The Implementation of ECOWAS' New Protocol and Security Council Resolution 1270 in Sierra Leone: New Developments in Regional Intervention

In October 1999, the Security Council adopted Resolution 1270 concerning the armed conflict in Sierra Leone shortly before the Economic Community of West African States (ECOWAS) adopted a new protocol in November 1999. The implementation of this Resolution by the United Nations Mission in Sierra Leone (UNAMSIL), first, side by side, and later, in conjunction with the ECOWAS Monitoring Group (ECOMOG) proved to be a telling moment in the history of joint peacekeeping operations between the United Nations and regional organizations. Three key ECOMOG contingents-Nigeria, Ghana, and Guinea-withdrew from Sierra Leone as a result of a deepening crisis between the leaderships of ECOWAS, dominated by Nigerians, and UNAMSIL, substantially composed of Indians. A later effort by the U.N. to fashion a cohesive mission under a unified command only brought more woes. The leadership of UNAMSIL under Major-General Vijay Jetley collapsed, leading to the withdrawal of the 3,000 strong Indian contingent from Sierra Leone. The purpose of this article is to examine Resolution 1270 and the new ECOWAS protocol, analyze the relationship between UNAMSIL and ECOWAS, and then consider the impact of ECO WAS' new protocol on the law ofpeacekeeping. Introduction The years 1990-2000 constituted a moment of truth for the hitherto little known sub regional organization, the Economic Community of West African States (hereinafter ECOWAS).1 From being *(LLB) Lagos, (LLM) Cantab, PhD Candidate and Teaching Assistant in international law, University of Nottingham. This article is a sequel to my commentary on the new ECOWAS protocol, The New Collective Security Mechanism of ECOWAS: Innovations and Problems, 5(2) J. CONFLICT & SECURITY L., 211-229 (2000). Most of the ECOWAS materials referred to in this article are on file with the author. They were obtained directly from ECOWAS headquarters in Abuja, Nigeria in 2000 while the author interned With the legal department. The writer also attended one of the many summits of ECOWAS heads of States and governments during this period, and conducted several interviews with the Directors and the Deputy Directors of the Department of Legal Affairs of ECOWAS. Except when referring to such interviews specifically, this article does not represent the view of the ECOWAS legal department. Lastly, I am indebted to Professor Nigel White and Dr Paolo Galizzi for their comments on an early draft of this article. However, all mistakes are entirely mine. U. MIAMI INT'L & COMP. L. REV. VOL. 10 an economic community at its inception in 1975, ECOWAS literally reinvented its will in August 1990 to become, not only a collective security organization, but also a pacesetter in the development of regional collective security systems ingrained in the Chapter VIII of the United Nations Charter.2 In 1993, ECOWAS became the first regional alliance to undertake a joint 'peacekeeping' operation with the UN in the entire history of collective security. 3 It matched this record in 1997 when it forcefully restored a democratically elected government in Sierra Leone, becoming the first regional organization to reinstate an overthrown government in Africa. It could be said that the alliance closed a decade of momentous events in its evolutionary history in December 1999 when it adopted a new protocol (hereinafter Protocol), which not only codified the controversial rights of humanitarian intervention and the use of force to restore democratic governments, but also empowered it to undertake enforcement action without the authorization of the Security Council. 4 The concurrent application of the Protocol to the Sierra Leone conflict as the U.N. was implementing the mandate contained in its Security Council Resolution 1270 was fraught with telling legal and practical consequences. To wit, certain provisions of the Protocol depart from the decentralized enforcement regime of Chapter VIII of the U.N. Charter, which empowers regional arrangements to undertake enforcement action only with the authorization of the Security Council. Furthermore, the position of certain rules, widely believed to have 1 ECOWAS was formed on May 28, 1975, by the Treaty of the Economic Community of West African States (ECOWAS) and was amended in 1993. The Member States of ECOWAS are: The Republics of Benin, Burkina Faso, Cape Verde, Cote D'Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, the (Islamic Republic of) Mauritania, Niger, Nigeria, Senegal, Sierra Leone, and Togo. 35 I.L.M. 660 (1996). 2 On August 7, 1990, the ECOWAS Standing Mediation Committee on the Liberia conflict established the ECOWAS Monitoring Group (ECOMOG) in Banjul, Republic of Gambia. See United Nations, Security Council, Letter Dated 9 August 1990 From The Permanent Representative Of Nigeria To The United Nations Addressed To The SecretaryGeneral, U.N. Doc. S/21485 (1990) (annex); REGIONAL PEACE-KEEPING AND INTERNATIONAL ENFORCEMENT: THE LIBERIAN CRISIS, 6 CAMBRIDGE INT'L L. SERIES VI. 67 (Marc Weller ed., Cambridge Univ. Press, 1994) [hereinafter M. Weller] 3 Resolution 866 expressly states that this "would be the first peace-keeping mission undertaken by the United Nations in cooperation with a peace-keeping mission already set up by another organization, in this case ECOWAS." U.N. SCOR, 3281st mtg. at 1, U.N. Doc. S/RES.866 (1993). 4 Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security, 5 J. CONFLICT & SECURITY LAW 231 (2000) 5 U.N. CHARTER art. 53, para. 1. 2001-2002 SIERRA LEONE: DEVELOPMENTS IN INTERVENTION 179 evolved into the corpus of the law of peacekeeping over time, would appear to have become greatly undermined.6 For purpose of this article, the intervention by ECOWAS in Sierra Leone is broadly divided into two phases. The first phase is designated as beginning with the overthrow of the democratic government of Tejan Kabbah and concluding with the restoration of that government by ECOMOG forces, and the eventual withdrawal of certain ECOMOG contingents from Sierra Leone. This article shall not be concerned with the legal analysis of this phase except insofar as references to it are necessary. The second phase of the intervention-the main focal point of this effort-commences with the deployment of U.N. peacekeepers under the aegis of UNAMSIL and the re-entry of the Nigerian contingent into Sierra Leone. The need to make this thematic delineation at the outset is informed by the fact that at least one legal commentary on the first phase of the intervention already exists. 7 Moreover, the activities of ECOWAS under the first phase of its intervention in Sierra Leone were conducted under the auspices of its old legal regime, as represented by its Protocol on Non-Aggression' and the Protocol on Mutual Assistance and Defense (PMAD).9 Although the specific decisions of ECOWAS concerning its actions on the Sierra Leone conflict are contained in the numerous Final Communiqu6s issued at the end of its myriad summits on the matter, ECOWAS substantively complied with the provisions of the U.N. Charter and performed obligations imposed on it by the Charter during this phase.' ° It follows that a legal analysis of the first phase of ECOWAS' intervention under its old regime and in accordance with the U.N. Charter was in order." 6 Although there is no direct provision of the U.N. Charter on the law of peacekeeping, it is believed by commentators that certain features of peacekeeping operations such as consent, impartiality, limited force, and so on, have evolved into the customary law ofpeacekeeping. 7 See generally Karsten Nowrot and Emily Schabacker, The Use of Force to Restore Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone, 14 AM. U. INT'l L.