»Restore Democracy«: Völkerrechtliche Fragen der militärischen Beendigung der Verfassungskrise in Gambia

On 19 January 2017 troops from the Economic Community of Western African States (ECOWAS) member states Senegal, Ghana and Nigeria intervened in the Gambia to oust President Yahya Jammeh who had enjoyed autocratic rule of the tiny West African State since 1994. Before, Jammeh had previously lost the presidential election to contender Adama Barrow in December 2016, but refused to transfer power to the president-elect. ECOWAS issued an ultimatum according to which Jammeh had to leave office as soon as his term had expired, otherwise the election result would be enforced by military means. As the out-going president's term ended, Barrow, who had fled Gambia to neighboring Senegal, was inaugurated in the Gambian Embassy in Dakar. In his inauguration speech Barrow appealed to the international and regional community to assist him in the implementation of the results of the election. Furthermore, the Security Council of the United Nations passed resolution 2337 (2017) on the situation in the Gambia. Against this backdrop, this essay assesses the situation according to the rules governing the use of force in international relations. It demonstrates that Resolution 2337 does not contain an authorization for the use of force. The only legal hook on which the intervention can be hung is Barrow's appeal. However, as he had no effective control over Gambian affairs when he was inaugurated, it is questionable whether he was legally entitled to issues such an invitation for foreign military intervention. This raises the question of whether democratic or constitutional legitimacy can substitute a lack of efficiency in determining the government of a state under international law. The essay further examines the different threats to use force against Gambia by the African Union, ECOWAS and several of its member states prior to the intervention, which were used to force Jammeh out of office. It is shown that a threat to use force is permissible, when it is accompanied by a statement that force will be used only if a valid title to intervention under international law exists. Most of the threats in the Gambia case fail this test.