By Dr. Kayode Omolayo, ESQ.
This memorandum provides a comprehensive legal analysis of claims circulating regarding the United States’ purported authority to militarily intervene in Nigeria based on its designation as a “Country of Particular Concern” for religious freedom violations. The analysis examines these claims against the bedrock principles of international law, the United Nations Charter provisions, established treaty obligations, and relevant jurisprudence from the International Court of Justice. The conclusion reached through this analysis is that the circulated claims contain significant and fundamental legal inaccuracies regarding United States intervention authority, the structure and function of the United Nations, and the proper application of the Responsibility to Protect doctrine under contemporary international law.
The Responsibility to Protect, commonly referred to as R2P, emerged from decades of international debate about when and how the international community should respond to mass atrocities. This doctrine was formally adopted at the 2005 United Nations World Summit, codified in United Nations General Assembly Resolution 60/1, specifically in paragraphs 138 through 140. The doctrine represents a significant evolution in international thinking about sovereignty and humanitarian intervention, but it is critical to understand precisely what R2P does and does not authorize under international law. The doctrine rests upon three distinct pillars that must be understood in their proper legal context. The first pillar establishes that each individual state has the primary and paramount responsibility to protect its own populations from four specific categories of international crimes: genocide, war crimes, ethnic cleansing, and crimes against humanity. This pillar reinforces, rather than diminishes, the principle of state sovereignty by placing the burden of protection squarely on the territorial state itself. The second pillar recognizes that the international community has a complementary responsibility to assist states in fulfilling their protection obligations through capacity-building, technical assistance, and support for domestic institutions. The third pillar, which is the most controversial and most frequently misunderstood, provides that the international community should be prepared to take collective action, in a timely and decisive manner, through the United Nations Security Council, and in accordance with the Charter, including Chapter VII, when a state manifestly fails to protect its population from these four specific crimes and peaceful means prove inadequate.
The critical legal limitations that constrain any application of the Responsibility to Protect doctrine are found in the United Nations Charter itself, which serves as the constitutional framework for the entire international legal order. Article 2, paragraph 4 of the UN Charter establishes one of the most fundamental principles of modern international law, explicitly prohibiting the use of force in the following terms: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” This prohibition is considered a peremptory norm of international law, or jus cogens, from which no derogation is permitted. The International Court of Justice has consistently reaffirmed this principle in numerous decisions spanning decades. The prohibition on the use of force is so fundamental to the international legal order that only two narrowly defined exceptions exist within the UN Charter framework. The first exception is found in Article 51, which preserves the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, but even this right is temporary and must be immediately reported to the Security Council. The second exception is contained in Chapter VII of the Charter, specifically Article 42, which authorizes the Security Council to take military action to maintain or restore international peace and security, but only after the Security Council has determined under Article 39 that a threat to the peace, breach of the peace, or act of aggression exists, and only after the Council has determined that non-military measures would be inadequate.
The most important point that must be emphasized with absolute clarity is that the Responsibility to Protect doctrine does not create any independent authority for any individual state, including the United States, to use military force unilaterally outside the UN Charter framework. R2P explicitly and unambiguously requires United Nations Security Council authorization under Chapter VII before any military intervention can be undertaken. Furthermore, before military force can even be considered, the Security Council must make a determination that peaceful means are inadequate to address the situation, as required by Article 42. Any military response authorized must also be proportionate to the humanitarian objective and must comply with international humanitarian law and human rights law throughout the operation. These requirements are not mere procedural formalities but rather represent substantive constraints rooted in the Vienna Convention on the Law of Treaties of 1969, particularly Article 53, which establishes that no treaty may conflict with peremptory norms of general international law, including the prohibition on wars of aggression.
Turning now to the specific factual and legal errors contained in the circulated message, the first and perhaps most egregious error is the claim that “the US president leads the executive branch of the UN, which controls foreign policy direction” and that “the US president can decide strongly on how the UN should proceed.” This statement is categorically and demonstrably false as a matter of the United Nations Charter and the actual structure of the organization. The United Nations Charter, which entered into force on October 24, 1945, establishes in Article 7 the six principal organs of the United Nations: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice, and the Secretariat. There is no “executive branch” of the United Nations in any sense comparable to domestic governmental structures. Article 97 of the Charter designates the Secretary-General as the chief administrative officer of the Organization, currently António Guterres of Portugal, who is appointed by the General Assembly upon the recommendation of the Security Council. The Secretary-General performs functions entrusted by the principal organs, provides administrative support, and may bring to the attention of the Security Council any matter which in his opinion may threaten international peace and security, but the Secretary-General does not control or direct UN policy in the manner suggested by the circulated message.
The actual decision-making authority regarding international peace and security rests with the United Nations Security Council, as established in Article 24 of the Charter, which confers on the Security Council “primary responsibility for the maintenance of international peace and security” and requires UN Members to accept that in carrying out its duties under this responsibility, the Security Council acts on their behalf. The Security Council consists of fifteen members, including five permanent members with veto power, specifically the United States, the United Kingdom, France, the Russian Federation, and the People’s Republic of China, along with ten non-permanent members elected by the General Assembly for two-year terms. Article 27 of the Charter establishes the voting procedures, requiring that decisions on procedural matters be made by an affirmative vote of nine members, while decisions on all other matters require an affirmative vote of nine members including the concurring votes of all five permanent members. This means that any one of the five permanent members can veto a substantive Security Council resolution. Therefore, the United States possesses one vote among fifteen members and cannot unilaterally direct United Nations action, contrary to the implications in the circulated message. The United States can certainly influence Security Council deliberations through diplomatic pressure, negotiation, and its status as a permanent member, but it cannot simply decide how the UN “should proceed” on matters of military intervention.
The second major legal error concerns the claim that “the US can intervene and invade Nigeria with military force” after imposing sanctions and giving the Nigerian government time to fix issues. This assertion fundamentally misunderstands the legal relationship between non-military measures and military intervention under the UN Charter framework. Article 41 of the Charter provides that the Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon Members of the United Nations to apply such measures, which may include complete or partial interruption of economic relations, rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. Article 42 then provides that should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security, including demonstrations, blockade, and other operations. The critical point is that this progression from non-military to military measures requires a Security Council determination at each stage, not a unilateral decision by the United States or any other individual member state.
The International Court of Justice has addressed these principles in landmark cases that establish binding precedent on the prohibition of unilateral military intervention. In the seminal case of Military and Paramilitary Activities in and against Nicaragua, decided in 1986, the International Court of Justice ruled that United States military and paramilitary activities in and against Nicaragua violated international law, specifically finding that the unilateral use of force was prohibited even when undertaken for asserted humanitarian purposes without Security Council authorization. The Court held that while the United States might have legitimate concerns about conditions in Nicaragua, these concerns did not justify the use of military force outside the UN Charter framework. The Court explicitly rejected arguments that customary international law permitted humanitarian intervention without UN authorization. In the subsequent case of Armed Activities on the Territory of the Congo, decided in 2005, the ICJ reaffirmed these principles, holding that Uganda’s military intervention in the Democratic Republic of Congo violated the prohibition on the use of force, even though Uganda claimed it was responding to security threats and protecting its population. The Court emphasized that humanitarian intervention requires a Security Council mandate and cannot be undertaken unilaterally by individual states based on their own assessment of necessity.
The designation of Nigeria as a Country of Particular Concern under United States domestic law provides no authority whatsoever for military intervention under international law. The International Religious Freedom Act of 1998, which is purely domestic United States legislation, establishes a framework for the U.S. State Department to designate countries that have engaged in or tolerated particularly severe violations of religious freedom. When a country receives a CPC designation, the Act requires the United States government to take one or more specific actions, including various forms of economic sanctions, travel restrictions on government officials, denial of certain benefits, prohibitions on military assistance, or diplomatic measures. These are exercises of United States domestic jurisdiction over its own foreign policy decisions and its own resources. The CPC designation triggers obligations under United States domestic law, not international law, and certainly does not authorize the use of military force against the designated country. The fundamental principle here is that domestic legislation of one country cannot create rights or obligations under international law or override the UN Charter framework. Article 103 of the UN Charter explicitly addresses this issue, providing that “in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” This means that even if United States domestic law purported to authorize military intervention, which it does not, such authorization would be subordinate to and overridden by UN Charter obligations prohibiting the unilateral use of force.
The claim that the United States can decide whether to allow President Tinubu to continue in office or remove him through regime change represents another fundamental violation of international law. Article 2, paragraph 7 of the UN Charter establishes the principle of non-intervention in domestic affairs, providing that “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter.” The only exception to this principle occurs when the Security Council takes enforcement action under Chapter VII in response to threats to international peace and security, but even in such cases, the intervention must be limited to addressing the specific threat and cannot extend to imposing regime change or determining who should govern a sovereign state. The principle of non-intervention has been repeatedly affirmed in customary international law, most notably in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, adopted by UN General Assembly Resolution 2625 in 1970, which declares that “no State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.”
The International Court of Justice addressed regime change specifically in the Nicaragua case, where it found that United States support for forces seeking to overthrow the Nicaraguan government violated the principle of non-intervention, even when the United States argued it was supporting democratic forces against an authoritarian regime. The Court held that while states may have legitimate concerns about the governmental systems of other states, these concerns do not justify intervention aimed at changing those systems. The historical record of military interventions purportedly undertaken for humanitarian purposes without proper Security Council authorization demonstrates the problematic nature of allowing such unilateral action. The United States-led invasion of Iraq in 2003 proceeded without explicit Security Council authorization for the use of force, relying instead on contested interpretations of previous resolutions and claims about weapons of mass destruction that proved unfounded. The international legal community widely regarded this intervention as a violation of the UN Charter prohibition on the use of force. The 2011 intervention in Libya began with Security Council Resolution 1973, which authorized member states to take “all necessary measures” to protect civilians under threat of attack, but the subsequent NATO campaign expanded beyond civilian protection to include support for regime change, leading to widespread criticism that the operation exceeded its mandate and violated the principle of non-intervention. These precedents demonstrate why strict adherence to the UN Charter framework and Security Council authorization requirements is essential to prevent abuse and maintain the rule of law in international relations.
Given the legal framework established by the UN Charter, customary international law, and relevant jurisprudence, what are the proper mechanisms available under international law to address serious human rights situations, including potential mass atrocities, in any country including Nigeria? The first and primary mechanism is the United Nations Security Council itself, which can address situations through various means short of military intervention. Any member state of the United Nations can bring a situation to the Security Council’s attention under Article 35 of the Charter, which provides that any Member may bring any dispute or situation which might lead to international friction to the attention of the Security Council or the General Assembly. Once seized of a matter, the Security Council may investigate any dispute or situation under Article 34 to determine whether its continuance is likely to endanger international peace and security. The Security Council has available the full range of Chapter VI measures for the pacific settlement of disputes, including calling upon parties to settle their dispute through negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means. If the Security Council determines under Article 39 that a threat to the peace, breach of the peace, or act of aggression exists, it may then proceed to Chapter VII measures, beginning with the non-military measures under Article 41 such as comprehensive or targeted sanctions, arms embargoes, travel bans, asset freezes, and diplomatic isolation. Only if these measures are determined to be inadequate may the Security Council authorize military measures under Article 42.
Beyond the Security Council, the International Criminal Court provides a crucial accountability mechanism. Nigeria is a State Party to the Rome Statute of the International Criminal Court, having deposited its instrument of ratification on September 27, 2001. The Rome Statute grants the ICC jurisdiction over four categories of international crimes: genocide as defined in Article 6, crimes against humanity as defined in Article 7, war crimes as defined in Article 8, and the crime of aggression as defined in Article 8 bis. The ICC Prosecutor may initiate investigations proprio motu based on information received regarding crimes within the Court’s jurisdiction, subject to authorization by the Pre-Trial Chamber. The ICC operates according to the principle of complementarity, enshrined in Article 17 of the Rome Statute, which provides that a case is inadmissible before the ICC if it is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution. This means the ICC serves as a court of last resort when national judicial systems fail to act. The existence of the ICC provides a legal mechanism for accountability without requiring military intervention or violations of sovereignty. Individuals responsible for international crimes can be held personally accountable through international judicial processes, which serves both justice and deterrence objectives while respecting the territorial integrity of states.
Regional mechanisms also play an important role in addressing human rights situations and potential atrocities. The African Union Constitutive Act, which entered into force in 2001, includes in Article 4(h) a provision recognizing “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity.” This provision creates a regional framework for collective intervention, but importantly, such intervention would be undertaken by the African Union as a regional organization, not by external powers acting unilaterally. Furthermore, Article 53 of the UN Charter requires that enforcement action taken by regional arrangements or agencies requires Security Council authorization, stating “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.” The African Union has established various mechanisms for addressing human rights and governance issues, including the African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights, the Peace and Security Council, and the African Governance Architecture. These regional mechanisms provide frameworks for addressing concerns that respect African sovereignty and leadership while complying with international law.
The Economic Community of West African States has its own regional framework for intervention, established through the Protocol on Non-Aggression of 1978, the Protocol on Mutual Defence Assistance of 1981, and the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security adopted in 1999. The ECOWAS framework has been invoked in various situations, including Liberia, Sierra Leone, Guinea-Bissau, and most recently in discussions regarding the military coup in Niger in 2023. The proposed ECOWAS military intervention in Niger to restore constitutional order raised significant questions under international law. While ECOWAS as a regional organization has mechanisms for collective action among member states, any enforcement action involving the use of military force would still require Security Council authorization under Article 53 of the UN Charter to fully comply with international law. The critical distinction is that ECOWAS represents member states acting collectively through a regional framework to which they have all consented through treaty obligations, which differs fundamentally from an external power such as the United States acting unilaterally outside any such framework. Regional organizations can play important roles in conflict prevention and resolution, but they remain bound by the overarching framework of the UN Charter.
Sanctions represent another important tool available to states under international law, but it is crucial to distinguish between different types of sanctions and their legal bases. United Nations Security Council sanctions imposed under Chapter VII are binding on all UN member states and represent collective action by the international community. Such sanctions can include comprehensive economic measures, targeted sanctions against specific individuals or entities, arms embargoes, travel bans, asset freezes, and restrictions on specific commodities or services. UN sanctions are imposed and lifted by Security Council resolution and are monitored by committees that track implementation and consider exemptions for humanitarian purposes. In contrast, unilateral sanctions imposed by individual countries such as the United States represent exercises of domestic jurisdiction over that country’s own trade, financial relations, and foreign policy. The United States has broad authority under its domestic law to impose various types of sanctions, including through the Global Magnitsky Human Rights Accountability Act of 2016, which authorizes targeted sanctions against individuals responsible for gross human rights violations or significant corruption anywhere in the world. The International Religious Freedom Act provides for sanctions against countries designated as CPC. Executive Orders issued under the International Emergency Economic Powers Act provide another mechanism for imposing sanctions. These unilateral sanctions are exercises of United States sovereignty over its own economic relations and do not require international authorization. However, unilateral sanctions must still comply with principles of international law, including respect for the sovereign equality of states, avoidance of measures that violate the rights of third states, and consideration of humanitarian impacts on civilian populations.
The proper course of action for the international community when faced with serious human rights concerns in any country involves a graduated response that exhausts peaceful means before contemplating more coercive measures, always within the framework of international law. Documentation and fact-finding represent the essential first step. The UN Human Rights Council can establish commissions of inquiry, fact-finding missions, or country-specific special rapporteurs to investigate alleged violations and report findings. These mechanisms create authoritative records of violations that can support subsequent accountability measures. Civil society organizations, international human rights NGOs, and academic institutions also play crucial roles in documenting abuses and bringing them to international attention. Once violations are documented, various diplomatic and political measures can be employed, including bilateral diplomatic pressure, multilateral condemnation through UN General Assembly or Human Rights Council resolutions, reporting and monitoring mechanisms through treaty bodies, and engagement with regional organizations. If the situation potentially involves genocide, crimes against humanity, or war crimes, referral to the International Criminal Court Prosecutor becomes appropriate. The ICC can investigate and prosecute individuals most responsible for such crimes, providing accountability without requiring military intervention. Targeted sanctions against specific individuals responsible for violations represent another graduated response that can be implemented either through Security Council action or through coordinated unilateral measures by multiple states.
For the government of Nigeria specifically, addressing security challenges and human rights concerns requires prioritizing rule of law, strengthening institutions, and ensuring accountability. The government must ensure that security forces operate within legal frameworks and that violations are investigated and prosecuted. Strengthening judicial independence and capacity ensures that domestic courts can effectively adjudicate both ordinary crimes and serious human rights violations. Cooperation with international human rights mechanisms, including treaty body reporting, Universal Periodic Review participation, and engagement with special procedures, demonstrates commitment to international standards. Most importantly, addressing root causes of conflict, whether related to economic inequality, political marginalization, ethnic or religious tensions, or governance failures, requires comprehensive policy reforms and inclusive political processes. Civil society organizations and human rights defenders play essential roles in documenting violations, advocating for victims’ rights, engaging regional and international human rights mechanisms, supporting domestic accountability processes, and advocating for systemic reforms addressing root causes of violence and instability.
The legal sources supporting this analysis include the foundational documents of the international legal order and the accumulated jurisprudence of international courts and tribunals. The United Nations Charter itself, particularly Articles 2(4), 2(7), 24, 39, 41, 42, 51, and 103, establishes the basic framework prohibiting the use of force, requiring Security Council authorization for military intervention, and establishing the primacy of Charter obligations. UN General Assembly Resolution 60/1, adopted at the 2005 World Summit, sets forth the Responsibility to Protect doctrine in paragraphs 138-140. General Assembly Resolution 2625 of 1970, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, codifies customary international law principles including non-intervention. The Rome Statute of the International Criminal Court, which entered into force in 2002, establishes international criminal jurisdiction over genocide, crimes against humanity, war crimes, and aggression. The Vienna Convention on the Law of Treaties of 1969 provides interpretive principles and establishes the concept of jus cogens norms from which no derogation is permitted. The African Union Constitutive Act of 2000 establishes regional frameworks for intervention in grave circumstances while respecting sovereignty principles.
The jurisprudence of the International Court of Justice provides authoritative interpretations of these principles in concrete cases. The Case Concerning Military and Paramilitary Activities in and against Nicaragua, decided in 1986, established that unilateral military intervention violates international law even when undertaken for humanitarian purposes, that support for armed opposition aimed at overthrowing a government violates non-intervention principles, and that the use of force must comply with UN Charter requirements. The Armed Activities on the Territory of the Congo case, decided in 2005, reaffirmed that military intervention requires Security Council authorization and that humanitarian concerns do not justify unilateral use of force. The Corfu Channel case of 1949 established general principles regarding intervention and the duty of states to respect territorial sovereignty. Scholarly authorities on international law and the use of force include Professor Christine Gray’s comprehensive treatise “International Law and the Use of Force,” now in its fourth edition, which provides detailed analysis of the prohibition on the use of force and its exceptions. Professor Olivier Corten’s “The Law Against War” examines the interpretation and application of Article 2(4) of the UN Charter. Professor Alex Bellamy’s work on “Responsibility to Protect” provides thorough examination of R2P’s development, scope, and limitations within international law.
In conclusion, this comprehensive legal analysis demonstrates that the claims circulating regarding United States authority to militarily intervene in Nigeria based on CPC designation or humanitarian concerns are fundamentally flawed as a matter of international law. The United States has no legal authority under international law to unilaterally invade Nigeria or any other sovereign state outside the narrow exception of self-defense against armed attack or without Security Council authorization under Chapter VII following proper determinations under Article 39. The Responsibility to Protect doctrine, while representing an important evolution in international thinking about sovereignty and protection of populations, does not authorize or permit unilateral military intervention and explicitly requires Security Council authorization for any use of force. The structure and decision-making procedures of the United Nations do not provide any individual state, including the United States, with authority to direct UN action or bypass the Security Council’s collective decision-making process. Regime change imposed by external military intervention violates fundamental principles of sovereignty and non-intervention that form the bedrock of the international legal order. While the United States and other states have legitimate tools available for responding to human rights concerns, including diplomatic pressure, economic sanctions, support for documentation and accountability mechanisms, and engagement with international and regional institutions, these tools must be employed within the constraints of international law and cannot serve as precursors to or justifications for unauthorized military intervention.
The international legal order established by the UN Charter after the devastation of World War II sought to prevent the unilateral resort to force that had characterized earlier periods of international relations. The prohibition on the use of force and the requirement of Security Council authorization for military intervention represent hard-won achievements that must be preserved through consistent application and respect for established legal principles. While the Security Council system has its imperfections, including the veto power of permanent members that can prevent action in some cases, the solution to these imperfections lies in reform of the system through proper legal channels and building consensus for change, not in abandoning the system through unilateral action. Nigeria, as a sovereign state and member of the United Nations, African Union, and ECOWAS, has both rights under international law to be free from unauthorized intervention and responsibilities to protect its population and cooperate with international mechanisms addressing human rights concerns. The path forward requires commitment by all parties to the rule of law in international relations, respect for sovereignty within its proper bounds, accountability for violations of international law and human rights, and good faith engagement with multilateral institutions and processes designed to address security and human rights challenges while preserving international peace and stability.
This analysis is provided for educational purposes to clarify the actual state of international law regarding the use of force, intervention, and accountability for mass atrocities. It represents an interpretation of established legal principles based on authoritative sources including the UN Charter, treaties, customary international law, and judicial decisions. While legal interpretation inevitably involves some degree of analysis and judgment, the fundamental principles set forth here, including the prohibition on unilateral use of force and the requirement of Security Council authorization for military intervention, represent the overwhelming consensus of international legal scholars, the established practice of states, and the pronouncements of the International Court of Justice. Any departure from these principles would represent a significant threat to the international legal order and the maintenance of international peace and security that the UN Charter seeks to achieve.
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