Limited legal options for SADC military action in Cabo Delgado

The five-day terror attack on the coastal town of Palma last month once again stressed the severity of the conflict in Mozambique’s Cabo Delgado province. In its fourth year, the insurgency shows no signs of dissipating and exposes Mozambique’s lack of political will to address the problem. It also reveals the Southern African Development Community’s (SADC) difficulties in crafting a regional response.

The bloc’s communiqué after its April 8 meeting in response to the Palma assault said the ‘heinous attacks cannot be allowed to continue without a proportionate regional response.’ The meeting mandated an immediate ‘SADC Organ technical deployment’ to Mozambique.

While it remains unclear what the technical deployment means or aims to achieve, the communiqué

A comprehensive response is better than military action, not least because of the difficulties in putting boots on the ground. &

write

suggests a SADC military response is being considered. Another meeting is planned for April 28 and 29.

If SADC decides on military action, it will need to be rooted in international and regional law. SADC has numerous legal bases for a military response. These include military assistance on request (intervention by invitation), collective self-defence, and United Nations Security Council-approved military intervention. The first two contemplate cooperation founded on Mozambican consent; the third can be used when Mozambican support isn’t forthcoming.

The insurgency, now in its fourth year, exposes Mozambique’s lack of political will to address the crisis

The most direct option for military help on request would see SADC relying on the Mozambican government’s consent to deploy troops from neighbouring states. Mozambique could also consent to a SADC-proposed military response. A similar legal basis is found in the African Union’s (AU) Constitutive Article. Act 4(j) allows member states to ask the AU to intervene to restore peace and security.

Mozambique’s President, Filipe Nyusi hasn’t agreed to any such response. He’s repeatedly emphasised the country’s sovereign status and indicated that Mozambique alone would decide on the terms and conditions of any international aid it may need.

In September 2020, South Africa’s international relations minister, Naledi Pandor said her country would provide military and intelligence services support, contingent on a Mozambican request. But no invitation has been forthcoming.

A day before the April 8 meeting, Nyusi reaffirmed that Mozambican sovereignty impedes it from requesting military help. The country has so far preferred bilateral and non-state support – including using private military companies – to formal SADC help.

Zimbabwean President, Emmerson Mnangagwa, outgoing chairperson of SADC’s Organ on Politics, Defence and Security Cooperation, said after the SADC meeting: “the SADC force” is to be “resuscitated and capacitated immediately.” But it’s still unclear whether the bloc has proposed military aid.

Intervention without state consent is unlikely. Previous SADC military responses, notably in the Democratic Republic of the Congo (1998) and Lesotho (1998, 2017), were based on the governments’ consent. SADC has never undertaken an intervention without a member state’s consent.

Another legal basis for a SADC military response in Mozambique is reliance on collective self-defence. SADC’s Mutual Defence Pact states ‘an armed attack against a State Party shall be considered a threat to regional peace and security and such an attack shall be met with immediate collective action.’

A military response in Mozambique based on this pact would however, probably be a gross misinterpretation of its provisions and be unlawful under both international and SADC treaty law. Although it has been invoked on several occasions, its use in the current situation isn’t applicable.

The term ‘armed attack’ in the pact pertains to a particular situation – an external attack from a non-SADC state party, rather than a non-state actor such as Ansar Al-Sunna operating in Mozambican territory. The pact also says collective self-defence must be undertaken either at the request of the victim state or with its consent.

If Mozambique continues to withhold consent to a military response, SADC may consider turning to the provisions of its Protocol on Politics, Defence and Security Cooperation. The Cabo Delgado conflict probably resembles one of those listed in the protocol – potentially a threat to the legitimate authority of a state or an insurgency.

UN Security Council approval is needed if SADC decides on military action without Mozambique’s consent

However, this would still not enable a regional military response, as such action may only be undertaken in accordance with Article 53 of the United Nations Charter. This means that UN Security Council approval would be needed even if SADC decides on a military intervention without Mozambique’s consent.

The conflict may soon, if it doesn’t already, ‘threaten peace and security in the Region or in the territory of another State Party,’ as provided in the protocol. Should this be considered the case, SADC would have another basis to use military action under its protocol. This too would need UN Security Council approval, which would be difficult to obtain. The AU should also play a fundamental role in the decisions taken on the crisis. Its Constitutive Act allows it to intervene militarily in a member state under certain circumstances. The AU, like SADC, has an elaborate and defined peace and security architecture, including the Peace and Security Council. Yet it seems content, for now, to follow the principle of subsidiarity, delegating decision making to SADC. A purely military response ultimately risks doing more harm than good. It might quell the conflict in the short term but won’t address the root causes without a clear peacebuilding component that enables sustained peace.

A multi-dimensional approach is preferable to military action. It should include re-establishing the rule of law, good governance and upholding human rights, along with effective border policing and coastal patrols.

Humanitarian efforts are essential to help alleviate poverty and neglect in Cabo Delgado in the short and long term. SADC must lead a comprehensive approach that targets both the insurgency and its destabilising effects, as well as the conflict’s broader causes.

(Institute for Security Studies)

*Dr Marko Svicevic, Post-Doctoral Research Fellow, South African Research Chair in International Law, University of Johannesburg and Timothy Walker, Maritime Project Leader and Senior Researcher, ISS Pretoria