17732-Article Text-24983-1-10-20140821 PDF

STATE PRACTICE EVIDENCE OF THE HurMANrARIAN
INTERVENTION DOCTRINE: THE ECOWAS

INTERVENTION IN SIERRA LEONE
I. INTRODUCTION
The world is replete with humanitarian disasters, often perpetrated by

governments upon their own citizens. Today, civilians in Afghanistan,
Burundi, Columbia, Democratic Republic of Congo, Indonesia, Iraq, Sudan,
and many other countries suffer murder, rape, and torture at the hands of
government or paramilitary forces.' Unfortunately, with few exceptions,' the
United Nations (U.N.) Security Council is unwilling or unable to act due to
institutional and political barriers to worldwide collective action. Despite the
failure of the U.N., states still have a moral imperative to stop governments
from committing large-scale atrocities against their own people. In a number
of recent cases, states have engaged in unilateral" humanitarian interventions5
to solve these crises. While such humanitarian interventions are good policy,
are they in accordance with international law?
Treaties are a central component of international law,6 and the U.N.
Charter, with 189 state signatories, is the paramount multilateral treaty.
1. See generallyAMNESTY INTERNATIONAL, REPORT2000 (2000) (documenting humani-

tarian disasters and atrocities worldwide).
2. See, e.g., Res. 688, U.N. SCOR, 2982d mtg., U.N. Doec. S/RES/688 (1991) (calling
for humanitarian assistance for Kurds in Iraq); Res. 794, U.N. SCOR, 3145th mtg., U.N. Doc.
SIRES/794 (1991) (authorizing large and far-reaching humanitarian mission in Somalia).
3. Even in those instances where the U.N. Security Council purportedly authorized a use
of force to intervene in a humanitarian crisis, it did so reluctantly. See Jeffrey Clark, Debacle
in Somalia: Failure of the Collective Response, in ENFORCING RESTRAINT: COuECTIVE
INTERVENTION ININTERNAL CONFLICTS 205,221-22 (Lori Fisler Damrosch ed. 1993); Jane E.
Stromseth, Iraq'sRepression of Its CivilianPopulation:Collective Responses and Continuing
Challenges, in ENIRCING RESTRAIn: CouiEcTIVE INTERVENTION ININTERNAL CONFLICTS,
supra at 77, 79.
4. Unless otherwise noted, the use of the word "unilateral" in this note indicates actions
taken by a state alone or a group of states through a regional organization, as opposed to a
United Nations sponsored "collective action." For similar treatment, see David J. Scheffer,
Towarda Modern Doctrine ofHumanitarianIntervention,23 U. TOL L. REv. 253,264 (1992).
"Joint action" refers to an intervention conducted by more than one nation, but without U.N.
approval.
5. "Humanitarian intervention has been defined as: '[T]he justifiable use of force for the
purpose of protecting the inhabitants of another State from treatment so arbitrary and
persistently abusive as to exceed the limits within which the sovereign is presumed to act with
reason and justice."' Jean-Pierre L. Fonteyne, The Customary InternationalLaw Doctrineof
HumanitarianIntervention: Its CurrentValidity Under the U.N. Charter,4 CAL W. INT'LL.J.
203-04, n.3 (1974), quoting E. STONWELL, INTERNATIONAL LAW 348 (1931).
6. See Vienna Convention on the Law of Treaties, May 23, 1969, U.N. Doec. A/CONF.
39/27, at Pmbl.
7. See Information Technology Section, Department of Public Information, United
IND. INT'L & COMP. L. REv. [Vol. 11:3
Literally interpreted, 8 Article 2(4) of the U.N. Charter explicitly prohibits a

state from using force against another state,9 except in self-defense.' 0
However, customary international law, the common law of interstate relations,
is equal in status to treaties as a source of international law." When a treaty
and customary international law conflict, the "last in time" rule applies, which
states that the law that came into existence last generally prevails.' 2 Assuming3
the U.N. Charter prohibits states from intervening with force in another state,'
any lawful humanitarian intervention must be founded on overriding, more
recently formed customary international law. Thus, for a humanitarian
intervention not approved by the U.N. Security Council to be legal, customary
international law allowing humanitarian interventions must have formed since
the original signing of the U.N. Charter in 1945.
To prove the existence of customary international law, one must
establish both historical state practice and opiniojuris.4 First, the consistent,
reoccurring acts and policies of states must reflect the customary international
law.' 5 State practice, either unilateral or joint action, includes uses of force
and other state policies, diplomatic acts and official statements, and even
instances of state inaction.'" Second, to have opiniojuris,"it must appear that
the states follow the practice from a sense of legal obligation."' 7 To
demonstrate the existence of customary law, a state must provide evidence that
the act completed was due to the compulsion of, or the belief that their actions
were consistent with, international law.'8 Evidence of opiniojurismay include
official pronouncements of states, statements of international and national
judicial tribunals, and writings of scholars.' 9 With extensive evidence of state
practice and opinio juris, jurists can pronounce the existence of a rule of
Nations, Growth in UnitedNations Membership, 1945-2000, available at http://www.un.org/

Overview/growth.htm (2000).
8. See Vienna Convention on Law of Treaties, supra note 6, at art. 31 (interpreting
treaties using the plain meaning of their texts).
9. U.N. CHARTER art. 2, para. 4.
10. Id. art. 51. Some jurists argue that unilateral humanitarian intervention is legal
directly under the U.N. Charter, including Article 2(4). See. e.g., Laura Geissler, The Law of
Humanitarian Intervention and the Kosovo Crisis, 23 HAMUNE L. REv. 323, 337-38 (2000).
See also text accompanying infra notes 47-48.
11. See RESTATEMENT (THIRD) OFFOREIGN RELATIONS LAW § 102 cmt. j (1986); see also
Statute of the International Court of Justice, June 26, 1945, art. 38, § 1, 59 Stat. 1055, 1060.
12. RESTATEMENT(THIRD) OF FOREIGN RELATIONS LAW § 102 cmt. j (1986).
13. Many scholars do not accept the assumption that the U.N. Charter prohibits
humanitarian interventions. See infra text accompanying notes 46-50.
14. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 102(2) (1986); see also J.
STARKE, INTRODUCTION TO INTERNATIONAL LAW 34-38 (9th ed. 1984), reprinted in
INTERNATIONAL LAW 134-36, 136 (Barry Carter & Phillip Trimble, eds., 3rd ed. 1999).
15. STARKE, supra note 14, at 136.
16. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 102 cmt. b (1986).
17. id. § 102 cmt. c.
18. STARKE, supranote 14, at 136-37.
19. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 103(2) (1986).
2001] EVIDENCE OF THE HUMANITARIAN INTERVENTION DOCTRINE 607
customary international law and states can safely act in accordance with that
law.
Today, many scholars support the humanitarian intervention doctrine, a
rule of customary international law providing an exception to the general
prohibition on the use of force for humanitarian interventions. Unfortunately,
these proponents have so far failed to accumulate enough evidence to establish
the substantiality necessary to prove customary international law, due to the
quantity and quality of their state practice analyses. First, while there is no
fixed quantity of state practice examples required to prove customary
international law, a majority of jurists are unconvinced of the existence of the
humanitarian intervention doctrine because of an insufficient number of
concrete cases. Recently, however, the world has seen a number of unilateral
humanitarian interventions, most notably in Kosovo,20 nearly overcome that
lack of evidence. The doctrine will become commandingly persuasive with
the addition of a few future interventions. This article will add to that quantity
of state practice evidence by examining the 1998 intervention in Sierra Leone
by the Economic Community of Western African States (ECOWAS), an
economic union and regional security organization that includes Sierra Leone
and most other nations of Western Africa.2'
Second, jurists on both sides of the debate have been too quick to judge
the existence of the humanitarian intervention doctrine. Proponents of the
doctrine, like Jean-Pierre Fonteyne, Michael Bazyler,' and Ved Nanda,24
arrive at the realization of the doctrine in a few pages after abbreviated
20. See Geissler, supra note 10, at 344-45 (arguing that Kosovo provided state practice
evidence of the humanitarian intervention doctrine); but see Jules Lobel, Benign Hegemony?
Kosovo and Article 2(4) of the U.N. Charter, 1 CM. J.INT'L L. 19, 36 (2000) (claiming that
NATO's action "in Kosovo cannot be viewed as groping toward a new international law
doctrine of humanitarian intervention"); Julie Mertus, Reconsidering the Legality of
HumanitarianIntervention:Lessonsfrom Kosovo, 41 WM. &MARY L. REv. 1743,1787 (2000)
(concluding that humanitarian intervention in Kosovo was legal under international law).
21. See generallyEconomic Community of West African States: Revised Treaty, July 24,
1993, 35 IL.M. 660 (1996) [hereinafter ECOWAS Treaty]. Signatory nations are Benin,
Burkina Faso, Cape Verde, Cote dIvoire, the Gambia, Ghana, Guinea, Guinea Bissau, Liberia,
Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, and Togo. See id. preamble, 35 I.L.M.
at 664. ECOWAS was formed in 1975.
22. See Fonteyne, supra note 5 (developing the humanitarian intervention doctrine and
defending it against challenges of invalidity considering article 2(4) of the U.N. Charter).
23. See Michael Bazyler, Reexaminin8 the Doctrine of HumanitarianIntervention in
Light of the Atrocities in Kampuchea and Ethiopia, 23 STANORD J. INT'L L. 547 (1987)
(expounding and establishing criteria for the humanitarian intervention doctrine).
24. See Ved P. Nanda, Tragedies in Northern Iraq, Liberia, Yugoslavia, and Haiti -
Revisiting the Validity of HumanitarianIntervention Under International Law - Part 1, 20
DENV. J. INT'L L. & PoL'Y 305 (1992) (examining the humanitarian intervention doctrine in
light of contemporary interventions) [hereinafter Tragedies/];Ved P. Nanda et al., Tragedies
in Somalia, Yugoslavia, Haiti,Rwanda and Liberia - Revisiting the Validity of Humanitarian
Intervention Under InternationalLaw - Part I!, 26 DENY. J. INT'L L. & POL'Y 827 (1998)
(updating his previous article with short case studies of recent state practice) [hereinafter
TragediesIll.
IND. INT'L & COMP. L. REV. [Vol. 11:3
examinations of former state practice and opinio juris. In a similar manner,

opponents of the doctrine, such as Ian Brownlie,l Oscar Schachter,2 and Jost
Delbruck,"' summarily deny its existence without thoroughly examining each
example of state practice or opiniojuris. While these scholars support their
assertions with skillful analysis, because they discuss so many supporting
examples, they truncate each analysis to fit concisely into a single article.
Jurists cannot, however, curtail the laborious process of proving the existence
of customary international law: scholars must methodically examine each
piece of opinio juris or state practice evidence to determine its relevance,
weight and true meaning. Only after a truly thorough analysis can a jurist
point to the required mountain of evidence and declare the existence of the
humanitarian intervention doctrine. Thus, to prove the humanitarian
intervention doctrine, one must examine separately and exhaustively each
piece of evidence that supports the doctrine. This article aims to examine one
piece of state practice evidence with sufficient particularity.
For a state practice to give support to the existence of the humanitarian
intervention doctrine, it must comply with the criteria formulated in
Conditionalist theory. Conditionalists recognize the legality of humanitarian
interventions, but to curb abuse "would allow the unilateral use of force for
humanitarian purposes when certain objective criteria are met."28 While
numerous other scholars have proposed theories on the legality of humanitar-
ian intervention,2 9 only true Conditionalists, such as Fonteyne, Bazyler, and
25. See Ian Brownlie, HumanitarianIntervention, in LAW AND CIVIL WAR IN THE
MODERN WORLD 217, 219 (John Norton Moore ed., 1974) (arguing self-help by states is illegal
except in self-defense after enactment of article 2(4) of the U.N. Charter).
26. See Oscar Schachter, The Right ofStates to Use Armed Force,82 MICH.L. REv. 1620
(1984) (concluding that unilateral intervention is only allowed in self-defense and possibly the
rescuing of hostages); Oscar Schachter, The Legality of Pro-DemocraticInvasion, 78 AM. J.
INT'L L. 645 (1984) (rejecting unilateral intervention on humanitarian grounds); Oscar
Schachter, In Defense ofInternationalRules on the Use of Force,53 U. CI. L. REv. 113 (1986)
(arguing that law limits unilateral uses of force to self-defense).
27. See lost Delbruck, Commentaryon InternationalLaw: A FreshLook at Humanitarian
Intervention Underthe Authority ofthe United Nations, 67 IND. L.J. 887 (1992) (promoting an
expanded role for U.N. humanitarian interventions while simultaneously denying the legality
of any humanitarian intervention without U.N. authority).
28. Byron F. Burmester, On HumanitarianIntervention:The New World Orderand Wars
to Preserve Human Rights, 1994 UTAH L. REv. 269, 279 (1994).
29. See Geissler, supra note 10, at 333-35 (surveying modem scholars supporting
humanitarian intervention); see also, e.g., Lois E. Fielding, Taking the Next Step in the
Development of New Human Rights: The Emerging Right of HumanitarianAssistance to
Restore Democracy, 5 DUKE J.COMp. & INT'LL. 329,374 (1995) (arguing that there is a right
to humanitarian intervention, for preventing atrocities and restoring democracy); Thomas M.
Franck, Fairnessin the InternationalLegal and InstitutionalSystem, 240 RECUEIL DES COURS
[COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAW] 9, 256-57 (1993)
(permitting humanitarian intervention when there is a "genuine, immediate and dire emergency
which could not be redressed" without intervention, and requiring an exhaustion of U.N.
remedies); Jeremy Levitt, HumanitarianIntervention by RegionalActors in InternalConflicts:
Nanda, 30 present the humanitarian intervention doctrine in a useful and

understandable way by employing normative criteria. Part II of this note
discusses the Conditionalist theory in detail. Part MIdepicts the human rights
disaster that enveloped Sierra Leone directly after the 1997 coup and the
ECOWAS intervention that ended the crisis nine months later." Part IV
briefly reviews other theories on the legality of the ECOWAS intervention.
Part V demonstrates how the ECOWAS intervention conformed to the
humanitarian intervention doctrine by applying Conditionalist criteria,
therefore providing evidence of state practice for the humanitarian intervention
doctrine. In the words of Justice Horace Gray, this note is not a statement of
"the speculations of [the author] concerning what 32
the law ought to be, but ...
trustworthy evidence of what the law really is."
II. CONDITIONALIST THEORY ON AN EXCEPTION TO THE PROHIBITION

AGAINST USE OF FORCE FOR HUMANITARIAN INTERVENTIONS
A. Development of ConditionalistTheory
Over the past thirty years, Conditionalists have described customary

international law as permitting unilateral humanitarian intervention. 3 By
relying on historical state practice and opiniojuris,the Conditionalists argued
that a right of humanitarian intervention exists and defined its scope with five
criteria.' State practice and opinio juris from both before and after the
formation of the U.N. in 1945 supported the Conditionalist theory. 3 Before
The Cases of ECOWAS in Liberia and Sierra Leone, 12 TEMP. INT'L&COMcp. L.J. 333,336-38
(1998) (postulating three criteria so general as to be inutile).
30. See supra notes 22-24.
31. This note does not seek to explore the legality of ECOWAS interventions in Sierra
Leone after the deposal of the coup leaders. While later humanitarian crises featured even more
horrific and widespread atrocities than recounted in this note, those interventions were legal
because Kabbah, firmly established by ECOWAS forces and a newly revitalized Sierra Leonean
national army as the legitimate head of state, had invited ECOWAS troops to enter, thus
excepting them from the prohibition on use of force and forgoing necessary reliance on the
humanitarian intervention doctrine. For a discussion of intervention by invitations, see text
accompanying infra notes 142-44.
32. The Paquere Habana, 175 U.S. 677,700 (1900).
33. See, e.g., Bazyler, supra note 23; Fonteyne, supra note 5; Tragedies1,supra note 24.
34. Not all Conditionalists used the same criteria; however, the five basic criteria
presented in this article generally reflect most authors' standards. CompareBazyler, supranote
23, at 598-607, with Burmester, supra note 28, at 279-83, with Fonteyne, supra note 5, at 258-
68, with Tra8edies I, supra note 24, at 330.
35. While examining evidence prior to the signing of the U.N. Charter may seem to rely
on evidence that would violate the last in time rule for conflict of international law, the point
of formation of customary international law is when both state practice and opiniojurisare
totally satisfied, while relying on evidence through history. See STARKE, supra note 14, at 134-
36 (discussing when a usage becomes customary international law). Therefore, the last in time
rule would still give precedence to the customary international law because it formed after the
1945 signing of the U.N. Charter.
1945, state practice and opiniojurishinted at the existence of the humanitarian

intervention doctrine. Examples of state practice evidencing the humanitarian
intervention doctrine include numerous European interventions in the Muslim
Ottoman Empire to protect repressed Christians and the 1898 United States
intervention in Cuba, which President William McKinley justified partly on
humanitarian grounds.3 Pre-World War 1I opinio juris, manifested in the
writings of scholars such as St. Thomas Aquinas, Grotius, Vattel, Borchard,
and Oppenheim, and Antoine Rougier, the first Conditionalist, writing in 1910,
upheld this doctrine.37 In the decades surrounding the turn of the twentieth
century, most publicists supported some form of the humanitarian intervention
doctrine. 38 The roots of the humanitarian doctrine were securely in place
before the signing of the U.N. Charter.
After the 1945 establishment of the United Nations, state practice and
opinio juris advanced the humanitarian intervention doctrine to the cusp of
customary international law. Conditionalists cite numerous modem humani-
tarian interventions to lend state practice evidence to their theory. For
example, in 1964, Belgium and the U.S. acted with purely humanitarian intent
when deploying troops to the Congo to rescue over two thousand alien
hostages. 39 Later, in 1971, India intervened in the Pakistani civil war to
support the independence of Bangladesh. While regional geopolitics
influenced India's decision to invade, the "documented facts that the West
Pakistani army was engaging in mass slaughter, rape and pillage in East
Bengal [Bangladesh]" was also a primary motive.' Humanitarian concern
substantially motivated Tanzania's 1979 invasion of Uganda, in which
Tanzanian forces ousted the brutal Amin regime responsible for the execution
of 300,000 Ugandan citizens and the rape and displacement of many thousands
36. Fonteyne, supra note 5, 205-13; see also Bazyler, supranote 23, at 582-83; but see
Brownlie, supra note 25, at 220-21 (criticizing reliance on this state practice evidence as "ex
post factoism" because it only infers the intervenors' dependence on the humanitarian
intervention doctrine). European states often undertook these interventions through the Concert
of Europe. See Bazyler, supra note 23, at 582.
37. Bazyler, supra note 23, at 571-73; Fonteyne, supra note 5, at 214-26.
38. Tragedies 1, supra note 24.
39. Bazyler, supra note 23, at 587-88; see also Fonteyne, supra note 5, at 233.
40. Bazyler, supra note 23, at 588-89; see also Fonteyne, supra note 5, at 233-34;
Tragedies1,supranote 24, at 315-19; but see, Tom J. Farer, An Inquiry into the Legitimacy of
HumanitarianIntervention, in LAW AND FORCE INTHE NEW INTERNATIONAL ORDER 185, 193
(Lori Fisler Dammsch & David 1. Scheffer, eds.. 1991) (arguing that the fact that India did not
explicitly rely on the humanitarian intervention doctrine in its invasion of Bangladesh detracts
from the intervention's persuasiveness as evidence of state practice). Farer seems to overlook
many statement made by Indian representatives in the United Nations that indicated a
humanitarian motive. Compare Thomas M. Franck & Nigel S.Rodley, After Bangladesh:The
Law of HumanitarianIntervention by Military Force, 67 AM. J. INT'L L. 275, 276, 302-03
(1973) (arguing that the these statements were a historical anomaly and therefore does not
support the humanitarian intervention doctrine), with Tragedies1,supra note 24,317-18 (citing
the Bangladesh intervention and India's accompanying statements as strong support for the
humanitarian intervention doctrine).
more. 4 After the Gulf War, the United States and Britain established safe
havens to allow brutally oppressed Kurds safety from their Iraqi oppressors. 2
Finally, the North Atlantic Treaty Organization (NATO) conducted a bombing
campaign in Kosovo to end the Yugoslavian government's campaign of ethnic
cleansing against ethnic Albanians.43 State practice after 1945 evidences
nations' accordance to the humanitarian intervention doctrine.
The greatest weakness in the recognition of the humanitarian interven-
tion doctrine is modern opinio juris. While numerous jurists recognize the
doctrine," there is a general dearth of explicit acknowledgement of the
doctrine as customary international law by governments. However, such
acknowledgement is impossible due to the self-defeating legalistic hypersensi-
tivity of modem states. No state wants to risk accusations that their actions
have violated international law. Therefore, even if they act pursuant to a rule
of customary international law condoning unilateral humanitarian intervention,
the state will never admit to doing so, because the very existence of the rule
is in dispute. The failure of each state to admit recognition of the humanitarian
intervention doctrine prevents all other states from acknowl-edging it.
Therefore, heavy reliance on government statements to prove opiniojuris for
any emerging rule of customary international law is inherently self-defeating.
Instead, to confirm the humanitarian intervention doctrine, jurists must rely on
other forms of opiniojuris,including legal scholarship," and especially state
practice.
B. Critiqueof the HumanitarianIntervention Doctrine
In addition to maintaining that insufficient evidence exists to support the

humanitarian intervention doctrine, some scholars believe that international
41. Bazyler, supra note 23, at 590-92; Tragedies 1, supra note 24, at 319-21; but see
Farer, supranote 40, at 193 (arguing that Tanzania did not rely on the humanitarian intervention
doctrine in its invasion of Uganda, detracting from its persuasiveness as evidence of state
practice).
42. Tragedies 1,supra note 24, at 331-34.
43. See authorities cited in supra note 20.
44. See Bazyler, supra note 23, at 576-80 (detailing numerous scholarly declarations and
articles supporting the humanitarian intervention doctrine); Burmester, supranote 28, at 278-85
(citing numerous modem proponents of the humanitarian intervention doctrine); see also, e.g.,
Report of the World Conference on Human Rights, U.N. GAOR, at 35, U.N. Doc.
A/CONF. 157/24 (Part 1)(1993) ("The World Conference on Human Rights calls on all States
to take immediate measures, individually and collectively, to combat the practice of ethnic
cleansing to bring it quickly to an end."); authorities cited supra notes 22-24, 29; but see, e.g.,
Vladimir Kartashkin, Human Rights andHumanitarianIntervention,in LAW AND FORCE INTHE
NEW INTERNATIONAL ORDER, 202, 208-09 (Lori Fisler Damrosch & David J. Scheffer eds.,
1991) (arguing that only the U.N. Security Council can legally intervene for humanitarian
purposes); authorities cited supranotes 25-27.
45. See Fonteyne, supranote 5, at 233 ("The opinions of the leading scholars, especially
in an essentially non-institutionalized structure such as that of international law, have a
significant impact upon the development of the legal norm.
IND. INT'L & COMP. L. REV. (Vol. 11:3
law outright forbids humanitarian interventions. Most opponents claim that

Article 2(4) of the U.N. Charter prohibits all unilateral uses of force, including
humanitarian interventions, except in self-defense." However, this interpreta-
tion is needlessly broad. First, the text of the Charter only prohibits the use of
force when it is inconsistent with the principles of the U.N., such as infringe-
ment upon the territorial integrity or political independence of another state.47
A truly lawful humanitarian intervention, complying with the criteria
examined below, does not violate these principles; instead, it supports the
principles of human rights extolled in the U.N. Charter.48 Second, even if the
plain meaning of the text excludes humanitarian interventions, states should
not interpret the Charter to prohibit such actions because of changing
circumstances. The framers of the Charter originally intended that the U.N.
conduct collective interventions in appropriate cases of extreme atrocities; yet,
the U.N.'s involvement in this area, due to geopolitical and economic
restraints, has been virtually nonexistent.49 Until the U.N. can realistically
perform its intended duties, its limiting features cannot bind the signatories.
Finally, the "last in time" rule gives precedence to customary international law
formed after the signing of the U.N. Charter in 1945.50 Regardless of whether
the humanitarian intervention doctrine has formed in the recent past or will
form in the near future, because it came into existence after 1945, it overrides
contrary language in the U.N. Charter.
Critics of the humanitarian intervention doctrine further claim it is
nonfunctional because it is fraught with abuse, as disingenuous states use the
cover of a legal humanitarian intervention to justify malevolent uses of force."'
However, the possibility of abuse does not preclude the existence of customary
international law; customary international law permitting the use of force in
self-defense is undisputed, despite innumerable acts of aggression menda-
ciously claiming that right.52 Additionally, Conditionalists differentiate
46. See, e.g., Brownlie, supra note 25, at 219; Franck & Rodley, supra note 40, at 299.
47. TragediesII, supra note 24, at 864.
48. U.N. CHARTER art. 1.
49. See Fonteyne, supra note 5, at 257.
50. See supra text accompanying notes 12-13.
51. See Lori Fisler Damrosch, Commentaryon Collective MilitaryIntervention to Enforce
Human Rights, in LAW AND FORCE [N THE NEW INTERNATIONAL ORDER, 213, 215-21 (Lori
Fisler Damrosch & David J.Scheffer eds., 1991) (arguing that powerful nations can manipulate
regional and collective organizations to purport humanitarian interventions while possessing
"less than purely humanitarian motiv[es]"); Franck & Rodley, After Bangladesh: The Law of
HumanitarianIntervention by Military Force, surpa note 40, at 305; Lobel, supra note 20, at
28.
52. Rosalyn Higgins, InternationalLaw andthe Avoidance, ContainmentandResolution
of Disputes, 230 RECUEIL DES COURS [COu.ECTED CouRSEs OF THE HAGUE ACADEMY OF
INTERNATIONALLAw] 9, 316 (1991); cf.Fonteyne, supra note 5, at 269 ('"It is a big mistake,
in general, to stop short of recognition of an inherently just principle, [merely] because of the
possibility of non-genuine invocation."' (quoting Lettre de M. Arniz, in Rolin-Jacquemyns, Note
sur la Thiorie du Droitd'Intervention,8 REVUE DE DROIT WrERNATIONALET DE LEGISLATION
COMPAREE [REv. DR. INT'L & LEGISL COMP.] 675,679 (1876))).
genuine humanitarian interventions from inauthentic claims by utilizing

definitive and substantial criteria. Detractors retort that unless criteria are so
general as to be useless, narrow and inflexible criteria make legality under the
humanitarian doctrine too difficult to achieve, leaving many of the worst
humanitarian crises unremedied." Answering these critiques, Conditionalists
accurately state the emerging rule of customary international law of humanitar-
ian intervention by carefully balancing the definitive with the flexible, arriving
at criteria that specify when a unilateral use of force for humanitarian
objectives is legitimate. The criteria are useful for analyzing legitimacy after
an intervention, while also serving as an
54
expedient standard for when a nation
may and should unilaterally intervene.
C. Criteriafor a Legitimate HumanitarianIntervention
To assess the legitimacy of a humanitarian intervention, Conditionalists

generally apply five criteria. First, large-scale atrocities must occur or be
imminent." This criterion raises the question "who decides [which] human
rights violations are so gross and massive as to warrant armed intervention. 5 6
Certainly, the threshold is met by violations of jus cogens norms of interna-
tional law," which include genocide, slavery, systematic murder or causing the
disappearance of individuals, and torture or other cruel, inhuman, or degrading
treatment.5 8
Second, the intervening state must have an overriding - but not
necessarily pure - humanitarian motive. 9 To fulfill this criterion, there must
be evidence supporting a benign humanitarian motive without any more
substantial ulterior motive, such as territorial gain.' This criterion may often
53. See Lobel, supra note 20, at 32.

54. See Bazyler, supra note 23, at 598.
55. Id. at 598-601; Fonteyne, supra note 5. at 258-60; Tragedies 1,supra note 24. at 330;
see also Franck, supra note 29, at 257.
56. Lobel, supra note 20, at 30.
57. See Levitt, supra note 29, at 341 ("[H]umanitarian intervention should only be
justified when responding to human rights abuses that are so grave that they violate the jus
cogens norms of international law (to persecute, oppress, exterminate, enslave or deport civilian
populations.)"). Jus cogens are "preemptory norm[s] of general international law ... accepted
and recognized by the international community of States as a whole as a norm from which no
derogation is permitted ..." Vienna Convention on the Law of Treaties, supranote 6, art. 53.
58. See REsTATEMENT (TIRD) OF FOREIGN RELATIONS LAW § 702 (1986); see also
Bazyler, supra note 23, at 600; see generally Karen Parker, Jus Cogens: Compelling the Law
of Human Rights, 12 HASTiNGS INI'L &COMP. L. REv. 411 (1989) (surveying development of
jus cogens). Rape is generally considered a form of torture banned by international law. See,
HUMAN RIGHTs 372-79 (Louis Henkin, et. al., eds., 1999).
59. Bazyler, supranote 23, at 601-02; Fonteyne, supra note 5, at 261; see also Tragedies
1,supra note 24, at 330.
60. See, e.g., Bazyler, supra note 23, at 608-09, 613-16, Tragedies I, supra note 24, at
320-21,322.
be problematic, because nations usually equivocate concerning their numerous

motives for an intervention.
Third, there is a preference for joint action.6' Nations should first try to
intervene collectively through the United Nations; 62 if this proves impractica-
ble, states should act jointly with other states, preferably through a regional
organization.6 3 Regional organizations often face the problem of hegemonic
domination, making their actions seem truly effectuated by a single state."
However, most regional organizations have some diversity of control,
providing at least a partial check on the use of the organization for the
pugnacity of a hegemon.
Fourth, the intervention should be limited in duration and magnitude to
that necessary to cease the atrocities.65 If required to end the human rights
violations, the intervenor may remove illegitimate or pernicious leaders.66
This criterion reflects closely the requirement for all allowable uses of force
of necessity and proportionality.67 Due to the often protracted nature of
humanitarian missions, the limit on duration of the intervention includes the
corollary: "whenever feasible, U.N. multilateral troops should be substituted
as soon as possible for the intervening forces."'
Finally, an intervenor must exhaust all peaceful remedies before
resorting to a use of force, including diplomatic appeals, international
condemnation, and economic sanctions. 69 This criterion recognizes that in
some instances the humanitarian need is so urgent or the peaceful options so
61. See Bazyler, supra note 23, at 602-04; Fonteyne, supra note 5, at 266-67; see also
Tragedies1,supra note 24, at 330.
62. See Fonteyne, supra note 5, at 264-65.
63. See Bazyler, supra note 23, at 602-03; see also Fielding, supra note 29, at 374-76
(arguing that customary international law permits states to intervene in a humanitarian crisis
unilaterally if the U.N. Security Council fails to act).
64. See Lobel, supra note 20, at 30-31.
65. Bazyler, supra note 23, at 604-06; Fonteyne, supra note 5, at 262-64; Tragedies1,
supra note 24, at 330; see also Geissler, supra note 10, at 335 (citing Nanda's concentration on
the limit on purpose, duration, and force used in a humanitarian intervention); Tragedies I1,
supra note 24, at 864 ("For humanitarian intervention to be considered valid it is usually
undertaken for a limited purpose and duration .... ).
66. See Bazyler, supra note 23, at 604; but see Fonteyne, supra note 5, at 262-63
(disallowing suspect humanitarian interventions that feature the removal of abusive leaders).
67. Bazyler, supra note 23, at 604; Fonteyne, supra note 5, at 262. Well-established
customary international law provides that any use of force in reprisal for the violation of
international law must be related to the law violated and reasonably proportionate in intensity
.to the magnitude of the violation. See Sir Claud Humphrey Meredith Wadlock, The Regulation
of the Use of Forceby IndividualStates in InternationalLaw, 81 RECUEIL DES CoURs 451, 460
(1952).
68. Bazyler, supra note 23, at 605; see also Tragedies[, supra note 24, at 332 (supporting
the U.S./British intervention in Iraq to save the Kurds by citing U.S/British efforts to replace
American and British troops with U.N. peacekeepers).
69. Bazyler, supranote 23, at 606; Fonteyne, supra note 5,at 264; see also TragediesI,
supra note 24, at 334 (recommending that humanitarian intervenors use force only "as a last
resort").
2001] EVWDENCE OF THE HUMANITARIAN INTERVENTION DOCTRINE 615
futile that alternatives must be forgone.7' In total, failure in one criterion does
not preclude legitimacy, but does require a strong showing in other areas. 7 '
Conditionalists believe that with the filter of these five criteria, jurists can
determine the legitimacy of a unilateral humanitarian intervention in
accordance with customary international law. By applying these criteria to the
ECOWAS intervention in Sierra Leone, the evidence will demonstrate that
ECOWAS complied with the humanitarian intervention doctrine, thus
providing state practice evidence for the doctrine.
Il. FACTUAL BACKGROUND: THE 1998 ECOWAS INTERVENTION

IN SIERRA LEONE
A. Pre-1997 History
Sierra Leone, a nation of 5.2 million people, sits on the western coast of
Africa.72 British philanthropists established Sierra Leone as a colony for
former slaves discharged from the British military at the close of the American
Revolutionary War.' Since attaining independence from Britain in 1961,
Sierra Leoneans have been ruled by military dictators through successive
coups d'4tat.74 The United Nations ranks Sierra Leone as the second least
developed nation in the world, with per capita income at US$160 a year and
a life expectancy at 43 years. 7 One out of every four children dies before the
76
age of five.
On March 23, 1991, a civil war erupted in Sierra Leone when the
Revolutionary United Front (RUF), an unknown group of one hundred fighters
led by former army sergeant and professional photographer Foday Sankoh,
attacked in the south and east of the country." Amid the chaos that followed,
including heavy losses sustained by Sierra Leone's army, Captain Valentine
Strasser, a youthful army paymaster, took power in Freetown on a wave of
70. See Bazyler, supra note 23, at 606-07.

71. See Tragedies I, supra note 24, at 330 (balancing the factors and alternatives to
maximize the outcome); see also Bazyler, supra note 23, at 591 (forbidding weak evidence of
humanitarian motive to disqualify the Tanzanian intervention in Uganda, which "on
balance...can be justified on humanitarian grounds.").
72. THE WORLD ALMANAC AND BOOK OF FACTS 857 (Robert Famighetti ed., 2000).
73. Sheldon H. Harris,An American's Impressions of SierraLeone in 1811,47 J.NEGRO
HIsT. 35, 35 (Jan. 1962).
74. James Rupert, Tenuous Peace In Brutal War; SierraLeone Sides Sign Accord, WASH.
POST, July 8, 1999, at A17 tbl.
75. Interim Report of the Inter-Agency Mission to SierraLeone, U.N. SCOR, Annex J[3,
U.N. Doc. S/19981155 (Feb. 25, 1998) [hereinafter Interim Report].
76. U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES MR 1997
309 (1998).
77. Special Reports: Chronology ofSierra Leone: How Diamonds Fuelledthe Conflict,
AFRICA CONFIDENTIAL, at http://www.africa-confidential.com/special.htm (last visited Jan. 6.
2001) [hereinafter Chronology].
popular enthusiasm in 1992.78 While the conflict raged on for many years, the
government had severely damaged the RUF with the help of the South African
mercenary security firm Executive Outcomes, forcing the rebels to sign a
cease-fire agreement in January 1996, returning the country to civilian rule
with free democratic elections. 9 Ahmad Kabbah, a former U.N. diplomat who
had been absent from Sierra Leone while working in New York, became
president in March 1996 as a result of these elections.Y° By the end of the year,
Kabbah and Sankoh signed the Abidjan Accords. This peace agreement
between the Sierra Leone government and the RUF included the disarmament
of combatants, the integration of the RUF into the government's army, and the
inclusion of the RUF in the government as a political entity.8 Unfortunately,
the. Abidjan Accords failed to bring peace to the ravaged nation. The RUF did
not disarm82 and instead continued its attacks, 3 while Kabbah scarcely fended
off numerous coup attempts from his own army.84
B. The Armed Forces Revolutionary Council and the Human

Rights Crisis
On May 27, 1997, a group of low-ranking military officers headed by

Major Johnny Paul Koroma, frustrated by unpaid wages and alleged ethnic
favoritism, 5 succeeded in overthrowing the democratically elected govern-
ment. 6 Kabbah fled the country,8 while Nigerian ECOWAS forces, already
present in Freetown and reinforced by additional soldiers and naval bombard-
ments, clashed with, but ultimately failed to defend against Koroma's rebel
fighters.8 8 Within days, the victorious Koroma suspended the
78. David Pratt, Sierra Leone: The Forgotten Crisis 11, Sessional Paper No. 8530-361-35
(Apr. 23, 1999) (unpublished report to the Can. Minister of Foreign Affairs, on file with Can.
Dept. of Foreign Affairs and Int'l Trade), available at http://www.infoexport.gc.ca/docs/view-
e.asp?did=1287.
79. See Jim Hooper, Peace in Sierra Leone: A Temporary Outcome?, JANE'S
INTELuIGENCE REV., Feb. 2, 1997, at 91-93.
80. See David Hecht, SierraLeone ChangesPower Without Coup, Despite Ongoing War,
CHRISTIAN SCI. MONITOR, Apr. 1, 1996, at 6, availableat 1996 WL 5040520.
81. See Peace Agreement between the Government of the Republic of Sierra Leone and
the Revolutionary United Front of Sierra Leone (RUF/SL), U.N. SCOR, at art. IIl, V, IX, U.N.
Doc. S/1996/1034 (1996).
82. Karsten Nowrot & Emily W. Schabacker, The Use of Force to Restore Democracy:
InternationalLegal Implicationsofthe ECOWAS Interventionin SierraLeone, 14 AM. U. INT'L
L. REv. 321, 326 (1998).
83. See Pratt,supra note 78, at 14.
84. See Adeline Iziren, "Give Kabbah Democracy a Chance": Sierra Leone Defuses
Third Coup Plot in 4 Months, THE VOICE, Jan. 20, 1997, at 15.
85. Nowrot & Schabacker, supra note 82, at 327.
86. See AMNESTY INTERNATIONAL, A] INDEX AFR 51/05/97, SIERRA LEONE: A
DISASTROUS SET-BACK FOR HUMAN RIGTrs 3 (1997) [hereinafter DISASTROUS SET-BACK].
87. See Pratt, supra note 78, at 14.
88. See Nowrot & Schabacker, supra note 82, at 327. ECOWAS forces were present in
Freetown as a base of operations for an independent intervention in Liberia. See id. There is
constitution89 and outlawed all political parties and public demonstrations and
meetings,' despite ongoing resistance from large civilian groups such as labor
unions.9 He then identified Sankoh as his ideological leader 2 and invited the
rebel RUF fighters tojoin his junta, 93 forming the Armed Forces Revolutionary
Council (AFRC) to rule Sierra Leone." The U.N., Organization of African
Unity (OAU), ECOWAS, the Commonwealth, and European Union swiftly
condemned the AFRC coup d'dtat, while the OAU General Secretary
denounced the coup as "unacceptable to the continent." However, the U.N.
9
Security Council failed to take immediate action. 5
1. Atrocities Committed DirectlyAgainst Civilians
The price for such inaction was substantial: under the AFRC
kakistocracy,9 junta henchmen exercised "a total disregard for the rule of
law.... The rule of law completely collapsed and violence engulfed the
country." 97 By choosing to bring the RUF into the fold, Koroma linked the
AFRC to a rebel group notorious for random murder and mutilation of
civilians, especially the crude amputation of hands, feet, ears, and genitals."
Immediately after the coup, banks, businesses, and government offices shut
down, "while rape and looting became the order of the day."'" John Ernest
Leigh, Sierra Leonean ambassador to the U.S., narrated the crimes committed
by the AFRC during testimony before the House of Representatives Subcom-
mittee on Africa:
disagreement over whether ECOWAS or the coup forces attacked the other first. Compare id.
(claiming that ECOWAS forces initiated hostilities), with Levitt, supra note 29, at 365 (noting
that Koroma's forces attacked ECOWAS first).
89. Restructuring Sierra Leone: Hearing Before the Subcomm. on Afr. of the House
Comm. on Int'l Relations, 105th Cong. 38 (June 11, 1998) (statement of John Ernest Leigh,
Sierra Leone's Ambassador to the U.S.) [hereinafter RestructuringSierraLeone]; U.S. DEP'T
OF STATE, supra note 76, at 298.
90. U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1997,
supra note 76, at 298.
91. See Africa Research Bulletin, June 1997, at 12735A.
92. See Chronology, supra note 77.
93. RestructuringSierra Leone, supra note 89, at 38 (statement of John Ernest Leigh).
Many believe the RUF had complete control over AFRC, with Koroma merely serving only as
a figurehead. See id at I (statement of Rep. Edward R. Royce, Chairman of the
Subcommittee).
94. See DISASTROUS SET-BACK, supra note 86, at I.
95. Id. at 8-9; see also Nowrot & Schabacker, supra note 82, at 328.
96. See All Things Considered (National Public Radio radio broadcast, Feb. 13, 1998),
available at 1998 WL 3643801 ("[Tlhe junta.. .really are poorly educated, renegades, [and]
criminals....").
97. AMNESTY INTERNATIONAt., Al INDEX APR 51/22/98. SIERRA LEONE: 1998 - A YEAR
OF ATROCrrIES AGAINST CIVIUANS 16 (1998) [hereinafter A YEAR OF ATROCrrs].
98. Pratt, supra note 78, at 12.
99. Id. at 14.
Thus began the Reign of Terror ... of gang-rape, looting,

beatings, jailing, killings, maiming, wounding, kidnappings,
abuse of children, and starvation of civilians; the plunder of
public funds and natural resources; gun-running; arson; lying;
destruction of public records; destruction of private property,
intimidation, sanction-busting, illicit mining, and nation-
wrecking. The people of Sierra Leone never supported the
Koroma coup despite their deprivations and the repeated,
gross violations of their civil rights."
During the AFRC rule, government agents committed innumerable acts

violating international human rights standards.' 0 ' AFRC soldiers arbitrarily
detained and held incommunicado hundreds of political activists, journalists,
and university students.'0 3 The junta used rape systematically as an instrument
of control, raping women as punishment for their opposition to the regime.'03
There were countless reports of extrajudicial torture and executions, often
featuring unaccountable AFRC soldiers capriciously raping, mutilating, and
murdering innocent civilians.'' In Kenema, an eastern province under RUF
control, "terror reigned":
As in Freetown and other parts of the country, rape of girls

and women was systematic and at least a hundred civilians
were reported to have been deliberately and arbitrarily
killed.... Every house in the town was looted. The homes of
those perceived to have been supporters of [Kabbah] were
destroyed.... [Sleveral prominent members of the community
... were stripped and repeatedly beaten with sticks, electric
cable and strips of tyres and were threatened with death.
Their arms were tied tightly behind them. One of those
detained sustained a serious head wound and injury to his eye
after being beaten on his head with a gun. At least one of
these detained died as a result of beatings."0 5
100. Restructuring Sierra Leone, supra note 89, at 38.

101. U.S. DEP'T OF STATE, supra note 76, at 303.
102. A YEAR OF ATROCITIES, supra note 97, at 17-18.
103. U.S. DEP'TOFSTATE, supra note 76, at 299, 301. Koroma also decreed that women
could be subjected to female genital mutilation without hindrance. See id. at 309.
104. A YEAR OF ATROcriES, supra note 97, at 18-20; see also DISASTRous SET-BACK,
supra note 86, at 18-23: U.S. DEP'T OF STATE, supra note 76, at 299-301 (listing hundreds of
documented murders during the first months of AFRC rule alone).
105. A YEAR OF ATROCrEs, supra note 97, 20-21.
2001] EVIDENCE OFTHE HUMANITARIAN INTERVENTION DOCTRINE 619
Additionally, the AFRC tortured children, especially child-combatants, and

impressed many civilians into forced labor.1°6 Finally, the AFRC allegedly
planned to carry out genocide against civilians opposed to its rule.' 7
2. Criminal Government Negligence
Almost as heinous as the violence the AFRC junta perpetrated against

the citizenry was the government's gross negligence in providing or permitting
care to its people. The U.N. Secretary General reported the dire humanitarian
crisis in Sierra Leone as follows:
The number of displaced persons registered with humanitar-

ian organizations during the months of July and August
stands at around 100,000. However, the actual number of
new internally displaced persons is thought to be much
higher. A polluted water supply and deteriorating sanitary
conditions in one camp for internally displaced persons in
Kenema district led to an outbreak of bloody diarrhoea which
began in late September. Nutrition surveys have identified
pockets of severe malnutrition in the rural areas and an
increase in child malnutrition generally.... Health systems
are near collapse. Consequently, a measles epidemic is
accounting for a 30 per cent case mortality rate among
children. In one district alone (Koinadugu), 3,000 cases were
reported during the third week of September. The number of
Sierra Leoneans who have registered as refugees in neigh-
bouring countries has risen to over 60,000. A much larger
number of people have moved temporarily to neighbouring
countries, but they have not as yet sought refugee status. 0 8
Instead of helping alleviate the crisis, government forces often prevented the
delivery of relief supplies from international agencies to the sick and starving
106. Fifth Report of the Secretary-Generalon the Situation in SierraLeone, at 37, U.N.
Doec. S/1998/486 (June 9, 1998) [hereinafter Fifth Report].
107. See Press Briefing by James 0. C. Jonah, U.N. Ambassador from Sierra Leone, in
New York, N.Y. at http://www.sierra-leone.org/jonahO2l798.html (last updated Feb. 17, 1998).
Mr. Jonah also claimed he had evidence of lethal gas shipments to the junta for use against
civilians. See UN Press Conference by Sierra Leone, M2 PRESSWIRE, September 15, 1997,
available in 1997 WL 13655162. See also Levitt, supra note 29, at 369 (claiming that the
civilian population, "because of their active opposition to the coup were threatened with death
and suffering on a grand scale").
108. Report of the Secretary-Generalon the Situation in SierraLeone, U.N. SCOR, U.N.
Doec. S/1997/811 (Oct. 21, 1997); see also DISASTROUS SET-BACK, supra note 86, at 23-24
(discussing problems of renewed refugee flows considering Sierra Leone had not yet finished
resettling over 100,000 refugees from prior unrest).
population, usually commandeering the supplies for themselves. 9 Despite the

impending famine, the AFRC even exacted a "food tax" on civilians, leaving
farmers to hoard what little food they harvested instead of sending it to
market."' In total, the AFRC refused to do anything to end the suffering of
Sierra Leoneans and actively prevented help from reaching those in need.
C. ECOWAS Reacts to the HumanitarianCrisis
1. Diplomatic Efforts
After its initial attempt to dislodge the AFRC during the coup,
ECOWAS took many measures to end the crisis peacefully. ECOWAS first
tried to end the AFRC's atrocities through diplomatic efforts. ECOWAS's
most laudable effort was the Conakry Accord, a six-month peace plan for
Sierra Leone negotiated between members of ECOWAS and a representative
of the AFRC. "' This peace treaty featured an immediate end to all combat,
disarmament and demobilization of all combatants within two months,
guarantee of the flow of humanitarian assistance coupled with an international
appeal for relief supplies, the return of refugees, restoration of Kabbah and the
constitution, and amnesty for AFRC combatants and coup leaders.' Despite
Koroma's initial acceptance of the Conakry Accord," 3 by the end of 1997 the
AFRC continued to resist disarmament and attack rural dissidents." 4
Regardless of ECOWAS's intense diplomatic efforts, the AFRC refused to
adhere to the terms of the Conakry Accord four months after signing the
same."' Even from the outset of diplomatic negotiations, it seemed that
Koroma was unwilling or unable to implement any negotiated end to the
humanitarian crisis." l6 Therefore, despite ECOWAS's best endeavors, a
strictly diplomatic solution to the humanitarian crisis in Sierra Leone appeared
unlikely.
109. See Statement by the Presidentof the Security Council, U.N. SCOR, 3809th mtg.,
U.N. Doc. S/PRST/1997/42 (Aug. 6, 1997). Additionally, some food assistance may have been
inadvertently detained by the United Nations/ECOWAS imposed economic embargo due to
inefficiency in the ECOWAS monitoring system. See Interim Report, supra note 75, Annex 1
5.
110. Third Report ofthe Secretary-Generalon the Situation in SierraLeone, U.N. SCOR,
52d Sess., 1 27, U.N. Doc. S/1998/103 (1998) [hereinafter Third Report].
111. Second Reportof the Secretary-Generalon the Situationin SierraLeone, U.N. SCOR,
53d Sess., 2, U.N. Doc. S/1997/958 (1997) [hereinafter Second Report].
112. EconomicCommunity of WestAfrican States Six-Month PeacePlanfor SierraLeone
(23 October 1997-22 April 1998), U.N. SCOR, Annex 2, U.N. Doc. S/1997/824, at 5-6 (1997).
113. Second Report, supranote 111, TI4, 5.
114. See Nowrot & Schabacker, supra note 82, at 329.
115. See Fourth Report of the Secretary-Generalon the Situation in SierraLeone, U.N.
SCOR, 11 4-5, U.N. Doc. S/1998/249 (1998) [hereinafter Fourth Report]; see also
Restructuring SierraLeone, supranote 89, at 38 (statement of John Ernest Leigh) ("[T]hejunta
refused to cooperate, using various foolish ruses.").
116. Second Report, supra note 111,1 15.
2. Economic Embargo
ECOWAS also attempted to implement economic sanctions to compel

the AFRC to end the crisis in Sierra Leone. At its August 29, 1997 summit
meeting, ECOWAS imposed a total embargo on Sierra Leone, stopping the
flow of all commodities, including petroleum products, arms, and military
equipment, prohibiting all international business transactions, and freezing all
AFRC financial accounts." 7 On August 1, 1997, the OAU had authorized
ECOWAS to take all "appropriate measures" to return the rule of law to Sierra
Leone,"' a mandate that was reaffirmed by the OAU's Secretary General at
ECOWAS's August 29 summit.' 9 Five weeks after the summit, citing the
"continued violence and loss of life ... [and] the deteriorating humanitarian
conditions" in Sierra Leone,' 20 the U.N. Security Council imposed a similar
embargo, supporting the ECOWAS effort by obligating all U.N. member-
states to participate in the embargo.'2 ' The U.N. Security Council, however,
put primary responsibility for enforcement of the embargo back on
ECOWAS.' 22 Unfortunately, the economic embargo was fraught with
violations, especially concerning arms importation by the AFRC, as well as
AFRC leaders and their families traveling abroad.123 More than five months
after its inception, it seemed that the embargo only exacerbated the suffering
of civilians'" instead of forcing the junta to stop atrocities or abdicate power.
Like ECOWAS's diplomatic attempts, efforts to secure a peaceful resolution
to the humanitarian crisis in Sierra Leone through economic sanctions failed.
117. Decision on Sanctions Against the Junta in Sierra Leone, Econ. Community of W.
Aft. States, Authority of Heads of St. and Gov't, 20th Sess., arts. 3-5 (Aug. 29, 1997), available
at http://www.sierra-leone.orglecowasO82999.html. ECOWAS member-states surround Sierra
Leone on all land borders and ECOWAS naval units patrolled Sierra Leonean territorial waters,
making total enforcement of the embargo possible.
118. Africa Highlights - August 1997, AFR. NEWS SERVICE, Dec. 31, 1997, availablein
1997 WL 17419813; see also U.S. DEP'T OF STATE, supra note 76, at 298 ("The Organization
of African Unity (OAU) designated the Economic Organization [sic] of West African States
(ECOWAS) to bring about [full] restoration of the constitutional government.").
119. See DIsAsTROus SEr-BACK, supra note 86, at 7.
120. U.N. SCOR Res. 1132, U.N. SCOR, 3822d mtg. at pmbl., U.N. Doc. S/RES/1 132
(1997).
121. See id. n[ 3, 6, 8, 11.
122. See id. 8, 18.
123. See Third Report, supra note 110, 120; Communiqu', Econ. Community of W. Afr.
States, Ministers of Foreign Aff. of the Community of Five on Sierra Leone, 9 (Dec. 19,
1997), at http://www.sierra-leone.org/ecowasl2l997.htinl; FinalCommuniqui, Econ. Cmty.
of W. Aft. States, Ministers of Foreign Aff. of the Community of Five on Sierra Leone, 1 10
(Feb. 6,1998), at http://www.sierra-leone.orglecowas020698.html [hereinafter FinalCommuni-
quel.
124. See Interim Report, supra note 75, Annex 26.
3. Direct Intervention
On February 6, 1998, ECOWAS finally decided to use force to oust the

AFRC 25 after the failure of all other measures and repeated requests from
Kabbah to intervene' 2 and to "put an end to [Sierra Leoneans'] nightmare and
to enable them to recover their fundamental human rights."' 27 Within a week
of the invasion by the ECOWAS Monitoring Group (ECOMOG) forces, the
AFRC government had collapsed and ECOMOG was in control of
Freetown.12 8 Even as the junta forces withdrew, AFRC combatants tortured
and killed any civilian suspected of opposing them. 29 ECOWAS soldiers and
officials entered Freetown to find government buildings looted and neglected
and an enthusiastic crowd celebrating their arrival.' 3 Kabbah returned to
Sierra Leone and resumed his presidential post on March 10, 1998.'
ECOWAS received numerous commendations from the international
community for its intervention in Sierra Leone. In Resolution 1162, the U.N.
Security Council commended ECOWAS and ECOMOG for "the important
role they are playing in support of the objectives related to the restoration of
peace and security" in Sierra Leone. 32 Additionally, the U.N. Secretary
General commended ECOWAS' intervention as "laudable" and urged U.N.
member- states to contribute to its efforts. 33 Similarly, the OAU approved of
the intervention,1 34 while numerous individual
35
states, through their diplomats
or actions, also granted their approval.1
Today, the RUF continues its struggle against the democratically elected
government, exacting a heavy humanitarian toll as it commits ever-more
horrifying atrocities against civilians,' 36 including attacking refugee camps in
125. FinalCommuniqui, supra note 123, 1 6(iii).

126. See Levitt, supra note 29, at 365; Nowrot & Schabacker, supra note 82, at 327.
127. President Ahmad Tejan Kabbah, Address at the ECOWAS Summit, 5 (Aug. 27,
1997), availableat http://www.sierra-leone.org/kabbah82797.htmnl.
128. Fourth Report, supranote 115, 1 6.
129. See Press Release, Amnesty International,SierraLeone: CiviliansDeliberatelyKilled
as FightingEngulfs FreetownandProvinces,AFR 51/006/1998 (Feb. 11, 1998), at http://web.
amnesty.org/ai.nsf/Print/AFR510061998.
130. Fourth Report, supranote 115. 17.
131. Id. 1 10.
132. U.N. SCOR Res. 1162, U.N. SCOR, 3872d mtg. 2, U.N. Doc. S/RES/1 162 (1998).
133. Fourth Report, supra note 115, IN 38, 48-49.
134. See Sierra Leone: Putting a Country Together Again, ECONOMIST, Feb. 21, 1998,
at 44.
135. See, e.g., Chronology,supranote 77 (documenting British Minister of State for Africa
Tony Lloyd stating support for the ECOWAS intervention); Fifth Report, supranote 106,1128
(evidencing U.S. contribution of US$3.9 million to ECOWAS for military support in Sierra
Leone, an action indicating U.S. approval of the ECOWAS intervention).
136. See Government,Rebels to DiscussEnding Conflict, SEATrtE POST-INTELUGENCER,
Nov. 4, 2000, at A4; AMNESTY INTERNATIONAL, supra note 1, at 209-10 (documenting
incessant atrocities committed by the RUF).
2001] EVIDENCE OF THE HUMANrARIAN INTERVENTION DocRINE 623
3
neighboring Guinea137 and taking hostage hundreds of peacekeepers. 1
Recently, the U.N. has cracked down on foreign support for the RUF. 3 9 The
U.N. Security Council has imposed a travel ban and a military and diamond
trade embargo on Liberia for its sheltering and support of RUF members.'4"
IV. OTHER THEORIES OF THE LEGALITY OF THE ECOWAS INTERVENTION
Often more than one legal theory will support a state action. Besides the
humanitarian intervention doctrine, some scholars claim the ECOWAS use of
force is lawful under two other theories: the invitation of the ECOMOG forces
by Sierra Leone's head of state, and international treaties between Sierra
Leone and ECOWAS members. While legality under another theory does not
preclude legitimacy under the humanitarian intervention doctrine, it does
mitigate its persuasiveness as evidence of state practice to support a norm of
customary international law. In this case, however, neither alternative legal
theory is tenable.
A. Intervention at Kabbah's Invitation
Some analysts claim that the ECOWAS intervention was legal because
ECOMOG entered Sierra Leone at Kabbah's behest.'" There is no violation
of international law if a legitimate head of state with clear control over his
nation requests military assistance from a foreign nation. 42 However, in most
situations, a state cannot legally honor a head-of-state's request for foreign
military assistance to suppress an efficacious rebellion.' 43 A "government's
authority to seek external assistance ...comes into question when the
government faces internal armed opposition sufficient to cast serious doubt on
the government's ability to maintain itself in power without foreign assis-
tance."'" This rule of international law reflects an inherent right of self-
137. See Douglas Farah, For Refugees, HazardousHaven in Guinea; As Fighting Spills
Into Camps, Aid Becomes Unreliable, WASH. POST, Nov. 6,2000, at A24.
138. See Douglas Farah, Liberian Pledges to Cut Sierra Leone Rebel Ties; FacingSanc-
tions, Taylor Agrees to U.N. Demands,WASH. POsT, Jan. 20,2001, at A21.
139. See id. at A21.
140. See U.S. SCOR Res. 1343, U.N. SCOR, 4287th mtg. Para. 2, 3-7, U.N. Doc.
S/RES/1343 (2001).
141. See Nowrot & Schabacker, supra note 82, at 378-402. Note that Nowrot and
Schabacker's reliance on Kabbah's authority is framed in terms of their theory of a right of
humanitarian intervention for the restoration of democracy. For a discussion of this theory, see
infra text accompanying notes 167-73.
142. See Louise Doswald-Beck, The Legal Validity of MilitaryIntervention by Invitation
of the Government, 56 BRrr. Y.B. INT'L L. 189 (1985).
143. See id. at 251.
144. David Wippman, Change And Continuity in Legal Justifications for Military
Intervention in InternalConflict,27 COuM. HUM. RTs. L REV. 435,446 (1996); see also LouIs
HENKIN, How NATIONS BEHAVE: LAW AND FOREIGN POuCY 306 (2d ed. 1979) ("Military
intervention in civil war was not acceptable under traditional international law...."); Doswald-
determination through revolution; in situations of a closely contested civil war,

foreign nations cannot guarantee which regime reflects the will of the
people. 45 If Kabbah made his request for ECOWAS's assistance before
fleeing the country,' ECOWAS could not have legally fulfilled the request
because Kabbah's government was unable to maintain itself without foreign
assistance. A look at the brief pre-coup history of Kabbah's unfledged
government, plagued with coup attempts and fighting a protracted civil war
against the RUF while losing support of its own military,' shows a govern-
ment perpetually on the verge of collapse. Without Kabbah clearly in control,
ECOWAS cannot legally intervene at his request. Similarly, Kabbah had no
control over Sierra Leone's government after the AFRC gained control of the
capital and subjected the entire nation to its rule. ECOWAS could not honor
Kabbah's post-flight request for assistance because he did not maintain his
government without foreign assistance. Therefore, because Kabbah requested
military assistance without having clear control over Sierra Leone, any reliance
by ECOWAS on Kabbah's invitation would have been illegal.
B. Intervention by Right of Treaty.
The treaties signed with Sierra Leone did not grant ECOWAS the right
to intervene in this situation. Neither the Status of Force Agreement (SOFA)
between Nigeria and Sierra Leone nor the ECOWAS Charter granted
ECOWAS the right to intervene in Sierra Leone's internal problems. First,
ECOWAS had no right to intervene under the SOFA, a bilateral defense pact,
which gave Nigeria "the right to apply force in the sustenance of the
sovereignty and territorial integrity of the Republic of Sierra Leone."' " While
subversive forces may have imperiled Sierra Leone's democratic government,
they did not threaten the state's sovereignty and territorial integrity, and
therefore ECOWAS had no right under this treaty. In addition, only Nigeria
was party to the SOFA, not ECOWAS. While Nigeria's influence in
ECOWAS was substantial, it was not sufficient to transfer Nigeria's treaty
Beck, supra note 142, at 251 (explaining doubt concerning legality of invitation for military
assistance if a "rebellion is widespread and seriously aimed at the overthrow of the incumbent
regime").
145. See Ruth Wedgwood, Commentaryon Interventionby Invitation,in LAWAND FORCE
INTHE NEW INTERNATIONALORDER, 135, 138 (Lori Fisler Damrosch & David . Scheffer eds.,
1991).
146. There is some factual uncertainty as to whether Kabbah first requested ECOWAS's
assistance immediately before or after fleeing from power. Compare Levitt, supra note 29,at
365 (citing Kabbah as making the request before fleeing from power), with Nowrot &
Schabacker, supra note 82, at 327 (claiming Kabbah requested ECOWAS intervention after
fleeing the country).
147. See supratext accompanying notes 80-85.
148. Levitt, supra note 29, at 368.
rights to ECOWAS.' 49 Therefore, ECOWAS could not rely on the SOFA for
legal authority to intervene.
Second, ECOWAS could not have legitimately relied on its own charter
to allow the intervention. Article 58(2) of the ECOWAS Charter, to which
Sierra Leone is a signatory, states that
Member States [shall] undertake to co-operate with the

Community in establishing and strengthening appropriate
mechanisms for the timely prevention and resolution of intra-
State and inter-State conflicts, paying particular regard to the
need to ... establish a regional peace and security observation
system and peace-keeping forces where appropriate. "°
Jeremy Levitt argues that this language gave ECOWAS the authority to
intervene, as member-states were "obligated to send peace-keeping forces to
Sierra Leone to restore law and order."'' However, Levitt overlooks Article
58(3), which states "provisions governing ... regional peace and stability shall
be defined in the relevant Protocols.' ' 5 2 At the time of ECOWAS's interven-
tion in Sierra Leone, member-states had not signed a protocol relevant to
Article 58, thus leaving the security mechanisms without substance.' 53
ECOWAS could not fill this gap with the pre-Article 58 Protocol Relating to
Mutual Defense, because that Protocol prohibited ECOWAS from intervening
into purely internal conflicts. 54 While Article 58(2) arguably permits
ECOWOAS to establish a peacekeeping force, it does not authorize use of that
force without mechanisms defined in relevant Article 58(3) Protocols.
Without a pertinent protocol, ECOWAS could not use Article 58(2) to justify
its intervention into Sierra Leone. Therefore, ECOWAS could rely on neither
Kabbah's invitation nor any treaty language to lawfully warrant its invasion
of Sierra Leone.
149. See infratext accompanying notes 181-83 (discussing Nigeria's influence in the truly
multilateral ECOWAS).
150. ECOWAS Treaty, supra note 21, art. LVIII, § 2, 35 I.L.M. at 687-88.
151. Levitt, supra note 29, at 368.
152. ECOWAS Treaty, supra note 21, at art. LVIII, § 3, 35 I.L.M. at 688.
153. The Protocol Relating to the Mechanism for Conflict Prevention, Management,
Resolution, Peace-Keeping and Security, which created extensive mechanisms for resolving
regional conflicts and humanitarian crisis within the preexisting ECOWAS structure, did not
come into force until after the 1998 intervention. See The Protocol Relating to the Mechanism
for Conflict Prevention, Management, Resolution, Peace-Keeping and Security, Dec. 10, 1999,
availableat http://www.ecowas.int/sitecedeao/english/apl 01299.htm (last visited Jan. 8,2000),
also available at http://www.alliancesforafrica.org/RegionalMechanisms/ ECOWAS%20
protocol.doc (last visited Jan. 6, 2000).
154. See Protocol Relating to Mutual Assistance on Defence, May 29, 1981, art. XVIII,
§ 2, 1690 U.N.T.S. 51, 59.
V. APPLYING CONDITIONALIST CRITERIA TO THE ECOWAS INTERVENTION
The ECOWAS military intervention in Sierra Leone serves as evidence

of state practice supporting the humanitarian intervention doctrine, because it
fulfills the Conditionalists' five criteria for a lawful humanitarian intervention.
First, the AFRC government inflicted large-scale atrocities on Sierra Leonean
civilians. Second, ECOWAS had an overriding humanitarian motive to
intervene in Sierra Leone because ECOWAS's primary concern was to stop
the humanitarian crisis. Third, the intervention was a joint action conducted
through ECOWAS, a regional security organization, including troops and
command from numerous countries. Fourth, the intervention was limited in
scope and duration to that necessary to stop the atrocities. Fifth, ECOWAS
had reasonably exhausted other peaceful remedies including diplomatic
negotiations and economic sanctions. Therefore, because all the Conditionalist
criteria are met, the ECOWAS intervention provides state practice evidence
supporting the humanitarian intervention doctrine.
A. The AFRC Committed Large-ScaleAtrocities
The AFRC committed gross human rights violations. As documented

in supra Part MI.B, the AFRC perpetrated innumerable and systematic
atrocities against Sierra Leonean civilians, including murder, rape, mutilation,
torture, forced labor, and intentional and neglectful acts leading to mass
starvation and disease. Many of these cruelties violated thejus cogens norms
of international law prohibiting a state from committing enslavement, murder,
and torture of its own citizens. 55 Some authors, without examining this
evidence or providing any explanation, claim that all of these gruesome acts
did not constitute sufficient evidence of the AFRC committing mass
atrocities." Even accepting these authors' unsupported assertion, the AFRC's
alleged imminent genocide against the large civilian population actively
opposing the coup is adequate to warrant a humanitarian intervention.157
Therefore, the ECOWAS invasion meets the first criterion for a humanitarian
intervention, because the AFRC committed mass atrocities, while further gross
violations of human rights were imminent.
155. See supra notes 57-58 and accompanying text.

156. See Nowrot & Schabacker, supra note 82, at 376 (arguing that the AFRC created
crisis was not a situation "where fundamental human rights are at stake" because the "dwindling
food supplies ... [were] largely the creation of ECOWAS and United Nations imposed
sanctions"). Nowrot and Schabacker notably fail to discuss any of the documented murder,
rape, torture, mutilation, etc., discussed in supra Part III.B, when rejecting the notion that
fundamental human rights were at stake during the AFRC rule. See id.at 376; see also Levitt,
supra note 29, at 369 (claiming that "it cannot be said that... there were mass violations of
human rights warranting humanitarian intervention," without citing evidence of the
humanitarian situation or justifying this position).
157. Supra note 107 and accompanying text.
2001] EVIENCE OF THE HUMANITARIAN INTERVENTION DOCTRINE 627
B. ECOWAS had an OverridingHumanitarianMotive
ECOWAS had an overriding humanitarian motive when it intervened in

Sierra Leone. In considering this criterion, note that while humanitarian
concern must be a primary motive, the humanitarian intervention doctrine does
not require it to be the exclusive motive. 58 To discover the state's subjective
intent, official statements and the state's record can be informative. 1 9 A
number of statements by ECOWAS officials and others indicated a humanitar-
ian motive for the intervention in Sierra Leone. For example, ECOWAS's
stated objectives for the intervention were the attainment of peace, restraint of
the national army, disarmament and demobilization of combatants, and the
provision of humanitarian assistance.'60 Note that all of these objectives in
some way seek to avert humanitarian disaster, either by stopping the fighting
that led to civilian suffering, disempowering the forces that committed the
atrocities, or directly addressing the humanitarian problem. Furthermore, in
the same statement that disclosed the ECOWAS intention to use force in Sierra
Leone, ECOWAS ministers expressed their concern for the humanitarian
crisis.' 6' ECOMOG's commander lamented publicly about the human rights
abuses, saying that the AFRC had "carried out a lot of atrocities[;] ... they
have killed so many people, they have looted so many people's houses. All
they were doing was terror." 62 Additionally, the U.S. State Department had
commented that ECOWAS's involvement in Sierra Leone "underscored the
universality of human rights."' 3 These statements shed light on ECOWAS's
motive for the intervention, of which ECOWAS generally has been silent.
This silence may be due to appearance of inauthenticity of the humanitarian
intent, given ECOWAS Chairman Nigeria's own poor human rights record."64
Critics cannot claim that ECOWAS was ignorant of the AFRC's atrocities
against Sierra Leoneans because Kabbah and other exiled officials repeatedly
informed ECOWAS of these human rights violations." Unfortunately,
without a decisive statement by ECOWAS on its primary motive, any
determination of intent is ultimately conjecture. Yet, in the aggregate, the
statements by ECOWAS and its representatives and the assessment by the
158. See supra note 59 and accompanying text.

159. Without listing them explicitly, Conditionalists use these factors in their analyses of
humanitarian intent. See, e.g., Bazyler, supra note 23, at 608-09, 613-14; Tragedies 1,supra
note 24, at 312, 317, 322.
160. See Fifth Report, supra note 106, 1 17.
161. See Final Communiqui, supra note 123, 1 12.
162. Anthony Morland, Junta Leaders Flee as ECOMOG Takes Freetown,AGENCE FR.-
.PRESSE, Feb. 12, 1998, availableat 1998 WL 2221007.
163. U.S. DEP'T OF STATE, supra note 76, at xv.
164. For a discussion of such criticism, see infra notes 175-176 and accompanying text.
165. See, e.g., Ousted PresidentDemands End to Violence in Sierra Leone, AGENCE FR.-
PRESSE, July 18, 1997, availableat 1997 WL 2160982.
United States, strongly suggest that stopping the humanitarian crisis was the
primary motive for the ECOWAS intervention.
Critics contend that humanitarian concern was not ECOWAS's
overriding motive in this intervention. For example, a motivation for
ECOWAS member Nigeria was the protection of its nationals legitimately
stationed in Sierra Leone.'" While this was certainly a partial motivation, the
intervention undertaken far exceeded that necessary and proportional to the
protection of the small Nigerian contingent present in Sierra Leone at the time,
suggesting the existence of a more influential motive. There was no evidence
that territorial ambition motivated ECOWAS or any of its member-states to
intervene in Sierra Leone. Karsten Nowrot and Emily Schabacker emphasize
that ECOWAS's most often stated goal was not stopping the AFRC's
atrocities, but to restore the civilian, democratically elected government to
Sierra Leone. 67 Nowrot and Schabacker then argue that the goal to restore the168
civilian government reveals that ECOWAS's intent was "pro-democratic"'
and subsequently conclude that this intervention was taken under a proposed
rule of customary international law permitting military interventions for the
restoration of democracy. 69 They base their conclusion on Nigeria's "self
appointed role as regional defender of democracy."' 7' However, ECOWAS's
limited stated goal is insufficient to support Nowrot and Schabacker's broad
claims. It does not necessarily follow that ECOWAS's objective of restoring
the civilian government to power is based on the intent to support democracy.
Instead, ECOWAS could want to restore Kabbah because he is friendlier to
ECOWAS's policies, or as this article argues, because the restoration of the
civilian government would end the humanitarian crisis. The restoration of
democracy is an unlikely motive, since the majority of heads-of-state that sat
on the ECOWAS Committee of Five, the ECOWAS subgroup in charge of the
Sierra Leone intervention, were current or former military dictators, including
ECOWAS's Nigerian chairman. ' Critics retort that these same states,
especially Nigeria, are regular abusers of human rights, excluding the
possibility of humanitarian intent." While this criticism does carry some
166. See Levitt, supra note 29, at 368.

167. Nowrot & Schabacker, supra note 82, at 376, 378.
168. Id. at 378 ("This attempt to justify the use of force raises questions concerning the
existence of a general right of pro-democratic intervention under international law....").
169. See id. at 412.
170. Id.
171. In February 1998, the time of the intervention, three of the five heads of state of the
Committee of Five were current or former dictators. See James Rupert, NigerianRuler Dies
After Brutal Reign, WASH. POST, June 9, 1998, at AI (Nigeria, current dictator); THE WORLD
ALMANAC AND BOOK OF FAcTS 802 (Robert Fanighetti et al. eds., 2000) (Ghana, former
dictator); id. at 803 (Guinea, former dictator); id. at 834 (Liberia, elected president); id. at 789
(Cote d'lvoire, appointed president).
172. Lobel, supranote 20, at 31 ;A Double Standardin Nigeria,CI. TRMB., Mar. 21, 1998,
at 24; Leaders:NigeriaDoes ItAgain, THE ECONOMIST, Feb. 21,1998, at 16-17; This Madness
in Africa, GHANAIAN INDEPENDENT, Oct. 31, 1997, available at 1997 WL 15136107.
weight, it is important to focus on the magnitude of the human rights

violations. Nigeria's record of unfair trials and imprisonment of many
hundreds of political dissenters, and especially its murder of approximately
sixty unarmed civilians is unjust," but the relative magnitude of these crimes
pale in comparison to the hundreds of thousands of Sierra Leoneans that
suffered horrendous atrocities under AFRC subjection. 7 ' One commentator
accused Nigeria, as the most powerful member of ECOWAS, of engineering
the intervention to improve its standing in international opinion.' Allegedly,
Nigeria hoped that conducting a humanitarian intervention "might help ease
the international condemnation and isolation [Nigeria] faces."" 6 However
unintentionally, arguing that Nigeria conducted this humanitarian mission to
improve its intemational reputation reinforces the claim that ECOWAS's
motive was humanitarian. While the reason Nigeria had a humanitarian
motive may have included gaining respect through an act of compassion, the
basic motivation was still humanitarian in nature. Thus, despite Nigeria and
its partners' unclean humanitarian records, the ECOWAS intervention still had
a legitimate humanitarian motive. In total, other theories of ECOWAS's intent
do not stand-up to scrutiny, leaving humanitarian intent as the most likely
motive.
C. The ECOWAS Intervention was a Regional JointAction
The intervention fulfilled the preference for joint action criterion because
the West African nations acted through a regional organization after the U.N.
failed to take decisive action.'" By February 1998, it had become increasingly
obvious that the U.N. Security Council had reached the limits of its interest in
Sierra Leone, unwilling to intervene in Sierra Leone beyond the economic
embargo.' In lieu of collective intervention, ECOWAS took responsibility
to stop the atrocities. Though the nations of West Africa originally formed
ECOWAS to promote economic and monetary union, ECOWAS gradually
173. See AMNESTY INT'L, Al INDEX No. AFR 441003/1996; NIGERIA: A SUMMARY OF
HUMAN RIGHTS CONCERNS 1,3, 6 (1996).
174. Sierra Leoneans are especially forgiving of Abacha's domestic humanitarian failures.
"[Tihey consider [Abacha] their savior and protector from brutal savages. The United States
may not have approved of President Abacha's role in Nigeria, but in Sierra Leone, General
Abacha will forever remain their hero." Restructuring Sierra Leone, supra note 89, at 14
(statement of John Ernest Leigh).
175. See Atasu Evero, Abacha Restore Nigeria's Democracy Before Sierra Leone, N.Y.
BEACON, June 25, 1997, at 32, available at 1997 WL 11707386.
176. Id.
178. Press Briefing by James 0. C. Jonah, supra note 107. Despite the ongoing and
worsening humanitarian crisis in Sierra Leone, the U.N. Security Council took no other action
concerning the crisis beyond its October 8,1997 reinforcement of the ECOWAS embargo until
well after the ECOWAS intervention.
transformed into a regional security organization.' 79 ECOWAS has sixteen

member nations, with five of those members sitting on the committee directing
the intervention in Sierra Leone."s Though Nigeria is the most powerful
member of ECOWAS, it is inaccurate to say that this intervention was merely
"hegemonic interest masquerading under humanitarian goals.''. While
Nigerians represent a majority of the 20,000 ECOMOG troops, soldiers from
Gambia, Ghana, Guinea, Mali, Senegal, Sierra Leone, and Tanzania also serve
in ECOMOG.' s2 Furthermore, only the collective decision-making bodies of
ECOWAS, not Nigeria alone, exercised control over ECOMOG.'" Even
assuming that Nigeria did dominate ECOWAS, this does not disqualify its
actions as truly multilateral. U.S. interests often dominate NATO, yet actions
taken by NATO are certainly multilateral and have the legitimacy of a proper
regional action. Therefore, because ECOWAS is a true regional organization
and the United Nations was unwilling or unable to stop the atrocities in Sierra
Leone, the ECOWAS intervention fulfilled the third criterion of preference for
joint action.
D. The ECOWAS Intervention was Limited in Magnitude and Duration
The ECOWAS invasion was a limited intervention because it was

restricted in both magnitude and duration to that necessary to end the
atrocities.8 4 The intervention was limited in magnitude because ECOWAS
forces did not exceed their mandate of removing the abusive AFRC and
returning the civilian government to power. "5 As was shown by the failure of
peaceful attempts to stop the humanitarian crisis,' 86 the only way to make the
junta end its murderous practices was to remove it from power. In this
concern, ECOWAS's mission was limited to four objectives: attainment of
peace, provision of humanitarian assistance, assimilation of combatants into
society, and retraining of a civilian-led Sierra Leonean military." 7 Similarly,
the duration of the intervention was limited to that necessary to depose the
AFRC. While ECOWAS troops did remain after Kabbah's return to power,
they did so only at the request of the Sierra Leone government and therefore
179. See Matthew S. Barton, ECOWAS and West African Security: The New Regionalism,
4 DEPAUL INT'L L.J. 79,91-92 (2000).
180. See supra note 171 and accompanying text.
181. Lobel, supra note 20, at 30-31.
182. ECOMOG: A Nigerian-LedWest African MilitaryForce,AGENCE FR.-PRESSE, Feb.
10, 1998, availableat 1998 WL 2219175.
183. See Francois-Xavier Harispe, ADDS Reax from ECOMOG Chief, AGENCE FR.-
PRESSE, Nov. 5, 1997, availableat 1997 WL 13427939.
185. See Final Communique, supra note 123,1 16, 8.
186. See infra Part V.E.
187. See Fifth Repon, supra note 106. 17.
were no longer intervening. 88 Furthermore, after ECOWAS reinstated

Kabbah, U.N. peacekeepers joined the ECOMOG soldiers, adding legitimacy
to their stay." 9 Therefore, the ECOWAS intervention was limited in
magnitude and duration, satisfying the fourth criterion for humanitarian
intervention.
E. ECOWAS Exhausted All Peaceful Remedies
By exhausting all peaceful remedies before using force, ECOWAS

fulfilled the fifth criterion.'" Despite intense efforts, ECOWAS was unable
to stop the AFRC's atrocities through diplomacy or economic sanctions, while
prospects of a peaceful resolution to the crisis were grim.19' Quick action was
imperative because of the continued economic suffering by civilians and threat
of even worse atrocities, making further attempts at diplomacy and economic
solutions extremely hazardous. Therefore, ECOWAS reasonably exhausted
all peaceful remedies before invading Sierra Leone, satisfying the fifth
criterion for a legitimate humanitarian intervention.
The ECOWAS invasion fulfilled all five criteria under the humanitarian
intervention doctrine. The AFRC committed massive atrocities against the
Sierra Leoneans, and these atrocities motivated ECOWAS to intervene.
ECOWAS, a regional security organization, conducted the intervention in a
limited manner and only after reasonably exhausting all peaceful means of
resolving the humanitarian crisis. While evidence may not be absolutely solid
concerning a clear motive, evidence suggesting humanitarian intent and strong
evidence in all other criteria buoy the totality of the intervention to meet the
Conditionalists' requirements. By fulfilling this test, the ECOWAS interven-
tion in Sierra Leone serves as evidence of state practice supporting a
humanitarian intervention exception to the prohibition against the use of force
in international law.
VI. CONCLUSION
A single example of state practice is insufficient to conclusively prove

the existence of the humanitarian intervention doctrine. However, when
coupled with other recent and future examples of humanitarian interventions
that conform to the Conditionalist criteria, the case for the existence of the
188. See President Ahmad Tejan Kabbah, Address to the Nation on the Restoration of
Democracy in Sierra Leone (Feb. 13, 1998), available at http://www.sierra-leone.org/
kabbahO2l398.html; see also Press Briefing by James 0. C. Jonah, supra note 107.
189. See U.N. SCOR Res. 1181, U.N. SCOR, 3902d mtg. at 6, U.N. Doc. S/RES/I1181
(1998). U.N. peacekeepers eventually replaced all ECOMOG forces in Sierra Leone. See
ECOWAS Executive Secretariat, 25th Anniversary Report: Regional Peaceand Security, 15,
availableathttp://www.ecowas.int/sitecedeao/english/peace.htm (last modified Dec. 14,2000).
190. Supra text accompanying notes 69-70.
191. See supra parts III.C. 1-1II.C.2.
humanitarian intervention doctrine becomes strong. With further applications

of the Conditionalist theory to past and future interventions indicating state
practice support, the humanitarian intervention doctrine will become a
cornerstone of customary international law.
Though laudable and lawful according to the humanitarian intervention
doctrine, the ECOWAS intervention was too late to prevent the needless
deaths of thousands and suffering of millions. Had the U.N. Security Council
acted quickly and decisively immediately after the coup, ECOWAS would not
have had to rely on the humanitarian intervention doctrine to invade because
there would have been no humanitarian crisis to end. Instead, the U.N.
Security Council has demonstrated a general disinterest in or disability
concerning humanitarian interventions, especially in Africa.' 92 With the
development and clarification of the humanitarian intervention doctrine,
regional organizations should now rely on the doctrine and intervene to
prevent and resolve true humanitarian crises.
Lee F. Berger*
192. See Press Briefing by James 0. C. Jonah, supra note 107. Also, consider U.N.
Security Council inaction concerning Rwanda, Burundi, Kosovo (until after unilateral NATO
action), and Burma.
* J.D. Candidate 2002, Georgetown University Law Center. B.A., 1999, American
University Law Center. I would like to thank my friends and family for all of their support
during the writing of this Note, especially Professor Jane Stromseth, Rebbecca Raquet, Daniel
Bimbaum, Nancy Diamond, Beth Burghaze, and linsey Silver.

17732-Article Text-24983-1-10-20140821 PDF

Uploaded by

Copyright:

Available Formats

17732-Article Text-24983-1-10-20140821 PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

17732-Article Text-24983-1-10-20140821 PDF

Uploaded by

Copyright:

Available Formats

STATE PRACTICE EVIDENCE OF THE HurMANrARIAN

INTERVENTION DOCTRINE: THE ECOWAS

The world is replete with humanitarian disasters, often perpetrated by

1. See generallyAMNESTY INTERNATIONAL, REPORT2000 (2000) (documenting humani-

Literally interpreted, 8 Article 2(4) of the U.N. Charter explicitly prohibits a

Nations, Growth in UnitedNations Membership, 1945-2000, available at http://www.un.org/

examinations of former state practice and opinio juris. In a similar manner,

Nanda, 30 present the humanitarian intervention doctrine in a useful and

II. CONDITIONALIST THEORY ON AN EXCEPTION TO THE PROHIBITION

Over the past thirty years, Conditionalists have described customary

1945, state practice and opiniojurishinted at the existence of the humanitarian

B. Critiqueof the HumanitarianIntervention Doctrine

In addition to maintaining that insufficient evidence exists to support the

law outright forbids humanitarian interventions. Most opponents claim that

genuine humanitarian interventions from inauthentic claims by utilizing

C. Criteriafor a Legitimate HumanitarianIntervention

To assess the legitimacy of a humanitarian intervention, Conditionalists

53. See Lobel, supra note 20, at 32.

be problematic, because nations usually equivocate concerning their numerous

Il. FACTUAL BACKGROUND: THE 1998 ECOWAS INTERVENTION

70. See Bazyler, supra note 23, at 606-07.

B. The Armed Forces Revolutionary Council and the Human

On May 27, 1997, a group of low-ranking military officers headed by

1. Atrocities Committed DirectlyAgainst Civilians

Thus began the Reign of Terror ... of gang-rape, looting,

During the AFRC rule, government agents committed innumerable acts

As in Freetown and other parts of the country, rape of girls

100. Restructuring Sierra Leone, supra note 89, at 38.

Additionally, the AFRC tortured children, especially child-combatants, and

2. Criminal Government Negligence

Almost as heinous as the violence the AFRC junta perpetrated against

The number of displaced persons registered with humanitar-

population, usually commandeering the supplies for themselves. 9 Despite the

C. ECOWAS Reacts to the HumanitarianCrisis

ECOWAS also attempted to implement economic sanctions to compel

On February 6, 1998, ECOWAS finally decided to use force to oust the

125. FinalCommuniqui, supra note 123, 1 6(iii).

IV. OTHER THEORIES OF THE LEGALITY OF THE ECOWAS INTERVENTION

A. Intervention at Kabbah's Invitation

determination through revolution; in situations of a closely contested civil war,

B. Intervention by Right of Treaty.

Member States [shall] undertake to co-operate with the

V. APPLYING CONDITIONALIST CRITERIA TO THE ECOWAS INTERVENTION

The ECOWAS military intervention in Sierra Leone serves as evidence

A. The AFRC Committed Large-ScaleAtrocities

The AFRC committed gross human rights violations. As documented

155. See supra notes 57-58 and accompanying text.

B. ECOWAS had an OverridingHumanitarianMotive

ECOWAS had an overriding humanitarian motive when it intervened in

158. See supra note 59 and accompanying text.

166. See Levitt, supra note 29, at 368.

weight, it is important to focus on the magnitude of the human rights

C. The ECOWAS Intervention was a Regional JointAction

transformed into a regional security organization.' 79 ECOWAS has sixteen

D. The ECOWAS Intervention was Limited in Magnitude and Duration

The ECOWAS invasion was a limited intervention because it was

were no longer intervening. 88 Furthermore, after ECOWAS reinstated

E. ECOWAS Exhausted All Peaceful Remedies

By exhausting all peaceful remedies before using force, ECOWAS