24.01.17 |

[Dr. Mohamed Helal is an Assistant Professor of Law, Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State University.]

Academic writing and political commentary on jus ad bellum are overwhelmingly focused on the policies, practices, and positons of major military powers. Countries such as the five Permanent Members of the UN Security Council, and regional pivotal states that have been belligerents in major armed conflicts, such as India and Pakistan, Iran and Iraq, Israel and its Arab neighbors, Turkey, Ethiopia, Indonesia, and a few others, have attracted the most attention in scholarship on the law governing the use of force by states. One region that has received lesser attention is Africa.

This is unfortunate because recent developments in Africa are challenging some of the cardinal principles of jus ad bellum. The unfolding crisis in The Gambia is one example. Adama Barrow, a real estate developer, defeated long-term incumbent Yahya Jammeh in the presidential election held on December 1st, 2016. Unexpectedly for an eccentric Gaddafi-like authoritarian leader, who vowed to rule The Gambia for a billion years and claimed the ability to cure AIDS and infertility, President Jammeh conceded defeat and promised a peaceful transfer of power. However, on December 9th, in an equally surprising volte-face, Jammeh declared that he was rejecting the election results citing what he called “serious and unacceptable abnormalities.”

President Jammeh’s power-grab was roundly condemned by the international community. In addition to the customary criticism and expressions of concern from international and regional organizations, a summit of the leaders of the Economic Community for West African States (ECOWAS) adopted a resolution on December 17th recognizing the results of the December 1st election, pledging to attend the inauguration of President-elect Barrow on January 19th, 2017, and deciding to take “all necessary measures to strictly enforce the results of the 1st December 2016 elections.” The phrase: “all necessary measures,” is universally recognized as international law-speak for the authorization of the use of force.

After mediation efforts failed, ECOWAS issued an ultimatum to President Jammeh: either relinquish power by midnight on January 19th, or ECOWAS will forcefully intervene to install President-elect Barrow. Signaling that it meant business, ECOWAS forces from Senegal and Nigeria were mobilized on the border with The Gambia, and warned that they will intervene if President Jammeh failed to comply with the organizations’ ultimatum. On December 21st, a statement by the President of the Security Council noted that the Council welcomed and was encouraged by the decisions of the ECOWAS summit. Similarly, the African Union Peace and Security Council endorsed the election results and announced that it would not recognize Jammeh as President of The Gambia after January 19th.

As the January 19th deadline elapsed, events kicked into high-gear. Adama Barrow was sworn into office in The Gambia’s Embassy in Dakar, Senegalese forces crossed into The Gambia to enforce the ECOWAS resolution of December 17th, apparently pursuant to a request by-now President Barrow, and the UN Security Council unanimously adopted Resolution 2337, its first for 2017. The resolution, tabled by Senegal, does not authorize the use of force by ECOWAS. Rather, acting under Chapter VI, the Council endorsed the decision of ECOWAS and the AU to recognize Adama Barrow as President, welcomed ECOWAS’ decisions of December 17th, and expressed support for ECOWAS’ commitment to “ensure, by political means first, the respect of the will of the people of The Gambia.” With ECOWAS troops already in his country, on Saturday January 21st President Jammeh left The Gambia, apparently after shipping a number of his luxury cars and pocketing $11 million from the treasury.

The situation in The Gambia and international reactions to the crisis challenge certain aspects of jus ad bellum. Because Opinio Juris readers are probably familiar with the basic contours of jus ad bellum, suffice it to say that the UN Charter establishes a blanket prohibition on both the threat and use of force by states. The Charter does, however, admit two exceptions to this general prohibition: force used in self-defense against an armed attack, and forceful action authorized by the Security Council under Chapter VII of the Charter.

If based on a request by President Barrow, the Senegalese-led ECOWAS intervention beginning on January 19th fits – albeit imperfectly – within the established rules of jus ad bellum. As the International Court of Justice (ICJ) confirmed in the Armed Activities on the Territory of the Congo Case, jus ad bellum permits governments to invite foreign states to militarily intervene on their own territory. In fact, previous ECOWAS interventions, such as in Sierra Leone and Liberia were justified on requests by the governments of those states. The potential trouble with ECOWAS’ ongoing intervention in The Gambia, however, is that it was undertaken pursuant to a request from what is essentially a government-in-exile. In fact, Adama Barrow probably does not even qualify as a government-in-exile, but rather, should be considered a president-in-exile. The right of a president-in-exile, who has never exercised governmental authority or effective control over the territory of the state, to authorize foreign armed intervention is, at best, questionable and unsupported by ample precedent. (See: Intervention by Invitation).

Moreover, the run-up to ECOWAS’ intervention in The Gambia also challenges the prohibition on the threat of the use of force. Ian Brownlie defines a threat of force as “an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government.” Accordingly, the decision of the ECOWAS summit on December 17th, which demanded that President Jammeh relinquish power and authorized the use all necessary measures to enforce the election results, combined with the mobilization of ECOWAS forces in the weeks before January 19th, constitutes a threat of force. As the ICJ opined in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the test of the legality of threats of force is: “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.” The problem here is that enforcing election results or installing a democratically elected leader into office are not legitimate grounds for the use of force according to jus ad bellum. Despite attempts by a few governments and some scholars to advocate the so-called doctrine of pro-democratic intervention, which permits the resort to force to promote democratic government or prevent illegitimate takeovers of power, the overwhelming opinion is that this practice violates the UN Charter. Interestingly, however, the UN Security Council appears to have endorsed this threat of force by ECOWAS against President Jammeh. As aforementioned, the Presidential Statement of December 21st welcomed the actions of ECOWAS, and Resolution 2337, while falling short of authorizing the use of force and expressing its preference for the use of political means to settle the conflict, welcomed the decisions of the ECOWAS summit.

The chain of events and outcomes of a single conflict probably do not suffice to fundamentally alter rules as foundational to the international legal order as the prohibitions on the threat and use of force. The ongoing crisis in The Gambia does, however, pose some difficult legal questions and challenges certain aspects of jus ad bellum. Moreover, ECOWAS’ willingness and preparedness to threaten and use force to promote democracy is only one example of African practice that challenges the traditional rules of jus ad bellum. Another interesting development in Africa that has attracted limited academic attention (See here) is the ability of the African Union to authorize armed intervention to prevent genocide, war crimes, and crimes against humanity. This right, enshrined in Article 4(h) of the AU Constitutive Act, is essentially an African version of the Responsibility to Protect. What is notable, however, is that the African Union is not required to seek Security Council authorization before approving such an intervention. This directly challenges Article 52 of the Charter, which obliges regional arrangements to acquire Security Council authorization before engaging in enforcement action.

As Jeremy Levitt noted, “most policymakers, international lawyers, and legal academics outside of the continent consider African states to be objects rather than subjects of international law … The geopolitical, Eurocentric, and linear bias in Western legal academia, among others, is truly unfortunate.” Events in The Gambia and other developments in Africa suggest that African practice in jus ad bellum, and indeed in all fields of international law, deserves greater scholarly and policy attention.