Ivory Coast’s Political Stalemate: The Legality of the anticipated ECOWAS Military Intervention

February 10, 2011

By Loye Jide Olufemi (LL.B, LLM, BL), international lawyer and legal consultant on laws of war practicing in Nigeria and working on Human rights and international armed conflict issues. 

Ivory Coast, a former French Colony that was once admired and envied by its West African neighbours for its well developed economy and political stability has been plagued by continuous turmoil in recent years.

Historical Perspective

For more than 30yrs under its charismatic first president Felix Houphouët-Boigny, Ivory Coast prospered as a nation. However, Houphouët-Boigny’s death in 1993 brought an end to the country’s economic prosperity and political stability. Henri-Konan Bédié succeeded him in 1993, and won the 1995 election boycotted by the opposition led by Houphouet-Boigny’s Vice President: Alassane Ouattara. A coup–d’état orchestrated by General Guei forced Bedié and his government out in 1999, and presidential elections took place under his military dictatorship. Ouattara (whose party represented the majority group as reflected in the parliamentary votes) was banned from the presidential elections because of his alleged foreign parentage, while Gbagbo was allowed to run against Guei. The election results were disputed, but the Supreme Court eventually declared Gbagbo the winner. Guei, however, would not relinquish power, leading to clashes and many killings. General Guei was eventually deposed in an uprising and the declared winner of the elections Laurent Gbagbo was installed as the president.[1]

A long-term crisis

In 2002, soldiers from the historically marginalised northern part of Ivory Coast attempted a coup which eventually turned into a civil war. The Economic Community of West African States (ECOWAS) quickly became involved in attempts to address the crisis, and an emergency summit was held on 29 September 2002, setting up a contact group to promote dialogue between the rebels and the government and discuss a general framework to resolve the crisis. The conflict officially ended in 2003, but the country was severed into two, with a government-controlled south led by Mr Gbagbo and the north held by the rebels known as the New Forces. The French and UN peacekeepers patrolled the buffer zone which separated the north and the government-controlled south.

It is against these historical events that the 2010 presidential elections were held. The elections were expected to complete an UN-backed process of reunifying the country and restoring stability. According to ECOWAS, the African Union and the UN, the incumbent President Laurent Gbagbo lost the presidential elections to his opponent Ouattara whose Ivorian citizenship had been revalidated by the Supreme Court. Ouattara was declared winner by the Ivory Coast Electoral Commission and certified by the UN, although Gbagbo has vehemently refused to relinquish power. In view of this political stalemate, the ECOWAS heads of state met at an emergency summit in Abuja, Nigeria and resolved to use “legitimate Force” to remove Gbagbo from office (UN Press release available here).

On the right to conduct pro-democratic interventions

The use of force in support of democratic regimes is an area of controversy under international law.  Pro-democratic intervention (PDI) has been defined as the use of force to restore a democratically elected government which has been removed from power by unconstitutional means. I will extend the definition to include the use of force to install a democratically elected government into power after the refusal by an incumbent government to relinquish power to the democratically elected party.

According to Oscar Schachter, laws that permit intervention in internal matters of another country for the sake of restoring a democratically elected government is not allowed and should not be allowed under international law[2]. For Thomas Franck and Jeremy Levitt, by contrast, PDI is becoming an emerging norm.[3] Overall, a change in international law openly supporting PDI is highly unlikely, given the fear that such principle would be misused.

For the sake of reactivity, however, the lack of a principle should be distinguished from the misuse of that principle. While it is a generally accepted view that the UN.s Charter’s prohibition on the use of force is a necessary corollary to achieving UN’s goal of maintaining peace and security, the slow reaction or inability of the UN to cope with the armed conflicts and human rights violations in Africa is obvious.

In light of the UN inability to cope with security issues, as a matter of fact, the African Union and its regional organizations and arrangements (i.e. ECOWAS, SADC, and MISAB) have gradually been moving away from its strict adherence to international law principles of non interference, territorial integrity and sovereignty. However, in many respects, ECOWAS has travelled the farthest down the pro-democratic intervention road[4]. ECOWAS was created on the 25th May 1975 purely as an economic organisation (Ecowas website available here). By 1998, it had transformed itself into a regional collective security system with extraordinary authority to intervene militarily in the internal affairs of member states having realised the nexus between economic development and regional security. The 1999 ECOWAS Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-keeping and Security, read together with related ECOWAS instruments, establishes a Mediation and Security Council that by a two-thirds vote may authorize “all forms of intervention” (article 10) including military intervention, in a member state in order to respond to cases of aggression or conflict in any Member State or threat thereof, in conflict between two or several Member States, in case of internal conflict- a) that threatens to trigger a humanitarian disaster, or b) that poses a serious threat to peace and security in the sub-region; in the event of serious and massive violation of human rights and the rule of law and also in the event of an overthrow or attempted overthrow of a democratically elected government.

Can a possible ECOWAS military intervention for pro democratic reasons be legal under collective regional security.

In order to determine the legality of a possible military intervention in Ivory Coast, it is therefore necessary to classify the political crisis to see if ECOWAS has legal grounds for intervention. (a) It is very obvious that it is an internal crisis. (b) It is an internal conflict that is already threatening to trigger humanitarian disaster. This crisis, indeed, is already placing a heavy refugee burden on neighbouring states. According to the UNHCR, over 14,000 people have fled the political turmoil and have crossed over to Liberia, following the disputed presidential elections. The UN said that it is prepared to host a total of 30,000 refugees in the region. (c) An incumbent government has refused to relinquish power to the democratically elected party. (d) It is posing a threat to peace and security in the Sub region.

Therefore, in view of these crises in Ivory Coast, ECOWAS within the 1999 ECOWAS Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-keeping and Security appears to have the legal and legitimate right to intervene militarily to install the winning party (Ouattara) to power and put a stop to the humanitarian crisis in Ivory Coast on the basis of collective regional security. And it is expected that military intervention becomes necessary after all other non-military options have been exhausted.

Article 26 of the Vienna Convention on Law of Treaties states that “every treaty in force is binding upon parties to it and must be performed in good faith”. It follows that ECOWAS are legally bound to abide by and perform their organizational duties as laid don in the ECOWAS treaty read together with the 1999 ECOWAS Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-keeping and Security and the revised 2008 ECOWAS Conflict Prevention Framework.

UN Backing

Article 2 (7) of the UN Charter clearly prohibits intervention into another state on matters essentially within the domestic affairs of that state. This assertion of state sovereignty makes it difficult for neighbours to intervene for any reason and it also makes it very difficult for outside mediators to take any kind of action to prevent internal conflicts. However, within the UN system, ECOWAS intervention will have to be sanctioned by the United Nations. As stated in Chapter VIII, Article 53 of the UN, no enforcement action shall be taken under regional arrangements or by regional agencies without prior authorization from the Security Council. The Security Council will have to determine that the situation in Ivory Coast has constituted a threat to international peace and security in the region. Once it is determined and a Resolution is passed authorising ECOWAS to carry out their mandate then ECOWAS will have its legal basis for military intervention in Ivory Coast more solidified.

It is to be noted that current trends show that where democratically elected government has been dislodged against the will of the people then military intervention may be justified as in the case of the Mission for the implementation of Bangui Agreement (MISAB) in the Central African Republic, ECOWAS in Liberia and Sierra Leone. Both ECOWAS interventions in 1989 and 1997 in Liberia and Sierra Leone respectively were without the UN’s authorization. However both interventions were eventually retroactively sanctioned by the UNSC Resolutions 788 (1992) and 1132 (1997) and ECOWAS was commended for its efforts. Judging from the ECOWAS’ past military interventions in the sub region vis a vis the current crisis in Ivory Coast, it can be said that ECOWAS will more than likely get the support they need from the international community to intervene in Ivory Coast to restore democratically elected Ouattara’s governement. As at the writing of this paper, Britain’s Foreign Secretary-William Hague had already announced their support for the use of United Nations-sanctioned military action to force Ivory Coast president Laurent Gbagbo to hand over power.

 Conclusion

In conclusion, it seems that the UN Security Council in recent times has demonstrated lackadaisical attitude and lack of genuine interest concerning intervention in African crisis. It is understandable. Africa is not its priority. However, the willingness of regional organizations like ECOWAS to intervene militarily in the region has contributed to the emerging PDI norm under customary International law thus evidencing a gradual shift in international law allowing regional organisations to intervene in internal conflicts. The UN, AU, ECOWAS are already involved in Ivory Coast. The incumbent President Gbagbo has allowed international mediation of the UN, AU, and ECOWAS in Ivory Coast since 2002. This has enabled him to hold office since 2000 without the mandate of Ivoirians. As it is, Gbagbo has not shown any willingness to step down. There is no going back for ECOWAS. It is too late to disengage. They cannot afford to set a bad precedent. They have to send a clear message to other ECOWAS countries and their leaders.

(Edit 07/03/2011, footnotes added)

(Edit 14/04/2001, For more comments on the intervention in Ivory Coast, read also  ‘The Situation in Ivory Coast: intervention to protect or regime change operation?‘, by Professor Susan Breau)


[1] The historical background and country data can be found on the BBC News website; For more information see also Maddox Toungara J. Ehnicity and Political Crisis in Cote d’Ivoire Journal of Democracy 12.3 (2001) 63-72; Mimiko, F.N.O. Regional Ethnic Diffusion, State Authortarianism and Crisis of Post Colonial Reconstruction Journal of Third World Studies, Vol. XXIII, No. 2

[2] Oscar Schachter AJIL Vol. 78, No. 3, (Jul., 1984), pp. 645-650

[3] See for instance Levitt, J. Pro Democratic intervention in Africa 24 Wis. Int’l L.J. 785 2006-2007

[4] Wippman, D. Pro Democratic intervention in Africa ASIL,Vol.96 (2002) pp 143-145

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3 Responses to “Ivory Coast’s Political Stalemate: The Legality of the anticipated ECOWAS Military Intervention”

  1. Dr. Jeremy Levitt Says:

    I read this post with great curiosity given that it’s core facts appear to be largely drawn from the work of others and perhaps plagerized. In addition, I believe that the thrust of the analysis is weak and not consistent with law in the African region.

    Dr. Jeremy Levitt

    • Int'Law Notepad Says:

      Dear Dr Levitt,

      Thank you for your attention.
      After further investigation regarding your comment on “plagiarism”, we consider that although some references would have been useful, the ‘core facts’ that you were mentioning are historical events widely documented by the press and on the internet and are therefore not ‘largely drawn from the work of others’ nor ‘plagerized’. As a matter of fact, please note that the author clearly listed various well-known specialists (you included) in the body of the post but did not use any of their arguments as his own. Taking note of your comment and as the ‘edit’ note shows, the author has however added a link sending to the BBC news country report as well as a couple of relevant academic references which, I am sure, will be of use to the readers. ‘Plagiarism’ remains a big issue that we – as young academics and professionals – are well aware of, however it is not in our interest nor in the interest of the blog to be involved in such practices. We hope that doubts are now dissipated and apologise for the concerns created.

      As to the author’s analysis of the situation, the objective of this blog being to exchange notes and ideas, you are very welcome to add your own perspective to the debate, either as a reply to this comment, or as a post which we will be happy to publish if you feel like contributing.

      Kind Regards
      AM.

  2. simeon adebayo orebote Says:

    There is no doubt that Africa is not the priority of the UN as evidence from its lackadaisical attitudes towards the maintenance of peace and security in the continent.For instance,UN intervention in the first liberian crisis did not came until 1992 when she eventually passed resolution 788 imposing arms embargo on liberia.I want to argue here that the world body has failed in executing its primary aims in that even its role in the crisis was limited.The reason for this lack of genuine interest is that remaine the veto power residing in the five permanent members of the UN Security Council in that a veto of one member definitely alter the decisions of others in intervening in a warring state.One can site an example of this phenomenon in the recent vetoed of China and Russia against possible military intervention in Syria.Its therefore reccommende that the veto of the P5 should be revisited and that more prominent role on international peace and security should be given to the UN General Assembly.


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