Concurrent military deployments in Mozambique and their permissibility under SADC treaty law

Author: Marko Svicevic
Post-doctoral research fellow, South African Research Chair in International Law (SARCIL), University of Johannesburg

On 23 June 2021, the Extraordinary Summit of the Southern African Development Community (SADC) Heads of State and Government approved the deployment of a military force to Cabo Delgado in support of Mozambique’s fight against violent extremism in the province. The approval of the deployment, termed the SADC Standby Force Mission to Mozambique, was a delayed yet surprising response from the bloc to an increasingly volatile situation. The violence in Cabo Delgado is approaching its fourth year now, has resulted in over 3000 deaths, and has internally displaced over 700 000 people.

The SADC deployment seems to be based on the consent of the Mozambican government. What complicates the matter however is that even before SADC was able to deploy, Rwanda has already dispatched some 1000 troops to the province at Mozambique’s request.

The deployment of Rwandan troops ahead of SADC’s deployment has in itself produced controversy. Diverging narratives have since been pronounced in the region. Mozambique’s official opposition, Renamo, immediately opposed the Rwandan deployment claiming it was illegal in so far as Parliament was not informed (see also here). The Rwanda National Congress (RNC), an exiled political party, expressed ‘concern’ that the Rwandan deployment took place ‘ahead’ of the SADC deployment. It added that Rwanda is not a SADC member and ‘it purports to have been invited by the Mozambican government.’ The RNC also believes the Rwandan deployment is ‘overstepping’ SADC’s arrangements.

While both the SADC and Rwandan deployments seem to have been undertaken in full compliance with international law regulating the use of force; there is some uncertainty as to whether the SADC treaty law permit such an occurrence. Days before SADC was meant to deploy, South Africa’s Minister of Defence and Military Veterans indicated it was ‘unfortunate’ that Rwanda deployed its troops before SADC because it was expected Rwanda would have deployed ‘in support of Mozambique in the context of a mandate which has been given by SADC…’ The Minister conceded however that the Rwandan deployment was a bilateral agreement between it and Mozambique, and SADC had no control over this decision.

President Filipe Nyusi has however publicly announced that SADC has approved Rwanda’s deployment; despite SADC executive secretary quoted saying it was ‘unfortunate’ Mozambique had not formally notified SADC of Rwanda’s deployment. These contentions understandably bring about a need to both clarify the broader legal bases for the concurrent deployments and their compliance with SADC treaty law.

The SADC deployment: consent-based

Not unexpectedly, a legal basis for the SADC deployment has yet to be articulated. From context however, it seems to be based on a SADC authorised deployment underpinned by Mozambican consent. What remains unclear is whether Mozambique has formally requested the military assistance or whether it has consented to a SADC-proposed deployment. Nonetheless, President Nyusi has, albeit cautiously, welcomed the deployment all the while emphasizing that military operation will be directed by Mozambique.

President Nyusi is the current SADC Chairperson and was present during the 23 June Extraordinary Summit when the deployment was authorised. This is a strong indication the SADC deployment is based on the consent of the Mozambican government. It is also confirmed by the fact that SADC has since written to the United Nations Security Council (UNSC) to inform it of the deployment which it dubs a ‘regional response to terrorist activities in Mozambique.’ In a letter addressed to UN Secretary-General António Guterres, SADC Executive Secretariat Dr Stergomena Tax states that:

‘Consistent with the SADC Protocol on Politics, Defence and Security Cooperation, and in recognition of the principle of subsidiarity as espoused in the United Nations Charter, Chapter VIII, Regional Arrangements, Article 52, I wish, on behalf of SADC to request your good offices to inform the United Nations Security Council on SADC’s deployment.’

The reference to both the SADC Protocol on Politics, Defence and Security Cooperation (SADC Protocol) and the UN Charter (so precisely that it mentions Article 52) is significant. It suggests that the SADC deployment falls outside of the scope of Article 53 regional enforcement action under the UN Charter; the deployment is therefore not taken against the consent of the State. Additionally, it also rules out a basis for regional enforcement action under Article 11(3) of its own Protocol – which provides for ‘enforcement action only as a matter of last resort and, in accordance with Article 53 of the United Nations Charter, only with the authorization of the United Nations Security Council.’ In combination, the fact that the UNSC is only ‘informed’ of the deployment, rather than seeking to obtain its authorisation, suggests the deployment is consent-based.

SADC_rwanda

The Rwandan deployment: request for military assistance

Six days before the SADC deployment was to initially commence, on 9 July 2021, Rwanda announced it was deploying troops to Cabo Delgado. A government issued statement reads:

‘The Government of Rwanda, at the request of the Government of Mozambique, will today start the deployment of a 1,000-person contingent of the Rwanda Defence Force (RDF) and the Rwanda National Police (RNP) to Cabo Delgado Province, Mozambique, which is currently affected by terrorism and insecurity.’

The statement also indicates the deployment is based on agreements between the two countries signed in 2018. This would suggest the deployment is based on an already existing mutual security cooperation agreement which was concluded before SADC had formally taken a decision to deploy. However, it is unlikely the agreement provides for conditions of deployment without requiring a formal ad hoc request for assistance. That the ad hoc request was present in the current context is seemingly acknowledged in the statement itself.

Although the statement also notes that the deployment is grounded in, among others, Rwanda’s commitment to the Responsibility to Protect (R2P) doctrine, there is little doubt the deployment is firmly based principally on a request for military assistance. The precise content and details of Mozambique’s request are however unlikely to be made public. For the most part, there is little dispute concerning Mozambique’s authority to request military assistance from Rwanda. President Nyusi’s government is no doubt the legitimate authority entitled to request military assistance. In addition, despite serious accusations of human rights abuses by, among others, the Mozambican armed forces, this does not yet seem to be a barrier against its right to request assistance.

Concurrent military deployments as security cooperation agreements under SADC treaty law

Two issues however seem to arise in the current context. The first is that Rwanda is not a SADC State Party. This raises questions as to what extent Mozambique is entitled to enter into additional and potentially incompatible security arrangements with non-SADC State Parties under its existing SADC security commitments, especially given SADC’s pre-dated decision to authorise a military deployment.

Second, it is interesting to note President Nyusi’s sentiments expressed on the matter indicating that SADC has approved Rwanda’s deployment to Mozambique (see here and here; but see also reports that SADC is dissatisfied with the Rwandan deployment here, here and here). One question which arises is whether Mozambique, as a sovereign state, would at all need SADC approval in order to request, and ultimately receive, military assistance from a non-SADC State Party.

This question seems to be addressed under Article 10 of the SADC Protocol. Recognising that political, defence and security matters ‘transcend national and regional boundaries’, Article 10(1) provides that cooperation agreements between SADC State Parties and non-SADC State Parties as well as other organisations shall be accepted under certain conditions. In principle, these agreements must not be inconsistent with the objectives and other provisions of the SADC Treaty and SADC Protocol (art. 10(1)(a)), must not impose obligations upon a State Party that is not a party to such a cooperation agreement (art. 10(1)(b)), and must not impede a State Party from fulfilling its obligations under the SADC Treaty and SADC Protocol (art. 10(1)(c)). 

Only agreements between the SADC Organ on Politics, Defence and Security Cooperation – its principal institution governing peace and security – and a non-SADC State Party, or between another organisation, must be approved by the SADC Summit – the highest institutional decision-making body (art. 10(2)).

On this basis, there is no explicit nor automatic requirement that SADC needs to approve a security cooperation agreement between a SADC State Party and a non-SADC State Party.  In the case at hand, one may question whether the request for assistance (based on the 2018 agreements) by Mozambique to Rwanda constitutes a ‘co-operation agreement’ within the meaning of Article 10. If it does, the request for assistance should not be contrary to Articles 10(1)(a)-(c). In its current form, the request for assistance to Rwanda does not impose obligations on a State Party not a party to it (art. 10(1)(b)), and it would appear to not impede any State Party from fulfilling its obligations under the SADC Treaty and SADC Protocol (art. 10(1)(c)).

However, it is questionable whether the request for assistance may be inconsistent with the objectives and provisions of the SADC Protocol (art. 10(1)(a)) in so far as the SADC Summit has already taken a formal decision on the violence in northern Mozambique and authorised a deployment mandated to assist Mozambique with its security situation. That inconsistency would presumably persist only to the extent that the SADC and Rwandan deployments may be incompatible.

This may in turn bring about considerations of command and control of the concurrent deployments, mission objectives, rules of engagement, and geographical areas of operation. To the extent that incompatibilities arise, the Rwandan deployment, if it is to be considered a security co-operation agreement contemplated under Article 10, may potentially be viewed as contrary to Article 10(1)(a).

Any such inconsistency will however probably only be realised once the SADC deployment’s technicalities have been outlined. For now, if SADC has indeed ‘approved’ of the deployment, that would suggest some level of cooperation between the two deployments and may prevent inconsistencies referred to in Article 10(1)(a). In turn, Article 10(1)(a) may fall away in so far as the concurrent deployments, both ‘approved’ by SADC, operate in harmony in Mozambique. After all, both deployments are aimed at assisting the Mozambican State against acts of violent extremism in Cabo Delgado and both deployments are seemingly undertaken with the full consent of the Mozambican State.

To the extent it should be mentioned, the SADC Protocol’s objectives and general provisions provide for an elaborate security framework under SADC institutions. There is however little to suggest that issues of regional peace and security are left exclusively to SADC’s competencies; the Protocol evidently foreseeing security cooperation agreements which extend to non-SADC State Parties. While concurrent deployments such as the one in Mozambique may not be ideal from an operational perspective, they are not prohibited under SADC treaty law.

 

About the Author:

Marko Svicevic is a post-doctoral research fellow at the South African Research Chair in International Law (SARCIL), University of Johannesburg.



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