Introduction

Given the arenas of normative ambiguities and/or conflicts identified and discussed above, the immediate task now has been to design a regime of compatibility between the two Organizations. In this regard, it is important to bear in mind the circumstances that led to the present situation in the first place. The increase in the number of intra-state conflicts in the post-Cold War world demanded more interventions than had hitherto been possible, and an effective response from the international community would have required a restructured UN

404 See Article 25(b) of the ECOWAS MCPMRPS Protocol, Op. cit

405 Kuwali, „The End of Humanitarian Intervention’, Op. cit at 46

406 Allan J. ibid, at 248

249 and a shift in the paradigm of global governance, none of which was likely then or even now.⁴⁰⁷ These failures of the UN have eroded the credibility and legitimacy of the organization, thereby bolstering the call for a higher degree of independence and positive roles by States and regional Organizations such as the African Union in the exercise of sovereignty at the regional level.⁴⁰⁸ The position of the African Union regarding the proposed UN reform has been articulated in the Ezulwini Consensus document and subsequent events in Africa shows that the new legal regimes are not a mere inadvertence but through reflections of the envisaged future relationship between the AU and ECOWAS and the UN Security Council. A UN reform agenda to incorporate and accommodate the AU and ECOWAS legal instruments on sovereignty and intervention must be considered.

For instance, during the constitutional crises in the Gambia in 2017 following the disputed presidential election in which the incumbent President lost, the ECOWAS agreed to mobilize a military force to intervene militarily in the Gambia to force out President Yaya Jammeh if he refuses to step down. Just after the opposition leader Barrow who was then living in Senegal was sworn in as the new President of the Gambia in the Senegalese capital Dakar, the United Nations Security Council unanimously approved Resolution 2337⁴⁰⁹ on the same day, which expressed support for ECOWAS efforts to negotiate the transition of the Gambian presidency, but requested the use of „political means first‟ without endorsing military action.

Despite the lack of endorsement of military action by the UN Security Council, Senegalese armed forces entered the Gambia on the same day, along with some forces from Ghana, with air and sea support from the Air Force and Navy of Nigeria. Gambia was consequently

407 Tiyana Maluwa, „The OAU/African Union and International Law: Mapping New Boundaries or Revisiting Old Terrain?‟, (2004) 98 American Society of International Law Proceedings, March-3 April, p.232, at 236.

408 Tiyana Maluwa, ibid @ 289.

409ECOWAS military intervention in the Gambia to Restore Democracy. Available on https://en.wikipedia.org/wiki/ECOWAS_military_intervention_in_the_Gambia. Accessed on the 17 August 2018

250 placed under a naval blockade and the siege forced the defeated President to step down. Thus, the development effectively ignored the UN Security Council rhetoric and moved in to halt the situation before it become a major humanitarian catastrophe. Africa has been a conflict-prone region and this led Africa to the pro-interventionist legal framework of the AU and ECOWAS through which they seek to obviate the UN structure which many developing countries feel has marginalized them. According to a legal scholar, these countries and organizations hope to bring about change in the international legal order by taking the initiative to expand the legal discourse and create new norms.⁴¹⁰ Given the changing pattern of global relations, regional organizations (not the least the AU and ECOWAS) have realized that major powers are disinclined to intervene abroad, least of all in Africa, as they become more and more consumed by their own domestic problems, thus, they will have to take up the challenge of intervening in their own regions. Wippman puts it succinctly thus:

ECOWAS has concluded that humanitarian emergencies in member States invariably spill over into neighboring States and jeopardize regional security generally. ECOWAS has also concluded that it cannot rely on the UN to intervene effectively in such cases, and so it must be prepared to shoulder much of the burden itself.⁴¹¹

It was on the basis of this logic that ECOWAS agreed to enter into the Gambia in January,2017 in an operation code named ‟Operation Restore Democracy‟.⁴¹² The problem of

410 Tiyana Maluwa, ibid., 238

411 David Wippman, „Kosovo and the Limits of International Law‟, Op cit at 145

412 The ECOWAS military intervention in the Gambia or the ECOWAS Mission in The Gambia (abbreviated ECOMIG) – code-named Operation Restore Democracy – was a (is) an ongoing military intervention in the Gambia by several West African countries. The intervention was launched to resolve a breakdown of internal order in the government of the Gambia that resulted from a dispute over the country's presidency. The dispute had led to a constitutional crisis in the country. The intervention began in January 2017, and in June 2017, the term of the ECOWAS military mission was extended by a year. Available on

251 how best to deal with such unilateral actions of humanitarian intervention whether by states, coalitions of the willing or regional organizations depends on how one views the situation and also the position the person has taken. There are those who supports the idea of a tolerable breaches approach⁴¹³ while some rely on the ex post factum ratification approach⁴¹⁴ and other condonation and condemnation approaches. Whatever approach is adopted, the failure of the Charter system to prevent the atrocities in Rwanda, Liberia, Sierra Leone, Somalia and Darfur, all in Africa, is perhaps a reason for arguing that the current system has been transformed by the consequences of these failures, leading to a system that now finds expression in the AU and ECOWAS legal regimes which gives supremacy to humanitarian intervention far above sovereignty. This according to Kuwail⁴¹⁵ is an important achievement for the AU, which translates to the legal capacity to bypass the UN Security Council deadlock and evolve an independent humanitarian intervention mechanism for Africa. Kuwail⁴¹⁶ has argued that there is little utility both for the object of humanitarian intervention and the Purposes and Principles of the UN, in the UN setting up international criminal tribunals to prosecute perpetrators of mass atrocity crimes, spending huge sums of money it claims not to have, when there was yet an opportunity to intervene and rescue the victims.

The major practical implications of the AU/ECOWAS, at least for now, is that Africa has several policy prescriptions from which to draw in the enforcement of human rights and prevention of atrocities through the legal framework they have laid down by which member https://en.wikipedia.org/wiki/ECOWAS_military_intervention_in_the_Gambia. Accessed on the 17 day August, 2018

413.Tolerable breaches‟ as explained by Wippman here means „an action contrary to formal treaty rules but desirable on humanitarian grounds and accepted, or even approved, by most States; an action that necessarily loosens somewhat the rules governing the use of force, but only modestly, given the unique circumstances and the purposes for which force was used‟. See Wippman, „Kosovo and the Limits of International Law‟, Op cit, at 135-6.

414Scholars Wippman who hold this view rely on several UN Security Council resolutions such as those that did not condemn but „commended‟ the unilateral interventions of ECOWAS in Liberia S/RES/788/(1992), 19 November 1992, para. 1; and Sierra Leone S/RES/1270 (1999) 22 October 1999.

415 Kuwali, „The End of Humanitarian Intervention‟, Op. cit, at 45

416 Ibid, 42

252 states ceded away part of their sovereignty in return for the collective protection of community citizens.⁴¹⁷ The scheme creates a primary responsibility to protect legal obligations for AU members and a role for the AU should members fail. With this arrangement, the tension between sovereignty and intervention would reduce as the former has effectively ceded part of its powers to member states to act on its behalf when the proscribed events occur.

417 M. Banda, „The Responsibility to Protect: Moving the Agenda Forward‟, (2007) United Nations Association in Canada, p. 21. Available at http://www.unac.org/en/library/ unresearch/2007r2p_banda_e.pdf. Accessed on 17 August 2018.

253 CHAPTER FIVE

STATE SOVEREIGNTY VERSUS HUMANITARIAN INTERVENTION:

RECONCILING THE CONFLICT