An Option for ECOWAS?: The Legality of Treaty-Based Regional Organization Military Intervention Under the Jus Ad Bellum (Part II)

[Captain Peter S. Konchak is a Judge Advocate in the United States Army who is currently assigned to the Office of the Staff Judge Advocate for III Armored Corps and Fort Cavazos, and whose academic work is focused on matters of national security law and policy.]

[The views expressed in this article are those of the author and do not represent the Department of Defense, the Department of the Army, or any other entity or agency of the U.S. government.]

Introduction

Part I of this post considered whether, in general, a regional organization may lawfully use armed force against a member state in accordance with the terms of its constitutive treaty. This part now turns to the issue of whether ECOWAS can lawfully intervene against Niger on that basis.

Under the 1999 Protocol Relating to the Mechanism for Conflict Prevention, Peacekeeping, and Security to the ECOWAS Treaty, ECOWAS may authorize a military intervention against a member state where the actual or attempted overthrow of a democratically elected government occurs. This factual situation clearly applies to the current political situation in Niger, where a military junta forcibly seized governmental authority from the democratically elected president.

Consistent with the foregoing analysis of treaty-based intervention mechanisms, this authority logically provides ECOWAS with the capacity, under the jus ad bellum, to authorize a military intervention in Niger.

As a party to the 1999 Protocol, Niger has consented to the Protocol’s intervention provisions. By its own terms, a party may withdraw from the ECOWAS Treaty at any time, but remains bound by the agreement for a year after that process is initiated. However, Niger has not indicated its intention to withdraw from that agreement, and therefore remains bound by its terms.

ECOWAS Practice and Treaty-Based Regional Intervention

ECOWAS’s claims regarding its authority to conduct a military intervention against Niger are strongly suggestive of an assertion that such a use of force is lawful under the jus ad bellum due to the terms of the 1999 Protocol.

ECOWAS has repeatedly stated that it views the forcible seizure of governmental authority from a democratically elected government as the impetus for its contemplated military intervention against Niger. Its initial response to the coup d’état explained that it would employ “all necessary measures…including the use of force” if the junta did not restore the democratically elected government to power. It has also authorized the activation of a “standby military force” for deployment to Niger for purposes of “restoring constitutional order” in that country.

Moreover, ECOWAS has indicated that such a military intervention is authorized by the ECOWAS Treaty. It characterized its order to mobilize a standby military force as an activation of “the clause [in the ECOWAS Treaty] providing for the application of legitimate force” against a member state. Likewise, it emphasized that its authorization of a military intervention against Niger is “backed by…ECOWAS Community law which…was subscribed to by all [ECOWAS] member states, including Niger.”

Those claims suggest that ECOWAS views the intervention mechanisms of the Protocol as a jus ad bellum authority for its use of armed force against one of its member states. This is consistent with past ECOWAS practice regarding regional intervention.

In 2012, ECOWAS deployed military forces to Guinea Bissau in response to a coup d’état against that country’s democratically elected government. In part, that deployment was designed to safeguard a “transitional process” back to a state of “constitutional order” in Guinea Bissau that had been accepted by the coup leaders. Importantly, that mission was authorized in the context of ECOWAS’ threat to undertake “all necessary measures” to reverse the seizure of power “by unconstitutional means.”

Somewhat similarly, in 2010 and 2016, ECOWAS threatened military intervention against Cote D’Ivoire and The Gambia, respectively. Those threats were made in response to an existing government refusing to cede power despite having lost a democratic election, as opposed to a new governmental authority coming to power through forcible means. Nevertheless, those threats were made amid assertions that suggest an ECOWAS claim to a right of treaty-based intervention.

In the case of Cote D’Ivoire, ECOWAS never acted upon its threat of military intervention, but did state that it could enforce its demands through “the use of legitimate force.” Likewise, when ECOWAS did deploy military forces to The Gambia in 2017, it did not explicitly reference the ECOWAS Treaty. However, that intervention followed an announcement by ECOWAS that it would “take all necessary actions to enforce the results” of a democratic election in The Gambia.

Since the 1999 Protocol permits ECOWAS to activate its military intervention mechanism in a broad range of circumstances, including “in the event of a serious and massive violation of human rights and the rule of law,” those assertions can be interpreted as a reference to the Protocol as the jus ad bellum basis for the use of force against those states.

Third Party Responses to Past ECOWAS Military Interventions

Critically, relevant third states and international organizations have tended to explicitly or implicitly endorse the threatened or actual ECOWAS military interventions discussed above.

In Security Council Resolution (UNSCR) 2337, on the day same that ECOWAS forces entered The Gambia in 2017, the UNSC expressed “its full support to ECOWAS in its commitment to ensure, by political means first, the respect of the will of the people of The Gambia.” UNSCR 2337 did not authorize or explicitly endorse ECOWAS military action in The Gambia, and indeed several UNSC members noted that their support for the resolution was predicated upon that caveat. However, the UNSC’s endorsement of ECOWAS measures towards The Gambia occurred after ECOWAS had already threatened military intervention in that country. The UNSC also did not subsequently criticize ECOWAS’ actual use of force in The Gambia.

The UNSC also articulated a relatively positive position on ECOWAS military action towards Cote D’Ivoire and Guinea Bissau. In UNSCR 2092, following the ECOWAS intervention in Guinea Bissau, the UNSC “welcome[ed] the efforts of ECOWAS to support the [security sector reform] process” in that state. The UNSC specifically noted that this process encompassed an agreement in which Guinea Bissau formally accepted the deployment of ECOWAS forces on its territory. Likewise, in UNSCR 1975, the UNSC “reiterat[ed] its support” for ECOWAS’ commitment to addressing the 2010-11 Ivorian crisis, and took particular note of a 2011 ECOWAS resolution in which ECOWAS had decided to take “other measures, including the use of legitimate force,” to enforce the transfer of power to the duly elected government.

In addition, several major states and other international organizations have expressly endorsed past ECOWAS military interventions against its member states. For example, ECOWAS’ military intervention in The Gambia was explicitly supported by the United States and the African Union (AU). The AU adopted a resolution “reaffirming its full support to the decisions adopted by ECOWAS…including the consideration to use all necessary measures” to enforce the 2016 election results.

Third Parties and Potential ECOWAS Intervention in Niger

Third party responses to ECOWAS’ current threats of military intervention against Niger have been broadly consistent with this past practice.

Two major powers have indicated at least tacit support for an ECOWAS military mission. Shortly after ECOWAS announced its plans for a military intervention in Niger, France stated that it “supports, with firmness and determination, the efforts of ECOWAS to defeat [the July 26] coup attempt.” Likewise, though not explicitly endorsing military action by ECOWAS, the United States expressed its support for “[ECOWAS] efforts to work with Niger to achieve a return to democratic rule” after the regional bloc articulated its intention to use force against Niger.

Those positions are significant because both the United States and France have unique interests in the west African regional security order. Once the dominant imperial power in west Africa, France maintains substantial military and diplomatic influence there and from 2013 onward has led a series of major counterterrorism and counterinsurgency operations in the region. Similarly, the United States, which like France has troops based in Niger, has worked closely with states in the region over the past two decades to combat Islamist militants. Those facts are significant because the practice of states whose interests are “specially affected” with respect to a particular customary norm or that more regularly engage in practice related to that norm are generally considered to carry unique weight in the development and interpretation of customary international law.

That consideration also means that the UNSC’s and the AU’s positions on a contemplated ECOWAS military intervention against Niger should be interpreted as particularly significant practice regarding the lawfulness of regional intervention mechanisms.

Under the Charter system, on which the modern jus ad bellum is largely predicated, the UNSC possesses primary responsibility for the maintenance of international peace and security, and the exclusive power to authorize Chapter VII enforcement action. Accordingly, it has a singular interest in the issue of whether another international organization can lawfully authorize a non-consensual military intervention in a sovereign state. Likewise, as a continental union dedicated to promoting the sovereignty of its member states and security across Africa, the AU’s authority is uniquely implicated in the ongoing Nigerien political crisis.

Given those realities, it is significant that while neither the UNSC nor the AU have explicitly endorsed an ECOWAS military intervention in Niger, those entities have been generally supportive of ECOWAS involvement in the Nigerien crisis and have not opposed a potential ECOWAS intervention.

Two days after the July 26 coup, the UNSC “expressed support for the efforts of [ECOWAS]” in relation to effectuating the restoration of constitutional order in Niger. Notably, this statement preceded ECOWAS’ ultimatum to the military junta to relinquish power or face potential military action. Nevertheless, the UNSC has not subsequently condemned that threat, and indeed has refrained from making any further statements on the Nigerien crisis.

Perhaps more importantly, on 11 August, the day after ECOWAS authorized a military deployment to Niger, the Chairperson of the AU Commission expressed “strong support for the decisions adopted by [ECOWAS] on anti-constitutional change in Niger.” A subsequent communique issued by the AU Peace and Security Council (PSC) was more muted, limited to “welcome[ing] the efforts by ECOWAS to find a peaceful solution to the crisis in Niger.” Yet even the PSC communique “encourage[d] the [military junta] to fully cooperate with ECOWAS…efforts towards a swift restoration of constitutional order.”

In stark contrast to those relatively supportive statements, two ECOWAS member states have voiced vociferous opposition to an ECOWAS military intervention in Niger. The day after ECOWAS stated that it may use force to reverse the July 26 coup in Niger, Mali and Burkina Faso announced that they would regard any such intervention as “tantamount to a declaration of war” against their countries. Those states—both of which are currently suspended ECOWAS members—have since entered a mutual defense pact with each other and Niger in which those states have pledged to come to each other’s aid militarily in the event that any of them face an “attack on [their] sovereignty or territorial integrity.”

Importantly, however, both of those states are currently suspended from ECOWAS because their current governments came to power in coup d’états in violation of the ECOWAS Treaty. Since neither Mali nor Burkina Faso has expressly stated that ECOWAS lacks the authority to intervene against Niger under the 1999 Protocol, that reality casts doubt on whether their opposition to an ECOWAS intervention against Niger is evidence of opinio juris. Meanwhile, moreover, eleven other ECOWAS member states have committed to supporting an ECOWAS military intervention in Niger. And critically, that support was integral to ECOWAS’ decision to authorize a potential intervention against Niger in accordance with the terms of the 1999 Protocol.  

Conclusion

Absent few explicit assertions regarding whether ECOWAS may lawfully authorize a military intervention against one of its member states based on the 1999 Protocol, substantial ambiguity will continue to surround the legality of any ECOWAS use of force in Niger. Nevertheless, ECOWAS’s claims on that subject are strongly suggestive of a narrative that the organization possesses the authority, under the jus ad bellum, to employ armed force against one of its members pursuant to the terms of the Protocol. Further, the overwhelming preponderance of third-party responses to those claims are indicative of tacit acceptance of that assertion of authority.

Importantly, moreover, that practice is consistent with conclusions regarding the legality of treaty-based regional intervention mechanisms that can be deduced from clearly established features of state sovereignty. The fact that the fundamental qualities of state sovereignty indicate that such mechanisms are lawful, coupled with ECOWAS’ claims to legitimate intervention based on the 1999 Protocol and a lack of third-party condemnation of those assertions, is substantial evidence of their ultimate legality.

Other potential bases for the legality of ECOWAS military intervention against one of its member states, such contemporaneous intervention-by-invitation from a deposed yet “legitimate” governmental authority, or implied UNSC authorization of regional enforcement action, have been proposed. However, since those justifications have all been subject to major contestation by states and scholars, the strongest argument for the lawfulness of an ECOWAS intervention against Niger can be found by reference to the 1999 Protocol.

Photo attribution: “UN, ECOWAS partners kick-off Western Accord 2016” by U.S. Army Southern European Task Force, Africa is licenced under CC BY 2.0 DEED.