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The legality of a Sadc intervention in Cabo Delgado in the absence of Maputo consent

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MOZAMBICAN Islamist insurgents on 24 March launched their most serious and deadly attack on the northernmost Cabo Delgado town of Palma, worsening the political and security situation in the country, while threatening its promising economic future.

Scores were left dead on the streets or injured, while thousands were displaced.

While Maputo, assisted by former Zimbabwean army veteran retired Colonel Lionel Dyck through private security company Dyck Advisory Group’s guns-for-hire intervention, is struggling to contain the growing insurgency, Southern African Development Community (Sadc) leaders are procrastinating for different reasons, leaving regional security under threat.

What is the legality of a possible Sadc intervention? South African international law expert Marko Svicevic addresses the question at the heart of Sadc’s paralysis.

MARKO SVICEVIC

The growing insurgency in Mozambique continues to worry its neighboring states and the Southern African Development Community (Sadc) alike.

Known as Ansar al-Sunna, the insurgency first arose in 2017 in Mozambique’s northern province of Cabo Delgado.

By July 2019, it had pledged allegiance to Isis and, by 2020, several reports confirm it has been added to the Islamic State Central Africa Province.

Over the course of three years, insurgents have launched dozens of attacks across the province, resulting in over 2 000 deaths and the displacement of some 250 000 people.

As the intensity of insurgent activities continue, so too does pressure on a regional response from Sadc.

In particular, suggestions forwarded on a Sadc response include not only fact-finding missions and humanitarian assistance, but the possibility of a regional military intervention.

While the Sadc legal framework provides for a military intervention in cases of intrastate conflict such as the one ongoing in Cabo Delgado; whether Mozambique will be open to such an initiative remains unclear.

For much of two years, Mozambique has denied the scale of the conflict and only recently admitted it may need assistance.

As such, the situation has only recently made it onto the Sadc agenda; the bloc having been alarmingly silent prior to 2020.

Sadc has formally addressed the situation on two occasions; yet no clear decisions have been taken.

Moreover, reports have begun to surface that President Felipe Nyusi has refused a Sadc military intervention.

These reports indicate that Mozambique has requested direct intervention from Zimbabwe.

Additionally, South Africa has formally expressed the country’s willingness to assist Mozambique (even militarily so) in fighting the insurgency.

If Mozambique does indeed prefer a bilateral approach, any regional response from Sadc without Mozambique’s blessing may not only be unlikely, but also unlawful.

This post examines the Sadc regional security framework and the potential legal basis for a Sadc military intervention in Mozambique.

It assesses the legality of a proposed military intervention in the absence of consent from the Mozambican government under two principal security treaties: the Sadc Mutual Defence Pact and the Protocol on Politics, Defence and Security Co-operation.

‘Collective action’ and the Mutual Defence Pact
The Sadc Mutual Defence Pact (the pact) was adopted in 2003 and expanded on the Protocol on Politics, Defence and Security Cooperation of 2001.

Article 6(1) of the pact states that “an armed attack against a State Party shall be considered a threat to regional peace and security and such attack shall be met with immediate collective action.”

Collective action in this context is mandated by the summit on the recommendation of the Organ for Politics, Defence and Security (Article 6(2)).

Further, each state party may participate in collective action as it deems appropriate (Article 6(3)) and any armed attack and corresponding response must be reported to the African Union’s Peace and Security Council (AU PSC) and the United Nations Security Council (UNSC) (Article 6(4)).

Although Article 6(1) provides for collective action in response to an armed attack – its potential as a legal basis for an intervention in Cabo Delgado remains questionable. First, Article 6(1) refers to an armed attack against a state party.

The pact in Article 1 defines “armed attack” as “the use of military force in violation of the sovereignty, territorial integrity and independence of a State Party”. It does not however indicate whether an armed attack originates from another state party, a third state or a non-state actor. Interestingly, the pact defines a “third party” as a “State or entity which is not a party to this Pact.”

Be that as it may, the provision for collective action in response to an armed attack, combined with the broad definition of such an attack, does not necessarily establish a basis for the use of force against a non-state actor. This assertion is based on three considerations. First, the term collective action in Article 6(1) likely refers to, at least in part, “collective self-defence” (discussed below).

This is also directly established when considering that an armed attack may give rise to a right of collective self-defence; conversely, collective self-defence may be taken in response to an armed attack. Second, arguments favouring Article 6(1) as a legal basis would also suggest that, given the broad definition of “armed attack” in the pact, any violation of the UN Charter prohibition on the use of force may give rise to a right of collective self-defence.

Third, although the pact defines a “third party”, no mention is made thereof in Article 6. The only reference to a third party is in fact found in the pact’s final provisions concerning states parties’ declarations that no international agreements between them and third parties may be in conflict with the spirit and purpose of the pact (Article 15(1)(a)).

Where the consideration of the term “collective action” concerns, the following may be noted. Although the pact does not define collective action, in the context of Article 6 titled “Collective Self-Defence and Collective Action”, it is reasonable to suggest that collective action includes the action decided upon by consensus among the state parties (action recommended by the organ and mandated by the summit).

Based on this assertion, it is doubtful that “collective action” can be taken in response to the armed attack but in the absence of the consent of the state party in which territory that armed attack has taken place.

In the case of Mozambique, assertions to the contrary would suggest that Sadc could undertake “collective action” against the insurgents in Cabo Delgado without Mozambican consent to such action.

Reports indicating that Mozambique has opted to engage directly with neighbouring countries rather than Sadc would at the least suggest that it may not be prepared to accept Sadc military assistance.

Added to this is the fact that Mozambique has requested assistance from at least two external private military contractors.

South Africa’s Dyck Advisory Group and Russia’s Wagner Group are both reportedly engaged in military operations in Cabo Delgado.

Further, Mozambique has not yet claimed it has been the victim of an armed attack as a result of the activities of the insurgents, nor have there been any reporting in this regard to the AU PSC nor the UNSC. These factors may be indicative that Mozambique sees Sadc military assistance, if not entirely out of the question, as a last resort.

Additionally, the inability to rely on article 6(1) for the resort to force against the insurgents finds support when one takes into account the pact’s broader objectives.

In particular, the pact enshrines state party sovereignty, collective decision making and co-operation. Article 7(1), for example, specifically refers to state parties’ obligations to respect each other’s territorial integrity, sovereignty and non-interference in internal affairs.

More so, article 7(2) explicitly prohibits assistance under the pact unless the state party in question requests or provides consent for such assistance. The only exception provided for is where the Sadc summit takes action in accordance with the Protocol on Politics, Defence and Security Co-operation (addressed below).

The title of article 6 is also interesting to note. Although the article is titled “Collective Self-Defence and Collective Action”, from the wording of its provisions, there seems to be no material distinction between the terms. The article’s provisions consistently refer to “collective action”, which, from the context of the text, seems to refer to “collective self-defence.”

While it remains uncertain whether the terms may be used interchangeable, the requirement in article 6(4) that an armed attack and corresponding response be reported to the AU PSC and the UNSC, suggests this may be the case. In turn, this would suggest (and possibly clarify) that the reference to “collective action” in Article 6(1) in fact refers to “collective self-defence”.

By extension, it would at the least question whether under the pact, the bloc could resort to collective self-defence against a “third party” (the insurgents) over the territory of the victim state (Mozambique) without that state’s consent nor at its request.

Consequently, one question which arises is whether any military response by Sadc would represent enforcement action rather than collective self-defence.

Enforcement action and the Protocol on Politics, Defence and Security Co-operation
The Protocol on Politics, Defence and Security Co-operation (the Protocol) adopted in 2001 provides for the prevention, resolution and management of inter-state and intra-state conflict in the bloc.

Article 2(f) lists one objective of the Organ on Politics, Defence and Security (the principal institution responsible for regional peace and security) as considering “enforcement action in accordance with international law and as a matter of last resort where peaceful means have failed.” To that end, Article 11(2)(b) states that the organ may seek to resolve any intra-state conflict within the territory of a state party.

It goes on to outline that “significant intra-state conflict[s]” include large-scale violence between sections of the population (Art. 2(b)(i)); military coups or other threats to legitimate authority of a State (Art. 2(b)(ii)); conditions of civil war or insurgency (Art. 2(b)(iii)); or conflict which threatens peace and security in the Region or the territory of another State Party (Art. 2(b)(iv)).

The inclusion of the latter two situations is particularly noteworthy in the current context. In essence, Article 11(2)(b), read together with article 11(3)(c) pertaining to the failure of peaceful means to resolve a conflict, permits Sadc to resort to enforcement action in the listed situations.

The protocol, under article 11(b)(iii), would therefore seemingly permit a Sadc military intervention into Mozambique to resolve the ongoing conflict. Alternatively, Sadc could rely on article 2(b)(iv) should the conflict in Cabo Delgado threaten peace and security in the region or even the territory of another state party.

For the time being, it remains unclear whether the conflict indeed threatens regional peace and security.

The intensity and escalation of conflict this year alone has become evident. So too has the growing presence and territory the insurgents operate across.

In June this year, the Isis central media office issued a threat on behalf of the insurgents in which it warned South Africa not to become involved in the conflict or face retaliation. Additionally, recent reports suggest that insurgents have launched at least one attack in Kitaya (Tanzania), and several attacks against off-shore islands.

These developments indicate that it may only be a matter of time before the conditions under article 2(b)(iv) are met.

Finally, it is worth noting that despite providing for regional enforcement action, the protocol under article 11(3)(d) explicitly states that the summit shall “resort to enforcement action only as a matter of last resort and, in accordance with Article 53 of the United Nations Charter, only with the authorisation of the United Nations Security Council.”

In addition and as recently addressed by De Wet, the Sadc security framework makes no provision for ex ante military assistance on request. As such, in the absence of Mozambican consent, Sadc remains dependent on UNSC authorisation.

Conclusion
The above analysis would suggest that at the moment, Sadc could only become involved militarily in Mozambique under two circumstances. First, it would have to negotiate the terms of any Sadc assistance with the Mozambican government.

Any subsequent military deployment must be taken with Mozambique’s full consent or, alternatively, would have to be undertaken subsequent to a request for such assistance from Mozambique. In the absence of this consent, Sadc may be unable to rely on its Mutual Defence Pact and would instead need to resort to the enforcement action provided for under the protocol. Its reliance on enforcement action would however depend on additional factors.

The conflict in Mozambique would have to be considered an insurgency for purposes of article 2(b)(iii) or it would have to threaten regional peace and security within the confines of article 2(b)(iv).

In addition, any enforcement action the bloc hopes to undertake would need the authorisation of the UNSC, in accordance with both Article 11(3)(d) of the protocol and article 53 of the UN Charter.

Since the bloc has historically sparsely relied on either of its instruments for an intervention, whether it will do so in the case at hand remains to be seen.

*Dr Svicevic is a post-doctoral research fellow at the South African Research Chair in International Law, University of Johannesburg.

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