On 23 June 2021, the Extraordinary Summit of the Southern African Development Community (SADC) Heads of State and Government approved the deployment of the SADC Mission to Mozambique (SAMIM). This post briefly examines two aspects. The first is SAMIM’s legal basis under international law on the use of force. The second is whether and to what extent the African Union (AU) and United Nations Security Council (UNSC) should legally be involved.
Mozambique’s consent to the SAMIM deployment therefore avoids the need for the UNSC’s authorisation.Tweet
Legality under international law
At present, SAMIM is operating in Cabo Delgado with the full consent of the Mozambican government. Despite initial resistance to SADC involvement, Mozambique has consented to the SADC deployment, given its full involvement at the 23 June 2021 SADC Summit and subsequently through entering in a Status of Forces Agreement (SOFA) with SADC on 2 July 2021. The deployment therefore seems to have been undertaken in line with the SADC Protocol on Politics, Defence and Security Cooperation (SADC Protocol) in so far as it has been authorised by a SADC Summit.
The consensual nature of the deployment has two predominant consequences. First, the SAMIM deployment does not constitute ‘enforcement action’ under the SADC Protocol (nor under the AU Constitutive Act or UN Charter). Second, in the absence of ‘enforcement action’, SAMIM does not legally require UNSC authorisation.
Ordinarily, under Article 53(1) of the UN Charter, a regional organisation would be prohibited from undertaking enforcement action without the authorisation of the UNSC. The ambit of Article 53(1) of the UN Charter is reflected in Article 11(3)(d) of the SADC Protocol which stipulates that: ‘[t]he 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 [UNSC].’ Mozambique’s consent to the SAMIM deployment therefore avoids the need for the UNSC’s authorisation.
Additionally, the continued reference to ‘collective self-defence’ and the reliance on the SADC Mutual Defence Pact (the Pact), is worth noting. In addition to being mentioned by some regional leaders (see here, here and here), the concept and reference to the Pact also appears in the SOFA. However, as I argued in a recent paper, I am of the opinion that the SADC deployment in Mozambique under the current circumstances cannot be considered as falling within the scope of collective self-defence (see also here and here). Several reasons for this exist, but the most prominent include that Mozambique has not been the victim of an armed attack and that the actions of the insurgents does not constitute an external attack. Instead of ‘collective self-defence’ the correct terminology in this case is rather ‘collective security.’ Despite initial reservations, SADC seems to have convinced Mozambique that the risk of spill-over and other factors, such as investor confidence, meant that the insurgency in Cabo Delgado did not only affect Mozambique’s security but in fact that of the whole sub-region.
Given that SADC’s deployment in Mozambique is neither an enforcement action, nor an act of collective self-defence, legally, SADC did not require approval from, and had no obligation towards, either the AU nor the UNTweet
The absence of the AU and UNSC
Given that SADC’s deployment in Mozambique is neither an enforcement action, nor an act of collective self-defence, legally, SADC did not require approval from, and had no obligation towards, either the AU nor the UN. Both SADC and Mozambique understand this well, and, despite limited engagements, the AU has adhered to the principle of subsidiary – that matters be dealt with first and foremost by its regional economic communities.
With that said, however, a letter by then SADC Executive Secretary Stergomena Tax informing UN Secretary General António Guterres of SADC’s deployment has brought about a number of questions. The letter notes two interesting aspects: first, that the deployment to Mozambique of the SADC Mission was ‘under scenario six’ of the African Standby Force (ASF) policy framework, and that it was consistent with Article 52 of the UN Charter.
With regard to the deployment being undertaken in line with scenario 6 of the ASF framework; this is plausible given that the SADC Standby Force forms part of the ASF. Scenario six provides for enforcement type interventions in cases such as genocide situations where urgent action is required and where one or more of the parties have not consented to the mission. Under the first five scenarios of the ASF policy framework an AU mission is deployed following a cease fire or peace agreement, and the deployment is thus requested by the parties to the conflict. Scenario 6 provides for those cases where resistance can be anticipated and where the use of force may be necessary. What is surprising, however, is that SADC has deployed a part of the ASF without some form of formal endorsement by the AU Peace and Security Council. Even though legally speaking AU authorisation is not required, one would have thought that politically it would be wise to seek AU PSC endorsement to deploy a SADC mission under the ASF banner.
In so far as Article 52 of the UN Charter is concerned, its reference confirms that the SADC deployment in Mozambique falls outside of the scope of Article 53 enforcement action and reaffirms that UNSC authorisation of the deployment is not required. Article 52 states, among other things, that nothing in the UN Charter prohibits regional organisations from dealing with matters of international peace and security, so long as their activities are consistent with the purposes and principles of the UN.
SAMIM was legally authorised by SADC, with Mozambique’s consent. Legally, in this case, AU and UN authorisation was not needed. However, the wisdom of not seeking AU and UN political endorsement remains questionable. Even though SADC has no legal obligation under international law to involve the AU and UN in the present case, the advantages of doing so have been well outlined; especially considering the growing (and coordinated) response from across the continent, and with international support, required to combat acts of terrorism and violent extremism. The deployment of SAMIM was thus legally authorised by SADC, with the consent of the Mozambican State, and this is consistent with international law.
Dr Marko Svicevic, Centre for International Humanitarian and Operational Law, Faculty of Law, Palacký University, Olomouc, Czechia.