By Prof. Mike Ozekhome, SAN, CON, OFR, FCIArb, LL.M, Ph.D, LL.D, D.Litt
INTRODUCTION
we have in part 1 of this thesis, used the allegory of a man with a hunch to liken Nigeria’s needless push for ECOWAS intervention in the Nigerien coup militarily. We brought out historical perspectives to show why Nigeria is not a high moral ground to do so. The questions of self-determination and powers of the ECOWAS to militarily intervene in the internal affairs of member states were discussed. Let us now take our inquiry further.
MEANING OF INTERVENTION
In international law, the concept of “intervention” is tied to the notion of “interference”. It refers to when a State intervenes in the internal affairs of another State in violation of the latter’s sovereignty.
Such intervention is prohibited by the UN Charter under the principle of non-intervention, or non-interference, which posits that States should not “intervene in matters to preserve the independence of weaker states against the interventions and pressures of more powerful ones.” This concept is presented as the basis for international relations and therefore applies to interstate relations; but not to relief activities carried out by impartial humanitarian organizations.
A military intervention can open up new vistas for the reorganization of a political system. Military intervention by outside forces into the affairs of sovereign states is strictly limited in international law and diplomacy. The UN through its Security Council, has since the end of the Cold War begun to increasingly classify gross human rights violations in intrastate and sub-state armed conflicts as a threat to world peace and international security. It has thus mandated humanitarian interventions on the basis of a so-called responsibility to protect (R2P). Such peace-enforcement missions can easily trigger a regime change. Nowadays, these include substantial state-building efforts under external oversight; but rarely if ever, lead to successful democratization of a country.
FORMS OF INTERVENTION
In international relations, intervention is defined as using force to interfere in another Nation’s affairs in a way that affects that Nation’s control over its territory or population. Intervention can take on many forms, depending on the conflict or issue that occurs.
While military force is the most well-known and historically used form of intervention, there are several different ways that forcible intervention may be used. In fact, one of the most compelling is Economic intervention – which delays mostly with sanctions. There is also political interference.
TREATY-BASED CONSENT TO INTERVENTION
Russel Buchan and Nicholas Tsagourias (both Senior Lecturer and Professor respectively, of the University of Sheffield, wrote extensively on the issue of “Treaty-based consent”, regarding the powers of the AU and the ECOWAS to intervene militarily in the affairs of member states. In an article titled, “The Niger Coup and the Prospects of ECOWAS Military Intervention: An International Law Appraisal”, they wrote (and permit me to copiously quote) as follows:
“Since Niger is a member of ECOWAS and the African Union (AU), we first consider whether their constitutive treaties and related legal instruments empower them to intervene militarily within their member States. If this is the case, Niger would be deemed to have granted its consent to intervention by signing and ratifying the respective treaties or instruments.
“With regard to ECOWAS, the constitutive treaty signed in 1975 and revised in 1991 does not provide for such a right. In 1978, a Protocol on Non-Aggression was signed according to which ECOWAS member States vow not to use force or aggression against other member States. The 1981 Protocol Relating to the Mutual Assistance on Defence provides for collective self-defence in cases of armed threat or aggression directed against any ECOWAS member State (arts. 2 and 3). The 1999 Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security establishes a collective security system. It lays down the guiding principles of the mechanism (arts. 2 and 3) and lists the circumstances which set it in motion among which is the overthrow or attempted overthrow of a democratically elected government (art. 25).
“Among the organs established to implement ECOWAS’s peace and security mandate are the nine-member Mediation and Security Council and ECOMOG (ECOWAS’s Cease-Fire Monitoring Group). The Mediation and Security Council can make decisions by a two-thirds majority on all matters relating to peace and security including the authorization of all forms of intervention and the deployment of political and military missions (art. 10). ECOMOG consists of civilian and military standby forces charged, among others, with the following missions: peacekeeping and restoration of peace; humanitarian intervention in support of humanitarian disaster; enforcement of sanctions; peacebuilding, disarmament, and demobilization; policing activities; and any other operations as may be mandated by the Mediation and Security Council (art. 22).
“It follows that ECOWAS has the power to intervene militarily in a member State where a democratically elected government is overthrown. Niger has signed and ratified the above instruments and therefore has consented to such intervention. Consequently, ECOWAS’s threat to use force is lawful because it is based on a treaty right.
“Any decision to actually use force should be taken by the Mediation and Security Council with the requisite majority. However, as noted earlier, there is opposition to such a course of action. If ECOWAS or certain member States acting on its behalf were to use force to restore the previous government in contravention of the voting requirements, the action would be unlawful. The stalemate could be overcome by seeking SC authorization under Article 53(1) of the UN Charter. If the SC authorized ECOWAS or any of its member States to use force to restore the deposed government, the action would be lawful.
“This raises the question of the relationship between ECOWAS and the SC. Article 52 of the 1999 Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security does not impose an obligation on ECOWAS to obtain SC authorization but only to inform the UN of any military intervention undertaken in accordance with the Protocol. The reason that such interventions are lawful is because member States have given their prior consent. However, if ECOWAS is unable to make such a decision due to disagreement among its member States, it can appeal to the SC. Moreover, SC authorization will bring into play Article 103 of the UN Charter according to which UN obligations prevail over all others.
“Regarding the AU, revised Article 4(h) of the AU’s Constitutive Act provides for the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity as well as a serious threat to legitimate order to restore peace and stability to the Member State of the Union upon the recommendation of the Peace and Security Council.
“Article 4(h) plays a dual role: it empowers the AU to intervene militarily within member States in cases where the internal legitimate order is threatened; and is also an expression of the consent of AU member States to intervention by the AU. Consequently, AU interventions do not require prior SC authorization but are lawful on the basis of treaty-based consent.
“There are however a number of issues that require further explanation. First, Article 4(h) justifies military intervention to protect the legitimate order against threats. The legitimate order may refer to the constitutional government regardless of whether it is democratic according to western liberal notions of democracy or the government that is in power, as the AU’s reluctance to act against the Gaddafi regime demonstrates. However, it is interpreted, it covers the case of Niger. Second, there is the question of whether Niger’s consent to intervention by becoming a member of the AU is perpetual or should be granted de novo. In our opinion, such consent granted in a constitutional treaty is perpetual until Niger withdraws from the AU. Third, there is the question of the relationship between ECOWAS and the AU regarding military intervention.
“ECOWAS, other African sub-regional organizations, and the AU form the African Peace and Security Architecture (APSA). The relations between sub-regional organizations and the AU are characterized by the principle of subsidiarity and the principle of primacy of the AU and its institutions. The AU’s primacy is recognized in Article 16 of the Protocol Establishing the Peace and Security Council and the Memorandum of Understanding with regional communities. With regard to the AU, decisions to intervene are taken by the AU’s Peace and Security Council (PSC) on the basis of consensus or in the absence of consensus by a two-thirds majority (art. 8(13)). Under the Protocol Establishing the Peace and Security Council of the AU, the intervention is performed by the African Standby Force (ASF), which consists of contingents from AU regional economic communities including ECOWAS (arts. 4, 6, 7, and 13).
“This means that ECOWAS can appeal to the AU but the AU can also be seized of the matter of its own accord. The AU can authorize any member State or coalitions of States to use force to restore democracy. It can also authorize ECOWAS or ECOWAS member States to do so. These options are quite remote due to a reported lack of consensus within the AU on military action. If consensus is somehow achieved and the AU decides to intervene militarily by deploying the ASF, one issue that may arise is whether States opposed to the use of force should consent to their troops participating in the operation”.
What is clear from this seminar dissertation by the learned scholars is that both the ECOWAS and AU Member States must be consensually ad idem for such military deployment to take place. In the case of AU’s PSC, where there is failure to obtain a consensus (Art 16), at least two-third majority of members states must agree to such intervention (Art 8.13). For ECOWAS, under Art 10 of the 1981 Protocol, two-third majority must agree. This scenario is all lacking in the Nigerien power play. Many ECOWAS and AU member states are stringently against such military action. So, such a plan has collapsed like a pack of cards.
MANY REASONS NIGERIA, A HUNCHED BACK CRIPPLE SHOULD NEVER TRY TO LEAD A WAR OF ATTRITION
Nigeria is one of the most porous and territorially vulnerable countries in the world. With Niger Republic alone, seven of Nigeria’s states share common boundaries, to wit, Sokoto, Kebbi, Katsina, Zamfara, Jigawa, Yobe and Borno. The saying is apt that he who brings an ant-infested piece of firewood into his house should not complain when he is obliged a visitation by a colony of feasting lizards. A war in Niger would simply open up our already gaping borders and lead to an ungovernable influx of refugees. Nigeria, a country already bloated and asphyxiating by an uncontrollable population of 224.4 million people as at 1st July, 2023 (by UN data projection), should not try out such a toxic experiment.
To invade Niger using ECOWAS as a façade and veneer will simply approximate to a declaration of war between Nigeria and Niger, a country whose proximity to Nigeria through seven states will surely be on the precipice. (To be continued).
