By Prof. Mike Ozekhome, SAN, CON, OFR, FCIArb, LL.M, Ph.D, LL.D, D.Litt
INTRODUCTION
Our lengthy dissertation on this vexed issue took us in part 4, through the gamut if threat of war and sovereignty under international law; the UN and Regional Agencies and international laws and instruments that govern wrongful intervention. This is th concluding part of our discourse.
The UN Charter prohibits the use of force which is almost consistent with subsection (7) of the same Article that the UN do not intervene in essential domestic affairs. The said section provides as follows:
“The Security Council and the General Assembly adopted many resolutions that contained implicit references to Article 2(4). In a number of resolutions, adopted by both organs, they affirmed the principles of territorial integrity and political independence of States or deplored their violation and sought full respect for the said principles. Many resolutions adopted by the Council and by the Assembly reaffirmed the inadmissibility of territorial acquisition by means of resort to force”.
These provisions are almost similar to those of the African Union Constitutive Act which provide for the principle of non-interference in Article 4 (g). It provides as follows:
“The Union shall function in accordance with the following principles: non-interference by any Member State in the internal affairs of another”.
African Union Constitutive Act Article 4(h) also provides for situations where ECOWAS shall interfere in the internal affairs of member State as follows:
“…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”.
There are no war crimes, genocide and crimes against humanity being perpetuated in Niger Republic to warrant the proposed intervention by ECOWAS. The action of ECOWAS’s proposed Military intervention in Niger Republic is, expressly by the above provisions of the UN’s Constitution and the African Union Constitutive Act, are not supported by International laws.
The other intervention which the ECOWAS has so far proposed and which appear to be within its powers when it gave the junta seven days’ ultimatum to restore normalcy. This is more within its economic powers which includes:
- Closure and monitoring of all land borders with the Niger Republic and reactivation of the border drilling exercise;
- Cutting off Electricity supply to the Niger Republic;
- Mobilising international support for the implementation of the provisions of the ECOWAS communiqué;
- Preventing the operation of commercial and special flights into and from Niger Republic;
- Blockade of goods in transit to Niger especially from Lagos and eastern seaports of Nigeria; and
- Embarking on sensitization of Nigerians and Nigeriens on the imperative of these actions, particularly via social media.
These are acceptable means of pressuring a member state to restore its democratically elected government; rather than pursuing a Military intervention which would ultimately lead to the loss of lives and properties. This shall further deepen the rancor between members’ states, particularly as the military junta in Burkina Faso and Mali have declared support for Niger Republic.
ECOWAS AND DECLARATION OF WAR
A declaration of war is a formal act by which one state announces an impending war activity against another. The declaration is a performative speech act (or the signing of a document) by an authorized party of a national government, in order to create a state of war between two or more states.
LEGALITY OF DECLARATION OF WAR
The legality of who is competent to declare war varies between nations and forms of government. In many nations, that power is given to the head of state or sovereign. In other cases, something short of a full declaration of war, such as a letter of marque or a covert operation, may authorise war-like acts by privateers or mercenaries. The official international protocol for declaring war was defined in the Hague Convention (III) of 1907 on the Opening of Hostilities.
Since 1945, developments in international law such as the UN Charter, which prohibits both the threat and the use of force in international conflicts, have made declarations of war largely obsolete in international relations; though such declarations may still have relevance within the domestic laws of the belligerents or of neutral nations. The UN Security Council, under powers granted in articles 24 and 25, and Chapter VII of the Charter, may authorize collective action to maintain or enforce international peace and security. Article 51 of the UN Charter also states that: “Nothing in the present Charter shall impair the inherent right to individual or collective self-defence if an armed attack occurs against a state.”
Declarations of war have been exceedingly rare since the end of World War II. Scholars have debated the causes of the decline, with some arguing that states are trying to evade the restrictions of international humanitarian law (which governs conduct in war) while others argue that war declarations have come to be perceived as markers of aggression and maximalist aims.
DENIGRATION OF FORMAL DECLARATION OF WAR BEFORE WWII
Even in classical times, Thucydides had condemned the Thebans, allies of Sparta, for launching a surprise attack without a declaration of war against Plataea, Athens’ ally – an event that began the Peloponnesian War.
The utility of formal declarations of war has always been questioned, either as sentimental remnants of a long-gone age of chivalry or as imprudent warnings to the enemy. For example, writing in 1737, Cornelius van Bynkershoek judged that “nations and princes endowed with some pride are not generally willing to wage war without a previous declaration, for they wish by an open attack to render victory more honourable and glorious.” Writing in 1880, William Edward Hall judged that “any sort of previous declaration therefore is an empty formality unless the enemy must be given time and opportunity to put himself in a state of defence, and it is needless to say that no one asserts such a quixotism to be obligatory.”
The UN has issued Security Council Resolutions that declared some wars to be legal actions under international law, most notably Resolution 678, authorizing the 1991 Gulf War which was triggered by Iraq’s invasion of Kuwait. UN Resolutions thus authorise the use of “force” or “all necessary means”.
DEPLOYMENT OF NIGERIAN SOLDIERS IN NIGER
Nigeria is not only a State in the ECOWAS. It is also subject to the provisions of the Charter of the United Nations. The sovereignty of Nigeria does not exceed Nigeria. However, under provisions of the Constitution earlier cited, the President of Nigeria is permitted to deploy Nigerian Armed Forces on combat duty outside Nigeria if he is satisfied that the National Security of Nigeria is under imminent threat or danger.
The recent military coup in the Republic of Niger does not pose or threaten the National Security of Nigeria. Nigeria is not at war with Niger. Further, the military coup in Niger is a domestic affair of the Republic of Niger.
SECURITY IMPLICATIONS OF ECOWAS MILITARY INTERVENTION
- Potential Escalation of Violence: Military interventions, even when conducted with the best of intentions, can escalate violence and trigger unintended consequences. In the Niger Republic, an ECOWAS intervention might lead to clashes between the intervention forces and elements loyal to the coup leaders. This could escalate into a broader conflict, exacerbating the existing security situation in the sub-region.
2. Fragile Regional Stability: The West African region is interconnected, and instability in one country can easily spill over into neighbouring states. ECOWAS’ intervention could potentially destabilize the broader region, as extremist groups and criminal networks may exploit the chaos to further their interests.
3. Repercussions from Coup Supporters: A military intervention by ECOWAS might garner support from some segments of the population that oppose the coup. However, there are likely individuals and groups who supported and still support the coup. These might resist the intervention. This could lead to localized conflicts and further division within Niger society.
4. Humanitarian Crisis: Military interventions often displace civilians and disrupt essential services. Niger is already grappling with humanitarian challenges, including food insecurity and displacement due to factors such as climate change and violence. There are thousands of Nigerians in IDP in Niger following the insurgency and banditry in Northern Nigeria.
5. Impact on Regional Counter-terrorism Efforts: Niger is a key player in the fight against extremist groups such as Boko Haram and al-Qaeda in the Islamic Maghreb (AQIM). ECOWAS’ intervention could disrupt counterterrorism operations, allowing these groups to exploit the security vacuum and expand their activities.
6. Challenges of Exit Strategy: Military interventions often face challenges in terms of exit strategy and ensuring long-term stability after the intervention forces withdraw. Without a well-defined plan for political transition and institution building, the intervention’s impact might be short-lived.
7. Hydroelectric power: the Kainji Dam that supports our hydroelectric power passes through Niger. Unilaterally cutting the power supply to Niger is risky because a retaliatory damming of the River Niger by Nigeriens will threaten our source of power supply.
RECOMMENDATIONS
CONSIDERATIONS FOR A BALANCED APPROACH
While the security implications of ECOWAS’ potential military intervention are indeed illegal and unconscionable, it is essential to recognize that the regional organization faces a complex dilemma. Balancing the need for stability and democratic governance with the potential risks of military intervention requires careful consideration. Here are some recommendations that should be taken into account in resolving this present impasse:
- Diplomatic Efforts: Before resorting to military intervention, ECOWAS should exhaust all diplomatic avenues to encourage dialogue and negotiations between the coup leaders and civilian representatives. Mediation and diplomatic pressure could potentially lead to a peaceful resolution.
- Robust Intelligence Gathering: Accurate and timely intelligence gathering is crucial to understanding the dynamics on the ground. ECOWAS should collaborate with intelligence agencies to assess the extent of support for the coup, potential sources of resistance, and the presence of extremist elements.
- Comprehensive Conflict Assessment: ECOWAS should conduct a thorough conflict assessment to understand the potential drivers of violence and instability in Niger. This assessment should take into account ethnic, religious, and political tensions that could be exacerbated by intervention.
- Collaboration with Regional Partners: Collaborating with other regional and international organizations, such as the African Union and the United Nations, can provide a more holistic approach to addressing the crisis. This can help distribute the burden of responsibility and expertise.
- Humanitarian Preparedness: Any military intervention should be accompanied by a comprehensive humanitarian response plan. This plan should address potential displacement, food shortages, and medical needs to prevent the exacerbation of existing humanitarian challenges.
CONCLUSION
The situation in the Niger Republic following the military coup presents a complex set of challenges for both the country and the broader West African region. While a military intervention by ECOWAS might seem like a solution to restore democratic governance and stability, the security implications must be carefully considered. Balancing the need for intervention with the potential risks of escalation, regional instability, and humanitarian crises requires a well-thought-out approach that encompasses diplomacy, intelligence gathering, and collaboration with regional partners. Ultimately, the goal should be to restore stability while minimizing the negative security consequences that could arise from a hasty intervention.
The delicate situation reminds me of the man who has tsetse fly perching on his scrotum. He must skillfully apply force to kill it without undermining and breaking his scrotum. It is also akin to removing the bull from the China shop in such a way that no damage is done to the bull, the China wares, the owner and the China shop. (CONCLUDED).
