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Consent Is Not Enough: Why States Must Respect the Intensity Threshold in Transnational Conflict

47 Pages Posted: 12 Oct 2016 Last revised: 20 Dec 2016

Oona A. Hathaway

Yale University - Law School

Rebecca Crootof

Information Society Project; Yale Law School

Daniel Hessel

Independent

Julia Shu

Yale University - Law School

Sarah Weiner

Yale University - Law School

Date Written: January 1, 2016

Abstract

It is widely accepted that a state cannot treat a struggle with an organized non-state actor as an armed conflict until the violence crosses a minimum threshold of intensity. For instance, during the recent standoff at the Oregon wildlife refuge, the U.S. government could have lawfully used force pursuant to its domestic law enforcement and human rights obligations; President Obama could not have ordered a drone strike on the protesters. The reason for this uncontroversial rule is simple — not every riot or civil disturbance should be treated like a war.

But what if President Obama had invited Canada to bomb the protestors — once the United States consented, would all bets be off? Can an intervening state use force that would be illegal for the host state to use itself? The silence on this issue is dangerous, in no small part because these once-rare conflicts are now commonplace. States are increasingly using force against organized non-state actors outside of the states’ own territories — usually, though not always, with the consent of the host state. What constrains the scope of the host state’s consent? And can the intervening state always presume that consent is valid?

This Article argues that a host state’s authority to consent is limited and that intervening states cannot treat consent as a blank check. Accordingly, even in consent-based interventions, the logic and foundational norms of the international legal order require both consent-giving and consent-receiving states to independently evaluate what legal regime governs — this will often turn on whether the intensity threshold has been met. If a non-international armed conflict exists, the actions of the intervening state are governed by international humanitarian law; if not, its actions are governed instead by its own and the host state’s human rights obligations.

Keywords: international humanitarian law, IHL, law of armed conflict, human rights law, non-international armed conflict, intervention

Suggested Citation

Hathaway, Oona A. and Crootof, Rebecca and Hessel, Daniel and Shu, Julia and Weiner, Sarah, Consent Is Not Enough: Why States Must Respect the Intensity Threshold in Transnational Conflict (January 1, 2016). University of Pennsylvania Law Review, Vol. 165, No. 1, 2016; Yale Law School, Public Law Research Paper No. 584. Available at SSRN: https://ssrn.com/abstract=2849564

Oona A. Hathaway (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4992 (Phone)
203-432-1107 (Fax)

Rebecca Crootof

Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Daniel Hessel

Independent ( email )

No Address Available

Julia Shu

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Sarah Weiner

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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