The evolution of intervention vs. sovereignty and territorial integrity in world affairs
By David Mayen Ayarbior, Juba, South Sudan
August 5, 2016 (SSB) — Foreign interventions have constantly been a controversial aspect of international security and law. For those countries at the receiving end, prompt reference to the concepts of sovereignty and territorial integrity were/are inevitable as a means of avoiding intervention. For such countries, the two concepts are always used to fend off against intervention proposals by so called superpowers, be they states or international organizations like the UN.
While the two concepts continue to strongly feature in the intervention debate, they are no longer as broad as they used to be. For good or bad, they hold a different meaning in the “new world order” which emerged with the United Nations in 1945, a world security order which South Sudan voluntarily joined through signing the UN Charter as a precondition for its recognition as a ‘sovereign’ nation-state in 2011.
In the pre-UN world order the term sovereignty had meant the power possessed by a nation-state (its government) over a territory and its exercise therein without external intervention. It entailed that rulers (monarchs) had absolute power over their ‘subjects,’ including the power to take lives through royal decrees in lieu of courts of law. Kings were called sovereigns, hence they could order the burning of entire villages of people they labeled unpatriotic traitors and rebel collaborators, and that was deemed within their sovereign rights. No other ruler, near or far, could interfere in such “internal affairs.”
As current international law started to develop, the principle of territorial integrity emerged as a means of stopping inter-state wars (wars between countries). Each empire was prohibited from seeking to expand through conquest. States became subjects of international law, but there were no objects of the law. It (international law) protected weaker states from stronger ones, but did not protect citizens and communities within state boundaries. It was only later in the post-UN (1945) world order that people were considered as the objects of international law whose physical protection from persecution and mass atrocities became the legal system’s cardinal aim.
In the old order, Jews and others were subjects of widespread persecution by European kings, yet the so called civilized world had no legal power to do anything because of old definitions of sovereignty and territorial integrity. In Africa, Khartoum’s scorched earth military campaigns in South Sudan, South Kordufan, Blue Nile and Darfur were/are defended by arguments of sovereignty and territorial integrity. Apartheid thrived in South Africa and European devils like King Leopold considered Congo (then called Léopoldville) a Belgian big farm where pervasive amputations of limbs of “his subjects” were deemed as Belgian internal affairs. Numerous examples in that world order abound.
Because states had a reciprocal duty of non-interference, which was the corner stone of the ‘old world order,’ civil wars were brutal and unchecked as national armies and rebel forces could kill, rape and pillage with impunity. Genocide, war crimes and crimes against humanity were non-existent terms as they were all defensible under arguments of sovereignty and territorial integrity. There were no rules of warfare such as what emerged in the 4th Geneva Convention (1949) which made it a war crime to kill and torture noncombatants (civilians) or enemy soldiers who surrendered, be it in an internal civil war or in enemy territory.
Considering the outline above the question for South Sudan would thus be: aught it continue to overeat relatively discredited arguments of ‘sovereignty’ and ‘territorial integrity’ as the reasons for rejecting the latest IGAD-AU- UN proposal? No. It must avoid overusing those words in all forums, particularly where they don’t make any sense. Should it use its usual bravado posture against such proposals? Well, convincing UN and AU that it is urgently taking concrete steps to establish peace and stability would be the only answer.
Otherwise, once a credible case for military intervention is projected to the UNSC through pictures and statistics, especially if it is blessed by AU and IGAD, South Sudan’s defense will be substantially weakened. Credible statistics of casualties of tens of thousands of soldiers and citizens who continue to be ‘caught in crossfire,’ towns and regions that are conquered and recaptured, evidence of pervasive rape and ethnic targeting, growing patterns of looting, two great battles in Juba (December 2013- July 2016) and continuous massive human flight of millions of refugees and IDPs (now one millions in East Africa) would surely not help the country’s case against the proposed intervention brigade.
The facts above (if objectively accepted) simply demonstrate lack of state capacity, which is not unexpected for a new country anyway. What is unexpected, rather, is for the whole picture and statistics to be out there, yet some “radical” leaders continue to carry everyone along a path of denial. Every year since 2013 the country continues to slide down the drain of multiple senseless rebellions, massive human flight, banditry and skewed counter insurgency.
It would be a demonstration of statesmanship, patriotism, courage, and responsibility to call for controlled and directed help (don’t call it intervention) from our neighbors. If Juba can negotiate terms of detailed security assistance to make sure that no regime change agenda is sneaked into the country through intervention Trojan horses, what would be the problem? Surely, if things are “under control” there would be no need for help. But is it an objective truth that “things are under control”? Could we say with authority that the country does not need external help?
In conclusion, once again, modern international law is different from old (defunct) international law in terms of its target. Today, international law aims to protect the human person through the medium of sovereign states. It entails that governments of sovereign states must protect human beings (citizens and aliens) within their territories. Once mass atrocities, forced exodus and destruction of lives occur within a state, irrespective of the culprit, it is a prima facie evidence of either abdication of state responsibility to effectively protect citizens or its incapacity to do so. The former justifies humanitarian intervention (invasion) and the latter entails state capacity enhancement. Standing aside to watch is rarely an option.
In principle, all countries in the world oppose armed interventions, South Sudan is not an exception. As patriotic citizens we all want to be proud of our full sovereignty and territorial integrity, without even sharing any elements with the 12,000 UNMISS forces currently in the country, let alone adding them or ‘enhancing’ their mandate.
That notwithstanding, those who strongly believe that the country can overcome such grandiose security challenges without any external (regional) capacity enhancement must present a credible demonstration of existing (real) state capacity to that effect. Alternatively, instead of being so emotional about the entire debate, they must first convince the millions of currently fleeing citizens who have refused to believe, before turning to the UN Security Council, AU and IGAD who just rely on substantiated statistics. The balls are now bouncing in Juba and Pagak, while an internationally backed “peace” accord awaits good-faith implementation.
The writer is a Lawyer, Political Economist, and International Security specialist. He is the author of: House of War (Civil War and State Failure in Africa). He can be reached at mayen.ayarbior@gmail.com
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