ECOWAS and the Use of Force in Niger

This article by Dr Wole Kunuji tells us that regional organisations are only empowered to employ force on other member-States with the approval of the United Nations Security Council, and it should be in self-defence where there is a threat, and not for the restoration of democracy in another State; and that, this has become a norm of international law

Introduction

In a very disturbing development that has further eroded the democratic gains recorded in Africa since the advent of democracy on the continent, soldiers in the Republic of Niger recently announced the removal from office of President Mohammed Bazoum, the democratically elected President of Niger. This event took place on the 26th of July, 2023. Prior to the coup in Niger, there had been similar attacks on democracy in Burkina Faso (2022), Mali (2021), and Guinea (2021). It goes without saying that, unless the increasing wave of coup d’etats in West Africa is quickly arrested, it may ultimately destabilise the sub-region and undermine its peace and security.  

As expected, ECOWAS, a West African economic and political union consisting of 15 member States (including Niger), has risen to the challenge posed by the coup in Niger. It has issued several statements and announced several measures, aimed at reversing the illegal seizure of power in that country. Of the planned measures announced so far by ECOWAS however, the most controversial, and the one that has raised important international law questions, is the plan for a potential military intervention in Niger, in order to restore democracy in that country.

The prospect of an ECOWAS-led military intervention in Niger, raises questions about the extent to which regional organisations can employ force to restore democracy in their member-States? In essence, the Niger imbroglio throws up issues about whether regional organisations can carry out military actions in any of their member States in order to quash an overthrow of constitutional order in that member-State, and reinstate democratic governance therein? The questions outlined above, are crucial to a determination of the legality of the proposed military action by ECOWAS in Niger. 

1. Article 2(4) of the UN Charter

Any consideration of the international law implication of a potential military action in Niger must commence with a discussion on Article 2(4) of the United Nations Charter, which is widely regarded as an embodiment of customary international law on the use of force. This provision of the Charter urges all member States of the UN, to “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 inconsistent with the purposes of the United Nations.” The only exception to this rule is enshrined in Article 51 of the Charter which allows States, subject to certain conditions, to use force in self-defence. 

Some Scholars have argued that, Article 2(4) only prohibits the use of force against the “territorial integrity and political independence of States.” As such, a use of force which does not have violation of the territorial integrity and/or political independence of a State as its primary aim, is supposedly permitted under the UN charter. The implication of this argument, it is said, is that a unilateral use of force for benign purposes – like restoration of democracy, for instance- is not prohibited by the Charter. With respect, nothing can be further from the truth. Indeed, it can be argued that a unilateral enforcement action aimed at restoring democracy in another country, is in fact an interference with the political independence of that country, since such a use of force would be aimed at altering the political character of  the State in question. 

To understand the implication of Article 2(4), it is important to examine what the true intention of its framers was. It must be remembered that the UN Charter itself was put together, following the failure of the League of Nations Covenant to prevent the Second World War. As evident in the preamble to the Charter, a fundamental purpose of the United Nations is to maintain international peace and security, in order to “save succeeding generations from the scourge of war.” In achieving this objective however, the framers were careful not to leave any room for doubts, as to who should superintend the maintenance of international peace and security on behalf of the international community. They thus, saddled the Security Council with primary responsibility for this task (see Article 24 of the Charter).

 By specifically saddling the Security Council with this responsibility, the framers avoided creating a loophole that could have led to the chaotic emergence of several centres of power, if responsibility for the maintenance of international peace and security had not been specifically assigned to the Security Council. The assignment of the responsibility for international peace and security to the Security Council was thus deliberate. As a body consisting of the world’s principal civilisations, the Security Council is ordinarily considered to be better equipped to make informed and responsible decisions, regarding peace and security enforcement throughout the world.

Under Chapter VII of the Charter, the Security Council is the only organ of the UN empowered to use all means available to it, to pursue enforcement actions in furtherance of its primary responsibility under the Charter. All of the above point to the fact that the intendment of Article 2(4) of the Charter, is to prohibit the use of force by any other entity without the approval and superintendence of the UN Security Council. In essence, to be considered legal, any use of force by a State or a group of States in another State for whatever purpose, must be authorised and/or superintended by the Security Council of the UN. 

Not only is Article 2(4) of the Charter regarded as a cornerstone of the UN system, it has, over the years acquired a jus cogens character. In other words, it has become a peremptory norm of international law from which there can be no derogation. This much, has been emphasised by the International Court of Justice in a string of cases, including its seminal decision in the 1986 Nicaragua case. (Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America 1986 I.C.J Reports 14).        

2. Regional Organisations and the Use of Force in International Law

 It is true that Chapter 8 of the UN Charter encourages the use of regional arrangements, to facilitate international peace and security. But, the Charter is very emphatic in its insistence that enforcement actions undertaken by regional organisations must carry Security Council authorisation (see Article 53 UN Charter). Even after securing Security Council authorisation, a regional body undertaking enforcement action must keep the Council abreast of every facet of the enforcement operation. The Charter does not in any way contemplate autonomous or unilateral enforcement actions by regional organisations, without Security Council endorsement. In effect, as far as enforcement actions are concerned, the intendment of the Charter is to keep the Security Council always seized of such matters, with the aim of ensuring that the permission to use force is not abused. It is therefore, very clear that the architecture of the UN Charter is designed in such a way that, enforcement actions are meant to be undertaken only under the command of the Security Council. States and Regional Organisations may only undertake enforcement actions, with the authorisation of the Security Council.

Where then does this leave us? Are regional organisations completely barred from taking proactive measures, such as the restoration of democracy in their member-States during periods of crisis? Certainly not. The point of this article is that, there is no such right to unilaterally use force to restore democracy without the requisite Security Council authorisation. International law does not recognise the unilateral use of force across national lines, except in lawful self-defence as specified in Article 51 of the Charter. The restoration of democracy does not constitute an acceptable legal ground, for waging unauthorised war in International Law (See O. Schacter, International Law in Theory and Practice (M.Nijhoff Publishers, 1991) p. 128. See also Antonio Cassesse, Self Determination of Peoples- A Legal Reappraisal (Cambridge University Press, 1995) pp 199-200.). Unauthorised enforcement actions for whatever reason, are illegal under the Charter.

3. The ECOWAS/Niger Imbroglio 

ECOWAS is a regional organisation made up of States, and its military wing is made up of troops provided by its member States. By providing and authorising troops to undertake a clearly illegal assignment, each of these States and ECOWAS is deliberately violating a cardinal provision of the UN Charter. The Charter obliges ECOWAS as a regional organisation, to ensure that its activities are consistent with the purposes and principles of the United Nations. Article 53 of the Charter specifically states that “no enforcement action shall be taken under regional arrangements or by regional agencies, without the authorisation of the Security Council.” Thus, ECOWAS cannot embark on an activity or a course of action that clearly breaches the Charter. 

From the discussion above, the only body that is authorised to make a definitive assessment as to the existence or otherwise of a “threat to the peace, breach of the peace or act of aggression” in any State, is the Security Council of the United Nations. It is also the only body that can use or authorise force, in situations such as the one currently playing out in Niger. While it is true that there have been instances of unauthorised use of force in the past, such instances are few and far between, and they do not in any way render indeterminate, the position of international law on this matter. Contemporary jurisprudence of international courts and tribunals, supports this assertion. The example of the 1998 ECOWAS intervention in Sierra Leone is highly unfortunate, and cannot be a precedent for unauthorised interventions. Indeed, it has been widely criticised and condemned in the literature. And, to underscore the illegal nature of the Sierra Leone example, the same ECOWAS sought Security Council authorisation for its subsequent use of force in Cote d’ivoire during the struggle to remove Laurent Gbagbo from office.

4. The Way Forward in Niger

There is no doubt that, we have an abnormal and illegal situation in Niger. Indeed, the military putsch in that country, is completely against the spirit and letter of the 2001 ECOWAS Supplementary Protocol on Democracy and Good Governance. According to that Protocol, which was signed by Niger and other West African States, the Armed Forces in all ECOWAS States “must be apolitical and must be under the command of a legally constituted political authority” (Article 1(e) of the Supplementary Protocol). And, to underscore the seriousness with which the issue is regarded, the Protocol emphasises that there shall be ”zero tolerance for power obtained or maintained by unconstitutional means” (Article 1(c), Supplementary Protocol). The zeal with which ECOWAS leaders are pursuing efforts to reverse the illegality in Niger is therefore, understood, and indeed, commendable. However, such efforts must be in alignment with the extant international law on this subject, otherwise we run the risk of creating a precedent that may be wrongly exploited in future. 

A better course of action, is for ECOWAS to initiate and sustain a regime of comprehensive economic and political sanctions on the illegal government in Niger until the needful is done, and democracy is restored. This should be combined with ongoing diplomatic measures, aimed at an amicable settlement.  

Force, by way of military intervention, should be a last resort. following wide ranging consultations with relevant stakeholders, including the African Union and the UN Security Council. Any resort to force, must be clearly and unequivocally supported by the Security Council.

Dr Wole Kunuji, Executive Director of the Lex Lata Centre for International Law and Comparative Constitutionalism in Africa