The Right Intervention


Enforcement challenges for the African Union


Jakkie Cilliers is the executive director of the ISS.
Kathryn Sturman is a senior researcher at the ISS.


Published in African Security Review Vol 11 No 3, 2002



Sovereignty has often been used to protect leaders at the expense of citizens. The Constitutive Act of the African Union (AU) allows for intervention without the consent of the target state in a way that the OAU system of complete consensus never did. Ensuring that intervention is effective is as important as the decision of when and why to intervene. Sanctions, criminal prosecutions and military interventions are the broad options available to the AU. To be effective, though, the AU will need to agree on how intervention will be authorised and on mechanisms for its implementation. While the AU may have limited resources, not all action is costly. If African leaders speak out against human rights violations whenever they occur and combine this with a small, well-trained regional force, the benefits will far outweigh the costs.


Introduction

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 organisation, 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;”1

  • 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—and it is clearly the intention of the Organisation of African Unity (OAU) to even further expand on these powers in the proposed Protocol relating to the Mechanism for Conflict Prevention, Management and Resolution of the AU that will be submitted at the inaugural Summit of the Union in Durban, South Africa, during July 2002.

On paper, at least, sovereignty no longer provides protection behind which predatory governments can hide abuse of their peoples. African leaders now need to demonstrate their political will to use these powers for the protection of their people—and not for the protection of one another. It is this issue, and the extent to which the AU will abide by the OAU tradition of complete consensus, that will determine if the Union will differ from its predecessor.

This article 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. A number of the arguments used in the article build around the seminal report of the International Commission on Intervention and State Sovereignty (ICISS) entitled ‘The responsibility to protect’ that was presented to the UN General Assembly in December 2001.

A failed intervention can do as much damage as failing to intervene at all. This has been amply demonstrated in Africa—in Rwanda in 1994 and in Somalia in 1992–93. The international community is in agreement that there must never be another Rwanda—where the world averted their eyes from genocide and crimes against humanity. At the same time, an inappropriate response to a complex emergency situation can lead to another Somalia, where intervention took the situation from bad to worse.

‘Reasonable prospects for success’ is one of four criteria for intervention listed by the ICISS.2 It is the key factor for consideration by the AU, a regional organisation operating on a continent starved of resources and capacity for collective security. Pragmatic recognition of the AU’s limitations is vital to these deliberations. So too is an awareness of the international peacekeeping context: that the powerful members of the UN Security Council are eager to delegate responsibility for peace enforcement on to regional and sub-regional bodies such as the AU, the Southern African Development Community (SADC) and the Economic Community of West African States (ECOWAS), while concomitant devolution of resources is less forthcoming. At the same time the international community is theoretically in favour of a ‘response ladder’ through which local and regional responses to a problem are first exhausted before the Security Council becomes involved. Practically, the Five Permanent Members in the Security Council increasingly want the developing world to provide the troops for peace enforcement while it may engage in actions in parallel to a UN mission (such as in Sierra Leone), and while the developed world restricts itself to robust action where its interests are at stake (such as in the former Yugoslavia) and Chapter VI peacekeeping elsewhere (such as with UNMEE).

UN secretary-general Kofi Annan eloquently expressed the moral justification for intervention:
When we read the UN Charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them.3
The UN and the international community must accept that there is an international responsibility to protect all people, especially the most vulnerable, many of who live on the African continent. At the same time, member states of the AU should work within their daunting resource and capacity constraints to do all they can to prevent gross violations of human rights, to highlight such action when it does so, to take what preventive measures are within its powers and to establish a new commitment that flies in the face of impunity.

The two most important steps member states can take towards this end, that will have the highest returns, are absolutely free: first, to listen to their citizenry and to sanction and speak out against their peers whenever and wherever they trample the rights of African peoples. Coupled with this is intervention by a small, well-trained and organised regional force with an international mandate. Even if it is so small that its efforts are largely symbolic, this would display the level of political will from African leaders that could inspire the global confidence needed to gather more substantial international support.

The myth of sovereignty

The concept of state sovereignty, on which the international system and the OAU were founded, presumes that each state has the power, authority and competence to govern its territory. For many African states, however, sovereignty is a legal fiction that is not matched by governance and administrative capacity. Some analysts go so far as to argue that such states violate the prerequisite for UN membership contained in Article 4(1) of the UN Charter, that members must be “able and willing to carry out the obligations”5 of the organisation.

The myth of sovereignty has important consequences for the protection of human rights in Africa. On the one hand, state capacity and authority are essential conditions for the protection and advancement of human rights. The absence or disappearance of a functioning government can lead to the same kinds of human catastrophe as the presence of a repressive state.6 In Africa, intervention will be needed in as many cases where a weak state is unable to protect its citizens, as when a repressive state is unwilling to do so or itself the cause of abuse.

On the other hand, the AU itself derives its authority from state actors, and is built on the presumption of their sovereignty and legitimacy. The challenge for the AU is to become accountable to the people of Africa. It can only do so if it is composed of elected leaders that adhere to human rights and respect the tenants of accountable and good governance—governance in the interests of all and not only a few. Admittedly the OAU had little choice in the matter since intergovernmental organisations are ultimately beholden to their member states. But the AU could be different.

Transparency and popular participation must be built into the procedures of the AU at all levels, including the proposed Peace and Security Council (the successor to the Central Organ of the OAU) if the Union is to develop the political will and responsiveness necessary to uphold the commitments of the AU act. But much more is needed. African leaders must reflect, through their actions and treatment of one another, the values that lie at the core of stability, democracy and peace. Such a demonstration demands a fundamental break from the past practice of unquestioning solidarity among leaders. It demands an acceptance of the responsibility to protect.

The ICISS report reformulates the notion of sovereignty, “from the absolute rights of state leaders, to respect for the popular will and internal forms of governance, based on international standards of democracy and human rights”.4 ICISS asserts that a state’s sovereignty rests upon the ‘responsibility to protect’ its citizens, and that when a state is unwilling or unable to uphold this duty, the responsibility to protect falls upon the international community.

The limits of intervention

According to the ICISS, the defining feature of intervention is that it is conducted without the consent of the target state.7 A request for assistance by a recognised government therefore falls outside of this definition. The right of intervention by international or regional organisations in the internal affairs of member states therefore contradicts the traditional concept of state sovereignty on which the UN and the present OAU charters are based. The AU Constitutive Act goes even further, particularly in Article 4(j) that provides for the “right of Member States to request intervention from the Union in order to restore peace and security.” This goes far beyond the ‘just cause’ threshold defined by the ICISS. What are the criteria for intervention that the AU will develop?

On the face of it, the act provides much leeway in this regard, for example, Article 4(m) provides for “respect for democratic principles, human rights, the rule of law and good governance”. Article 4(o) provides for “respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities”. Article 4(p) provides for the “condemnation and rejection of unconstitutional changes of government”. It is these sweeping provisions, and others that create the lack of clarity in the act that has now led to the development of a Protocol relating to the Mechanism for Conflict Prevention, Management and Resolution to be submitted to African heads of state in Durban for their approval. The Protocol provides for the establishment of a completely revamped Mechanism for Conflict Prevention, Management and Resolution “which shall be a collective security and early-warning arrangement to facilitate timely and efficient response to conflict and crisis situations in Africa”.8 This will replace the existing structure authorised through the 1993 Cairo Declaration on the establishment of the OAU Mechanism for Conflict Prevention, Management and Resolution. Other considerations in the development of the Protocol are, of course, the intense sense of competition evident in Addis Ababa from the overlap on peace and security issues with the New Partnership for Africa’s Development (NEPAD)—an area hitherto the sole preserve of the OAU. A second contention is the extent to which the peer review mechanism, the sole remaining preserve of the unit responsible for the Conference on Security, Stability, Development and Co-operation (CSSDCA) within the OAU, is now duplicated by the proposed NEPAD peer review mechanism.

According to the definition adopted by the ICISS (no consent from the target state) intervention may take three forms:9
  • political, economic or other sanctions;
  • international criminal prosecution; and
  • military intervention for humanitarian ends.
Although the following sections comment on these three forms of intervention as defined by the ICISS, this view on what constitutes intervention is not shared by the OAU General Secretariat nor apparently by OAU member states. There the common interpretation favours a much wider use of the concept, that is, to include election monitoring, mediation, use of good offices and other aspects. Even more important, the interpretation of Article 4(j) is further that an affected member state would somehow request ‘intervention’ in its own internal affairs and not that other countries would request intervention in a third without the agreement of the government of the target state.

Sanctions

During the 1990s the newly found enthusiasm of the UN Security Council for sanctions against Iraq, former Yugoslavia, Libya, Liberia, Somalia, parts of Cambodia and Angola, Haiti, Rwanda, Sudan, Sierra Leone and Afghanistan clearly reflected a desire for effective Security Council action to resolve conflict and enforce international legal norms without the deployment of expensive peacekeepers. An analysis of the ‘sanctions decade of the nineties’ would soon reveal that sanctions often served as a precursor, not an alternative to the use of force as was the case in Iraq, Yugoslavia and Haiti. This may still be the case in Liberia. Earlier, in Rwanda and Sierra Leone, UN arms embargoes proved largely to be a failure. Only in Libya have sanctions appeared to accomplish their objective in bringing the Lockerbie suspects to trail and eroding Libyan support to various factions actively hostile to the West and arguably also in pressurising UNITA in Angola.10

Substantial reservations have emerged in recent years about the efficacy and morality of sanctions against very poor countries, in line with growing international opinion that the ‘civilian pain’ is not worth the ‘elusive political gain’,11 hence the preference for smart or targeted sanctions.

Sanctions imposed by African leaders on member states of the OAU have an extremely poor track record and limited prospects for future success where governance in many rural areas is limited and border control often weak or absent. Compliance ultimately determines effectiveness, and can only be achieved when neighbouring countries, sub-regional groupings such as SADC and ECOWAS, regional groupings such as the AU and the international community co-operate, as was evident in Iraq and Yugoslavia. In those cases where extensive monitoring and enforcement remained absent, such as in Somalia, Liberia, Rwanda, and until recently Angola, sanctions and embargoes had a limited impact.12 Like with so many other issues, it will require Africa to demonstrate its own commitment to the resolution of conflicts.

Whether the AU, and the envisaged Peace and Security Council, will take a tougher stance against undemocratic regimes and those that abuse or neglect their populace in future depends on whether African heads of state continue to pander to the ‘lowest common denominator’, or start putting principle before consensus politics.

What is clear is that a continuation of consensus politics at the level of the Assembly of Heads of State and Government and/or within the proposed Peace and Security Council of the AU will undermine whatever potential the AU has to be different—and require much greater determination than in the past. Initially this was the promise of NEPAD, the idea that there would be a reward for good behaviour and punishment for bad and that Africans themselves would discern between the two. Downgrading NEPAD to a pan-African as opposed to an exclusive club has, however, threatened this very essence.

Criminal prosecutions

Turning now to the second option for action, that of criminal prosecution.

The main arguments in favour of choosing this type of punishment can be summarised as: purging threatened leaders, deterring war criminals, reconciling countries, placing the blame for atrocities on individuals rather than on whole ethnic groups and establishing the truth about war time atrocities—all of which would promote peace and security, at least in a longer perspective. The risk, as held out by realists, is that war crimes trials will perpetuate a war or destabilise post-war efforts to build a secure peace. Hence, the choice has been distinguished as one between peace and accountability or, in more practical terms, between justice and forgetting.13

The modern trend, also reflected in Article 4(o) of the AU act, is that it is necessary to combat cultures of impunity in order to promote long-term reconciliation, peace and democracy. Today, international enforcement mechanisms in different parts of the world, for example, in the Balkans, Rwanda, Sierra Leone, Cambodia and East Timor, signify a trend against impunity for systematic perpetrators of atrocities. The trend indicates that the question is rather by whom and according to what standards prosecution of international crimes should be undertaken, than whether such measures should be taken at all. For example, the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR) were a reaction by the international community to the horrendous crimes that were committed in two particular conflicts. They have paved the way for the treaty establishing the International Criminal Court (ICC), which entered into force in April 2002. The ICC has the power to exercise its jurisdiction over persons “for the most serious crimes of international concern,” covering four main areas—the crime of genocide, crimes against humanity, war crimes and crimes of aggression. Perhaps the most significant provision of the statute is contained in Article 27 on the irrelevance of official capacity. Thus, “official capacity as a Head of State of Government, a member of parliament, an elected representative, or a government official shall in no case exempt a person from criminal responsibility—nor shall it, in and itself, constitute a ground for reduction in sentence”. It goes further to declare that “immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the court from exercising its jurisdiction over such a person”.

The international community has taken different routes in responding to violations of human rights and international humanitarian law. The prevailing one has been inaction in deference to sovereignty or myopic defence of parochial views.14 What position will the AU take?

War crimes tribunals such as the ad hoc tribunal on Rwanda have clearly established that criminal liability exists for war crimes during internal armed conflicts and that crimes against humanity extend beyond periods of armed conflict. The arrest and trial of former President of Chad, Hissène Habré, in Senegal further eroded the international tradition of immunity of former government officials outside their own countries,15 as will the recently established war crimes tribunal in Sierra Leone. Given sufficient resources, the establishment of the ICC should provide considerable additional impetus to these developments. It will be up to the AU to prove its adherence to a single, international set of criteria and principles through its support of the ICC and for its member states to support, practically and financially, organisations such as the ICTR. Again, such active support would depart from past OAU member state practice. Will the AU member states set up, fund and support future tribunals? Will African leaders apprehend and extradite criminals, including former heads of state, who seek to escape domestic accountability by seeking refuge elsewhere on the continent? Will the member states of the AU support or frustrate the ICC?

Military interventions

The UN Charter confers on the Security Council “primary responsibility for the maintenance of international peace and security”16 and the right to use sanctions, blockades and (military) force to this end.17 The Security Council may further utilise 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 authorisation of the Security Council …”.18 Furthermore, “[t]he 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”.19

In terms of the UN Charter the AU or any African sub-region that intends to undertake enforcement action must therefore seek the prior authorisation of the UN Security Council. But what happens if the UN Security Council is unwilling or unable to authorise appropriate action in a timely manner as happened in the case of Rwanda in 1994? Neither the act establishing the AU nor the draft Protocol on the Mechanism are clear in this regard, leaving sufficient leeway for the AU to sanction intervention without prior UN Security Council approval.20 Regional organisations can, or course, act and seek post facto approval as happened with the belated blessing of ECOWAS intervention in Liberia and Sierra Leone—as did the North Atlantic Treaty Organisation (NATO) in Kosovo. But the litmus test will remain the interpretation of ‘appropriate’ by the UN Security Council and provide that body with a ready excuse for inaction or to side-step endorsement of actions by regional organisations.

Should the AU decide to accept it, the report of the ICISS has done sterling work in defining the ‘just cause’ threshold for military intervention for human protection. To cross this threshold:

… there must be serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind:
A. large-scale loss of life, actual or apprehended, with genocidal intent or not, which is the product of either a deliberate state action, or state neglect or inability to act, or a failed state situation; or

B. large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.21
Military intervention is the tool of last resort —to be used after all other avenues of conflict prevention have been exhausted. Article 4(h) of the Constitutive Act explicitly provides for such intervention to prevent genocide, war crimes and crimes against humanity without the consent of the target state following a decision by the Assembly. The UN Security Council, one suspects, will be favourably disposed to endorse (as opposed to authorise) AU enforcement operations. Endorsement provides a legal framework but not necessarily responsibility for the provision of resources. Authorisation implies responsibility and therefore resources.

It is extremely burdensome, and arguably inappropriate, for one state to police another, when the intervening state itself does not have control or jurisdiction over its own territory. Encouraging undemocratic weak states to assist other undemocratic weak states in the provision of security, without an unequivocal and significant involvement of the international community, may, over time, have unintended consequences.22 The path of military intervention by regional organisations in Africa is therefore tempting but dangerous with the potential of serving to further marginalise Africa while undermining the global responsibilities for peace and security of the UN Security Council. At the same time the AU is morally and legally obliged to do everything it can to muster intervention forces from its own meagre resources to prevent the recurrence of tragedies such as that of Rwanda in 1994 —even if the practical effect is largely to shame the international community to act upon its responsibilities.

In these times where peacekeeping is in such an evident state of flux, the AU should maintain the position reached at the Maputo regional roundtable discussions on the ICISS report, namely that: “intervention should be internally generated and externally supported and assisted”. The Maputo meeting further recommended a code of conduct and accountability mechanisms for prosecuting misconduct by any regional or sub-regional peacekeepers, clear mandates, entry and exit strategies and civil society participation in decisions to intervene on humanitarian grounds in any African state.

These criteria should be factored into the recommendation made by ambassadors of the Central Organ of the OAU when meeting in George, South Africa in April 2002:
Member States should take steps to establish ready contingents to participate in peace missions mandated by the African Union and the UN … [and that] the size of these contingents should be increased substantially.
This builds on the earlier recommendations of the Second Meeting of African Chiefs of Defence Staff of the Central Organ of the OAU in Harare, 1997. Article 9 of the draft Protocol to the AU act subsequently provides for the establishment of a Pan-African Standby Force composed of standby multidisciplinary contingents in their countries of origin. No surprise therefore that the funding request submitted by the General Secretariat of the OAU to “implement the peace and security agenda of the AU” seeks US$24 million from donors for “… setting up of a ready contingent of 500 troops with the necessary logistical support …”.23

Realistically, African military capabilities are very limited. Should the continent be able to muster the capacity to deploy ready contingents on standby in member states to affected areas, such deployments would probably not have the capacity to perform more than traditional Chapter VI missions, provide an initial holding force prior to reinforcement by international contingents or secure a safe zone for the provision of humanitarian assistance. A second recommendation made at George—to conduct a comprehensive assessment of peacekeeping capacities in Africa—to follow an earlier assessment done by the Institute for Security Studies for the OAU some years ago24—would provide the baseline information upon which to plan for the ambitious intentions towards the Pan-African Standby Force. Practically such a Force would probably draw upon the arrangement regarding ECOMOG within ECOWAS and the decision in principle by SADC of some years ago, also to establish a standby brigade level force.

While identifying standby units that would serve as a small, effective rapid response force to intervene at moments of extreme crisis—such as when mass killings are imminent or in progress—the AU should not neglect the long-term mechanisms required for sustainable security on the continent. The Maputo roundtable interpreted the ‘responsibility to protect’ as bestowing duties broader than just short-term military intervention. The responsibility of Article 4(h) was interpreted to include the entire regional security continuum—from early warning and conflict prevention, to post-conflict reconciliation, rehabilitation and reconstruction. Africa has yet to maximise its potential for early warning and conflict prevention, but the resources of longer-term peace building remain captive of the developed world and will remain dependent upon a close partnership between the continent, the UN and its agencies and the G8.

These are not new responsibilities for the AU. Rather, they require the revision of the Mechanism for Conflict Prevention, Management and Resolution, as reflected in the Draft Protocol, and indeed of the AU.

Authorisation and mechanism for intervention

The AU act stipulates that the Assembly of Heads of State and Government “gives directives to the Executive Council (of ministers of foreign affairs) on the management of conflicts, war and other emergency situations and the restoration of peace”,25 but that it “may delegate any of its powers and functions to any organ of the Union”26—in this case the Peace and Security Council. Specifically, the right of the Union to intervene in the affairs of a member state in respect of war crimes, genocide and crimes against humanity requires a decision of the Assembly.27 Although one would assume that the Union or other regional organisations would not easily embark upon intervention without a mandate from the UN Security Council, the Draft Protocol provides for uneven authority to the Peace and Security Council (PSC). For example, the PSC may authorise the mounting and deployment of peace support operations (that is, even without a UN Security Council mandate), recommend to the Assembly an intervention in a member state in respect of grave circumstances, namely war crimes, genocide and crimes against humanity, decide to institute sanctions in response to unconstitutional changes of government, and support and facilitate28 humanitarian action in situations of armed conflict or major natural disasters.29

According to the Draft Rules of Procedure of the Assembly of the Union, the Assembly of Heads of State and Government of the Union shall:
d) Give directives to the Executive Council, the Central Organ of the Commission on the management of conflicts, wars, acts or terrorism, emergency situations and the restoration of peace;

e) Decide on intervention in a Member State in respect of grave circumstances namely war crimes, genocide, crimes against humanity;

f) Decide on intervention in a Member State at the request of that Member State in order to restore peace and security;

g) Determine the sanctions to be imposed on any Member State for non-payment of assessed contributions, violation of the principles enshrined in the Constitutive Act and these rules, non-compliance with the decisions of the Union and unconstitutional changes of government.30
Particularly evident from the Rules of Procedure is that Article 4(j) of the Constitutive Act of the African Union (that provides for the right of member states to request intervention from the Union in order to restore peace and security) is interpreted in a manner that restricts the application of the clause to when an affected member state requests intervention itself, that is, not other member states requesting intervention in a third country. Recent precedents for this behaviour are manifold, including the Lesotho government requesting South Africa, Zimbabwe and Botswana military assistance to forestall a military coup, and Laurent Kabila’s requesting armed help from Angola, Zimbabwe and Namibia to halt the advance of the Rassemblement congolais pour la démocratie (RCD) on Kinshasa, in 1998.

According to the Draft Protocol to be submitted in Durban, the Mechanism will be built around:
  • A 15-member PSC composed of three member states from each of the five African sub-regions elected with regard to criteria such as their contribution to the maintenance and promotion of peace and security, respect for constitutional governance, rule of law, human rights, and so on. The PSC will function on a continuous basis through the ambassadors to the AU in Addis Ababa (the Permanent Representatives Committee) but will also meet at ministerial and heads of state level. The chair will rotate monthly.

  • The Commission of the Union (previously the General Secretariat of the OAU); that will now have 10 commissioners including the chairperson and deputy chairperson, a commissioner for Peace and Security and for Political Affairs.

  • The Panel of the Wise—a group of “highly respected African personalities from various segments of society”31 that will focus their efforts on conflict prevention.
A Continental Early Warning System, a Pan-African Standby Force and a Special Fund will support the Mechanism.32 Practically, the chairperson of the Commission or member states will refer matters to the PSC.

By ratifying the Protocol, AU member states agree that the PSC will be empowered to act on their behalf and to implement the decisions of the Council33 in the areas of:
  • early warning and preventive diplomacy;
  • peace-making, including the use of good offices, mediation, conciliation and enquiry;
  • peace support operations and interven-tion;
  • peace-building and post-conflict recon-struction;
  • promotion of security and stability;
  • humanitarian assistance.34
Assembly and PSC decisions are generally taken by the principle of consensus” or, failing which, by a two-thirds majority.35

Conclusion

The AU has a long way to go in turning the principle of intervention into workable practice. Closer examination of the provisions reflected in the Constitutive Act, those in the Protocol and the Rules of Procedure reflect a worrying degree of consistency and lack of clarity. But the intention now expressed in the AU act is a huge step forward and a positive opportunity for change. Eventually the resources that are made available to the Union will inevitably prove decisive—an issue to ponder given the fact that the OAU, with its $32 million annual budget was carrying about US$52 million in arrears from its member states during May 2002. No decisions on the funding mechanisms for the AU have been finalised and a discussion of these fall beyond the scope of this article. The funding proposal (from the Political Department within the OAU) to implement the peace and security agenda of the AU is for an amount of US$120 million over three years, much of which is to defray the costs of core activities envisaged within the Union.

The history of the OAU Peace Fund established is instructive in this regard. Since its establishment in June 1993, the fund had attracted contributions amounting to US$48 million by the end of March 2002. Of this amount, US$18 million was contributed to member states as a proportion of their contributions to the general budget of the OAU. The remainder and much larger sum of US$30 million had come from non-African countries and international organisations.

The AU will require a budget several times that of the OAU if it is to contribute to peace and security on the continent—leaving the much larger challenge of development aside for the moment. Apart from the various options being developed by the special committee tasked with looking at the funding of the Union, conflict prevention, mediation and intervention efforts in Africa by the new Mechanism demands substantial assistance from the international community. It is also important that African leaders cohere and rationalise the various competing continental initiatives regarding peace and security within the Union, the most important of which is the peace and security sub-committee of NEPAD. Elsewhere initiatives such as the CSSDCA should also be used to strengthen the Union, rather than reflect national agendas that detract and waste resources.

Eventually it is difficult to think of a continental organisation that is somehow ‘stronger’, with more capacity than its constituent states. The AU, like its predecessor, will be hostage to a collection of countries that include a number of failed and many weak states incapable of providing security beyond the presidential palace. On a continent where ‘the state’ often refers to an elite occupying the capital buildings and where governance seldom extends beyond urban areas, the true potential of the AU, like the OAU, is that of peer pressure. Only time will tell if peer protection will give way to new standards of accountability, good governance and democracy. Protection of people rather than leaders should be the norm. If the AU is no different from the OAU, it may be the leaders that would require protection from their people.

Notes

  1. War crimes include specific offences such as rape, sexual slavery and the use of children under the age of 15 as combatants, according to the Statutes of the International Criminal Tribunal adopted in July 1998, Rome, Italy. War crimes include most of the serious violations of international humanitarian law mentioned in the 1949 Geneva Conventions and their 1997 Additional Protocols. According to the 1949 Convention on the Prevention and Punishment of the Crime of Genocide, genocide consists of any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group: killing members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group, etc. According to the Statute of the International Criminal Tribunal adopted in July 1998, Rome, Italy, crimes against humanity include any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, including murder, extermination, enslavement, deportation or forcible transfer of populations, torture, etc.

  2. The others are right intention, last resort and proportional means. The responsibility to protect, Report of the International Commission on Intervention and State Sovereignty (ICISS), IDRC, December 2001, p 32.

  3. K Annan, Two concepts of sovereignty, in The Economist, 18 September1999 as quoted in The responsibility to protect—research, biblio-graphy, background, supplementary volume to the Report of the ICISS, IDRC, 2001.

  4. Ibid, p 11.

  5. Ibid, p 7.

  6. Ibid, p 10.

  7. The responsibility to protect, op cit, p 16.

  8. Art 1(1) of the Draft Protocol relating to the Mechanism for Conflict Prevention, Management and Resolution of the African Union. All references are to the working draft dated 22 May 2002.

  9. Ibid, p 16.

  10. See D Cortright & G A Lopez, The sanctions decade—assessing UN strategies in the 1990s, Lynne Reinner, Boulder, 2000.

  11. T Weiss, D Cortright, G Lopez & L Minear (eds.) Political gain and civilian pain: Humanitarian impacts of economic sanctions, Lanham, Rowman and Littlefield, 1997.

  12. In Angola the lack of compliance to the UN sanctions regime by neighbouring states is perhaps best illustrated by the early collapse of the SADC committee tasked to oversee, co-ordinate and implement sanctions against UNITA. While OAU member states now like to point to the contribution that sanctions made, it was the scorched earth policy of the Angolan Armed Forces and the resources to do so derived from the oil industry that eventually played the larger role in defeating Savimbi.

  13. H Friman, The Democratic Republic of Congo—justice in the aftermath of peace, in African Security Review, Institute for Security Studies (ISS), Pretoria, 10(3), 2001, p 64.

  14. The latter is exemplified best by the actions of the US and its efforts to counter and undermine the ICC. The US approach is consistently that only Americans are competent to judge Americans.

  15. The responsibility to protect, op cit, p 22.

  16. Article 24(1).

  17. Article 41 and 42.

  18. Article 53(1).

  19. Article 54.

  20. Article 11 of the Draft Protocol refers to “… in keeping with the provisions of Chapter VIII of the UN Charter …”

  21. According to the ICISS, just cause also includes “situations of state collapse and the resultant exposure of the population to mass starvation and/or civil war; and overwhelming natural or environmental catastrophes, where the state concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened.” ICISS, The responsibility to protect, op cit, p 33.

  22. J Cilliers, Regional African peacekeeping capacity—mythical construct or essential tool? in From peacekeeping to complex emergencies—peace support missions in Africa, South African Institute for International Affairs (SAIIA) & ISS, Johannesburg, 1999, p 149.

  23. General Secretariat of the OAU, A programme funding proposal for the implementation of the Peace and Security Agenda of the African Union, Draft, May 2002, p 38.

  24. M Malan with W Nhara & P Bergevin, African capabilities for training for peace operations, A report for the Secretary-General of the OAU by a project team led by the ISS and funded by the Canadian Government, Pretoria, 1997.

  25. Article 9(1)(g).

  26. Article 9(2).

  27. Article 4(h).

  28. Effectively the PSC may be able to authorise and recommend, but support and co-ordination will have to be done by the Commission of the AU and member states.

  29. Articles 5, sub-par 6 of the Draft Protocol.

  30. Meeting of the Sub-Committee of Legal Experts of the African Union, Rule 4, Draft Rules of Procedure of the Assembly of the Union, Revision 6, Addis Ababa, 6–10 May 2002.

  31. Article 7(2) of the Draft Protocol.

  32. Article 4 of the Draft Protocol.

  33. Article 5, sub-par 7, 8 and 9 of the Draft Protocol.

  34. Article 5, sub-par 5 of the Draft Protocol.

  35. Article 7 of Constitutive Act of the African Union and sub-paragraph 22 of Article 5 of the Draft Protocol.