CHAPTER TWO
DEVELOPMENT OF THE THEORY OF LEGITIMATE HUMANITARIAN INTERVENTION
2.0 GENERAL BACKGROUND
Despite its salience and description of an age-old phenomenon, the concept of intervention lacks definitional clarity. Intervention in to the affairs of another state has for a long time been subject to rigorous discussion in public international law for as long as laws of nations were developed. Attitudes have changed considerably since the end of World War II, the Allied discovery of the Holocaust, and the Nuremberg trials.[1] A lot of literature has been written on this topic, by international lawyers and moral philosophers whose legal and moral debates have shifted ground considerably since the end of the cold war, but whose arguments remain in ‘a state of vincible ignorance’ of empirical support[2]
John Stuart Mills in regards to intervention in to the affairs of another state asserted’ There seems to be no little need that the whole doctrine of non-interference with foreign nations should be reconsidered, if it can be said to have as yet been considered as a really moral question at all. To go to war for an idea, if the war is aggressive, not defensive, is as criminal as to go to war for territory or revenue; for it is as little justifiable to force our ideas on other people, as to compel them to submit to our will in any other respect. But there assuredly are cases in which it is allowable to go to war, without having been ourselves attacked or threatened with attack; and it is very important that nations should make up their minds in time, as to what these cases are. To suppose that the same international customs, and the same rules of international morality, can obtain between one civilized nation and another, and between civilized nations and barbarians, is a grave error’[3]
There has arisen an interest in the just war theory which has been prompted by pressures to justify, in legal terms forms of armed attack or forcible intervention lying outside, or at the margins of the use of armed forces in international relations allowed by orthodox interpretations of the UN charter and customary international law[4] there is one commonly accepted proposition of the just war theory that the use of force is not justified where the necessary means to be employed to achieve the object would be inherently excessive or indiscriminate.[5] Ivan Shearer argues that, there has imaged a trend where by states intervening others only look for political justification , or assert a doctrine of supremacy of international that is not subject to international law.[6]
In the western legal tradition the doctrine of just war began with the institution of the collegium fetiale, a collage of priests who from early times until the advent of the Holy Roman Empire administered the Jus Fitiale, which was to judge whether there were sufficient grounds for Rome to go to war with an adversary. Waging war without the approval of the collage was unlawful.[7] St Thomas Aquinas (1225-1274) was the first to set out in details the requirements of a just war he proposed three conditions as summarized by Dinstein that (I) the war had to be conducted not privately but under the authority of a prince (ii) there had to be a ‘just cause’ for the war and (iii) it was not enough to have a just cause from an objective view point, but it was necessary to have the right intention to promote good and avoid evil[8] Hugo Grotius in his book De Jure Belli Ac Pacis. claimed that the principle of sovereignty could be restricted by principles of humanity and considered that, whether a war for the subjects of another be just, for the purpose of defending them from injuries by their ruler if a tyrant practices atrocities towards his subject, which no just man can approve, the right of human social connection is not cut off in such case. It would not follow that others may not take up arms for them[9]
The end of the Cold War made it easier for the Security Council to act. The Council played a central role after the Cold War, authorizing interventions in Iraq,[10] Somalia and Kosovo. The intervention in Iraq in 1991 was significant in the development of humanitarian intervention because it was the first time the Security Council recognized that internal repression could have trans-boundary consequences that threatened international peace and security.[11]
A more recent development in the field of humanitarian intervention is the doctrine of the Responsibility to Protect. It is an attempt to reconcile the concept of sovereignty with a state‘s duty to protect its citizens.
2.1 STATE SOVEREIGNTY AND HUMANITARIAN INTERVENTION
Humanitarian intervention is a subject which addresses issues lying at the heart of contemporary international law. It cannot be studied without directly confronting the tension between the principles of state sovereignty, non-intervention and the prohibition of armed force on the one hand, and respect for human rights on the other.
According to Jakkie Cilliers and Kathryn Sturman,[12] controversy over intervention derives from the potential width of activities this term can cover, up to and including military intervention.[13] The extent to which the UN Charter authorizes humanitarian intervention by the United Nations or any other multi national organ is not obvious.[14] Whether article 2(7) has implications for humanitarian intervention obviously depends upon whether humanitarian crises are deemed to "essentially within the domestic jurisdiction" of a state. Not withstanding the importance attached to sovereignty in the international legal system, developments since world war two have gradually but inevitably changed the original conception of state sovereignty. The changes in the legal interpretation of the norm enshrined in article 2(7) of the UN charter and the entire concept of state sovereignty are as a result of the fact that the material conditions under which sovereignty is exercised have dramatically changed since 1945[15] In the UN Charter it is made clear that the issue of human rights as such is regarded as a matter of international concern.[16] But it is less clear whether the human rights situation in a particular state is a legitimate reason for international action.[17]
During the early years of the United Nations practice tended towards a wide interpretation of domestic jurisdiction suggesting that any international inquiry about activities occurring within national borders was strictly taboo.[18] Little emphasis was laid in the early years on the contradiction apparent to the non-Legal mind between article 2(7) and articles 55 and 56. Under these two articles. Members and the organization itself are pledged to promote inter alia observance of human rights and fundamental freedoms.[19] Yet it was taken for granted that the United Nations was debarred by article 2(7) from action against a member state which broke the pledge in article 56 by violating the human rights of its citizens. Human rights were regarded as falling within the 'domestic jurisdiction Promotion rather than correction was the purpose.
The organization of the international political system as it currently exists privileges the rights of the state over those of individuals. The state's capacity to protect while simultaneously constraining citizens rights reigns supreme over its territory[20]. This relationship between the state and the citizens has made it possible for governments to claim sovereign authority over their territories including the sovereign right to relate to their citizens peacefully or with coercive force.[21] The latter has frequently resulted in gross violations of human rights across the globe. In many African states (such as the Democratic Republic of the Congo, Sierra Leone, Liberia, Nigeria, Apartheid South Africa, Sudan, Ethiopia and Rwanda), these violations intensified following political independence and the development of the unwritten rule of non-interference in the internal affairs of member states of the United Nations and by the moribund Organization of African Unity (OAU)[22].
The fortification against international action has been eroding. There has been growing recognition that individuals, just like states are subjects of international law.[23] According to former Secretary-General of the UNO Boutros Boutros-Ghali, "The time of absolute sovereignty has passed; its theory was never matched by reality."[24] This development thus brought about the principle the gross violation of human rights is not a domestic matter, but they fall essentially within international jurisdiction[25] Thus it has become arguable that Article 2(7) which stipulates for state sovereignty is not a bar to international intervention for the protection of human rights
State sovereignty denotes the competence, independence, and legal equality of states. The concept is normally used to encompass all matters in which each state is permitted by international law to decide and act without intrusions from other sovereign states. These matters include the choice of political, economic, social, and cultural systems and the formulation of foreign policy. The concept of sovereign rule dates back centuries in the context of regulated relationships and legal traditions among such disparate territorial entities as Egypt, China, and the Holy Roman Empire. However, the present foundations of international law with regard to sovereignty were shaped by agreements concluded by European states as part of the Treaties of Westphalia in 1648.[26]
Article 2(1) of the UN Charter provides, the world organization is based on the principle of the sovereign equality of all member states. The principle of noninterference in affairs that are within the domestic jurisdiction of states is the anchor to state sovereignty within the system of international relations and obligations. The Charter of the United Nations explicitly provides prohibition from interfering in the domestic affairs of member states. Article 2(7), provides that "nothing contained in the present Charter shall authorize the United Nations to intervene in matters that are essentially within the domestic jurisdiction of any State or shall require the members to submit such matters to settlement under the present Charter.
In any case from the outset Article 2(7) UN Charter expressly provides that it does not prejudice the application of Security Council enforcement measures adopted under Chapter VII of the Charter. According to Article 24 UN Charter, the Security Council has primary responsibility for the maintenance of international peace and security. Chapter VII of the UN Charter titled Actions with respect to threats to the peace, breaches of the peace, and acts of aggression is particularly relevant to humanitarian intervention because the Security Council decisions made under that Chapter, are binding on all members of the United Nations,[27] and because the Chapter empowers the Security Council to use armed force in appropriate cases.[28]
Enforcement action by the Council under Chapter VII is an explicit exception to Article 2(4) of the Charter, as well as to Article 2(7). The exception falls under a provision in the Charter's preamble asserting that one of the purposes of the organization is to prevent the use of armed force except where it is in the common interest.[29] It follows that if a humanitarian emergency within a state could be said to fall within the Council's mandate over international peace and security. The UN would have the legal right to forcibly intervene. Not withstanding Articles 2(7) and 2(4).[30] Thus the obstacle to Security Council intervention would not be those provisions which protect the principles of sovereignty and the non-use of force respectively, Instead it would be the condition precedent to Chapter VII enforcement action. Expressly Article 39 which requires that there be a threat to the peace, a breach of the peace, or an act of aggression.
2.2 EVOLUTION AND CONSOLIDATION OF THE AU
In 1999 African leaders met in Sirte, Libya, to review the Charter of the OAU. This was five years after the Rwandan genocide, as well as five years after the liberation of South Africa from the yoke of apartheid, and marked the completion of the OAU’s stated aim of liberating the African continent from colonialism.[31] The African Union project was born in Sirte in 1999 with the decision to draft an act of constitution.[32] The AU’s Constitutive Act was subsequently signed in Lome, Togo, on July 11, 2000, officially inaugurated July 2002, in Durban, South Africa.
One of the philosophical bases for cooperation under the new institutional framework of the African Union is that all member States of the Union have to observe certain fundamental values and standards, including respect for human rights, democratic governance, and the condemnation of unconstitutional changes of governments. A member State failing to observe these standards could be subject to political and economic sanctions.[33] This transformation of the OAU into the AU ushered in substantive normative and institutional changes. This is represented on the normative plane by the move away from strict adherence to non-interference,[34] and the importance given to human rights and democracy in the AU Constitutive Act and constant in almost all of the major instruments it has subsequently adopted.[35]
According to the preamble to the Constitutive Act, one of the factors underlying the establishment of the AU was the recognition of the fact that the scourge of conflicts in Africa constitutes a major impediment to the socio-economic development of the continent and of the need to promote peace, security and stability as a prerequisite for the implementation of our development and In line with this, the Act provides integration agenda.[36]
One of the objectives of the AU is to ‘promote peace, security, and stability on the continent, the most notable features of the AU Constitutive Act is its emphasis on protecting people from grave circumstances and the promotion of human and peoples’ rights as well as democracy and good governance.
The Constitutive Act completely breaks from the OAU, with regards to the principle of the right of the Union to intervene.[37] The Act stipulates in Article 4(h) that the AU has the right 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’.
Underlying the principle of intervention and the focus on peace and security is the overriding concern for the inherent dignity and inalienable worth of the individuals and communities who are the citizens of the member states the AU. This is reiterated in the Protocol Relating to the Establishment of the Peace and Security Council[38]
2.3 PROSPECTS OF HUMANITARIAN INTERVENTION UNDER THE AFRICAN UNION ACT (2002).
The leaders of Africa through the AU Act have clearly established principles guiding the role of the AU in questions relating to peace, security, human rights and Humanitarian Intervention. The AU Charter reflects the need to deal with this issue comprehensively and effectively.[39] Whereas the OAU focused on states and heads of state, the AU Constitutive Act begins with a call for the organization to achieve ‘greater unity and solidarity between the African countries and the peoples of Africa.’[40] The act also affirms the sovereign equality and interdependence among AU member states.[41] In order to protect gross violation of human rights[42] The AU can intervene in the sovereign affairs of other member states. Another criterion for intervention is that states may seek AU intervention in order to restore peace and security within their territories.[43]The Act also explicitly provides that member states may not unilaterally interfere in the internal affairs of another state.[44]
It was the intention of the OAU council of ministers to form the AU as a completely different institution from its predecessor the OAU. In the words of the OAU Secretary General ‘it is important to point out that when African leaders decided to establish the African Union when they adopted the Sirte declaration and, and subsequently, the constitutive Act, they did not aim at establishing an organization which was going to be a continuation of the OAU by another name.[45]The fundamental foundation for the African Union (AU) institutional structure is laid down in Article 4 of the Constitutive Act of the African Union (AU Act)
2.3.1 THE PROTOCOL RELATING TO THE ESTABLISHMENT OF THE PEACE AND SECURITY COUNCIL OF THE AU, 2002
Article 2 of the Protocol establishes the African Peace and Security Council[46] which took over the work of the OAU mechanism for conflict Prevention, Management and Resolution. The PCS Protocol stipulates that the Protocol shall replace the Cairo Declaration, and that its provisions of the Protocol shall supersede the resolutions and decisions of the OAU relating to the Mechanism for Conflict Prevention, Management and Resolution in Africa, which are contrary to it.[47] The PSC was purposely created as collective security and early warning arrangement to facilitate timely and efficient response to conflict and crisis situations[48]. And it is empowered to take steps to prevent such problems in Africa[49] it the protocol clearly stipulate that the AU has the primary responsibility to protect peace, security and stability in Africa.[50]
The PSC is be governed by the principles enshrined in the Constitutive Act, the Charter of the United Nations and the Universal Declaration of Human Rights.[51] And it is charged with promoting and developing a strong ‘partnership for peace and security’ between the AU and the UN and its organs as well as other international organizations,[52] and with developing policies and actions that will ensure the observance of external initiative in peace and security on the continent with AU objectives and priorities. The Peace and Security Council is be composed of fifteen Members elected on the basis of equal rights, in the following manner, ten Members elected for a term of two years; and, five Members elected for a term of three years in order to ensure continuity.[53]
The PSC is furthermore empowered to examine and take appropriate measure when a member state is threatened by acts of aggression, including those by mercenaries.[54] It is also mandated to support and facilitate humanitarian action in instances of armed conflict or natural disasters.[55] The AU Assembly may also grant the PSC additional powers to address issues with implications for the maintenance of peace, security and stability on the continent[56]
2.3.2 THE AFRICAN UNION ACT, HUMAN RIGHTS AND HUMANITARIAN INTERVENTION
Chapter VIII of the UN charter governs the role of regional and sub regional organization in the use of force. Under this Chapter, the Security Council has the ‘primary responsibility for the maintenance of international peace and security’.[57] Article 52 states that nothing in the charter "precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action" and that members participating in such regional arrangements or agencies "shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council."[58] These regional arrangements must conduct activities in accordance with the UN Charter. The Security Council may utilize regional arrangements or agencies for enforcement action under its authority. “But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council[59] Furthermore, the Security Council shall at all times be kept fully informed of all activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security”.[60]
The UN Charter confers on the Security Council ‘primary responsibility for the maintenance of international peace and security’[61] and the right to use sanctions, blockades and military force to this end.[62] The Security Council is obliged to utilize the regional and sub-regional organization for actions related to the Council’s mandate[63] that is the maintenance of international peace and security, provided that no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.[64]
There are various ambiguities in the UN Charter Article 53. Firstly the enforcement action employed in the UN charter is not defined, article 53 only obliges the security council to utilizes the regional organization in carrying out ‘enforcement action’ where appropriate.[65] Secondly the time when the council authorization of the Security Council in article 53 does not provide any guidance as to whether prior or ex post facto authorization is required and whether it needs be express or tacit.[66] The third ambiguity relates to the interpretation of the formulation that action by regional arrangements or agencies must only be permitted to act in situations that are ‘appropriate for regional actions.[67] The charter provides no clear limitation of the freedom on action specific to regional organizations, as per the principle of non-intervention as stipulated in Article 2(7) which deals with that norm only in the relationship between states and the UN.
2.4 RISE OF THE RESPONSIBILITY TO PROTECT
The responsibility to protect is believed to have first appeared in the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS).[68] However, some believe that the concept originated from former UN Secretary General Koffi Annan’s 1999 charge that the world must formulate a response to gross human rights violations.[69] The theoretical basis of the Responsibility to Protect stems from the scholarship of Francis Deng, proposed the idea of ‘sovereignty as responsibility.’[70] At the 60th anniversary summit of the General Assembly of the United Nations in September 2005, the world’s leaders endorsed an international ‘responsibility to protect’ an obligation to act to protect civilians in the face of war crimes or genocide, where the government locally is perpetrating these abuses itself or is unable or unwilling to stop them[71]
The case for seeing humanitarian intervention as a right and not a duty is based on the predicament that ‘it is our identity as citizens that constitutes the outer limits of our moral duties.[72] However, as my critique of the position revealed, it is a morally untenable position to equate state-borders with the borders of morality,[73] and the above argument does not inhibit us from considering humanitarian intervention as a responsibility. State sovereignty implies responsibility. The primary responsibility for the protection of the people lies with the state itself.[74] Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.[75]
The importance of sovereignty in Africa has recently come into doubt. Many African states are without effective control over the entirety of their territories and with their legitimacy challenged among significant elements of their populations, sovereignty is more legal fiction than practical reality.[76] Certainly, African states membership of the AU has diminished their sovereignty given that, by joining, they have tacitly accepted the curtailment of certain rights. The AU has chosen to de-emphasize the importance of sovereignty by casting it as “conditional and defined in terms of a state’s capacity and willingness to protect its citizens”.[77]
The responsibility to protect embraces three responsibilities. First the responsibility to prevent, addressing root and direct causes of internal conflicts and other manmade crises that put populations at risk. Second is the responsibility to react, responding to situations, where necessary second is using coercive measures such as sanctions, international prosecution, and military intervention. Thirdly the responsibility to rebuild, providing assistance with recovery, third is the reconstruction, and reconciliation and addressing the causes of the harm the intervention was designed to halt or avert.[78]
The issue that is probably the most debated in Africa, and elsewhere, is whether the AU or the various sub-regional institutions in practice need to seek prior UN Security Council approval for Humanitarian Intervention to occur. In this context, and as a result of NATO’s intervention in Kosovo and the US invasion of Iraq, many believe that UN primacy to determine when intervention occurs is on the decline. Already, the UN is not the only institution determining when action ought to be taken to address a range of issues in Africa.[79]
There have occurred numerous recent developments that have ushered in a new wave of optimism regarding the potential for making Responsibility to Protect a new paradigm for stopping mass atrocities. For example, the UN has begun to incorporate the responsibility to protect into its thinking and practice. In addition to prioritizing Responsibility to Protect, UN Secretary-General Ban Ki-Moon has already made two key appointments in relation to Responsibility to Protect, namely, a Special Advisor for the Prevention of Genocide, and a newly created Special Advisor for the Responsibility to Protect.[80]
AU member states moved the furthest towards endorsing Responsibility to Protect [81] where sub-regional groups codified a legal right of humanitarian intervention and intervened in the region on this basis. Sub-regional organizations codified a legal right of humanitarian intervention and intervened in the region on this basis. In recognition that chronic human insecurity had been a leading cause of state and regional insecurity, ECOWAS and SADC have the authority to use force against a member state to stop a humanitarian emergency in their respective member states. In a progressive development of international law, the AU formally ratified the right to intervene in the internal affairs of a member state to protect civilians from grave human rights violations such as war crimes, genocide, and crimes against humanity.[82]
It may thus be conclude that from the above analysis the AU right of intervention is an a priori invitation to enforce erga omnes[83] obligations in the form of jus cogens[84] crimes that are subject to universal jurisdiction. As such, Article 4(h) provides the most fertile terrain to date, to promote the normative commitment of Responsibility to protect to enforce erga omnes obligations, particularly to stop war crimes, genocide, and crimes against humanity.
2.4.1 OPERATIONALIZATION OF THE RESPONSIBILITY TO PROTECT BY THE AFRICAN UNION.
The UN Charter is seen to be the most important apparatus in determining whether HI is permitted under international law. Some believe that Humanitarian intervention is only permitted if pursued within the processes established in the UN Charter. The UN Charter seemingly limits Humanitarian Intervention by prohibiting the use of force in interstate relations and obliging member states to ‘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.’[85]
The AU has established several principles guiding its role in questions of peace, security, human rights and Humanitarian Intervention. The AU Constitutive Act begins with a call for the organization to achieve ‘greater unity and solidarity between the African countries and the peoples of Africa.’[86] The act also affirms the sovereign equality and interdependence among AU member states[87]. It espouses the harmonious co-existence of member states and affirms their rights to live in peace and security[88] The Act bans the use or threat of force among AU states[89] advancement of uti-possidetis the principle of the stability of borders.[90] The act also calls for a common defense policy in Africa and the peaceful resolution of conflicts through means decided upon by the assembly as a method of encouraging peace and security on the continent.[91]
To protect human rights, the AU can intervene in the sovereign affairs of other member states in certain circumstances. States may seek AU intervention to restore peace and security within their territories.[92] Member states may not unilaterally interfere in the internal affairs of another state,[93] the AU can authorize collective action in or against a member state when the AU assembly determines that ‘grave circumstances’, such as war crimes, genocide and crimes against humanity, exist.[94] This evidences their willingness, at least in theory, of the responsibility to protect incase of grave circumstances. The AU has also affirmed its acceptance of Responsibility to protect on various other occasions. For example, at the 7th extraordinary session of the AU’s Executive Council in March 2005, member states established a common position known as the Ezulwini Consensus.[95]
The new security architecture of the African union places the continental organization with a robust security system comprised of African regional arrangements and mechanisms, the UN and other members of the international community. The principles underpinning the AU’s peace and security architecture draw on elements of the prevention, reaction and rebuilding as articulated in the Responsibility to protect frame work. Despite all these achievements there are a number of challenges confronting the African regional organization and their efforts to fulfill a peace and security mandate. These include questionable legitimacy, resources and capacity constrains and conflicting political agendas.
[1] Lauri Hainnikanen, (1988) Peremptory Norms (Jus Cogens) In International Law: Historical Development, Criteria, Present Status pg 150. (“Surveying legal scholarship during the period 1945-69 and reporting that “about eighty per cent of scholars held the opinion that there are peremptory norms existing in international law”).
[2] Holzgrefe, J. L., The humanitarian intervention debate.’ in, J.L. Holzgrefe and Robert O. Keohane (2003). Humanitarian intervention: ethical, legal and political dilemma’s. London: Cambridge University Press. pg. 50
[3] John Stuart Mill (1859) A Few Words on Non-Intervention Retrieved from http://www.libertarian.co.uk/lapubs/forep/forep008.pdf
[4] Ivan Shearer (2007) A Revival of the Just war Theory? In, M.N. Schmitt and J. Pejic (eds), international law and Armed conflict: Exploring the Faults koninkijke Brill BV. Netherlands page 1
[5] The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, International Development Research Center, Ottawa, pg 140-143
[6] Ivan Shearer, Op cit note 4
[7] Y. Dinstein, War Aggression and self-Defense (4th ed Cambridge University Press, Cambridge,2005) page 64
[8] Dinstein, War Aggression and self-Defense (4th ed Cambridge University Press, Cambridge,2005) page 67
[9] H. Grotius, De Jure Belli act Pacis, quoted in F.K. Abiew, (1999) The Evolution of the Doctrine and Practice of Humanitarian Intervention (Kluwer Law International, The Hague,) pg 35.
[10] U.N. Doc. Security Council Resolution/RES/688, Apr. 5, 1991,pg 2
[11] ibid
[12] Jakkie Cilliers and Kathryn Sturman, (2002) The right intervention; enforcement challenge for the African Union, African Security Review 11(3) Retrieved 11 June 2010 from http://www.issafrica.org/pubs/ASR/11No3/Cilliers
[13] International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (International Development Research Centre: Ottawa, 2001).Para 1.37 at Page 8
[14] Article 2(7) articulates the principle of nonintervention in the internal affairs of states. Providing that: "Nothing in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state
[15] N.J. Wheeler (2000) Saving Strangers: Humanitarian Intervention in International Society, Oxford University Press. pg 122
[16]Articles 1(3), 55 and 56 UN Charter
[17] N.S. Rodley (1992), Collective Intervention to Protect Human Rights and Civilian Populations: the Legal Framework in To Loose the Bands of Wickedness - International Intervention in Defense of Human Rights (London: Brasseys.). pg 18
[18] N.S Rodley Op cit pg 214
[19] See The Economist (New York) January 17th 2001. For a view that Intervention in internal affairs is not permissible even for Humanitarian reasons.
[20] Kelechi A. Kalu. (2009) Resolving African crises, Leadership role for African States and the African Union in Darfur African Journal on Conflict Resolution, Vol 9, No 1, pg 10
[21] Mohammed Ayoob ‘The New-Old Disorder in the Third World,’ Global Governance 1, no. 1 (1995), g 59-78.
[22] According to the 1998 Report of the UN Secretary General Regarding the Causes and Effects of Armed Conflicts in Africa, Para 13, 14 out of the 53 African countries were involved in Armed conflicts in 1998 accounting for more than half of all war related deaths and resulting to more than eight million refugees , returnees and internally displaced persons
[23] This idea was first made popular by Sir Hersch Lauterpacht: "As a result of the Charter of the United Nations as well as of other changes in international law the individual has acquired a status and a stature which have transformed him from an object of international compassion into a subject of international right." H. Lauterpacht. International Law and Human Rights (London: Stevens. 1950) 4. Sir Hersch's challenge to the statist conception of international law is generally accepted today. Professor Brownlie. accepts that the individual is a subject of international law in particular contexts although he points out that the extent and permanence of the progress made by legal obligations and institutions are determined by political conditions. I. Brownlie. (1990) Principles of Public International Law 4th ed. Oxford: Clarendon Press at pg 601.
[24] Boutros Boutros-Ghali (1992), An Agenda for Peace, New York: United Nations, Para. 17
[25] In Reisman's words; international human rights puts current and erstwhile tyrants on notice that monarchical and elitist conceptions of national sovereignty cannot be invoked to immunize them from the writ of international law. W.M. Reisman, (1990) 'Sovereignty and Human Rights in Contemporary International Law' 84 A.J.I.L. pg 874.
[26] See Francis Hinsley, (1966) Sovereignty (London: Basic Books,), page 126 see also; Francis Abiew, (1999) The Evolution of the Doctrine and Practice of Humanitarian Intervention. The Hague: Kluwer,, pg 26—27.
[27] Article 25 UN Charter
[28] Article 42 UN Charter
[29] K. Rayan. (1991) ‘Rights Intervention and Self-Determination ’20 Den. J. International Law. and Policy 55 pg 56, note 5.
[30] As an abstract proposition, if a human rights situation can amount to a threat to international peace and security. Thus permitting the Council to take enforcement action to remedy the situation there is nothing in Article 2(7) of the UN Charter restricting the enforcement action to measures short of the use of force.
[31] Tim Murithi (2009) The Responsibility to the African Union’s Transition from Non-Intervention to Non-Indifference: An Ad Hoc Approach to the Responsibility to Protect? The AU’s Doctrine of Non-Indifference (IPG 1) pg 90
[32]The Declaration which was adopted at the Fourth Extraordinary Session of the Assembly in Sirte, The Great Socialist People’s Libyan Arab Jamahiriya, on 9.september 1999
[33] Art. 23 (2) of the Constitutive Act provides: “ any Member State that fails to comply with the decisions and policies of the Union may be subjected to sanctions, such as the denial of transport and communications links with other Member States, and other measures of a political and economic nature to be determined by the Assembly.”
[34] Ben Kioko (2003), The right of intervention under the African Union’s Constitutive Act: from non-interference to non-intervention, International Review of the Red Cross. Vol 85, pg 807.
[35] A Abass and M A Baderin, (2002), Towards effective collective security and human rights protection in Africa: an assessment of the Constitutive Act of the New African Union. Netherlands International Law Review 49(1)
[36] See Constitutive Act of the African Union, adopted by the 36th ordinary session of the Assembly of Heads of State and Government in Lome, Togo, on 11 July 2000, entered into force 26 May 2001, http://mirror.undp.org/african_union_en/treaties/constitution.pdf (accessed 3 December 2009).
[37] literature on this particular subject is immense , see Jakkie Cilliers and Kathryn Sturman, (2002) The right intervention; enforcement challenge for the African Union, African Security Review 11(3) http://www.issafrica.org/pubs/ASR/11No3/Cilliers; B Kioko, (2003) the right of intervention under the African Union’s Constitutive Act: from non-interference to non- intervention, International Review of the Red Cross 852 Kithure Kindiki, (2007) Intervention to Protect Civilians in Darfur: Legal Dilemmas and Policy Imperatives, ISS Monograph 131, Pretoria: Institute for Security Studies,; Abdulqawi A Yusuf, (2005) The Right of Intervention by the African Union: A New Paradigm in Regional Enforcement Action?, African Yearbook of International Law 3-21, 2007.
[38] Adopted by the 1st ordinary session of the Assembly of the African Union in Durban, South Africa, on 9 July 2002 and entered into force on 23 December 2003.
[39]Girmachew Alemu Aneme (2008 ). A study of the African Union’s right of intervention against genocide, crimes against humanity and war crime. Oslo: Faculty of Law, University of Oslo. pg 24.
[40] AU Constitutive Act, art 3(a)
[41] Ibid, art 4(a)
[42] Ibid art 4(h) which states that, the AU through the general assembly can authorize collective action in or against a member state when it determines that “grave circumstances”, such as war crimes, genocide and crimes against humanity exist.
[43] Ibid, art 4(j)
[44] Ibid, art 4(g)
[45] See Report of the Secretary General, CM/210(LXXIV), Council of Ministers, 74th Ordinary Session of the AEC, 2-7 July 2001,10
[46] AU Protocol Establishing the Peace and Security Council, Article 2. There is hereby established, pursuant to Article 5(2) of the Constitutive Act, a Peace and Security Council within the Union, as a standing decision-making organ for the prevention, management and resolution of conflicts. The Peace and Security Council shall be a collective security and early-warning arrangement to facilitate timely and efficient response to conflict and crisis situations in Africa.
[47] Ibid Article 22
[48] Ibid Article 2
[49] Ibid Article 2
[50] Ibid Article 16(1)
[51] Ibid, article 4
[52] ibid, Article 7(k)
[53] AU Protocol Establishing the Peace and Security Council, Article 5 (1)
[54] Ibid, art 7(o)
[55] Ibid, article 7(p)
[56] Ibid , article 7(r)
[57] Article 24 UN Charter
[58] Article 52 UN charter
[59] Article 53(1) UN Charter
[60] Article 54 UN Charter
[61] Article 24(1) UN Charter
[62] Article 41 and 42.UN Charter
[63] Despite these liberal provisions, the charter does not stipulate that all disputes between states should be brought before the UN. Article 33, for example, enjoins UN members "first of all" to seek a solution to their differences on their own initiative (though if they fail to take this initiative, the Security Council is empowered to call upon them to do so). Only after their efforts to achieve a peaceful settlement have proved fruitless are the disputing parties obliged by the charter to refer the matter to the Security Council.
[64] Article 53 UN Charter this provision contains significant ambiguities concerning the use of force by regional organizations under the auspices of the UN Charter.
[65] In the Certain Expenses of the United Nations, Advisory opinion of 20 July 1962, ICJ Rep (1950) 151 Para 170-175. The ICJ gave some guidance on the issue when it conclude that peacekeeping operations conducted with the purpose of the maintenance of international peace and security, based on the consent of the parties concerned or clearly not directed against the sovereignty and territorial integrity of any state, should not be considered as enforcement measures.
[66] No consensus exists on the question whether the UN Charter requires express or tacit approval of enforcement action by regional organization.
[67] Article 53 UN Charter
[68] International Commission on Intervention and State Sovereignty The Responsibility to Protect: Research, Bibliography and Background (2001, International Development Research Council).
[69] Koffi Annan “Balance state sovereignty with individual sovereignty!” Speech at the UN General Assembly on 20 September 1999.
[70] F.M. Deng Frontiers of sovereignty (1995) 8/2 Leiden Journal of International Law 249. See also S Kimaro, T Lyons, D Rothchild and IW Zartman Sovereignty as Responsibility: Conflict Management in Africa (1996, Brookings Institution Press).
[71] United Nations (2005) World Summit Outcome Document, 24 October, A/RES/60/1
[72] N. J. Wheeler (2000) Saving Strangers: Humanitarian Intervention in International Society, Oxford University Press. pg 31.
[73] See Beitz, Charles, Political Theory and International Relations (Princeton: Princeton University Press, 1999), for a persuasive version of this argument.
[74] International Commission on Intervention and State Sovereignty (2001): The Responsibility to Protect. Ottawa: International Development Research Centre: pg XI
[75] Ibid
[76] Project Ploughshares, Responsibility to protect: East, West, and Southern African Perspectives on Preventing and Responding to Crises (2005, Project Ploughshares) at note 8 page 3.
[77] K Powell “The African Union’s emerging peace and security regime: Opportunities and challenges for delivering on the responsibility to protect” (2005) 119 Institute for Security Studies Monograph Series 1 at 1.
[78] Supra note 74.
[79] WP Sidhu “Regionalization of peace operations” in EB Eide (ed) Effective Multilateralism: Europe, Regional Security and a Revitalized UN (2006, Foreign Policy Centre) page 32.
[80] International Human Rights Law Clinic, Human Rights Center, The Responsibility to Protect (R2P): Moving the Campaign Forward, University of California, Berkeley, October 2007 , at 7-8, available at http://www.hrcberkeley.org/pdfs/R2P-Final-Report.pdf.
[81] Victoria K. Holt & Moira K. Shanahan, African Capacity-Building for Peace Operations—UN Collaboration with the African Union and ECOWAS, Stimson Occasional Papers and Reports 8 (Stimson Center, 2005)
[82] Maria Banda, The Responsibility to Protect: Moving the Agenda Forward 11 (United Nations Association in Canada, 2007).
[83] Erga omnes (in relation to everyone) is frequently used in legal terminology describing obligations or rights towards al individuals. Barcelona Traction Case (1970) ICJ Reports 3
[84] Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.
[85] UN Charter, art 2(4).
[86] AU Constitutive Act, art 3(a).
[87] AU Constitutive Act, art 4(a).
[88] Ibid, art 4(i).
[89] Ibid, art 4(f).
[90] Ibid, art 4(b).
[91] Ibid, art 4(e).
[92] Ibid, art 4(j).
[93] Ibid, art 4(g).
[94] Ibid, art 4(h)
[95] “The common African position on the proposed reform of the UN: ‘The Ezulwini Consensus’ (7th extraordinary session of the AU Executive Council, Addis Ababa, Ethiopia, 7–8 March 2005). The Ezulwini Consensus argued that the Security Council’s authority to sanction intervention directly, as well as through regional structures, will not be Legitimate until it becomes more inclusive, with permanent African members. Additionally, AU member states agreed to principles of collective action in the World Summit Outcome document, which confirms the Responsibility to protect’s global protection from genocide, war crimes, ethnic cleansing and crimes against humanity. However, the text reserves collective action to the UN Security Council ‘on a case-by-case basis.’ See, UN General Assembly, 2005 World Summit Outcome: UN doc A/60/L.1 (15 September 2005). At Para 139
No comments:
Post a Comment