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Part 3 The Post 9/11-Era (2001–), 58 The Intervention in Côte d’Ivoire—2011

Dire Tladi

From: The Use of Force in International Law: A Case-Based Approach

Edited By: Tom Ruys, Olivier Corten, Alexandra Hofer

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 28 March 2023

Political violence — Humanitarian intervention

(p. 783) 58  The Intervention in Côte d’Ivoire—2011

I.  Facts and Context

In March 2011 the UN Security Council (UNSC) authorized the use of force in two situations, namely the situation in Libya and the situation in Côte d’Ivoire.1 While the intervention in Libya attracted considerable attention,2 the use of force in Côte d’Ivoire did not attract a similar degree of attention. As with the authorization of force in Libya, the authorization in Côte d’Ivoire also raises a number of important legal questions about the use of force pursuant to a UNSC authorization.

1.  Build up to the post-2010 election conflict

The immediate cause of the conflict leading to the authorization of use of force in Côte d’Ivoire was the dispute between Laurent Gbagbo of the Ivorian Popular Front (FPI) and Alassane Ouattara of the Rally of the Republicans (RDR) over the outcome of the elections of 2010. The root causes of the conflict, however, are to be found in the civil war that began in 2002 and lasted until 2007. Although the seeds of the conflict—which has largely been ethnic—can be traced back to post-independence politics under Félix Houphouët Boigny, time and space does not permit a consideration of those early political circumstances.3 It is sufficient for the purposes of this chapter to observe that in 2000 a pivotal election was held. Two important points concerning Gbagbo and Ouattara are worth mentioning in connection with these elections. First, in 2000, Ouattara was prevented from participating in the election for the second time—he had previously been prevented from participating in the 1995 elections—because he was rumoured not to meet the eligibility requirement of having two Ivorian parents.4 Second, Gbagbo, who himself had boycotted the 1995 elections, was deemed to be the winner, yet the incumbent, Guéï insisted he was the winner and had to be driven out of office by mass protests.5 It was as a result of these elections that Laurent Gbagbo assumed the presidency of Côte d’Ivoire.

The civil war (that lasted between 2002 and 2007) began when a faction of the army led a revolt against the Government of Gbagbo and eventually formed the Forces Nouvelles (p. 784) (FN).6 While the government was able to hold on to the south of the country, FN gained control of the northern regions.7 During the civil war, several agreements between the government and the FN—some of which are described further below—were put in place to arrive at lasting peace. The most important of these, the Ouagadougou Agreement of March 2007 and its supplementary accords,8 set out the framework to govern the 2010 elections. The certification of the election results, however, was to be done in accordance with a complex set of laws, including UNSC Resolution 1765, the Constitution of Côte d’Ivoire, and the Ivorian Electoral Act of 2000.

In accordance with the Ouagadougou Agreement, a new transitional government was formed, with Gbagbo serving as President and FN leader Guillaume Soro serving as Prime Minister.9 After some postponement, the elections were finally held on 31 October 2010, contested by several candidates including Ouattara’s RDR and Gbagbo’s FPI. None of the candidates contesting the October 2010 elections were able to obtain a majority. A second round of elections between Gbagbo and Ouattara—the candidates with the highest returns from the first round of elections—was subsequently held on 28 November 2010. It was this round of elections, and the dispute over the results, that led to the outbreak of violence and the decision of the UNSC to authorize the use of force by Resolution 1975.10

2.  Dispute over the results of the second round of the elections

After the second round of elections, the President of the Independent Elections Commission declared that Ouattara had won the elections by a margin of 9 per cent.11 The Constitutional Council, however, declared that Gbagbo had won the elections by a margin of 2 per cent. Adding to the confusion, the UN Special Representative of the Secretary-General in Côte d’Ivoire and the head of the United Nations Operation in Côte d’Ivoire (UNOCI), Choi Young-Jin, certified the results of the Independent Elections Commission, confirming the election of Ouattara.12

The central question in the dispute over the election results revolved around who had the legal mandate to declare the election results.13 For some, the answer lay in UNSC Resolution 1765.14 Resolution 1765 authorized the Special Representative of the Secretary-General to ‘certify that all stages of the electoral process provide all the necessary guarantees for the holding of open, free, fair and transparent presidential and legislative elections in accordance with international standards’.15 Article 94 of the 2000 Constitution of Côte d’Ivoire, however, provided that the Constitutional Council ‘decides’ on, inter alia, ‘disputes (p. 785) concerning the election of the President’ and that the ‘Constitutional Council proclaims the definitive results of the presidential elections’.16 The question, thus, was whether the language of Resolution 1765 was to be read to override the Ivorian Constitution.17 Whatever the objectively correct interpretation, the electoral laws reflected a complex network of rules which facilitated arguments from both sides claiming victory.18

On the basis of the decision of the Independent Electoral Commission and the Special Representative of the United Nations, it was generally accepted that ‘the international community recognized Alassane Dramane Ouattara as the duly elected president’.19 The Economic Community of West African States (ECOWAS) was also firmly behind Ouattara as the rightful victor of the elections.20 It has been reported that the African Union (AU) was initially divided because South Africa was adopting a somewhat ambiguous stance, suggesting that things might be rather more complex than they were portrayed.21 Indeed the position of the African Union reflected some ambiguity, suggesting a compromise between different ‘camps’.22 On the one hand, the relevant AU Press Release recognized Ouattara as the duly elected President of Côte d’Ivoire.23 On the other hand, it continued to promote a diplomatic solution and appointed a High Level Panel for the Resolution of the Crisis in Côte d’Ivoire which made ‘proposals’ to the AU Peace and Security Council on a possible solution to the crisis.24 The AU Peace and Security Council itself ‘directed that negotiations be convened’ between Ouattara and Gbagbo to implement the proposals of the AU High Level Panel.25 Nonetheless, while the AU held on to the hope of a diplomatic solution, Gbagbo refused to hand over power and Ouattara insisted on assuming the Presidency.

With Gbagbo refusing to give up office, and Ouattara—with the backing of the ‘international community’—insisting on assuming power, the two sides re-armed and violence erupted. While it was sometimes reported that violence emanated from one side only,26 it (p. 786) appears that both sides engaged in violence—Gbagbo’s side to hold on to the presidency, Ouattara’s side to seize it.27 The AU, though firm in its conviction that Ouattara had won, referred to ‘military operations conducted under the authority of the internationally-recognised President’.28 In the course of the conflict, government forces held the Golf Hotel where Ouattara was staying under siege.

3.  The use of force against Gbagbo

In response to the increasing violence, the UNSC adopted a series of decisions that eventually led to Resolution 1975—the resolution widely viewed to have authorized the use of force that led to Gbagbo’s capture. In a press statement on 3 March 2011, the members of the Council, while condemning violence ‘by all parties’, specifically condemned violence against ‘United Nations personnel perpetrated’ by government forces.29 The same press statement also reiterated the ‘long standing urge that Laurent Gbagbo lift the siege of Golf Hotel without delay’.30 Importantly, in this press statement, the members of the Council ‘urged UNOCI … while impartially implementing its mandate, to use all necessary means to carry out its mandate, in particular to protect civilians’.31

While Resolution 1975, adopted on 30 March 2011 under Chapter VII, provided for UNOCI ‘to use all necessary means to carry out its mandate to protect civilians under imminent threat of physical violence’, it is important to stress that it did not itself create a new basis for military action, as it only ‘recalled’ the pre-existing authorization to this end.32 A resolution containing the authorization for UNOCI to use ‘all necessary means’ was adopted on 30 June 2010, prior to the eruption of the post-election violence.33 In fact, the only additional element in Resolution 1975 was the secondary purpose for the ‘use of all necessary means’, namely ‘to prevent the use of heavy weapons against civilian populations’. In the context of the arrest of Gbagbo, the more important element in the ‘legislative’ framework for the use of force in Côte d’Ivoire at the time, was the role of French forces in UNOCI given their alleged involvement in his arrest. The authorization of the presence of French troops in Côte d’Ivoire actually pre-dated the establishment of UNOCI. Initially French troops were authorized in 2003, together with cooperating member states from ECOWAS, ‘to take the necessary steps to guarantee the security and freedom of movement of their personnel’.34 In several subsequent resolutions, adopted after the establishment of UNOCI, French forces were ‘requested’ to assist UNOCI in carrying out its mandate.35

(p. 787) Acting under the resolutions above, in particular Resolution 1975 which specifically provided for the ‘use of all necessary means’ to prevent the use of heavy weapons, French forces and UNOCI bombarded Gbagbo forces, leading to his eventual defeat and capture.36

II.  The Positions of the Main Protagonists and the Reaction of Third States and International Organizations

Describing the position of the main actors is particularly difficult in the case of the UNOCI/French use of force in Côte d’Ivoire since many of the main actors avoided expressing themselves in open sessions of the UNSC. Côte d’Ivoire, as a specially affected state, was often represented during Security Council meetings.37 However, the representative of Côte d’Ivoire at the meetings had been appointed by Ouattara, since the UN had accepted the credentials signed by him.38 Needless to say, Ivorian statements under these circumstances were pro-Ouattara and supported the adoption of interventionist resolutions by the Council.39 A cursory survey of the records of the open meetings40 of the Security Council reveals important trends. China and Russia, two permanent members of the UNSC whose role on the Council is often to seek to limit Council action in the name of sovereignty, were particularly subdued. In fact, when Resolution 1975 was adopted, Russia did not speak at all.41 Although Russia did not speak during formal meetings of the Security Council, it did adopt a more critical stance vis-à-vis the intervention in closed consultations of the Council.42 China, while expressing concerns about the violence, (p. 788) stressed that the conflict must be resolved through peaceful means.43 China also stressed that UNOCI ‘should strictly abide by the principle of neutrality’, meaning that UNOCI should not take sides.44 India, Brazil, and South Africa, three emerging powers with non-permanent seats on the Security Council, while vocal about the need to end the violence, presented a decidedly neutral stance on the use of force, at least in the public debates.45 It should be said, however, that Nigeria, another emerging power and leading nation within ECOWAS, was vocal in its support of action against Gbagbo.46

The result of the muted approach of Brazil, Russia, India, China, and South Africa was that, at least to the outside world, the Security Council appeared united with regard to the need to use force to oust Gbagbo.47 France, the Security Council penholder48 on Côte d’Ivoire, was particularly keen to promote robust action and, to this end, proposed five resolutions and four press statements.49 The United States was equally vocal in the same direction.50 At the end of 2011, during the United Nations General Debate, US President Obama made the following statement, expressing support for the Security Council’s action in Côte d’Ivoire:

One year ago, the people of Côte d’Ivoire approached a landmark election. When the incumbent lost and refused to respect the results, the world refused to look the other way. United Nations peacekeepers were harassed, but they did not leave their posts. The Security Council, led by the United States, Nigeria and France, came together to support the will of the people. Côte d’Ivoire is now governed by the man who was elected to lead.51

Nigeria and Gabon, two West African states sitting on the Council at the time, were firmly in support of the use of force and the result.52 The position of these two states reflected the position of ECOWAS—an organization to which they both belonged. As stated above, ECOWAS was fully behind Ouattara as the legitimate victor of the second round of elections.53 Indeed, three months before the UNSC was considering the use of force, ECOWAS was already considering the possibility of using force against Gbagbo.54 In a press release of 24 December 2010, the Heads of State and Government of ECOWAS reiterated the demand for Gbagbo to step down and issued the following stern warning:

(p. 789)

In the event that Mr Gbagbo fails to heed immutable demand of ECOWAS, the Community would be left with no alternative but to take other measures, including the legitimate use of force, to achieve the goals of the Ivorian people.55

The AU itself appeared to adopt a less ‘hawkish’ approach to the use of force as a means of resolving the conflict. In its Press Release of April 2011, it reiterated its position that Ouattara had won the election and that Gbagbo must relinquish power.56 Referring to Resolution 1975, the AU stressed ‘the imperative of protecting the civilian population’ while encouraging UNOCI, ‘within the framework of the relevant resolutions of the UN Security Council, in particular resolution 1975 (2011), to vigorously implement its mandate to protect civilians’.57 The call for vigorous implementation of the mandate might suggest support of the military action, but this is caveated by the ensuing disclaimer ‘within the framework of’ Security Council resolutions. It will be recalled that UNSC resolutions called for UNOCI and French troops to implement the mandate impartially.58

While the official records might suggest that the Security Council, and the ‘international community’ as a whole, were in agreement with the use of force in Côte d’Ivoire, there were some voices that quietly called for an alternative approach to resolving the conflict. The caveats and qualifications attached to the Brazilian statement explaining its vote in favour of Resolution 1975 can be aptly described as a thinly veiled criticism of the resolution.59 In its statement Brazil continued to express support for a political process instead of the use of force as the appropriate way of addressing the conflict.60 This posture is consistent with Brazil’s position that ‘use of force must always be a last resort’.61 Furthermore, while condemning ‘all violence against civilians, regardless of origin’, the Brazilian representative cautioned UNOCI ‘to exercise caution and impartiality so as not to become party to the conflict’.62 The South African statement explaining its support for the resolution, while less critical of the Council’s approach, similarly emphasized a political process as a way out of the crisis and called on UNOCI to fulfil its mandate impartially.63 The Indian criticism of the adoption of Resolution 1975 was perhaps the most direct. In its statement, India placed ‘on record that’ UN peacekeepers ‘cannot be made instruments of regime change’ and that the UNOCI ‘should not become party to the Ivorian political stalemate’ or ‘get involved in a civil war, but [should rather] carry out its mandate with impartiality’.64 The representative of India also lamented the speed with which the resolution was adopted.65

Thus, while the vast majority of states, on and off the Security Council, and organizations supported the authorization of and implementation of military operation in Côte d’Ivoire, there was a minority that questioned the operation.

III.  Questions of Legality

It is difficult to assess the legality of the operations in Côte d’Ivoire mainly because the responses, both diplomatic/political and academic, have been few and far between. More (p. 790) importantly, a determination of the legality of the operations would depend on an assessment of the surrounding facts and circumstances which remain disputed. This chapter does not, therefore, offer any conclusiveness concerning the legality or not of the operations. The operations in Côte d’Ivoire took place when the world was gripped by the Libyan situation, which seemed to have attracted the most attention. Nonetheless, the comments allegedly made by the Russian Foreign Minister, Sergei Lavrov, after the capture of Laurent Gbagbo reveal some of the legal issues that may be raised concerning the operation:

The UN peacekeepers and supporting French forces in Côte d’Ivoire have started military action, taking the side of Ouattara, carrying out air strikes on the positions held by supporters of Gbagbo. We are now looking into the legality of this situation, because the peacekeepers were authorized to remain neutral, nothing more. We’ve requested an emergency briefing in the UN Security Council. We will keep looking into the matter.66

Investigations into the legality of the operations called for by Russia during closed consultations never took place, but the concerns about the possible lack of neutrality mirror the cautionary statements of Brazil, South Africa, and especially India before the adoption of Resolution 1975.67 Questions as to the operation’s legality were also raised by Thabo Mbeki, former mediator for Côte d’Ivoire, in an article published shortly after the capture of Gbagbo.68 In the article Mbeki accused the UN of abandoning ‘its neutrality as a peacemaker, [and] deciding to be a partisan belligerent in the Ivorian conflict’.69 The article also accused France of using ‘its privileged place in the Security Council to … ensure that Ouattara emerged victorious’.70

At the heart of these criticisms lies a basic legal proposition. As a point of departure, the use of force is not permitted in international law unless it falls within one of the exceptions, namely self-defence and Security Council authorization.71 Given that the use of force operations by UNOCI and French forces in Côte d’Ivoire could not be classified as self-defence within the meaning of Article 51 of the UN Charter, the operations would be legal only if they were authorized by the relevant UNSC resolutions. If the operations exceeded the mandate in the relevant Security Council resolutions, they would not be covered by the UNSC’s authorization and would therefore be unauthorized. The UNSC resolutions themselves lay out several parameters implicated by the concerns expressed. The first of these is that the necessary means authorized, that is, the use of force, must be for the ‘protection of civilians’.72 Thus, the force could not, under the text of the resolution, be legitimately applied for the ouster of Gbagbo. Second, the resolutions explicitly required UNOCI and French troops to act impartially.73 Consequently, any use of force by (p. 791) UNOCI and/or the French troops to assist Ouattara to gain power would fall beyond the scope of the authorization and thus be illegal.

While the legal framework under which the operations were conducted excluded, at least as an objective, the use of force for the ouster of Gbagbo, two arguments could be made to support the notion that UNOCI and French troops were justified to use force to ouster Gbagbo and that this was duly authorized by the Security Council. The first is that the only way to protect civilians was to remove Gbagbo since he was targeting civilians. The second argument could be that while Resolution 1975 required impartiality, since targeted sanctions were imposed only on Gbagbo’s side, this must imply that the Council had taken sides so that the implementation of the use of force could also be applied partially.74 Apart from the fact that proponents of the resolution—France, Nigeria, and the United States—themselves did not rely on this argument, it would appear to be flawed since the scope of one measure (the targeted sanctions) cannot simply be superimposed on the other measure (the actual use of force).

Mohamed, who seems to suggest that there was impartiality, states that military operations were ‘ultimately a success [because] … after months of diplomatic efforts to convince Gbagbo to abandon his fight for power, it seems that it was instead the air strikes that finally compelled his surrender’.75 In the same note, Mohamed describes the UNOCI and French forces’ action as follows:

in the days after the Council issued the Resolution, the 9000-strong UNOCI and French forces stepped up rocket attacks on Gbagbo’s military camps, as well as his residence and presidential palace.76

If, as I have suggested above, it is not possible to interpret the resolution as permitting partiality by reference to the sanctions measures, then the only possible way that Mohamed’s description of the role of UNOCI and French troops could be legal is if it was believed that the ouster of Gbagbo was necessary for the protection of civilians.77 It is interesting, however, that neither France nor the UNOCI was willing to make that argument. Indeed, France was eager to distance itself from any involvement in the arrest of Gbagbo.78 In the morning of 11 April 2011, after the capture of Gbagbo, two narratives emerged designed to address the issue of legality of the operation. In one narrative, Gbagbo had been captured by French Special Forces and handed over to forces loyal to Ouattara.79 This narrative had a special resonance since it was reportedly confirmed by Ouattara sources;80 it also appears to be supported by the statement by the Russian Foreign Minister quoted above.81 (p. 792) This narrative also found some support in the literature. Bellamy and Williams, for example, make the following observations:

The use of force by UN peacekeepers and French troops blurred the lines between human protection and regime change and raised questions … about the proper interpretation of Resolution 1975, and about the place of neutrality and impartiality in UN peacekeeping.82

Similarly, Ipinyomi asserts that ‘Ouattara’s supporters stormed the presidential residence and arrested Gbagbo’ with ‘the aid of the UN and France’.83 Rim’s account suggests UNOCI and French forces did more than assist Ouattara’s forces. He states that ‘UNOCI and French forces undertook military action in coordination with’ Ouattara’s forces and, as a consequence, ‘Gbagbo was captured and placed in the custody of Ouattara’s force’.84

The French and the UN, however, presented a different narrative, limiting the role of French forces and UNOCI to protecting civilians without taking sides. The day after the arrest of Gbagbo, the French Foreign Minister, Alain Juppé, reportedly said the ‘UN and France wanted the Security Council resolutions implemented: nothing more, nothing less’.85 According to the interview transcripts, he went on to say that it ‘was President Ouattara’s army, the Republican Forces of Côte d’Ivoire, that subsequently intervened, entered the bunker and seized Mr Gbagbo’. Choi, the Special Representative of the Secretary-General to the United Nations, was similarly at pains to present Ouattara’s army as the sole actor in the removal of Gbagbo:

Now, with the taking into custody of Mr. Gbagbo, on 11 April, by pro-Ouattara forces, we have witnessed the end of a chapter in the history of Côte d’Ivoire. Unlike some crises that have required massive international military intervention, the Ivorian crisis has been dealt with largely by Ivorians themselves … one may say that Côte d’Ivoire represents a success story of a people managing their own affairs with international support. Yet, the major credit for bringing the post-electoral crisis to an end must go to the Ivorian people.86

With respect to the role of UNOCI and French forces, the Special Representative had this to say:

let me pay tribute to the French Licorne Force for its most helpful cooperation, including its crucial protection of the headquarters of the United Nations Operation in Côte d’Ivoire (UNOCI) at various moments during the crisis, as well as for its timely restoration of the functioning of the water distribution system in Abidjan, which relieved the besieged UNOCI headquarters from 10 days of water deprivation.87

This might suggest, contrary to the description painted by Mohamed and some media reports, that the UNOCI and French forces acted only to protect the UN and civilians. In the absence of the investigation requested by the Russian Foreign Minister, it is difficult to seriously challenge this narrative of a passive implementation of Resolution 1975 for the protection of civilians and in an impartial manner. The only conclusion that can be drawn concerning the legality of the use of force in Côte d’Ivoire depends on disputed information. To the extent that UNOCI and French troops actively attacked Gbagbo to arrest him (p. 793) (and install Ouattara as the President), using force for purposes beyond the protection of civilians, such use of force would fall beyond the scope of Resolution 1975 and would therefore be illegal under international law.

It may, at this point, be appropriate to consider alternative grounds for the legality of the operations. It has been suggested that the use of force by UNOCI and the French forces in Côte d’Ivoire can be justified as an application of the responsibility to protect and pro-democratic intervention.88 While highlighting ‘some of the unresolved challenges’ of the responsibility to protect doctrine,89 Bellamy and Williams assert that the ‘[i]nternational society’s engagement with the crisis of in Côte d’Ivoire included human protection as a core goal, permitted the use of force to that end’.90 Similarly, Vashakmadze states that the ‘case of Côte d’Ivoire shows that R2P concept may strengthen the link between peace operations and the protection of civilians’.91 While Council resolution refers to the protection of civilians as a purpose for the intervention,92 this is not a legal basis for military operations in Côte d’Ivoire. Responsibility to protect may well have given political impetus for the Security Council to authorize the use of force, but it is not itself the legal basis for such force. It should be pointed out in this regard that the World Summit Outcome Document93 arguably gives the responsibility to protect doctrine its legitimacy and makes clear that the application of the third pillar of the responsibility—the pillar associated with the use of force to protect civilian populations—is to be engaged ‘through the Security Council, in accordance with the Charter … on a case-by-case basis’.94 As a matter of law, therefore, the use of force pursuant to the responsibility to protect can only be exercised in the context of one of the recognized exceptions to the use of force, namely Security Council authorization. As Vashakmadze observes, the ‘responsibility to protect doctrine does not modify the’ rules of the Charter under Chapter VII.95

It has been argued that the ‘Outcome Document does not exclude [the] reasoning’ that force may be used unilaterally, without Security Council authorization.96 While this is true, it is equally true that the Outcome Document does not provide for it, nor is there any other generally accepted rule of international law that provides for unilateral use of force outside of the two recognized exceptions of Security Council authorizations and self-defence.97 Arguing that the Outcome Document does not exclude the possibility of unilateral use of force as an application of responsibility to protect does not, therefore, take the matter any further. Other grounds that have been advanced, such as pro-democratic intervention, are equally unrecognized in positive international law and can therefore not be used as justification for the use of force in Côte d’Ivoire by UNOCI and French forces.98 This conclusion is buttressed by the fact that both the UN and France have only advanced the Security Council authorization for the use of force.

(p. 794) IV.  Conclusion: Precedential Value

The year 2011 was marked by two major use of force operations authorized by the UN. The operation in Côte d’Ivoire which led to the ouster of Laurent Gbagbo and the installation of Alassane Ouattara received significantly less attention than the operation that led to the death of Muammar Gaddafi. Yet, like the NATO intervention in Libya, the operations in Côte d’Ivoire also raised important questions about the limits of the use force when authorized by the Security Council. While some states did question certain aspects of the use of force in Côte d’Ivoire, this was, by and large, done behind closed doors. The unwillingness or inability of states that had reservations about the use of force in Côte d’Ivoire to vociferously, or at least openly, question the events in Côte d’Ivoire prevent full analysis of the legality of the use of force, since the facts remain obscure and hidden.

What precedential value, if any, does the use of force in Côte d’Ivoire have? As a matter of international law, the 2011 military operations in Côte d’Ivoire will likely have little precedential value. After all, the use of force in Côte d’Ivoire after a UNSC authorization only serves to confirm that the Council may, under Chapter VII of the Charter, authorize military action. This is particularly the case since the agents of force, UNOCI and the French Government, were not willing to advance an alternative legal basis for the force independent of the Security Council authorization. From the perspective of practice, the operations may have a more profound precedential effect. UNSC permanent members traditionally opposed to intervention, Russia and China, may adopt one of two postures. They may seek more restrictive and more clearly defined mandates for future use of force authorizations. Alternatively, and more likely, they may be even more opposed to any authorization for the use of force in conflict situations. To date, this last scenario has been reflected in the approach of Russia and China to the proposals for the use of force in Syria.99


1  For the authorization of force in Libya see UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973. For the authorization of force in Côte d’Ivoire see UNSC Res 1975 (30 March 2011) UN Doc S/RES/1975.

2  The authorization of the use of force in the situation in Libya is considered by Ashley Deeks’ in Chapter 56 of this volume.

3  See for a general description Alex J Bellamy and Paul D Williams, ‘The New Politics of Protection? Côte d’Ivoire, Libya and the Responsibility to Protect’ (2011) 87 International Affairs 825, 829–30. Indeed, some trace the conflict to the pre-colonial history of Côte d’Ivoire. See in this regard, Foluke Ipinyomi, ‘Is Côte d’Ivoire a Test Case for R2P? Democratization as Fulfilment of the International Community’s Responsibility to Prevent’ (2012) 56 Journal of Africa Law 151, 152 et seq.

4  This eligibility requirement was known as Ivorité (or Ivorian in truth). See Ipinyomi (n 3) 157.

5  See Jean Maddox Toungara, ‘Francophone Africa in Flux: Ethnicity and Political Crisis in Côte d’Ivoire’ (2001) 12 Journal of Democracy 63, 63. See also Daniel Chirot, ‘The Debacle in Côte d’Ivoire’ (2006) 17 Journal of Democracy 63, 71.

6  For a fuller description of the formation of the Forces Nouvelles, see Abu Bakarr Bah, ‘Democracy and Civil War: Citizenship and Peacemaking in Côte d’Ivoire’ (2010) 109 African Affairs 595, 604.

7  United Nations General Assembly (UNGA) ‘Africa’ (2003) Yearbook of the United Nations 102.

8  Republic of Côte d’Ivoire, Direct Dialogue: Ouagadougou Political Agreement, signed by Laurent Gbagbo (on behalf of the Government), Guillaume Soro (on behalf of the Forces Nouvelles) and Blaise Compaoré (Chair of Ecowas, in his capacity as facilitator), (Annexed to ‘Letter dated 2007/03/13 from the Secretary-General addressed to the President of the Security Council’ (13 March 2007) UN Doc S/2007/144). By its own terms, the Ouagadougou Agreement confirmed the parties’ commitment to earlier agreements, notably the Linas-Marcoussis, Accra, and Pretoria agreements.

9  UNGA ‘Africa’ (2007) Yearbook of the United Nations 104, 105.

10  UNSC Res 1975 (n 1). For a general description of the events see UNGA ‘Africa’ (2010) Yearbook of the United Nations 107, 107.

11  See United Nations Operations in Côte d’Ivoire ‘Post-Election Crisis’, <http://www.un.org/en/peacekeeping/missions/unoci/elections.shtml> accessed 10 November 2016.

12  UNGA ‘Africa’ (n 10) 107.

13  For detailed discussion see Dire Tladi, ‘The Security Council, the Use of Force and Regime Change: Libya and Côte d’Ivoire” (2012) 37 South African Yearbook of International Law 22, 32.

14  UNSC Res 1765 (16 July 2007) UN Doc S/RES/1765.

15  Ibid [6].

16  The text of the Constitution of Côte d’Ivoire, adopted by Referendum of 23 July 2000, can be found at <http://abidjan.usembassy.gov/ivoirian_constitution2.html> accessed 29 January 2016. It appears, however, that Article 94 has since been deleted because the text on the Geneva Academy website does not contain an Article 94. It proceeds from Article 88 to Article 96. See <http://www.geneva-academy.ch/RULAC/pdf_state/Consitution.pdf> accessed 29 January 2016.

17  Ipinyomi (n 3) 172 makes the following stark observations: the ‘international community … has chosen a winner for an election without institutionally counting the votes’.

18  Yejoon Rim, ‘Two Governments and One Legitimacy: International Responses to the Post-Election Crisis in Côte d’Ivoire’ (2012) 25 Leiden Journal of International Law 683, 683 where it is stated: ‘Inconsistency between the election results proclaimed by domestic constitutional organ and those certified by the internationally entrusted authority resulted in there being two separate governments within the state, and confrontation between the two authorities engulfed Côte d’Ivoire in post-election violence.’

19  See UNGA ‘Africa’ (2011) Yearbook of the United Nations 87. It is noteworthy that the UN Yearbook, neither in the 2010 or 2011 volume, even records that the Constitutional Council, an organ empowered by the Ivorian Constitution to play some role, had arrived at a different conclusion. The only reference to the Constitutional Council is when it reverses its decision, after the defeat of Gbagbo. See ibid, 88: ‘On 6 May, Mr. Ouattara took the oath of office one day after the Constitutional Council ratified the election results, reversing its December 2010 decision proclaiming Mr. Gbagbo the winner.’

20  See, eg, ECOWAS Final Communiqué of Heads of State of 7 December 2010.

21  See Nikolas Cook, Côte d’Ivoire Post Gbagbo: Crisis Recovery (Congressional Research Service, May 2011) 37.

22  See, eg, AU Press Release: The AU Reiterates Its Urgent Call to Mr Laurent Gbagbo to Immediately Hand Over Power to the President of the Republic, Mr Alassane Dramane Ouattara of 1 April 2011.

23  Ibid.

24  Ibid. In an earlier Press Statement, the Security Council had welcomed ‘the intention of the African Union and ECOWAS to dispatch another joint high-level mission’. See Security Council Press Statement of Côte d’Ivoire SC/10149-AFR/2093 (10 January 2011).

25  Ibid.

26  See, eg, UNGA ‘Africa’ (n 19) 88: ‘While the international community recognized Alassane Dramane Ouattara as the duly elected president, former President Laurent Gbagbo mobilized youth and armed forces against perceived opponents’. See also Katarina Simonen, ‘Qui s’excuse s’accuse … An Analysis of French Justifications for Intervening in Côte d’Ivoire’ (2012) 19 International Peacekeeping 363, 364 (‘Thereafter, Gbagbo conducted a campaign of terror against president-elect Ouattara’s supporters in order to stifle protests …’).

27  See, Peace Direct ‘Ivory Coast: Conflict Profile’ available at <http://www.insightonconflict.org/conflicts/ivory-coast/conflict-profile/> 29 January 2016 (‘Violent clashes erupted, as supporters of both sides, unhappy with the result, rearmed and remobilised’).

28  See AU Press Release (n 22).

29  Security Council Press Statement of Côte d’Ivoire SC/10191-AFR/2231 (3 March 2011).

30  Ibid.

31  Ibid.

32  UNSC Res 1975 (n 1) [6] (emphasis added).

33  UNSC Res 1933 (30 June 2010) UN Doc S/Res/1933 [17] (‘Authorizes UNOCI to use all necessary means to carry out its mandate, within its capabilities and its areas of deployment’).

34  UNSC Res 1464 (4 February 2003) UN Doc S/Res/1464 [9].

35  See, eg, UNSC Res 1528 (27 February 2004) UN Doc S/Res/1528 [16]; see also UNSC Res 1765 (1 July 2007) UN Doc S/Res/ 1765 [1] and Res 1933 (n 33) [24].

36  See UNGA ‘Africa’ (n 19).

37  Rule 37 of the Provisional Rules of Procedure of the Security Council available at <http://www.un.org/en/sc/about/rules/chapter6.shtml> accessed 11 November 2016, provides for states that are not members of the UNSC to be invited to participate in Council meetings, without the vote, ‘when Council considers that the interests of that Member are specially affected’.

38  See UNGA Res 65/237 (23 December 2010) UN Doc A/RES/65/237 read with UNGA, Credentials of representatives to the sixty-fifth session of the General Assembly Report of the Credentials Committee (22 December 2010) UN Doc A/65/583/Rev.1, which, with respect to Côte d’Ivoire, stated as follows: the Credentials Committee ‘took note of the decision of the African Union to recognise the election results proclaimed by the Independent Electoral Commission [and] … accepted the updated version of the credentials’. It should be noted, however, that African states had agreed to request the postponement of the adoption of the Ivorian credentials. However, Nigeria, which was supposed to speak on behalf of the African group did not request the floor in time. After the adoption of the resolution, and with it the adoption of the Ouattara-signed credentials, the representative of the Nigerian delegation, Mr Onemola, made the following intervention: ‘I had indicated my desire for the floor to request the President postpone the adoption of the draft resolution proposed by the Credentials Committee. But it would appear my raised hand was not seen.’ The present author was present in the room and can attest the Nigerian delegate did not make a request for the floor. In response to this apparent faux pas, the Ambassador of Namibia, Mr Emvula, took the floor on behalf of the Southern African Development Community, and requested that the decision be postponed for further reflection, a request that was denied by the President. For the exchange described above, see UNGA Verbatim Record (24 December 2010) UN Doc A/65/PV.73, 2.

39  See, eg, statement by Mr Bamba (Côte d’Ivoire), UNSC Verbatim Records (30 March 2011) UN Doc S/PV.6508, 7.

40  The Council held more closed consultations than open meetings on the Ivorian conflict. These meetings, many of which were attended by the present author, are not recorded and their contents are consequently not reflected here.

41  UN Doc S/PV/6508 (n 39).

42  While the author is not at liberty to divulge the content of Russia’s view as he attended these closed sessions as a delegate of South Africa, media outlets did report on Russia’s stance. See, eg, ‘Russia Lashes out at UN Military Action in Côte d’Ivoire’ RT News (5 April 2011) <https://www.rt.com/news/cote-ivoire-gbagbo-un/> accessed 2 February 2016, where the Russian Foreign Minister is reported to have said ‘The UN peacekeepers and supporting French forces in Côte d’Ivoire have started military action, taking the side of Ouattara, carrying out air strikes on the positions held by supporters of Gbagbo. We are now looking into the legality of this situation, because the peacekeepers were authorized to remain neutral, nothing more. We’ve requested an emergency briefing in the UN Security Council. We will keep looking into the matter’.

43  UN Doc S/PV.6508 (n 39) 7 (China).

44  ibid (China).

45  ibid 3 (India), 4 (South Africa), and 4 (Brazil).

46  Resolution 1975 was introduced by Nigeria, ibid 2 (Nigeria).

47  Saira Mahomed, ‘Introductory Note to UN Security Council Resolution 1975 on Côte d’Ivoire’ (2011) 50 International Legal Materials 503, 503 (‘The Council’s unanimous adoption of the Resolution with fifteen votes in favour indicates the widespread opposition to Gbagbo’s continued bid for power’).

48  The term refers to the Council member that takes the lead on a given subject and which ordinarily produces the first drafts of resolutions pertaining to a specific situation.

49  During the post-election conflict, the Council adopted the following resolutions: UNSC Res 1962 (20 December 2010) UN Doc S/RES/1962; UNSC Res 1967 (19 January 2011) UN Doc S/RES/1967; UNSC Res 1968 (16 February 2011) UN Doc S/RES/1968; UNSC Res 1975 (n 1). In that same period the Council adopted the following press statements: UN Security Council Press Statement on Côte d’Ivoire SC/10135-AFR/2084 (20 December 2010); UN Security Council Press Statement on Côte d’Ivoire SC/10149-AFR/2093 (10 January 2011); UN Security Council Press Statement on Côte d’Ivoire SC/10191-AFR/2131 (3 March 2011); UN Security Council Press Statement on Côte d’Ivoire SC/10196-AFR/2138 (11 March 2011).

50  UN Doc S/PV/6508 (n 39) 5 (United States) (‘This resolution sends a strong signal that Mr Gbagbo and his followers should immediately reject violence and respect the will of the people’).

51  UNGA Verbatim Record (21 September 2011) UN Doc A/66/PV.11, 11 (United States).

52  See UN Doc S/PV/6508 (n 39) 2 (Nigeria). See ibid 4–5 (Gabon) (‘Gabon is convinced that that all the measures adopted by consensus by the Security Council today will help to better the protect civilians and establish conditions conducive to improving the humanitarian situation’).

53  See ECOWAS Communiqué (n 20).

54  ECOWAS Press Release on the Extraordinary Session of the Authority of Heads of State and Government on Côte d’Ivoire, No 192/2010, 24 December 2010.

55  ibid [10]

56  See AU Press Release (n 22).

57  ibid.

58  See, eg, UNSC Res 1975 (n 1) [6].

59  UN Doc S/PV.6508 (n 39) 4 (Brazil).

60  ibid.

61  See, eg, statement by HE Dilma Rousseff, President of the Federative Republic of Brazil at the Opening of the General Debate of the 66th Session of the United Nations General Assembly, 21 September 2011, New York, <http://gadebate.un.org/sites/default/files/gastatements/66/BR_en_0.pdf> 1 February 2016.

62  UN Doc S/PV/6508 (n 39) 4 (Brazil).

63  ibid 4 (South Africa).

64  ibid 3 (India).

65  ibid. (‘We also want to place on record our growing concern at the tendency to hurry the process of adopting resolutions. We think that there should be enough time for deliberations and consultations with all countries concerned’).

66  Russia lashes out at UN military action in Côte d’Ivoire’ (n 42).

67  See discussion above, especially text accompanying nn 59–65.

68  Thabo Mbeki, ‘What the World Got Wrong in Côte d’Ivoire: Why is the United Nations Entrenching Former Colonial Powers on Our Continent? Africans Can and Should Take the Lead in Resolving their Own Disputes’ Foreign Policy (29 April 2011).

69  ibid.

70  ibid.

71  See, eg, Albrecht Randelzhofer and Oliver Dörr, ‘Article 2(4)’ in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, and Andreas Paulus (eds), The Charter of the United Nations: A Commentary vol 1 (OUP 2012) 218–29; See especially Albrecht Randelzhofer and Georg Nolte, ‘Article 51’ in ibid 1399 (‘the UN Charter contains only two exceptions to the prohibition on the use of force, namely [Security Council] enforcement actions pursuant to Chapter VII, and the right to individual and collective self-defence laid down in Article 51’). See also Bruno Simma, ‘Nato, the UN and the Use of Force: Legal Aspects’ (1999) 10 European Journal of International Law 1, 3.

72  Resolution 1975 (n 1) [6].

73  Ibid.

74  ibid [12] and Annex I.

75  Saira Mohamed, ‘Introductory Note to UN Security Council Resolution 1975 on Côte d’Ivoire’ (2011) 50 International Legal Materials 503, 504.

76  Ibid.

77  See Tladi (n 13) 42 et seq.

78  See Simonen (n 26) 369 who recites several statements by French officials distancing themselves from the operations to arrest Gbagbo. See especially 371 (‘The French seemed to be well aware of above-mentioned problems in relation to the illegality of external interventions for regime change. This is evidenced by the fact that governmental representatives were at considerable pains to deny, firmly, and consistently, that Licorne had played any role whatsoever in the actual arrest itself’).

79  Jim Hoft, ‘French Forces Capture Gbagbo—Hand Him Over to Rebels in Ivory Coast’ The Gateway Pundit (11 April 2011) <http://www.thegatewaypundit.com/2011/04/french-forces-capture-gbagbo-hand-him-over-to-rebels-in-ivory-coast/> accessed 2 February 2016.

80  Peter Allen, ‘Ivory Coast: Laurent Gbagbo Captured by French Special Forces, Rival Claims’ The Telegraph (11 April 2011) <http://www.telegraph.co.uk/news/worldnews/africaandindianocean/cotedivoire/8443240/Ivory-Coast-Laurent-Gbagbo-captured-by-French-special-forces-rival-claims.html> accessed 2 February 2016.

81  See text accompanying n 66.

82  Bellamy and Williams (n 3) 835.

83  See Ipinyomi (n 4) 152.

84  Rim (n 18) 689.

85  Côte d’Ivoire/Libya—Interview given by Alain Juppé, Ministre d’Etat, Minister of Foreign and European Affairs, to ‘France Info’ (excerpts) available at <http://www.ambafrance-uk.org/Alain-Juppe-interviewed-on-France,18844> accessed 2 February 2016.

86  UNSC Verbatim Record (13 April 2011) UN Doc S/PV.6513, 2 (Choi, UN Special Representative of the Secretary-General).

87  ibid.

88  See, eg, for discussions of the responsibility to protect in the context of the Côte d’Ivoire operations by UNOCI and French forces, Simonen (n 26) and Bellamy and Williams (n 3).

89  Bellamy and Williams (n 3) 837.

90  ibid 836.

91  Mindia Vashakmadze, ‘Responsibility to Protect’ in Simma et al (n 71) 1219.

92  The protection of civilians, while distinct from the responsibility to protect, is related. While the former applies in situations of conflict, in particular in peacekeeping settings, the latter applies outside of conflict. See Tladi (n 13) 30 and Welsh (n 2) 257.

93  UNGA 2005 World Summit Outcome (16 September 2005) UN Doc A/RES/1/60/1.

94  ibid [139] (emphasis added).

95  Vashakmadze (n 91) 1236.

96  See, eg, Carsten Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm’ (2007) 101 American Journal of International Law 99, 109.

97  See authorities cited in n 71.

98  See, eg, Simonen (n 26) 372 (‘as far as respect for democracy is concerned, the French silence during the ex-president’s arrest is understandable since pro-democratic interventions are illegal under international law’).

99  Although Russia has not referred to Côte d’Ivoire, opting instead to refer to Libya, the concerns for actions going beyond the mandate of the authorization are similar. See, eg, UNSC Verbatim Record (4 October 2011) UN Doc S/PV.6627, 4 (Russia), where a draft resolution (on situation of human rights in the Syrian Arab Republic) S/2011/612 was vetoed by Russia and China.