Sub-regional organisations and the responsibility to protect: A case for the localisation and normative repatriation of sub-regional authority for coercive measures

 Henry Paul Gichana
 LLB (Kenyatta) LLM (Pretoria)
 Doctoral candidate, Dullah Omar Institute, University of the Western Cape, South Africa
 https://orcid.org/0000-0002-7554-5350
This email address is being protected from spambots. You need JavaScript enabled to view it.
 The author wishes to acknowledge Prof Benyam Mezmur’s initial guidance on the research that formed the basis of this article.

 Edition: AHRLJ Volume 21 No 1 2021
  Pages: 335 - 362
 Citation: HP Gichana‘Sub-regional organisations and the responsibility to protect: A case for the localisation and normative repatriation of sub-regional authority for coercive measures’ (2021) 21 African Human Rights Law Journal 335-362
http://dx.doi.org/10.17159/1996-2096/2021/v21n1a15
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Summary

The adoption of the responsibility to protect by the United Nations General Assembly marked a key milestone in the advancement of human security and the international protection of human rights. The textual adoption by the UNGA, however, was skewed in favour of the world order as it existed at the adoption of the Charter of the United Nations. Key among the recommendations downplayed by the UNGA text is the place of regional and sub-regional organisations in the implementation of the responsibility to protect. The consequence has been that sub-regional organisations have often been sidelined and their position on conflicts overlooked by the United Nations Security Council in its authorisation of R2P-related interventions. This article utilises the differences between the original R2P concept and the R2P norm adopted by the UNGA as well as subsequent discourses and state practice flowing from these differences to argue for R2P’s localisation in the African context and for the normative repatriation of the authority of sub-regional organisations to adopt coercive measures under R2P. The article uses the Economic

Community of West African States to illustrate the potential for sub-regional organisations to implement R2P when accorded the requisite regional and international support.

Key words: sub-regional organisations; responsibility to protect; norm localisation; norm repatriation; peace and security

1 Introduction

The inability of the United Nations (UN) to offer a timely and decisive response to avert the Rwandan genocide jolted the Organisation of African Unity (OAU) to acknowledge the UN’s inadequacy and Africa’s ‘primary responsibility to protect the lives of its citizens’.1

In respect of the response of the United Nations Security Council (UNSC) to situations of mass atrocities committed in territories of UN member states, a 2004 report of a UN High-Level Panel pointed out that the UNSC had been ‘neither very consistent nor very effective in dealing with these cases, very often acting too late, too hesitantly or not at all’.2 A similar opinion persists among African leaders whose common position has been the following:3

Since the General Assembly and the Security Council are often far from the scenes of conflicts and may not be in a position to undertake effectively a proper appreciation of the nature and the development of (internal) conflict situations, it is imperative that regional organisations, in areas of proximity to conflicts, are empowered to take action in this regard.

However, although the existence of ‘regional’ arrangements is permitted under chapter VIII of the Charter, the UNSC, which has the primary responsibility for the maintenance of international peace and security, is not obligated to utilise these for enforcement action (article 53(1)). Further, the prerogative of these arrangements to undertake enforcement action is subjected to UNSC approval, thus limiting their ability to act in deserving cases. Notwithstanding the misgivings against the UNSC highlighted above, the blueprint adopting the responsibility to protect (R2P) proceeded to reinforce the status quo. This, therefore, calls to question what role regional and sub-regional organisations have in the maintenance of regional/sub-regional peace and security. This article seeks to answer this question with reference to sub-regional organisations and their involvement in R2P-related interventions.4

Of all sub-regional organisations the Economic Community of West African States (ECOWAS) has been the pioneer in R2P-related interventions at the sub-regional level5 having experienced the highest frequency of internal armed conflicts in Africa.6 Consequently, the peace and security framework of ECOWAS has been termed one of the best in Africa7 and is argued to have inspired the African Union (AU) to replicate the same at the regional level.8 This article, therefore, analyses the role played by ECOWAS in the implementation of R2P-related interventions with a view to drawing lessons from its interventions in The Gambia, Côte d’Ivoire and Mali in support of an enhanced role for sub-regional organisations in R2P implementation. These cases represent interventions conducted after the adoption of R2P at the UN level. The Gambian intervention represents an effective sub-regional intervention; the Côte d’Ivoire case brings out challenges of sub-regional intervention; while the Mali case represents an archetypal R2P intervention that involves national, sub-regional, regional and global actors working in concert for the protection of populations at risk. While interventions in some of these cases were in part motivated by a pro-democracy objective, their use in this article focuses primarily on the human protection imperative that underpinned their initiation.

2 The concept and norm of the responsibility to protect

2.1 The concept

The R2P was first articulated by the International Commission on Intervention and State Sovereignty (ICISS) which served as the norm entrepreneur.9 The report of the ICISS built on Deng’s initial conceptualisation of ‘sovereignty as responsibility’10 and presented two fundamental propositions.11 The first was a redefinition of sovereignty from ‘sovereignty as control’ to ‘sovereignty as responsibility’.12 This made a state’s primary sovereign responsibility that of protecting its population from massive violations of fundamental rights. The second was a proposition that where the state is unable or unwilling to discharge this responsibility or is itself the perpetrator, then the responsibility shifts to the international community which is under a duty to intervene to protect the populations at risk.13 Jointly, these two elements were presented as the core of what the ICISS termed the ‘responsibility to protect’ (R2P concept). In its purest sense, therefore, the R2P concept primarily was human security centred.14

The concept encompasses three key responsibilities, namely, the responsibility to prevent mass atrocities by addressing causes of internal conflict; the responsibility to react in the event of conflict by intervening using appropriate means including sanctions and, where necessary, military force; and the responsibility to rebuild, where military force is used, by assisting with recovery, reconstruction and reconciliation.15

With respect to resort to the use of military force, the ICISS proposed that it should only be undertaken under the right authority, which the UNSC was best suited to give.16 While the ICISS made proposals aimed at curing any mischief occasioning inaction or delay to act on the part of the UNSC, including proposals for constructive abstention17 as well as resort to the UNGA’s ‘Uniting for peace’ procedures,18 what is key for this article, however, is the proposal by ICISS that regional and sub-regional organisations could be resorted to under chapter VIII of the UN Charter (for authorisation) subject to the organisations’ seeking subsequent ratification from the UNSC.19

2.2 The norm

At the 2005 UN World Summit held at the Heads of State and Government level, the R2P concept was truncated and condensed into three paragraphs.20 These were then unanimously adopted as a part of a resolution of the UNGA (Summit Outcome).21 The postulations contained in the Summit Outcome constitute what is here referred to as ‘the R2P norm’.

The R2P norm comprises three pillars: The first limits the application of R2P to the commission or incitement of atrocity crimes (genocide, war crimes, ethnic cleansing and crimes against humanity);22 the second calls for international support for states’ obligations under R2P; and the third requires international action to be undertaken through the UN.23 Specifically, the third pillar requires that where pacific means have proven inadequate, coercive measures should be adopted under chapter VII of the UN Charter and only through the UNSC in cooperation with relevant regional organisations where appropriate (optional).24

The concept as developed by the ICISS differs significantly from the norm as adopted in the Summit Outcome.25 For instance, while the scope of the concept extended to situations such as state collapse, the norm restricted the scope to four atrocity crimes.26 Of significance to this article, however, is that the norm makes the UNSC the only body mandated to authorise military intervention27 with no mention of regional and sub-regional organisations as alternative sources of authority.28 This leaves open the question of whether these organisations can rightly undertake coercive measures under R2P or whether the restriction of this mandate to the UNSC is binding on them.

2.2.1 The responsibility to protect norm lacks normative prescription

Although the R2P norm was adopted by a unanimous UNGA resolution and was re-affirmed by the UNSC in Resolutions 1674 of 2006,29 1894 of 200930 and 2150 of 2014,31 it remains shrouded in controversy as to whether it can be termed a legal obligation with prescriptive force, only a political concept or just an emerging norm.32 Notwithstanding R2P advocates’ rhetoric of ‘consensus’, a genuine consensus on R2P cannot be said to exist beyond the policy community.33 Grave reservations, scepticism and even hostility has been expressed towards R2P by scholars, policy makers, practitioners, civil society organisations as well as by states with a colonial history.34 Against this background, therefore, the question arises as to whether R2P can be said to have been established as an international norm with prescriptive force.

From a legal perspective, outside the confines of a convention or treaty, a new international norm has normative prescription, once it is established as a rule of customary international law having achieved constant and uniform usage by states supported by opinio juris.35 While the unanimous adoption of R2P at the UNGA is argued to have demonstrated the existence of opinio juris on the need to act in cases of mass atrocity crimes, subsequent inconsistencies in the conduct of states as well as in the application of R2P takes away from any consideration of R2P as an international norm with any prescriptive force.36 In this regard, Evans argues that although R2P cannot be said to have attained the status of a rule of customary international law, it should be viewed as a new international norm on moral and political terms,37 neither of which has any binding force.

With respect to the subsequent conduct of states at the UN level, various states are reported to have developed a ‘buyer’s remorse’ soon after the summit endorsement of R2P and ‘revolted’ against R2P with some arguing against there having been any consensus on the normative status of R2P.38 Consequently, states failed to adopt a subsequent report of the UNSG that sought to make R2P more prescriptive.39 Further, the UN membership is argued to have demonstrated a reluctance to strengthen the institutional capacity of the UN with respect to R2P by implicitly rejecting a proposed establishment of a Joint Office for Genocide Prevention and R2P by declining to fund the proposal;40 opposing the creation of an R2P-related early warning unit within the UN41 as well as by approving a paltry 25 officers in what was expected to be a standby police force for R2P implementation.42 Bellamy argues that this failure to strengthen the institutional capacity of the UN demonstrates the backtracking of states in their commitment, thus eroding the consensus on R2P.43

With regard to how R2P has been applied in actual cases, Deitelhoff and Zimmerman argue that its role has been ‘ambivalent at best’ and that it has been used to further private interests but ignored in real crises, hence its application is crippled by selectivity and hypocrisy.44 This has been reflected in the invocation and application of R2P (or lack thereof) in the cases of Georgia, Myanmar, Burma, Libya and Syria, thus significantly impacting any notions of R2P having any normative force with respect to uniformity, objectivity and consistency in its application.45 The above arguments demonstrate that R2P cannot be termed a norm in legal terms but rather an evolutionary norm in need of consolidation through consistent state practice.46

From the perspective of international norm dynamics studies (on the diffusion of transnational norms), R2P is yet to evolve into an international norm. This requires the norm to have undergone three stages of what Finnemore and Sikkink refer to as the life cycle of a norm (emergence, norm cascade and internalisation).47 From this perspective, the adoption of R2P by the UNGA established the critical mass support required for it to be said to have emerged as an international norm.48 To be internalised, a norm requires to have acquired a taken-for-granted quality ‘that makes conformance with the norm almost automatic’.49 The arguments proffered above on R2P’s want of usage rule out any possibility of R2P having been internalised, thereby leaving R2P in the norm cascade stage.

What happens at the norm cascade stage depends on whether one ascribes to the constructivist or the critical approach to norm diffusion. For constructivists, the second stage is a linear and conflict-free ‘norm acceptance’ stage, hence they expect a dichotomous outcome of either acceptance or rejection of the norm which itself remains static.50 Acharya criticises this view as engaging in ‘moral proselytism’ which presents ‘global’ norms as inherently good and regional or sub-regional norms as innately bad, hence viewing any form of normative contestation51 as illegitimate.52 Critical approaches, however, view a norm as being dynamic throughout the norm cascade stage and emphasise the agency role of ‘norm takers’, thus opening up the norm to contestation and change.53 In the latter view, therefore, norm localisation54 is presented as being critical in building normative congruence and, thus, helping to settle most cases of normative contestation.55 This article adopts a critical approach in its analysis and argues that R2P is currently undergoing contestation, hence providing room for localisation.

Wiener argues that often, as is the case herein, the contestation involves the legitimacy of ‘standardised procedures’ for implementing norms (what Welsh refers to as procedural contestation)56 and that such contestation is necessary for the regularisation of such procedures to strengthen the norm and for legitimacy.57 Contestation with respect to R2P surrounds the procedure on how it should be implemented under the third pillar58 and specifically, herein, whether regional and sub-regional organisations have the right to adopt coercive measures.

A key factor in norm contestation is the realisation that new norms do not seek application in a vacuum, hence they have to contend with legitimate pre-existing domestic normative, social and institutional orders.59 Key in this respect, therefore, is any normative orders for regional and sub-regional intervention that were in existence prior to the emergence of R2P (cognitive priors).60 The AU as well as sub-regional organisations (ECOWAS) had already adopted indigenous normative frameworks that allowed them to intervene in the territory of their members for human protection purposes way before the emergence of R2P.61 The implementation of R2P after its emergence, therefore, provided an opportunity for its localisation so as to ensure congruence with these pre-existing orders62 that had arguably proven to be efficacious and were already considered legitimate in their pre-existing normative communities.63

3 The place of sub-regional organisations in the implementation of the responsibility to protect

Regional and sub-regional organisations continue to play an ever-increasing role as front-line responders to mass atrocity crimes, more so in Africa.64 In this respect, Bellamy and Williams acknowledge that some regional organisations have actually become ‘important peacekeepers in their own right’.65 They also point out that a strong partnership between the UNSC and regional (as well as sub-regional) organisations is crucial in guaranteeing effective responses to human protection crises.66 However, the persisting question is whether the nature of this ‘partnership’ ought to allow sub-regional organisations to undertake coercive measures under R2P.

The ICISS pondered over the issue in the following terms:67

In the mid-1940s, regional organisations were unquestionably subordinated to the authority of the UNSC. At the turn of the century, it is less certain whether the text of the Charter remains definitive on the issue of regional authority. Specifically, there are questions as to whether regional [and sub-regional] enforcement action under all circumstances continues to fall under the subordinate status of the UNSC covered by Article 53(1).

The ICISS argued that the UN Charter ‘is a living instrument that has evolved over the years and will continue to do so’, hence ‘a literal reading of the Charter is no longer an accurate reflection of contemporary international law’.68

The UNSG, for its part, in its 2009 report to the UNGA pointed out that the UNSC has primary and not total responsibility for the maintenance of peace and security.69 It added that some crimes under R2P may not necessarily be deemed to pose a threat to international peace and security such as to fall right within the UNSC’s purview.70 The UNSG, therefore, urged better modes of collaboration between the UN and regional as well as sub-regional arrangements and emphasised that this new collaboration ought to consider and be based on capacity sharing and not merely capacity building.71

The above essentially called for a rethinking of the relationship between the UNSC and regional as well as sub-regional organisations, with respect to the authority to impose coercive measures under R2P with the emphasis on the need to acknowledge the authority of regional and sub-regional organisations.

3.1 Interpretative approaches to sub-regional authority

Given the persisting need to place coercive measures by sub-regional organisations under R2P within the prevailing UN system, resort has been had to interpreting the requirement for UNSC authorisation in a manner that permits action by sub-regional organisations. This has given rise to two schools of thought around the temporal essence of the requirement: those that insist on the UNSC’s approval prior to intervention (‘green light’ interpretation); and those that argue for intervention to proceed unless the UNSC specifically votes to halt it (‘red light’ interpretation).72

The red light interpretation picks up from the UNSG’s argument above that although the UNSC has the primary mandate to approve military interventions, such mandate is not exclusive.73 Gagro argues that from state practice, even though the UNSC authorisation is most desirable, it no longer is regarded by the international community as an absolute must.74 As an alternative, Gagro paints a picture of a legitimacy ladder at the top of which sits the UNSC. She argues that states show respect for this legitimacy ladder when considering intervention and have always climbed the necessary stairs in their respective circumstances. She then presents regional (including sub-regional) organisations as the second best authority which is lower in the ladder and hence more accessible and preferable in authorising and effecting coercive measures under R2P.75

Further support for the red light interpretation is found in the ICISS report where the Commission pointed out that recent practice showed that UNSC’s approval could be sought ex post facto.76 Examples given in that respect included the interventions undertaken by ECOWAS in Liberia and Sierra Leone which were retroactively sanctioned by the UNSC through Resolutions 788 of 1992 and 1132 of 1997 respectively. These, among other regional examples, have even been argued as providing evidence that intervention without UNSC authorisation is an emerging legal custom.77

The UN High-Level Panel as well as the AU supported the idea that approval could be sought after the fact.78 However, they qualified this as being applicable only in urgent cases. While the AU does not provide temporal specifications, the High-Level Panel proposed that authorisation should be sought after commencement of the intervention.79

It is, however, argued in support of the green light interpretation that intervention without prior approval of the UNSC poses the risk of ‘undermining the imperfect, yet resilient, security system created after the Second World War (WWII) and setting dangerous precedents for future interventions’.80 This argument, however, fails to consider, among other factors, the need to adapt World War II-old systems to prevailing realities regarding the organisation of states and attendant security dynamics adopted at regional and sub-regional levels.81

3.2 Legitimacy as a basis for sub-regional authority

Alongside the interpretative arguments above lie arguments that place primacy on the legitimacy of sub-regional intervention regardless of any ‘illegality’ that may arise from a failure to obtain prior UNSC approval. The ICISS argued that ‘in the blurred area where international custom is evolving or unclear, the notion of legitimacy takes on greater significance’.82 To echo this position, the High-Level Panel stated:83

The effectiveness of the global collective security system … depends ultimately not only on the legality of decisions but also on the common perception of their legitimacy – their being made on solid evidentiary grounds and for the right reasons, morally as well as legally.

In this respect, the intervention by the North Atlantic Treaty Organisation (NATO) in Kosovo in 1999, for instance, was found to be ‘illegal but legitimate’ thus ensuring a victory for NATO when a resolution was presented in the UNSC seeking to declare its intervention a violation of international law.84 Increasingly, therefore, some decisions about intervention may require the use of force without UNSC approval and the merits of each case will determine the legitimacy of such interventions.85

To ensure that interventions are legitimate, regional and sub-regional organisations therefore need to ascertain that there is an objectively-perceived or actual humanitarian situation; undertake and demonstrate that reasonable efforts to reach a diplomatic or peaceful resolution have failed; and comply with the requirements of international humanitarian law in the conduct of their military interventions.86 The sustainability of the protection measures adopted will also serve to legitimise such interventions. Also, the presence of a treaty instrument ratified by the subject state and bestowing on the regional or sub-regional organisation the right to intervene for human protection purposes will also serve as a critical legitimising tool.87 Moreover, this serves as proof of grant of anticipatory consent to the intervening regional or sub-regional organisation.

The above arguments, therefore, make a strong case for the authority of regional and sub-regional organisations to undertake coercive measures under R2P in their own right to ensure the protection of populations at risk. Besides, the human protection imperative should always bend towards saving lives rather than to the prizing of anachronistic procedural hurdles.88

3.3 The comparative advantage of sub-regional organisations

The ICISS acknowledged that neighbouring countries in the context of regional and sub-regional arrangements often have comparative advantages that make them better placed to take action in response to conflict than the UN.89

To begin with, internal conflicts in states always tend to have negative spill-over effects, such as the inflow of refugees, which significantly impact neighbouring countries.90 Second, conflict in one country always tends to spark related or resultant conflicts in neighbouring states. For instance, ‘international terrorist groups prey on weak states for sanctuary’, thereby posing security threats to neighbouring countries.91 Third, the close proximity of states within sub-regional organisations gives them a better appreciation of a conflict’s dynamics, hence equipping them with knowledge on where and how to effect intervention measures.92 Lastly, the sharing of borders, joint regional institutions and trade makes sub-regional organisations better placed to effect economic sanctions imposed on countries experiencing conflict.93 Sub-regional organisations’ involvement in their formulation therefore assures their commitment to ensure that they are not breached.

The above factors give neighbouring states in sub-regional organisations (even more that regional organisations) a strong collective interest in swiftly and effectively putting an end to R2P-related conflicts. This interest, moreover, is sufficient to mobilise the necessary political will not only to act but to also to ensure the sustainability of the specific measures adopted in resolving the conflicts.94

4 Implementation of the responsibility to protect in ECOWAS: Lessons from sub-regional intervention

ECOWAS was established under the Treaty of Lagos in 1975 and is currently made up of 15 states.95 It has established various institutions that play different roles in the implementation of decisions that ideally fall under R2P. These include the Authority of Heads of State and Government (ECOWAS Authority) which is the highest decision-making body on peace and security matters;96 the Mediation and Security Council (MSC) which takes all decisions on peace and security matters upon delegation from the ECOWAS Authority;97 the Council of Elders who use their good offices to pursue pacific settlement of disputes;98 and the ECOWAS Monitoring Group (ECOMOG) which is a stand-by military force and an early warning mechanism referred to as the Monitoring and Observation Centre.99

ECOWAS is highly supranational, a factor that has largely contributed to the success of its decisions on peace and security.100 Its decisional supra-nationalism that allows it to utilise a majority-based decision-making process101 as opposed to a consensus-based process has been critical in ensuring timely and decisive action.102 The democratic density103 of ECOWAS is also a key facilitator of its effectiveness.

4.1 How the ECOWAS framework supports R2P implementation

Although largely put in place long before the emergence of R2P, the ECOWAS framework provides a sound basis for R2P implementation. This part examines how the framework provides room for the implementation of R2P’s three core responsibilities.

With respect to the responsibility to prevent, ECOWAS has adopted a continuum of peace-building measures that range from those aimed at preventing social and political upheavals to those aimed at building the capacity of member states emerging from conflict.104 These include involvement in preparation, organisation and supervision of elections in member states;105 observation of respect for human rights; as well as its active support for the development of democratic institutions.106 Most importantly, the establishment of a decentralised early warning system107 goes a long way in ensuring that ECOWAS has requisite prior information on potential triggers of conflict to enable it to provide timely assistance to member states in addressing the root causes of conflict.

Where the above fails, leading to conflict, ECOWAS is mandatorily required to intervene.108 For a start, the ECOWAS Prevention Framework provides an elaborate and comprehensive mechanism for peaceful intervention through diverse preventive diplomacy initiatives.109 Where pacific means fail, the mechanism for military intervention may be initiated by a decision of either the ECOWAS Authority or the MSC; on the initiative of the president of the ECOWAS Commission; or at the request of either a member state, the AU or the UN.110

Lastly, the ECOWAS mechanism makes explicit provision for the rebuilding and reconstruction of its member states after interventions. In this regard, ECOWAS requires all its financial institutions to develop policies to facilitate funding for reintegration and reconstruction programmes.111 It further undertakes to supervise and monitor cease-fires through its observation missions;112 to implement disarmament, demobilisation and reintegration programmes; as well as to resettle and reintegrate refugees and internally-displaced persons.113

It is worth noting, however, that while the ECOWAS framework largely commends itself to aspects of the R2P concept, it diverts from the strict boundaries of the R2P norm in the sense that it envisions a wide scope of situations warranting intervention and fails to make military intervention subject to the prior authorisation of the UN.

Nevertheless, ECOWAS acknowledges that although it acts on the basis of the sub-region’s realities, it constitutes a building block and an integral part of the continental and global security architecture, and thus needs to work in partnership and in cooperation with the AU and the UN.114 For this reason, article 52 of the Protocol to the ECOWAS Mechanism requires ECOWAS to inform the UN of any military intervention undertaken.115 Additionally, the ECOWAS Mechanism consistently requires cooperation between ECOWAS, the AU and the UN mechanisms116 and goes to the extent of allowing the AU and UN to initiate the ECOWAS mechanism.117 This is a critical feature for any sub-regional enforcement actions under R2P.

4.2 ECOWAS’ involvement in R2P-related cases

Since inception, ECOWAS has undertaken various successful interventions. This article focuses on interventions in The Gambia, Côte d’Ivoire and Mali. The focus in each of the cases is on events and steps taken in respect of the responsibility to react under R2P.

4.2.1 ECOWAS intervention in The Gambia (2016/2017)

The situation in The Gambia involved a contested presidential election in which the incumbent had rejected the results that had declared the opposition candidate the winner.118 This was despite the fact that ECOWAS, the AU and the UN had issued a joint statement declaring the elections as having been free and fair.119 This led to a political stand-off that saw Gambian refugees as well as the opposition candidate flee to neighbouring Senegal.120

The AU Peace and Security Council (PSC) condemned the incumbent’s actions, stressed the imperative of dialogue and expressed the AU’s determination to take all necessary measures to ensure that the will of the Gambian people as expressed in the elections was respected.121 It also acknowledged and expressed support for the efforts that were being made by ECOWAS.122 The ECOWAS Authority also issued a Communiqué in the same terms as the AU and requested the AU and UN’s endorsement of its decisions as well as technical assistance in mediating the conflict.123 This was followed by a statement by the president of the UNSC recognising the president-elect and commending the efforts being undertaken by ECOWAS and the AU to reach a peaceful solution.124

In an attempt to secure pacific settlement, ECOWAS dispatched a high-level mission of heads of state, accompanied by the Special Representative of the UNSG for West Africa to attempt to reach a political solution.125 No concession, however, was reached.126

On the side-lines of the negotiations, ECOWAS was engaged in a contingency plan that involved the gathering of sub-regional troops in Senegal under the banner of the ECOWAS Mission in The Gambia (ECOMIG) in readiness to move into The Gambia should the situation so demand.127 The mission’s objective was to create an enabling environment for the enforcement of the election results and to ensure the safety of the population in the process.128

In the meantime, in line with the decision of ECOWAS to seek the endorsement of the UN, Senegal (an ECOWAS and UNSC member at the time) drafted and presented a resolution to the UNSC for approval to use all means necessary to restore order in The Gambia.129 However, the unanimous resolution adopted by the UNSC only passively welcomed the ECOWAS decision to intervene but expressed its ‘full support to ECOWAS in its commitment to ensure, by political means first, respect of the will of the people of The Gambia’.130 Notably, the UNSC fell short of authorising the use of ‘all means necessary’, 131 failed to issue the resolution under chapter VII of the UN Charter and did not declare the situation a threat to international peace and security, thereby creating uncertainty as to the basis upon which it was exercising its authority over the internal conflict.132

Shortly after the resolution had been passed the ECOWAS troops crossed the border into The Gambia, leading to a political settlement for the relinquishing of power.133 This was done notwithstanding the failure by the UNSC to authorise the use of military force and its insistence on the use of political means (first). The UNSC’s resolution, therefore, arguably served as a legitimising tool rather than dictating action by ECOWAS.

Although it may be argued, from a human security perspective, that the ECOWAS intervention pre-empted a foreseeable lapse into conflict and the potential commission of atrocity crimes (earlier expressed by the UNSG Special Adviser on the Prevention of Genocide following statements that incited ethnic violence by the incumbent),134 the intervention falls short of compliance with the R2P norm’s procedural standards. This is because the intervention was largely aimed at enforcing democratic ideals and the military deployment was not specifically authorised by the UNSC. Although it has been argued that the UNSC did not specifically prohibit military intervention and that the loose but strategic wording of the resolution that emphasised a solution ‘by political means first’, indirectly expressed support for the possibility of a military solution,135 it is only when viewed from the eyes of the broader R2P concept that the attributes above may be argued as falling within the ambit of R2P.

The fact that Senegal was at the forefront of the intervention in The Gambia has been argued as having been motivated by political ends136 more than the need to enforce any normative ideals.137 Worth noting, however, is the strategic location of Senegal which encloses The Gambia within its territory; the fact that over 45 000 refugees had already entered Senegal; and the fact that Senegal was the only West-African country in the UNSC, which informed Senegal’s lead role.138 Even so, the fact that the decision to intervene was taken collectively at the sub-regional level went a long way in sheltering The Gambia from any negative impacts of any self-interest on the part of Senegal.139 However, such self-interest arguably is imperative in the successful implementation of R2P when channelled along objectively-identifiable legal grounds for action coupled with a multilateral decision-making system.

The ECOWAS intervention in The Gambia goes to show that sub-regional organisations are better placed to act in a timely and decisive manner to ensure peace where coercive means are necessary and where the UNSC is reluctant or does not regard such situations as commending themselves to coercive measures.

4.2.2 ECOWAS intervention in Côte d’Ivoire (2011)

Côte d’Ivoire had since 2002 endured a longstanding civil war between its southern and northern regions. The conflict that informed this intervention erupted after the incumbent President, Laurent Gbagbo (Gbagbo) rejected the results of the 2010 presidential elections in which Alassane Ouattara (Ouattara) was declared the winner.140 Gbagbo contested the results before the Constitutional Council alleging fraud in departments in the northern region.141 The Council, which was supportive of Gbagbo, annulled results from seven northern departments and proceeded to declare Gbagbo the winner.142 Two separate inaugurations took place, for Gbagbo in the south and for Ouattara in the north, resulting in a political impasse marred by acts of violence.143

ECOWAS and the AU endorsed the election results as declared by the electoral commission, recognising Ouattara as the legitimate President-elect and called on Gbagbo to respect the will of the people and to yield power.144 They both proceeded to impose sanctions on Côte d’Ivoire.145 The UNSC welcomed these decisions and expressed support for the efforts in promoting dialogue.146 It moreover reiterated the readiness of the UNSC to impose targeted sanctions to all obstructing the peace process or committing serious violations of human rights.147

In an attempt to arrive at a peaceful resolution, ECOWAS and the AU undertook separate mediation efforts with both failing to procure a truce.148 ECOWAS proceeded to threaten to use ‘legitimate force’ in a bid to force a settlement.149 However, this decision was contradicted by that taken by the AU’s PSC a month later calling for a peaceful resolution and putting in place its own high-level panel to pursue a political solution.150 This only served to further the existing impasse.151

Presented with the above conflicting positions, the UN chose to downplay the position of ECOWAS by only taking note of it while emphasising the AU’s political approach.152 Pursuant to this, ECOWAS recalled its resolutions and instead appealed to the UNSC to impose stiffer targeted sanctions and to also strengthen the mandate of UN Operation in Côte d’Ivoire (UNOCI)153 to enable them use all means necessary to protect civilians.154

The UNSC proceeded to impose an arms embargo on Côte d’Ivoire as well as targeted sanctions against Gbagbo and his associates.155 The UNSC also extended its prior authorisation to UNOCI (and the supporting French forces) to use all means necessary to protect civilians.156 The duo intervened using force, with the assistance of pro-Ouattara fighters, leading to the surrender of Gbagbo.157

In addition to the above measures, it is argued that the adoption and use of the CFA franc and the use of a single central bank among ECOWAS member states made it easy for ECOWAS to impose sanctions on Gbagbo’s government.158

The fact that special advisers to the UNSG on genocide and R2P had expressed concern over ‘the possibility of genocide, crimes against humanity, war crimes and ethnic cleansing in Côte d’Ivoire’159 placed the conflict under R2P, thus necessitating international action. The UNSC declared the situation a threat to regional peace and security and called for action under chapter VII of the UN Charter in its authorisation of intervention by the UNOCI.160 Although the conflict also sought to enforce democracy, the overwhelming human security concerns justified intervention even though the UNSC fell short of directly invoking R2P.

However, it is argued that the proactiveness of the UN was not entirely altruistic but was driven by French interests.161 France, the former colonial power of Côte d’Ivoire and a permanent member of the UNSC, is argued to have had a regime-change agenda given Gbagbo’s stand for the economic interests of his country162 and, further, given France’s interest in re-establishing French influence in Francophone Africa.163 Although Bellamy and Williams argue that ‘regional arrangements played a crucial “gatekeeping” role in defining the problem and terms of engagement’,164 this is not entirely correct. Statements made by ECOWAS and the AU only provided a pretext for UN action. There is no record of any consultation by the UN with either the AU or ECOWAS in determining the terms of engagement in the conflict. France’s undue influence in the decision to intervene and the execution of the intervention, therefore, overshadowed the UN’s impartiality while dwarfing any role by ECOWAS or the AU.165

Additionally, ‘the lack of unity of response, duplication of efforts’ and the AU’s contradiction of the position adopted by ECOWAS undermined their effectiveness in resolving the conflict at the regional level, thus necessitating the UN’s involvement.166 However, it is worth noting that while ECOWAS gave room for the participation of a representative of the Chairperson of the AU Commission in all its meetings on Côte d’Ivoire,167 the AU failed to reciprocate this. Arguably, therefore, the AU’s failure to coordinate its response with ECOWAS undermined the leadership role of ECOWAS and its ability to achieve a timely and amicable settlement.

This intervention contributes numerous lessons while equally bringing to fore challenges associated with sub-regional intervention. The first is the demonstration that sub-regional organisations are in a better position to enforce targeted sanctions as seen from the UN’s request to ECOWAS members to help enforce its sanctions.168 Second, joint sub-regional entities such as a sub-regional currency and a central bank are instrumental in the enforcement of targeted economic sanctions. Lastly, there is a need for closer cooperation between sub-regional and regional organisations in the implementation of R2P to ensure the adoption of concerted measures that will enjoy greater international legitimacy and have a better chance of achieving timely settlements of R2P-related conflicts.169 In this regard, the principle of subsidiarity is recommended in the hierarchical sequencing of interventions with sub-regional organisations acting first and resort to the UN as a last call.170

4.2.3 ECOWAS intervention in Mali (2012)

The conflict in Mali presents what R2P envisions as a situation where a state is unable to discharge its responsibility to protect. The conflict began as a push/rebellion by civilian separatist movements in Northern Mali for self-determination but was later replaced by Islamic extremism and the commission of war crimes by Islamist rebel groups that took control of the region.171 The inability of the Malian government to effectively combat the rebellion led to mutiny and a coup against President Amadou Toure prompting the UNSC and ECOWAS to respond to the crisis.

ECOWAS committed to taking all necessary measures to guarantee the protection of affected populations and to assist Mali in safeguarding its sovereignty and territorial integrity.172 In this regard, it succeeded in negotiating with the military junta for the restoration of constitutional order and the installation of an interim civilian government. It achieved this through a mix of negotiation through a high-level delegation173 and the threat of general political/diplomatic, economic and financial sanctions against the Mali state as well as through individual sanctions against the military junta’s leaders.174 This, therefore, provided room to focus on the insurgence by rebels.

Despite efforts by ECOWAS at mediating the rebellion, the insurgence could not be contained. ECOWAS, therefore, resolved to adopt a military solution of deploying troops to Mali under the banner of ‘ECOWAS Mission in Mali’ (MICEMA).175 Although this decision received the endorsement of the AU,176 various stakeholders in the region were opposed to a military solution, key among them being Mali’s interim leadership.177 Other core countries, such as Algeria and Mauritania, are also reported to have been opposed to the decision.178 This, when coupled with the fact that the Islamic militants had extensive military experience and sophisticated equipment, dealt a blow to the ability of ECOWAS to muster sufficient political, military and financial capacity to go through with the deployment. ECOWAS, therefore, was compelled to seek UNSC’s authorisation and support for an international force to intervene in Mali.179

The UNSC, however, was reluctant to approve the use of force despite the decision having received the AU’s endorsement and despite the UN having been part of all ECOWAS meetings leading up to the decision to intervene militarily. This was also despite receiving a direct request from Mali’s interim leadership for intervention.180 Having received the request by ECOWAS in June,181 the UNSC delayed the approval until December under the bureaucratic pretext of requiring ‘additional information’ from ECOWAS and the AU.182 Even when the UNSC finally authorised intervention through an Africa-led Support Mission in Mali (AFISMA), it withheld the provision of logistical and financial support, only expressing its ‘intention to consider’ providing the support upon being furnished with additional implementation details.183 In the end, what was authorised was an ‘unfunded’ and logistically-unsupported mission to Mali, thus lending credence to the view that ‘AFISMA had clearly been set up to fail’.184 A donors’ conference had to be held by the AU and ECOWAS for contributions towards the Mission.185 The lack of unqualified support from the UNSC from inception hence impacted the deployment and effectiveness of AFISMA.

Following the deepening of the insurgence due to the delays in the approval and deployment of AFISMA, Mali’s interim leadership was compelled to seek France’s military assistance.186 The French-led offensive against the rebellion, with subsequent assistance from the AFISMA troops, saw an end to the insurgence and gave room for the establishment of a stabilisation mission.

While the Mali case highlights the timely quality of sub-regional intervention as well as the importance of regional organisations deferring to the leadership of sub-regional organisations, as demonstrated by the AU’s consistent support for and endorsement of ECOWAS measures, it also reveals challenges of multilateral military action in the context of the strict limits of the R2P norm. Some of the lessons it holds for sub-regional intervention include the following:

1. Financial capacity is crucial for military intervention, hence there is a need for sub-regional organisations to focus on and strengthen their individual capacity to finance their missions.
2. Sub-regional organisations need to have a clear financing framework where a military operation is beyond both their military/logistical and financial capacity.

The resolution of the Mali conflict is argued as being an archetypal R2P norm implementation case with respect to obtaining the UNSC’s prior authorisation before the deployment of military force.187 While the ‘Mali case’ allows for action, especially in instances where sub-regional organisations are lacking in capacity to intervene on their own, its effectiveness will require a clear framework regulating how the UNSC should handle requests received from sub-regional organisations for approval of military intervention, for human protection purposes. The framework should detail, among other things, the specific roles and obligations of each of the multilateral actors in executing the specific intervention. This will ensure certainty in the process and facilitate timely action.

5 Conclusion

Human security sits at the core of R2P (the R2P concept). For this reason, the concept prized the protection of populations at risk over any procedural bureaucracies based on the world order as it existed in 1945 at the adoption of the Charter of the UN. The realities of the post-Cold War era organisation of states highlight an increasing role for regional and, even more so, sub-regional organisations in the maintenance of sub-regional peace and security. This underscored the recommendation by ICISS to confer authority on regional and sub-regional organisations to adopt coercive measures under R2P. The recommendation, however, was omitted under the R2P norm in favour of the continued preservation of the special privileges of hegemony held by a few states, more so, the permanent veto-bearing members of the UNSC and protected under the UN Charter.

The result has been the perpetuation of an inherently unequal international security system where a few states have the exclusive privilege of deciding when another state ceases to benefit from the protection afforded by principles of sovereign equality and non-interference under the pretext of R2P. This has given leeway for the use of R2P to mask ulterior motives for intervention as well as for the obstruction of decisive action in situations meriting the invocation of R2P based on the geopolitical and strategic interests of the few states rather than the imperative of human security. The former was the case in NATO’s UNSC-sanctioned intervention in Libya while the latter has been demonstrated by Russia’s more than nine vetoes against attempts by the UNSC to adopt coercive measures in Syria’s years-long conflict.188 Proposals for constructive abstention, resort to UNGA’s Uniting for Peace procedures and proposals for a ‘responsibility not to veto’ have fallen flat, thus necessitating better democratised and human security-focused alternatives. The role of sub-regional organisations in this regard therefore is key and can no longer be ignored or downplayed.

As demonstrated by intervention actions undertaken under ECOWAS and discussed herein, sub-regional organisations possess unique comparative advantages over regional and international actors which make their enhanced involvement (including the adoption of coercive measures) central to effective R2P implementation. While the R2P concept acknowledges this, the R2P norm does not.

Fortunately, the R2P norm lacks normative prescription. As an emerging norm, therefore, R2P is subject to the rigours of normative contestation and change that are attendant to the norm cascade stage where R2P currently finds itself. As part of the norm localisation process, therefore, R2P is compelled to seek congruence with domestic cognitive priors, key among them being the practice of the sub-regional use of coercive measures for human protection purposes.

The need for international legitimacy of sub-regional intervention, however, demands that norm localisation goes an extra step to produce bottom-up feedback (normative repatriation) that will lead to the modification of R2P at the international level189 to make provision for the authority of sub-regional organisations to adopt coercive measures under R2P. In this respect, therefore, international norm creation and implementation ceases to be a top-down one-way street process190 and embraces a dynamic norm diffusion process that allows room for norm localisation and repatriation rather than proselytism and the supplanting of domestic cognitive priors. Only such a process can guarantee the successful development of R2P into a prescriptive international norm while ensuring its legitimacy, local appropriateness, stability and endurance.191

In the meantime, the red-light interpretation of the need for the UNSC’s approval coupled with the imperative of ensuring the legitimacy of interventions provide a basis for sub-regional adoption of coercive measures under R2P. This, however, needs to be tempered with a close cooperation between sub-regional organisations, regional organisations as well as the UN to guarantee objectivity in decision making. Such cooperation, however, should be based on sovereign equality, capacity sharing and will as well as requiring the UNSC’s subsequent ratification, albeit until sub-regional coercive authority is officially adopted as part of the R2P norm at the international level.