UNSC Resolution 2304 (2016): Intervention or Protection Force for South Sudan?

By Reagan Gatluak Gatwech, Kampala, Uganda

August 15, 2016 (SSB) — Following the fighting that broke out outside the presidential palace in Juba on the eve of independence celebrations, IGAD called for an intervention brigade. Such a brigade was first proposed in 2014 during the mediation but weakened as the UN and IGAD could not agree on its relationship to the UN peacekeeping mission in South Sudan (UNMISS), or on the mechanisms of financial and logistical control.

When a State interferes in the political affairs of another State by invitation, or on request, it cannot be considered as an unlawful act. Interference of a State can never be unlawful if it is for the sake of humanity. It is necessary that the two States agree on the matter of intervention through a treaty. A request for assistance is not an unlawful act.

Similarly, the 27^th African Union assembly in Kigali, Rwanda also resolved that Uganda, Sudan, Rwanda, Ethiopia and Kenya shouldcontribute a regional force to South Sudan whichfollowing the renewed fighting in Juba. However, there is need to clarify on what intervention really means, circumstances that warrant it, legal grounds for intervention in civil wars and also draw a distinction between military intervention and a protection force.

Intervention

Intervention, in terms of international law, is the term for the use of force by one country or sovereign state in the internal or external affairs of another. In most cases, intervention is considered to be an unlawful act but some interventions may be considered lawful.

Chapter VII of the United Nations Charter sets out the UN Security Council’s powers to maintain peace. It allows the Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to take military and nonmilitary action to “restore international peace and security”.

Chapter VII also gives the Military Staff Committee responsibility for strategic coordination of forces placed at the disposal of the UN Security Council. It is made up of the chiefs of staff of the five permanent members of the Council.

The UN Charter’s prohibition of member states of the UN attacking other UN member states is central to the purpose for which the UN was founded in the wake of the destruction of World War II: to prevent war. This overriding concern is also reflected in the Nuremberg Trials’ concept of a crime against peace “starting or waging a war against the territorial integrity, political independence or sovereignty of a state, or in violation of international treaties or agreements…” (Crime against peace), which was held to be the crime that makes all war crimes possible.

Article 41

“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations”

Article 42

“Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations”

Chapter VII resolutions are very rarely isolated measures. Often the first response to a crisis is a resolution demanding the crisis be ended. This is only later followed by an actual Chapter VII resolution detailing the measures required to secure compliance with the first resolution. Sometimes dozens of resolutions are passed in subsequent years to modify and extend the mandate of the first Chapter VII resolution as the situation evolves.

The list of Chapter VII interventions includes:

• i). United Nations Security Council Resolution 1267 (Afghanistan)
• ii). United Nations Mission in the Democratic Republic of Congo
• International Criminal Tribunal for Rwanda
• iv). United Nations Mission in Sierra Leone
• v). United Nations Assistance Mission for Rwanda
• vi). United Nations Operation in Somalia II
• United Nations Security Council Resolution 1973 (Libya)

Kinds of interventions

International interventions in states take many forms that is, military, humanitarian, economic and political to name but a few. These interventions are problematic in both principle and practice. No matter how well intentioned they are, states are both unable to avoid the taint of imperialism and interventions are almost always a failure.

• i). Military intervention

This is the deliberate act of a nation or a group of nations to introduce its military forces into the course of an existing controversy. For example, on 19 March 2011, a multi-state NATO-led coalition began a military intervention in Libya, ostensibly to implement United Nations Security Council Resolution 1973.

• ii). Humanitarian intervention

Humanitarian intervention is the violation of a nation-state’s sovereignty for the purpose of protecting human life from government repression or famine or civil breakdown. It is currently being practiced in Somalia and parts of Iraq, and has been discussed, with varying degrees of seriousness, with regard to Bosnia, Angola, Mozambique, Liberia, Zaire, Sudan and Haiti.

• Economic intervention

Is an economic policy perspective favoring government intervention in the market process to correct the market failures and promote the general welfare of the people.

An economic intervention is an action taken by a government or international institution in a market economy in an effort to impact the economy beyond the basic regulation of fraud and enforcement of contracts and provision of public goods.

• iv). Diplomatic Intervention

Diplomatic Interventions argues that war is a social construction. In so doing, it unsettles the definition of intervention, as a coercive interference by one state in the affairs of another, to examine the range of communicative or ‘diplomatic’ practices which through their presence modify the experience of war.

Advantages and shortcomings of intervention in ethnic conflict

Below is a dissection of the failures and achievements of intervention especially in ethnic conflict with examples from East Timor and Kosovo among others.

On the case of military intervention in East Timor in 1999, when the vote for independence from Indonesia was followed by mass violence by the Indonesian army and militia groups against civilians, the Australian-led International Force for East Timor (INTERFET) successfully suppressed the violence, protecting the civilian population and enabling the rebuilding of the territory as an independent nation. In other cases, however, military intervention can have significant negative repercussions, and it is important to weigh up these disadvantages against the ability of military force to end conflicts.

NATO’s intervention in Kosovo in 1999 exemplifies many of these disadvantages, including the risks of causing civilian casualties, exacerbating ethnic tensions and increasing violence. NATO’s bombing of Serbia was initiated to protect the Kosovar Albanians from ethnic cleansing led by Serbian leader Milosevic, yet it provoked an increase in ethnic cleansing, caused hundreds of civilian deaths, and it failed to lay the foundations for long term stability. This suggests that the negative repercussions of intervention overshadowed any gains.

Despite the risks, in some cases military intervention is required to halt mass violence and has been successful in doing so. After the vote for independence in East Timor, anti-independence militias and sections of the Indonesian army began a rampage of violence, deporting an estimated 141,000 people to West Timor, and leaving 520,000-620,000 displaced within East Timor. Although estimates of numbers killed vary from hundreds to thousands, those displaced were increasingly at risk of death from starvation and disease, cut off from food and water supplies.

Only rapid military action could have halted the violence, and this came in the form of the 7000 strong, Australian-led INTERFET. The force swiftly brought an end to the violence, and in doing so, many observers estimate thousands of lives were saved. In this case, therefore, military intervention was successful in preventing further deaths of civilians.

Many have argued that, similarly, military intervention in Kosovo was the only way to stop the oppression of Albanian Kosovars by Milosevic’s regime. The bombing did eventually force Milosevic to withdraw the Serbian army from Kosovo, putting a stop to the systematic oppression of the Kosovar Albanians. Milosevic was also forced to allow the entry of a UN interim administration with a framework for a move to self-government. These gains came at great costs, however, and in the short term there is a general consensus that, rather than saving lives, NATO’s bombing of Kosovo intensified the violence, provoking a dramatic increase in ethnic cleansing.

Unable to target NATO planes, the Serbs sought revenge on the Kosovar Albanians, a task that was facilitated by the removal of monitors from the region prior to the bombing. In the year before the intervention, around 1000 Kosovar Albanians were killed and 400,000 driven from their homes. During the bombings, however, the number killed dramatically increased to 10,000, whilst 863,000 were forced to leave Kosovo, with 590,000 internally displaced.

These figures seem to confirm that NATO bombings intensified ethnic cleansing rather than preventing it, suggesting intervention did not save lives in the short term. The refugee crisis this triggered also exacerbated economic and ethnic tension in neighboring Macedonia and Albania.

It is possible, however, that in the absence of intervention this ethnic cleansing would still have taken place. For example, some claim that although the bombing sped up the process, Milosevic had always intended to cleanse the Albanians, and the violence was ‘an indication of what was always in store for the Kosovars.’ It is impossible to know whether such violence would have taken place in the absence of intervention, but given that US-NATO Commanding General Clark viewed the escalation of ethnic cleansing following the bombing as ‘entirely predictable’, further attempts should have been made to negotiate with Milosevic to avoid military force.

For example, it was pointed out that the final agreement accepted by Milosevic after the bombing was more lenient towards Serbia than the Rambouillet Accords offered in February 1999, suggesting there was room for further negotiation. The intensification of the violence that military intervention brought in Kosovo and the great loss of life this caused outweigh the fact that it did eventually force the withdrawal of Serbian forces.

Military intervention also carries a great risk of casualties to either civilians or troops. In the case of Kosovo, NATO was reluctant to risk the lives of NATO troops and so favored a bombing campaign rather than a ground invasion. The decision to fly above 15,000 feet to protect NATO troops further endangered civilians by making it more difficult to hit targets. Furthermore, bombing was more effective against civilian infrastructure, such as the Yugoslav power grid, than the Serbian infantry, and thus was increasingly targeted. These targets, as well as endangering the lives of civilians, also had the disadvantage of damaging Serbian infrastructure.

Although eventually the bombing pressured Milosevic to capitulate, it was ineffective against paramilitary action and failed to bring a swift end to the ethnic cleansing. Given its failure to prevent ethnic cleansing, the casualties and destruction the NATO bombing caused outweighed any gains it brought. In contrast, the willingness to risk the lives of troops in East Timor through a ground invasion meant the intervention posed less danger to civilians and had greater success in halting violence. As foreign troops spread their control across the territory, the militia fled and stability was restored without any civilian casualties.

The East Timor was ‘an easy case’ as Indonesia had consented to the intervention under international pressure and ordered the withdrawal of its military, leaving only a relatively weak militia force to overcome. Nevertheless, military intervention in East Timor is an example of how military force can rapidly halt violence without endangering the lives of civilians.

Military intervention can also have the disadvantage of hindering the efforts of humanitarian aid workers and NGOs. Military intervention further politicizes their work in the eyes of local people by associating it with foreign troops, and NGOs can become targets, which endangers their lives. In order to prevent this risk and protect individuals from NATO bombing, peacekeeping monitors in Kosovo were withdrawn on 20 March 1999, facilitating increased violence. If military intervention had been avoided, peacekeeping monitors could have remained, restraining violence whilst further negotiations took place.

On the other hand, military intervention can also be used to protect and assist the work of NGOs. For example, in East Timor, foreign troops were able to secure control over airports to facilitate the supply of aid and provided convoy escorts to repel ambushes and increase the areas aid could reach. By enabling the supply of food and medicine, the mortality rate remained relatively low.

While military intervention can temporarily halt violence, it rarely provides a long-term solution to its causes. Although NATO bombing in Kosovo eventually forced the Serbian Army to withdraw its troops and allow a UN interim administration to enable the movement towards self-government, at the end of the conflict an independent commission concluded that many of the basic problems that precipitated the conflict still plague the region. Ethnic violence continued to be a serious problem, with revenge attacks by Kosovar Albanians killing 700 Serbians from June 1999 to December 2000.

In fact, NATO bombings deepened rifts between the Serbian and Albanian populations, making future peaceful coexistence less likely.Kosovo’s transition to independence was completed in 2008, but the ethnic tensions that caused the crisis still remain a major cause of violence. Although military intervention can temporarily halt violence, generally its inability to tackle its causes means it does not prevent loss of life in the long term. Intervention in Kosovo additionally had the negative effect of exacerbating existing ethnic tensions, further overshadowing the short term gains it brought.

Often interveners are too focused on securing a short-term end to the conflict rather than providing long-term reconstruction to prevent future violence. Belloni (2007: 467) argues that costly military interventions leave a smaller budget for long-term development aid. This is supported by the fact that although Western governments spent $4 billion on the bombing campaign in Kosovo, only $1 billion was pledged for reconstruction whilst an estimated $30 billion was required (Herring, 2001: 236). Taking into account the negative effects of intervention in Kosovo and its lack of provision for long-term stability, the advantages of intervention are outweighed.

In East Timor, however, military intervention was successful in paving the way for a more peaceful future in the long term by removing the threat of military resistance to the transition to independence. In contrast to Kosovo, there was little desire for vindictive revenge in East Timor, enabling the maintenance of peace. Intervention brought the stability required to facilitate the construction of infrastructure and the political and judicial institutions required in East Timor for the eventual transition to independence in 2002. While intervention in East Timor was able to lay the foundations for future stability in Kosovo, it could not end the ethnic tensions which continue to cause violence and loss of life in the country.

Intervention in East Timor illustrates how armed force can be successful in saving lives by halting violence, assisting the supply of aid and laying foundations for future stability. However, this was a relatively simple intervention that had acquired the consent of the Indonesian government and therefore faced only a relatively weak militia force. In more problematic cases it is important to be acutely aware of the possible negative repercussions of intervention. The NATO bombing of Kosovo resulted in civilian casualties, exacerbated ethnic tensions and crucially, rather than saving lives, it actually provoked an increase in ethnic cleansing.

Intervention in Kosovo failed to provide a long-term solution to ethnic tensions and in the short term did more harm than good. Therefore, alternatives to the bombing should have been sought. If further negotiations had failed and Milosevic had pressed forward with his campaign of ethnic cleansing, NATO should have been willing to risk the lives of foreign troops through a ground invasion, as in East Timor. This would have reduced the risk of civilian casualties and been more successful in halting ethnic cleansing. In this case the positive results of intervention may have outweighed the disadvantages.

Protection force

A protection force arises from The Responsibility to protect which is a global political commitment which was endorsed by all member states of the United Nations at the 2005 World Summit to prevent genocide, war crimes, ethnic cleansing and crimes against humanity. The principle of the Responsibility to Protect is based on the underlying premise that sovereignty entails a responsibility to protect all populations from mass atrocity crimes and human rights violations. The principle is based on a respect for the norms and principles of international law, especially the underlying principles of law relating to sovereignty, peace and security, human rights, and armed conflict.

The Responsibility to Protect provides a framework for employing measures that already exist (i.e., mediation, early warning mechanisms, economic sanctions, and chapter VII powers) to prevent atrocity crimes and to protect civilians from their occurrence. The authority to employ the use of force under the framework of the Responsibility to Protect rests solely with United Nations Security Council and is considered a measure of last resort. The United Nations Secretary-General has published annual reports on the Responsibility to Protect since 2009 that expand on the measures available to governments, intergovernmental organizations, and civil society, as well as the private sector, to prevent atrocity crimes.

The Responsibility to Protect has been the subject of considerable debate, particularly regarding the implementation of the principle by various actors in the context of country-specific situations, such as Libya, Syria, Sudan and Kenya, among other cases and for example. Likewise, South Sudan said its sovereignty would be ‘‘seriously undermined’‘ if protection forces should be under UNMISS and if a U.S proposal to United Nations Security Council to deploy 4,000 additional troops to the country is agreed.

Ethics of International Intervention under the UN

There are few issues which provoke such passionate dispute as the case for and against humanitarian intervention in failed or failing states. Western powers have intervened in Iraq and Afghanistan but not in Rwanda or Darfur, in Kosovo and Sierra Leone but not in Zimbabwe or Burma, in Libya but not in Syria. Not only, despite several attempts to achieve one, have the members of the United Nations failed to build a lasting consensus on the circumstances in which it is right to intervene to protect human life, but even when the case for intervention appears unanswerable, they have been unable to agree on who should intervene and how.

The arguments about whether intervention is a form of imperialism or opportunism or whether, even with the best intentions, it creates worse problems than it is likely to solve cross ideological divides. But as our TV screens bring us daily pictures of conflict, oppression and suffering, do we not have a responsibility to agree at last an ethical as well as practical framework for intervention?

Can intervention in sovereign states in pursuit of humanitarian objectives ever be considered legitimate and, if so, in what circumstances? How can the motives of those proposing intervention be assessed, monitored and policed? How should the principle of humanitarian intervention be balanced by pragmatic assessments of cost and how should the degree of desirability be measured against the prospects for success? How bad do conditions have to be and what other processes have to be exhausted before intervention takes priority over sovereignty? What levels of cost and what degree of risk of failure are acceptable? How can (recent) history help establish criteria for intervention?

Resolutions of IGADD Head of State Extra Ordinary Meeting on South Sudan Crisis

The Assembly of Heads of State and Government of the IGAD Plus held its Second Extra-Ordinary Summit meeting on 5^thAugust 2016 in Addis Ababa,Ethiopia and deliberated on the prevailing situation in the Republic of SouthSudan.

The following were resolved;

1. Takes note of the report and recommendations made by the Chairperson of JMEC, the Head of UNMISS and the Deputy Chairperson of the AfricanUnion Commission;

2. Recalls the previous decisions of the UN, the African Union and IGAD on thesituation in the Republic of South Sudan since the outbreak of the crisis inthe Republic of South Sudan in particular the Communiqué of the First Extra-Ordinary Summit of the IGAD Plus, as well as the decision on the Situation inthe Republic of South Sudan by the 27th African Union Assembly of theHeads of State and Government, both held in Kigali, Rwanda;

3. Expresses deep concern over the internal displacement of SouthSudanese people facing grave humanitarian situation and the massiveexodus of refugees to neighboring countries, which constitute a humanitariancrisis of enormous proportions,

4. Underlines once again that the situation in South Sudan is a serious threatto regional peace, security and stability, and recognizes that the neighboringcountries have been shouldering the heavy burden of the conflict since itsoutbreak in December 2013, including continued and intensive flow ofrefugees, as well as proliferation of illicit small arms and weapons;

5. Reiterates that the international community, particularly the UN SecurityCouncil, has the duty and moral responsibility to act decisively and swiftly insupport of the IGAD and AU efforts with a view to bringing to an end thesuffering inflicted upon the people of South Sudan and facilitating the earlyand sustainable solution to the conflict;

6. Reiterates its condemnation in strongest terms the fighting that broke outin Juba on 8th July 2016 between the guards of the former First VicePresident and the presidential guards in the Presidential Palace (J1)resulting in huge loss of lives, displacement of the civilian population anddestruction of property, also condemns the reported widespread sexualviolence, including rape of women and young girls by armed men in uniform.In this respect, reiterates its call for an urgent in-depth independentinvestigation by the African Union on the fighting that took place in Juba andto identify those responsible with a view of ensuring that they are heldaccountable for their criminal acts;

7. Requests the African Union Commission, in consultation with the UnitedNations, and building on existing regional and continental capabilities, to lookinto the best mechanisms for timely and effective action to address largescale mass atrocities in line with the relevant provisions of the Constitutive Act of the African Union, the Protocol Establishing the Peace and SecurityCouncil of the African Union, and Chapter VIII of the UN Charter;

8. Condemns also the targeting of the diplomatic personnel, UN compoundand Protection of Civilian Sites (POCs) that resulted in the deaths ofpeacekeepers, as well as attack on aid workers and looting of the UNhumanitarian stores by armed groups. In this regard, demands that thelooted equipment be returned immediately and unconditionally;

9. Further condemns the continuing obstruction of Ceasefire and TransitionalSecurity Arrangements Monitoring Mechanism – Monitoring and VerificationTeams (CTSAMM-MVTs) and UNMISS from implementing their tasks andmandates, and calls upon the Transitional Government of National Unity (TGoNU) to issue the necessary orders to guarantee CTSAMM and UNMISSfreedom of movement and to respect the Status of Forces Agreementbetween the Republic of South Sudan and UNMISS;
10. Endorses the outcome of the meeting of the East African Chiefs of DefenseStaff held on 29th July 2016, in Addis Ababa, on the deployment of aRegional Protection Force as the basis for further and urgent discussion withthe United Nations towards reaching a common ground on speedydeployment of the Force under UNMISS;

11. Calls upon the UN Security Council to urgently extend the mission ofUNMISS with a revised mandate including the deployment of the RegionalProtection Force with distinct responsibilities under the direct command of acommander who will report to the overall UNMISS Force Commander, to bebased in Juba;

12. Directs the East African Chiefs of Defense Staff to invite their counterparts in the TGoNU to discuss the modalities of the implementation of their recommendations including the immediate return to the implementation of Chapter Two of the Agreement on the Resolution of the Conflict in theRepublic of South Sudan (ARCSS) with the objective of unification andintegration of the forces;

13. Notes the position of the Government of the Republic of South Sudan that:a) Accepts in principle the deployment of the Regional Protection Force forthe protection of the IDPs, humanitarian agencies and JMEC,b) The composition, mandate, armament, deployment, timing and fundingshall be agreed upon by the Transitional Government of National Unity(TGoNU) and Troop Contributing Countries (TCCs), and
14. c) Leadership changes in SPLM/A-IO is solely an internal matter and the region should work with the current setup of the TGoNU;

14. Calls upon the TGoNU to work expeditiously on the deployment of theRegional Protection Force, and in this regard, stresses that the Governmentbears a heavy responsibility to facilitate the deployment of the Force to avoidfurther deterioration of the situation and create a conducive environment foreffective functioning of the TGoNU and the implementation of the ARCSS;

15. Encourages H.E. Dr Riek Machar to rejoin the peace process and for H.E. President Salva Kiir Mayardit and the people of South Sudan to embrace and return to the spirit of long lasting peace in their country. In this regard, welcomes the gesture of H.E. General Taban Deng Ghai to step down witha view of returning to the status quo ante in line with the ARCSS for the sakeof peace and stability in the Republic of South Sudan;

16. Calls upon the parties to desist from any action and negative rhetoric thatundermines the ARCSS and to honor their commitment that they haveentered into when signing the Agreement and urges them to fully implementthe Agreement as it is the only framework for durable peace, reconciliationand national cohesion;

17. Commends and expresses strong support to H.E. Festus G. Mogae, the JMEC Chairperson for his relentless efforts to bring about peace andnational reconciliation in the Republic of South Sudan and condemns anythreat to the independent functioning of JMEC, as well as CTSAMMObservers as provided for by the ARCSS;

Analysis of IGAD Resolutions

IGAD agreed that a regional force should enter South Sudan to secure the capital and protect civilians and humanitarian actors if need arises. This decision comes after fighting erupted in Juba on 8 July leaving South Sudan’s peace deal on the brink of collapse.The IGAD meeting sets the direction for the regional force, but many issues still need to be decided. Specifically, the East African countries have not yet negotiated with the South Sudanese government the “composition, mandate, armaments, deployment, timing and funding” of the force.

In the meantime, the United Nations Security Council is expected to vote on 12 August to change the mandate of the UN Mission in South Sudan (UNMISS) to accommodate the regional force, and to consider changes to the mission’s mandate. They may also vote on whether to place an arms embargo on South Sudan. Many of the details about the regional protection force are unclear after the IGAD meeting, and need to be decided before the Security Council votes.

IGAD says that the South Sudanese government has accepted a “Regional Protection Force” to enter the country. This represents a concession by the South Sudanese government, which had hitherto rejected the proposal to deploy regional troops and particularly objected to naming the deployment an “intervention force”.

The IGAD communiqué now says that the government agreed that the Regional Protection Force would be for “the protection of the IDPs, humanitarian agencies and JMEC,” but it does not mandate it to protect Riek Machar if he remains.

The IGAD communiqué called on the Security Council to extend the UNMISS mission with a revised mandate. Some countries have called for the peacekeepers and the Regional Protection Force to have a stronger mandate, giving them a greater ability to protect civilians.

But others point out that peacekeepers in South Sudan are already mandated to use force to protect civilians. The only missions that appear to have a greater mandate to use force is the African Union Mission in Somalia, and the UN force in the Democratic Republic of the Congo. Both are offensive missions to neutralize Al-Shabaab and M-23.

This means that the mandate itself is not really the main issue for the peacekeeping mission, but rather the effectiveness and willingness of troops to carry out the mandate.

Because the government has to agree to the number of regional troops entering the country, there is a possibility the Regional Protection force will be small and not well equipped.It is also unclear which countries will be contributing. Ethiopia and Rwanda are already two of the largest troop contributors in South Sudan. Kenya and Uganda already have committed troops to the African Union Mission in Somalia.This points to the likelihood that a Regional Protection Force could draw on many of the same troop contributing nations as already have troops in UNMISS.

SPLM-IO Chairman Riek Machar has said that he will not return to Juba unless a Regional Peacekeeping Force makes the city safe. If a protection force does deploy to the capital, at what point will he consider the city safe? And will he want or be able to bring soldiers with him? The prospects for his return to Juba any time soon remain quite uncertain even after the decision to deploy an IGAD force.

The author, Reagan Gatluak, is a South Sudanese student at MAKERERE UNIVERSITY, and can be reached via his email: Reagangatluak@yahoo.com

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