It has been almost a month since predominantly Senegalese troops entered The Gambia as part of an ECOWAS intervention after long-term president Yahya Jammeh had refused to accept the results of the December 2016 elections. ECOWAS troops remain in the country until this day in order to support newly-elected president, Adama Barrow, in establishing and maintaining public order.
The case has been widely discussed as it raises a number of questions concerning the use of force in general, the right to intervention by invitation and authorizations by regional organizations (see here, here, or here). In particular, it shows that, if the circumstances admit it, the international community is more than willing to accept the use of force to establish or re-establish democracies. The following post will focus on this debate and briefly describe how it evolved until this very day.
Revisiting an Old Debate: Reisman vs. Schachter
The debate on the possibility to use force can be traced back to W Michael Reisman’s editorial comment “Coercion and Self-Determination: Construing Charter Article 2(4)” in the 1984 American Journal of International Law. Reisman argued that, since the UN Charter’s prohibition on the use of force “was never an independent ethical imperative of pacifism” but closely tied to the functioning of the collective security system (which he described as having fallen into desuetude), one had to look for a different framework on the use of force: His seemingly simple Gretchenfrage was whether force enhanced self-determination of the affected people(s) or not, thereby radically re-interpreting Article 2(4).
On this basis, Reisman essentially argued both in favour of outright pro-democratic regime change (a right to establish democracies) and a right to re-establish democracies after non-democratic overthrows. In so doing, Reisman laid bare one of the contradictions of the UN Charter’s prohibition on the use of force: In case of a coup d’état, an illegitimate group (e.g. a military junta) could gain control of the government and subsequently hold on to its power on the basis of foreign support without violating article 2(4) and against the will of the affected people. At the same time, a foreign intervention to re-establish the (perhaps democratic) status quo ante would require an authorization by the Security Council (which was not to be expected back in 1984), or have to be based on the right to self-defence to be lawful. As Reisman put it, this was a “rape of common sense.”
Oscar Schachter, writing in the same AJIL issue, wholeheartedly rejected Reisman’s argument in favour of Regime Change as an “Orwellian” interpretation of Article 2(4):
This is surely not the time for international lawyers to weaken the principal normative restraint against the use of force. The world will not be made safe for democracy through new wars or invasions of the weak by the strong.
At the same time, however, Schachter did “strongly agree” with the critique on external support for oppressive regimes and refused to challenge Reisman’s argument on the possibility of using force to re-establish democracies.
The “Emerging Right to Democracy” and Restoring Democracies by Force
Much has happened since then. The end of the Cold War has brought an end to the deadlock in the Security Council and led Thomas M Franck to pronounce his thesis on an “emerging right to democracy.” Back in 1991, in a case similar to the scenario described by Reisman, the Security Council refused to recognize the military junta ousting the democratically-elected president of Haiti Bertrand Aristide and ultimately even decided to authorize a military operation to bring him back to power in July 1994.
Some three years later, the second historic precedent for a right to re-establish democracy was created when ECOWAS troops already present in Sierra-Leone forcibly reinstated the country’s first democratically-elected Ahmed Tejan Kabbah after the May 25 Coup d’état (for further reading, see the excellent article by Nowrot and Schabacker). While there was no authorization for this action, the Security Council condemned the overthrow, demanded that the military junta should step down in favour of Kabbah’s government, and subsequently welcomed “the fact that the rule of the military junta has been brought to an end”. While the lawfulness of the use of force by regional organizations absent a Security Council authorization is commonly rejected, some understand this presidential statement as an ex post justification. Then-Secretary General Kofi Annan, referring to Sierra-Leone, also made it clear that:
[i]ncreasingly across the world, it has become an established norm that military coups by self-appointed juntas against democratically-elected governments are simply not acceptable.
The last example to be mentioned at this point is the 2011 crisis in Cote d’Ivoire, where the Security Council urged “all the Ivorian parties and other stakeholders — including the security forces — to respect the will of the people and the election of Alassane Ouattara as President of Côte d’Ivoire” – yet another clear indication of the Security Council’s readiness to take sides in favour of a democratically-elected head of state.
Enter The Gambia
Security Council Resolution 2337 on The Gambia bears a striking resemblance to this formulation, as it:
[u]rges all Gambian parties and stakeholders to respect the will of the people and the outcome of the election which recognized Adama Barrow as President-elect of The Gambia and representative of the freely expressed voice of the Gambian people as proclaimed by the Independent Electoral Commission.
The Gambia stands somewhat between pro-democratic regime change and re-establishing democracies. There was no democracy to be re-established in the first place, since Barrow had never assumed his office effectively. What happened can thus be described as a combination of what happened in Haiti, Sierra Leone, and Cote d’Ivoire.
On the one hand, the presidency of Adama Barrow was inter alia secured and consolidated by foreign forces outside the country. On the other, the legal basis for ECOWAS’ intervention was not an ex ante or ex post authorization by the Security Council but, the request for military assistance by Adama Barrow who had been sworn-in just hours before outside of the territory of The Gambia. A passage including the famous “all necessary means” formula had been dropped upon the request of Egypt, Russia, and Bolivia. Nevertheless, the United Kingdom and Russia made it clear that Barrow, may request military assistance if diplomatic means of dispute settlements fail. (On a side note, one should also mind the stark contrast to the international community’s condemnation of the 1989 US invasion in Panama, which was also based on the invitation of an elected, but not yet sworn-in president (Guillermo Endara)).The Security Council thus merely expressed “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.”
The Right to Re-Establish Democracies has one More Textbook Case
Needless to say, the significance of the international community’s reaction in The Gambia and the other above-mentioned cases should not be exaggerated. As these were rather isolated events, it is difficult to distil clear and uniform practice on the “right to democracy”-thesis in general and the use of force to establish or restore democracies in particular. What happened in The Gambia is not part of a larger international trend. Nevertheless, it shows that – if the circumstances warrant it, the international community, first and foremost the Security Council, is willing to act as an advocate for forcible democracy promotion.