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Explaining the (il) legality of Uganda’s Intervention in the current South Sudan Conflict

By Kasaija Phillip Apuuli

 

Continued from last issue


In the case of South Sudan, Uganda’s intervention seems to have gone beyond rescuing Ugandans caught up in the fighting. The announcement that the UPDF was fighting alongside government forces against the rebel troops supporting Machar, clearly violates the requirement of proportionality, which demands that the action taken must not be ‘excessive’

(No more than is necessary to accomplish the stated objective).The UPDF fighting on behalf of one of the factions in the conflict points to an abuse of this state practice, which Terry Gill warned about.

Request by the Secretary-General of the UN

Ugandan officials, such as Fred Opolot of the Ministry of Foreign Affairs and the government spokesman Ofwono Opondo, have argued that Uganda’s intervention in South Sudan is legal because ‘the UN SG telephoned President Museveni and asked him to intervene by finding a political solution to the problem’. Under the UN Charter, the UN Security Council has the primary responsibility for maintaining international peace and security. The UNSC is also mandated to determine the existence of any threat to the peace, any breach of the peace or an act of aggression, and shall make recommendations or decide what measures shall be taken to maintain or restore international peace and security. Under the Charter regime, the UN

Secretary-General can only bring to the attention of the UNSC any matter that, in his opinion, may threaten international peace and security. So, clearly, in matters of international peace and security, the role of the UN Secretary-General (as far as the UN

Charter in concerned) is limited to alerting the UNSC to potential threats to international peace and security. The UN Secretary-General has no mandate to ‘authorise’ a military intervention by one country into another.

In the case of South Sudan, two things can be observed. Either the UN Secretary-

General’s phone call was misinterpreted by Museveni; in which case, when the UN

Secretary-General asked him to ‘intervene to find a political solution’, Museveni thought he had been authorised to deploy troops; or the Ugandan officials who are touting this as one of the grounds for Uganda’s intervention do not understand the modus operandi of the UN Charter. Be that as it may, the Ugandan troop presence in South Sudan is overt. The UN

Secretary-General and the UNSC have not denounced Uganda’s presence in South Sudan and, as far as the public record is concerned, the UNSC has not debated and adopted a resolution authorising Ugandan troop presence there. Can it thus be concluded that Uganda’s intervention has been sanctioned by the UN system? In my opinion, it cannot.

While the UN Secretary-General’s request to Museveni cannot constitute intervention on legal grounds, equally the UNSC’s silence on the matter cannot translate into authorizing the intervention. Moreover, the UN Secretary-General’s request to Museveni was explicit, ‘to find a political solution’ and not a military one.

Finally on this point, even if it is argued that the deployment of Ugandan troops would help to create conditions to find a political solution for the problem, the announcement by Museveni that the UPDF is fighting against the rebel troops loyal to Machar surely cannot help the cause of finding a political solution. Earlier, a spokesman of Ethiopia’s Prime Minister intimated that Ugandan troops engaging in combat in South Sudan would be ‘absolutely unwarranted’. It seems the official spoke too soon.

Authorisation by IGAD

In an editorial in its 16 January 2014 issue, The Observer stated that ‘many people had hoped that the UPDF’s intervention [in South Sudan] would be under the auspices of the regional group, the IGAD, which would have given such action more legitimacy’. In other words, the paper does not view Uganda’s intervention as sanctioned by the region. However, according to Ugandan government officials, the UPDF’s presence in South Sudan was sanctioned by the states of the IGAD. South Sudan’s ambassador to Uganda, Samuel Lominsuk, has also stated that ‘Uganda’s intervention [in South Sudan is] justified under the IGAD’. The Inter-Governmental Authority on Drought and Desertification (IGADD) was established in 1986 by the countries of Djibouti, Ethiopia, Kenya, Somalia, Sudan and Uganda to coordinate the efforts of member states to combat the problems of drought and desertification in the region. The states of Eritrea and South Sudan were admitted as members in 1993 and 2012 respectively. Subsequently, it became apparent that IGADD could provide a regular forum where leaders of the region could tackle other political and socio-economic issues in the regional context. Realising this, the heads of state and government at an extraordinary

Summit on 18 April 1995, resolved to expand the mandate of IGADD and issued a declaration to revitalise the group and expand areas of cooperation among member states. Then revitalised IGADD was renamed the Inter-Governmental Authority on Development

(IGAD).

The revitalised IGAD inter alia committed itself to ‘promot[ing] peace and stability in the sub-region, and creating mechanisms within the sub-region for the prevention, management and resolution of inter- and intra-state conflicts through dialogue’. Became the vehicle for mediating the Sudan and Somalia conflicts in the 1990s and early

2000s.  As one of the eight AU-recognised regional economic communities (RECs) in Africa,

IGAD is part and parcel of the African Peace and Security Architecture (APSA), whose objectives include conflict prevention, management and resolution.

IGAD’s capacity to engage in peacekeeping/enforcement operations has been recognised by the AU and, in February 2005, IGAD was mandated (by the AU) to mount a peacekeeping/ enforcement operation in Somalia called the IGAD Mission in Somalia (IGASOM).

IGASOM was supposed to oversee the voluntary disarmament of militias, protect the transitional federal institutions (TFIs) – the Transitional Federal Parliament and President –and prepare the ground for an AU force that would replace IGASOM nine months after its deployment. The mission failed to materialise partly because the organisation did not possess an in-house capacity to rapidly deploy peacekeepers to member states. According to Sally

Healy, ‘no resources were available to mount the operation’ and no external financial support for the force was found. So IGAD possesses the mandate to deploy peacekeeping/ enforcement missions, but what it lacks (at least in the case of IGASOM) is the capacity to actually do it. Nearly two weeks after the outbreak of fighting in South Sudan, the heads of state and government of IGAD met at an extra-ordinary summit in Nairobi, Kenya, and

‘commended Uganda’s efforts in securing critical infrastructure and installations in South Sudan and pledge[d] its support to these efforts’. It can be argued that IGAD sanctioned Uganda’s intervention implicitly but only to help secure critical infrastructure and installations. Any support contemplated by IGAD for Uganda would be towards achieving this objective. The wording of the communiqué does not suggest that IGAD intended to support Uganda’s intervention in South Sudan beyond what is stated. It is a requirement of international law that agreements between states should be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty. If IGAD had intended to support Uganda’s efforts beyond those stated in the communiqué (for example, its fighting alongside troops loyal to the government of South Sudan), it should have stated so. This is to avoid the Libyan scenario whereby the provision in UNSC

Resolution 1973 requiring ‘the protection of civilians’ was expanded to include the removal of Muammar Gaddafi from power.

While Museveni confirmed in his letter to the Speaker of the Ugandan Parliament that he had deployed the UPDF to ‘guard Juba airport’, in actuality the Ugandans became embroiled in the conflict on the side of the Kiir government. Thus, it can be concluded that Uganda’s intervention, as far as it goes beyond ‘securing critical infrastructure and installation’ as stated by IGAD, is illegal. The possible question then to ask is whether sub-regional organizations like IGAD can mandate an intervention?

 

 

To be continued tomorrow


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