Bolarinwa Adediran
Soldiers once loyal to Ivory Coast’s President, Alassane Quattara, recently mutinied over unpaid bonuses. The soldiers, many of whom had fought to bring Quattara to power during a decade-long civil war rebelled after a spokesman for the mutinous group agreed to drop demands for the outstanding bonus of seven million CFA francs owed to the soldiers. Although the fear that the mutiny could spark a renewal of civil unrest in the country has appeared largely unfounded, the revolt, the second in four months, highlights the precarious nature of peace and stability within the West African region and further legitimises ECOWAS’ often criticised interventionist measures in the affairs of its member states. Almost immediately after the news broke, ECOWAS in no uncertain terms condemned the soldiers’ action and even reminded the mutineers of their responsibility to protect.
ECOWAS’ willingness to intervene diplomatically and, if necessary, militarily, in the affairs of its member states has been a subject of controversy. Critics insist that some of the provisions of the ECOWAS Treaty and its Protocols are in conflict with “superior” international law, i.e., the UN Charter. It is generally accepted that the authority of Charter supersedes, where the provisions of any regional or sub-regional treaty is in conflict with the UN Charter. In this case, Article 2(7) of the UN Charter which prohibits interference in the domestic affairs of states appears to be in conflict with Article 1(C) of the ECOWAS Protocol on Good Governance which promotes interference in member states elections.
In an article in The Conversation on January 20, 2017, Aidan Hehir assessed the legality of ECOWAS’ planned military action in The Gambia. Hehir concludes that while legitimate, the actions of ECOWAS were nonetheless illegal. This is principally because ECOWAS’ action would have been without the consent of the host state—even though it was debatable whether Yahya Jammeh’s government could have been considered legitimate following his election defeat.
Critics point out that the UN Charter only recognises two justifications for the use of force by states– under Article 51 provisions of the Charter and under Chapter VII powers of the Security Council –yet, it is the case that states sometimes explore creative ways to interpret these rules on the use of force. For instance, Israel justified its pre-emptive strike against Iran’s nuclear facility in 1981 in such terms. The United States also made similar claims while trying to legitimise its invasion of Iraq in 2003. While these claims by Israel and the US were roundly rejected by the international community, the case could be made for self-defence in response to threats to peace that are triggered by refugee problems. There are indeed several examples where the proximity to the conflict has had a direct impact on the stability of states within the region. The 1994 Rwanda crisis is an often cited case. More than 1.6 million Rwandans sought refuge in neighbouring Democratic Republic of Congo (former Zaire) in the aftermath of the genocide; among these were thousands of Hutu genocidaires. The genocide destabilised countries within the Great Lake region. This could have been a source of legitimacy– and to a certain degree—legality for ECOWAS’ action in The Gambia in particular.
One of the interesting issues that emanated from the crisis in The Gambia was ECOWAS’ reluctance to act without the Security Council authorisation. It appeared to international observers that ECOWAS implicitly accepted by its actions in The Gambia that it was unconvinced about the legitimacy and the congruence of its planned action with international law.
Yet, there is extensive legal authority conferred by ECOWAS series of Protocols for its actions in The Gambia. For instance, Article 1(C) of the 2001 ECOWAS Protocol on Democracy and Good Governance mentioned earlier provides the basis for regional interference in elections since it explicitly declares the intolerance of the organisation for power obtained or maintained by unconstitutional means. Article 9 of the same Protocol instructs candidates who lose elections to accept defeat. But by far the most empowering of its protocols is Article 10(C) of the Protocol Relating to the Mechanism for Conflict Prevention which allows the Mediation and Security Council to authorise all forms of intervention and even allows it the flexibility to decide the nature of such political and military missions. Furthermore, ECOWAS intervention in The Gambia could have had its legal basis in customary international law. Regional organisations have a long history of reacting to threats to peace and stability in their region with and without the consent of the host state.
ECOWAS itself has an extended history of intervening in the affairs of its member states. Although it was founded as an economic organisation, since the 1990s when it concluded that peace and security within the region were central to economic integration and development, ECOWAS has adopted a more interventionist outlook in addressing regional political and security issues.
But more than these, the legitimacy of regional organisations to authorise actions that contribute to the maintenance of peace within their region predates the founding of the UN. An example is the Act of Chapultepec, which Latin American states had signed before the San Francisco Conference in 1945. I argue that it is an anomaly that regional security concerns should be subject to Security Council authorisation. It is curious that regional actors like ECOWAS continue to show some reticence when reacting to threats to regional order and peace because of concerns that planned actions could violate the provisions of the UN Charter. This is even more difficult to accept given that the Security Council has shown itself fractured by realpolitik over the years. Often times, its decisions have been informed by geopolitical considerations rather than the humanitarian consequences on the local populace.
The Council is undemocratic and its reluctance to adapt its membership and procedures to reflect contemporary realities is a source of increasing legitimacy deficit. The reality is that the urgency to address evolving crises in sub-Saharan Africa cannot be felt by a privileged member of the Security Council whose peace and security are not immediately threatened. ECOWAS and other regional organisations would do well to ignore concerns about the legality of their actions in the face of existential threats. Moreover, would ECOWAS and other regional organisations not be justified in contravening the provisions of the Charter to address immediate threats when the five permanent members of the Security Council regularly violate the Charter for less noble reasons?
- Adediran is a PhD Candidate at the University of Manchester, United Kingdom
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