By Group Captain Sadeeq Garba Shehu (rtd)
Probably for the first time, many Nigerians are learning that the National Assembly has powers to block the deployment on Nigerian military outside Nigeria even if the President and Commander in Chief wishes to do so.
These latent constitutional provisions have always been there, but have never been triggered in previous administrations and during previous deployments based on an erroneous idea that the matter of military deployment is the exclusive preserve of the Executive.
That the President has written to ask NASS approval, and the NASS is considering , is in itself a good thing and sign of some maturity in our democracy and a hitherto hardly seen realization that matters of security and defence are almost equally shared by the Legislature and the Executive.
Based on interview I had with ARISE TV yesterday, and based on questions that I have been asked by some individuals, permit me to explain the domestic and international law issues that are germane to the deployment of Nigerian military outside Nigeria and the wider issue of use of force through external interventions.
I must signal, like I always do that I am not a lawyer in the traditional meaning of the word. But I am a scholar and practitioner of “Military Operations Law” and thus I operate at the intersection between law and military operations. Operations law crosses the lines of many subdisciplines within military law; it is partly practiced in a combat or contingency environment and partly practiced in the international environment.
Operations law is more than the traditional law of armed conflict. It is the domestic, foreign, and international law associated with the planning and execution of military operations in peacetime or hostilities. It includes, but is not limited to, the Law of Armed Conflict, the law relating to security assistance, training, mobilization, pre-deployment preparation, deployment, peacekeeping operations, the planning and executing the deployment and employment and conduct of military combat operations, anti-and counter-terrorist activities, status of forces agreements, operations against hostile forces, civil-military relations and democratic control of the armed forces.
By its nature, it transcends traditional military legal disciplines and incorporates relevant aspects of international law, criminal law, administrative law, acquisition law, and fiscal law. Its function is to enable the judge advocate to provide a wider range of informed legal advice to the commander, thus, contributing in a more positive fashion to the overall success of the mission.
THE NIGERIAN DOMESTIC CONSTITUTIONAL ANGLE
Section 5. (4) of the Nigerian Constitution ON THE EXECUTIVE POWERS OF THE PRESIDENT , after listing the enormous powers of the Executive, put a check on those powers by stating : (4) Notwithstanding the foregoing provisions of this section:- (a) the President shall not declare a state of war between the Federation and another country except with the sanction of a resolution of both Houses of the National Assembly, sitting in a joint session;
and (b) except with the prior approval of the Senate, no member of the armed forces of the Federation shall be deployed on combat duty outside Nigeria.
However , the drafters of the Constitution wisely reasoned that there could be emergency situations which cannot wait for legislative approval and thus added : (5) Notwithstanding the provisions of subsection (4) of this section, the President, in consultation with the National Defence Council, may deploy members of the armed forces of the Federation on a limited combat duty outside Nigeria if he is satisfied that the national security is under imminent threat or danger: PROVIDED that the President shall, within seven days of actual combat engagement, seek the consent of the Senate and the Senate shall thereafter give or refuse the said consent within 14 days.
Given that the Constitution did not specify two-thirds, we can assume a simple majority vote is required from NASS to approve or reject President’s request to deploy.
WEST AFRICA ECOWAS ANGLE ECOWAS PROTOCOL
All the actions so far taken or being contemplated by ECOWAS with Nigeria President Bola Ahmed Tinubu as Chair are solely based on the ECOWAS PROTOCOL RELATING TO THE MECHANISM FOR CONFLICT PREVENTION, MANAGEMENT, RESOLUTION, PEACE–KEEPING AND SECURITY which was adopted in 1999, and signed by all 15 ECOWAS Member States in 2001.
It is important to state that under the oldest International Law principle of pacta sunt servanda (“agreements must be kept”), that when ECOWAS member states ratified this protocol they, for all intents and purposes, intended to bind themselves forevermore to ECOWAS’ sole authority to intervene in members’ conflicts and have thus given advance consent to ECOWAS intervention under circumstances enumerated in the Protocol. Of course a country may withdraw from any treaty but it is important to state with regards to the ECOWAS Protocol any country wishing to withdraw must give a one year notice but Article 91 states that “[d]uring the period of one year referred to in the preceding paragraph, such a Member State shall continue to comply with the provisions of this Treaty and shall remain bound to discharge its obligation under this Treaty.” ie the terms of Article 91(2) are mandatory and not open to the discretion of member states.
It states that such a member state shall continue to comply with the provisions and shall remain bound to discharge its obligation under the treaty meaning for a state that has served a notice of withdrawal on the organization, this does not affect the import of that provision so during the pendency of the notice to withdraw, a state is theoretically bound to accept ECOWAS intervention.
In the preamble, the term ‘Member State in crisis’ refers both to a Member State experiencing an armed conflict as well as a Member State facing serious and persisting problems or situations of extreme tension which, if left unchecked, could lead to serious humanitarian disaster or threaten peace and security in the sub–region OR ANY MEMBER STATE AFFECTED BY THE OVERTHROW OR ATTEMPTED OVERTHROW OF A DEMOCRATICALLY ELECTED GOVERNMENT.
Article 25: Conditions for Application The Mechanism shall be applied in any of the following circumstances: In case of internal conflict: (a) that threatens to trigger a humanitarian disaster, or . (b) that poses a serious threat to peace and security in the sub–region; In event of serious and massive violation of human rights and the rule of law. IN THE EVENT OF AN OVERTHROW OR ATTEMPTED OVERTHROW OF A DEMOCRATICALLY ELECTED GOVERNMENT; Any other situation as may be decided by the Mediation and Security Council
Article 3 on the Objectives of the Mechanism states : The objectives of the Mechanism shall be as follows: (h) CONSTITUTE AND DEPLOY A CIVILIAN AND MILITARY FORCE TO MAINTAIN OR RESTORE PEACE 5 WITHIN THE SUB–REGION, WHENEVER THE NEED ARISES;
Article 10: Functions states: The Mediation and Security Council shall take decisions on issues of peace and security in the sub–region on behalf of the Authority. It shall also implement all the provisions of this Protocol. The Mediation and Security Council shall among other things : (a) decide on all matters relating to peace and security; and (c) authorise ALL FORMS OF INTERVENTION and decide particularly on the deployment of political and military missions.
To be sure, Article 10(c) of the Protocol empowers ECOWAS to dispense with the UN Security Council authorization as sine qua non to its enforcement actions in West African conflicts. In effect, through its Protocol, ECOWAS signaled a radical departure, not only from the legal regime under which its first experience of intervention in Liberia/Sierra Leone was perfected, but also from the classical relationship that existed between its own collective security regime and that of the U.N. In regards to the latter, ECOWAS did deliberately decide to do away with the provisions of Article 53(1) of the U.N. Charter mandating regional arrangements to first seek the authorization of the Security Council before embarking on an enforcement action.
Article 22: Role of ECOMOG . ECOMOG is charged, among others, with the following missions: (a) Observation and Monitoring; (b) Peacekeeping and restoration of peace; (c) Humanitarian intervention in support of humanitarian disaster; (d) Enforcement of sanctions, including embargo; (e) Preventive deployment; (f) Peacebuilding, disarmament and demobilisation; (g) Policing activities, including the control of fraud and organised crime; (h) ANY OTHER OPERATIONS AS MAY BE MANDATED BY THE MEDIATION AND SECURITY COUNCIL.
Article 26: Authority to Initiate The Mechanism shall be put into effect by any of the following: (a) Upon the decision 12 of the Authority; (b) Upon the decision of the Mediation and Security Council; (c) At the request of a Member State; (d) On the initiative of the Executive Secretary; (e) At request of the Organization of African Unity or the United Nations.
Article 27: Procedure The Mechanism shall be applied according to any of the following procedures: The Executive Secretary shall inform Member States of the Mediation and Security Council and, in consultation with the Chairman, take all necessary and urgent measures; The Mediation and Security Council shall consider several options and decide on THE MOST APPROPRIATE COURSE OF ACTION TO TAKE IN TERMS OF INTERVENTION. Such options may include recourse to the Council of Elders, the dispatch of fact–finding missions, political and mediation missions or intervention by ECOMOG;
Article 28: Composite Stand–by Units Member States hereby agree to make available to ECOMOG units adequate resources for the army, air force, navy, gendarmerie, police and all other military, paramilitary or civil formations necessary for the accomplishment of the mission. Each Member State shall provide ECOMOG with a unit the size of which shall be determined after consultation with each Member State. The strengths of these units shall be reviewed according to the situation on the ground.
UN CHARTER ANGLE
The U.N. Charter codifies, amongst other things, the laws of armed conflict and use of force. States implement those laws and it is this implementation of these laws that is referred to as collective security. Whilst states incur certain obligations under the Charter, the Charter has not carved how states may apply its laws in stone. States, through their practice, must make meaning out of Charter provisions. In other words, the UN Charter prescribes, but states apply. In this application, states have their own assessment of the Charter laws, as to their adequacy or otherwise to specific scenarios. When states perceive the need, they adopt other treaties which may complement the Charter or depart from it. ECOWAS Protocol did depart from UN Charter in certain aspects especially with respect to seeking UNSC consent before any enforcement action .
One of the most important principles of international law is the prohibition against the use of force. This rule is codified in Article 2(4) of the United Nations Charter which provides that a UN member state cannot threaten or use force against the territorial integrity or political independence of another state, or in any way that diverges from the purposes of the UN. Although Article 2(4) does not use “armed” or a similar word, most theorists believe that it only prohibits military force, excluding non-military forms of coercion such as economic sanctions or cyberattacks. Other provisions of the UN Charter might cover non-military forms of coercion.
Under Chapter VIII on Regional Arrangements, UN Charter, Article 52 states: Nothing in the present Charter precludes the existence of regional arrangements (such as ECOWAS) or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.
The Members of the United Nations entering into such arrangements or constituting such agencies SHALL MAKE EVERY EFFORT TO ACHIEVE PACIFIC SETTLEMENT OF LOCAL DISPUTES THROUGH SUCH REGIONAL ARRANGEMENTS or by such regional agencies before referring them to the Security Council. The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council.
Article 53: The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority.
BUT NO ENFORCEMENT ACTION SHALL BE TAKEN UNDER REGIONAL ARRANGEMENTS OR BY REGIONAL AGENCIES WITHOUT THE AUTHORIZATION OF THE SECURITY COUNCIL
Article 54 : The Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security.
I end by saying even though here I touched only on the legal angle, there are other equally important angles which must be factored in to arrive at a good decision. These include operational angle, domestic angle in Nigeria, domestic angle in Niger, and the angle of what best suits Nigeria’s national interests.
President Bola Ahmed Tinubu needs quality legal, diplomatic, and operational/military advice in order for him to be able to select the best course of action that delicately balances his twin responsibilities of President of Nigeria and Chairman ECOWAS.
Group Captain Sadeeq Garba Shehu (rtd) is an international Defence and Security Consultant