AS the clamour for military intervention in Niger, where the soldiers grabbed power in July, appears to be subsiding, it would make sense for leaders of the Economic Community of West African States (ECOWAS) to sit back and reflect on their knee-jerk reaction to the coup. By every reckoning, any military intervention will yield serious negative effects. There are only two pro-sanction ECOWAS members, Benin and Nigeria, sharing borders with Niger.
Apart from this, there is the legal aspect. Legal experts agree that under international law and the UN Charter, the use of force is only legitimate if it is either authorised by the UN Security Council or is in exercise of individual or collective self-defence in response to an armed attack on the state using force, as provided for under Art. 51 of the Charter. But Niger has not threatened any of its neighbours.
So, on the face of it, unilateral military intervention by ECOWAS without Security Council authorisation would be illegal under the Charter, as Kofi Annan famously pointed out when the UK and US went ahead with their military adventure in Iraq in 2003.
The threatened move by ECOWAS is apparently based on its previous interventions in Liberia and Sierra Leone. But those interventions were couched in humanitarian terms aimed at stopping the civil wars in those countries, and to act as peacekeeping forces; not to reverse military coups and reinstate ousted governments.
In the debates that followed at the UN in those two situations, there was unanimity in the Security Council that ECOWAS, as a regional organisation, had no legal basis to mount a military intervention without such authorisation. But the Security Council reluctantly agreed because both interventions were to save civilian lives.
This was seen as a post facto validation of what ECOWAS had done, but not a proposition that regional organisations can authorise or use force without the say so of the Security Council. So, when NATO bombed Kosovo in 1999, the Security Council denounced that act, too.
However, if ECOWAS were to seek UN authorisation, it would be vetoed in the Security Council, and probably not by Russia alone. The US, for that matter, has not come out to clearly encourage or support ECOWAS sabre-rattling, and nor has the AU either.
An analogy has been made with the small ECOWAS military force that was sent to The Gambia in 2017 to force the defeated Yahya Jammeh to step down. He was threatening not to hand over power to the winner of the presidential election who was then stuck in neighbouring Senegal.
But in that case, ECOWAS was more nuanced: it didn’t say its mission was to attack the Gambian military, but to provide security to the returning newly elected President Adama Barrow, who had requested ECOWAS assistance to enable him to assume office.
That action had the blessings of both the AU and the UN, because it was “intervention by invitation” by the newly elected and legitimate president. The Niger situation is utterly different. That’s why even those who might sympathise with ousted President Mohamed Bazoum are cautious about setting a precedent: would ECOWAS want to mount armed intervention whenever there is a military coup?
Most politicians and policy makers are savvy enough to sense that such a development could have unintended consequences. So, as we have now seen, ECOWAS was merely sabre-rattling and will never act militarily. In time, Niger and ECOWAS will reach a compromise on an acceptable transition period and move on.
In any case, there is also the international criminal law issue. The crime of aggression became part of the International Criminal Court in 2017, years after the Rome Statute of the ICC entered into force in July 2002. It took so long because of strong resistance to its inclusion from Western power that had the propensity to commit such acts.
Thus, British Prime Minister Tony Blair and US President George W. Bush got away with the illegal occupation of Iraq. These two countries are now leading the call for Russia’s Vladimir Putin to face the ICC for his country’s invasion of Ukraine.
Would an intervention by ECOWAS amount to a crime of aggression under the ICC? That would depend on the actual elements, nature and consequences of the intervention.
But even for the crime of aggression, the ICC can only prosecute individuals responsible for the acts of aggression – political or military leaders involved or implicated in the planning, initiation and execution – but not the states or organisations. The crime of aggression is a leadership crime. So, such crime would be imputed to ECOWAS political leaders and their chiefs of staff.
Given Africa’s controversial relationship with the ICC, this could just compound things. Those ECOWAS leaders who think they will be backed by Western countries to break international law in Niger will be surprised to see how quicky they are thrown to the wolves when the ICC steps in to exercise jurisdiction.
Diplomacy should have a much bigger role to play now than a chaotic military intervention if jihadists are not to overrun the region.
This article was first published in the September-October edition of the Africa Briefing Magazine
