Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law
There has been a renewed interest in the debates on the use of force. This resurgence in academic... more There has been a renewed interest in the debates on the use of force. This resurgence in academic and policy circles can be attributed to the new wave of military interventions after the initial hiatus of the Global War on Terror period. The recent cases of the use of force are once again raising pertinent legal questions regarding the responsibility for the maintenance of international peace and security which is vested in the United Nations Security Council (UNSC) by the United Nations (UN) Charter. This authority, exemplified by the UNSC control of the use of force has been challenged by unilateral recourse to force by States, coalitions of States and regional organisations. The African Union (AU) has developed regional legal frameworks which may contest some established legal norms on the use of force, including the primary responsibility of the UNSC to authorise the use of force for the maintenance of international peace and security. In this article, I delineate these norm con...
From Humanitarian Intervention to the Responsibility to Protect
Springer eBooks, 2016
Since the Treaty of Westphalia of 1648, states have traditionally claimed exclusive jurisdiction ... more Since the Treaty of Westphalia of 1648, states have traditionally claimed exclusive jurisdiction over their citizens and have been averse to any external criticism of how they treat their nationals as undue interference in their internal affairs. However, that has been altered by the structure of the modern world of interdependence which has raised the level of international concerns with human rights. The international community is developing more and more intrusive norms and mechanisms for monitoring and protecting human rights within the territory of states. The doctrine of humanitarian intervention is probably the oldest of such doctrines. This doctrine did not have a precise meaning in the writings of early jurists and for a very long time, its scope and content remained unclear. Early state practice of humanitarian intervention was based on ‘religious solidarity’ and it was only in the nineteenth century that it began to acquire a specific and technical meaning. Yet, its legal validity before and after the UN Charter came into force remains controversial. In this chapter, I briefly track the origin and debates in the different stages of the normative evolution of the doctrine of humanitarian intervention and relevant international law norms that impact the doctrine. The purpose is to set out the scope and trajectory of the development of humanitarian intervention as a broad context within which to explore the legal validity of the AU–ECOWAS regional military intervention legal regimes under international law.
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 2023
There has been a renewed interest in the debates on the use of force. This resurgence in academic... more There has been a renewed interest in the debates on the use of force. This resurgence in academic and policy circles can be attributed to the new wave of military interventions after the initial hiatus of the Global War on Terror period. The recent cases of the use of force are once again raising pertinent legal questions regarding the responsibility for the maintenance of international peace and security which is vested in the United Nations Security Council (UNSC) by the United Nations (UN) Charter. This authority, exemplified by the UNSC control of the use of force has been challenged by unilateral recourse to force by States, coalitions of States and regional organisations. The African Union (AU) has developed regional legal frameworks which may contest some established legal norms on the use of force, including the primary responsibility of the UNSC to authorise the use of force for the maintenance of international peace and security. In this article, I delineate
Boko Haram and the Ambivalence of International Legal Response
There is a tendency to describe Boko Haram as a domestic terrorist group. While this may have bee... more There is a tendency to describe Boko Haram as a domestic terrorist group. While this may have been true in the origin and early phase of its evolution and whereas its seat of power is located in the northeast of Nigeria, it is beyond doubt now that Boko Haram is an international terrorist group. In this chapter, I argue that it is no longer relevant to maintain the ‘domestic terrorism’ and ‘international terrorism dichotomy’ with reference to Boko Haram. I argue that Boko Haram possesses the international characteristics and meets the criteria to qualify as an international terrorist group, and maintaining such distinction does not contribute to our understanding and legal response to Boko Haram as a terrorist group. This chapter concludes by highlighting the impending ‘apocalypse’ objective of global jihadists and proposes areas for future research to deepen our understanding and response to the growing threat of terrorism in Africa in general and in West Africa in particular.
Conclusion: The AU–ECOWAS Regional Military Intervention Legal Regimes and the Operationalisation of R2P in Africa Towards a Doctrine of Regional Responsibility to Protect
Humanitarian Intervention and the AU-ECOWAS Intervention Treaties Under International Law, 2016
My analysis thus far has focused on testing the legal validity of the AU–ECOWAS regional military... more My analysis thus far has focused on testing the legal validity of the AU–ECOWAS regional military intervention legal regimes and the raison d’etre for such treaty provisions. As a theoretical inquiry, I have focused on interrogating whether these treaty provisions can be said to be valid under international law. Through a deconstruction of articles 4(h) of the AU Constitutive Act, 16 and 17 of the AUPSC Protocol; and article 10 and 25 of the ECOWAS MCPMRPS Protocol, I identified the normative conflict between these provisions and the UN Charter and proceeded to subject them to legal validity tests using basic international law principles. However, establishing the legal validity of the AU–ECOWAS regional military intervention legal regimes will be of little utility if it does not in turn results in greater protection of human rights and the maintenance of peace and security in Africa, which is the essence of the AU and ECOWAS, the doctrine of humanitarian intervention and the emerging norm of responsibility to protect (R2P). This is even more so given the normative convergence of the AU–ECOWAS regional military intervention regimes and R2P. Building on my analysis of the legal validity of the AU–ECOWAS regional military intervention legal regimes, the current chapter proposes a theory of “regional responsibility to protect” for the implementation of R2P using the AU and ECOWAS frameworks.
‘The Law and Practice of Lawful Interception of Communications in South Africa’ in Yinka O. Omorogbe, (ed.) LAWFUL INTERCEPTION OF COMMUNICATIONS INI NIGERIA: BRIDGING THE GAP (2012) Abuja: Nigeria
The ECOWAS and AU peace and security legal frameworks have attracted little study amongst interna... more The ECOWAS and AU peace and security legal frameworks have attracted little study amongst international law scholars despite its far-reaching normative innovations and implications for Africa, the UN Charter-based law of humanitarian intervention and international law in general. With the exception of a couple of writers, the few studies that exist have dismissed such provisions as article 4(h) of the AU Constitutive Act and article 10 and 25 of the ECOWAS Mechanism for Conflict Prevention, Management, Resolution Peacekeeping and Security Protocol (MCPMRPS) as illegal treaties because of their incompatibility with articles 2(4), 24(1), 53(1) and 103 of the Charter. None of these studies examined the theoretical basis of these treaties and at a time the world is in search of a legal framework for the operationalisation of the Responsibility to Protect (R2P), it has become imperative to undertake an interrogation of the theoretical underpinnings of these treaties. My study tested the legal validity of the AU/ECOWAS intervention instruments using two theoretical frameworks: transformations of world constitutive process of authoritative decision and the illegal international legal reform theories. It also examined the validity of the treaties under conventional and customary international law. The thesis advanced three main arguments: First, I argued that there are four constitutive processes in the international legal order. The UN was designed to establish a system with effective hierarchical institutions of decision making where unilateral acts would be unnecessary and so illegal. The UNSC failed in its duty as the authoritative decision-maker saddled with the responsibility of maintaining international peace and security and protecting human rights. On this basis the unilateral interventions treaties established by AU/ECOWAS are valid. Secondly, I argued that in a legal system such as the UN Charter-based system that poorly approximates justice and where there are few prospects for legal reform, a unilateral act of illegal international legal reform aimed at bringing about moral improvement in the law is permissible. The AU/ECOWAS treaties constitute illegal international legal reform because they seek to improve the law of humanitarian intervention to prevent future mass atrocities. Thirdly, I argued that under treaty law, there are several grounds for holding the AU/ECOWAS laws valid, basically because they constitute treaty-based interventions for which UNSC authorization is not required. I conclude that the fundamental assumptions on which the Charter was based have been radically altered and African states can plead change of v circumstances to obviate the application of the full weight of the Charter framework. Based on the above conclusions, I proposed the AU/ECOWAS treaty regimes for a theory of regional responsibility to protect as a theoretical framework for the operationalisation of the R2P in Africa. vi DEDICATION This work is dedicated to God for His love and faithfulness. vii ACKNOWLEDGEMENTS I thank God for granting me the good health and the spirit of sound mind and understanding to undertake this research. In the course of writing this thesis I received invaluable support from several persons and institutions and I would like to express my gratitude to everyone including those space will not permit me to mention here. In your different ways you made this research possible. I am most grateful to my supervisor, Professor Garth Abraham, a guide and ‗honorary compatriot' from whom I learnt the important virtues of patience, humility and kindness. Over and above the meticulous and quality supervision I received from you, you gave me opportunities that did not just enable me write a thesis but greatly enhanced my overall intellectual development as your student and this has impacted me in more profound ways than you can ever imagine. I could not have wished for a better supervisor. I owe a debt of gratitude to Julie Dunsford of the Mandela Institute. Julie was always willing to listen and help in any way she could to make sure this research was completed. I am
The Weaponisation of Women by Boko Haram and the Prospects of Accountability
Boko Haram has made extensive use of women in its tactical evolution since the beginning of the c... more Boko Haram has made extensive use of women in its tactical evolution since the beginning of the current insurgency in northeast Nigeria. This chapter examines the instrumentalisation of women by Boko Haram both as direct targets of attacks and as operational deployments over the last few years. The chapter examines some of the different ways in which Boko Haram has weaponised women in its insurgency and the international legal framework protecting women in the conflict. I argue that although there exist a wide range of international legal instruments that protect women in a non-international armed conflict such as the Boko Haram conflict and thus could be used for the prosecution of violators, for a variety of reasons, the prospects of holding perpetrators of crimes against women in the Boko Haram conflict accountable are very slim even if the conflict ends. There is a general lack of interest in prosecuting crimes against women in Nigeria even in peace times. There is reluctance on...
On the Brink? The Nigerian State and the Making of Boko Haram
The rise of Boko Haram as a terrorist group in Nigeria has been attributed to different factors r... more The rise of Boko Haram as a terrorist group in Nigeria has been attributed to different factors ranging from poor governance, poverty and socio-economic deprivation, to struggle for political power at the centre as a means to Nigeria’s oil wealth. In this chapter, I briefly sketch the several layers of interconnected local, regional and international factors that have combined to produce one of the deadliest terrorist groups in the world. I argue that just as international law has struggled to grapple with the challenges posed by international terrorism as a legal phenomenon, combating the local manifestation of this phenomenon by states such as Nigeria has been constrained by the international legal lacunae as much as by a confluence of domestic social, economic, religious and political fault lines, the most threatening of which, in the case of a deeply divided country like Nigeria, is the dangerous mix of religion and politics, which have combined to produce Boko Haram and have br...
Upon its inception on 17 July 1998, Africa had the largest number of states supporting the ICC. F... more Upon its inception on 17 July 1998, Africa had the largest number of states supporting the ICC. Fast forward to 2018, Africa now represents the single largest regional bloc threatening mass withdrawal from the ICC. The genesis of the sour relationship between the ICC and African states has its roots in one main issuethe indictment and arrest warrant issued against President Omar al Bashir of Sudan. That arrest warrant raised two main legal issues-the international law immunity of sitting heads of state from criminal prosecutions in international criminal tribunals, and the legality of ICC jurisdiction over nationals of a non-party state to the Rome Statute. The former issue generated a great deal of debate in the early days of the ICC but the latter has received less attention and it is the focus of this article. One of the ways the ICC can assume jurisdiction in a certain situation is if this situation is referred to the ICC by the UN Security Council. The legal basis of such a referral under international law warrants closer examination. Some commentators argue that the UN Security Council has the authority to confer jurisdiction over nationals of non-party states on the ICC. In this article, I argue that the authority of the ICC to assume jurisdiction over nationals of a non-state party on the basis of a UN Security Council referral rests on grounds of questionable legality in international law.
The Weaponisation of Women by Boko Haram and the Prospects of Accountability
Boko Haram and International Law, 2018
Boko Haram has made extensive use of women in its tactical evolution since the beginning of the c... more Boko Haram has made extensive use of women in its tactical evolution since the beginning of the current insurgency in northeast Nigeria. This chapter examines the instrumentalisation of women by Boko Haram both as direct targets of attacks and as operational deployments over the last few years. The chapter examines some of the different ways in which Boko Haram has weaponised women in its insurgency and the international legal framework protecting women in the conflict. I argue that although there exist a wide range of international legal instruments that protect women in a non-international armed conflict such as the Boko Haram conflict and thus could be used for the prosecution of violators, for a variety of reasons, the prospects of holding perpetrators of crimes against women in the Boko Haram conflict accountable are very slim even if the conflict ends. There is a general lack of interest in prosecuting crimes against women in Nigeria even in peace times. There is reluctance on the part of government to prosecute Boko Haram operatives, and the few cases of Boko Haram arrests and prosecution that have taken place so far have mainly focused on acts of terrorism and threats to national security to the neglect of abuses committed against women. I conclude that the culture of impunity in Nigeria and human rights violations will hinder efforts to hold the perpetrators of violence against women during the armed conflict to account. I then make recommendations for accomplishing this task.
The Roles of the UN and the AU in The Operationalisation of R2P in Africa: Towards Legal and Institutional Complementarity
SSRN Electronic Journal, 2016
Since its adoption, Article 4(h) of the African Union has attracted the attention of commentators... more Since its adoption, Article 4(h) of the African Union has attracted the attention of commentators. The Article gives the African Union the right to intervene in member states to prevent war crimes, crime against humanity and genocide. The African Union has been working to develop the institutional mechanisms for the implementation of this provision. At the global level, the principle of the responsibility to protect and the UNSC as the institutional mechanism for its implementation was endorsed by States at the World Summit in 2005. Regional organisations and the UN Security Council were expected to cooperate in the implementation process. As is to be expected, Africa provided the first test cases for R2P and this has exposed the underbelly of the so-much touted “cooperation and partnership” between the African Union and the United Nations. I argue in this article that the intervention in Libya for example shows the turf fighting between the two organisations in the area of maintenance of peace and security in Africa. Notwithstanding the occasional partnership, the relationship between the AU and the UN in this area is often one of ‘institutional competition’ for relevance and control rather than ‘institutional cooperation’ and this often undermines their ability to intervene to prevent or halt mass atrocities in compelling cases. I conclude by proposing a transition from just institutional cooperation and partnership to institutional complementarity.
The Legal Validity of the AU–ECOWAS Regional Military Intervention Legal Regimes in a Transformed Global Constitutive Process
Humanitarian Intervention and the AU-ECOWAS Intervention Treaties Under International Law, 2016
In the previous chapter I examined the AU–ECOWAS regional military intervention legal regimes and... more In the previous chapter I examined the AU–ECOWAS regional military intervention legal regimes and considered specific provisions and their compatibility with the UN Charter. I argued that at the normative level, the key provisions in the AU and ECOWAS treaties reveal a deliberate departure from the UN Charter collective security system and seek to pursue the protection of human rights, peace, security and stability in Africa outside the UN Charter framework; cooperating with the UN when possible and necessary, but also retaining for the AU and ECOWAS a domain reserve—primary responsibility for the maintenance of peace and security in Africa and the authority to undertake enforcement actions without UN Security Council authorisation. Consequently, I identified four arenas of normative incompatibility and ambiguities between the AU–ECOWAS regional military intervention legal regimes and the UN Charter and the challenge posed by these developments to the Charter system and international law on the use of force. I also highlighted the objections raised about the legal validity of the AU–ECOWAS regional military intervention legal regimes as a result of these normative incompatibilities with the UN Charter. However, I argued that rather than dismiss the regimes as invalid for imposing obligations on members which conflict with their UN Charter obligations, and thus, apparently incompatible with the Charter, the provisions should be seen as underscoring the need for a theoretical deconstruction to ascertain the legal validity or otherwise of these treaty provisions in order to reconstruct a regime of normative compatibility between the UN Charter and the AU–ECOWAS regional military intervention legal regimes with a view to optimising the utility whether as instruments for traditional humanitarian intervention or for the operationalisation of R2P in Africa.
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