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Opinions of Monday, 10 January 2011

Columnist: Ata, Kofi

The Cote d'Ivoire Crisis, Will the Use of Force by ECOWAS be Legal?

As an African of Ghanaian origin with interests in human rights, democracy, good governance and transparency, I follow the socio-economic and political development on the Mother Continent including, the unfolding crisis in Cote d’Ivoire following the second round of the Presidential Elections in November 2010. I have been surprised but not shocked by the lack of debates by experts, academics and human rights activists on whether the threat by ECOWAS Heads of State to use force to remove Gbagbo would be lawful or not, as were the case with the Iraqi war in 2003 and the NATO action in Kosovo in 1999. I am surprised for other reasons (some, probably selfish) as I am worried about the impact of such use of force on Ghana. The potential for revenge attacks on Ghanaians resident in Cote d’Ivoire, rebel attacks on Ghana’s new oil installations and influx of refugees into Ghana, etc. As a former student of International Law of Armed Conflict and the Use of Force, I am of the opinion that, the use of force by ECOWAS would be illegal. I am therefore using this article to open the debate on the legality or otherwise of the proposed use of legitimate force by ECOWAS on a Member State.



According to the International Law of Armed Conflict and the Use of Force, also commonly known as International Humanitarian Law, any use of force or initiation of hostilities against a sovereign state is illegal unless certain restrictions are met. The restrictions for the grounds on which states are permitted to use force are such that they impose considerable limitations upon the way in which force may be used even in cases where the use of force is justified. In fact, the use of force is prohibited under Article 2 (4) of the 1945 United Nations Charter, which states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistence with the purposes of the United Nations”.



The limited restrictions that the use of force is permitted are as follows: self-defence; maintenance or restoration of international peace and security, on humanitarian grounds and for the freedom or liberation of colonised people. It is important to note that with the exception of self-defence, the other two are not free standing but subject to prior approval by the UN Security Council before the actual use of force.



Self Defence:

Article 51 of the aforementioned Charter provides that “Nothing in this present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right to self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”. From this, it is evident that self-defence is permitted when the state resorting to the use of force has been attacked, though Pre-emptive Use of Force is allowed under certain circumstances. That is, where there is reliable evidence or intelligence to suggest that an armed attack on a Member State is imminent, then that Member State does not have to wait or sit down idle until the attack takes place before taking action in self-defence. Pre-emptive Use of Force is controversial as it can be abused particularly, by powerful states against weaker ones. The US and other states strongly believe that (as contained in a memo by a Department of State Legal Adviser), “the inherent right of self-defence embodied in the UN Charter must include the right to take pre-emptive action; otherwise the original purpose is frustrated. We cannot wait for a first strike under such circumstances”. The Neo-Conservatism doctrine under the George Bush presidency was strongly in favour of Pre-Emptive Use of Force and was used to justify the Iraqi invasion in 2003 without Security Council approval. The doctrine has become part of the “war on terrorism”.



Can the use of force against Cote d’Ivoire by ECOWAS be legal and permitted under UN Charter Article 51, that is self-defence, or under Pre-Emptive Self-Defence? The answer is an emphatically, NO. Because the situation in Cote d’Ivoire is not and cannot be an armed attack or imminent armed attack on any of the remaining fourteen Member States of ECOWAS, under the UN Charter.



Maintenance of International Peace and Security:

Article 1 (1) of the United Nations Charter states “to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace”. In pursuance of this noble objective, the UN Charter also provides for the use of force as part of collective measures taken by the Security Council under Article 42. “Should the Security Council consider that measures provided in Article 41 (by peaceful means), would be inadequate or have proved to be inadequate, it may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade and other operations by air, sea or land forces of Member States of the United Nations.



The above objective under Article 1 (1) could also be carried out by a regional organisation such as ECOWAS with the approval of the Security Council. This provision is under Article 53 (1) of the Charter “The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without authorisation of the Security Council, with the exception of measures against any enemy State, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggression policy on the part of any such State, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a State. Enemy State is defined under 53 (2) as “any State which during the Second World War has been an enemy of any signatory of the present Charter”.



From the above, does the current situation in Cote d’Ivoire threaten international peace and security such that it may warrant UN or ECOWAS intervention by the use of force? Some may disagree with me but my answer is another No. Indeed, Cote d’Ivoire has experienced internal conflicts for some time. The UN and ECOWAS intervened to maintain and restore international peace and security. However, both the UN and ECOWAS did not consider the internal conflict as sufficient threat to international peace and security to justify the use of force. The intervention was by peaceful means (peace keeping rather than peace enforcement). Though the disagreements regarding the outcome of the Presidential elections could lead to the resumption of armed conflicts between the belligerents, in my opinion, I do not think that the risk of a threat to international peace and security would be different from previously. Therefore, it would be unreasonable and out of proportion for the use of force by ECOWAS.



Let me point out here that, the use of legitimate force permitted by the UN Charter is regulated by principles of “jus ad bellum”, that is, laws on the use of force or the initiation of hostilities. On the other hand, the conduct of hostilities between States is regulated by the principles of “jus in bello” that is, laws of armed conflict. This is why the International Law of Armed Conflict and the Use of Force is also referred to as jus ad bellum, jus in bello. For both the initiation of hostilities and the conduct of hostilities to be lawful, each must be within the limitations of “what is reasonably necessary and proportionate to the achievement of a legitimate objective”. There are different school of thoughts on where jus ad bellum ends and where jus in bello begins but what is not in dispute is that, the relationship between the two are such that in reality jus ad bellum does not cease to operate after the initiation of hostilities (operates concurrently with jus in bello). Another important fact is that the limitations of what is reasonably necessary and proportionate are equally applicable to States as well as all individuals involved in the initiation and conduct of hostilities. Every single action throughout the conduct of hostilities including even the pulling of a trigger by a single soldier and collective action by either a platoon or a brigade are all subject to the limitations of both jus ad bellum and jus in bello. That was why “I was under order or obeying instructions” is not an acceptable defence for the breach of the limitations. It is also for the same reason why in the first Gulf War the Allied Forces did not remove Saddam Hussein from power since that would not have been reasonably necessary and not proportion to achieving the objective of freeing Kuwait and restoring international peace and security at the time.



Now let us apply the above principles to ECOWAS. Will the use of force to remove Gbagbo be reasonably necessary and proportionate to the objective of “achieving the goals of the Ivorian people” (as stated in the ECOWAS Communiqué of 24 December 2010)? I am afraid not and there is no such thing as achieving the goals of a people in the various Articles mentioned above. Worst still, the use of force will result in civilian casualties and ECIOWAS may have their own Afghanistan or Iraq in Cote d’Ivoire because it will not be a short war but a prolonged one. Because the proposed use of force cannot meet both the jus ad bellum and jus in bello limitations criteria, it would be unlawful.



Cote D’Ivoire cannot be considered as an enemy State under Article 53 (1) and (2), so there is no need for me to analyse that situation.



Security Council Authorization

Another limitation regarding the legitimate use of force to maintain international peace and security is that, it must be authorised by the Security Council. ECOWAS appear to assume that authorisation from the Security Council is a done deal. If that is their current position, then they should think again because they are wrong. The established practice on Security Council authorization is such that the likelihood of the Security Council agreeing to authorise such use of force against a Member State is so remote that, it is often not considered. ECOWAS should not be deceived by the fact that Russia and China abstained from the vote on the recognition of Quattara as the winner of the Presidential elections. This would not be different from the Iraqi war because Russia or China or both (two out of the five Permanent Members of the Security Council) will veto the authorisation. Though Cote d’Ivoire may not be strategically important to both Russia and China, the decision to use the veto power is not always based on strategic interests alone but on other considerations such as the public opinion in their country. Though the cold war veto mentality is over both Russian and China still have a firm belief that state sovereignty has two aspects: freedom from outside interference and freedom to act as the sovereign sees fit within agreed borders. They are also hold the view that the West, especially US and UK should not impose their form of democracy on other states. For these reasons they will use their vote powers so the Security Council would be unable to authorise the use of force by ECOWAS to maintain international peace and security, Without Security Council authorization, the use of force by ECOWAS will be illegitimate.



Humanitarian Intervention

The legitimate use of force on humanitarian grounds is also strictly regulated by specified criteria. NATO defines humanitarian intervention as, “an armed intervention in another state, without the agreement of that state to address a humanitarian disaster, in particular caused by grave and large-scale violations of fundamental human rights”.

This definition means the sovereignty of the state being intervened must be breached and for the intervention to be humanitarian, the desire to address the violations of human rights should be the driving force in the intervention decision. Attempts have been made to agree on agreed criteria for humanitarian intervention and I enumerate them for easy reference:



The threat or occurrence of grave and large-scale violations of human rights;

Clear and objective evidence of such a threat or occurrence;

The government of the state is unwilling or unable to take remedial action (a failed state);

There is clear urgency;

The purpose is clearly explained to the public and the international community;

The objective is limited to stopping the human rights abuses;

The action is supported by those for whom it is intended;

There is support of regional states;

There should be a high probability of success;

There should be a mapped-out transition to post-conflict peace building;

The use of force should be proportionate to achieving these goals (jus ad bellum); and

International law on the conduct of war should be followed during the action (jus in bello)



Does ECOWAS meet the above criteria? Is there a humanitarian disaster in Cote d’Ivoire? The answer to both questions is No and therefore ECOWAS cannot lawfully intervene in Cote d’Ivoire by use of force on humanitarian grounds.



Another lawful use of force is through invitation by the legitimate government of a sovereign state. The difficult here is that there are now two Presidents. Quattara is recognised by the UN but is he the legitimate government by the Ivoirian Constitution? If yes, then he can invite ECOWAS to use force and that would be lawful. Still most if not all of the above criteria would not be met. Though I have no knowledge on the Ivoirian Constitution, it is possible that one of the two presidents may not have been sworn into office in accordance with the constitution. Because, I suspect the constitutional authority with powers to swear the President into office did not swear both Presidents into office. It is highly likely that Quattara may not have been sworn into office in accordance with the Ivorian constitution. If that is the case, then he is not a legitimate leader and therefore cannot invite ECOWAS to use force to remove Gbagbo because that would be unlawful.



Since Cote d’Ivoire is not a colony and ECOWAS is a freedom fighter or liberator, the use of force by under freeing a colonized state is not applicable and need no further consideration. From the above ECOWAS has few options (if any) in using legitimate force to attack a sovereign state that is not a belligerent or an aggressor.



What is the established customary practice?

The only option left for ECOWAS to resort to use of force, which will be legitimate and lawful under International Law is by relying on established customary practice. Despite my conclusion that the use of force by ECOWAS will be unlawful under International Law, it is also imperative on me to consider what has been the long established practice (the custom) or the norm in such situations. An important aspect of the application and interpretation of law is customary practice (unwritten law).That is, what has been exercised from time to time immemorial (in similar circumstances), considered to be right and reasonable, can be proven by direct evidence and has become acceptable. Assuming my prediction that the Security Council would not authorise the use of force by ECOWAS because of vote by Russian and China is accurate, ECOWAS can still resort to the use of force under the guise of maintaining international peace and security and justify their action by the established customary practice in International Law. For example, NATO States resorted to the use of force in Kosovo in 1999 on humanitarian grounds without authorisation by the Security Council. In other words, the use of arms by NATO was illegal by international law but it was justified on humanitarian grounds because it met all or most of the humanitarian criteria. The 2003 Iraqi invasion led by US and UK was also undertaken without authorisation by the Security Council. Though many still believe that the use of force was illegal (because in their view Security Council Resolution 1441 did not specifically authorise the use of force), the plain truth is that, the NATO action in Kosovo made the Iraqi invasion, legal under International Law. There are other examples of the use of force by States that would have been unlawful under International Law but became acceptable because of customary practice. For example Israel relied on pre-emptive self-defence to justify her attack on Iraq’s nuclear reactor in 1981.



Because of the established international customary practice and in addition to the fact that the international community is against Gbagbo, ECOWAS can resort to the use of force in Cote d’Ivoire and justify it under customary practice. However, I doubt if ECOWAS has the capacity to achieve its objective of achieving the goals of the Ivorian people within a very short period. Restoration of democracy is not actually part Article 4 (2) and therefore the action will be under restoring international peace and security. Over forty percent of Ivoirians voted for Gbagbo, so ECOWAS would face strong opposition from his supporters and civilian causalities could be higher. There is the possibility of ECOWAS forces being bogged down in a prolong war and disturb peace and security instead of maintaining them. There is also likely to be rampant abuse of human rights, huge displacement of the population and even humanitarian catastrophe. All these would be against the Charter of the United Nations and what ECWAS seeks to achieve.



What concerns me is not only the potential for a prolonged conflict but also the precedence to be set by ECOWAS if the threat of use of force is enforced against a Member State. It could make the region unstable. Interestingly, I have looked at the ECOWAS Charter and cannot find any specific Article that allows the use of force against Member States, though Article 3 (o) under Aims and Objectives states: “any other activity that Member States may decide to undertake jointly with a view to attaining Community objectives”. Article 7 (i) under The Authority of Heads of State and Government Establishment, Composition and Functions also provides that: “exercise any other powers conferred on it under this Treaty”. The ECOWAS Charter, Protocol and all other governance documents strongly advise that all conflicts should be resolved through peaceful means. So why is ECOWAS threatening to use force against a Member State without utilising their own democratic institutions such as the Court of the Community is any one’s guess.



The use of force by ECOWAS against Cote d’Ivoire would be illegal and it would set a new precedence in international relations and diplomacy, that could be dangerous and a threat to peace and security in the region. I welcome views of legal experts on the legality or otherwise of the propose threat of use of force by ECOWAS against a Member State to achieve the goals of the Ivorian people.



Kofi Ata, Cambridge, UK