ARTICLES

The African Union and the responsibility to protect

Sabelo Gumedze

Doctoral Candidate, Abo Akademi University, Finland; Senior Researcher, Institute for Security Studies, Pretoria, South Africa

SUMMARY

This article discusses how the African Union, as a major contributor to peace and security, has embraced and further entrenched the concept of the responsibility to protect. It traces the concept from the time when the former Secretary-General of the United Nations, Kofi Annan, challenged the international community to agree on the basic principles and processes of when intervention should occur in order to protect humanity against gross violations of human rights. It further discusses how the government of Canada responded to this challenge through the establishment of the International Commission on Intervention and State Sovereignty, which undertook extensive work in an attempt to unpack the meaning of the concept. The article makes reference to the 2005 World Summit where the Heads of State and Government of the United Nations unanimously affirmed the concept of the responsibility to protect, as well as to the 2005 Common African Position on the Proposed Reform of the United Nations (Ezulwini Consensus) wherein the Executive Council of the African Union affirmed this concept. The article further makes linkages between the concept of the responsibility to protect and the notions of human rights, human security and international security. Focusing on the African Union, the article discusses how the concept has over the years evolved in the African context. Devoting particular attention to article 4(h) of the Constitutive Act of the African Union, the article gives an understanding on how this article gives effect to the responsibility to protect. It elaborates on the notions of collective intervention and universal jurisdiction, among other things. The article also considers the processes to be undertaken by the African Union, as a means of giving effect to the responsibility to protect, following requests for intervention by its member states and occurrences of undesirable unconstitutional changes of government.

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* BA LLB (Swaziland), LLM (Human Rights and Démocratisation in Africa) (Pretoria), LicPolSc (Abo, Finland); sgumedze@abo.fi/sgumedze@issafrica.org. I thank Prof Peter Lewis, Prof Frans Viljoen and Ms Irene Ndung'u for commenting on earlier drafts.
1 W Soyinka 'Constitution and continuity' Tempo 16 March 2000 http://www.nigerianlaws.com/ as quoted in NJ Udombana 'The unfinished business: Conflicts, the African Union and the New Partnership for Africa's Development' (2003) 35 George Washington International Law Review 55.
2 Adopted on 11 July 2000 and entered into force on 26 May 2001.
3 See generally AA Girmachew 'A study of the African Union's rights of intervention against genocide, crimes against humanity and war crimes' unpublished PhD thesis, University of Oslo, 2008.
4 On the levels of state obligation to respect, protect, promote and fulfil human rights, see Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) (SERAC case). In particular, see paras 44-47 of the SERAC case.
5 Post-Conflict Reconstruction and Development (PCRD) is one of the tools of the AU designed to curb the severity and repeated nature of conflicts in Africa as well as to bring about sustained development. See eg Decision on Post-Conflict Reconstruction and Development (EXCL/Dec 302 (IX) 25 June - 2 July 2006, Banjul, The Gambia) and Report on Post Conflict Reconstruction and Development (DOC EX CL/274 (IX) 25 June - 2 July 2006, Banjul, The Gambia) http://www.africa-union.org/root/AU/AUC/Departments/PSC/PCRD/PCRD%20Main%20Web% 20Source/Main%20Folder/documents.html (accessed 23 January 2010).
6 See C Heyns & F Viljoen 'The regional protection of human rights in Africa: An overview and evaluation' in PT Zeleza & PJ McConnaughay Human rights, the rule of law, and development in Africa (2004) 129.         [ Links ]
7 O Furley & R May (eds) Ending Africa's wars: Progressing to peace (2006) 1.         [ Links ]
8 Report of the International Commission on Intervention and State Sovereignty The responsibility to protect (2001) 11.
9 See S Gumedze 'Meaning of human security revisited' ISS Today 29 June 2007 http://www.iss.co.za/static/templates/tmpl_html.php?node_ id=2436&slink_id=4660&slink_type=12&link_id=21 (accessed 29 February 2010).         [ Links ]
10 See the Annual Report of the Secretary-General to the 54th session of the UN General Assembly in September 1999 http://www.un.org/News/ossg/sg/stories/statments_search_full.asp?statID=28 (accessed 11 April 2010).
11 See the website of the International Commission on Intervention and State Sovereignty
http://www.iciss.ca (accessed 10 January 2010).
12 The Report of the International Commission on Intervention and State Sovereignty is available at http://www.iciss.ca/pdf/Commission-Report.pdf (accessed 10 January 2010).
13 On the other core principles, see generally art 4 of the Constitutive Act.
14 Art 3(h) Constitutive Act.
15 Centre for Conflict Resolution Africas responsibility to protect Policy Advisory Group Seminar Report (2007) 6.
16 See Report on Wilton Park Conference 922: Implementing the responsibility to protect: The role of regional and sub-regional partners (Friday 11 - Sunday 13 July 2008) http://www.wiltonpark.org.uk/documents/conferences/WP922/pdfs/WP922.pdf (accessed 12 February 2010).
17 The text of the Rome Statute was circulated as document A/CONF 183/9 of 17 July 1998 and corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The Statute entered into force on 1 July 2002. On the international crimes, see arts 5-8 of the Rome Statute. Although the crime of aggression is listed in art 5(1)(d), art 5(2) provides that the Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with arts 121 and 123, defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. The article further provides that such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
18 See situations and cases at http://www.icc-cpi.int/cases.html (accessed 22 February
2010).
19 The Prosecutor v Ahmad Muhammad Harun (Ahmad Harun) Ali Muhammad Ali Abd-Al-Rahman ('Ali Kushayb') ICC-02/05-01/07.
20 The Prosecutor v Thomas Lubanga Dyilo ICC-01/04-01/06; The Prosecutor v Bosco Ntaganda ICC-01/04-02/06; The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui ICC-01/04-01/07.
21 The Prosecutor v Jean-Pierre Bemba Gombo ICC-01/05-01/08.
22 The Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen ICC-02/04-01/05.
23 See 'The responsibility to protect: Towards a collective African response to genocide, war crimes and crimes against humanity' http://www.responsibilitytoprotect.org/index.php?module=uploads&func= download&fileId=421 (accessed 10 January2010).
24 See generally G Evans Co-operative security and interstate conflict (1994) 1-8.
25 G Evans & M Sahnoun 'The responsibility to protect' (2002) 81 Foreign Affairs 6.
26 AU Executive Council 'The common African position on the proposed reform of the United Nations: The Ezulwini Consensus' http://www.africa-union.org/News_Events/Calendar_of_%20Events/7th%20extra%20ordinary %20session%20ECL/Ext%20EXCL2%20VII%20Report.doc (accessed 29 March 2010).
27 See the Report of the UN Secretary-General on implementing the responsibility to protect, 12 January 2009, A/63/677.
28 As above.
29 Report of the International Commission on Intervention and State Sovereignty (n 8 above) 17.
30 n 8 above, 15.
31 Art 1 Universal Declaration.
32 Art 2 Universal Declaration.
33 ICISS Report 13.
34 As above.
35 Art 3(b) Constitutive Act.
36 Art 3(f) Constitutive Act.
37 Art 2(1)(b) Vienna Convention on the Law of Treaties of 1969.
38 ICISS Report 13.
39 As above.
40 See Policy on Post-Conflict Reconstruction and Development http://www.africaunion.org/root/AU/AUC/Departments/PSC/PCRD/ PCRD%20Main%20Web%20Source/index.html (accessed 30 January 2010).
41 Report of the International Commission on Intervention and State Sovereignty (n 8 above) 15.
42 K Annan 'Secretary-General salutes international workshop on human security in Mongolia' Press Release SG/SM/7382 http://www.un.org/News/Press/docs/2000/20000508.sgsm7382.doc.html (accessed 29 March 2010).
43 Report of the International Commission on Intervention and State Sovereignty (n 8 above) 16.
44 Adopted by the 4th ordinary session of the Assembly held in Abuja, Nigeria, on 31 January 2005.
45 Art 3(c) of the AU Non-Aggression and Common Defence Pact.
46 NEPAD was launched at a special summit in Abuja, Nigeria, on 23 October 2001. See NEPAD http://www.nepad.org/documents/nepad_english_version.pdf (accessed 12 January 2010). On the progress on NEPAD, see a report by Prof Wiseman L Nkuhlu The New Partnership for Africa's Development: The journey so far (June 2005) http://www.nepad.org/2005/files/documents/journey.pdf (accessed 12 January 2010). The NEPAD document is available at http://www.nepad.org/AA0010101.pdf (accessed 12 January 2010).
47 Para 67 of the NEPAD document.
48 See generally S Gumedze 'The New Partnership for Africa's Development (NEPAD) and human rights' (2006) 22 South African Journal on Human Rights 144.
49 See art 24 of the UN Charter.
50 JS Sutterlin The United Nations and the maintenance of international security: A challenge to be met (1995) 4.
51 See generally art 4 of the Constitutive Act of the AU.
52 G Evans Co-operative security and interstate conflict (1994) 1-8.
53 See para 9 of the Preamble to the Constitutive Act.
54 Art 3(h) Constitutive Act.
55 Art 4(m) Constitutive Act.
56 Art 4(g) Constitutive Act.
57 The PSCAU Protocol entered into force on 26 December 2003 and replaced the Declaration on the Establishment within the OAU of the Mechanisms for Conflict Prevention, Management and Resolution (Cairo Declaration), while superseding the resolutions and decisions of the OAU relating to the Mechanisms for Conflict Prevention, Management and Resolution in Africa, which are in conflict with the PSCAU Protocol. See art 22 of the PSCAU Protocol.
58 See art 4(h) of the Protocol on Amendments to the Constitutive Act of the African Union, adopted by the 1st extraordinary session of the Assembly of the AU in Addis Ababa, Ethiopia, on 3 February 2003 and by the 2nd ordinary session of the Assembly of the AU in Maputo, Mozambique, on 11 July 2003. As of 3 February 2010, only 25 member states had ratified this Protocol.
59 See E Baimu & K Sturman 'Amendment to the African Union's right to intervene: A shift from human security to regime security?' (2003) 12 African Security Review 37.
60 As above.
61 See http://www.icc-cpi.int/ (accessed 19 March 2010). The Rome Statute entered into force on 1 July 2002. The definitions are found in art 8, for war crimes; art 6, for genocide; and art 7, for crimes against humanity.
62 See generally T Maluwa 'The OAU/African Union and international law: Mapping new boundaries or revising old terrain?' (2004) 98 American Society of International Law Proceedings 232.
63 Maluwa (n 62 above) 236-7.
64 As above.
65 Art 7(1) Constitutive Act.
66 CAA Packer & D Rukare 'The new African Union and its Constitutive Act' (2002) 96 American Journal of International Law 373.
67 K Kindiki 'The normative and institutional framework of the African Union relating to the protection of human rights and the maintenance of international peace and security: A critical appraisal' (2003) 3 African Human Rights Law Journal 107.
68 As above.
69 See art 17 of Protocol 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, Strasbourg, 13 May 2004.
70 See website on the situation in the Darfur region of the Sudan http://www.africa-union.org/DARFUR/homedar.htm (accessed 30 March 2010).
71 UN Security Council Resolution 1706 (2006) S/RES/1706 (2006) 31 August 2006.
72 UN Security Council Resolution 1769 (2007) S/RES/1769 (2007) 31 July 2007.
73 UN Security Council Resolution 1828 (2008) S/RES/1828 (2008) 31 July 2008.
74 UN Security Council Resolution 1881 (2009) S/RES/1881 (2009) 6 August 2009.
75 See eg KC Randall 'Universal jurisdiction under international law' (1988) 66 Texas Law Review 785-788. See also International Law Association Committee on International Human Rights Law and Practice 'Final Report on the Exercise of Universal Jurisdiction in respect of Gross Human Rights Offences' (2000) 2.
76 Assembly/AU/Dec.199 (XI).
77 See para 5(ii) of the Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction.
78 n 77 above, para 5(i).
79 n 77 above, para 3.
80 n above, para 5(i).
81 n above, para 5(iii).
82 See para of the Communiqué of the Peace and Security Council of the AU, 142nd meeting, 21 July 2008, Addis Ababa, Ethiopia.
83 n 82 above, para 2.
84 Evans & Sahnoun (n 25 above).
85 As above.
86 As above.
87 Evans & Sahnoun (n 25 above) 3.
88 As above.
89 Packer & Rukare (n 66 above) 372.
90 Baimu & Sturman (n 59 above).
91 Kindiki (n 67 above) 107.
92 Packer & Rukare (n 66 above) 372.
93 Art 4(e) Constitutive Act.
94 Art 4(f) Constitutive Act.
95 Art 4(i) Constitutive Act.
96 Art 4(o) Constitutive Act.
97 See Communiqué, Peace and Security Council 165th meeting, 29 December 2008,
Addis Ababa, Ethiopia, PSC/PR/Comm(CLXV).
98 As above.
99 See, eg, the Report of the Pan-African Parliament Election Observer Mission PAP/S/RPT/76/08http://www.pan-africanparliament.org/Controls/Documents.aspx?DID=1029 (accessed 12 April 2010).
100 See Resolution on Zimbabwe (Assembly/AU/Res 1 (XI)).
101 Art 30 Constitutive Act.
102 The meetings took place as follows: 16 March 2009 (179th meeting); 17 March 2009 (180th meeting); 20 March 2009 (181st meeting); 21 August 2009 (200th meeting); 10 September 2009 (202nd meeting); 9 November 2009 (208th meeting); and 7 December 2009 (211th meeting).
103 See the Report of the Chairperson of the Commission on the Situation in Madagascar, Peace and Security 216th Meeting of the Peace and Security Council, 19 February 2010, Addis Ababa, Ethiopia, PSC/PR/2(CCXVI).
104 Communiqué of the 216th Meeting of the Peace and Security Council, 19 February 2010, Addis Ababa, Ethiopia, PSC/PR/COMM.2(CCXVI).
105 AP Mutharika 'The role of the United Nations Security Council in African peace management: Some proposals' (1996) 17 Michigan journal of International Law 561.
106 See T Jones 'Africa: Many challenges, much hope' (1995) 89 American Society of International Law Proceedings 484.
107 The speech was given to the Labour Party conference in October 2001.