The economic community of West African States and the regional use of force.

• Author: Jenkins, Peter A.

1. INTRODUCTION

   The legality of the use of force by regional organizations for humanitarian reasons, otherwise known as humanitarian intervention, is a hotly contested issue. The United Nations Charter specifically prohibits the use of force except in limited circumstances, which do not literally include humanitarian intervention. (1) However, regional organizations have consistently cited humanitarian intervention as the basis for using force within sovereign states without the consent of the United Nations Security Council or, sometimes, the consent of the government of the state within which force is used. (2) The consistent practice of these organizations has resulted in a variety of legal justifications for the use of force, ranging from creative interpretations of the Charter to notions of implied consent from the Security Council. (3)

   The Economic Community of West African States ("ECOWAS" or "the Community"), a passive economic conglomerate of African nation states, and the Economic Community of West African States Cease-Fire Monitoring Group ("ECOMOG"), the paramilitary peacekeeping wing of ECOWAS, maintain a significant role in the development of legal justifications for regional use of force. Although the policy and actions of African nations has not typically been given much deference in the international legal arena, ECOWAS's actions in Liberia and Sierra Leone at a minimum establish consistent practice which can be used as precedent for other regional organizations. However, ECOWAS's actions have arguably begun the process of creating a sufficient legal basis for reinterpreting the Charter to include implicit authorization under Article 53 of the U.N. Charter. (4)

   The purpose of this paper is to analyze the validity of the legal justifications, both official and theoretical, for ECOWAS's actions in Liberia and Sierra Leone, as well as to assess the practical impact of these justifications for future use of force, and to establish criteria for justification of humanitarian intervention with regional action particularly in mind.

   Human rights are an area of increasing concern to the international community, and the repeated violation of human rights in incidents such as Liberia, Somalia, Kosovo, and Darfur requires that the legal criteria for forceful humanitarian intervention be substantially established. However, the criteria should not only be aimed at protecting human rights, but also avoiding possible misuse of the doctrine by states with alternative motives. (5)

2. BACKGROUND

   An adequate understanding of the legal issues involved requires a proper context of both the history and original intentions of ECOWAS as well as the development of the use of force within the international law over time, in particular the role of the U.N. Charter and various theoretical bases for force. Furthermore, although not necessary, a moral understanding of humanitarian intervention allows for greater perspective in analyzing the issues and may provide a greater insight into the need for sound international law regarding humanitarian intervention.

   1. Definition of Humanitarian Intervention

      For this analysis, humanitarian intervention will be defined as an individual state or collection of states interfering in the affairs of a foreign state through use or presence of armed forces to prevent the violation of human rights. This definition incorporates actions for the purposes of protecting a state's own citizens abroad and protecting a foreign state's citizens from violations. Furthermore, the term "human rights" includes any of the provisions of the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, and the Genocide Convention. (6)

   2. History of ECOWAS

      On May 28, 1975, fifteen West African countries signed the Treaty of Lagos establishing ECOWAS. (7) The original agreement was signed by Benin (formerly known as Dahomey), Burkina Faso (formerly known as Upper Volta), Cote d'Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, and Togo. (8) Cape Verde joined the community in 1976 as the 16th member and Mauritania left it at the end of 1999, although at the time of the interventions all 16 members were still part of ECOWAS. (9)

      The original intention of the Community comes from Article 2 of the Treaty of Lagos. The stated purposes are "promot[ing] co-operation and development in all fields of economic activity" as well as increasing the standard of living, maintaining economic stability, and fostering closer relations between its member states. (10) The Treaty established four main institutions including the Authority of Heads of State and Government ("Authority"), which controls the executive functions of the Community, and the Executive Secretariat, which controls the daily operations. (11) The bulk of the Treaty at Lagos deals with trade, tax, customs, and monetary regulation in addition to future requirements of "harmonization" and co-operation between member states. (12) Enforcement of the provisions of the Treaty of Lagos is handled by the Tribunal of the Community, which can only settle disputes between treaty parties, (13) The Authority, which can suspend members from the Community, (14) and the Council of Ministers, which can impose unspecified measures to remedy disparity between member states. (15) Notably, a military wing was not originally incorporated into the Treaty of Lagos, although Article 4 does allow for creation of special commissions in the future. (16)

      ECOWAS soon realized the importance of military peace within the Community. Three years after its inception, the Community issued the Protocol on Non-Aggression which stated that it "cannot attain its objectives save in an atmosphere of peace and harmonious understanding among the Member States." (17) The protocol reaffirms the prohibition on force in the U.N. Charter and extends the prohibition to acts of "subversion, hostility, or aggression" against the territory or political structure of member states. (18) The primary intentions of the protocol were to require the use of peaceful means of dispute resolution (19) and to prevent foreigners from using a member state as a base for subverting other states. (20)

      The Protocol on Non-Aggression was supplemented in 1981 by the Protocol Relating to Mutual Assistance of Defence ("Mutual Defence Protocol"). The Mutual Defence Protocol "firmly resolve[d]" to safeguard the sovereignty of member states from foreign intervention. (21) Also, an element of collective defense was added to ECOWAS by requiring mutual assistance against any armed threat and defining that a threat against one member state constituted a threat against the whole Community. (22) Furthermore, the protocol established the framework for collective intervention by creating the Allied Armed Forces of the Community ("AAFC"), a military force comprised of national units contributed by member states, (23) and requiring action in two circumstances: failure of peaceful means of settlement required by the Protocol on Non-Aggression; or "[i]n case of internal armed conflict within any Member State engineered and supported actively from outside likely to endanger the security and peace in the entire Community." (24) Although the plain language of the protocol appears to authorize intervention in internal conflicts such as civil wars that are externally supported, this type of intervention is tempered by the need for a legitimate territorial defense of a member state as well as the extension of the conflict outside of "purely internal" bounds. (25)

      The final step towards the use of military force by ECOWAS was the creation of the Community Standing Mediation Committee ("SMC") in May of 1990 in reaction to the crisis in Liberia. The SMC was comprised of the Chairman of the Authority (represented by Captain Blaise Compaore of Gambia) with Ghana, Mali, Nigeria, and Togo as elected representatives. (26) The Authority formed the SMC to initiate mediation procedures for countries in conflict, but by the inception of the intervention in Liberia the SMC acted on behalf of the Authority in initiating intervention under the Mutual Defence Protocol. (27)

   3. Brief History of the Use of Force

      1. Force Prior to the U.N. Charter

         The justifications for the use of force were relatively static up until the First World War, but the extent of that conflict and its impact on world opinion regarding force acted as a catalyst for change which resulted in initial yet unsuccessful measures that were solidified by the reaction to the Second World War. Historically, the main use of force was war and the primary justification was the Just or Holy War, which utilized divine will as the objective measurement for the validity of war. (28) The main flaw with this doctrine was the fact that both states to a conflict could invoke divine will as justification for their own position. (29)

         Gradually, the doctrine of positivism displaced the Just War with the notion of sovereignty, which was later "codified" by the Treaty of Westphalia. (30) Sovereignty is the current fundamental basis for international law which entails three significant rights: the government of a state maintains sole authority over the state, every state is juridically equivalent, and no higher law binds states without their consent. (31) Furthermore, sovereignty included a competence de guerre, a right to war, which was wholly separate from any valid justification. Consequently, the fact that states could go to war became the justification for actually going to war, regardless of the moral or ethical bases. (32)

         Two other doctrines that accompanied the right to war were reprisals and self-defense. Both doctrines are forms of force on a lesser scale than war, and both doctrines are limited by necessity and proportionality. (33) Reprisals are reactions to violations of international law after a demand...