ECOWAS took an unprecedented step, in the African context, during its Second Extraordinary Summit on the Political Situation in Niger. The organisation ordered “the Committee of Chiefs of Defence Staff to immediately activate the ECOWAS Standby Force with all of its elements;” and the “deployment of the ECOWAS Standby Force to restore constitutional order in the Republic of Niger.”

In addition to this decisive action, ECOWAS called on the African Union (AU) to “endorse all of the decisions taken by ECOWAS regarding the situation in Niger.” Notably, the AU Peace and Security Council has scheduled a meeting for the 14th of August, 2023 to discuss the situation in Niger.

Military intervention in a sovereign nation is a grave decision with significant repercussions for international peace and security. Therefore, it is a subject of significant interest to international law.

Article 2(4) of the United Nations Charter states, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” The non-intervention principle of international law entitles every sovereign state to conduct its affairs without external interference.

However, there are exceptions to Article 2.4 and the non-intervention principle. States can invite interventions, typically during civil unrest or conflicts, by signalling either explicit or tacit consent. Article 51 of the UN Charter stipulates that a state may defend itself against armed aggression. This is consistent with this principle. This right to self-defence includes the ability to intervene in states culpable for or harbouring aggressors.

Under Chapter VII of the UN Charter, the Security Council can authorise the use of force if international peace is threatened. This authorization may include both sanctions and military action. Though contentious, humanitarian reasons and the Responsibility to Protect (R2P) are other grounds when states cannot protect their citizens from grievous rights violations or mass atrocities.

Other reasons include safeguarding nationals abroad, as demonstrated by the Israeli raid on Entebbe in 1976, and actions by regional bodies such as the African Union or the Economic Community of West African States. Post-9/11, counterterrorism operations, such as those in Afghanistan, have also served as justifications for intervention, despite the ambiguity of their legality in the absence of explicit authorization from the UN Security Council.

Article 4(h) of the Constitutive Act of the AU stipulates “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in the event of grave circumstances, namely war crimes, genocide, and crimes against humanity;” Article 4 (j) addresses the right of an AU member to request intervention.
Unconstitutional Changes of Government (UCG) are not explicitly mentioned as a basis for military intervention in the UN Charter, the Constitutive Act, the Peace and Security Protocol, the ECOWAS Statute or its Protocol on Democracy and Good Governance, or the ECOWAS Supplemental Protocol on Defence and Security Forces relationships with political power.

Article 4 (p) of the Constitutive Act condemns and rejects unconstitutional change of government. And Article 30 of the Constitutive Act states, “Governments that come to power through unconstitutional means are prohibited from participating in Union activities.” Article 7 (g) of the PSC Protocol stipulates sanctions “whenever an unconstitutional change of Government occurs in a Member State, as stipulated in the Lomé Declaration.”

According to article 16 (c) of the PSC Protocol, the African Standby Force (ASF), which is an association of the Regional Standby Forces, can only intervene (in the sense anticipated by ECOWAS) within an AU member state in accordance with Article 4(h) and (j) of the Constitutive Act.

Article 16 (g) of the PSC Protocol states that the ASF could perform “any other functions that may be delegated by the Peace and Security Council or the Assembly,” which could allow for the deployment of ASF in the ECOWAS-anticipated circumstances. In international law, however, a general treaty provision cannot supersede specific treaty provisions. Therefore, article 16(c) will be the law, and Article 16(g) will only be applicable if it does not contradict Article 16(c).

Article 28 E of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights is possibly the most powerful legal argument that could have supported any form of ECOWAS military intervention. Article 28E defines the crime of unconstitutional change of government.

By including UCG in the list of international crimes alongside genocide, war crimes, and crimes against humanity, it could be argued that the drafters intended for UCG to carry the same legal consequences as other international crimes. However, this Protocol has not yet entered into force, and even if it had, the remedies envisaged by the Protocol are judicial in nature.

This rudimentary examination of international law demonstrates that there is no firm legal basis in international, regional, or subregional law for a military intervention to restore constitutional order in the event of a UCG. Even if ECOWAS’s decision is grounded in ambiguous areas of international law, the AU PSC and the UNSC must endorse it for it to have a solid foundation. Even if the AUPSC endorses such a decision, Russia and China are unlikely to support a UN Security Council resolution authorising military intervention in a UN member state.

While ECOWAS’s potential military intervention in Niger is motivated by a noble objective, it faces a vast array of legal obstacles. As the regional body deliberates its next move, it must be mindful of the complex mosaic of international law. Maybe the key operative words in the ECOWAS’s decisions are “with all of its elements” Since the Standby Force has more than a military element, ECOWAS might pay closer attention to the other elements.

About the Author

Dr Remember Miamingi is a co-founder and CEO of Integrate Africa Advisory Services and a former advisor within the Political Affairs, Peace and Security Department of the African Union.

Dr Miamingi is a graduate of Obafemi Awolowo University, Ile-Ife, Osun State, Nigeria, and holds a Master of Laws and Doctor of Laws Degree from the University of Pretoria, Pretoria, South Africa.

About Integrate Africa Advisory Services

Integrate Africa Advisory Services (IAAS) is a pan-African consulting firm based in Johannesburg, South Africa. IAAS brings together African experts, strategists, political and policy analysts, researchers, and communicators with high-level government and diplomatic experience, all of whom have unique expertise in African integration. Our diverse expertise provides clients with bespoke advisory, research, and contracting services in African Union laws and policies, peace and security, economic integration, and geopolitical maneuvering.

IAAS’ mission is to prepare and enable Africans, African organizations, pan-African institutions, African Union member states, and international organizations to anticipate, prepare for, respond to, and adapt engagement strategies to leverage opportunities and minimize risks associated with African integration.