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An ECOWAS intervention in Côte d’Ivoire?

The BBC is reporting:

Three African presidents are due to travel to Ivory Coast on Tuesday to give incumbent President Laurent Gbagbo a final opportunity to leave office, after the UN ruled he had lost last month’s elections.

If the arrival of the leaders of Cape Verde, Sierra Leone and Benin fails to end the stalemate over last month’s elections, West African states have threatened a military intervention if Mr Gbagbo does not step down.

The regional grouping Ecowas has a history of using force to restore order, when there is no other option.

As early as 1978 the region’s nations agreed to refrain from the use of force against each other and this was followed in 1981 by a mutual defence pact.

But events in Liberia in the 1990s, when the country descended into civil war, called for more urgent measures.

Obstacles?Troops were deployed to Liberia as part of the Ecowas ceasefire monitoring group, known as Ecomog.

Its forces were used, with greater or lesser degrees of success, in Sierra Leone and Guinea-Bissau.

he region also sent troops into Ivory Coast after the civil war broke out there in 2002 – a task later taken over by the United Nations.As part of the African Union’s attempt to head off further crises, a West African standby brigade has been prepared and it is these forces that could then be deployed.

Henry Boshoff of the Institute of Security Studies in Pretoria says that once a political decision is made to send the troops they could be in place in a relatively short period of time.

“When the political decision is made, it will go to the chief of staff of Ecowas – that is the military command.

“They will then do the planning, they will ask then for troop-contributing countries to contribute the force, they will decide on the concept operation – how many troops – and then the readiness of the troops.”

This could be done as in three to four weeks, he says.

“Ecowas has been going through a series of exercises, scenario-building. So it is possible that it can take place so quickly,” he says.

This operation could be set in motion after the West African presidents report back.

Their decision will have to be endorsed by the region, then the African Union and might have to be referred to the UN in New York.

But at least in principle, troops could soon be on the way to ensure that the democratic voice of the Ivorian people is respected.

There are already an estimated 10,000 UN troops in the country, but their mandate has been to monitor the peace process and support the organisation of November’s election.

Unlike the possible West African intervention force, its mandate does not include enforcing the results of the poll.

Mr Boshoff says that an obstacle in the way of a West African force could be the number of the region’s troops already deployed in other peacekeeping missions.

The other problems to be overcome are logistics – the ability to get the troops to where they are needed – and the money needed to pay for them.

But Mr Boshoff says here at least the international community would probably be willing to lend a hand.

“If West Africa makes a decision, we can expect that there will be some international support in terms of logistical support and finance, because without it the region will struggle to find the resources that it needs.”

But would such an ECOWAS intervention be lawful? Clearly, if the United Nations Security Council were to authorize the intervention, it would be lawful. But would an ECOWAS intervention be lawful in the absence of of a Security Council resolution?

Article 53 of the United Nations Charter provides, in part:

  1. 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 the authorization 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 aggressive 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. (emphasis added)

The traditional interpretation of Article 53 is that a use of force by a regional organization is not lawful unless it is authorized by the Security Council (or undertaken in response to an armed attack– which does not apply in the case.)  But since the 1990′s, regional organizations have engaged in interventions in numerous cases without Security Council authorization, giving rise to arguments that there is an emerging rule of customary international law permitting such regional humanitarian interventions.  In 1993, my colleague, Robert J. Beck, and I wrote of this potential emerging rule in International Law and The Use of Force: Beyond the UN Charter Paradigm. Since that time, the international community has seemed even more willing to acquiesce in the use of force by regional arrangements for humanitarian purposes. I suspect that if there is an ECOWAS intervention in Côte d’Ivoire, there will likely be similar acquiescence.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.