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The African Union’s Response to the Libyan Crisis: A Plea for Objectivity

In: African Journal of Legal Studies
Author: Ademola Abass1,2
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  • 1 Aabass@cris.unu.edu
  • | 2 a Peace and Security Program, United Nations University, Institute for Comparative Regional Integration Studies, Bruges, Belgium b Department of International Law, University of Leuven, Leuven, Belgium
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Abstract

The African Union (au)’s role in the Libyan crisis drew opprobrium from many observers. To some, the Union’s response to the Libyan debacle – which was no response in terms of military engagement – came as no surprise. Gaddafi was one of the biggest funders of the continental organization. For others, the au’s poor showing is confirmatory that African regional organizations may have the legal competence to take enforcement action against erring Member States but they have neither the resources nor the political will required to effectuate such measures. While these factors count in any reckoning of the au’s handling of the Libyan crisis, this author argues that most analysts fail to account for the bewildering legal complexities the Union found itself in Libya. A closer look at the majority of existing analyses of the au’s response to the Libyan crisis reveals a widely unbalanced picture painted mostly by the legal analysts’ account of the organization performance and by the au’s evaluation of its own performance. The consequence of either approach is often too lopsided to inform a prudent outcome.

Abstract

Abstract

The African Union (au)’s role in the Libyan crisis drew opprobrium from many observers. To some, the Union’s response to the Libyan debacle – which was no response in terms of military engagement – came as no surprise. Gaddafi was one of the biggest funders of the continental organization. For others, the au’s poor showing is confirmatory that African regional organizations may have the legal competence to take enforcement action against erring Member States but they have neither the resources nor the political will required to effectuate such measures. While these factors count in any reckoning of the au’s handling of the Libyan crisis, this author argues that most analysts fail to account for the bewildering legal complexities the Union found itself in Libya. A closer look at the majority of existing analyses of the au’s response to the Libyan crisis reveals a widely unbalanced picture painted mostly by the legal analysts’ account of the organization performance and by the au’s evaluation of its own performance. The consequence of either approach is often too lopsided to inform a prudent outcome.

1 Introduction

There are two ways in which the African Union’s handling of the Libyan crisis has been generally viewed. The first is to dismiss the organization’s response, as many have done, as typical of African organizations’ notorious prioritizing politics over human lives, peer solidarity over effective action.1 The second is to regard the au response as an unfortunate but inevitable reality of African regional organizations’ incompetence in maintaining peace and security on the continent.

Nonetheless, extant legal analyses of the au’s response to the Libyan crisis seem to suffer three major defects. First, the majority of au critics show little or no appreciation of the considerable legal impediments that conditioned the organization’s rules of engagement in the Libyan crisis. True, the au’s Constitutive Act empowers the organization to take enforcement actions whenever egregious international crimes are committed in its Member States, but other legal regimes do come to play when what is primarily at issue in the Member State, as was the case in Libya, transcends the vicissitudes of one legal regime. In such situations the legality of an au military intervention, as many critics had urged, assuming that the Union is disposed to pursuing that option, depends on the interplay between the various applicable legal regimes.

In Libya, the existence of a situation – civil uprising – which the au claimed was not envisaged by any of its existing legal regimes in force at the critical time,2 not only hamstrung the Union, but also revealed the organization’s inadaptability to exigencies. It will be argued that the interaction of the au Constitutive Act, the African Charter on Democracy, Election, and Governance (acdeg), and the Protocol on the Amendments to the Constitutive Act of the African Union3 reveals a far more complex legal conditionality for an au military intervention in Libya than has been acknowledged in analytical commentaries.

Secondly, there has been a total failure of legal analysis of the au’s approach to the international community’s responsibility to protect civilians, which both the au and the un had invoked in the Libyan conflict. Under the responsibility to protect (R2P) doctrine, the international community’s responsibility to protect is governed by the principles that the community renders assistance to the territorial State to enable it discharge its primary obligation, and that military force is to be recoursed only as a last resort, and at the sufferance of more benign measures. An examination of whether the au’s approach to Libya conforms to these conditions will go a long way in clearing the fog of misunderstanding surrounding the au’s performance in the Libyan crisis.4

Thirdly, a reckoning of the interaction between the au, un and nato in Libya belies any synergy between the understanding of key nato members – the United States (us), United Kingdom (uk) and France – and the au’s understanding of the intended outcome of the international community’s intervention in the crisis. It is beyond doubt that the phrasing of the un Security Council Resolution 1973’s core mandate, “to take all necessary measures . . . to protect civilians . . . ”, lends itself to divergent interpretations as to whether it envisages the use of military force to protect the no fly zone, but the mandate does not support a regime change. Yet the attitude of those aforementioned nato States to the resolution’s mandate raises the interesting question whether, had the au taken any measures short of authorizing or unequivocally supporting a military action against Gaddafi, the organization would have elicited a more sympathetic (or objective) evaluation of its role in Libya.5

It is not the present writer’s position – and it will be inconceivably naïve to argue – that had the au been better supported by nato and the un in its diplomatic overtures to Gaddafi’s success would definitely have resulted in the sense of the Gaddafi regime either desisting from executing its ominous threats against its people or accepting to step down. Rather, the thrust of this contribution is that analyses that tend to judge the au’s response to the Libyan crisis solely on the basis of the organization’s refusal to use or support the use of force against the Gaddafi regime miss the point. The issue at stake in Libya, as far as the au’s response was concerned, transcended the rather simplistic and narrow-minded viewpoints suggesting that the organization’s choice of strategy was principally dictated by African leaders’ desire to protect Gaddafi, coupled with resource incapacity. Not only do such restrictive analyses do injustice to the au’s role in Libya, but also they can only produce results that are skewed, lopsided and imprudent.

2 The Legal Impediments to the African Union Military Intervention in Libya

As a regional organization under Chapter VIII of the un Charter, the African Union enjoys special privileges. While regional organizations are the only entities that the Security Council can “utilize” for regional enforcement actions,6 these organizations can also initiate regional enforcement action on their own, provided they obtain the authorization of the Security Council.

The Constitutive Act of the African Union (au Act) provides the organization with an additional basis for intervening in its Member States whenever egregious international crimes have been committed. Article 4(h) asserts “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”. There have been some doctrinal debates around this provision with some suggesting that it does not apply to enforcement action at all or applies to it in addition to peacekeeping operations.7 Such an interpretation does not withstand legal analysis. This article confers the au with a “right” to intervene. In exercising this right, the au is not required to seek permission from the concerned State Party. The Union could therefore exercise the right only in situations where, without such a right, it will legally be unable to intervene.

If Article 4(h) is thus argued to apply to peacekeeping operations, then in principle, the au would have a “right” to deploy peacekeeping missions once a trigger crime under Article 4(h) is committed. The problem with this interpretation is that under general international law peacekeeping operations can only be deployed with the consent of the Host State; such operations can never arise by right.8 The au Constitutive Act recognizes this customary law principle in Article 4(j) empowering the Union to oblige a Member State that has requested its intervention under that provision. The au deployed to Darfur with the consent of the Government of Sudan, not by right. It will be implausible, therefore, to argue that Article 4(h) implicitly incorporates the same action (peacekeeping operations) that Article 4(j) explicitly legislates on.

Be that as it may, in 2003, the au adopted a protocol that amended Article 4(h) by adding a new element to the trigger crimes. The new provision asserts “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 as well as a serious threat to legitimate order to restore peace and stability to the Member State of the Union upon the recommendation of the Peace and Security Council.9

The invocation of any of the first three trigger elements (war crimes, crimes against humanity, and genocide) as a basis for acting under Article 4(h) presupposes the existence of an independent judicial or quasi-judicial ascertainment, while the new element raises very cataclysmic problems. The interaction between these two groups of crimes, so to speak, will not always be easy and, as the au intervention in Libya shows, it will require a dexterous ability to bring both to a coherent end.

2.1 Intervening in a Mass Uprising: Article 4(h) and ACDEG

The au first discussed the Libyan crisis during its Peace and Security Council (psc) meeting on 23 February 2011.10 At the time, none of the crimes enumerated in Article 4(h) had been committed, although deaths had occurred through the Libyan government’s response to the insurrection. Much as any loss of life is regrettable it will certainly be extraordinary to regard every single death that occurs during war or a civil unrest as a war crime, a crime against humanity, and much less, genocide. The characterization of these crimes as international crimes is subject to consideration of specific constituent elements the analysis of which does not form part of the present endeavour.

In placing the Libyan crisis on its agenda, the au apparently considered operating under the Lomé Declaration on the Unconstitutional Change of Government (Lomé Declaration on ucg) although, in the final analysis, it did not apply the regime.11 The most fundamental principle enunciated by the declaration forbids au Member States to resort to unconstitutional changes of government.

Article 23 of the African Charter on Democracy, Elections and Governance (acdeg) exactly reproduced the 2000 Lomé Declaration on ucg,12 except for minor cosmetic rewording and the addition of a new crime in paragraph 5. This article lists as instances of ucg (1) any putsch or coup d’état against a democratically elected government; (2) any intervention by mercenaries to replace a democratically elected government; (3) any replacement of a democratically elected government by armed dissidents or rebels; (4) any refusal by an incumbent government to relinquish power to the winning party or candidate after free, fair and regular elections; or (5) any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government.

Significant doubts have been raised as to whether the Lomé Declaration on ucg applies to mass uprising situations where armed civilians strive for control of government in those Member States. The au Commission Chairperson at the time, Jean Ping, said “the popular uprisings that occurred in Tunisia and in Egypt posed serious doctrinal problems because they do not correspond to any of the cases envisaged by the 2000 Lomé Declaration on Unconstitutional Change of Government.” Without elucidating this point, he went on to assert that “while the au, like other international players, did not anticipate these developments, it nonetheless reacted creatively”.13

Leaving aside for the moment the issue concerning the au’s response, it is important to consider the assertion that the Lomé Declaration on ucg did not cover the Arab uprisings, if not serving any other purpose, at least because the principles enunciated in the declaration have now been enacted by a charter.

The view that the Lomé Declaration on ucg does not apply to the popular uprisings requires qualification. Although he did not expatiate his viewpoint, Mr Ping seemed to imply that the popular uprisings did not fit squarely into the conventional modes for unconstitutional changing governments as enumerated in the Lomé Declaration, such as coup d’état, mercenarism, a civil war of an armed rebellion, or refusal by the concerned governments to relinquish power. The Lomé Declaration did not include amending constitutions to prolong stay in power, which was only brought about by acdeg.

A careful reading of Article IX paragraphs i–iv of the Lomé Declaration is incompatible with Jean Ping’s rather narrow interpretation of the ucg principles. True, the events in Tunisia, Egypt, and Libya did not constitute coups d’état or make clear cases for mercenarism, but it is difficult to argue that the events did not fall under paragraph 3 of the Lomé Declaration. The ultimate goal of the uprisings was to replace the concerned governments through campaigns mounted by groups consisting of ordinary civilians and ‘armed dissidents or rebels’.

The only basis upon which the ‘Arab Spring’ uprisings could be precluded from the ambit of paragraph 3 of the Lomé Declaration is where the government that was unconstitutionally unseated was not democratically elected. Whereas Hosni Mubarak and Ben Ali were in part democratically elected, even if some of the elections were questionable, Muammar Gaddafi ascended to power in Libya in 1969 through a military coup and never stood in an election until his death. Thus, while the Lomé Declaration could apply to Tunisia and Egypt, these being democratically elected governments, the Libyan rebels and armed dissidents were not constitutionally barred under the Lomé Declaration from unseating the “undemocratically elected” government of Gaddafi. Ironically, for this same reason, the au was barred from applying the ucg principles to Libya. It is possible that Jean Ping had this scenario in mind when he stated “the democratic revolution in Libya followed a different path from those of Tunisia and Egypt”.14

Thus, while the events that took place in all the countries affected by the ‘Arab Spring’ fell under paragraph 3 of the Lomé Declaration, to the extent that the governments were overthrown by “armed rebels and dissidents”, not all the governments unconstitutionally overthrown in those countries were “democratically elected” for the purpose of applying the ucg principle. Where the unconstitutionally overthrown government was not democratically elected, as was the case in Libya, then the ucg principle under the Lomé Declaration would be irrelevant.

Suppose the Gaddafi regime had been democratically elected, in which case the ucg would have been applicable to the situation in Libya, one pernicious legal problem would still have remained which might, in part, explain why the au did not apply the principle in either Tunisia or Egypt despite its applicability to the situations in those countries. The ucg principles enunciated in the Lomé Declaration had not crystallized into a legal obligation binding on au Member States at the time of the ‘Arab Spring’ since the charter that enshrined the principles had not then entered into force.

Had the au therefore attempted to apply the ucg to Libya, had it thought the situation in Libya fell under the Lomé Declaration, such a move would probably have perpetuated an illegality. When the au applied the ucg doctrine to reject the coups in its member States between 2003 and 2009,15 the continental body had done so at a considerable risk of legal challenges by those States for illegally intervening in their internal affairs. The ucg doctrine did not become an enforceable legal obligation under the au legal regime until 15 February 2012 when the acdeg entered into force. Had the au, therefore, invoked the acdeg in Libya in 2011, it might have precipitated the Gaddafi regime to challenge the legality of such a move before the African Court of Human Rights and Justice, if only to create a diversion from the conflict and provide a pretext that his government believed in the rule of law.

Assuming, arguendo to, that the au was able to invoke the ucg principle to no legal challenge from the Gaddafi regime, and that the government was democratically elected, one final practical problem would still have yet lingered. At the risk of sounding banal, the ucg principle could only be applied to prevent an unconstitutional change of government. Certainly, it was not the Gaddafi’s regime that was about to unconstitutionally unseat itself, implying that the application of ucg in Libya could only have been directed against the rebel group campaigning to remove the government by force.

In theory, the au could apply its ucg norm against the rebels. Although only au Member States are signatories to the treaty, the norm protected by the ucg is one that applies to State and non-State actors as well. This implies that the States, as signatories to the Charter, have a responsibility not to violate the ucg norm, but that they also have the duty to ensure that anyone who violates the norm is brought to account. Coups are usually planned by members of a State’s armed forces, but mercenarism is perpetrated by people who are in most cases, foreigners. If acdeg provisions were then applicable only to States and their apparatuses, it will mean that ‘mercenarism’ or uprisings perpetuated by ordinary members of the public, which unseat a democratically elected government, will not fall under acdeg. Without a shred of doubt, this will be an absurd interpretation of the Charter. Except if one will argue that the ucg provision applies only to prevent incumbent governments from unconstitutionally unseating themselves, there is no other way to construe the provision than that it applies to all the acts it prohibits regardless of who the culprit or perpetrators might be. Thus, acdeg had been successfully applied to acts committed by non-State actors who violated the norm in Mali, Niger, and Mauritania.

That said, considering the prevalent political mood in Libya and across the world at the time, it would have been unthinkable to expect that the au could have applied the ucg norm against the rebels trying to unseat a repressive government. And this pragmatic conundrum might be the other unusualness that Jean Ping referred to in his statement quoted above.

All considered, it is difficult to support the view that the au reacted “creatively” to the Libyan crisis even though, according to the then Chairperson of the organization, the Lomé Declaration did not apply to the conflict. As has been argued earlier, the ucg principle applied to the Libyan situation so that there was no need for the au to look elsewhere for inspiration as to how to respond to the situation.

However, even if one overlooks the au’s labouring in error, it remains a deep mystery what part of the au’s response in Libya its former Chairperson characterized as “creative”. Neither the au’s condemnation of the Gaddafi regime’s repression of a popular clamour for democracy nor the organization’s prospecting for a peaceful resolution of the conflict in the face of serious emergency merited such a grand epithet. Brutal repressions of the African people by their governments constitute flagrant violations of human rights obligations assumed by African States under various international and African human rights treaties. It is the au’s constitutional responsibility not only to denounce such occurrences, but also to take measures towards their prevention and redress. By the same token, the au has the obligation under its various legal regimes to seek amicable solutions to conflicts in its Member States. Therefore, if the au’s condemnation of a repressive Member State and instituting dialogues to end a crisis qualifies as “creative”, then this is a cynical approach to human rights protection in Africa by the continental organization.

It has been suggested that the au could have adapted its “newly-developed doctrine of supporting democratic uprisings” to the Libyan crisis, but chose, instead to interpret the Libyan conflict “through its more familiar lens of responding to a civil war”.16 To be accurate, the au, neither at the time of the Libyan crisis nor this writing, had developed such doctrine as described in this statement. Quite the contrary, the organization’s attitude towards democratic uprisings has always been inauspicious. The au rejected a military coup that overthrew the President Maaoya Sid’Ahmed Ould Taya’s repressive regime in Mauritania in 2010, despite wide civilian support for the military junta in that country, thereby provoking a backlash. Many Mauritanians accused the au of standing idly by while the deposed government repressed its people and committed atrocities against them, only to speedily reject its unconstitutional replacement by the people.

In a nutshell, the absence of a definitive determination that egregious crimes enumerated under article 4(h) of the au Constitutive Act had been committed by the Gaddafi’s regime at the time the au intervened in the crisis, coupled with the inapplicability of the Lomé Declaration meant that the au could not take an enforcement action under those regimes even if it had wanted to. No right to intervene in Libya had accrued to the au by virtue of the heinous crimes enumerated under Article 4(h) leaving the organization to the mercy of the only crime under that provision which is not heinous – the serious threat to a legitimate order.

One preliminary clarification is required on the consideration of “serious threat to legitimate order” as a possible legal basis upon which the au could have militarily intervened in Libya. The Protocol that amended the au Act and brought in “serious to a legitimate order” as one of the triggers of Article 4(h) has not yet entered into force even at the time of writing. However, while the application of the criterion to the Libyan crisis would have been legally deficient, the au could have nonetheless justified its invocation in Libya on the same basis it had applied the ucg long before the Charter enshrining the principle entered into force. Had the au applied the “serious threat to legitimate order” to the Libyan crisis, it would be following the tradition it established over two decades ago, of applying principles that have been generally agreed by member States notwithstanding non-ratification of codifying treaty. In all its past applications of such principles, no single Member State of the organization challenged their legality although such a legal contest remained a live possibility if any target State had chosen to go down that path. Had the au applied the amended provision of Article 4(h) of its Act in Libya, it would have been following a tradition that has become so widely and pervasively practised and accepted by its Member States as creating an obligation as to immutably constitute it into a binding custom.

2.2 One Provision: Two Possible Interpretations, One Consequence

As noted above, the 2003 amendment to the Constitutive Act of the African Union confers the organization the right to intervene if there is a “serious threat to legitimate order to restore peace and stability to the Member State of the Union upon the recommendation of the Peace and Security Council”.

The rather inelegant wording of that provision of the amended part of Article 4(h) presents an interpretative problem although, concerning the issue at hand, the impact is merely doctrinal. The first and dominant interpretation regards the provision as meaning that the au will intervene in a Member State when there is “a serious threat to legitimate order”, that is, a threat to the “legitimate government” in a country. Yet, this interpretation does not unambiguously find support in the exact wording of the provision. Interpreted as it appears in the text “serious threat to legitimate order to restore peace and stability to the Member State of the Union upon the recommendation of the Peace and Security Council”, could be construed as meaning: the au will intervene “when there is a ‘serious threat to legitimate order to restore peace and stability in a member State’ [upon the recommendation] of the Peace and Security Council”. The difference is in the first interpretation, the threat is to a “legitimate order” implying a legitimate government which is under a threat, while in the second interpretation the threat is to a “legitimate order to restore peace and stability” having nothing to do with the government in power. Under this second interpretation, the intervention will be for the purpose of enforcing a legitimate order made by the au Peace and Security in order to restore peace and security in a Member States. The psc may issue “legitimate orders”, in form of decisions contained in communiqués or declarations, concerning conflicts between two rebel groups, none of which has political powers in a country, but whose activities affects the peace and stability of the country.

While this writer acknowledges the prevalence of the first interpretation, the second interpretation cannot be dismissed and, seems more compelling for three reasons. First there is no specific interpretative guidance on the provision from the au as to foreclose other possibilities, and given that the ucg principle already forbid unconstitutional changes against democratic governments as far back as 2000, it was unlikely that the au amended its Act to recognize the principle especially when a separate Charter dealing with that same issue was already underway. Secondly, The Lomé Declaration (2000) forbid unconstitutional removal of “democratic” government. A democratic government will prima facie be a legitimate government, although not all legitimate governments will be democratic. The use of “democratic” in the Lomé Declaration (and subsequently in acdec) was precisely to signal the au’s unacceptance of undemocratic governments which may be legitimate. It will then be open to inconsistency and illogical if the au is on the one hand outlawing undemocratic governments under the Lomé Declaration and acdec, while, on the other hand, protecting “undemocratic but legitimate government” under the amended Article 4(h). Thirdly, information pertaining to the amended provision of Article 4(h) reveal that by the turn of the Twentieth Century, African leaders were gravely concerned by the frequency with which non-State parties to conflicts and other situations destabilizing Africa were undermining the Oau’s mediation efforts across the continent.17

By including the “serious threat to legitimate order” in the Article 4(h) trigger crimes, the au, by the second interpretation, extends the legal bases for its military intervention from the crimes that may trigger a conflict in the first place, such as war crimes, crimes against humanity, and genocide, to conducts that may prevent efforts to resolve such conflicts, such as refusal to implement au decisions and directives. This provision somewhat brings the au legal regime in Article 4(h) characteristically close to the one established under Article 25 of the un Charter by which un members agree to implement the decision of the Security Council, failing which they risk facing punitive measures under Chapter VII. The major difference between the two would seem that whereas Article 25 applies only to un Member States, Article 4(h) is not so circumscribed. It should be emphasized, however, that neither interpretation has been vindicated by the au practice and the second interpretation has until now not been countenanced in literature.

Regardless of which interpretation one subscribes to, the impact or consequence of the amended provision on the Libyan crisis remains the same, as to be seen in the following analysis of the application of the provision to the two possible scenarios.

2.2.1 “Legitimate Order” as “Legitimate Government”: Applying the First Interpretation to the Libyan Crisis

As argued earlier, the au could not apply ucg to Libya because the Gaddafi regime was undemocratically elected. However, an undemocratically elected government is not necessarily an illegitimate government. Thus, if we overlook the constitutive contradictions in the au outlawing undemocratic regimes through acdeg, while at the same time protecting undemocratic but legitimate regimes under the amended Article 4(h) au Act, then it follows that Article 4(h), as amended, applies to Libya by virtue of the first interpretation.

At least until the crisis in Libya was aggravated by the Gaddafi’s regime applying brutal force against its own people, the regime was deemed a “legitimate order” in Libya by the entire international community. The insurrection mounted by the opposition to compel the regime to step down from power thus constituted a “serious threat to legitimate order” under Article 4(h) as amended. Thus, if the au was unable to rely on Article 23 of acdeg to launch a military action against the Gaddafi’s regime, being one not protected by the ucg principle therein, the regime was protected under the first interpretation of the amendment to Article 4(h) but only in so far as the regime was still considered legitimate.

However, it is arguable that the Gaddafi’s regime still remained legitimate after it declared its intention to “purify” decisions from the tribes – a veiled reference to the regime’s willingness to perhaps ethnically cleanse opposition from Benghazi – and announced that it had instructed officials of the regime to effect the plan. The regime’s chilling linkage of the opposition to “cockroaches” bore all the signposts that were erected by the Interahamwe genocidaires in the prelude to the 1994 Rwanda genocide. From this point onward, to continue to regard the Gaddafi’s undemocratic regime as still legitimate would, in the words of Anthony D’Amato, “serve to dull our senses against the reality of power”.18

2.2.2 ‘Rejecting the AU Roadmap as a ‘Serious Threat to a Legitimate Order’: The Second Interpretation

Under the second interpretation, however, operationalizing the amended part of Article 4(h) implies the existence of a “legitimate order to restore peace and stability”, made by the psc, which must have been “seriously threatened” by a party to a conflict or the destabilizing situation. While this is not the place to fully engage what is or is not a “legitimate order”, it is useful to observe that the au had not adopted the word “legal”, which seems to suggest that rather than licit or lawful directives, what is contemplated here are moral, even if illegal decisions, made by the psc in order to create stability. Whether an order made by the psc is or is not legitimate in any given situation is an issue to be determined on a case-by-case basis and in full reference to the circumstances prevalent in a case. There is no doubting, however, that as the au organ entrusted with maintaining peace and security in Africa, the psc is the appropriate body to make legitimate orders for au Member States in relation to conflicts.

During the Libyan crisis, the psc made a “legitimate order” to restore peace and stability to the country when it commended to the parties to the conflict, on 10 March 2011, a “roadmap” for resolving the crisis.19 By Paragraph 7 of the roadmap, the au decided that

the current situation in Libya calls for an urgent African action for: (i) the immediate cessation of all hostilities, (ii) the cooperation of the competent Libyan authorities to facilitate the timely delivery of humanitarian assistance to the needy populations, (iii) the protection of foreign nationals, including the African migrants living in Libya, and (iv) the adoption and implementation of the political reforms necessary for the elimination of the causes of the current crisis.

Both the Gaddafi regime and the opposition movement, who were met separately by the Ad Hoc Committee of African Heads of States charged with diplomatically resolving the crisis, rejected the proposal for different reasons. Whereas the Gaddafi regime had in principle committed to the ceasefire element of the roadmap, his government had obstinately refused to discuss with, or recognize the opposition, and had continued its violence against it.20 For its own part, the opposition had flatly refused a settlement proposal that did not include recommendations for Gaddafi’s immediate departure from power. While a generous reading of the roadmap may support the view that the roadmap intended to ultimately exclude Gaddafi from any agreed solution, nothing so explicit and assuring could be deciphered from the texts.

The rejection of the au roadmap by all sides to the Libyan conflict constituted a “serious threat to legitimate order to restore peace and stability based upon the recommendation of the Peace and Security Council”. This “threat” provided the au with its most solid legal justification for taking a military intervention in Libya, had it decided on that course of action. Such an intervention will be, in substance, an enforcement action not being one invited by the Libyan State under Article 4(j) of the au Constitutive Act, but one which accrued to the organization under Article 4(h) as a result of the parties to a conflict crossing a threshold laid down in Article 4(h).

That the au did not pursue the military option in Libya, despite having a credible legal ground to do so, owes much to the extremely political nature of the crisis and the perennial division amongst au Member States on the use of force against African States. Had the au decided to use force in Libya, such an action could only be meaningful if it was taken against the Gaddafi regime and the opposition movement. Both parties “seriously threatened” the psc’s legitimate order to restore peace and stability in Libya. The right of the au to intervene in a Member State is not a right to intervene only when a member State has committed an Article 4(h) crime, but a right to physically enter into a Member State to use force against any culprit, State and non-State alike, which may have contravened the organization’s legal regimes.

Regretfully, there has been analytical remiss about considering the right of the au to act during the Libyan crisis, not only against the Libyan government which had violated a legal norm protected by Article 4(h), but also against the opposition movement which had committed the same breach, or threatened a legitimate order – for those who adopt the first interpretation discussed above. The currency of international opinions was strongly against the Gaddafi regime, and it would have been deeply unpopular, no matter how doctrinally sound or defensible, for analysts to count in the application of the rule in Article 4(h) against the insurrection. Yet, one dares to opine that it is in moments of acute sentimentalism that the role of the law as an objective regulator of rules and norms is at its highest premium.

One of the severest criticisms leveled against the Africa Union’s handling of the Libyan crisis was that it did not act decisively to protect Libyans from Gaddafi’s onslaught especially against the residents of Benghazi, the stronghold of the opposition to Gaddafi during the uprising. Whilst the au believed that it proceeded correctly to fulfill the obligation to protect human lives, which many of its members committed to at Ezulwini Swaziland in March 2005 and subsequently at the un General Assembly in New York September 2005, most of its critics contend that by not using military force against the Gaddafi regime, the au failed to discharge its responsibility to protect after Gaddafi’s government had become unwilling and unable to do the same for its people.

The disagreement between the au and its critics highlights the doctrinal uncertainty about the nature of the international responsibility to protect a people when their governments have failed in their primary responsibility to do so. In order to understand whether or not the au’s response to the plights of the Libyans met with the obligation laid down by the doctrine of responsibility to protect, it is pertinent to consider what the specific obligation of the international community is and how this is supposed to be implemented.

3 The African Union and the Residual Responsibility to Protect in Libya

The 2005 United Nations General Assembly World Summit, convoked to discuss the Millennium Development Goals (mdgs) agreed five years earlier, became more prominent for its endorsement of the responsibility to protect (R2P) doctrine, scribbled into only 2 of its 178 paragraphs contained in the World Summit Outcome Documents.21 The thrust of the R2P doctrine, as is well known,22 inheres in the principle that should a State be unwilling or unable to protect people on its territory from certain avoidable harms, then the international community, working through the Security Council, shall exercise the responsibility to protect those people.23

For the international community to exercise its remedial responsibility to protect,24 it is not only required that the territorial State is unable or unwilling to discharge its primary responsibility to protect people on its territory,25 it is equally important that the “the international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability”.26 This is the so-called three-pillar implementation strategy that the un Secretary General articulated in his 2009 report at a great length.27 The assistance envisaged in this implementation (second) pillar “had to be teased out of the document because elements of it are scattered throughout the three-paragraph text”.28 It is accepted though that this assistance includes preventative measures, offered States to enable them develop strong and democratic institutions, and reactive measures to enable them protect civilians from avoidable harms.

In his 2009 Report, which fully articulated R2P, the un Secretary-General said, in commenting on what constitutes “assistance” under the second pillar, that “in addition to persuasive measures and positive initiatives, pillar two could also encompass military assistance to help beleaguered States deal with armed non-state actors threatening both the State and its population.”29 This counsel by the Secretary-General is important both for the au and for States and regional organizations in general for two broad reasons. First, by raising the possibility that the international community can provide a beleaguered State with military assistance to enable it deal with insurrections that threaten both the State and its people, the Secretary-General opens a window for both States and regional organizations to implement R2P without securing the Security Council authorization. The military measures envisaged by the Secretary-General under pillar two more concerns the mere provision of materials to a State, and not the actual use of force contemplated under the third pillar.

One question that may be raised in connection with provision of assistance to a State, in form of military materials short of actual use of force to support it, is whether such an act engages the responsibility of the States rendering the assistance, or an internationally wrongful act. While this line of inquiry is doctrinally important, we will not pursue it here. Rendering such assistance as is suggested by the un Secretary General in his 2009 Report would appear to fall short of the threshold established by the International Court in the Nicaragua case,30 for the purpose of a full analysis. The Court in that case distinguished between offering a generic assistance and offering an assistance that is specific and which demonstrates that the assisting State must be in “effective control” of the actions of the assisted. In any case, any legal contestation of such measures as counseled by the un Secretary General will most likely only be brought by a State against which an assistance is rendered. Since in the present hypothesis the assistance would have been rendered to Libya, that State would obviously not have challenged the legal assistance provided for it. Whatever issues may remain on this theme belongs to the realm of state responsibility which is not the concern of the current endeavour.

Secondly, any State(s) or regional organization, which may render military assistance to a beleaguered State under pillar two also avoid the doctrinal debate about who may implement the residual responsibility usually associated with pillar three. Since the provisions of military assistance to a State under pillar two does not involve a direct use of force which, under pillar three, is believed to belong exclusively to the Security Council, the concerned States or regional organization will effectively not be usurping the Security Council’s powers to take enforcement action under pillar three. So far no one has yet argued that only the Security Council may implement the pillar two of R2P. And if, as suggested by the Secretary General, the provision of military assistance within that pillar does not go beyond giving a troubled State ammunitions to deal with non-State actors destabilizing it, and such assistance is rendered only “in addition” to persuasive measures, it remains to be seen why the Security Council authorization should be a requirement.

In encouraging the Gaddafi regime to cease attacks on its own people and find an amicable solution to the crisis, the au would appear to be rendering to Libya the kind of assistance projected under paragraph 138 of the wsod, which should in turn, lead to a better protection regime for the civilians whose lives were in great peril especially in Benghazi.31 It is of no relevance to the issue at hand, save automatically quashing the first pillar’s obligation, that it was the Gaddafi’s government that was responsible for endangering the lives of the Libyan population. The international community’s obligation to assist the territorial State meet its primary responsibility, as condition sine qua non to the former exercising its residual responsibility, is neither linked to, nor constrained by, an a posteriori determination of the source of the violation.

The opportunity provided by the au’s rapproachment with Gaddafi’s regime, apparently inspired by the Union’s desire to find a political solution to the crisis, was not embraced by the un and nato in the run up to the alliance’s military intervention in Libya. The proposal by the Ad Hoc Committee of Heads of States, meeting in Nouakchoutt Mauritania on 19 March 2011, to fly to Tripoli on 20 March for a meeting with Gaddafi strangely coincided with the official commencement of the ‘no fly zone’. When the au contacted nato and the un about its impending trip to Libya, the unambiguous message from the duo was that they could not guarantee the safety of the flight.32 One would have hoped that considering that nato was responding to a Chapter VII resolution to take enforcement action against a un Member State in circumstances that, without the resolution, nato could not have legally been involved, the Security Council would have been able to delay the commencement of the no fly zone until the au had accomplished its trip.33

Of course, such a wishful thinking does not synchronize with the cynical relationship that has evolved between nato and the Security Council.34 While the alliance continues to disavow being bound by Chapter VIII of the un Charter, it has consistently responded to Security Council resolutions that are specifically addressed to regional organizations or agencies but without subjecting itself to the responsibility that comes with Chapter VIII. In this cherry-picking interaction between nato and the Security Council – in which nato steps in and out of the Chapter VIII framework as it pleases – it is often impossible to distinguish between the un interest and nato interest in a conflict. It does not help that the three key members of nato whose interest converged in Libya – us, uk and France – are also three of the five permanent Security Council members whose concurring or no negative votes are necessary for any Security Council resolution authorizing any control over nato to pass. On 9 April 2011, the un eventually gave permission to the African Union Committee to fly into Tripoli (to meet Gaddafi) and to Benghazi (to meet the opposition). However, by this time considerable momentum had been lost and either side to the conflict had consolidated its position and stiffened its resolve against any meaningful compromise.

It will be difficult to argue that either the un Security Council or nato deliberately exacerbated Libya’s crisis so as to find the excuse to expel Gaddafi’s regime.35 But it is not unreasonable to argue that neither the un nor nato offered enough assistance to the Gaddafi regime to enable it discharge its responsibility to protect within the meaning of paragraph 138 wsod. un Secretary-General Ban Ki-Moon elucidated that the assistance implied by the second pillar may be either “of a structural or of an operational nature”. “Structural prevention”, he explains, “seeks to change the context from one that is more prone to such upheavals to one that is less so. Its timeline is more extended and its results harder to perceive or measure”. “Operational prevention”, he observes, “strives to avert what appears to be the imminent threat of an atrocity”.36 The structural assistance, if it was ever offered to Libya before the crisis started, had not succeeded in weaning the country from upheavals. In any case, considering the nature of the Gaddafi regime, it would be naïve to imagine that Libya would have made itself amenable to such structural assistance. The cogent question, though, is whether the international community, especially nato and the un, rendered to Libya any “operational assistance” aimed at averting what appeared to be an imminent threat of atrocity before intervening in that country.

If the Security Council was subtler in its pretences that it regarded the au’s efforts in Libya any more attention deserving than including a platitudinous recital in Resolution 1973 to the organization’s credit, nato was arguably far more conceited in its posturing. nato’s stance in March 2011 that it “is not engaged in Libya to decide the future of the Libyan people”,37 had changed, barely three months later, to “the game is over for Gaddafi. He should realize sooner rather than later that there’s no future for him or his regime.”38 There was no attempt by nato to coordinate its activities with the au, nor did the un, in its own right, behave in any manner that would likely inspire close collaborations between it and African regional organizations in the future.

There is no mistaking, however, that nato’s collective push for a regime change in Libya coincided with the vigorous individual efforts by Britain and France to oust Gaddafi.39 That the Americans too had decided to oust the Gaddafi regime, even before nato took over the mission from them would not seem to be in serious doubt. On 16 March 2011, the US Ambassador to the un, Susan Rice, stated that

We need to be prepared to contemplate steps that include, but perhaps [should] go beyond, a no-fly zone at this point, as the situation on the ground has evolved, and as a no-fly zone has inherent limitations in terms of protection of civilians at immediate risk.40

The un and nato’s approach to the Libyan crisis highlights the delusion in the assumption that there could be a disparity between the two organizations agenda when there is unanimity of interest between the uk, France, and us. It is fair to say that how the un Security Council would move in its dealing with nato in any particular conflict is largely guided by the interest of these three members and, with luck, with some understanding from Russia and China. The synchroneity of these three States’ interests dovetailed with a relative lack of strategic interest of Russia and China in Libya made the military action against the Gaddafi regime possible. From the moment the ‘no fly zone’ entered into force, the forcible removal of the Gaddafi’s regime appeared to be the only item on the un/nato menu.

4 Concluding Remarks

The au intervention in Libya attracted some of the most vitriolic criticisms any international organization ever drew from academic analysts in recent memory. Reasons for au’s condemnation vary considerably. For some, the au’s diplomatic approach to the Libyan crisis was typical and a façade for its gross incompetence and disinterestedness in managing African conflicts let alone in using military force against its erring Member States. For others, the au prefers to trade lives of ordinary Africans for the protection of its Member States’ governments.

It is untenable, if not totally irresponsible, to seek to absolve the au from all of the charges leveled against it. If the Union has learnt any lessons from its response to the Libyan crisis, one would hope it is that there is no point attempting to dialogue with the deaf. The au’s initial response to Libya, which was to seek amicable solution to the crisis, made total sense in the first few months of the crisis. Offering any assistance, which might enable the Gaddafi regime to halt the violence and offer protection to its people, was entirely accordant with the scheme for implementing the responsibility to protect. The African Union, it is contended, did what was right and cannot be faulted on this front.

However, at the moment it became clear that Gaddafi was not sincere about accepting any solution that would either include the opposition or preclude his involvement in Libya’s future government, the African Union should have immediately changed its strategy and the rules of engagement. If massive violations of Libyans’ rights were not present when the au first intervened in Libya, they certainly surged after the two sides had rejected the roadmap and intensified their campaign. For the au to have then continued to hope that Gaddafi would back down from his high pedestal of irredeemable delusion and accept the illegitimacy of his continuing to govern the same people he had threatened to exterminate like cockroaches was to revel in the most astounding exercise in unctuous diplomacy.

The au also missed an opportunity at the initial stage of its intervention, to rein in the excesses of the opposition. When it became clear that the opposition was armed and intended violence against the State and the people – an intention it manifested by rejecting the au roadmap despite the Gaddafi regime’s acceptance of the ceasefire, the au could have changed its course of action. Such an action would be deemed legal under the interpretation of the amended version of Article 4(h) that views “legitimate order” as “legitimate government”, either on the basis of the first interpretation or the second.

It would have been more credible and prudent, in my view, if analysts had more comprehensively reflected on the various legal complexities surrounding the au in Libya and which conditioned the Union’s approach, at least as far as its initial choice of strategy was concerned. This is particularly the case concerning the lack of analysis on the applicability of the au legal regime against the opposition. The point being made here is not that every commentator must come to the same conclusion as the other, but no one can deny that a more disinterested approach would better guarantee astute analysis and more balanced conclusions.

For its part, the au has blamed the unbalanced nature of reporting on African issues on “either lack of exposure in the mainstream media, marginalization and misrepresentation or outright silencing”.41 But the organization must also take responsibility for inflicting an incredible poverty of articulation upon itself. Very rarely does the au legal department, for instance, make public the legal basis upon which it is intervening in a conflict. While no one expects the au officials to hold a university-type seminar on such issues, some indications about the legal regimes covering its actions will go a long way in ensuring understanding and transparency of its activities. Unfortunately, when an organization embraces an inscrutable and opaque information management system, and every harmless request to grant access to the most banal information is treated as an assault on the organization’s local ownership of the process, it will be difficult to accuse observers of misrepresentation or silencing. On this front, it is difficult to resist the temptation that the au is its own worst enemy.

The au is perhaps as guilty of hyperbolizing its fears and concerns about how Western nations deal with African conflicts as commentators are in reporting and analyzing such conflicts. To regard every international community’s disagreement with an au’s approach to an African conflict as a manifestation of some clandestine plan by the West to recolonize Africa is just as sarcastic and disingenuous as treating every au’s disagreement with the West’s approach to an African conflict as a confirmation of the organization’s dubiety, unreliability or utmost uselessness.

Acknowledgements

Many thanks to Dan Kuwali and Mutsa Mangezi for their comments on an early draft, and to my intern, Benjamin Maiangwa, for editorial assistance. All errors remain mine.

1 See A. Perry, ‘Africa’s Feeble Response to Libya’, Time World (6 February 2011), available online at http://world.time.com/2011/02/26/africas-feeble-respond-to-libya/ (accessed 10 November 2013); Observatoire del’Afrique, ‘The African Union’s role in the Libya and Côte d’Ivoire conflicts Africa Briefing Report’ Brussels (16 May 2011), available online at http://www.obsafrique.eu/wp-content/uploads/2011/06/ABLibya-Report_11-07-2011.pdf (accessed 12 November 2013); Ndumba J. Kamwanyah, The African Union’s Indifference on Libya, Foreign Policy Association (24 August 2011), available online at http://foreignpolicyblogs.com/2011/08/24/the-african-union%e2%80%99s-indifference-on-libya/#comments (accessed 10 November 2013); E.Y. Omorogbe, ‘The African Union, the Responsibility to Protect and the Libyan Crisis’, 59 Netherlands International Law Review (2012), 141–163.

2 J. Ping, ‘African Union Role in the Libyan crisis’ Pambazuka News, Issue 563 (15 December 2011), available online at http://www.pambazuka.org/en/category/aumonitor/78691 (accessed 24 November 2013).

3 Article 4 of the Protocol on Amendments to 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, available online at http://au.int/en/sites/default/files/PROTOCOL_AMENDMENTS_CONSTITUTIVE_ACT_OF_THE_AFRICAN_UNION.pdf (accessed 13 November 2013). For an analysis of this provision on “legitimate order”, see M.T. Alefe, ‘Power to the People: The Right to (sic) Intervene of the Union to Restore ‘Legitimate Order’ under Article 4(h) of the African Union Constitutive Act’, submitted to the Central European University in partial fulfillment for the Degree of Master of Laws in Human Rights, available online at http://www.etd.ceu.hu/2010/meles_tewodros.pdf (accessed 13 November 2013); D. Kuwali, ‘Art. 4(h) + R2P: Towards a Doctrine of Persuasive Prevention to End Mass Atrocity Crimes’ (2008–2009), available online at http://www.hks.harvard.edu/cchrp/research/2009/Kuwali_TOWARDS_A_DOCTRINE_OF_PERSUASIVE.pdf (accessed 13 November 2013).

4 This issue for consideration here is not concerned with the question who may exercise the international residual responsibility, which is another question entirely.

5 For arguments against the military intervention in Libya, see M.E. O’Connell, ‘How to Lose a Revolution’, in T.G. Weiss, R. Thakur, M.E. O’Connell, A. Hehir, A.J. Bellamy, D. Chandler, R. Shanahan, R. Gerber, A. Williams and G. Evans, The Responsibility to Protect: challenges & opportunities in light of the Libyan intervention (e-International Relations, Oxford, 2011), pp. 14–15; available online at http://www.e-ir.info/wp-content/uploads/R2P.pdf (accessed 13 December, 2013).

For arguments leaning more heavily towards a military resolution of the conflict, see Ibid., T.G. Weiss, ‘Wither R2P?’, pp. 6–7; R. Tharkur, ‘R2P, Libya and International Politics as the Struggle for Competing Normative Architectures’, pp. 12–14. Tharkur celebrated the triumph of nato in enabling the un “to deploy international force to neutralize the might of a thug [read Gaddafi] and intervene between him and his victims with reduced civilian causalities and little risk of military causalities.”

6 Organizations as nato have known to have also been utilized by the Security Council. However, such utilization does not fall under Chapter VIII.

7 See D. Kuwali and F. Viljoen (Eds), Africa and The Responsibility to Protect: Article 4(h) of the African Union Constitutive Act 9 (Routledge, London, 2013).

8 United Nations, Handbook on United Nations Multidimensional Peacekeeping Operations (United Nations, New York, NY, 2003), available online at http://www.peacekeepingbestpractices.unlb.org/Pbps/library/Handbook%20on%20UN%20PKOs.pdf (accessed 2 November 2013); W. Durch (Ed.), The Evolution of UN Peacekeeping. Case Studies and Comparative Analysis (Palgrave Macmillan, London, 1993).

9 The italicized part was the element added to the provision.

10 See Ping, supra note 4.

11 Ibid.

12 Entered into force 15 February 2012, available online at http://www.au.int/ en/sites/default/files/AFRICAN_CHARTER_ON_DEMOCRACY_ELECTIONS_AND_GOVERNANCE.pdf. See S.-A. Elvy, ‘Towards a New Democratic Charter on Democracy, Election and Governance’, 27 Emory International Law Review (2013), 41–116, at p. 42; E.R. MacMahon, ‘The African Charter on Democracy, Election and Governance: A Positive Step on a Long Path’, Open Society Institute, African Governance and Advocacy Project, AfriMAP, May 2007, available online at http://www.afrimap.org/english/images/paper/ACDEG&IADC_McMahon.pdf (accessed 12 December 2013; P.J. Glen, ‘Institutionalizing Democracy in Africa: Comment on the African Charter on Democracy, Elections and Governance’, 5 African Journal of Legal Studies (2012) 119–146; C.M. Fombard, ‘African Union, Democracy and Good Governance’, available online at http://www.google.com/url?sa=t&rct=j&q=Manga+Fombard%2C+‘African+Union%2C+Democracy+and+Good+Governance’&source=web&cd=1&ved=0CC0QFjAA&url=http%3A%2F%2Fkms1.isn.ethz.ch%2Fserviceengine%2FFiles%2FISN%2F96254%2Fichaptersection_singledocument%2F2e507779-2d13-4639-82f6-e5f58952675f%2Fen%2F32_01.pdf&ei=UzapUoHRNYWqhQeat4CgBw&usg=AFQjCNGonlTKqL5qNzIbb6RSSHjSgHWFvw (accessed 13 December 2013).

13 See Ping, supra note 4.

14 Ping, supra note 4.

15 Sao Tome and Principe (2003); Togo (2005); Mauritania (2005 and 2008); and Madagascar (2009). See more at http://forums.ssrc.org/kujenga-amani/2013/11/05/mediating-in-madagascar-bypassing-the-au-ban-on-coup-legitimization/#sthash.PVlBtybt.dpuf.

16 See A. Bellamy, ‘The African Union and the Libya Conflict of 2011’, World Peace Foundation, Reinventing Peace, 19 December 2011.

17 Information obtained from representatives of certain States to the au, concerning the discussions around the amendment, has not been made public at the time of writing.

18 A. D’Amato, ‘The invasion of Panama was a lawful response to tyranny’, 84 American Journal of International Law (1990), 516–514, at p. 517.

19 The psc had set up a Ad Hoc Committee of Heads of State, headed by the Mauritanian President, Mohamed Ould AbdelAziz to spearhead the diplomatic effort to end the conflict.

20 On 11 April, a delegation of the African Union visited Libya and met with Gaddafi’s regime. The au claimed that “The brother leader [Gaddafi] delegation has accepted the road map, as presented by us. We have to give a ceasefire a chance.” See Andrew England in Benghazi, Roula Khalaf in London and Peggy Hollinger in Paris, ‘African Union mediators arrive in Benghazi’, Financial Times (11 April 2011), also available online at http://www.ft.com/intl/cms/s/0/b853de36-63b7-11e0-bd7f-00144feab49a.html#axzz1r6ugaNmY (accessed on 4 April 2012).

21 un Doc. A/60/L.1, Integrated and coordinated implementation of and follow-up to the outcomes of the major United Nations conferences and summits in the economic, social and related fields, Follow-up to the outcome of the Millennium Summit, adopted by the General Assembly at its 59th session, 15 September 2005.

22 Paragraphs 138 and 139 wsod. For a general discussion on R2P, see A.L. Bannon, ‘The Responsibility to Protect: The un World Summit and the Question of Unilateralism’, 115 Yale Law Journal (2006), 1157–1164; M. Kalkman, ‘Responsibility to Protect: A Bow Without an Arrow’, 5 Cambridge Student Law Review (2009) 75–92; P.D. Williams, ‘From Non-Intervention to Non-Indifference: The Origins and Development of the African Union’s Security Culture’, 106 African Affairs (2007), 253–279; J. Sarkin, ‘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’, 53 Journal of African Law (2009) 1–33; C.C. Joyner, ‘ “The Responsibility to Protect”: Humanitarian Concern and the Lawfulness of Armed Intervention’, 47 Virginia Journal of International Law (2006–2007), 693–723; D. Kuwali, ‘The Conundrum of Conditions for Intervention under article 4(h) of the African Union Act’, 17 African Security Review (2008), 90–110; L. Arbour, ‘The Responsibility to Protect as a Duty of Care in International Law and Practice’, 34 Review of International Studies (2008), 445–458; T. Chataway, ‘Towards Normative Consensus on Responsibility to Protect’, 16 Griffith Law Review (2007), 193–224; A. Bellamy, ‘The Responsibility to Protect – Five Years On’, 24 Ethics and International Affairs (2010), 143–169; J. Brunnée and S. Toope, ‘Norms, Institutions and UN Reform: The Responsibility to Protect’, 21 International Law and International Relations (2005–2006), 121–137; D. Helly, ‘Africa, the eu and R2P: Towards Pragmatic International Subsidiarity?’, Internationale Politik und Gesellschaft (2009), 45–58; A. Bellamy, ‘Conflict Prevention and the Responsibility to Protect’, 14 Global Governance (2008). 135–156; S. Wills, ‘Military Interventions on Behalf of Vulnerable Populations: The Legal Responsibilities of States and International Organizations engaged in Peace Support Operations’, 9 Journal of Conflict and Section Law (2004), 387–418; J. Garrigues, The Responsibility to Protect: From an Ethical Principle to an Effective Policy in La Realidad de la Ayuda (Intermón Oxfam, 2007). See A.J. Bellamy and P.D. Williams, ‘The New Politics of Protection? Côte d’Ivoire, Libya and the Responsibility to Protect’, 4 International Affairs (2011) 825–850; C. Keeler, The End of the Responsibility to Protect?, Foreign Policy Journal (12 October 2011), available online at http//:www.foreignpolicyjournal.com/2011/10/12the-end-of-the-responsibility-to-protect/ (accessed on 27 March 2012; H. Roberts, Who said Gaddafi had to go?’, London Review of Books (17 March 2011), available online at http://www.lrb.co.uk/v33/n22/hugh-roberts/who-said-gaddafi-had-to-go (accessed on 27 March 2012).

23 A State’s responsibility to protect people on its territory is not limited to its own citizens, but to everyone which is on the State’s territory whether citizens or foreigners.

24 This secondary responsibility is sometimes called “remedial” or “residual” given that it arises only after the State with the primary responsibility has failed its duty to do so.

25 The “people” here does not refer only to the citizens of a country but to everyone who is on the territory of that country. Limiting the definition of “people” to citizens, as Edward Luc observed, would have “fuelled the dangerous divisions of identity politics that afflict some troubled societies”. Edward Luck, in Hoffmann and Nollkaemper, supra note 14, at 41.

26 Paragraph 138 wsod. On the different question who has the responsibility to implement R2P remedially following the failure of the territorial state from exercising its primary responsibility to protect its people, see the Secretary General Report on ‘Implementing the Responsibility to Protect’ (2009) A/63/677, and the Secretary General Report (2011), ‘The role of regional and subregional arrangements in implementing the responsibility to protect’ un Doc. A/65/877-S/2011/393. For a discussion of various theories and perspectives, see especially J. Pattison, ‘Assigning Humanitarian Intervention and the Responsibility to Protect’, in Hoffmann and Nollkaemper, supra note 14, at 173; J. Pattison, Humanitarian Intervention and Responsibility to Protect: Who Should Intervene? (Oxford University Press, Oxford, 2010); D. Miller, The Responsibility to Protect Human Rights, Working Paper Series SJ006, Centre for the Study of Social Justice, the University of Oxford (2007);

27 Implementing the Responsibility to Protect: Report of the Secretary General, A/63/677, 12 January 2009.

28 Hoffmann and Nollkaemper, supra note 14, at 42.

29 Report of the Secretary General, Implementing the Responsibility to Protect, 2009, supra, at para. 29.

30 Nicaragua v. usa (1986) icj Rep 14 (The Military and Paramilitary Activities in and against Nicaragua, para. 195. But see the Dissenting Opinion of Sir Robert Jennings, at 543 et seq; Judge Schwebel, 155.

31 Decision on the Peaceful Resolution of the Libyan Crisis, 25 May 2011, EXT/ASSEMBLY/AU/DEC/ (01.2011).

32 For some interesting views of the nato’s reception of the au’s diplomatic efforts in Libya, see H. Campbell, Global NATO and the Catastrophic Failures in Libya: Lessons for Africa in the forging of African Unity (us Library of Congress, Washington, dc, 2013).

33 For an assessment of the legality of No Fly Zone in International Law (2011), see J. Gertler, C.M. Blanchard, C. Dale and J.K. Elsea, No-Fly Zones: Strategic, Operational and Legal Considerations for Congress. Congressional Research Service (Prepared for Members and Committees of Congress), 7–5700, available online at http://www.crs.gov; See N. Figà-Talamanca, ‘The Role of nato in the Peace Agreement for Bosnia and Herzegovina’, 7 European Journal of International Law (1996) 164–175.

34 E. de Wet, ‘Regional organisations and arrangements and their relationship with the United Nations: the case of the African Union’, in M. Weller (Ed.), The Oxford Handbook on the Use of Force (Oxford University Press, Oxford, forthcoming).

35 But see Campbell, supra, at 135 et seq.

36 Report 2009, supra.

37 See Press Briefing, 31 March 2011.

38 According to nato Secretary General, Anders Fogh Rasmussen, “The game is over for Gaddafi. He should realize sooner rather than later that there’s no future for him or his regime.” See A. Arce, ‘NATO says Gaddafi’s time is up’ The Sydney Morning Herald (9 May 2011), also available online at http://news.smh.com.au/breaking-news-world/nato-says-gaddafis-time-is-up-20110509-1eeit.html (accessed 4 April 2012).

39 David Cameron, the British Prime Minister, argued that ‘to end the suffering of the Libyan people’, he said in March, ‘Gaddafi and his clique must leave.’ See Daily Mail (27 July 2012), also available online at http://www.dailymail.co.uk/debate/article-2019025/Libya-news-David-Camerons-sorry-retreat-Gaddafi.html#ixzz1r6rBFuYA (accessed on 4 April 2012). The French President, Nicolas Sarkozy said, as early as February 2011, that “Mr Gaddafi must leave”, see ‘Libya: Nicolas Sarkozy calls for Col Gaddafi to step down’, The Telegraph (25 February 2011), also available online at http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/8348009/Libya-Nicolas-Sarkozy-calls-for-Col-Gaddafi-to-step-down.html (accessed on 4 April 2012).

40 Remarks by Ambassador Susan E. Rice, u.s. Permanent Representative to the United Nations, at the Security Council Stakeout on Libya, New York, ny, 16 March 2011.

41 See Ping, supra note 4.

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