The Responsibility to Protect Report: Lessons from West Africa


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The Responsibility to Protect Report: Lessons from West Africa

  1. 1. The Responsibility to Protect Report: Lessons from West Africa By Kayode Fayemi, Centre for Democracy & DevelopmentIt can be reasonably argued that ECOWAS in West Africa represents the firstexample in Africa of a process of institutionalizing humanitarian intervention on thecontinent. Established in 1975 to promote cooperation and development in all fieldsof economic activities among its 16 member states, ECOWAS entered intocooperative security from a primarily regional economic integration objective. Evenwhen the need for a security umbrella became obvious and the Protocol relating toMutual Defence was launched in 1981, the protocol concentrated on inter-state orborder related issues and pointedly prohibited involvement in internal matters with theclause on non-interference. In the context of post-cold war West Africa however, inwhich the triggers of instability manifest themselves in internally driven, even ifexternally exacerbated conflicts, the inadequacy of the 1981 protocol became obvious.The Liberian civil war and the Sierra Leone internal crisis convinced the regionalsecurity leaders of the need to address internal security issues. The nature of theintervention in the two countries however raised additional questions about the needfor a sustainable security architecture with clearly defined principles, processes andmechanisms, rather than ad-hoc arrangements. In taking this lesson to heart, WestAfrican leaders sought to address questions of clarity over mandate, politicalacceptance, composition of an intervention force, military capability, doctrinalinteroperability and accountability of the mission. To this end, the regional body hasput in place a raft of agreements - The ECOWAS Revised treaty of 1993, the Protocolrelating to the Mechanism for Conflict Prevention, Management, Resolution,Peacekeeping and Security approved in 1999 and the Supplementary Protocol onDemocracy & Good Governance endorsed by the Heads of State in December 2002.All of these protocols and agreements demonstrate the benefits of developinginstitutions and structures on the basis of experience. It also indicates that a great dealof local thinking is propelling the institutionalisation of collective securityarchitecture in West Africa.Prior to and since the development of the mechanism in 1999 and its supplementaryprotocol in 2002, it is not an exaggeration to state that ECOWAS has been the mainlaboratory for norm building in regional humanitarian intervention. The ECOWASmechanism is the most comprehensive in contemporary international law, not onlybecause it takes internal security issues as legitimate cause (s) of intervention, but alsoin spawning new forms of international law for collective regional security.Somehow, this is not a credit often given to the body and most internationalcommentators on the experience of intervention in West Africa dwell often on theproblems encountered in the course of those interventions, and not the overarchingcontributions to humanitarian intervention and customary international law. The RTPreport is not exempt from this major faux pas. Indeed, a recurring criticism at theregional consultation on the report that we just held in Abuja, was the almost totalblack out in the RTP report on this contribution. Save its mention in a single page – 1
  2. 2. (p.48), in relation to endorsement of regional operations by the Security Council, theECOWAS experience received no mention in the report. Although West Africa offersbetter insights into how not to organise interventions, the only consultation held inSub-saharan Africa before the report was published took place in Maputo,Mozambique.We believe that this has been largely due to a lot of ignorance about the exploits ofthe regional body partly borne out of modesty about its trail blazing efforts inpromoting this paradigmatic shift in international law and a lop-sided concentrationon the less than impressive aspects of the various missions conducted. Yet, the ICISSreport on The Responsibility to Protect is a vindication of the sub-regional efforts andthis is why its recommendations will not generate any controversy in the WestAfrican sub-region. For instance, the idea of humanitarian intervention in situationsof internal conflict is already accepted in West Africa and written into the protocol.Since it was done in West Africa, the African Union’s Constitutive Act has alsoadopted the same principle and it has formed the basis of the NEPAD’s peace andsecurity cluster.In spite of these positive developments however, it is important to see the trajectoriesof ECOWAS’s role in regional security as an evolving one. From the ‘firstgeneration’ ECOWAS which de-emphasised security issues, to the ‘secondgeneration’ ECOWAS which conducted intervention by ad-hoc arrangements and the“third generation” ECOWAS in which ECOMOG operates under the clear mandate ofthe regional body, not outside of it – as a regional security mechanism with a legalbasis.The ECOWAS Mechanism and its ChallengesIn spite of the changes that have occurred and the structures put in place, questionsstill abound about process and implementation and the product is still a long wayaway from where it should be. The most recent experience in Cote d’Ivoire points tosome of the gaps in the mechanism, whilst underscoring the opportunities that arethere for utilizing some of the recommendations in the RTP report in enhancing theProtocol. If ECOWAS declarations of intent are indeed turned into substance as theHeads of Government and the Executive Secretariat are determined to achieve, it ispossible for humanitarian intervention to take a much firmer root in West Africa intime to come. In terms of institutions, the Mechanism has established severalinstitutions, organs and strategies, all with defined responsibilities and aims thataddress peace and security in the sub-region. The most critical institutions are:• The Mediation and Security Council – The Council operates at the level of heads of state and government, ministers and ambassadors, charged with the responsibilities of taking decisions that impact on peace and security, including authorising deployment of missions;• The Defence and Security Commission – Made up of Defence chiefs and security officials charged with the responsibilities of dealing with the technicalities of military intervention;• ECOMOG, the erstwhile ad-hoc force now formally established as a multi- purpose stand-by force ready for immediate deployment. ECOMOG is described as multi-purpose in the sense that it can assume one of several functions of 2
  3. 3. observation, monitoring and peacekeeping. More significantly, it can be deployed for humanitarian intervention or the enforcement of sanctions. It can also undertake policing activities in order to control fraud and/or organised crime;• An early warning system, in the form of a regional observation network has been created. Established within the secretariat and also in four zones within the Community, the observation centres are charged with collecting data on states ranging across economic, political, security and social sectors to be analysed with a view to detecting early warning signals that may signify potential conflicts which could then inform region-wide conflict prevention strategies;• A Council of Elders is also proposed as a mechanism for injecting traditional conflict resolution mechanism to assume a role in mediation, conciliation and negotiation. This is made up of 32 eminent persons drawn from within and outside the region with a mandate for preventive diplomacy and it is convened as and when required by the Executive Secretariat.As Figure 1 below shows, the Executive Secretariat plays a central role in ensuringthat the Conflict Mechanism functions adequately. As stated above, the ExecutiveSecretary has the responsibility to deploy the Council of Elders in any given situation.More importantly, the newly created office of Political Affairs, Defence andSecurity(PADS) headed by a Deputy Executive Secretary is primarily charged withthe implementation of the mechanism, supervision of the Early warning operationsand the zonal observation centres, servicing of the Defence and Security Commissionand policy formulation and implementation of all peacekeeping and humanitarianoperations.The Mechanism and its supplementary protocol on Democracy and Good Governancealso take a broader view of security, stressing the importance of human security anddemocratic governance in the security sector, including roles for civil society. TheProtocol also covers institutional capacity building in the community in order toprovide humanitarian assistance in conflict or disaster area and provides a frameworkfor action by the community in the critical area of peace-building.Whilst the ECOWAS mechanism offers a good approach to designing a frameworkfor cooperative security, it also remains work in progress. Indeed, the Communityalso demonstrates commitment to revising and improving the document based on newinformation and there is growing evidence of that commitment on the part of theExecutive Secretariat and the Authority of Heads of State.Among the current gaps is the lack of any substantive role for the CommunityParliament. This gap was recognized and noted at the December 2001 summit of theorganization and the regional body is now considering approaches to involving theECOWAS Parliament in the implementation of the Conflict Mechanism and theSupplementary Protocol on Good Governance and Democracy through the revision ofthe Protocol that established the Parliament. In the protocol establishing theParliament, it is essentially a forum, composed of delegations from nationalparliaments, whose ‘opinion may be sought on matters concerning the Community’on a range of areas prior to their adoption by the Council’ with little or no supra-national legislative powers. This is clearly seen as a system that suffers from a ‘hugedose of democratic deficit’ since parliamentarians are the only direct representativesof the citizens in the Community. Yet, true as this is, the history of trans-national 3
  4. 4. legislatures the world over is one of evolution, usually from delegations from nationalparliaments to directly elected representation. It is also the case that the powers oftrans-national parliaments gradually evolve from being largely consultativeassemblies to genuine decision-making legislatures, both in scope and in powers.Circumstances dictate these inevitable transitions and the performance of theparliament to date gives the impression that its powers will certainly grow inconsonance with the quality of representation in the Parliament.Second, there are problems of hegemonic regionalism, leaderism, formalism anddonor driven institutionalisation. Many of the institutions created by the Mechanismfor Conflict Prevention, Management, Resolution, Peacekeeping and Security owetheir survival not to the commitment of member states in terms of their financialcontribution, but to the generosity of external supporters with their own subjectiveinterests. This obviously raises a fundamental question of accountability and strategicinterests especially when those interests conflict with ECOWAS’ positions. Variousattempts are however being made to address this problem, but none to date has provedto be successful in getting states to meet their assessed contributions to theCommunity, leaving the wealthiest and most populous State to underwrite theexpenses of the organisation, with accusations of hegemony in its wake.The current problems remain at three levels – political, structural and operationalA third, perhaps most critical problem with the ECOWAS framework is that of thelack of agreement on a common understanding on security and stability. Although theprotocols referred to above were signed with fanfare by most of the Heads ofgovernment and their representatives, nation-building peculiarities make it difficultfor member states to exhibit a shared understanding of a common future.In spite of the progress described above, a sense of disillusionment is still widespreadin West Africa with the current state of regional security cooperation. Indeed, theunfortunate occurrence in Cote d’Ivoire seems to be promoting the view in somecircles that despotic peace may be better than democratic freedom. Coupled with theimpression that the gains of the last decade is being eroded in the post 9/11 period, itis important for the United States and other international actors in Africa to be clearabout the message that is being promoted. It would be sad if the view were to gainwidespread acceptance that despotic peace is better than democratic, even ifproblematic freedom. The fact that the ECOWAS has not been quick off the mark inresponding to the Ivorien crisis underscores the need for a framework that goesbeyond the creation of institutions and structures, but one that also possesses thecapacity and the credibility to act on the side of humanitarian intervention andrestoration of order.This seminar on the Responsibility to Protect report offers us the opportunity to beclear about the success story in West Africa without underestimating the enormouschallenges that the sub-region faces in constructing a framework foroperationalisation that is realistic and achievable.Towards a Framework for Regional Security Cooperation: Recommendations 4
  5. 5. Although what the West African experience demonstrates is that cooperative securityis possible, even among states that lack common values, the future success ofcooperative security depends not only on spreading values that promote humansecurity, but also on developmental regionalism that intensifies economic ties even inthe quest to foster a sense of a ‘security community’ that serves the interest of all itsmembers. The closer the ties among states and their citizens in the socio-economicspheres, the more they will find ways to further their security cooperatively.Hence, given the context of regionalism described above and the challenges tocooperative security in Africa, a number of factors are, in my own view, central to thesuccess or otherwise of the process of entrenching cooperative security in anyregional bloc, if we are to move beyond the formalism of the moment. They include,but are not necessarily limited to the following key elements:• Understanding the nature of the post-colonial state and the nation-building prospects in Africa;• Subscription to and institutionalisation of core regional values and norms;• Focusing on deepening democratic and open governance and preventing violent conflicts through political processes;• Promoting long term conditions for security and development by using human security as a bedrock for peace;• Developing an integrated peacebuilding approach to human security – through the promotion of governmental and non-governmental approaches and treating peacekeeping, peacemaking and post-conflict transformation in a continuum;• Entrenching democratic governance of the security sector by establishing a clear role definition for security services whilst enhancing professionalism of the sector;• Building the capacity of African institutions for early warning, as well as enhancing their capacity to prevent, manage and resolve conflicts;• Strengthening developmental regionalism as a means of addressing the negative aspects of globalisation;• Establishing the parameters of genuine continental and global partnership – including role clarification between sub-regional bodies, African Union, United Nations etc.Whilst it is difficult to be prescriptive about the framework for security cooperation inAfrica, it is gratifying to note that most of what I have stated here are fully reflectedas the key responsibilities of the new African Union Peace and Security Councilapproved at the African Union Summit in Durban, especially in relation to NEPADand in the sub-regional mechanisms with which I am most familiar, ECOWAS.The challenge is one of achieving and promoting the values of ownership,participation, open and transparency accountability, fundamental freedoms and therule of law and implementation of agreed principles, rather than structures. Theoverriding importance of responsible politics and responsive leadership in buildingregional security cooperation is evident from the above. Until we get both right, thebest that can be hoped for remains hegemonic regionalism, which may keep thepeace, but hardly promotes fundamental values of ownership 5
  6. 6. The discussion then focussed on the legality of the Liberian and Sierra Leone’sinterventions and this produced various perspectives on the legality and legitimacy ofintervention, especially in Sierra Leone where the ECOWAS intervention took a differenttrajectory which polarised member states more than the Liberian experience did. Inexamining the two interventions in Liberia and Sierra Leone, it was Dr Bundu’s view thatbased on the two laws that currently govern regional action (Chapter VII and ECOWASProtocol), no enforcement action can be taken by a regional body. Although Article 52 ofChapter VIII of the UN Charter allows for regional mechanisms for peace supportoperations, this must be seen to have been done within a regional framework in which theUnited Nations delegates regional action. Unilateral, precipitate and unauthorised actionby individual states cannot be seen as a legitimate basis for military intervention.In sharp contrast to this viewpoint, some participants felt that any action aimed atpreventing humanitarian disaster could not be described as illegal and for this reason lawsguiding intervention should not be cast in stones. According to one proponent of thisview, customary international law, which also regulates the conduct of states, is made bythe practice of states, by convention rather than by laid down guidelines. He explainedthat at least in four cases – unilateral interventions had received retroactive endorsementfrom the United Nations. In pursuit of this line of argument, the participant explained thatthe intervention in Sierra Leone could be justified as a military assistance package, ahumanitarian intervention or in the context of a threat to regional security. It was the viewof some participants that ECOWAS while customary international law may indeed allowintervention of a type i.e. in cases of self defence, human rights violation cannot vitiatethe illegality of the action taken by a group of states in the name of humanitarianintervention.Even if this may not be legal in the context of the current international law, its legitimacywas unanimously endorsed. One participant expressed the strong view that bysanctioning unilateral action of states and/or regional institutions, especially wherecapacities within the region are not even handed, proponents of unilateral action may bepromoting states intent on using intervention as an opportunity to eliminate legitimate butuncooperative governments rather than for the purpose of a security umbrella. Nigeria’srole under a regime such as that of General Sani Abacha raised the spectre of this 6
  7. 7. scenario graphically and it also pointed out the difficulty some states had in condemningthe internal problems of the country whilst it was exporting democratic principleselsewhere in the region.For other participants though, the legal challenge should not focus exclusively on theECOMOG or the security mechanism per se. Since regional collective security refers tovalues, interests and norms that transcend the military element of security, the challengeis how to frame the law to ensure that illegal overthrow of legitimately constitutedgovernments will not be allowed. This will emphasise the preventive element of conflictmanagement, rather than the current emphasis on conflict resolution after the fact.Although consensus was not reached on the distinction between international law andcustomary international law as they affect the legal basis of collective regional security,the conference agreed that the Protocol of 1981 sets the legal basis for peace supportoperations, but the current mechanism under discussion is set to enhance that position,hence the need for policy oriented institutions to work with governments and theECOWAS secretariat in shaping the final outcome of the mechanism. 7