1.0 INTRODUCTION
In this paper the researcher is going to present a thorough analysis on the difficulties of the application of the international law principle of humanitarian intervention. Since the end of the Cold War, the issue of humanitarian intervention has become the most contentious concept and heated debate in the field of international law.[1] Problems arise when humanitarian intervention conflicts with the principles of sovereignty and non-intervention. Questions asked always seem to be. Is it morally permissible, or even morally obligatory, for states to intervene in the internal affairs of other states in order to stop extreme human rights abuses? In recent years, much has been written in an attempt to answer this question, which some political philosophers[2] regard as today’s “chief dilemma of international relations and international law.”
This paper focuses on the humanitarian situation in present-day Africa to discern options for external humanitarian intervention by the African Union. As per Hadden and Harvey, Such intervention has to meet specific legal pre-requisites and must be strictly limited in its scope.[3]
This paper will present as to whether humanitarian military intervention in the affairs of another state under Article 4(h)[4] can ever be justified. The concept of humanitarian intervention in this paper is analyzed both theoretically and empirically with particular emphasis on its legality and legitimacy. The researcher will also scrutinize the possible legal grounds for humanitarian action. The legal issues involved will be discussed in this article, and the possible grounds for such a right under international law will be presented.
1.1 BACKGROUND
The constitutive act of the African union replaced the charter of the organization of African Unity[5] and provides as one of its basic principle ‘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’,[6] and ‘the right of Member States to request intervention from the Union in order to restore peace and security.’[7] The right to intervene under the African Union Act is a drastic departure from, the principle of State sovereignty[8] and non-intervention.[9] The protocol to the amendments to the constitutive act, which was adopted February 2003 amends article 4(h) by adding at the end of the sub paragraph the words “as well as a serious threat to legitimate Order to restore peace and stability to the member of the union upon the recommendation of the peace and security council[10] The history of failed attempts to devise an appropriate mechanism of conflict resolution in the continent under the OAU charter prompted African leaders to insert the right to intervention in the constitutive act of the new organization, the African Union. Another reason might be the determination to overcome state paralysis caused by strict adherence to the OAU principle of non-interference[11]
The concept of Humanitarian Intervention and its legitimacy under international law has long been debated. Humanitarian Intervention has been described as “the protection by a state or a group of states of fundamental human rights, in particular the right of life, of nationals of, and residing in, the territory of other states, involving the use or threat of force, such protection taking place neither upon authorization by the relevant organs of the United Nation nor upon invitation by the legitimate government of the target state.”[12]
With the establishment of the Organization of the United Nations after the Second World War, one clear objective of the international community was to bring and ensure peace and stability around the globe.[13] To this end, the use to force was outlawed, except in very restrictive instances. At the same time, it also reaffirmed ‘faith in fundamental human rights’ and in human dignity[14] and listed the promotion of human rights as one of the Organization’s purposes.[15] The United Nations charter prohibits the use of force by states individually or collectively against the territorial integrity or political independence of the other state.[16] The charter however goes further to provide two exceptions to this rule the first exception relates to the right of individual or collective self defense in case of an attack against a member state of the united nations[17] and the second one pertains to a system of collective security under which the security council may, if necessary , take military enforcement action to maintain or restore peace and security, after having determined that a threat to peace, breach of peace , or an act of international aggression has occurred. In implementation of this prerogative the Security Council may utilize regional organizations for enforcement under its authority.[18] The under taking of enforcement action by regional organization at their own initiative and without the authorization of the United Nations Security Council is prohibited, except when measures are being taken against the enemy states and in case of regional organizations, directed against the renewal of aggressive policy on the part of such state.
The authority and competence of regional arrangements for dealing with matters relating to peace and security is clearly recognized in Article 52(1), but is subject to two conditions. First, the maintenance of peace has to be appropriate to regional action. Secondly, such arrangements must be consistent with the purpose and principles of the United Nations.[19]
Regional structures or other willing partners may intervene in certain absences of Security Council action. There have been a few cases of single country interventions into a neighboring state. For example, Tanzania intervened in Uganda and overthrew Idi Amin in the late 1970s. Although Kenya, Nigeria, Libya and Sudan objected to this, the international community response was generally muted. The intervention was accepted by many as Tanzania acting in self-defense and was not even discussed by the UN Security Council or General Assembly. It was however discussed by the Organization of African Unity on a number of occasions.[20]
In 1990, the Economic Community of West African States (ECOWAS) intervened in Liberia, beyond the UN framework. Rather than condemning this action as a dangerous precedent, the UN praised ECOWAS’s intervention in Security Council resolution 788.34 in 1998; ECOWAS’s unauthorized intervention in Sierra Leone was similarly praised.
Despite ECOWAS’s precedents for collective action, the AU seemingly continues to defer to the UN Security Council as the primary caretaker of international peace and security.[21] However, this may not always be the case and issues of disagreement and circumstances where there is competition or competing objectives may arise in the future. This can be seen in the fact that, at its 7th extraordinary session in March 2005, the AU’s Executive Council noted[22] that force should not be exercised beyond article 51 of the UN Charter and article 4(h) of the AU Constitutive Act[23].
1.2 STATEMENT OF THE PROBLEM
It is to the researcher’s knowledge that the objective of intervention on the territory of a sovereign state is to meet basic needs and grant protection for human rights. Furthermore, it is also aimed at the enforcement of the rule of law and the strengthening of respect for fundamental and universal human rights. In order to be credible and authoritative, intervention with armed force must abide by the letter and principles of international law The different prerequisites for the application of the right to humanitarian intervention are the following: use of armed force by a state or a group of states, absence of request from the government of the target state, persisting gross human rights abuses, sound legal footing of the right to intervene and the invoking of the right to humanitarian intervention by the intervening states.[24]
The main problem concerns how to reconcile Article 4(h) of the AU Act with the provisions of the UN Charter, where the use of force is contemplated differently. To be sure, Article 2(4) of the UN Charter prohibits the threat or use of force by any state ‘against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes’ of the UN. Similarly, Article 2(7) of the UN Charter stipulates the principle of non-interference in ‘matters essentially within the domestic jurisdiction of any state.’ As a result, Article 53 proscribes enforcement action without authorization of the Security Council. Although it can be argued that Article 4(h) of the AU Act constitutes enforcement action by consent, such argument is weakened by Article 103 of the UN Charter, which provides juridical supremacy of obligations under the UN Charter over obligations under international treaties in case of conflict of obligations.
These concerns are borne from the fact that the prohibition of threat or use of force is a peremptory norm of international law (jus cogens)[25]. In addition, Article 53 of the Vienna Convention on the Law of Treaties stipulates that a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. Thus, the right of intervene[26]
Certainly, the international community should not wait for war with its accompanying devastation before condemning and punishing its perpetrators. Thus, although the rule against intervention in internal affairs encourages states to solve their own problems and prevent them from escalating into a threat to international peace, the just cause theory provides a benchmark for determining when rules protecting sovereignty should yield to intervention to protect the rights of individuals at risk. Drawing from the provisions of the UN Charter, the AU Act and views of various scholars, a common yardstick for a legitimate intervention is therefore to save humanity from atrocities The AU Act is precise in article 4(h), which provides for the right of intervention in cases of war crimes, genocide and crimes against humanity. Yet, apart from being silent on how to intervene, article 4(h) is also incomplete on how to decide when to intervene. The AU’s discretion is confined to assessing the existence of legally defined situations as specified in article 7(1)(e)[27] rather than undertaking the kind of political finding the United Nations Security Council would in establishing a threat to international peace and security. It is thus reasonable to suggest that for purposes of intervention, or put bluntly, to prevent the commission of these international crimes under article 4(h)[28], there should be a broader definition for thresholds while retaining the strict definition under international criminal law. This will limit the types of violations of human rights which do not reach the level of grave circumstances as a legitimate cause for intervention.
1.3 OBJECTIVES OF THE STUDY
The unending problem of armed conflicts in Africa needs a sustainable solution, if the alluring dream of economic, social and political stability in Africa is to be released. Conflicts, in particular their resolution, are arguably the top priority in Africa today.
The question which the researcher seeks to address is how and when the AU should implement article 4(h).[29] A related question is when the international community should take on this responsibility to protect conceivably. The legitimacy of the AU right of intervention will depend on how the African Union answers the question as to when and how it should intervene in a member state. The challenge therefore is to weigh the legal norms of state sovereignty, non-intervention and non-use of force against the duty for collective action to protect human rights.[30] This study seeks to contribute to the scholarly debate regarding the values that should prevail when widespread human rights deprivations occur within the domestic jurisdiction of states. On one hand the principles of state sovereignty, non intervention and the prohibition of the use of force, and on the other hand the norms engrained in international human rights and humanitarian law
The study is also made in partial fulfillment for the award of a Bachelor of Laws (LL.B) degree of Tumaini University Makumira University College.
1.4 HYPOTHESIS
While the likelihood of humanitarian intervention to prevent or solve conflicts has increased over the years, the tension between international law, ethics and national interests have made for considerable complexity and confusion regarding where, when and how to intervene. Thus, inconsistencies and a lack of timely and effective humanitarian intervention by the UN and the international community has created conditions that have contributed to some of the worst human rights violations, in some cases resulting in genocide.
The researcher will conduct a critical study of the of the AU Constitutive Act and analyze whether military intervention under article 4(h)[31] can be justified selectively or must it be consistently undertaken in all comparable cases or in none? In addressing this issue, the study will high light the dilemma of the competing interests of humanity versus the need to adhere to the basic paradigms which constitute international law. Ultimately, the study will define when, if at all the international community acting in concert may exercise the right or duty to intervene forcibly for humanitarian purposes, and if such a right or duty exist, how the AU will exercise it.
The UN Charter prohibits the use of military force except in cases of self-defense or when authorized by the UN Security Council to address threats to international peace and security[32] the researcher will thus undertake to analyze the noninterventionist regime of the UN Charter, when strictly read, is an authority capable of directly prohibiting a regional body such as the AU or a state from the use of force?
The paper also seeks to provide a theoretical analysis of the concept of humanitarian intervention in Africa and to make recommendations regarding legal and policy issues requiring consideration if the right or duty of humanitarian intervention were to be exercised.
1.5 SIGNIFICANCE OF THE STUDY
Once considered an irregularity in international law, humanitarian military intervention is now a compelling foreign policy issue. A lot has been debated about when to use military force, it presents a fundamental challenge to the principle of state sovereignty. Kofi Anan, Former Secretary-General of the United Nations said if intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica to gross and systematic violations of human rights that offend every precept of our common humanity?[33]
It is evident that military intervention in sovereign states where massive violations of human rights occur is legal and justifiable under international law. Yet, what constitutes massive violation of human rights still continues to be open for debate. This paper supports the idealist views, which base on empirical evidence, and have effectively refuted the restrictionists argument,[34] with proof that intervention is justifiable in the absence of Security Council authorization.[35] Likewise, the ‘Responsibility to Protect’ report adopted by the UN justifies military intervention on humanitarian grounds even without Security Council’s blessing.[36]
The modern international system is founded on the premise that sovereign states have a right to non-intervention, to be free from unwanted external involvement in their internal affairs. But repeated humanitarian interventions have confronted the idea of sovereignty of a state in the name of protecting civilians from harm.[37] This human security perspective on the use of force, grounded in the belief that the rights of people, not states, are the substratum of a just and secure world, has been advocated in the concept that states have a responsibility to protect civilians within their jurisdiction.
This study focuses on collective humanitarian intervention in Africa. The definition of the African Union’s right of intervention, in its present formulation, is problematic and implementation is contentious. The question of how to determine the 'deterioration' threshold after which a situation ceases to be a matter essentially within the domestic jurisdiction of a state has not yet been settled. The justification for intervention in terms of article 4(h) of the African Union Constitutive Act is grave circumstances that constitute serious human rights violations in the form of genocide, war crimes and crimes against humanity. Yet, acts that shock the conscience and elicit a basic humanitarian impulse remain politically persuasive. A practical example of this is the widespread human rights abuses that occurred in the Darfur region of Sudan, which tests the efficacy of the African Union's right of intervention as well as the commitment to the responsibility to protect norm.[38]
Many governments and the United Nations have echoed the concern, with the United States going so far as to officially accuse the Sudanese Government of genocide[39]but at the same time, responses to the mass killing in Sudan have been wholly inadequate to protect civilians, as they were during the violence in Rwanda and many other places of mayhem. The reluctance to act reflects the tension between the emerging norm of human security and the continued dominance of traditional security concerns and the respect for state sovereignty. The challenge therefore remains as to when the African union should intervene to stop mass atrocities. By consenting to Article 4(h) of the AU Act, AU States have transferred a certain part of their sovereignty to the multinational organ, the AU. Prohibition of the use of force has the status of jus cogens and thus cannot be contracted out by States; AU States waived their right to be free from intervention by the AU as a multilateral body in the face of mass atrocity crimes[40].
Articles 4(h), 4(j) and 23(2) of the Constitutive Act of the African Union (AU) are the cornerstones of credibility for the revised regional organization, and indeed, for the vision of a more stable and prosperous Africa. Article 4(h) provides for “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, Article 4(j) provides for “the right of Member States to request intervention from the Union in order to restore peace and security;” Article 23(2) provides that: “any Member State that fails to comply with the decisions and policies of the Union may be subjected to other 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.”
These provisions within the act provide for potentially unprecedented powers of intervention sovereignty no longer provides protection behind which predatory governments can hide abuse of their peoples. This research argues that the practical question of how to ensure effective intervention requires as much attention as the moral and political questions of why and when to intervene. the research capitalizes on the changes from the OAU to the AU to examine the ways of improving the international community’s reaction time and effectiveness to avoid an instance like that of the Rwandan genocide elsewhere in Africa.
1.6 LITERATURE REVIEW
Dan Kuwali[41] The justification for intervention in terms of article 4(h) of the African Union Act is grave circumstances that constitute serious human rights violations in the form of genocide, war crimes and crimes against humanity. Yet, acts that shock the conscience and elicit a basic humanitarian impulse remain politically persuasive.[42] Kuwali in this article seeks to answer the question of how to determine the determination threshold after which a situation ceases to be a matter essentially within the domestic jurisdiction of a state.
The researcher relies on this Article since it explains that the various thresholds for intervention in article 4(h) are subjective given that the justice of warfare is such that one side's heroes are regarded as the other side's war criminals; there is still a lack of consensus on what constitutes genocide; and it is debatable if intervention, which is invariably reactive, would be effective in bringing perpetrators of crimes against humanity to justice. The AU right of intervention is potentially a pro-sovereign doctrine with the aim of reinforcing states' responsibility to exercise their sovereignty. To realize this intention of the framers of the AU Act, there is a need to broaden the definition of the thresholds for purposes of intervention or to put it starkly, prevention while maintaining the international definitions for purposes of prosecutions.
Abdulqawi A. Yusuf[43] forcible intervention in another state is prohibited in international law under Article 2(4) of the United Nations Charter which states. ‘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.’ The two main exceptions to this general prohibition are the right of a state to use force in self defense or collective self defense under Article 51 of the Charter; and the right of the Security Council under Article 42 to authorize the use of force "to maintain or restore international peace and security." In legal terms, "international peace and security" has traditionally been narrowly defined as the maintenance of inter-state order. It is generally recognized among legal scholars that the Security Council has an exclusive right to authorize the use of force for the purpose of preventing or stopping gross and widespread violations of fundamental rights.
The author in this article analyses the right of intervention enshrined in the African constitutive act and tresses the historical development of the right of intervention in Africa thus helping the researcher build a clear and balanced account of the present and previous state of affairs with regards to humanitarian military intervention. The author has discussed topics like the right to intervention and the relationship between the AU constitutive act and the UN charter thus provides coverage on an area upon which the researcher wishes to analyze.
Tim Murithi.[44] Following the inception of the resopnsibility to protect at the United Nations General Assembly World Summit in 2005,[45] Murithi briefly discusses of the genesis of this norm and reviews the key aspects of The Responsibility to Protect. The paper analyzes the extent to which the AU’s policy of non-indifference complements Responsibility to Protect. The article further assesses the emergence of the responsibility to protect as an international law norm.[46] This article assesses the emergence of the African Union’s doctrine of non-indifference and discusses the linkages that exist with the notion of the Responsibility to Protect. It highlights the propensity of the Organization of African Unity towards non-intervention and non-interference and the consequences that this had for regional security in Africa. In particular, Murithi in this paper assesses the Constitutive Act of the African Union (2000) to determine the extent to which Responsibility to Protect is enshrined and implicated in this document. The paper aided the researcher to understand great deal the extent to which the AU has sought to implement its policy of non-indifference and The Responsibility to Protect through its commitment to promote peace around the continent, with a discussion of AU peace operations in Burundi, Darfur, Somalia, and Comoros, as well as the recent intervention efforts in Zimbabwe.[47] The paper concludes with a set of recommendations on how the AU can operationalize the doctrine of non-indifference and Responsibility to Protect in a way that will impact upon and secure the lives of Africans. This article helps the researcher understand the significant shift that the African union has experienced in terms of embracing the doctrine of non indifference and committing itself to Responsibility to Protect. Murithi writes asserting that, the authors of the Constitutive Act of the African Union (2000) effectively enshrined a responsibility to protect in the document.[48]
Ben Kioko,[49] Article 4 (h) was adopted with the sole purpose of enabling the African Union to resolve conflicts more effectively on the continent, without ever having to sit back and do nothing because of the notion of non-interference in the internal affairs of member States.[50]
The author’s analysis examines the right of intervention within the framework of the African Union. Kioko writes about what will be the role of the United Nations, which is the only organization with the primary responsibility for the maintenance of international peace and security, and the specific right under international law to authorize an intervention of any kind intervention? the researcher relies on the article due to its deep analysis on General prohibition on the use of force by the UN confirmed by the International Court of Justice in the Corfu Channel Case (merits)[51] and the case concerning Military and Paramilitary Activities in and against Nicaragua (1986)[52] and is considered to be a rule of jus cogens, from which no derogation is permitted. Kioko further analyses the right of the AU to intervene under the AU Act asserting that though well intended it will be very hard to decide upon and implement.[53] The researcher relies on this article since it rises a number of questions, including how the right of intervention is to be understood and why the heads of State and government thought it necessary to include it in the Constitutive Act,[54] it also helped the researcher understand how will this right of intervention vested in the AU under Article 4(h) of the African Constitutive Act be implemented, and what practical, legal and procedural difficulties are likely to arise in the implementation of that obligation, and how will they be surmounted?
Jeremy Sarkin.[55] The right to exercise Humanitarian Intervention can be found in treaty law, including the Genocide Convention, international customary law and the UN Charter. Provisions are found also in other instruments, including the Charter of the AU.[56] And the Convention on the Prevention and Punishment of the Crime of Genocide1958
Under the UN Charter, regional organizations like the African Union have the authority to respond to situations that threaten international peace and security[57] with the authorization of the UN Security Council.[58] Regional structures or other willing partners may intervene in certain absences of Security Council action. Such intervention has occurred in numerous cases, including several within Africa some of these are discussed by the author in the Article[59]
Sarkin focuses on the United Nations, and the various African Union and sub regional organizations and instruments that sanction Humanitarian Intervention. The article examines the principles, application and interrelationship of Responsibility to protect and Humanitarian intervention in the African context. The articles analysis is crucial to the subject because the AU’s political will and capability to deal with conflict and human rights abuse on the continent is doubted by some, even though in July 2005 the AU Assembly at Sirte, Libya set a goal for achieving a conflict-free Africa by 2010.[60] And thus Jeremy Sarkin assesses whether intervention can be authorized even in the absence of a United Nations Security Council mandate and examines the principles, application and interrelationship of Responsibility to protect and Humanitarian Intervention in the African context. It traces the use of these norms in Africa, including in the various sub-regional structures, and evaluates the African Union’s political will and capability to deal with conflict and human rights abuse. The researcher relies on this article since it examines the basis for humanitarian intervention in the United Nations Charter, the African Union Charter and in a number of African sub-regional institutions.
J.L. HOLZGREFE AND ROBERT O. KEOHANE[61] Humanitarian intervention is the threat or use of force across state borders by a state or a group of states aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the stare within whose territory force is applied[62] J.L. Holzgrefe and Robert .O. Keohane understand humanitarian intervention to mean the use of armed force by states for the protection of the most basic human rights This book is a comprehensive, integrated discussion of the dilemma of humanitarian intervention. The Author puts forward arguments for and against the justice of humanitarian intervention[63]
This compilation set a standard to the researcher because of its comprehensive treatment of the subject among the most current and most controversial in international law-and because of obstacles to agreeing about legitimate intervention. The contributors clearly explain why intervention remains an imperfect duty. Responding to genocide in Bosnia, Rwanda, and Cambodia, among other venues, the book exposed to the researcher a gap between the legitimacy of preventing egregious violations of human rights and the norm of nonintervention present in positive law and the United Nations Charter. The Author presents a debate between different schools of thought which are mainly concentrated on the question of legality and the right of states or multinational organs to militarily intervene in the affairs of another state in cases of massive violations of fundamental human rights guaranteed under international law.
The researcher relies on this book since it set to identify strategies that may, if not resolve, at least reduce the current tension between human rights and state sovereignty
1.7 SCOPE AND LIMITATION OF THE STUDY
In this study the researcher discusses legality of Humanitarian intervention. The study seeks to discuss humanitarian intervention by the African Union. Use of the term 'humanitarian intervention' will here by be confined to action involving the use or threat of armed force by a state or an international organization, with the purpose of protecting human rights. The topic of humanitarian intervention has been a subject of much scholarly writing in recent years. The abundance of reference materials, however, does not extend to the African context, which is the focus of the study. The kind of intervention with which the study is concerned with is action taken against a state or its leaders, without its or their consent, for purposes which are claimed to be humanitarian or protective.[64]
The study is both descriptive and analytical in its approach accordingly, the paper gives an overview of the right to intervention under Article 4(h),[65]the paper also contains a critical analysis of the on when does a situation cease to be a domestic mater and thus be subject to humanitarian intervention
The research intendeds to examine the background to the right of intervention under the AU Constitutive Act[66], its scope and possible implications of its application, as well as its relation to the UN charter[67], and the role of the security council as the organ upon which all members of the UN, including African States have conferred the primary responsibility for the maintenance of international peace and security[68] the study also intends to look into the developing norm of the Responsibility to Protect and to examine the extent to which the Responsibility to Protect is embraced by the AU.
1.8 RESEARCH METHODOLOGY
A range of research tools have been used to conduct this research project, including extensive desk research and literature review. The research project also commissioned a number of papers from African and international experts. The research will be conducted at the library for the United Nations criminal tribunal for Rwanda Library and the Makumira University Library which are expected to provide legal journals, statutes, case law resources and other materials offering information on and insights into the justification for intervention in terms of article 4(h) of the African Union Act. This research has also ventured on the relevant material from the internet sources in support of powerful search engines.
[1] Robert O. Keohane writes, ‘Saying “humanitarian intervention” in a room full of philosophers, legal scholars and political scientist is a little bit like crying “fire” in a crowded theatre’. Robert O. Keohane, ‘Introduction,’ in J.L. Holzgrefe and Robert O. Keohane (2003). Humanitarian intervention: ethical, legal and political dilemma’s. London: Cambridge University Press. pg. 1.
[2] Michael Walzer (2000). Just and Unjust Wars. 3rd ed. New York: Basic Books. Pg 11.
[3] T. Hadden and C. Harvey (1999). The Law of Internal Crisis and Conflict: An Outline Prospectus for Merger of International Human Rights Law, the Law of Armed Conflict, Refugee Law, and the Law on Humanitarian Intervention”. International Review of the Red Cross .page 119.
[4] 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
[5] In 1999 African leaders met in Sirte, Libya, somewhat inauspiciously, 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. This meeting emphasized the importance of strengthening solidarity among African countries and reviving the spirit of Pan-Africanism. The African Union project was born in Sirte in 1999 with the decision to draft an act of constitution. The AU’s Constitutive Act was subsequently signed in Lome, Togo, on July 11, 2000. The official inauguration of the au took place in July 2002, in Durban, South Africa, and represented the next level in the evolution of the ideal of Pan-Africanism. Timothy 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 pg 90
[6] Constitutive Act of The African union Article 4(h)
[7] Ibid Article 4(j)
[8] State sovereignty has found expression in numerous international documents, both universal and regional. Article 3 of the International Law Commission Draft Declaration on the Rights and Duties of States (1949); Parts I and II of the Helsinki Final Act (1975), 14 ILM 1292. See, for instance, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty (commonly referred to as the Declaration on Non-intervention. UNGA Res 2131 (XX) of 21 Dec 1965, article 3 of the OAU Charter 1963).
[9] 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. (85), pg 852.
[10] Article 4 of the protocol on Amendments of the Constitutive Act of the African Union, adopted by the 1st Extra ordinary session of the assembly of the African Union, Addis Ababa (Ethiopia)3 February 2003.
[11] Ben. kioko, Argues that the right of intervention stemmed from concern about the OAU’s failure to intervene in Order to stop the gross and massive violations witnessed in Africa in the past , such as the excesses of Idi Amini in Uganda in the 1970’s and the genocide in Rwanda in 1994. 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 (IRRC). Pg 812
[12] Kritsiotis Dino (2003). Reappraising Policy Objections to Humanitarian Intervention. Michigan Journal of International Law. 19 No.4 (1), pg 1021.
[13] UN Charter, Preamble and article 1. Available at: <http://www.un.org/aboutun/charter/>
[14] UN Charter, Preamble.
[15] UN Charter Article 1
[16] UN Charter Article 2(4)
[17] UN Charter Article 51
[18] UN Charter Article 53(1)
[19] A.A. Yusuf (2003) “The Right to Intervention By the African Union”, A New Paradigm in Regional Enforcement Action, African Yearbook of International Law, pg 11.
[20] S.D. Murphy (1996) Humanitarian Intervention: The United Nations in an Evolving World Order, University of Pennsylvania Press) pg 106; see also N. J. Wheeler (2000) Saving Strangers: Humanitarian Intervention in International Society, Oxford University Press. pg 122.
[21] Protocol Relating to the Establishment of the Peace and Security Council of the AU, adopted by the 1st ordinary session of the AU Assembly, Durban, 9 July 2002.
[22] 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
[23] Retrieved 23rd march 2010 from <http://www.au2002.gov.za/docs/key_oau/au_act.htm> (last accessed 14 April 2010)
[24] Article 4(h) AU Constitutive Act
[25] Under article 53 of the 1969 Vienna Convention on the Law of Treaties, “a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm which no derogation is permitted and which can be modified only by general international norms of equivalent authority.
[26] Protocol on Amendments to the Constitutive Act of the African Union. Adopted by the 1st Extraordinary Session of the Assembly of the Union in Addis Ababa, Ethiopia on 3 February 2003 and by the 2nd Ordinary Session of the Assembly of the Union in Maputo, Mozambique on 11 July 2003
[27] African Constitutive Act
[28] Ibid
[29] Ibid
[30] Both the concepts of duty and right in respect of humanitarian intervention are subject to academic controversy. A ‘right’ to intervention cannot be construed from the point of view of misuse of power by a government, because ‘the violation of a right does not automatically vest a third person with either a duty or the right to correct the infraction’). However, some authors make reference to the ‘right’ of humanitarian intervention. See, for instance, Dino Kritsiotis (1998) ‘Reappraising Policy Objections to Humanitarian Intervention’ (19), Michigan Journal of International Law 1005. In this study, the term duty is preferred because human rights law creates a duty to protect promote and fulfill fundamental rights.
[31] African Constitutive Act
[32] Charter of the United Nations, Article 2(4), 39, 42 and 51.
[33] Kofi Anan, Former Secretary-General of the United Nations, See full Report ‘We the Peoples,’ The Role of the United Nations in the 21st Century,
[34] Restrictionists argue that only the UN has the authority over the lawful use of force, hence intervention without the UN authorization is illegal. See for example, Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford University Press, New York, 2000), pg. 41
[35] Christopher Greenwood QC, Memorandum submitted to the Foreign Affairs Committee of the House of Commons, 22 November 1999.
[36] The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, International Development Research Center, Ottawa, page. 16.
[37] In time of public emergency which threatens the life of the nation, (for instance, international armed conflict, civil war, other serious of violent internal unrest, natural or man-made disasters), states may take measures suspending the derogable rights. In order to prevent the misuse of derogation clauses, human rights instruments often subject the derogation to a number of restrictions and limitations. For instance, Article 4(1) of the International Covenant on Civil and Political Rights (the ‘ICCPR’), provides that a state party can only derogate from its obligations under the Covenant if it officially declares a state of emergency. The state must inform the UN Secretary General the reasons for the derogation and the particular rights derogated. The Article also provides that derogation measures are only permitted to the extent strictly required by the exigencies of the situation, and shall be consistent with their obligations under international law.
[38] Dan Kuwali. (2008). The conundrum of conditions for intervention under article 4(h) of the African Union Act. African Security Review, 17 NO. 4, pg 90.
[39] The White House, ‘President speaks to the United Nations General Assembly’, Washington, DC, 21 Sep. 2004, URL <http://www.whitehouse.gov/news/releases/2004/09/20040921-3.html>
[40] Martin Kunschak, (2006) The African Union and the Right to Intervention: Is There a Need for UN Security Council Authorization? South African Yearbook of International Law 31, pg 207
[41] The conundrum of conditions for intervention under article 4(h) of the African Union Act, African Security Review, Volume 17 No 4 (2008), page 90 - 111
[42] Dan Kuwali. (2008). The conundrum of conditions for intervention under article 4(h) of the African Union Act. African Security Review. 17 NO. 4, pg 90.
[43]The Right of Intervention by the African Union: A New Paradigm in Regional Enforcement Action, African Yearbook of International law, (2005) page 3-21
[44] The Responsibility to Protect, as Enshrined in Article 4(h) of the Constitutive Act of the African Union”, African Security Review, Volume 16, No. 3, 2007, page. 14-25;
[45] United Nations (2005) World Summit Outcome Document, 24 October, A/RES/60/1
[46] Supra note 41 page 15
[47] The Author seeks to discuss the question whether recent AU efforts in Burundi, Darfur and Somali represent an attempt by the AU to implement its Responsibility to Protect. He further asserts that the Responsibility to Protect is not merely a recipe for military adventurism; it should be the blueprint for securing Africa’s future and the stability and prosperity of the continent’s citizens. Ibid page 18
[48] Tim Murithi(2007) The Responsibility to Protect, as Enshrined in Article 4(h) of the Constitutive Act of the African Union”, African Security Review Volume 16, page 16
[49] 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. 17 NO. 4 (3), pages 807-825;
[50] Ibid pg 817.
[51] Corfu Channel, (United Kingdom of Great Britain and Northern Ireland v Albania), 9 April 1949, available at: http://www.icj-cij.org/docket/index.php?p1=3&code=cc&case=1&k=cd
[52] Case Concerning The Military And Paramilitary Activities In And Against Nicaragua (Nicaragua V. United States Of America (Merits) 1986 In this case, article 2(4) was regarded as a codification of customary international law
[53] 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. 17 NO.4 (3),pg 822
[54] Ibid , page 812
[55] The Role of the United Nations, the African Union and Africa’s Sub-Regional Organizations in Dealing with Africa’s Human Rights Problems: Connecting Humanitarian Intervention and the Responsibility to Protect.” Journal of African Law, April 2009
[56] See further j Sarkin and M Pietchman. (2003). Legitimate humanitarian intervention under international law in the context of the current human rights and humanitarian crisis in Burma/Myanmar. Hong Kong Law Journal. Vol 1, pg 317.
[57] UN Charter, article 52.
[58] Ibid Article 53.
[59] There have also been a few cases of single country interventions into a neighboring state. For example, Tanzania intervened in Uganda and overthrew Idi Amin in the late 1970s. Although Kenya, Nigeria, Libya and Sudan objected to this, the international community response was generally muted, even though intervention by Vietnam in Cambodia at around the same time drew much reaction. The intervention was accepted by many as Tanzania acting in self-defense and was not even discussed by the UN Security Council or General Assembly. It was however discussed by the Organization of African Unity on a number of occasions. See SD Murphy Humanitarian Intervention: the United Nations in an Evolving World Order (1996, University of Pennsylvania Press) at 106; NJ Wheeler Saving Strangers: Humanitarian Intervention in International Society (2000, Oxford University Press) page 122. A more recent example is that of France intervening in the DRC in 2003. However, that intervention had UN and European Union authorization and played a limited role, while the UN organized its own force. See VK Holt and MK Shanahan, African Capacity-Building for Peace Operations: UN Collaboration with the African Union and ECOWAS (2005, Stimson Center) page 50
[60]Jeremy Sarkin. (2009). The Role of the United Nations, the African Union and Africa’s Sub-Regional Organizations in Dealing with Africa’s Human Rights Problems, Connecting Humanitarian Intervention and the Responsibility to Protect.” Journal of African Law, pg 3.
[61] J.L. Holzgrefe and Robert O. Keohane (2003). Humanitarian intervention: ethical, legal and political dilemma’s. London: Cambridge University Press.
[62] Ibid, page 18
[63] Ibid
[64] 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 1.38
[65] African Constitutive Act, Available at: <http://www.au2002.gov.za/docs/key_oau/au_act.htm>
[66] Ibid
[67] United Nations Charter Available at: <http://www.un.org/aboutun/charter/>
[68] Ibid Article 24
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