Rattling Sabers to Save Democracy in The Gambia

On 19 January 2017, ECOWAS’ deployed a military contingent from five West African countries to enforce results of the recent democratic elections held in The Gambia. This post raises a few interesting/critical questions regarding its legality and the prohibition on the use of force.

Background

Mr. Adama Barrow won those elections in a run down against (now former) President Yahya Jammeh. After initially acknowledging defeat, Mr. Jammeh, whose regime has been accused of committing gross human rights violations, reversed his position alleging election irregularities. On 18 January 2017, after Jammeh declared a state of emergency, the Gambian National Assembly voted to extend his term for 90 days. Barrow was sworn into office during a ceremony celebrated in the Gambian embassy in Dakar, Senegal on 19 January 2017, and immediately requested the UN, in particular the Security Council, the African Union and ECOWAS for assistance in installing his democratically elected government.

The Peace and Security Council of the African Union adopted a communiqué  noting concern for Jammeh’s rejection of the election’s outcome, and decided to coordinate its activities with ECOWAS and the UN to facilitate a speedy and orderly transfer of power to Barrow. More importantly, it stressed the AU’s determination “[…] to take all necessary measures, in line with the relevant AU Instruments[,]” to ensure full compliance with the outcome of the elections.

Not long thereafter, ECOWAS adopted its own communiqué on 17 December 2016 agreeing to:

• uphold the result of the Gambian elections;
• request the endorsement of the AU and the UN on the matter; and
• “take all necessary measures to strictly enforce the results of the 1st December 2016 elections”.

The AU’s Peace and Security Council declared on 13 January the inviolability of the election results and ceased to recognize Jammeh as the legitimate president of The Gambia as of 19 January 2017. ECOWAS later sent a mediation team headed by the President of Liberia to try to settle the crisis albeit without much success. After Barrow’s swearing in, ECOWAS set Jammeh a deadline to step down on the 20^th of January as it allowed a military contingent to gather on the border between Senegal and The Gambia. Later that day, it apparently authorized the troops to cross the border, making ECOWAS’ military presence in The Gambia a fact. At the same time, the UN Security Council adopted resolution 2337 (2017) condemning Jammeh’s rejection of the election outcome and his attempts to prevent the transfer of power. It also endorsed ECOWAS’ and AU’s decisions to recognize Barrow as the legitimate president of The Gambia and secure a peaceful transition. Crucially, it welcomed ECOWAS’ decision of 17 December 2016, without explicitly authorizing ECOWAS to use force expressing “its full support to the ECOWAS in its commitment to ensure, by political means first, the respect of the will of the people of The Gambia as expressed in the results of 1st December elections.”

Following this, ECOWAS ordered its troops to stop further advances, extended the deadline to Jammeh, and sent the Presidents of Mauritania and Guinea to further mediate and secure the transfer of power. After some tense hours, on the 21^st of January, Jammeh announced his decision to step down observing that it was “not necessary that a single drop of blood be shed.” Following his departure to Guinea, ECOWAS troops entered the Gambian capital, Banjul, to prepare Barrow’s arrival and facilitate his instalment. Thus ended with a legally interesting twist of events the short lived electoral odyssey that dashed Mr. Jammehs’ hope to rule his country for ‘a billion years’.

Use of force and (pro-democratic) Intervention

As is well known, the UN Charter prohibits the use of force with the exception of self-defence and Security Council authorizations to enforcement action. Regional organizations may also use force when authorized by the Council under Article 53 of the Charter. In addition, States themselves may consent to the use of force in their own territory, although there are still lingering questions with respect to who is rightly authorized to give consent, and whether such consent can be given in a situation of a civil war. The ICJ recognizes the possibility of governments to request intervention in their support, but rejects that (armed) opposition groups would be able to do so too (Nicaragua, para. 246).

The main African regional arrangements allow intervention under certain circumstances in the territory of their member states (the AU in: Article 4(j) of the AU Constitutive Act of 2000 and Article 7(1)(e) and (f) of the Durban Protocol (allowing the AU Peace and Security Council to recommend intervention in i.a. situations of war crimes, genocide and crimes against humanity); the ECOWAS in: Article 25(d) and (e) of the 1999 Lomé Protocol, allowing intervention in situations of serious human rights violations or “in the event of an overthrow or attempted overthrow of a democratically elected government”).

In the last 20 years ECOWAS frequently intervened using force in various Africa countries, sometimes controversially given the explicit lack of authorization by the UN Security Council (Gray, p. 418-423). Of particular relevance to the Gambian crisis is ECOWAS’ practice to intervene on behalf of democratically elected governments in Sierra Leone, Ivory Coast and the Central African Republic. The lack of authorization to intervene in some of these situations is regarded as problematic given the text of Article 53 UN Charter, and given the checkered practice (sometimes intervention with Security Council approval after the fact, sometimes with consent of sitting presidents), it’s difficult to conclude that a right to militarily intervene on behalf of democratically elected governments without explicit authorization has been established under (regional) customary international law.

The issue of (unilateral or collective) pro-democratic intervention is related to the issue of consent and the proper/legal authorization to use force. In the past, scholars such as Reisman have argued that the phrasing of Article 2(4) of the UN Charter prohibiting the use of force would allow states to militarily intervene in situations when democracy is at risk by despotic regimes as long as the territorial integrity and political independence of states is guaranteed and in light of the lack of political will of the Security Council’s permanent members to act. Arguably, collective pro-democratic intervention authorized by the Security Council either to restore democracy (Haiti, 1994), or facilitate the installment of a democratically elected president (Ivory Coast, 2011) is regarded as legally acceptable. These two interventions have in common that the situation was determined by the Security Council to constitute a threat to peace and security. Less acceptable have been unilateral interventions partially justified to facilitate an elected president assume power (f.e. Panama, 1989).

The recent Gambian situation raises a number of questions and poses several legal challenges to ECOWAS’ action.

Authorization to use force under Article 53 UN Charter?

Contrary to initial reports, the UN Security Council most assuredly did not authorize the crossing of the border by the ECOWAS contingent on 19 January 2017. According to a news report, the resolution’s initial drafts included a paragraph supporting “ECOWAS in its commitment to take all necessary measures” to ensure the transfer of power to Barrow. Apparently, Russia wasn’t comfortable with this language and pressed for its removal. The resolution’s final text supports ECOWAS’ efforts to help Barrow get into power by political means first. An authorization to use force is arguably also not implicit in the language of resolution 2337, which does not in its preambular paragraphs even make a determination that the situation amounts to a threat/breach of the peace and security in the region, showing that at this point in time the Security Council was not prepared to give such an authorization. Statements from the representatives of Bolivia, Uruguay, and Egypt to the Security Council emphasizing that the situation did not amount to a threat to peace and security and that the resolution doesn’t give express authorization to use force confirm this. A news report, however, suggests that such authorization was formally not necessary given Barrow’s request to ECOWAS to intervene.

Whose Consent?

This bring us to the issue of consent. Here some doubts can be raised with respect to the legality of Barrow’s consent and ECOWAS’ potential responsibility for a breach of the prohibition on the use of force, which as a norm of customary international law would be applicable to the organization as it’s not party to the UN Charter (although the prohibition of Article 2(4) UN Charter would be applicable to individual ECOWAS member states). As is well known, Article 20 of the Articles on State Responsibility (ARSIWA) and of the ILC’s Draft Articles on Responsibility of International Organisations (DARIO) precludes the wrongfulness of an action if consent is given for such an action. In spite of the fact that Barrow had been sworn in as president, it’s doubtful whether he had the authority to give such consent since he was not in a position to exercise effective control over the Government of The Gambia. Against this position, one may argue that since Barrow received wide recognition by ECOWAS, the AU, and the UN as the legitimate Gambian head of state, he was entitled to invite ECOWAS to intervene. Another problem related to the consent may be traced to the form of such consent. Is Barrow’s swearing in speech requesting an intervention sufficiently formal to assume that consent was legally issued, or is an official document, letter, or presidential resolution required? In other words, does a verbal invitation constitute consent? Given the situation at that moment (a solemn, if improvised, ceremony, covered by world media and in attendance of ambassadors of ECOWAS and UN Security Council member states) Barrow’s request to intervene can be given the benefit of the doubt. It’s questionable, however, the extent to which Barrow’s speech contains any indication as to what are the limits within which ECOWAS is consented to intervene, making this aspect of his consent somewhat problematic (Armed Activities – DRC v. Uganda, para. 52).

Consent a priori?

One could argue that Barrow’s consent isn’t even necessary given that The Gambia by becoming party to the AU’s Constitutive Act and the ECOWAS Lomé Protocol has given previous consent to be intervened. Although this is an interesting position, it could be countered that the consent has to be contextual and that the provisions in the AU and ECOWAS instruments don’t give sufficient room for specific situations that are not provided in them. Thus, the ECOWAS Protocol states that intervention is possible in the event of an overthrow or attempted overthrow of a democratically elected government. Arguably that was not the case. Finally, according to article 26 of ARSIWA and DARIO acts contrary to a peremptory norm of general international law (jus cogens) may not be justified by circumstances that would otherwise preclude their wrongfulness, such as consent. Assuming that the prohibition on the use of force, as a norm of customary international law, is also a norm of jus cogens, consenting to an otherwise illegal use of force (because it has not been properly authorized by the UN Security Council or because the consent is somehow vitiated) would be contrary to this norm.

All in all, the situation seems to lead to the conclusion that the legality of ECOWAS’ military intervention is dubious. The verbatim records of the UN Security Council meeting leading to the adoption of resolution 2337, and a joint declaration issued on 21 January 2017 by ECOWAS, the AU, and the UN don’t reflect on the deployment of the ECOWAS military contingent in The Gambia. Although the African practice with regard to jus ad bellum merits attention, the danger is that this latest example of regional intervention will come to reside next to others in the unfortunate category of illegal, yet legitimate interventions, thereby undermining the credibility of the Security Council’s position to engage in regional conflicts through regional organisations under Article 53 of the Charter. The seemingly laconic response to this situation – it would appear nobody cares for the legality or illegality of ECOWAS’s use of force as long as the bad guy was displaced – may further cement the impression that the rule of law (hailed as the prevailing aspect of Barrow’s installation into power and Jammeh’s acceptance of the election results through some political and military arm twisting) is only for those who can rattle the sabers in the right manner and that the prohibition on the use of force is relative.