By Priya Pillai
As the situation does not meet the requirements articulated by the ‘responsibility to protect’ doctrine, unilateral military intervention would fall foul of Article 2 of the UN charter.
The current crisis in the Maldives has led to calls for intervention by India. Mohamed Nasheed, the former president of the Maldives, who was democratically elected and is now in exile, tweeted on February 6 requesting India to “send envoy, backed by its military, to release judges and political detainees…”, and specifically requesting a “physical presence”.
On behalf of Maldivian people we humbly request:
1. India to send envoy, backed by its military, to release judges & pol. detainees inc. Prez. Gayoom. We request a physical presence.
2. The US to stop all financial transactions of Maldives regime leaders going through US banks.
— Mohamed Nasheed (@MohamedNasheed) February 6, 2018
In other words, diplomatic and military intervention by India.
A brief context of this crisis is relevant to better understand the nuances in assessing international law relating to the question of such an intervention. On February 1, the Supreme Court of the Maldives issued an order ordering the releaseof former political prisoners. When the police chief indicated he would comply with the court order, he was fired from his post by the current president of the Maldives, Abdulla Yameen. Subsequently, the Supreme Court was forcibly entered, with the chief justice and other judges arrested. A state of emergency – which entails the suspension of basic rights – has been declared. The Supreme Court order has now been rescinded.
International law: Non-intervention and the use of force
The United Nations Charter is the foundation for relations between states and embodies the principles of sovereignty and non-intervention in the internal affairs of other states. Article 2 (4) of the Charter prohibits the threat or use of force against the territorial integrity or political independence of any state by any member of the UN, and Article 2 (7) restricts the UN from intervening in matters within the domestic jurisdiction of state, unless authorised under Chapter VII of the UN Charter.
This chapter relates to the restrictions on the use of force, and the standards to be met in case of the exception, i.e. a determination by the UN Security Council of a threat to international peace and security. Article 51 permits the use of force but this is limited to the case of self-defence, which is in the event of an “armed attack”, which must be imminent. Any such threat or use of force must comply with the principle of proportionality. Fundamentally, the principle of sovereignty – a corollary of which is non-interference – is the guiding factor in the Charter.
The International Court of Justice (ICJ), the adjudicatory body for inter-state disputes, reiterated the emphasis on non-intervention in its 1986 decision in the case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). In this case, the ICJ proscribed “prohibited intervention”, which included direct military action, or indirect support (such as supporting subversive or terrorist activities in other states). However, there have been many instances when this principle has been tested.
From humanitarian intervention to the ‘responsibility to protect’
What of cases where human rights within a state are being violated? Are there certain thresholds or circumstances wherein military intervention would be justified? While contested, an argument formulated for the exceptional step of intervention is on the basis of a humanitarian crisis.
An early instance of such humanitarian intervention was undertaken by India in 1971. The mass influx of millions of refugees over the border from East Pakistan (now Bangladesh) and the commission of mass atrocities, was determined to be sufficient to justify the use of military action by India. However, it is worth noting that despite the egregious violations of human rights, the action was not approved by the UN Security Council and was unilateral.
Since then, while there have been other instances of humanitarian intervention, the crises in the Balkans and Rwanda lead to a recalibration of such situations and the approach to be taken. Starting with the report of the International Commission on Intervention and State Sovereignty set up by the Canadian government in 2001 to the UN World Summit Outcome in 2005, the evolution of the ‘responsibility to protect’ doctrine is now well established.
While there are still detractors, there is broad consensus as to the manner and circumstances in which it may be invoked and implemented. The fundamental responsibility is placed on the state itself to fulfil its obligations to its people, including the protection and respect of human rights.
In case of the commission of mass atrocities (a categorisation which includes defined international crimes such as genocide, war crimes, and crimes against humanity), military intervention may be justified but as a last resort and only with the safeguards and authorisation of the UN Security Council. The examples of Sudan, Myanmar and others with such egregious violations of rights would be more amenable to the application of such a doctrine. However, the requirements of collective consensus and action by the Security Council still are to be adhered to – i.e. unilateral intervention is still not permitted.
The way forward
While assessing the arguments for intervention and the regional policy implications that hinge on this decision, it would also be prudent to calculate the wider implications, not just in terms of legality. The need for authorisation for the use of force, the question of impact of unilateral action on UNSC reform advocated by India, and the implicit nod to potential future intervention by other states are all factors that need to be taken into account. While the previous intervention by India in the Maldives in 1988 may be brought up, this was at the express invitation of the government of the Maldives – and within the bounds of legality per the ICJ Nicaragua decision.
Clearly, the Maldives is in the grip of a political crisis, with the erosion of democratic norms and human rights. The declaration of the state of emergency is particularly worrying, as are the steps taken against detractors of the government. However, this does not meet the requirements as articulated by the ‘responsibility to protect’ doctrine.
The best approach would be diplomatic pressure and other means (including possibly the use of targeted economic sanctions). Launching unilateral military intervention however would clearly fall foul of the requirements of Article 2 and Chapter VII of the UN Charter, and would be illegal under international law.
Priya Pillai is a lawyer specialising in international law, based in Manila. She tweets at @PillaiPriy.