Civil conflict prohibited? : emerging norms of jus ad bellum internum

Civil conflict, a violent conflict fought between factions internal to a sovereign State, is traditionally considered to be a domestic matter within the exclusive jurisdiction of States and neither permitted nor prohibited by international law permission. However, increasingly, States, regional organisations and the UN intervene in civil conflicts: they condemn civil conflicts, call on parties to cease fighting and to resolve their disputes by peaceful means, and impose sanctions or intervene forcefully. This thesis reviews this accumulating practice, which has up to now not been systematically analysed, and explores what changes it evidences - or foreshadows - in the relationship between civil conflict and international law.
The thesis adopts a two part structure. Part I reviews and categorises the practice of the international community (particularly that of the Council, States and regional organisations) in response to civil conflict. Part II seeks to analyse this practice and investigates whether it evidences the emergence of new norms of jus ad bellum internum prohibiting certain forms of civil conflict.
The thesis begins by setting out a cross section of relevant practice. It first charts the practice of the Security Council in response to 42 civil conflicts since 1945. The thesis then considers three recent cases studies in detail (Sierra Leone, Côte d'Ivoire and Liberia) from the perspective of the response of the Security Council, States and regional organisations.
This review establishes that there is a substantial and growing amount of international community intervention in civil conflicts, contrary to what could be expected given its domestic nature. The thesis then turns to an analysis of this practice, which essentially requires an evaluation of the impact that condemnatory practice by States and regional actors and the Security Council can have on international law. In general terms, an evaluation of whether this practice should be characterised as a policy - or nonbinding - response, or whether its existence and repetition evidences, or anticipates, the emergence of international law rules, such as the emergence of new customary law norms of jus ad bellum internum.
In order to address this issue, it became clear that a number of methodological questions that have not up to now received much attention in the literature would need to be considered: in particular the role the Security Council plays in shaping new international law. This role is markedly under-theorized - in contrast to that of the General Assembly practice in customary law formation which has been widely debated - but is central to the thesis because of the remarkable scope of Security Council practice in response to civil conflicts. Following the examination of this question, the thesis takes the view that Security Council practice is relevant evidence of the practice of States and of the collective attitude of the international community. It also influences the conduct and attitude of States. In addition, where the Security Council regularly condemns certain conduct in a range of similar situations and seeks to enforce its condemnation, it can create a quasi-legislative prohibition against that conduct.
Following the analysis of the practice, the thesis concludes that contrary to widespread assumptions, civil conflict is no longer treated as a domestic matter, and is increasingly being recognised as having a severe impact on the peace and stability of the world. A major and continuing shift in practice is relied on to support predictions of fundamental change in the perception of the legality of recourse to force in civil conflict. The thesis identifies three possible norms within the practice: the rejection of civil conflict aiming to overthrow a democratically elected government; the rejection of civil conflict aiming to cause or causing massive violence against civilians; and the rejection of civil conflict which is undertaken for political aims (other than in self-defence by a State against violent uprising or by a people in self-defence against violent oppression).
Much of the practice is too recent and not established enough in the public discourse of States to evidence the emergence of traditional customary law rules at present. Nonetheless, there is strong evidence to support the emergence of a limited norm prohibiting the overthrow of a democratically elected government. In addition, the extent and scope of the international community condemnation and rejection of civil conflict can be taken to support the proposition that, in time, broader international prohibitions against civil conflict will crystallize in international law.