The Situation in Ivory Coast: intervention to protect or regime change operation?

April 11, 2011

By Susan Breau, Professor of International Law (Flinders University, Australia)

On 30 March 2011, the Security Council acting under Chapter VII of the Charter  adopted Resolution 1975 which urged the defeated President Gbagbo to immediately step aside and declared the situation in Ivory Coast to be a threat to international threat and security.

The resolution also imposed targeted sanctions (freezing of assets, travel bans) against Laurent Gbagbo and other members of his regime.  In its preamble it declared that the attacks currently taking place in Côte d’Ivoire against the civilian population could amount to crimes against humanity and that perpetrators of such crimes must be held accountable under international law and noting that the International Criminal Court may decide on its jurisdiction over the situation in Côte d’Ivoire on the basis of article 12, paragraph 3 of the Rome Statute.

For the purposes of this analysis the resolution also authorised the United Nations Operation in Cote d’Ivoire (UNOCI) to use “all necessary means to carry out its mandate to protect civilians” including preventing the use of heavy weapons.  Surprisingly, the resolution specifically mentioned ‘the French forces’ supporting UNOCI which indirectly authorised the use of force by French forces  in assisting the UN operation to fulfil its mandate.

Importantly, the resolution specificially referred to the ‘primary responsibility’ of each State to protect civilians, thus referring to the responsibility to protect albeit in an oblique way. It can be asserted that together with the recent resolution 1973 on Libya which authorised “all necessary means to protect civilians”, there is a growing body of international practice responding to massive violations of human rights with mandates to use force, if necessary, to protect civilians.

For an international lawyer researching the issue of whether the responsibility to protect is an emerging doctrine of public international law, it would be preferable if the Security Council resolutions proceeded to the secondary responsiblity.  This would mean a specific reference to an international responsibility to protect civilians instead of rather vague mandates, particularly with respect to the use of force by France.  However,  it can be argued that in both the Libyan and the Ivory Coast resolutions there is specific power given to armed forces of other nations to exercise their responsiblity to protect.  These follow a long line of resolutions including those on Darfur, DRC, and Burundi which provided specific mandates to United Nations peacekeeping forces to use force to protect civilians from ethnic cleansing, crimes against humanity and war crimes. The development in these two resolutions is that belligerent forces are authorised to intervene in situations of massive violations of human rights and humanitarian law.

Furthermore, these resolutions seem to accord with the unanimous General Assembly Resolution reflecting the outcome of the 60th anniversary summit of the United Nations which confirmed two stages in the responsibility to protect, first the national obligation and then the international obligation to protect civilians from the above-mentioned crimes.

But in complying with the responsibility to protect civilians, there is a further difficulty.  The troops in these operations find themselves in situations of civil war.  In the case of Ivory Coast the mandate is clearly in support of the democratically elected new President Alassane Dramane Ouattara and not the defeated President Gbagbo. French forces have intervened to support the incoing regime of Alassane Dramane Ouattara perhaps without a specific Security Council authorisation.  French helicopter gunships attacked  Gbagbo’s forces days after passage of the resolution. Yet the major legal issue is whether such actions are actually in support of the mandate to protect civilians.

One can argue that this is only a highly technical view of these resolutions.  With respect to the Ivory Coast, UN Secretary General Ban Ki Moon said the decision to involve France was “… a direct consequence of Mr. Gbagbo’s refusal to relinquish power and allow a peaceful transition … The country has been plunged into violence with a heavy toll on civilian population.” (Press release available here). It can be argued that intervening in these types of civil wars is a necessity to protect civilians but that results in the obligation to decide which party or parties in the civil war to support.  In the case of Ivory Coast the decision is easier as the duly elected President is being supported.  This is more difficult in Libya as the rebels are trying to oust a regime once recognised by the international community.

The international law debate is whether indeed the international community should intervene in either side of a civil war.  The mandate to protect civilians in these resolutions do not specifically indicate that one side of the civil war should be supported. The law concerning the legality of use of force the jus ad bellum specifically prohibits intervention on the side of rebels and authorises collective self-defence to support a government with a specific invitation.  The condition is that the government must have control over the majority of its territory.

The United Nations Security Council has a difficult task in drafting resolutions that are acceptable to all the members and at this point it is unlikely that China and Russia for example would consent to such an interference in a sovereign state’s internal affairs.  Yet the lack of a specific mandate causes endless debates within international society of how far the mandate to protect civilians extends.  A dictator who chooses to persecute his own people may face international intervention in his actions but not his removal.  We saw in the international reaction to the war in Iraq that there is profound concern about removing governments unless they have been clearly politically defeated.  Hitler for example was an elected leader very popular with the vast majority of Germans but no one would seriously argue that he should have remained in office.

International law does not yet contain any sort of doctrine of proper governance and requires those who are persecuted to stage successful revolutions at the cost of many lives.  Without a clear discussion as to how far or on what conditions these interventions should take place these confusions as to mandate will continue.

(Edit 14/04/2011: For a background comment on the Ivory Coast situation, read also ‘Ivory Coast’s Political Stalemate: The Legality of the anticipated ECOWAS Military Intervention’, by Jide Loye)

 

Susan Breau is a Professor of International Law at the Flinders University (Australia). Her main interests are the Law of Armed conflicts and International Humanitarian Law.

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