant to this responsibility, the international community, acting collectively, can intervene to protect that population. However, the R2P doctrine as endorsed by the UNGA provides for forcible intervention only when it’s authorised by the UNSC acting under Chapter VII. It doesn’t allow for the unilateral forcible intervention.

It’s arguable that the triggering condition of R2P is met in Venezuela, but this would not entitle any State, acting individually or jointly, to take forcible action without the authorization of the UNSC.

Is the refusal to allow access to humanitarian aid a lawful ground for the use of force in Venezuela?

Refusal to allow access to humanitarian aid does not fit into any of the legal justifications for the use of force. While it may be part of a consideration for triggering R2P, this is a highly unlikely scenario for the reasons already described. Destruction of food carried out by state authorities could be a violation of human rights, such as the right to an adequate standard of living enshrined in the International Covenant of Economic, Cultural and Social Rights, to which Venezuela is a party. Moreover, when performed in a widespread or systematic manner, denial of food could be the means to perpetrate certain crimes against humanity. Denial of humanitarian access is also a war crime, as established in Geneva Convention IV. However, contrary to what has been stated on social platforms, this treaty only applies to international armed conflicts (namely, between two or more states) and is inapplicable, therefore, to Venezuela.