African regional bodies, are increasingly taking a larger role in promotion of peace and security in their respective regions. This is in stark contrast to previous years, when the main concern of these bodies was economic. Take, for example, the Southern African Development Community (SADC), which on April 5 signed a multimillion-dollar agreement with the European Union geared toward strengthening the SADC’s capacity to promote peace, security and democracy across the SADC region.
Similarly, the East Africa Community (EAC) is in the process of launching a strategic plan that will anchor peace and security sector activities, giving form to the areas of cooperation in addressing regional peace and security threats in East Africa. As these regional organizations expand their mandate into the “peace and security” sphere, it is important to interrogate the legal contours that they may need to navigate in conducting military incursions into member states. Cue the Responsibility to Protect (R2P) principle.
R2P holds that all states have a duty to prevent mass atrocities not only against their citizens but also against other states’ citizens. The origin of this principle may be attributed to then-U.N. Secretary-General Kofi Annan, who in September 1999 challenged U.N. member states to “find common ground in upholding the principles of the [U.N.] Charter, and acting in defence of common humanity.” After several revisions, R2P was formally adopted at a 2005 high-level U.N. World Summit meeting.
R2P has three pillars. The first pillar elaborates on states’ obligation to protect their populations from four mass atrocity crimes (genocide, war crimes, crimes against humanity and ethnic cleansing) while the second pillar provides for the wider international community’s responsibility to encourage and assist individual states in meeting that responsibility. The final pillar empowers the international community to intervene where the state fails to fulfill its obligations under R2P. This intervention should be collective and in accordance with the U.N. Charter.
In this post, I will observe how the intervention by the Economic Community of West African States (ECOWAS) into the 2016-2017 Gambian presidential crisis sought to implement the R2P principle as envisioned by the September 2005 World Summit Declaration. Specifically, I will appraise the ECOWAS-Gambia situation, where the West African regional body used the threat of force to oust Yahya Jammeh from the Gambian presidency. This example suggests that, under international law, an R2P act may be conducted in furtherance of democratic ideals. Additionally, to be valid, an R2P act by a regional organization must have a clear legal mandate from both the regional body and the U.N. Security Council.
The Economic Community of West African States (ECOWAS) was formed in 1975 to further economic cooperation among West African states. In the 1990s, the body added “promotion of democracy and good governance” to its objectives. This addition was tested in 2016 when ECOWAS voted to intervene in the Gambian crisis.
In 2016, Gambia held a presidential election in which the opposition leader, Adama Barrow, defeated the incumbent, Yahya Jammeh. Although Jammeh initially conceded, he rescinded this position a week later, after the electoral body readjusted the votes counted but without changing its earlier position that Barrow was the winner of the elections. Jammeh then deployed the military, which occupied the offices of the Electoral Commission and disrupted the commission’s operations. Fearing for his life, President-elect Barrow fled the country.
In a joint statement released on Dec. 10, 2016, ECOWAS and the African Union (A.U.) condemned Jammeh’s actions. ECOWAS followed this statement by commissioning a delegation to the Gambia to negotiate with Jammeh on his exit, but this delegation was not successful. A second mediation team, led by Nigerian President Muhammadu Buhari, was also unsuccessful by the time it concluded on Jan. 21, 2017. However, in tandem with this second mediation team, ECOWAS commissioned a standby force in the event that the Buhari-led mediation team did not succeed.
On Jan. 14, ECOWAS established the Mission in The Gambia (ECOMIG), whose mandate was to restore democracy in the Gambia. Four days later, the troops constituting ECOMIG camped at the Senegal-Gambia border. In its Resolution 2337 (2017), the U.N. Security Council expressed full support for “the decisions of ECOWAS and the AU to recognize Barrow as President of the Gambia.” With the ECOMIG deployment at the border, Jammeh decided to step down, alleviating any further military incursion by the regional body.
Applying R2P to the ECOWAS Intervention
What lessons on regional organizations’ application of R2P can be gleaned from this intervention?
Under its third pillar, R2P requires that any action taken by the international community must be in accordance with the U.N. Charter. The Charter prohibits use of force by any state, save for self-defense and humanitarian intervention. Even for these exceptions, a state intending to use force against another state must seek approval from the Security Council. This begets two questions: first, whether ECOWAS followed the correct process in exercising R2P; and second, whether ECOWAS’s goal of restoring democracy is a sufficient justification under international law.
Procedural Requirements in an R2P Action
Article 1 of the U.N. Charter provides that the purpose of the United Nations is to maintain international peace and security—and, to that end, to take effective collective measures for the prevention and removal of threats to the peace; and to bring about settlement of international disputes by peaceful means.
Chapter VI of the Charter provides three broad methods of peaceful settlement of disputes—namely, diplomatic methods, such as negotiation and mediation; institutional methods, such as the use of regional organizations; and adjudicative methods, such as arbitration and judicial resort. These methods are favored before resort to use of armed force, and they bind both states and regional organizations. ECOWAS employed some of these methods before resorting to force. In particular, it organized three mediation delegations, all of which were fruitless.
Additionally, the U.N. Charter requires prior approval by the U.N. Security Council before force is used. This requirement was also met: The Security Council, in its Resolution 2337, approved the actions by ECOWAS. However, as noted by some legal commentators, the legality of this resolution may be questioned, as it was passed after the ECOWAS had already resolved to constitute a standby force to respond to the Gambian crisis.
Retroactivity of U.N. resolutions remains a gray area. While the International Court of Justice declined to give retroactive effect to a Security Council resolution in Libya v U.K. (1998), U.N. practice has at times given effect to the said retroactive resolutions. Examples include the first ECOWAS intervention in Liberia on Aug. 7, 1990, and the ECOWAS intervention in Sierra Leone in February 1998. From this, it then follows that state practice discounts the strict legal application of retroactivity in favor of the overall success of the military intervention.
“Restoration of Democracy” as a Reason for R2P?
As explained above, the purpose of R2P is to protect people from mass atrocity crimes. The objective of ECOWAS’s action was to “restore democracy” in the Gambia. Does this fall under the meaning of R2P?
The regional framework comprising ECOWAS lists protecting democracy as a permissible reason to conduct an R2P action. In its Protocol on Democracy and Good Governance, ECOWAS introduced, as part of its regional mandate, pro-democratic intervention—that is, interventions that increase the probability of people to be governed in a political structure and by people of their choice. The protocol lists 12 shared constitutional principles, including accession to power through free, fair and transparent elections and zero tolerance for power obtained by unconstitutional means. In addition, the protocol empowers ECOWAS, with respect to democratic interventions, to implement sanctions ranging from suspension from ECOWAS to any other appropriate intervention.
Internationally, the answer is less clear. Indeed, the U.N. Security Council’s acceptance of ECOWAS-led democratic interventions in the group’s member states is inconsistent. While the Security Council unanimously lauded ECOWAS’s military intervention in Sierra Leone in 1998, dissent from the United States led the council to reject a similar intervention by ECOWAS into Liberia in 1998.
In other words, whether or not an R2P act will be considered valid is in essence determined by the UN Security Council, a political body. It seems that—based on previous state practice and specifically on the actions by ECOWAS—although an R2P act requires a legal mandate (such as approval from the Security Council), ultimately its validity remains a political question.
The ECOWAS pro-democratic intervention in the Gambia has created precedent that other regional bodies in Africa, such as SADC and EAC, may choose to follow as they expand their mandate to deal with peace and security in their respective regions. If the ECOWAS example is followed, this will have a net effect of extending the R2P principle beyond the traditional pillar of “protection from mass atrocities” to include pro-democratic intervention.