The architecture of AU Intervention: Institutions for implementation of article 4(h) of the AU Act

• Jurisdiction: South Africa
• Citation: (2008) African Yearbook on International Humanitarian Law 100
• Published date: 22 August 2019
• Pages: 100-136
• Author: Dan Kuwali
• Date: 22 August 2019

The Architecture of AU Intervention:

Institutions for Implementation of

Article 4(h) of the AU Act

Dan Kuwali*

1INTRODUCTION

The problems confronting Africa today are complex and considerable; in

contrast, the institutions that are meant to be employed to address these

problems are relatively weak and lack resources. The prevalence of mass

atrocity crimes on the continent appear to continue unabated – the first

four situations before the International Criminal Court (‘ICC’) concern AU

member states. More than 80 per cent of the existing UN peace operations

are deployed in Africa.

1

Further, even if more resources were to be made

available to the AU, inadequate planning frequently results either in the

organisation not being fully prepared to discharge its responsibility or

discharging it haphazardly. At the same time, while the role and legitimacy

of regional organizations in having recourse to military force is being dis-

puted, the AU is having to confront its own dilemma of determining an

appropriate security strategy suitable for continent.

The AU’s peace and security agenda also faces shortcomings related to

the lack of sufficient political will of its member states to engage in military

intervention in situations of mass atrocities. Additionally, no clear opera-

tional doctrine has been developed by the AU for the protection of civilians

and the prevention, or halting, of on-going, mass atrocity crimes. Institu-

tional weaknesses also remain a mounting problem exacerbated by appar-

ent hegemonic powers. Experience has shown that for mediating the most

difficult problems and implementing peace agreements, Africa looks to

Europe and the US, sometimes bilaterally, sometimes under a UN

umbrella. To date, this has been done solely on an ad hoc basis, without

a coordinated analysis of how the relations between African intergovern-

mental organisations (‘IGOs’) and the UN are interfacing.

* Fellow, the Carr Center for Human Rights Policy, Kennedy School of Government,

Harvard University; Marie Research Fellow, the Grotius Institute of International Legal

Studies, Leiden University, The Hague Campus; Deputy Director of Legal Services,

Malawi Defence Force; and, Correspondent, Yearbook of International Humanitarian

Law.

1

David Mepham &Alexander Ramsbotham Safeguarding Civilians Delivering on the

Responsibility to Protect in Africa (2007) 1.

100

(2008) African Yearbook on International Humanitarian Law 100

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Against this backdrop, the challenging task for Africa is to develop

mechanisms for effective intervention capable of maximizing scarce

resources. This requires capacity effectively to prevent, mitigate and pro-

vide rapid responses to political complex emergencies, as well as to under-

take reconstruction and peacebuilding efforts. This suggests that the

establishment of preventive interventions should be the main preoccupa-

tion of the AU as opposed to taking action after the occurrence of atrocities.

However, as the genocide in Rwanda in 1994 exposed, no matter how well

planned a strategy may be, if no real action is taken to prevent the outbreak

of violence, then any prevention effort is of little use.

2

The Darfur crisis,

which is the first major challenge to the AU, provides a clinical case to

tighten the loose ends in the AU peace and security framework in order to

implement elements of the AU’s invigorated peace and security agenda. In

his analysis of scenarios for intervention in Darfur, van der Lijn has noted

that:

‘[N]owadays Western donors appear to react less enthusiastically when con-

fronted with another bill for another peace operation in yet another conflict in

Africa. As a result, AU operations are generally under funded, deployed late,

difficult to expand, and often replaced by UN operations if possible.’

3

An outstanding question is whether the AU or a group of states could

undertake an intervention without UN authorisation. Assuming it can as

treaty-based intervention, then such intervention will be ‘action under risk’

– with a presumption of unlawfulness hence the need for clear-cut criteria

for intervention.

4

Related to the question as to who should verify that the

criteria for a humanitarian intervention are properly met, is the question of

how this should be done. This decision to confirm that the requirements for

an intervention exist and to authorize the intervention has to be made by a

clear legitimate authority. The Darfur crisis, for instance, raised questions

as to whether the UN or the AU should intervene aggressively to stop the

massive killing and displacement there and, if so, what form the interven-

tion should take. While the UN and its Members have been debating these

questions, at least 200 000 people have died in Darfur and close to 2, 2

million have been driven from their homes and farms.

Relying on former Secretary-General Boutros-Ghali’s Agenda for Peace,

regional organisations play an ever more robust security role, not only as

means of alleviating mounting UN over-stretch but also to ‘contribute to a

2

Kumar Rupesinghe Civil Wars, Civil Peace: An Introduction to Conflict Resolution

(1998) 78.

3

Jaı

¨rvan der Lijn ‘Scenarios for Intervention in Darfur’ (2007) 24:65 Utrecht Journal of

International and European Law 38 46 at 45.

4

Robert Kolb ‘A Note on Humanitarian Intervention’, (2003) 849 International Review

of the Red Cross 119 134 at 133 134.

THE ARCHITECTURE OF AU INTERVENTION 101

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deeper sense of participation, consensus and democratisation in interna-

tional affairs.’

5

Yet, the AU’s intervention as peacekeeper in Darfur– in the

name of African Mission in Sudan (‘AMIS’) – has revealed the limitations

in the organisation’s current peace and security structures. Nonetheless,

the AU’s deployment of a force in the region shows a crucial recommitment

to the protection of citizens across borders. However, logistical problems as

well as the lack of political will to challenge the government of Sudan,

starkly reflect the challenges posed – which challenges are exacerbated

when it is recognised that the international community is reticent to inter-

vene effectively in conflict situations in Africa. Africa needs, of and by itself,

to strengthen continental capacity in such circumstances. What follows is

an examination of some of the key organs in the AU human security frame-

work and a consideration of the contribution they might make for timely

and effective intervention.

2INSTITUTIONAL FRAMEWORK FOR DECIDING ON

INTERVENTION

Article 4(h) is clear that it is the AU Assembly of Heads and Government

(‘AU Assembly’) that will make a decision for intervention. A decision to

intervene will be by consensus or, failing which, will only require an endor-

sement of two-thirds of the member states, and flowing from article 11 of

the Constitutive Act of the AU (‘AU Act’), no single member of the AU has

the power to veto in contrast with the UN Security Council. This implies

that no single state can control the decision-making process in respect of

the operation of article 4 (h) of the AU Act. In deciding on intervention, the

AU Assembly is likely going to consider the inability or unwillingness of the

national government to protect its populations. This brings to the fore the

question of culpability of the government concerned in causing or tolerat-

ing mass atrocity crimes in article 4(h) of the AU Act.

While the Peace and Security Council (‘PSC’) may recommend interven-

tion to the AU Assembly, it seems that the decision to intervene should be

supported by the anticipated African Court on Justice and Human Rights,

given that the conditions for the first-tier intervention in article 4(h) of the

AU Act are serious human rights violations in the form of mass atrocity

crimes (the second-tier intervention to ‘restore order’ is not yet opera-

tional). Decision-making by the AU Assembly is by consensus or, failing

which, by a two-thirds majority of member states eligible to vote.

5

Boutros Boutros Ghali Supplement to an Agenda for Peace: Position Paper of

Secretary General on the Occasion of the Fiftieth Anniversary of the United Nations.

UN Doc A/50/60 S/1995/1(1995) para 64.

102 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

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