The Niger Coup and the Prospect of ECOWAS Military Intervention: An International Law Appraisal
On 26 July 2023 the Nigerien military, led by the Head of the Presidential Guard General Abdourahamane Tchiani, seized power from the democratically elected president, Mohamed Bazoum, and suspended the constitution. President Bazoum, along with his family, have been placed under house arrest and are reportedly living under austere conditions. Explanations for the coup vary. Some suggest the military (and in particular General Tchiani) was disgruntled after being side-lined by the president. Others suggest it was because of growing concerns over poverty and security in Niger. While others claim that Russia is deliberately fomenting civil unrest in a former French colony as part of its wider confrontation with the West.
On 30 July, the Economic Community of West African States (ECOWAS) imposed sanctions against the military junta and gave it a one week ultimatum to reinstate President Bazoum or face military intervention. On 1 August Burkina Faso and Mali, both ruled by military juntas, warned ECOWAS that they would consider any military intervention in Niger a “declaration of war” against them.
With its ultimatum passing, on 10 August ECOWAS issued a statement announcing the establishment of a “standby force” and again warned the military junta that “no option is off the table including the use of force as the last resort.” This seems to amount to a threat of force; there appears to be an intention to use force if the demands are not met.
In a similar incident in 2016, ECOWAS threatened to use force in The Gambia after the sitting president Yahya Jammeh refused to accept that he lost the presidential election to Adama Barrow. Subsequently, Senegal (an ECOWAS member) used force in The Gambia, which precipitated a transfer of power from Jammeh to Barrow. The military junta in Niger, however, appeared to brush off ECOWAS’s threat when, on 10 August, it declared a new government in Niger and insisted that the ousted president would be prosecuted for “high treason.”
The prohibition on the threat or use of force—the principle of non-use of force—is a “cornerstone” of international law and enshrined in Article 2(4) of the 1945 UN Charter and customary international law (Armed Activities, para. 148). The customary iteration of this principle binds international organizations (including regional and sub-regional ones) as international legal persons or through their member States. This means that ECOWAS as an international organization with legal personality is bound by the customary law principle of non-use of force whereas its member States are bound by Article 2(4) of the UN Charter (as UN members) and customary law.
The Legality of ECOWAS’s Threat of Force
This post addresses whether the threat of force by ECOWAS to restore constitutional order in Niger is lawful under international law. This depends on whether the projected use of force is lawful. As the International Court of Justice (ICJ) opined in its Nuclear Weapons Advisory Opinion: “The notions of ‘threat’ and ‘use’ of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal—for whatever reason—the threat to use such force will likewise be illegal” (para. 47).
The UN Charter provides for two exceptions to the prohibition on the use of force: the use of force by way of self-defence (art. 51 of the UN Charter); and Security Council (SC) authorization to use force (Chapter VII of the UN Charter), which also extends to regional organizations (UN Charter, art. 53(1)). Neither of the above possibilities applies to the case at hand. There was no armed attack to trigger the right of individual or collective self-defence and, while the SC has authorized regional organizations to use military force before, it has yet to be seized of the situation in Niger let alone authorize the use of force. This leaves two possible international legal bases on which ECOWAS can threaten or use force in Niger: (i) consent; and (ii) the doctrine of pro-democratic intervention. Each will be considered in turn.
Consent
Consensual interventions (military or otherwise) do not violate Article 2(4) of the UN Charter; they are lawful ab initio. Consent to intervene can be treaty based or ad hoc (Armed Activities, paras. 42-54 and 92-105). We consider the two possibilities in turn.
Treaty-based Consent
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 (Buchan and Tsagourias, p. 170-171). 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 (Buchan and Tsagourias, p. 176).
Ad Hoc Consent
International law accepts interventions at the invitation of host governments because the invitation is an expression of the State’s sovereign will (Paramilitary Activities, para. 246). State practice is quite rich in this regard, such as the United States’ military action in Iraq against ISIL at the request of the Iraqi government and the French and Chadian military intervention in Mali in 2012-2013 to support the Malian government in its fight against Islamists. The AU’s Constitutive Act also recognizes in Article 4(j) “the right of Member States to request intervention from the Union in order to restore peace and security.”
In order for host State consent to justify external military intervention it should be valid, free, precede the action, and be specific (Armed Activities, paras. 42-54 and 92-105). Consent is valid if it is granted by an authority that can express the will of the State for international law purposes. Traditionally, international law has given prominence to the factual criterion of effective control in that only the government or authority that exercises effective control over a State’s territory and people can issue such an invitation, a test that applies regardless of its representative or democratic character (Doswald-Beck). In the case of Niger, this appears to be the military junta which will not, of course, invite foreign intervention.
Over time, international practice seems to have moved away from the effective control test because the constellation of power is not always clear-cut in times of civil unrest and, perhaps more importantly, the political attitude of States has changed by placing greater emphasis on the democratic legitimacy of governments (Buchan, chapter 3). For example, the Malian government could lawfully request outside intervention because of its democratic credentials even though it did not exercise effective control over large parts of its territory and actually invited foreign troops to help re-establish such control. With regard to Niger, on 26 July 2023 the Security Council issued a press release referring to President Bazoum’s administration as the “legitimate government of the Republic of Niger.”
If this view is followed, Niger’s deposed President Bazoum possesses the constitutional authority to invite external intervention from the AU on the basis of Article 4(j) or from any other State or international organization. On 3 August 2023, President Bazoum wrote an op-ed for The Washington Post and said: “I call on the U.S. government and the entire international community to help us restore our constitutional order.” As explained, for consent to provide a valid legal basis for force it must be specific, namely, there must be a specific request to use force to achieve a particular objective.
As is apparent from the op-ed, President Bazoum did not specifically request external actors to use force to restore constitutional order. Yet, can it be argued that if this statement is assessed in context it amounts to an implicit invitation to use force? The ICJ, for example, interpreted the statement included in an agreement between the Democratic Republic of the Congo and Uganda to “co-operate in order to insure security and peace along the common border” as amounting to consent to military intervention even if the words “force” or “military intervention” were not used (Armed Activities, para. 46). However, the Court reached this conclusion by considering the subsequent practice of the two States and the lack of complaint. President Bazoum’s statement can also be compared with The Gambia’s president-elect Barrow’s request to ECOWAS, the AU, and the UN to support the people of The Gambia in enforcing and installing the democratically elected government, which is more evocative.
Be that as it may, the next question is whether another official from President Bazoum’s administration can issue the invitation. As the International Law Association’s (ILA) Use of Force Committee explains, the key question is how domestic and constitutional law apportions power across the government and whether the request comes from “authorised representatives of the government” (ILA, p. 19). The ILA states that this does not include “military/intelligence services” and, with regard to the United States’ military intervention in Grenada in 1983, the request from Grenada’s Governor-General was not sufficient because this was a ceremonial position without executive powers. Niger’s Foreign Minister—currently in exile and critical of the junta’s actions—may have such a power but, again, the critical issue is whether his office has the constitutional authority to make such a request.
Incidentally, if an authorized Nigerien official does request intervention but the military junta pressurizes President Bazoum into declaring that such actors should not intervene, this would not be binding because it was not given freely, that is, it was the product of pressure, coercion, or intimidation (Deeks).
Pro-democratic Intervention
In this section we consider whether ECOWAS can intervene lawfully to restore democracy even if it acts without SC authorization or beyond its constitution. This brings to the fore the legal status of the right of unilateral pro-democratic intervention. Although democracy may be emerging—or perhaps has emerged—as a fundamental human right (Franck), the right to use force to restore democracy has gained little support among States and international law scholars (Wippman, chapter 40; Kreꞵ and Nussberger), albeit with certain exceptions (Reisman, 643-4).
There is little, if any, evidence of State practice to support the legality of pro-democratic intervention under international law but there is certainly widespread condemnation of such a right. An often-cited example of pro-democratic intervention is the United States’ use of military force in Panama in 1989 to remove Manuel Noriega from power after he lost the presidential election but refused to step down (Tsagourias, chapter 36). However, the United States justified its use of force on the basis of the right of self-defence rather than the doctrine of pro-democratic intervention, with the UN General Assembly condemning the operation.
In 2016 the sitting president of The Gambia refused to accept defeat after he lost the presidential election. The AU and ECOWAS made it clear that they would only accept Barrow as the democratically elected president and determined to take “all necessary measures” to guarantee the will of the Gambian people. ECOWAS went even further and stated: “[i]f he [Jammeh] is not going, we have stand-by forces already alerted and these stand-by forces have to be able to intervene to restore the people’s wish.” Senegalese forces briefly intervened in The Gambia and, shortly thereafter, power was ceded to Barrow. While this may look like an example of State practice in favor of pro-democratic intervention, Senegal did not justify its use of force on this basis. In fact, Senegal maintained that its forces entered The Gambia by mistake, citing their lack of knowledge of the terrain and the various borders. While Senegal breached Article 2(4) of the UN Charter even if the intervention was a mistake, the critical point is that it did not justify its use of force on the basis of a right to pro-democratic intervention (Kreꞵ and Nussberger).
In 1998, Nigerian-led ECOMOG intervened in Sierra Leone to restore the ousted president without SC or AU authorization or the consent of the local government. Although ECOWAS made a number of declarations vowing the return of the democratically elected president with peaceful means or even the use of force, the legal basis of the intervention remains ambiguous. The SC did not authorize the intervention but called upon the junta to step down and demanded States to enforce the sanctions. It has been argued that the SC retroactively authorized the intervention with Resolution 1162 (1998) but that is not legally correct since SC authorization should be granted prior to the action and be explicit (Buchan and Tsagourias, 142).
It can thus be said with reason that a unilateral right to pro-democratic intervention has not been established. Instead, pro-democratic intervention can take many forms; it can involve peaceful measures of capacity building, electoral assistance, agreements to restore democracy, and forcible means under the auspices of the UN such as the intervention in Haiti in 1994. That said, unilateral and forcible pro-democratic interventions may be tolerated by considering factors such as the aims of the intervention, the multinational character of the intervening force, the level of domestic and international support for the intervention or the ousted government, external recognition of the ousted government, and the prior exhaustion of peaceful remedies. There is thus no clear answer as to whether the international community would condemn any unauthorized ECOWAS military intervention.
Conclusion
The overthrow of democracy in Niger represents a threat to the AU’s push to democratize the continent as well to the UN system more generally. ECOWAS has rightly come out in favor of returning President Bazoum to power, as has the UN’s Secretary-General who “strongly condemns the unconstitutional change of government in Niger.” The military junta, however, shows no signs of heeding international demands and the immediate question is what can the international community do to restore constitutional order in Niger.
ECOWAS has threated to use force in Niger and this post has assessed its legality under international law. If the projected force is lawful, the threat of force is also lawful. It appears that there are two possible legal bases for the threat or use of force in Niger.
First, consent can provide a legal basis for the use of force. Niger is a member of ECOWAS and the AU, which have the power under their constitutions and related instruments to use all means including the use of force to restore constitutional order in member States. At present, there are disagreements within ECOWAS and the AU to set this mechanism in motion. Consent can be also provided ad hoc where an authorized governmental official requests or invites foreign intervention. We made the case that such authority resides with President Bazoum but an important question is whether the Nigerien constitution empowers other government officials to invite outside assistance.
In the alternative, the SC can authorize force by engaging its mandatory powers, although this is unlikely to transpire in the current political climate given that the Council’s permanent veto-wielding members are engaged in a bitter and multifaceted competition.
Beyond these two options, the unilateral use of force to restore democracy is not firmly established in international law. The restoration of democracy is worth pursuing by using peaceful means but it may be the case that using force in Niger would be legitimate, if strictly speaking unlawful.
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Dr Russell Buchan is Professor of International Law at the University of Reading, UK.
Nicholas Tsagourias is Professor of International Law at the University of Sheffield, UK.
Photo credit: Sgt. Kacie Benak
