Did ECOWAS have legal basis to remove President Jammeh from power militarily?

Following President Yahya Jammeh’s adamant refusal to step down and hand over power peacefully to Adama Barrow, who won the presidential elections in Gambia, the Economic Community of West African States (ECOWAS), a regional West-African bloc, was on standby to oust Mr Jammeh. In support of West African leaders’ position, on Thursday last week, the UN Security Council unanimously passed a resolution calling on Jammeh to step down. The resolution called on Jammeh to respect democracy and step down “in accordance with the Gambian Constitution.” However, the resolution did not specifically authorise West African nations to intervene militarily if Jammeh refused to relinquish power. Literally speaking, the resolution used an exhortatory language, rather than a mandatory language. As a matter of principle, any enforcement action by a regional agency or arrangement must have a UN Security Council’s green light. The Council has consistently maintained this monopoly since the creation of the United Nations. This raises a critical question: did ECOWAS have a legal basis to use force to kick Jammeh out of power? According to Article 3 of the ECOWAS Treaty, member states must to adhere to the core principles inter alia observance of recognition and observance of the rules and principles of the Community as well as the promotion and consolidation of a democratic system of governance across the region, among others. Even though the legal framework of ECOWAS requires member states to uphold those principles, it lacks a specific provision granting the right to use force in case diplomatic avenues fail. Non-intervention in the internal affairs of states is one of the principles underlying the United Nations as well as the African Union. The first time such intervention happened was in 1990 in Liberia when ECOWAS, through its multilateral armed force known as the ‘ECOMOG’. At that time, member states of ECOWAS advanced several reasons for their decision to intervene. The major argument was the need to restore regional instability that had deteriorated due to the overflow and displacement of refugees in neighbouring countries. Pragmatically, the intervention was successful because stability was restored. Under ECOWAS constitution, the power to take enforcement action (or peace-keeping) in internal matters isn’t expressly mentioned. Surprisingly, during that time, ECOWAS didn’t seek the consent of the UN Security Council. The constitutional question of the legal basis for the ECOMOG operation was not much discussed by those involved or by the UN. Little attention was paid to the legality of the ECOMOG offensive action. ECOWAS’s objectives were to reinstate the legitimate government, restore peace and security, and resolve the refugee problem. Consequently, UN Security Council did neither give a consent nor condemn it. Reading between the lines, the UN Security Council’s position was implicitly supportive of ECOMOG offensive action. In that regard, the UN Security Council issued a host of political statements and resolutions commending ECOWAS for its action. In the current situation, the UN Security Council has equally expressed its support for the commitment of West African States to “ensure, by political means first, respect of the will of the people.” And the UN Security Council hasn’t authorized the use of force, acting under Chapter VII, with respect to threats to the peace, breaches of the peace, and acts of aggression. In any event, the UN Security Council determines the existence of any threat to the peace, breach of the peace, or act of aggression and make recommendations, or decide the appropriate measures to be taken in order to maintain or restore international peace and security. Under Chapter VIII, specifically in Article 52, paragraph 1, the UN Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the purposes and principles of the United Nations. Clearly, this provision bars any enforcement action without the green light of the UN Security Council. So, the enforcement action can only be taken if the said non-use of force measures would be inadequate or have been proved to be inadequate. A question, however, emerges: who determines the inadequacy of those measures? The answer is simple, the UN Security Council. Any offensive action taken without abiding by the UN Principles would be unlawful. The writer is an international law expert.

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Did ECOWAS have legal basis to remove President Jammeh from power militarily?