This essay revisits the relationship between Article 4(h) of the African Union Constitutive Act and the R2P concept with a particular focus on military intervention. After unfolding the narrative of equation between the two norms, we explore their content and highlight their clear differences. We also observe the conceptual glissement concerning Article 4(h) from a right to a duty to intervene, which is not backed up by international practice. Furthermore, we examine the possible impact of the narrative of equation on the use of force architecture and particularly, on the relationship between the African Union and the United Nations. Finally, we analyse the normative implications of the equation for the R2P concept and conclude that the above equation fails to produce tangible legal consequences. What remains are its political motivations that sharply depart from the ‘higher’ ideals permeating the R2P and thus undermine its logic and realization.
Musifiky Mwanasali‘The African Union, the United Nations, and the Responsibility to Protect: Towards an African Intervention Doctrine’Global Responsibility to Protect2/4: 388–413 (2010) pp. 388–389 and 397; Kwesi Aning and Samuel Atuobi ‘Responsibility to Protect in Africa’ Global Responsibility to Protect 1/1: 90–100 (2009) p. 92: ‘[S]ince its birth the au has established a set of norms and principles that mirror the ideas of R2P’; A/63/PV.97 23 July 2009 p. 6 (Egypt): ‘The conditions for implementation [of the R2P concept] are clearly stipulated under Article 4 (h) and (j) of the Constitutive Act of the African Union…’; A/63/PV.99 24 July 2009 p. 20 (Rwanda); A/63/PV.98 24 July 2009 p. 26 (Nigeria): ‘Article 4 (h) captures [the R2P’s] essence’; A/63/PV.100 28 July 2009 p. 20 (Swaziland) where it is suggested that Article 4 (h) makes specific reference to the responsibility to protect.
For such statements see Kabau‘The Responsibility to Protect’ pp. 71 75and 91 where he argues that the ‘au’s express opposition to any form of military intervention…in Libya despite widespread and systematic military attacks on civilians that were in the nature of crimes against humanity was clearly inconsistent with…the Union’s intervention mandate’ emphasis added; Abdul G. Koroma ‘Comments’ in Rüdiger Wolfrum and Chie Kojima (eds.) Solidarity: A Structural Principle of International Law (Heidelberg: Springer 2010) p. 120; Abass ‘The African Union’ p. 224: ‘It is beyond doubt that Article 4(h) of the au Act encapsulates the principle that the aumust intervene when egregious international crimes occur in its Member States’ emphasis added; Hogevik ‘Regionalising’ p. 358 who speaks of the ‘au’s formal commitment to protect populations from mass atrocities’ emphasis added; S/PV.5577 4 December 2006 p. 10 (Ghana) speaking about a ‘moral duty to act’. See also footnotes 58 and 60 of this paper for further references.
See Paul D. Williams‘The “Responsibility to Protect”, Norm Localisation, and African International Society’Global Responsibility to Protect1/3: 392–416 (2009) pp. 399 and 415; Aning and Atuobi ‘Responsibility to Protect’; Dan Kuwali ‘Protect Responsibly: The African Union’s Implementation of Article 4(h) Intervention’ Yearbook of International Humanitarian Law 11: 51–108 (2008) p. 52.
See the observations of Abass‘The African Union’ p. 223(but see also how he speaks of a duty to intervene further on and mixes between a right and an obligation ibid. pp. 224–226); Alex J. Bellamy ‘Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit’ Ethics & International Affairs 20/2: 143–169 (2006) p. 150. But see the observations of Kuwali ‘Art. 4(h) + R2P’ p. 62 who suggests that we should distinguish between a treaty clause providing for the right to intervene and humanitarian intervention.
See Rwanda (14 September2005pp. 5–6) http://www.un.org/webcast/summit2005/statements.html accessed 28 October 2013.
See A/63/PV.105 14 September2009p. 5 (Sudan).
See S/PV.6498 17 March2011p. 10 (South Africa) rejecting any unilateral or foreign military intervention.
See among others Rachel Murray‘The African Court on Human and Peoples’ Rights Order for Provisional Measures against Libya: Greater Promise for Implementation of Human Rights in Africa’European Human Rights Law Review4/4: 464–473 (2011).
See Williams‘The ‘Responsibility to Protect” p. 393; Kabau ‘The Responsibility to Protect’ pp. 54 57 and 66; Bellamy ‘The Responsibility to Protect’ p. 623; Alex J. Bellamy ‘Making RtoP a Living Reality: Reflections on the 2012 General Assembly Dialogue on Timely and Decisive Response’ Global Responsibility to Protect 5/1: 109–125 (2013) p. 114; Nicholas Wheeler ‘Operationalizing the Responsibility to Protect: The Continuing Debate over where Authority should be Located for the Use of Force’ nupi Report no. 3 2008 pp. 17 and 26; Haugevik ‘Regionalising’ pp. 349–350. For a more ambivalent position see Isaac T. Sampson ‘The Responsibility to Protect and ecowas Mechanisms on Peace and Security: Assessing their Convergence and Divergence on Intervention’ Journal of Conflict and Security Law 16/3: 507–540 (2011) p. 513; Weiss Humanitarian Intervention pp. 117–118. Contra seems to be Susan E. Rice and Andrew J. Loomis ‘The Evolution of Humanitarian Intervention and the Responsibility to Protect’ in Ivo H. Daalder (ed.) Beyond Preemption: Force and Legitimacy in a Changing World (Washington d.c.: The Brookings Institution 2007) pp. 59–95 p. 91.
See for exampleThe Ezulwini Consensus p. 6which recognises Article 4(h) as a separate legal basis for recourse to force (‘[A]ny recourse to force outside the framework of Article 51 of the un Charter and Article 4(h) of the au Constitutive Act should be prohibited’) and also argues that an ex post factosc authorization should be accepted in the framework of a R2P situation; see also Art. 17 of the psc Protocol which refers to the primary (but not exclusive) responsibility of the un Security Council in the field of international peace and security; for the same language see also Avis no11b-2006 du Conseil constitutionnel sur un projet de loi portant approbation de l’adhésion de la République tunisienne au protocole relatif à la création du Conseil de paix et de sécurité de l’Union africaine Advisory Opinion of the Constitutional Court of Tunisia of 2 August 2007 available at http://constitunisie.blogspot.com/2007/08/le-conseil-de-paix-et-de-scurit-de-l.html. It should be noted that Art. 16’s reference to the primary responsibility of the Peace and Security Council of the African Union for ‘promoting peace security and stability in Africa’ (psc Protocolibid.) establishes an element of hierarchy but only vis-à-vis sub-regional organizations and their conflict prevention and resolution mechanisms; see on that point Eki Yemisi Omorogbe ‘Can the African Union Deliver Peace and Security?’ Journal of Conflict & Security Law 16/1: 35–62 (2011) p. 41.
See Kindiki‘The Normative’ p. 108 (but see also p. 114); Riziki Majinge ‘Regional Arrangements’ p. 120; Jeremy Sarkin ‘The Responsibility to Protect and Humanitarian Intervention in Africa’ Global Responsibility to Protect 2/4: 371–387 (2010) p. 376 commenting on the Ezulwini Consensus; Mwanasali ‘The African Union’ pp. 403–404; Jakky Cilliers and Kathryn Sturman ‘The Right Intervention’ African Security Review 11/3: 28–39 (2002); Abass and Baderin ‘Towards Effective Collective Security’ pp. 20–24; Kunschak ‘The African Union’ pp. 205–206; Jean Allain ‘The True Challenge to the United Nations System of the Use of Force: The Failures of Kosovo and Iraq and the Emergence of the African Union’ Max Planck Yearbook of United Nations Law 8: 237–289 (2004) pp. 284–287; Abdulqawi Yusuf ‘The Right of Intervention by the African Union: A New Paradigm in Regional Enforcement Action’ African Yearbook of International Law 11: 3–21 (2003) p. 19 (insinuating a situation of an ex post facto authorisation); Jorge Cardona Llorens ‘Le rôle des organisations internationales’ in Société française de droit international (sfdi) La responsabilité de protéger (Paris: Pedone 2008) pp. 319–325 pp. 323–324; Wheeler ‘Operationalizing’ p. 23; Emma McClean ‘The Responsibility to Protect: The Role of International Human Rights Law’ Journal of Conflict & Security Law 13/1: 123–152 (2008) p. 138; Tarcisio Gazzini The Changing Rules on the Use of Force in International Law (Manchester: Manchester University Press 2005) pp. 113–114; Omorogbe ‘The African Union’ p. 152–155. For a more nuanced approach see Bellamy ‘Whither the Responsibility to Protect?’ pp. 157–159 and 161–162.
See Olivier CortenLe droit contre la guerre. L’interdiction du recours à la force en droit international contemporain (Paris: Pedone2008) pp. 525–529 and more forcefully Corten ‘L’Union africaine’; Boisson de Chazournes ‘Les relations’ pp. 295–296; Robert Kolb ‘Article 53’ in Jean-Pierre Cot Alain Pellet Matthias Forteau (eds.) La Charte des Nations Unies: commentaire article par article (Paris: Economica 2005 3ième éd.) vol. II pp. 1403–1437 p. 1422; Kabau ‘The Responsibility to Protect’ p. 82; Kuwali ‘Protect Responsibly’ pp. 55 and 99.
See Ademola Abass‘Consent Precluding State Responsibility: A Critical Analysis’International and Comparative Law Quarterly53/1: 211–225 (2004) p. 224; Bellamy ‘Whither the Responsibility to Protect?’ p. 159; Kuwali ‘Protect Responsibly’ pp. 65 and 76; Kuwali ‘Art. 4(h) + R2P’ p. 64.
For this argument see Abass‘Consent’ p. 224; Abass and Baderin ‘Towards Effective Collective Security’ pp. 18–19: ‘Such consent must be interpreted to preclude the operation of Article 2§4…’; Dan Kuwali ‘The End of Humanitarian Intervention: Evaluation of the African Union’s Right of Intervention’ African Journal of Conflict Resolution 9/1: 41–61 (2009) p. 46; Kuwali ‘Protect Responsibly’ p. 86; Peter E. Harrell ‘Modern-Day “Guarantee Clauses” and the Legal Authority of Multinational Organizations to Authorize the Use of Military Force’ Yale Journal of International Law 33/2: 417–446 (2008) p. 426. More ambiguous is Kuwali ‘Art. 4(h) + R2P’ pp. 68–69. It should be noted that in such a scenario no need for an analysis of Articles 20 and 26 of the ilc Draft on State Responsibility which provide that consent precludes wrongfulness unless the act in question ‘is not in conformity with an obligation arising under a peremptory norm of general international law’ arises since the mutually consented act does not even fall within the ambit of Article 2§4 of the un Charter. Contra seems to be Corten Le droit pp. 526–527 according to whom a derogatory reading of Article 4(h) is contrary to the imperative norm of the non-use of force and thus any act is null and void even if we take into account that State parties have given their consent thereto; Sampson ‘The Responsibility to Protect’ p. 535. See also Alexander Orakhelashvili ‘The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions’ European Journal of International Law 16/1: 59–88 (2005) pp. 74–75; Kindiki ‘The Normative’ pp. 106–107.