The Gambian post-election crisis is a gem amongst cases relevant to the law on ius ad bellum – not only because it is a crisis that has been resolved with almost no bloodshed, but also because it offers valuable insights into the interaction between Security Council authorization, the doctrine of intervention by invitation, and the prohibition on the threat to use of force (see for some analysis here, here, here, or here).
Professor Hallo de Wolf has concluded that “the legality of the ECOWAS’ military intervention is dubious”. His analysis primarily focuses on the question of legality of the ECOWAS’ intervention after the inauguration of The Gambia’s new president, Adama Barrow. However, his conclusion may be challenged if one is to read Security Council resolution 2337 (2017) as a non-prohibitive non-authorization, which indirectly opens and strengthens the alternative avenue of the doctrine of intervention by invitation . Elsewhere, I have evaluated this interpretation against State practice and the Council’s resolutions in the Syrian and Yemeni incidents and concluded that the consent of the new president, Barrow, may suffice to justify the military intervention in The Gambia.
If one is ready to follow this line of thought, a question arises as to the effect of the consent; what conduct is justified by the invitation? The post-election crisis in The Gambia, for which the course of events may be recalled here or here, entails temporal complications in this respect. The crisis can be divided in three phases: (1) pre- inauguration (Jammeh’s clinging to power up until the inauguration, and end of the ECOWAS’ ultimatum, 19 January 2017); (2) the time between passage of the ultimatum and official inauguration; (3) post- inauguration. The present post shall primarily focus on the phase leading up to the military intervention.
It is generally acknowledged that the consent of the government of a State can legalise the use of force by another State on its territory, since such force does not constitute inter-State force falling within the scope of the prohibition in Article 2(4).
Furthermore, it is widely accepted that this invitation must be issued in advance, or at the time of, the intervention (Corten, The Law Against War, 267) and that consent will not have retroactive effect. Accordingly, intervention after inauguration (3 above) would come within the ambit of President Barrow’s request for military assistance. This was the view taken by the United Kingdom and Russia. The non-retroactiveness of the consent renders the legal basis for conduct undertaken between passage of the ECOWAS ultimatum and inauguration (2 above) unclear. The inability to rely upon the invitation as a legal basis may explain ECOWAS’ decision to halt military operations and instead act within the spirit of resolution 2337 (2017), resorting first to diplomacy and awaiting a clear authorization from President Barrow.
“Insisting” on Transition of Power
The entire “political” pressure by the ECOWAS including its call for a transition of power (pre-inauguration 1 above), heralded by the Security Council (Res 2337 (2017) para 4), however may be exposed to the criticism of being an illegal threat of force in violation of Article 2(4) UN Charter and the customary international law prohibition.
It is worth to shortly recall the facts. The African Union (AU), the UNOWAS, and the ECOWAS all issued similar statements, leaving no doubt that from January 19, 2016, Barrow would be recognized as the legitimate leader of The Gambia. On December 12, 2016, the AU was even more direct and increased the pressure, announcing to undertake “all necessary measures” to ensure respect for the will of the Gambian people. On December 17, 2016, the ECOWAS followed with a similar announcement. Shortly thereafter, it declared that it would send troops to The Gambia should Jammeh continue clinging to power: “If he is not going, we have stand-by forces already alerted and these stand-by forces have to be able to intervene to restore the people’s wish”. These strong words were followed by strong actions. Within days, ECOWAS’ members had massed a total of 7,000 troops, outnumbering the entire Gambian military, at the border surrounding The Gambia by land, sea, and air.
An Ex Post Facto Authorization in Resolution 2337 (2017)?
A legal basis for the ECOWAS’ and AU’s behavior prior to the ultimatum is not easily identified. No express Security Council authorization existed, allowing the ECOWAS, the AU, or the member States to threaten The Gambia, and accordingly rendering the question moot whether this behavior is prohibited under Article 2(4) UN Charter. It is also difficult to argue that resolution 2337 (2017) constitutes a retroactive authorization. It is true that the Security Council “welcomes the decisions” (para 4) of the ECOWAS and AU, in which they for the first time announce to “use all necessary means” to enforce the election results. Without need to revisit the debate on ex post facto authorizations by the Security Council, the language may remind of that used in the resolutions regarding ECOMOG’s intervention in Liberia in 1990 and ECOWAS’ intervention in Sierra Leone in 1997, which prompted much scholarly discussion. However, as the ICJ held in its Namibia Advisory Opinion (para 114), the language of the resolution is not the only factor for determining a resolution’s legal consequences. Rather “the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council” should be taken into account. Hence, it is important to bear in mind that the Security Council did not enact resolution 2337 (2017) under Chapter VII or VIII of the UN Charter. Bolivia did not “feel that at this stage the situation poses a threat to international peace and security”, indicating that the resolution cannot be read as a direct authorization in any case. Uruguay also stated that any “such authorization must be express, affirmative and prior” (emphasis added).
A Justifiable Threat to Use Force?
Accordingly, all comes down to the question whether the ECOWAS’ behavior falls under the prohibition of the threat of force, as laid down in Article 2(4) UN Charter. Pursuant to the ICJ’s jurisprudence, this presupposes two prerequisites: first, the State’s behavior must constitute a threat. Second, the envisaged use of force must be illegal.
The first prerequisite, a threat of force, does not cause fundamental problems. A threat need not to be explicit; the ICJ in the Corfu Chanel Case has also considered “a demonstration of force for the purpose of exercising political pressure” sufficient (p 35). All surrounding circumstances of the behavior may be taken into account (Case Concerning Military and Paramilitary Activities in and against Nicaragua, para 227). However, as the Independent International Fact Finding Commission on the Conflict of Georgia has stressed, it is required that “the use of force is sufficiently alluded to and that it is made clear that it may be put to use” (233). The threat must be credible (Nuclear Weapons Advisory Opinion, para 48). ECOWAS’, the AU’s and the relevant State official’s behavior did not leave any doubts about their willingness to resort to force to ensure respect for the Gambian people’s will, once the ultimatum would pass. Going beyond any routine missions, they positioned troops at the border, ready to roll in at any point after the ultimatum had passed.
More difficulties arise with respect to the second precondition, which the ICJ described in the Nuclear Weapons Advisory Opinion as following and which is worth recalling in its entirety:
Whether a signalled intention to use force if certain events occur is or is not a ‘threat’ within Article 2, paragraph 4, of the Charter depends upon various factors. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4. Thus it would be unlawful for a State to threaten force to secure territory from another State, or to cause it to follow or not to follow certain political or economic paths. The notions of ‘threat’ and ‘use’ of force under Article 2, paragraph 4, of the Charter stand together in the sense 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. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. For the rest, no State—whether or not it defended the policy of deterrence—suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal. (para 47)
As noted above, a justification for the envisaged use of force by ECOWAS and Senegal may be reasonably argued when relying on an invitation eventually issued by the eventually incoming president Barrow. Yet, it is important to bear in mind that this justification is based on future, uncertain conditions. It is true that given the political circumstances, it was likely that Barrow would be instituted as president, and that he would issue an invitation to assume power. ECOWAS and AU might reasonably have anticipated all of this. But still, it was only likely. At the time of imposing the threat, it was impossible to know whether the eventual use of force would be justified or not. Accordingly, The Gambia Crisis illustrates what Sir Michael Wood has described as “practical difficulties with the approach of the ICJ” (para 10). Put more, the Crisis raises questions on the relationship between the prohibition of the threat or use of force and the doctrine of intervention by invitation. And the debate on the issue of consent a priori, discussed by Professor Hallo de Wolf, adds an extra complicating twist.
It is interesting to note that the AU and the ECOWAS chose different avenues to threaten, with the AU taking a more careful approach. The AU seemed to threaten under the condition that it could do so legally, having in mind the ICJ’s formula that the envisaged use of force must be in accordance with international law: “Stresses the determination of the AU to take all necessary measures, in line with the relevant AU Instruments, with a view to ensuring full respect and compliance with the will and desire expressed by the people of The Gambia on 1 December 2016.” Meanwhile, the ECOWAS seemed not to have included a backdoor, but instead determined to use force in any event. It decided: “The Authority shall take all necessary measures to strictly enforce the results of the 1st December 2016 elections.“ In any event, neither the Security Council, nor the international community (see, e.g., USA) seemed to find this behavior objectionable – unfortunately without further explanation. While this is politically comprehensible, it is legally questionable. Without detailed States’ explanations for their conclusion, the precedential value of The Gambia conflict remains speculative. Yet, the Gambian crisis illustrates the need to devote further thought to the prohibition on the threat of force.