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Friday, January 22, 2021

A new African model of coercion? Assessing the Ecowas mission in Part 1

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Adama Barrow was sworn in as the new president of The Gambia on January 19 this year. The ceremony was held in the Gambian embassy in Dakar, the capital of neighboring Senegal. Soon afterwards, the United Nations Security Council passed Resolution 2337, proposed by Senegal, which endorsed earlier decisions by the Economic Community of West African States and (ECOWAS) and the African Union to recognize Barrow as The Gambia’s new president. Approximately 7,000 troops as well as air and naval assets from Ghana, Nigeria, and Senegal subsequently entered The Gambia as part of the ECOWAS mission ECOMIG, whose mandate was to ensure that Barrow’s predecessor Yahya Jammeh did not disrupt the handover of power.

ECOMIG was an unprecedented African peace operation deployed as part of an international effort to prevent what the AU calls an “unconstitutional change of government.” This is not a discrete crime in international law, but since the late 1990s the Organization of African Unity (OAU) and then the AU have taken a normative and political stand by declaring unconstitutional changes of government illegitimate. ECOMIG has now been reduced to just a few hundred troops and The Gambia’s crisis is not fully resolved. Nevertheless, the mission and the coercive diplomacy conducted by ECOWAS, the AU, and the UN appear to have successfully averted a potential unconstitutional change of government threatened by forces loyal to Jammeh.

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This report summarizes this episode and examines the legal basis for ECOMIG, as well as the political conditions that made the mission possible. It also situates ECOMIG in the broader political context of the AU’s attempts to deal with unconstitutional changes of government and its support for authorizing peace enforcement operations as part of its conflict management strategies.

What events led up to ECOMIG’s deployment?
ECOMIG was developed as part of the international response to ensure respect for the results of The Gambia’s presidential election on December 1, 2016. Surprise victor Barrow defeated longtime dictator Jammeh, who had come to power in 1994 via a military coup. In a bizarre telephone call beamed live across the country on December 2, Jammeh conceded defeat. Later the same day, ECOWAS, the AU, and the UN endorsed the result of what they described as the “peaceful, free, fair and transparent presidential election” as a legitimate expression of the will of the Gambian people.

On December 9, however, Jammeh changed his mind and said he would contest the election result, citing “serious and unacceptable abnormalities.” In response, on December 12 the AU Peace and Security Council stated it would take “all necessary measures” to ensure compliance with the election results. On December 17, the ECOWAS Authority took a similar position, stating it “shall take all necessary measures to strictly enforce the results of the 1 December 2016 elections.” On December 21, the UN Security Council issued a presidential statement on The Gambia commending ECOWAS’s position.

There followed a series of diplomatic initiatives, including by the presidents of Liberia, Ghana, and Nigeria, and then later Guinea and Mauritania, to convince Jammeh to commit to leave office and transfer power to Barrow according to the official schedule, on January 19, 2017. As that deadline approached, on January 13, the AU declared that it would cease to recognize Jammeh as the legitimate president of The Gambia as of January 19. With air, naval, and ground troops from several ECOWAS states actively engaging in contingency planning and operational preparations, on January 17 ECOWAS gave Jammeh an ultimatum: depart by midnight 19 January or face the consequences (the deadline was later extended to midday and then 4pm).
Barrow was subsequently sworn in as president of The Gambia at 4pm GMT in Dakar. At 1pm EST (6pm GMT) the UN Security Council met in New York to pass Resolution 2337. Shortly thereafter, ECOMIG forces entered The Gambia. On January 21, Jammeh signed a political agreement setting out the terms of his departure.

What was ECOMIG’s mandate?
As summarized by Ghana President Nana Akufo-Addo on January 18, ‘ECOMIGs objective was “to create an enabling environment for the effective enforcement of the rule of law, and, in accordance with the Constitution of The Gambia, facilitate the inauguration of the President-Elect, Adama Barrow, on Thursday, January 19, 2017.”

In retrospect, ECOMIG’s force commander, General Francois Ndiaye, explained on January 31 that the mission’s three-part mandate was to uphold the results of the presidential election of December 1, 2016; ensure that the president-elect was sworn into office on January 19, 2017, in conformity with the constitution of the Republic of The Gambia; and ensure the safety of President Barrow, political leaders and the entire population.

What was the legal basis for ECOMIG?

The legal basis for ECOMIG was particularly interesting. The first point to note is that both the AU (on December 12) and ECOWAS (on December 17) engaged in coercive diplomacy—threatening the use of force—against the incumbent President Jammeh to try to avoid his supporters carrying out an unconstitutional change of government in The Gambia. Although neither organization initially publicly specified the details of ECOMIG they used the accepted euphemism that they would employ “all necessary measures” to uphold the election results. Given that there is no right of pro-democratic intervention in international law, these threats could be considered illegal.

And yet, these decisions were subsequently endorsed by the UN Security Council’s presidential statement of December 21, 2016, and again by Resolution 2337.
The second issue is whether Barrow requested ECOMIG’s deployment. At the UN Security Council meeting that authorized Resolution 2337, Senegal’s representative said that Barrow appealed for “help [to] ensure respect for the sovereign will of the people of The Gambia.” If true, this would make ECOMIG a case of “intervention by invitation,” i.e. invoking the right of a government to engage in collective self-defense against an internal threat.

However, there is some debate as to whether such an invitation can be issued by a “president-in-exile.” Is there precedent to support this? There are earlier cases where democratically elected presidents who had assumed office were subsequently removed by coups and then put back into office by international forces. In 1994, for example, a US-led military operation helped return ousted Haitian President Aristide to office after a coup in September 1991; in 1998, ECOWAS forces returned Sierra Leonean President Kabbah to office after he was ousted in a coup in May 1997; and in September 1998, troops from South Africa and Botswana deployed into Lesotho, in part to protect the incumbent government from the threat of a potentially imminent coup. But I know of no case where a democratically elected president who had not governed the state in question for some significant period of time was installed with the aid of international forces.
Finally, it is relevant although probably not conclusive to note that several alternative African sources might provide some legal cover for ECOMIG’s deployment. These include Article 4(j) of the ‘AUs Constitutive Act (2000); Articles 3(h), 10(c) and 25 of the ECOWAS Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security (1999); Article 7(m) of the Protocol Relating to the Establishment of the Peace and Security Council of the African Union (2002); as well as Articles 24 and 25(7) of the African Charter on Democracy, Elections and Governance (2007). However, it is unlikely that any of these legal instruments override the prohibition on the use and threat of force by regional arrangements specified in Article 53 of the UN Charter.

How was ECOMIG possible?
Regardless of the legal basis for ECOMIG, the mission was made possible by a series of interrelated political factors. First, domestic protests in The Gambia, especially during April and May 2016, and persistent advocacy by a range of civic associations were able to keep the issue in the international media and on the radar screens of several key organizations. This was notable given the number of concurrent crises around the world.

Second, it was important that in the immediate aftermath of the vote, the AU, ECOWAS, and the UN recognized the legitimacy of the election and determined that Barrow’s victory was an accurate expression of the popular will. This view was reinforced by Jammeh’s bizarretelevised acceptance of his defeat. In retrospect, this was a significant error on his part.

As a result, and third, these events generated a high level of political unity at both ECOWAS and the AU Peace and Security Council in favor of ensuring a smooth transfer of power to Barrow. Particularly within West Africa, Jammeh was also widely despised by national publics and the region’s heads of state alike. The authorities in Senegal, Gambia’s neighbor, were particularly critical of Jammeh, in part because of his longstanding support to rebels in that country’s southern Casamance region. Senegal was probably, therefore, the leading proponent of threatening and using military force if required.

A related reason why West Africa’s leaders were united against Jammeh was the increased democratization the region had experienced over the past decade. Unlike in East Africa, for instance, when regional leaders did not strongly criticize Burundi’s President Pierre Nkurunziza’s decision to stand for a third term in office, few of West Africa’s heads of state would be condemning themselves if they criticized Jammeh’s push to overturn the constitutional process.

A fourth factor was The Gambia’s small size, and the concomitant fact that it posed a relatively small military challenge compared to some of Africa’s much larger states. Estimates for the strength of The Gambia’s active armed forces varied from about 800 to 1,000. In addition, in January 2017 about 350 Gambian troops were out of the country, deployed in UN peacekeeping operations. Hence, even if the army remained loyal to Jammeh in his attempt to prevent Barrow assuming the presidency, it was small in number. More concerning to ECOWAS and the AU, however, were the more opaque presidential guard, mercenaries, and other armed groups in The Gambia who might have fought in support of Jammeh.
A fifth factor was Gambia’s unique geography, which meant that military operations involving land, air, and naval forces were reasonably easy to execute and there was no need for strategic airlift capabilities to deploy ECOMIG.

Finally, it was important that after some intense mediation efforts, Jammeh was given an exit route and a relatively soft landing (including retaining many of his assets purchased from state coffers). Nevertheless, a deal was not certain until after ECOMIG’s deployment and was only concluded on January 21.

Paul D. Williams is Associate Professor of International Affairs at George Washington University. @PDWilliamsGWU.

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