In this post I analyse the legal basis for the current use of force by the UN and France in Côte d’Ivoire, examining how that use of force impacts the status and exceptions of the prohibition of the use of force in Article 2(4) of the Charter and in customary law. In particular, I want to discuss the scope of the authorizations by the UN Security Council to use force, comparing the situation in Côte d’Ivoire with the on-going situation in Libya. The similarity between the two cases is more obvious than has been observed, as in both cases the UN has authorized the use of force in order to protect civilians, and in both cases those authorised by the Security Council to use force have directed that force against one side in an ongoing civil war, including targeting buildings belonging to the leader of that side who claims to be head of State (Col. Gaddafi & Laurent Gbagbo, see here and here). In both cases, questions have arisen as to the scope of the mandate and to whether recent uses of force overstep that mandate (see here with regard to Côte d’Ivoire).
I. The History of the Conflict in Côte d’Ivoire
Côte d’Ivoire has been in a state of turmoil since an attempted coup led to the country being split into southern areas, controlled by the government, and northern areas, controlled by rebels, in 2002. At the time, France used force in Côte d’Ivoire, allegedly to protect its nationals in the country, but was accused by both the government and the insurgents as taking sides (BBC). An eventual cease-fire in 2003 proved to be fragile, with the rebels refusing to disarm, and the French intervening in response to government attacks on French troops stationed in Côte d’Ivoire in 2004. ECOWAS, AU, and UN efforts facilitated an agreement between the factions, and elections were scheduled to take place in 2005 (see SCRs 1464  and 1479 ). These kept being postponed due to the precarious security, but were finally held in November 2010.
Ouattara, Gbagbo’s rival, won the very close election, the results of which were certified by the UN (see SCR 1765  para 6), and accepted by the EU, the AU, ECOWAS, and most States that cared to form an opinion (with the notable exception of Angola and Lebanon). However, Gbagbo refused to accept defeat (see for further background Jean d’Aspremont’s excellent post). In the aftermath of the election, both leaders were inaugurated in separate ceremonies, and claimed to be the President of Côte d’Ivoire. Since there seemed to be no forthcoming solution in the impasse, the AU gave Gbagbo an ultimatum, inviting him to hand over power to Ouattara by 24 March, while the EU, the US, and ECOWAS imposed sanctions on Côte d’Ivoire, a move welcomed by the UN Security Council (see SCR 1962  preamble). When the ultimatum expired with Gbagbo still refusing to leave, pro-Ouattara forces marched from their strongholds in the north towards Abidjan to seize power by force. They are now in Abidjan, having taken over most of the rest of the country, and are laying siege to the Presidential compound, where Gbagbo has taken refuge.
II. The Legal Framework
The UN Operation in Côte d’Ivoire (UNOCI) was established under Chapter VII of the UN Charter by SCR 1528 (2004) as of 4 April 2004. It took over from the UN political mission (MINUCI) and the ECOWAS forces (ECOMICI) that were in the area since conflict broke out.
The Security Council has authorized UNOCI to use ‘all necessary means’ to carry out its mandate (ibid para 8; SCR 1739  para 5) which includes (ibid para 2[f], amended by SCR 1933  para 16[b]; see also para 17 for authorization) ‘protection of civilians under threat of imminent physical violence, within its capabilities and its areas of deployment’ (which include Abidjan).
The SC has also authorized French forces stationed in Côte d’Ivoire (the ‘Unicorn force’) to use ‘all necessary means’ in order to support UNOCI, in accordance with the agreement between UNOCI and French authorities, and in particular, inter alia, to intervene at the request of UNOCI in support of UNOCI elements whose security is threatened; to intervene, in consultation with UNOCI, against belligerent actions, if security condition so require, outside UNOCI’s areas of deployment; and to help protect civilians in the deployment areas of their units (SCR 1528  para 16, as amended by SCR 1739  para 8, subsequently consistently renewed, lastly by SCR 1962  para 17 until 30 June 2011).
During 2010 and 2011, as the situation in Côte d’Ivoire progressively—if slowly—deteriorated, the Security Council constantly reinforced UNOCI, eg in SCRs 1962 (2010), 1967 (2011), 1968 (2011), including through re-deployments of infantry divisions and helicopters (utility and armed) from UNMIL.
In the last weeks there has been rapid deterioration of the situation in Côte d’Ivoire, with heavy fighting between rival Gbagbo and Ouattara forces. On 30 March 2011, the Security Council adopted SCR 1975, in which it urged Gbagbo to hand over to Ouattara in accordance with the election result (paras 1-4) and in which it recalled its Chapter VII authorization to UNOCI to use all necessary means to carry out its mandate to protect civilians under imminent threat of physical violence, within its capabilities and its areas of deployment, including to prevent the use of heavy weapons against the civilian population, while it requested the UN Secretary-General to keep the Council informed of the measures taken in this regard (para 6).
III. The First Week of April 2011
On the first days of April there were reports of heavy fighting in Abidjan, with attacks directed also against UN personnel and civilians; Ouattara forces reportedly fired on a UN helicopter and Gbagbo forces used heavy artillery against civilians, resulting in significant civilian casualties (UN News Service). Gbagbo forces also targeted the UNOCI HQ as well as UNOCI patrols dispatched to protect civilians and convoys transporting wounded in Abidjan, resulting in many peacekeepers being wounded.
The UN Secretary-General, acting under para 6 of SCR 1975 (2011), instructed the UN mission to take the necessary measures ‘to prevent use of heavy weapons against the civilian population, with the support of French forces pursuant to para 17 of SCR 1962 (2010)’ (UN Doc SG/SM/13494 of 4 April 2011). On 4 April, UNOCI undertook the military operation to prevent such use of heavy weapons threatening the civilian population in Abidjan, and so informed the Security Council. The S-G argues that UNOCI did not take part in the conflict, but only acted in accordance with its mandate, taking action in self-defence to protect civilians (see ibid). The UN and French forces fired at the compound where Gbagbo is hiding, allegedly because this is a ‘powder keg’, where weapons are held and from where most Gbagbo attacks are launched (Le Monde). There is little chance that there was no coordination with Ouattara forces in the April 4 attack. This could arguably be based on paras 1-4 of SCR 1975, which plainly call for Gbagbo to hand over to Ouattara and leave.
On 5 April 2011, Gbagbo forces’ chiefs informed UNOCI that they had instructed their soldiers to stop fighting and hand over their weapons to UNOCI. UNOCI personnel were instructed to receive such weapons and to offer protection to disarming troops (UN News Service). By the end of the day, reports claimed that pro-Gbagbo forces were ‘a few thousand troops’ or ‘less than a thousand’, with approximately 200 loyalists defending the presidential compound.
On 6 April 2011, during the day, Ouattara forces launched an all-out assault against the Presidential compound, trying to end the stalemate for good. Gbagbo sought to negotiate his departure with the UN, but negotiations collapsed, and Gbagbo is still in his compound and is refusing to leave. During the night of 6 April, the French ‘Unicorn force’ stationed in Abidjan struck the Presidential compound again, a few hours after Ouattara’s forces’ failed attempt to storm it. The French argued that these attacks took place during the evacuation by French troops of the Japanese ambassador, in response to the evacuation force taking heavy fire from within and around the Presidential compound. Fire was also directed against the French embassy (the Presidential compound is within the ‘diplomatic quartier’ and is surrounded by embassies and ambassadorial residences) (Le Monde). Japan welcomed the French action, while Israel has approached France with requests to help in the evacuation of its own diplomats (ibid).
Expectedly, the Gbagbo camp denounced the attacks on the Presidential compound, and has accused both the UN and the French forces of taking sides (BBC). As already mentioned, the UN S-G has stated that UN and French action on April 4 was not in favour of either party, but rather was taken in self-defence in order to protect civilians. Similarly, French Defence Minister Longuet said in the aftermath of the April 6 French attacks that France will not intervene on the side of Ouattara in order to permanently remove Gbagbo (Le Monde). At the same time, the humanitarian situation in the country is described as ‘dramatic’. The situation continues to escalate, with Gbagbo forces attacking the French embassy in Abidjan and the Unicorn force engaging in retaliatory fire on April 8, while hundreds of bodies are discovered in the west of the country (Le Monde).
What is the legal basis for the current use of force by the UN and France in Côte d’Ivoire, and how does it impact the status and exceptions of the prohibition of the use of force in Article 2(4) of the Charter and in customary law? Jean d’Aspremont foreshadowed the relevant discussion in his earlier post on the situation in Côte d’Ivoire. There, he recalled that no exception from the prohibition has emerged with respect to so-called ‘pro-democratic’ intervention. Similarly, no exception exists with respect to ‘humanitarian intervention’. The only exceptions to the prohibition of the use of force continue to be self-defence, under Article 51 of the Charter, and authorization by the Security Council under Chapter VII.
In the present case, both of the actors using force in Côte d’Ivoire (other than the Ivorian parties to the conflict) have been explicitly authorized to do so by the Security Council in resolutions passed under Chapter VII. The only question seems to be whether—on the facts—both actors have actually used force within the scope of the authorization granted to them. While a reasonable argument can be made (and both the UN and France actually make it) that the use of force has been limited to protecting civilians, and that there has been no intention of forcing the departure or removing besieged Gbagbo from his hideout in the Presidential compound and from the country, there is little doubt that the outcome of the airstrikes against the compound was the en masse surrender and defection of many pro-Gbagbo generals and a substantial contribution to Ouattara’s forces’ attempts to forcibly remove Gbagbo from power.
The situation is similar—but in no way identical—to that currently unfolding in Libya, and a comparison between the two seems appropriate. In the Libyan case we have yet again a Chapter VII authorization of UN member states to use force in order to protect civilians ‘under threat of attack’; but the authorization also extends to ‘civilian populated areas under threat of attack’ (see SCR 1973  para 4), which—it has been argued inter alia by Dapo in this post (see also here)—actually allows targeting the leaders of the recalcitrant regime, as it shows the authorization to really be about ‘stopping Gaddafi’s forces from winning the civil war in Libya’.
The crucial question in this connection is whether the words ‘under threat of attack’ are broad enough to encompass targeting those who pose the threat, and how remote the connection between the actual threat of attack and those posing it may be. Surely troops about to storm a city suburb put a ‘civilian populated area under threat of attack’ and may be targeted. But also Gaddafi’s (or Gbagbo’s) recalcitrance can be argued to put civilians under threat of attack—may Gaddafi (and Gbagbo) be targeted?
In Côte d’Ivoire, the authorization extends only to protecting civilians (not civilian populated areas) and then only when these are ‘under imminent threat of physical violence’ (emphasis added). This seems much more circumscribed than the authorization in SCR 1973, and the a contrario argument from the comparison of the two texts seems to vindicate Dapo’s argument, namely that authorization to use ‘all necessary means’ is just shorthand for the use of force, and the only limitation imposed on the actors authorized to use force as to whether and when to resort to force is the objective identified in the resolution. The objective set in SCR 1973 is clearly broader than that set in SCR 1975. Questions of targeting then would be subject to the provisions of the jus in bello.
The situation is further complicated when we consider the question of the UN taking (or allowing states to take) sides in an internal conflict. The US and the UK have indicated that they consider SCR 1973 as having amended the previously imposed arms embargo (in SCR 1970 ), allowing direct support to the rebels through the provision of weapons (see this recent post by Marko). Marko identifies one of the problematic aspects of this argument as having the Security Council take sides in a conflict without it explicitly saying so. Indeed, by virtue of Article 2(7) UN Charter, the Security Council may take sides in an internal conflict that constitutes a threat to the peace and invites action under Chapter VII. But it does not have to, and unless it does so, its authorization to use force may arguably not be interpreted as allowing the direct support of either side.
The response to this in the Libyan case is that SCR 1973 is ‘really about stopping Gaddafi’s forces from winning the civil war’ and thus the Council has taken sides, but in a manner limited by its authorization (see Dapo’s relevant post here, but note that in his analysis, it may be assumed that the Council has actually authorized the use of force in order to stop anyone from winning the civil war in Libya, if this would put civilians and civilian populated areas under threat of attack; indeed it is hard to see how any war can ever be won without civilians at least coming under threat). In SCR 1975, the Security Council explicitly calls upon Gbagbo to relinquish power in favour of Ouattara (paras 1-4), clearly taking sides in the conflict; yet this is arguably not reflected in the authorization to use force, and it seems that the resolution’s opening paragraphs cannot justify a broad reading of the authorization given the latter’s strict wording. Indeed both the UN S-G and France were at pains to underline that they were not taking sides, and France explicitly ruled out an intervention in support of Ouattara (all the while having Le Monde argue that this is what France is actually doing).
In the final analysis, it seems that once the Security Council has authorized the use of force under Chapter VII of the Charter, the ‘margin of appreciation’ left to those authorized is considerable, even if it finds its outer limits in the objective set by the Security Council. But what must also be given significance is the relevant actors’ insistence on arguing that they are remaining strictly within the boundaries set by the Security Council.
Many thanks are due to Professor Vaughan Lowe QC, as well as to James Upcher, Marko Milanović, Dapo Akande, and Professor Christian J Tams.