{"id":85690,"date":"2017-01-20T02:47:39","date_gmt":"2017-01-20T00:47:39","guid":{"rendered":"http:\/\/www.myza.co.za\/the-questionable-legality-of-military-intervention-in-the-gambia-the-conversation\/"},"modified":"2017-01-20T02:47:39","modified_gmt":"2017-01-20T00:47:39","slug":"the-questionable-legality-of-military-intervention-in-the-gambia-the-conversation","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/the-questionable-legality-of-military-intervention-in-the-gambia-the-conversation\/","title":{"rendered":"The questionable legality of military intervention in The Gambia | The Conversation"},"content":{"rendered":"<p><a target=\"_blank\" target=\"_blank\" rel=\"nofollow\" href=\"http:\/\/theconversation.com\/the-questionable-legality-of-military-intervention-in-the-gambia-71595\">The questionable legality of military intervention in The Gambia<\/a>: <\/p>\n<figure><img decoding=\"async\" src=\"https:\/\/62e528761d0685343e1c-f3d1b99a743ffa4142d9d7f1978d9686.ssl.cf2.rackcdn.com\/files\/153510\/width496\/image-20170119-26543-1ujxeut.jpg\" \/><figcaption><span class=\"caption\">Gambia&#39;s President-elect Adama Barrow waves after his inauguration at Gambia&#39;s embassy in Dakar, Senegal. But will he be able to go home?<\/span> <span class=\"attribution\"><span class=\"source\">Reuters\/Thierry Gouegnon<\/span><\/span><\/figcaption><\/figure>\n<p>With tensions rising in The Gambia, a coalition of states have deployed forces along the country\u2019s borders, poised to launch a military intervention should President Yahya Jammeh refuse to cede power to opposition leader Adama Barrow. At the time of writing there were reports that Senegalese troops had crossed the border into The Gambia.<\/p>\n<p>While Jammeh is an unpopular figure domestically, regionally and internationally, the legality of a military intervention in The Gambia is far from clear. But whether the legality or otherwise of military intervention ever makes a difference to potential interveners is another matter. <\/p>\n<p>In essence, in Africa, as elsewhere, the key determinant on whether a military intervention takes place is political will rather than legality. Military intervention is sanctioned and executed by states. It is thus always a function of state interests rather than the objective, principled enforcement of law. <\/p>\n<p>As a result, the history of military intervention shows inconsistency and, at times, hypocrisy. <\/p>\n<h2>Sources of legality<\/h2>\n<p>The UN Security Council has the primary \u2013 some would say exclusive \u2013 authority to mandate military intervention. According to the UN Charter, force is legal in two circumstances: <\/p>\n<ul>\n<li>\n<p>under Article 51 states may use force in self-defence; while<\/p>\n<\/li>\n<li>\n<p>under Chapter VII the council can authorise the use of force in response to a threat to international peace and security. <\/p>\n<\/li>\n<\/ul>\n<p>In the case of The Gambia, self-defence clearly does not apply. And whether the matter is a threat to international peace and security is obviously a matter of opinion. But this is a largely academic consideration. <\/p>\n<p>In practice, since the end of the Cold War the Security Council has interpreted some internal crises as threats to international peace and security. For example, in 1994 it mandated the use of force in Haiti to restore the ousted president, Jean-Bertrand Aristide. <\/p>\n<p>While many welcomed its more proactive approach, the council has implemented this new understanding of its Chapter VII powers in a highly inconsistent and obviously political way. <\/p>\n<p>Under Article 52 the UN recognises a role for regional organisations in \u201cthe peaceful settlement of disputes\u201d. Article 53 stipulates that regional organisations can \u201ctake enforcement action\u201d but this must be done \u201cwith explicit authorisation by the Security Council\u201d. <\/p>\n<p>Thus, while regional organisations are legally empowered to take enforcement action, this does not diminish the primacy of the Security Council. In practice, however, it has proved willing to tolerate regional organisations acting without prior authorisation. <\/p>\n<p>This happened in 1990, when the Economic Community of West African States Monitoring Group (ECOMOG) intervened in Liberia and again in 1997 when it intervened in Sierra Leone. The monitoring group is a multilateral armed force established by the Economic Community of West African States.<\/p>\n<p>The primacy of the Security Council was challenged \u2013 to an extent \u2013 in 2003 by the African Union\u2019s (AU) Constitutive Act. Article 4(h) of the Act recognises its right:<\/p>\n<blockquote>\n<p>\u2026 to intervene in a member state pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide, and crimes against humanity. <\/p>\n<\/blockquote>\n<p>This led to debates as to whether the AU, in effect, declared itself an alternative source of authority to the Security Council.<br \/> Again, however, this is a largely academic matter for two reasons.<\/p>\n<p>First, the AU has never triggered the article. <\/p>\n<p>Second, and of more importance in the case of The Gambia, there is no evidence \u2013 yet \u2013 that war crimes, genocide, and crimes against humanity have been committed. The threshold has therefore not been met. <\/p>\n<p>But, in 2003, a \u201cProtocol on Amendments to the Constitutive Act of the AU\u201d was issued. This expanded the scope of Article 4(h) to include \u201ca serious threat to legitimate order\u201d. This would potentially apply in the case of The Gambia. But the protocols have not yet entered into force as two-thirds of the AU have yet to ratify them. <\/p>\n<p>The final, and most controversial, basis on which military intervention can be legitimised is unilateral humanitarian intervention. This relates to situations where a state or group of states act without explicit UN authorisation to prevent or halt atrocities being perpetrated inside another state. <\/p>\n<p>Perhaps the clearest example in recent years was NATO\u2019s intervention in Kosovo in 1999. While the illegality of such intervention is relatively clear, some have argued that such action can at times be legitimate on moral or humanitarian grounds. <\/p>\n<p>Tanzania\u2019s intervention in Uganda in 1979, though technically illegal, was essentially tolerated \u2013 and in some quarters openly welcomed \u2013 given the nature of Idi Amin\u2019s regime. Again, however, in the case of The Gambia, there is scant evidence of atrocity crimes. Thus this cannot be a basis on which an intervention is legitimised.  <\/p>\n<p>Not that the prospect of atrocity crimes in The Gambia can be ruled out. In June 2016 the UN Special Adviser on the Prevention of Genocide condemned Jammeh\u2019s inflammatory comments about the Mandinka ethnic group as \u201cirresponsible and extremely dangerous\u201d. Many have accused him of a history of inciting ethnic division.<\/p>\n<p>Thus, as it stands, it is not clear that military intervention in The Gambia would be legal. Yet one may well wonder whether this actually matters. History suggests that politics, rather than legal texts, determines both whether interventions take place, and how they are perceived by the international community <\/p>\n<h2>Law or politics?<\/h2>\n<p>In Africa, interventions to date illustrate that political calculations \u2013 particularly of powerful states \u2013 have always been key to the impetus for intervention. <\/p>\n<p>This is true too of the regional response to intervention. This was particularly evident in to Nigeria\u2019s role within ECOMOG. In 1990 the monitoring group intervened in Liberia, in 1997 in Sierra Leone, and in 1999 in Guinea-Bissau. <\/p>\n<p>The interventions in Liberia and Sierra Leone are generally deemed to have been a success. But the intervention in Guinea-Bissau \u2013 though initially key to preventing major loss of life \u2013 essentially ended in failure. Without the political will exercised by Nigeria, the interventions are unlikely to have occurred. <\/p>\n<p>In this sense, military interventions have always been the function more of political calculations than determinations to act in defence of human rights or defend democracy. Indicatively, ECOMOG\u2019s interventions highlighted fissures between Anglophone and Francophone states. Debates on the merits of military action have been largely divided along these lines. <\/p>\n<p>Both ECOWAS and the African Union are coalitions of states. Previous attempts to create a genuinely trans-state political union in Africa have failed, and while the AU\u2019s charter includes a provision for a standing army, this does not exist. Thus politics and national interests will, as ever, drive the response to The Gambia. <\/p>\n<p>A robust and quick response to this crisis may well be legitimate. But it will invariably lead people to wonder why the intervening states were so keen to act swiftly in The Gambia, while similar resolve was not in evidence elsewhere.<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" src=\"https:\/\/counter.theconversation.edu.au\/content\/71595\/count.gif\" alt=\"The Conversation\" width=\"1\" height=\"1\" \/> <\/p>\n<p class=\"fine-print\"><em><span>Aidan Hehir does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.<\/span><\/em><\/p>\n<p><small><strong>Source:<\/strong> <a target=\"_blank\" rel=\"nofollow\" href=\"http:\/\/theconversation.com\/the-questionable-legality-of-military-intervention-in-the-gambia-71595\">The Conversation \u2013 Articles (AFRICA)<\/a><\/small><br \/>\n<\/p>\n<p>Read more on <a target=\"_blank\" href=\"http:\/\/theconversation.com\" target=\"_blank\">The Conversation<\/a>.<\/p>\n<p><strong>Join the fun:<\/strong> <a target=\"_blank\" href=\"http:\/\/www.myza.co.za\/add-your-event\/\">Add Your event<\/a> | <a target=\"_blank\" href=\"http:\/\/www.mypr.co.za\/submit\">Submit a Press Release<\/a> | <a target=\"_blank\" href=\"http:\/\/www.myza.co.za\/directory\/\">Add your listing<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>The questionable legality of military intervention in The Gambia: Gambia&#39;s President-elect Adama Barrow waves after his inauguration at Gambia&#39;s embassy in Dakar, Senegal. But will he be able to go home? Reuters\/Thierry Gouegnon With tensions rising in The Gambia, a coalition of states have deployed forces along the country\u2019s borders, poised to launch a military [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","ngg_post_thumbnail":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[4584],"tags":[8890,14241,23537,8091,978,23536],"class_list":{"0":"post-85690","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-africa-news-2","7":"tag-conversation","8":"tag-gambia","9":"tag-intervention","10":"tag-legality","11":"tag-military","12":"tag-questionable","13":"entry"},"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/85690","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/comments?post=85690"}],"version-history":[{"count":0,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/85690\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media?parent=85690"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/categories?post=85690"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/tags?post=85690"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}