Doctrine of the protection of nationals abroad: rise of the non-combatant evacuation operation.

• Published date: 22 September 2012
• Author: Thomson, Andrew W.R.
• Date: 22 September 2012

TABLE OF CONTENTS
                I. INTRODUCTION
                II. PROTECTION OF NATIONALS ABROAD DOCTRINE
                 A. Legal Doctrine of the Protection of Nationals Abroad
                 1. An Exception to the Prohibition on the Use of Force
                 Under Article 2(4)
                 2. Article 51: Self-Defense
                 3. The Doctrine of the Protection of Nationals Abroad as
                 Self-Defense in Customary International Law
                 4. State Practice Until the End of the Cold War
                 5. State Practice from the U.N. General Assembly
                 6. State Practice Post Cold War. The Rising Prominence
                 of NEO
                III. NON-COMBATANT EVACUATION OPERATIONS ("NEO")
                IV. THE RUSSIAN GEORGIAN CONFLICT--AUGUST 2008
                V. THE DOCTRINE OF THE PROTECTION OF NATIONALS: TOWARDS A
                 RIGHT OF REMOVAL
                 A. The Waldock Criteria and the NEO Limits of Protection
                VI. CONCLUSION
                

I. INTRODUCTION

On August 8, 2008, Russian tanks, troops, and aircraft crossed the border into South Ossetia, a region in the Republic of Georgia in the Caucasus) On July 19, 2006, the Government of Canada commenced the evacuation of approximately 14,000 of its citizens from Lebanon in the midst of an armed conflict between Israel and Hizbollah. (2) These two seemingly disparate incidents share one characteristic: they were military operations launched by states with the common justification of rendering assistance to their citizens in a foreign state. History is replete with instances of various forms of military assistance being provided on this basis. Frequently, assistance actually provided has been minimal or inconsequential in comparison to the other types of military activity occurring concurrently.

The legal justification for military assistance to a state's citizens outside of its borders is encapsulated in the legal doctrine of the "protection of nationals abroad" ("doctrine"). (3) It is submitted that the protection of nationals abroad involves an intervention by one state, represented by its armed forces, into another state for the purpose of protecting the lives of its own citizens. (4) This Article argues that this right is generally accepted, subject to the fulfillment of three conditions, as expressed by the British jurist Sir Humphrey Waldock:

(1) an imminent threat of injury to nationals,

(2) a failure or inability on the part of the territorial sovereign to protect them and

In recent years, a number of states' armed forces have removed their citizens, and sometimes other states' citizens, from states in turmoil. The military doctrine related to many of these operations has evolved. Over the past decade, it has become more codified and generally referred to as the doctrine of Non-Combatant Evacuation Operations ("NEO"). (6)

The purpose of this Article is to show that the doctrine of the protection of nationals abroad exists within the right of self-defense; with contours of the doctrine shaped in recent years by the practice of states in their conduct of NEO. This right is limited to the removal of the intervening state's citizens abroad through the use of force subject to necessity and proportionality in order to move the foreign nationals to a safe location, Part II discusses the origin of the doctrine of protection of nationals abroad and the legal bases that have been used to justify that protection. It also considers the impact of the misuse of the doctrine throughout its evolution. This explanation includes the claim that the protection of nationals abroad does not impugn Article 2(4) of the U.N. Charter which prohibits a state's use of force against another state and the justification that the protection of nationals is an exercise of the right of self-defense which complies with a state's right of self-defense enshrined in Article 51 of the UN Charter. It assesses the doctrine's place in self-defense at customary international law. Furthermore, this Article reviews state practice and the debate that has ensued among states and academics when states have asserted the doctrine to justify their use of force abroad. This Article also assesses the difficulties in determining the legality of the doctrine based upon the divided opinion of states. Part III surveys the military operational doctrine pertaining to NEO. Part IV assesses the recent invocation of the doctrine by the Russian Federation in its conflict in South Ossetia. Part V provides an analysis of the how NEOs as state practice have acted to limit the extent of protection to nationals abroad. Finally, in Part VI this Article concludes with an assessment of the state of the doctrine in contemporary international law.

II. PROTECTION OF NATIONALS ABROAD DOCTRINE

Before the U.N. Charter, and particularly prior to the World War I, there were comparably few restraints on the waging of wars and use of force in international relations. (7) There was widespread acceptance of the right of a state to protect its nationals abroad. (8) One storied operation was the successful expedition led by Sir Robert Napier to rescue a group of Englishmen detained by the emperor of Abyssinia (modern day Ethiopia) in 1867. (9) In referring to this operation, British Prime Minister Disraeli remarked that the "standard of St. George was hoisted upon the mountains of Rasselas." (10) This reputed comment is illustrative of the central and controversial feature of this doctrine: the collision between the principle of protection of nationals and the principle of state sovereignty. Disraeli's remark raises a question that accompanies a state's application of this doctrine: what is the true purpose of the intervention? Is it for the purpose of protecting a state's citizens or is it the pretext for an intervention different in kind and longer in duration?

The doctrine of the protection of nationals has existed in some form throughout history. Hugo Grotius, a fifteenth century Dutch jurist and early international law scholar, has been quoted as saying: "Kings, and those who are invested with a Power equal to that of Kings, have a Right to exact Punishments, not only for Injuries committed against themselves, or their Subjects.... War is lawful against those who offend nature." (11)

The origin of the protection of nationals abroad lies in the comparatively permissive history of the right of states to use force, which existed prior to the adoption of the U.N. Charter in 1945. Grotius, for example, did not suggest that the scope of a response to an injury against a subject was explicitly limited by the requirement that the act be necessary and proportionate, as does the modern right of self-defense. (12) Though the use of force by states in international relations was comparatively unrestrained from antiquity through the First World War, this has changed following the Pact of Paris in 1928. (13) Prior to the treaty, as John Currie writes, in the early twentieth century "international law had been evacuated of any content that would hinder resort to force by states." (14) This non-aggression treaty between the United States and France was eventually ratified by sixty-three states. (15) It renounced recourse to war as "an instrument of national policy." (16) Its impact was to reverse "the presumption in favour of the right to war." (17)

Historically, a rescue mission of a state's citizens or a monarch's subjects was a response to injury or insult. It was cloaked in terms of the maintenance of national honor and, as such, was used to justify a wide range of action, including the use of force. Within this historical origin, there is a concept still discussed today: the relationship between a state and its citizens abroad. However, it is not as clear whether a comparable transgression would allow the impugned state to respond with force today. (18)

Since the adoption of the U.N. Charter, there has been debate as to whether the right to protect nationals abroad remains extant. There are a number of states which have argued this justification in varying forums in the ensuing years: the United Kingdom in relation to the Suez crisis in 1956; (19) the United States consistently asserted this right from 1958 until 1989 during its incursion into Lebanon (20) and Panama, (21) respectively; Belgium in Congo in 1960 and 1964; (22) France in Mauritania in 1977; (23) and Russia in regard to its conflict with Georgia in 2008. (24) Similarly, there are numerous incidents of states using military assets to mount or attempt to mount rescues or evacuations in foreign states, such as France in Gabon and Chad in 1990 (25) and reputedly in Colombia in 2003 in an attempt to secure the release of dual French citizen and former Colombian presidential candidate Ingrid Betancourt. (26)

Although its acceptance as a part of international law is contentious, the content of the doctrine--set out by Waldock--is generally agreed upon. (27) The terminology has varied. For example, it is referred to as a "right to rescue" (28) or as the "right of forcible protection of nationals abroad." (29) More controversially, it has been referred to as "humanitarian intervention." (30) Humanitarian intervention, which gained prominence in the Kosovo air campaign, is a different doctrine, notwithstanding that a humanitarian element may be present within the doctrine of protection of nationals. Whereas humanitarian intervention usually refers to the protection of human rights of individuals in another state's territory, the doctrine of the protection of nationals relates to a state's protection of its citizens beyond its borders. (31)

A. Legal Doctrine of the Protection of Nationals Abroad

Writing in regard to episodes of nineteenth and early twentieth century intervention, Brownlie made the following comments, which remain applicable to many incidents of armed intervention in the twentieth century: "[w]hat is characteristic of these and other examples of intervention is that protection of lives and property of nationals is one of several justifications offered and the justifications are framed so widely that their...