Legal Basis for Military Intervention – S.T. HON, SAN, FCIArb.
THISDAY- Iyobosa Uwugiaren and Tobi Soniyi in Abuja with agency report
A Nigerian warship has been deployed in The Gambia, more as a show of force rather than preparation for an attack, the BBC reported Tuesday.
The deployment is obviously part of the strategy of ECOWAS to force out President Yahya Jammeh who has refused entreaties from the region’s leaders to step down following his last December 1 presidential election defeat by Mr. Adama Barrow.
Jammeh remained intransigent tuesday, declaring a 90-day state of emergency, less than 48 hours before his official mandate ends, according to the Gambia Television.
Nigeria’s Defence Headquarters, however, yesterday continued to down play its reported involvement in planned military operations in The Gambia, insisting that the matter remained with the political authorities to decide.
“We are not involved in any preparation for military action in The Gambia,” the Director of Defence Information, Brig-Gen. Abubakar Rabe, told THISDAY last night.
But BBC said a military source told it that the vessel – the NNS Unity – is currently sailing off the coast of Ghana.
THISDAY had reported on Tuesday that ECOWAS had prepared a force for military intervention if the outgoing Gambian president refused to step down today.
The exact terms of the state of emergency remain unknown, as no details were provided with the announcement.
Jammeh initially accepted the election results but then decided he wanted them annulled after the electoral commission admitted some errors, although it insisted this did not affect the final outcome.
The Supreme Court is unable to hear Jammeh’s petition against the results of the election until May because of a shortage of judges, and the embattled president said he would not step down until then.
At least three Gambian ministers, including the foreign minister, have resigned in recent days. Thousands of Gambians have also fled to neighbouring Senegal amid fears of violence.
Barrow won 43.3% of the vote compared with Jammeh’s 39.6%. A third candidate, Mama Kandeh, got 17.1%.
Jammeh seized power in the tiny West African country in 1994 and has been accused of human rights abuses, although he has held regular elections.
Legal Basis for Military Intervention
In Abuja, a senior lawyer, Chief Sebastine Hon (SAN), said ECOWAS decision to use force to oust Jammeh was protected both under the United Nations Charter and existing ECOWAS legislations.
He said the political situation in The Gambia had reached a situation that called for urgent action, to forestall a large scale humanitarian challenge, regional instability and anarchy.
He advised that on no account should the world, ECOWAS and the African Union, stand aloof and watch the ethos of democracy destroyed by a sit-tight dictator who did not even assume leadership under acceptable circumstances.
By section 63(1) of the Constitution of The Gambia, the 5-year tenure of office of Jammeh will end on 19th January, 2017.
He said: “The reported resolve of ECOWAS to use force, if necessary, to topple him and then to install the winner of that election – Adama Barrow – is not only a welcome development but is protected both under the United Nations Charter and under existing ECOWAS legislations.
“It is also protected under historical and empirical happenings worldwide. The following are the various pre-United Nations military interventions in sovereign countries, namely:
- The Russian, British and French Anti-Ottoman military intervention in the Greek War of Independence, 1824;
- (b) The Russian unilateral Anti-Ottoman military expedition in Bulgaria, 1877;
• The US military occupation of Haiti in 1915.
He said that even after the United Nations was formed in 1945, direct military interventions in independent states without recourse to the UN have continued to be recorded, as follows:
- The US military intervention in the Dominican Republic, 1965;
- The military intervention of Vietnam in Kampuchea, which led to the overthrow of the government of that country in January, 1979;
- The intervention by France in the Central African Empire (CAE), which led to the overthrow of that government in September, 1979;
- The military intervention of Tanzania in Uganda, which led to the overthrow of the government of that country in April, 1979;
- The military intervention by the then USSR in Afghanistan, which led to the overthrow of the government of that country, in December, 1979;
- The USA military intervention in Grenada, which led to the overthrow of the government, in October, 1983;
- The USA military intervention in Panama, which led to the overthrow of the government there, in December, 1989;
- The military intervention by Iraq in Kuwait, which led to the overthrow of that government, in August, 1990;
- The US-led international military intervention in Libya, which led to the overthrow and killing of Muammar Ghaddafi, in 2011;
- The international military coalition against the Islamic State of Iraq and Levant, 2014-date, etc.
He noted that even though Article 2(4) of the UN Charter provides that: “All Members shall in their international relations refrain 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,” other extant provisions of the Charter and empirical examples showed that military intervention was not altogether ruled out or deemed illegal.
He said: “For instance, Chapter VIII of the Charter has in very clear terms recognised ‘Regional Arrangements’. In particular, Article 52(1) which falls under that Chapter provides that ‘Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action….’”
Hon said that Charter VIII provisions had been tested before during the Liberian and Sierra Leone political quagmires of the 1980s-1990s.
According to him, with the positive signal from the UN representative in West Africa, Mr. Ibn Chambas, military intervention in The Gambia under Article VIII without prior UN Security intervention is not only legal and lawful, but is also imperative, should Jammeh refuse to relinquish power today”.