Assessing the Legality of ECOWAS Planned Military Intervention in Niger

On July 26^th, a military junta overthrew Niger’s democratically elected president, Mohamed Bazoum. International condemnation followed culminating in the ECOWAS order, on August 10^th, to deploy “its standby force to restore constitutional order in Niger”.

In an excellent article published on West Point Lieber Institute, Professors Russell Buchan and Nicholas Tsagourias argued that an ECOWAS military intervention would be legal because it has been invited, either in an abstract treaty-based manner, or based on an invitation by President Bazoum. As I argue below, I respectfully disagree: The argument of an abstract treaty-based invitation not supplemented by an ad hoc consent has no support from the AU nor the ECOWAS practice. In any case, Niger has clearly revoked its consent to the relevant treaty. As to an ad hoc invitation by the deposed President, Mr. Bazoum does not seem to enjoy the required international recognition to consent to a military intervention in the context of competing governments. Accordingly, the envisaged military intervention would be illegal and, consequently, the current threat to use force too.

International law on peace and security rests on the strict prohibition of the use of force (Article 2(4) of the UN Charter) unless authorized by the UN Security Council under Chapter VII, or in case of self-defense (Article 51). An authorization by the Security Council may extend to regional organizations “But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.” (Article. 53-1). Challenging the Security Council’s monopoly in this regard would run counter to Article 103 of the Charter according to which UN obligations prevail over any other obligations of member states. This probably explains that, in the case of Niger, ECOWAS called on the UN “to support its efforts to ensure a quick restoration of constitutional order in Niger”.

In this blog, after giving some background information on the current crisis in Niger, I shall assess the legality of the envisioned military intervention by addressing the claims of abstract treaty-based consent; ad hoc consent; and elaborate on the consequences for the current threat to use force.

Background to the current situation in Niger

In the early hours of July 26^th, President Bazoum, elected in February 2021, was put under house arrest by his own presidential guard. The different components of Niger’s armed and security forces eventually joined the coup. In a televised speech made on July 28^th, General Abdourahamane Tiani, head of the junta, justified the coup by President Bazoum’s failing security policies and poor social and economic governance. It was reported that the immediate trigger of the coup was the deposed Bazoum’s intention to dismiss General Tiani. While this might be true, the current situation in Niger has deeper roots in a challenging security situation, and a floundering democratic system.

The international responses to Niger’s coup included condemnations from the UN Security Council and the African Union, the US, France, Germany, the EU, as well as Russia and neighboring Algeria.

The most vigorous reaction came from ECOWAS which convened an extraordinary summit in Abuja, on July 30^th. The Summit demanded the reinstatement of President Bazoum in his position; and warned that “in the event (its) demands are not met within one week, (ECOWAS will) take all necessary measures (which) may include the use of force”. In response, the Nigerien military junta vowed to oppose an “immediate and energetic response to any foreign aggression”. The ECOWAS ultimatum having elapsed, the organization convened a second summit in Abuja, on August 10^th, and ordered, the deployment of its standby force. On August 18^th, it declared that “the ‘D-day’ of military intervention (…) has been decided”.

An intervention by invitation based on the ECOWAS Mechanism?

“Intervention by invitation is allowable at the request of the government of a State” (ICJ, Military and Paramilitary Operations in and Against Nicaragua, § 246). The invitation can be ad hoc or treaty-based. In the case of Niger, the argument rests mainly on the ECOWAS Lomé Protocol of 1999 ‘Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security’. This Mechanism provides for a Standby Force that can be deployed notably “in the event of an overthrow (…) of a democratically elected government” (art 25-e). In the view of Professors Buchan and Tsagourias, since Niger has signed and ratified this Protocol, “Consequently, ECOWAS’s threat to use force is lawful because it is based on a treaty right”. No ad hoc consent supplementing the treaty-based invitation seems to be required.

Following the adoption of the ECOWAS Mechanism, and the famous art. 4(h) of the AU Constitutive Act, some authors wondered whether they were not likely to end up interpreted as an abstract treaty-based consent to military intervention. However, the African practice -not only ECOWAS, since the authors refer also to the AU- has so far conditioned the validity of treaty-based interventions on an ad hoc consent at the time of intervention.

As explained by Olivier Corten (p. 345ff), the ECOWAS ‘Mechanism’ itself refers to commitment to the UN Charter and cooperation with the UN. The Mechanism could be construed as an attribution of a peace and security role -to what used to be an economic integration organization- empowering it to conduct enforcement actions if and when authorized by the Security Council. This is supported by ECOWAS and AU practice so far. The only ECOWAS military intervention conducted since the adoption of the Lomé Protocol, was the 2017 intervention in Gambia which relied on an invitation by the internationally recognized President. As to the AU, it envisaged a military intervention based on its Article 4(h) only once, in Burundi in 2015. Absent a Security Council authorization and Burundi’s consent, the AU abandoned the planned intervention (Erika De Wet, p. 173-174).

Furthermore, in its 2011 Resolution on “military assistance on request”, the Institut de Droit International took the view that “If military assistance is based on a treaty, an ad hoc request is required for the specific case (and that) (t)he requesting State is free to terminate its request or to withdraw its consent to the provision of military assistance at any time, irrespective of the expression of consent through a treaty.” Commenting on this Resolution, Professor Nolte indicated that “an important aspect of the Resolution is the rejection of the possibility to justify the use of foreign troops (…) merely by reference of an abstract ex-ante consent of the State concerned” adding that this development “substantially restricts the potential significance of a provision like Article 4h) of the constitutive Charter of the African Union”. This reasoning applies mutatis mutandis to the ECOWAS Mechanism.

Requiring a supplementary ad hoc consent does not necessarily make the relevant treaties without legal significance as suggested in a very nuanced article published by Dr. Svenja Raube on Just Security. Regarding a limitation to a peremptory norm, in a field where state practice has been fraught with abuses of this doctrine, intervention by invitation has to be surrounded by strict safeguards. The ad hoc consent is not a substitute for the initial treaty, it “serves to verify that the prior consent has not since been (implicitly) withdrawn” (Erika De Wet, p. 179). Niger is a case in point since its military junta that enjoys effective control over the territory and population (while no persisting international recognition has been granted to Mr. Bazoum Cf. infra) has expressed outright rejection to the envisaged military intervention describing it as “a foreign aggression”.

Intervention upon an invitation from the democratically elected president:

Noting Mr. Bazoum’s democratic credentials, and the Security Council’s Presse Statement “referring to (his administration) as the legitimate government of the Republic of Niger”, Professors Buchan and Tsagourias consider that he then “possesses the constitutional authority to invite external intervention”. Mr. Bazoum has indeed called “on the U.S. government and the entire international community to help (…) restore (Niger’s) constitutional order”.

However, in cases of competing governments, and for the purpose of consenting to military interventions, recent practice has given a central role to international recognition explicitly stated by UN organs (Corten, p. 278). Such recognition was deemed to counterweight not only considerations of effective control, but also of democratic legitimacy (Cf. e.g. UNSCR 2259 (2015) on Libya; and SC/10878-AFR/2502 (2013) on Mali). In the case of Niger, it does not seem that the Security Council has expressed such recognition toward Mr. Bazoum.

The Security Council Press Statement did only condemn “the efforts to unconstitutionally change the legitimate government of the Republic of Niger” which is a statement of facts rather than a recognition decision. The only mention of Mr. Bazoum in this Statement related to his physical safety.

By way of comparison, in the case of Gambia, the Security Council “endorse(d) the decisions of ECOWAS and the African Union to recognize Mr. Adama Barrow as President of the Gambia”; (UNSCR 2337 (2017) § 2). In UNSCR 2216 (2015) on Yemen, the Council reaffirmed “its support for the legitimacy of the President of Yemen, Abdo Rabbo Mansour Hadi, and reiterat(ed) its call to all parties and Member States to refrain from taking any actions that undermine (…) the legitimacy of the President of Yemen”. Likewise, in UNSCR 2259 (2015) on Libya, the Council “Endorses the Rome Communiqué (…) to support the Government of National Accord as the sole legitimate government of Libya”, and “call(ed) upon Member States to cease support to and official contact with parallel institutions that claim to be the legitimate authority” (§-3 and 5). In all these precedents, the Security Council pragmatically used recognition as a legitimizing tool subtly empowering the relevant governments to consent to military interventions. The language of the Press Statement on Niger, and its context, notably the differences between permanent members, confirm that the Council did not intend to express a persisting recognition of Mr. Bazoum as the President of Niger.

Likewise, the AU’s statement of July 28^th while condemning the coup, did not take a position on the issue of recognition. Nor did it do so in its statement of August 14^th. By way of comparison, again, the AU had declared, in the case of Gambia, that “as of January 19, outgoing president Yahya Jammeh will cease to be recognized by the AU as the legitimate president” of Gambia.

It is true that ECOWAS affirmed, that Mr. Bazoum “remains the legitimate elected president and head of the state of Niger” adding that “only official acts of president Bazoum or his duly mandated officials will be recognized by ECOWAS”. France and the EU also adopted a similar language. However, no other State nor organization expressed persisting international recognition of Mr. Bazoum as the president of Niger. This might be explained by the strong regional and international opposition to the use of force against Niger although not (yet) articulated in legal terms. Importantly, and despite calls for support from the ECOWAS, the AU carefully distanced itself from the threat to use force against Niger. Within ECOWAS itself, pro-Russian juntas in Mali and Burkina Faso threatened that an intervention in Niger would be tantamount to a declaration of war against them. Guinea Conakry and Cabo Verde also oppose the intervention. Beyond ECOWAS members, neighboring Algeria warned against such an intervention. Beyond while Russia warned against an intervention in Niger, the US also expressed preference for a peaceful resolution.

Be that as it may, with only the recognitions of France, ECOWAS, and the EU, and most importantly no explicit recognition by UN organs, the validity of Mr. Bazoum’s consent to a military intervention is highly contested. Further, the case of a pro-democracy intervention without authorization from the Security Council remains “overwhelmingly rejected”.

This does not suggest that once a coup d’état has succeeded it must be accepted as a fait accompli. ECOWAS has an impressive arsenal of measures short of the use of force. These are already being implemented. The use of force to restore constitutional order in Niger cannot be ruled out as a matter of principle. Simply, its requirements do not seem to be met in the case at hand.

Threat to use force

In its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ stated, that a threat is characterized by “a signalled intention to use force if certain events occur”, for instance “it would be illegal for a State to threaten force (…) to cause (another State) to follow or not follow certain political or economic paths”. The Court further indicated that “if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal” (§-47).

Sir Michael Wood’s view that the ICJ approach in the Nuclear Weapons case raises difficulties because a State “making the threat may anticipate Security Council authorization for the eventual use of force” is itself problematic. It rests on the questionable assumption of the legality of a retroactive authorizations and, as such, loosens the jus cogens prohibition on the threat and use of force.

In the case of Niger, the threat to use force is explicit and accompanied by an ultimatum followed by the deployment of the Standby Force, and bellicose rhetoric: On August 18^th, ECOWAS Commissioner for political affairs, peace and security stated: “Let no one be in doubt if everything else fails, the valiant forces of West Africa are ready to answer to the call of duty. By all means available, constitutional order will be restored in the country”.

My conclusion is that the proposed use of force against Niger without prior authorization from the Security Council would be illegal. For this intervention cannot be lawfully justified by an uncontested anticipatory or ad hoc consent in the current context. Accordingly, ECOWAS responses risk being regarded themselves as an illegal threat to use force prohibited under Art. 2-4 of the Charter, with associated international responsibility.

It follows that Niger’s coup which can and should be overturned, should be addressed by peaceful means. Growing demands to prevent yet another war in the Sahel region are being voiced by the region’s politicians, intellectuals and activists, but also by international experts. A military intervention risks disastrous consequences for the Sahel States and population, with dramatic humanitarian consequences and a foreseeable spill-over effect for Europe. This can only benefit terrorist groups and criminal networks.

Photo: ‘The UN Security Council attends a UN ECOWAS meeting’