1. The Responsibility to Protect Report: Lessons from West Africa
By
Kayode Fayemi,
Centre for Democracy & Development
It can be reasonably argued that ECOWAS in West Africa represents the first
example in Africa of a process of institutionalizing humanitarian intervention on the
continent. Established in 1975 to promote cooperation and development in all fields
of economic activities among its 16 member states, ECOWAS entered into
cooperative security from a primarily regional economic integration objective. Even
when the need for a security umbrella became obvious and the Protocol relating to
Mutual Defence was launched in 1981, the protocol concentrated on inter-state or
border related issues and pointedly prohibited involvement in internal matters with the
clause on non-interference. In the context of post-cold war West Africa however, in
which the triggers of instability manifest themselves in internally driven, even if
externally exacerbated conflicts, the inadequacy of the 1981 protocol became obvious.
The Liberian civil war and the Sierra Leone internal crisis convinced the regional
security leaders of the need to address internal security issues. The nature of the
intervention in the two countries however raised additional questions about the need
for a sustainable security architecture with clearly defined principles, processes and
mechanisms, rather than ad-hoc arrangements. In taking this lesson to heart, West
African leaders sought to address questions of clarity over mandate, political
acceptance, composition of an intervention force, military capability, doctrinal
interoperability and accountability of the mission. To this end, the regional body has
put in place a raft of agreements - The ECOWAS Revised treaty of 1993, the Protocol
relating to the Mechanism for Conflict Prevention, Management, Resolution,
Peacekeeping and Security approved in 1999 and the Supplementary Protocol on
Democracy & Good Governance endorsed by the Heads of State in December 2002.
All of these protocols and agreements demonstrate the benefits of developing
institutions and structures on the basis of experience. It also indicates that a great deal
of local thinking is propelling the institutionalisation of collective security
architecture in West Africa.
Prior to and since the development of the mechanism in 1999 and its supplementary
protocol in 2002, it is not an exaggeration to state that ECOWAS has been the main
laboratory for norm building in regional humanitarian intervention. The ECOWAS
mechanism is the most comprehensive in contemporary international law, not only
because it takes internal security issues as legitimate cause (s) of intervention, but also
in spawning new forms of international law for collective regional security.
Somehow, this is not a credit often given to the body and most international
commentators on the experience of intervention in West Africa dwell often on the
problems encountered in the course of those interventions, and not the overarching
contributions to humanitarian intervention and customary international law. The RTP
report is not exempt from this major faux pas. Indeed, a recurring criticism at the
regional consultation on the report that we just held in Abuja, was the almost total
black out in the RTP report on this contribution. Save its mention in a single page –
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2. (p.48), in relation to endorsement of regional operations by the Security Council, the
ECOWAS experience received no mention in the report. Although West Africa offers
better insights into how not to organise interventions, the only consultation held in
Sub-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 of
the regional body partly borne out of modesty about its trail blazing efforts in
promoting this paradigmatic shift in international law and a lop-sided concentration
on the less than impressive aspects of the various missions conducted. Yet, the ICISS
report on The Responsibility to Protect is a vindication of the sub-regional efforts and
this is why its recommendations will not generate any controversy in the West
African sub-region. For instance, the idea of humanitarian intervention in situations
of 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 also
adopted the same principle and it has formed the basis of the NEPAD’s peace and
security cluster.
In spite of these positive developments however, it is important to see the trajectories
of ECOWAS’s role in regional security as an evolving one. From the ‘first
generation’ ECOWAS which de-emphasised security issues, to the ‘second
generation’ ECOWAS which conducted intervention by ad-hoc arrangements and the
“third generation” ECOWAS in which ECOMOG operates under the clear mandate of
the regional body, not outside of it – as a regional security mechanism with a legal
basis.
The ECOWAS Mechanism and its Challenges
In spite of the changes that have occurred and the structures put in place, questions
still abound about process and implementation and the product is still a long way
away from where it should be. The most recent experience in Cote d’Ivoire points to
some of the gaps in the mechanism, whilst underscoring the opportunities that are
there for utilizing some of the recommendations in the RTP report in enhancing the
Protocol. If ECOWAS declarations of intent are indeed turned into substance as the
Heads of Government and the Executive Secretariat are determined to achieve, it is
possible for humanitarian intervention to take a much firmer root in West Africa in
time to come. In terms of institutions, the Mechanism has established several
institutions, organs and strategies, all with defined responsibilities and aims that
address 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
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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 ensuring
that the Conflict Mechanism functions adequately. As stated above, the Executive
Secretary has the responsibility to deploy the Council of Elders in any given situation.
More importantly, the newly created office of Political Affairs, Defence and
Security(PADS) headed by a Deputy Executive Secretary is primarily charged with
the implementation of the mechanism, supervision of the Early warning operations
and the zonal observation centres, servicing of the Defence and Security Commission
and policy formulation and implementation of all peacekeeping and humanitarian
operations.
The Mechanism and its supplementary protocol on Democracy and Good Governance
also take a broader view of security, stressing the importance of human security and
democratic governance in the security sector, including roles for civil society. The
Protocol also covers institutional capacity building in the community in order to
provide humanitarian assistance in conflict or disaster area and provides a framework
for action by the community in the critical area of peace-building.
Whilst the ECOWAS mechanism offers a good approach to designing a framework
for cooperative security, it also remains work in progress. Indeed, the Community
also demonstrates commitment to revising and improving the document based on new
information and there is growing evidence of that commitment on the part of the
Executive Secretariat and the Authority of Heads of State.
Among the current gaps is the lack of any substantive role for the Community
Parliament. This gap was recognized and noted at the December 2001 summit of the
organization and the regional body is now considering approaches to involving the
ECOWAS Parliament in the implementation of the Conflict Mechanism and the
Supplementary Protocol on Good Governance and Democracy through the revision of
the Protocol that established the Parliament. In the protocol establishing the
Parliament, it is essentially a forum, composed of delegations from national
parliaments, 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 ‘huge
dose of democratic deficit’ since parliamentarians are the only direct representatives
of the citizens in the Community. Yet, true as this is, the history of trans-national
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4. legislatures the world over is one of evolution, usually from delegations from national
parliaments to directly elected representation. It is also the case that the powers of
trans-national parliaments gradually evolve from being largely consultative
assemblies to genuine decision-making legislatures, both in scope and in powers.
Circumstances dictate these inevitable transitions and the performance of the
parliament to date gives the impression that its powers will certainly grow in
consonance with the quality of representation in the Parliament.
Second, there are problems of hegemonic regionalism, leaderism, formalism and
donor driven institutionalisation. Many of the institutions created by the Mechanism
for Conflict Prevention, Management, Resolution, Peacekeeping and Security owe
their survival not to the commitment of member states in terms of their financial
contribution, but to the generosity of external supporters with their own subjective
interests. This obviously raises a fundamental question of accountability and strategic
interests especially when those interests conflict with ECOWAS’ positions. Various
attempts are however being made to address this problem, but none to date has proved
to be successful in getting states to meet their assessed contributions to the
Community, leaving the wealthiest and most populous State to underwrite the
expenses of the organisation, with accusations of hegemony in its wake.
The current problems remain at three levels – political, structural and operational
A third, perhaps most critical problem with the ECOWAS framework is that of the
lack of agreement on a common understanding on security and stability. Although the
protocols referred to above were signed with fanfare by most of the Heads of
government and their representatives, nation-building peculiarities make it difficult
for member states to exhibit a shared understanding of a common future.
In spite of the progress described above, a sense of disillusionment is still widespread
in West Africa with the current state of regional security cooperation. Indeed, the
unfortunate occurrence in Cote d’Ivoire seems to be promoting the view in some
circles that despotic peace may be better than democratic freedom. Coupled with the
impression that the gains of the last decade is being eroded in the post 9/11 period, it
is important for the United States and other international actors in Africa to be clear
about the message that is being promoted. It would be sad if the view were to gain
widespread acceptance that despotic peace is better than democratic, even if
problematic freedom. The fact that the ECOWAS has not been quick off the mark in
responding to the Ivorien crisis underscores the need for a framework that goes
beyond the creation of institutions and structures, but one that also possesses the
capacity and the credibility to act on the side of humanitarian intervention and
restoration of order.
This seminar on the Responsibility to Protect report offers us the opportunity to be
clear about the success story in West Africa without underestimating the enormous
challenges that the sub-region faces in constructing a framework for
operationalisation that is realistic and achievable.
Towards a Framework for Regional Security Cooperation: Recommendations
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5. Although what the West African experience demonstrates is that cooperative security
is possible, even among states that lack common values, the future success of
cooperative security depends not only on spreading values that promote human
security, but also on developmental regionalism that intensifies economic ties even in
the quest to foster a sense of a ‘security community’ that serves the interest of all its
members. The closer the ties among states and their citizens in the socio-economic
spheres, the more they will find ways to further their security cooperatively.
Hence, given the context of regionalism described above and the challenges to
cooperative security in Africa, a number of factors are, in my own view, central to the
success or otherwise of the process of entrenching cooperative security in any
regional 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 in
Africa, it is gratifying to note that most of what I have stated here are fully reflected
as the key responsibilities of the new African Union Peace and Security Council
approved at the African Union Summit in Durban, especially in relation to NEPAD
and 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 the
rule of law and implementation of agreed principles, rather than structures. The
overriding importance of responsible politics and responsive leadership in building
regional security cooperation is evident from the above. Until we get both right, the
best that can be hoped for remains hegemonic regionalism, which may keep the
peace, but hardly promotes fundamental values of ownership
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6. The discussion then focussed on the legality of the Liberian and Sierra Leone’s
interventions and this produced various perspectives on the legality and legitimacy of
intervention, especially in Sierra Leone where the ECOWAS intervention took a different
trajectory which polarised member states more than the Liberian experience did. In
examining the two interventions in Liberia and Sierra Leone, it was Dr Bundu’s view that
based on the two laws that currently govern regional action (Chapter VII and ECOWAS
Protocol), no enforcement action can be taken by a regional body. Although Article 52 of
Chapter VIII of the UN Charter allows for regional mechanisms for peace support
operations, this must be seen to have been done within a regional framework in which the
United Nations delegates regional action. Unilateral, precipitate and unauthorised action
by 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 at
preventing humanitarian disaster could not be described as illegal and for this reason laws
guiding intervention should not be cast in stones. According to one proponent of this
view, customary international law, which also regulates the conduct of states, is made by
the practice of states, by convention rather than by laid down guidelines. He explained
that at least in four cases – unilateral interventions had received retroactive endorsement
from the United Nations. In pursuit of this line of argument, the participant explained that
the intervention in Sierra Leone could be justified as a military assistance package, a
humanitarian intervention or in the context of a threat to regional security. It was the view
of some participants that ECOWAS while customary international law may indeed allow
intervention of a type i.e. in cases of self defence, human rights violation cannot vitiate
the illegality of the action taken by a group of states in the name of humanitarian
intervention.
Even if this may not be legal in the context of the current international law, its legitimacy
was unanimously endorsed. One participant expressed the strong view that by
sanctioning unilateral action of states and/or regional institutions, especially where
capacities within the region are not even handed, proponents of unilateral action may be
promoting states intent on using intervention as an opportunity to eliminate legitimate but
uncooperative governments rather than for the purpose of a security umbrella. Nigeria’s
role under a regime such as that of General Sani Abacha raised the spectre of this
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7. scenario graphically and it also pointed out the difficulty some states had in condemning
the internal problems of the country whilst it was exporting democratic principles
elsewhere in the region.
For other participants though, the legal challenge should not focus exclusively on the
ECOMOG or the security mechanism per se. Since regional collective security refers to
values, interests and norms that transcend the military element of security, the challenge
is how to frame the law to ensure that illegal overthrow of legitimately constituted
governments will not be allowed. This will emphasise the preventive element of conflict
management, rather than the current emphasis on conflict resolution after the fact.
Although consensus was not reached on the distinction between international law and
customary 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 support
operations, but the current mechanism under discussion is set to enhance that position,
hence the need for policy oriented institutions to work with governments and the
ECOWAS secretariat in shaping the final outcome of the mechanism.
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