5.4 The decision for intervention within the SADC subregional context
5.4.2 The legal dimensions of the coalition’s decision for military intervention
The coalition’s military intervention has been questioned along international legal lines.
Those who hold this view argue that it should have been mandated by a UN Security Council resolution. Tapfumaneyi argues that the fashionable accusation that the SADC coalition’s intervention was in breach of the UN Charter was unfounded considering that, to the contrary, the UN Charter accords countries in distress, like the DRC, the sovereign and legitimate right in international law to call for the assistance of other states. Military intervention is a legitimate option under such circumstances (Tapfumaneyi, 1995:15). This right to self-defence is the first legal premise for the SADC coalition’s military intervention because it was at the express invitation of the DRC government.99
To stress the above point, Africa has, since the 1960s, become accustomed to a UN that normally takes between three to six months to deploy its first troops in any situation, if it does decide to come at all.100 Africa’s record on the issue of resolving African crises has been found wanting especially in the post-cold war period. As pointed out in Chapter Four, the Congo crisis and the assassination of Patrice Lumumba in the 1960s, Somalia, Rwanda and Angola, to name only a few cases where its presence precipitated further disaster, and many other situations that it chose to ignore, are cases in point. Basically, SADC could not afford to await UN reaction before deciding on intervening, especially given that the organization
99 In support of Tapfumaneyi’s argument, a Judge Advocate in the Namibian Defence Forces pointed out that the UN Security Council has never been known to pass a proactive resolution to check a developing crisis. He said that rather, it has now become fashionable for it to grant retrospective approval to local collective security activities, especially where the exigencies of the situation “do not allow the rusty UN machine to be cranked- up” (sic) into gear in time to avert disaster. Thus according to him, Granada, Haiti, Iraq, Bosnia, Yugoslavia, Liberia and Sierra Leone immediately come to mind. In the Judge Advocate’s view, the SADC reaction was reasonable in view of the imminent fall of Kinshasa (Interview with author, Windhoek, 09 June2008). In addition to the above examples, the general sentiment by those who supported the 2011 NATO action in Libya is that the action was taken as part of an international coalition to enforce U.N. Security Council Resolution
1973 and protect Libyan civilians
(http://blogs.suntimes.com/sweet/2011/06/obama_white_house_on_the_defen.html, accessed 16 September 2011).
100 Interview with Brig Gen Sibusiso Moyo, Harare, 17 December 2008.
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had shown marked disinterest in Africa conflicts such as the 1994 Rwanda genocide, the current conflict in Somalia among others.101 In an effort to add legitimacy to their military intervention in the conflict the SADC coalition signed a Mutual Defence Pact on 10 April 1999.102
Questions have been asked as to whether or not the government of the DRC under Laurent Kabila had the right under international law to ask for external assistance when it was faced with foreign aggression and also whether or not the decision taken by the ISDSC was an appropriate decision103. Several factors seem to have been used by the coalition to justify the legality of their decision to intervene. They are as follows:
1. It would appear that the common denominator from which the decision for military intervention by the coalition stems from the fact that they viewed the conflict as simply an act of aggression by Rwanda, Uganda and Burundi backed by imperialist forces especially the United States of America, Britain, France and Belgium.104 From the general view of the intervening coalition, the aggressors were assisted by a recruited, non-spontaneous and ultimately insignificant rebel movement in the DRC.
2. The SADC coalition forces further believed that the overall objective of the aggressors was simply to overthrow Laurent Kabila and install a regime that was not
101 Interview with Brig Gen Sibusiso Moyo, Harare, 17 December 2008.
102 Quoting the NDF Judge Advocate verbatim, “If everything else could not legitimise the coalition’s military intervention in the DRC, this pact retrospectively gave them the ultimate legal basis to do so as it equates that an attack on one of them is an attack on all” (Interview with author, Windhoek, 15 June 2008).
103 In the view of the NDF Judge Advocate, given that the DRC is a member of not only the SADC, but also the international community as a whole, the decision to intervene was appropriate. He argued that the decision is further supported by Article 52 of the UN Charter which states that: “… Nothing in this Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to maintenance of international peace and security as appropriate for regional action…” (Interview with the author, Windhoek, 15 June 2008, also see Baregu, 1999:142).
104 The view was drawn from author’s interview with Dr Mudenge, Harare, 15 November 2008. However, whilst the issue of aggression acted as the common denominator for the overall coalition decision for military intervention, a significant attempt would be made to identify the respective national interests of the three intervening countries.
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recognised by SADC. If successful, these would have set a very bad precedence in the sub region (Punungwe, 1999:139-156).
3. The SADC coalition further argue that their “intervention was based on the SADC Treaty, Article 4, read in conjunction with the objectives of the OPDS” (Ngoma, 2004:4). In fact, Article 4(c) gives the “achievement of solidarity, peace, and security in the region” as an objective, while objective (a) of the “SADC Organ states in part that people and development of the region shall be protected against inter-state conflict and external aggression through defensive action” (Ngoma, 2004:4; SADC Communiqué, 28 June 1996).
4. Other arguments put across as to support the legality of the coalition’s decision for military intervention include: “adherence to the principles of SADC, which espoused state sovereignty, solidarity, peace and security, human rights, democracy and rule of law, and mutual benefit and peaceful settlement of disputes” (Ngoma, 2004:4;).
Further to this argument is the claim that the coalition wanted a timely military intervention through a collaborative arrangement in order to attain genuine peace for the entire region, hence the decision for intervention.
It should also be noted that at the sub-regional level, the SADC coalition’s military intervention was based on the provisions of the OPDSC which was adopted in 1996. The communiqué which established the OPDSC has four key principles, namely, “the sovereign equality of all member states, respect for the sovereignty and territorial integrity of each state and for its inalienable right to independent existence, peaceful settlement of disputes through negotiation, mediation and arbitration, and military interventions of whatever nature after all possible remedies have been exhausted in accordance with the Charter of the UN.”105
105 It is important to realise that the deployment of troops by only three SADC member states meant that the ISDSC resolution was not mandatory but it was up to the discretion of those member states that had the will to do so. Thus the deployment was based on the principle of “coalition-of-the-willing” (Southern African
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It is against the background of these legal dynamics that the following section will try to identify, evaluate and ascertain the interests that motivated the member countries of the coalition of the willing to undertake the decision for intervention.
5.5 Identifying the national interests behind the three countries decisions for