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ECOWAS heads of state have threatened again to use force to remove the new military government in Niger as they did in 2011 to remove Gbagbo in Cote D’Ivoire. There have been such actions in other parts of the world in the past, including the NATO action in Kosovo in 1999. As someone interested in the International Law of Armed Conflict and the Use of Force, I believe the use of force by ECOWAS would be illegal.
I am therefore using this article to contribute to the debate on the legality or otherwise of the proposed use of force by ECOWAS on a Member State as I did in 2011 (see “The Cote d’Ivoire Crisis: Will Use of Force by ECOWAS be Legal?”, GhanaWeb, January 10, 2011), which I have amended below.
According to the International Law of Armed Conflict and the Use of Force, also known as Jus ad bellum, Jus in Bello and commonly known as International Humanitarian Law, any use of force or initiation of hostilities against a sovereign state is illegal unless certain conditions are met. The conditions under which states are permitted to use force are such that they impose considerable limitations upon how force may be used even in cases where the use of force is justified.
The use of force is prohibited under Article 2 (4) of the 1945 United Nations Charter, which states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistency with the purposes of the United Nations”.
The limited restrictions that the use of force permitted are as follows: self-defence; maintenance or restoration of international peace and security, on humanitarian grounds, and the freedom or liberation of colonised people. It is important to note that except for self-defense and freedom or liberation of colonized people, the other two are not free-standing but are subject to prior approval by the UN Security Council before the actual use of force. I now consider the conditions in detail.
Self defence:
Article 51 of the UN Charter provides that “Nothing in this present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right to self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary to maintain or restore international peace and security”.
From the above, it is evident that self-defence is permitted when the state resorting to the use of force has been attacked, though Pre-emptive Use of Force is allowed under certain circumstances.
That is, where there is reliable evidence or intelligence to suggest that an armed attack on a member state is imminent, then that member state does not have to wait or sit down idle until the attack takes place before taking action in self-defence. Pre-emptive Use of Force is controversial as it can be abused particularly, by powerful states against weaker ones as in the current case of the Russian attack on Ukraine. Other states strongly believe that (as contained in a memo by a US Department of State Legal Adviser), “the inherent right of self-defence embodied in the UN Charter must include the right to take pre-emptive action; otherwise, the original purpose is frustrated.
We cannot wait for a first strike under such circumstances”. The Neo-Conservatism doctrine under the George Bush presidency was strongly in favour of Pre-Emptive Use of Force and was used to justify the Iraqi invasion in 2003 without Security Council approval. The doctrine has become part of the “war on terrorism”.
Can the use of force against Niger by ECOWAS be legal and permitted under UN Charter Article 51, that is, self-defence, or under Pre-Emptive Self-Defence? The answer is an emphatically, NO. Because the situation in Niger is not and cannot be an armed attack or imminent armed attack on any of the remaining fourteen Member States of ECOWAS, under the UN Charter. Moreover, ECOWAS member states or heads of state have no authority, legal or moral to determine the form of government (elected or unelected) that other member states should have. That is solely the right of individual member states to determine.
Maintenance of International Peace and Security:
Article 1 (1) of the United Nations Charter states “To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace”.
In pursuance of this noble objective, the UN Charter also provides for the use of force as part of collective measures taken by the Security Council under Article 42. “Should the Security Council consider that measures provided in Article 41 (by peaceful means), would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockades, and other operations by air, sea, or land forces of the Member States of the United Nations.
The above objective under Article 1 (1) could also be carried out by a regional organisation such as ECOWAS with the approval of the Security Council. This provision is under Article 53 (1) of the Charter “The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, except measures against any enemy State, as defined in paragraph 2 of this Article, provided for under Article 107, or in regional arrangements directed against the renewal of aggression policy on the part of any such State, until the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a State.
Enemy State is defined under 53 (2) as “any State which during the Second World War has been an enemy of any signatory of the present Charter”.
From the above, does the current situation in Niger threaten international peace and security such that it may warrant UN or ECOWAS intervention by the use of force? Some may disagree with me, but my answer is another No. In my opinion, the military takeover in Niger does not constitute a risk or threat to international peace and security and therefore, it would be unlawful, unreasonable, and out of proportion for the use of force by ECOWAS. The real threat to international peace and security in Niger is not the military government but terrorist acts by some fundamentalist religious groups such as Boko Haram.
Security council authorization
Another limitation regarding the legitimate use of force to maintain international peace and security is that it must be authorised by the UN Security Council. ECOWAS appears to assume that authorisation from the Security Council is a done deal. If that is their current position, then they should think again because they are wrong. The established practice on Security Council authorization is such that the likelihood of the Security Council agreeing to authorise such use of force against a Member State is so remote that, it is often not considered.
ECOWAS should not be deceived because Russia and China (two out of the five Permanent Members of the Security Council) will veto the authorisation. State sovereignty has two aspects: freedom from outside interference and freedom to act as the sovereign sees fit within agreed borders. Both Russia and China hold the view that the West, should not impose their form of democracy on other states. For these reasons, they will use their vote powers so the Security Council would be unable to authorize the use of force by ECOWAS to maintain international peace and security, let alone return the ex-president to power.
Without Security Council authorization, the use of force by ECOWAS will be unlawful.
Humanitarian intervention
The lawful use of force on humanitarian grounds is also strictly regulated by specified criteria. NATO defines humanitarian intervention as, “an armed intervention in another state, without the agreement of that state to address a humanitarian disaster, in particular, caused by grave and large-scale violations of fundamental human rights”.
This definition means the sovereignty of the state being intervened must be breached and for the intervention to be humanitarian, the desire to address the violations of human rights should be the driving force in the intervention decision.
Attempts have been made to agree on criteria for humanitarian intervention and I enumerate them for easy reference:
The threat or occurrence of grave and large-scale violations of human rights;
Clear and objective evidence of such a threat or occurrence;
The government of the state is unwilling or unable to take remedial action (a failed state);
There is clear urgency;
The purpose is clearly explained to the public and the international community;
The objective is limited to stopping human rights abuses;
The action is supported by those for whom it is intended;
There is support from regional states;
There should be a high probability of success;
There should be a mapped-out transition to post-conflict peacebuilding; The use of force should be proportionate to achieving these goals (jus ad bellum); and International law on the conduct of war should be followed during the action (jus in bello).
Does ECOWAS meet the above criteria? Is there a humanitarian disaster in Niger? The answer to both questions is No and therefore ECOWAS cannot lawfully intervene in Niger by use of force on humanitarian grounds.
Another lawful use of force is through invitation by the legitimate government of a sovereign state. The difficult here is that the old government has been overthrown and is no longer in power. The overthrown president is under house arrest and therefore there is one government in Niger, which is the military government therefore ECOWAS cannot use force by invitation from the sovereign state of Niger because the legitimate government is the military government against which ECOWAS intends to use of force.
Since Niger is an independent state and not a colony and ECOWAS is a freedom fighter or liberator, the use of force under freeing a colonized state is not applicable and needs no further consideration. From the above ECOWAS has no option to use force to attack a sovereign state that is not a belligerent or an aggressor.
Now let me turn to the use of legitimate force permitted by the UN Charter is regulated by principles of “jus ad bellum”, that is, laws on the decision to use force or the initiation of hostilities (before action). On the other hand, the conduct of hostilities between States is regulated by the principles of “jus in bello” that is, laws of armed conflict or during action. This is why the International Law of Armed Conflict and the Use of Force is also referred to as Jus ad bellum, Jus in Bello.
For both the initiation of hostilities and the conduct of hostilities to be lawful, each must be within the limitations of “what is reasonably necessary and proportionate to the achievement of a legitimate objective”. There are different school of thought on where jus ad bellum ends and where jus in bello begins but what is not in dispute is that the relationship between the two are such that in reality jus ad bellum does not cease to operate after the initiation of hostilities and therefore operates concurrently with jus in bello.
Another important fact is that the limitations of what is reasonably necessary and proportionate are equally applicable to States as well as all individuals involved in the initiation and conduct of hostilities. Every single action throughout the conduct of hostilities including even the pulling of a trigger by a single soldier and collective action by either a platoon or a brigade are all subject to the limitations of both jus ad bellum and jus in Bello. That was why “I was under the order or obeying instructions” is not an acceptable defence for the breach of the limitations. It is also for the same reason why in the first Gulf War in 1991 the Allied Forces did not remove Saddam Hussein from power since that would not have been reasonably necessary and not proportion to achieving the objective of freeing Kuwait and restoring international peace and security at the time.
Now let me apply the above principles to the intended use of force by ECOWAS. Will the use of force to remove the military government in Niger be reasonably necessary and proportionate to the objective of “achieving the goals of the Nigeran people”? I am afraid not and there is no such thing as achieving the goals of a people in the various Articles mentioned above. Worst still, the use of force will result in civilian casualties and ECOWAS may have their own Libya, Afghanistan, or Iraq in Niger because it will not be a short war but a prolonged one.
Because the proposed use of force cannot meet both the jus ad bellum and jus in bello limitations criteria, it would be unlawful for ECOWAS to do so. Niger cannot be considered an enemy State under Article 53 (1) and (2), simply because some military officers decided to overthrow the elected government. Therefore, there is no need for me to analyse that situation. For the above reasons all the ECOWAS Member State military commanders who are planning the use of force and command the action could be prosecuted for illegal use of force against a Member State of both ECOWAS and the UN.
What is the established customary practice?
The only option left for ECOWAS to resort to the use of force, which will be legitimate and lawful under International Law is by relying on established customary practice. Despite my conclusion that the use of force by ECOWAS will be unlawful under International Law, it is also imperative for me to consider what has been the long-established practice (the custom) or the norm in such situations.
An important aspect of the application and interpretation of the law is customary practice (unwritten law or case law). That is, what has been exercised from time to time immemorial (in similar circumstances), considered to be right and reasonable, can be proven by direct evidence and has become acceptable. Assuming my prediction that the Security Council would not authorise the use of force by ECOWAS because of veto by Russia and China is accurate, the 2003 Iraqi invasion led by US and UK was also undertaken without authorisation by the Security Council.
Though many still believe that the use of force was illegal (because in their view, Security Council Resolution 1441 did not specifically authorise the use of force), the plain truth is that the NATO action in Kosovo made the Iraqi invasion, legal under International Law. Other examples of the use of force by States would have been unlawful under International Law but became acceptable because of customary practice. For example, Israel relied on pre-emptive self-defence to justify her attack on Iraq’s nuclear reactor in 1981.
What concerns me is not only the potential for a prolonged conflict but also the precedence to be set by ECOWAS if the threat of the use of force is enforced against a Member State. It could make the region unstable. Interestingly, I have looked at the ECOWAS Charter and cannot find any specific article that allows the use of force against the Member States, though Article 3(o) under aims and objectives states: “any other activity that the Member States may decide to undertake jointly to attain Community objectives”. Article 7(i) under The Authority of Heads of State and Government Establishment, Composition and Functions also provides that: “exercise any other powers conferred on it under this Treaty”.
The ECOWAS Charter, Protocol, and all other governance documents strongly advise that all conflicts should be resolved through peaceful means. Therefore, why ECOWAS is threatening to use force against a Member State without utilizing peaceful means through diplomacy is anyone’s guess. In conclusion, the use of force by ECOWAS against Niger would be illegal and it would set a new precedence in international relations and diplomacy, that could be dangerous and a threat to peace and security in the region.
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