Post-independent African nations were eager to enjoy their newly acquired freedom and sovereignty when they established the Organization of the African Unity (hereafter OAU). Hence, they inscribed sovereignty as the basic tenet of the OAU so that they can ‘easily’ guard their domestic affairs against outside intervention. The OAU Charter stated protection of sovereignty, territorial integrity, and independence of member states as the principles of the newly established organization.
Sovereignty is a concept that stands for an independent state that has the right to handle its domestic affairs without any external interference. However, in the current international setup, sovereignty becomes a ‘second-order norm’ and it is not as important as it used to be. Makinda, Samuel, and Okumu (2008) split the concept of sovereignty into three.
The first one is ‘juridical sovereignty’ that is conferred by the international recognition for states (ibid). ‘Empirical sovereignty’ is the other type of sovereignty that bestows states power over their domestic resources and affairs (ibid). According to this type of sovereignty, a government has a license to do whatever it wants to do on its citizens. In this Westphalian conception of sovereignty, the domestic affairs of the country are sacred and left for the concerned government only. The third conception is ‘popular sovereignty’ (ibid). This is the recent formulation of sovereignty as the responsibility of states towards their citizenry and the international community. In contemporaneous global setup, sovereignty entails responsibility on the government to protect the life and safety of the citizenry. State authorities are also liable for the failure to observe their duties towards their citizens and to the international community through the United Nations (hereinafter UN). Therefore, responsibility to protect is an obligation ‘erga omnes’(an obligation that states owe to the international community).
The International Commission on Intervention and State Sovereignty (hereafter ‘the Commission’) expressed the idea of sovereignty with a ‘less confrontational idea of responsibility to protect’ (Peters, 2009, p. 8) to evade the routine sovereignty-intervention tension. Sovereignty presumed the capacity of governments to effectively administer the country and protect the citizenry. Hence, the new dimension of sovereignty imposes a duty on the government to protect citizens from avoidable harms. The concept entails that, if the state fails to protect its citizenry, the responsibility to protect them will be borne by the international community.
The new formulation of sovereignty as a responsibility to protect is enshrined in the Constitutive Act of the African Union (hereafter ‘the Constitutive Act’ or ‘the Act’). Article 4 , letter (h) as amended by the Protocol on Amendments to the Constitutive Act of the African Union bestows a right to the African Union to intervene to avert mass atrocities (war crimes, genocide, and crimes against humanity) or/and a serious threat to legitimate order. The Act revisited the Westphalian notion of sovereignty and the absolute non-interventionism in the African continent. The revision transferred the concept of sovereignty from state to human security.
The principle of non-intervention is a natural consequence of state sovereignty. Pursuant to Article 2, (4) of the UN Charter, states have a duty to respect the territorial integrity and political independence of any state. While this provision prohibits intervention by another member states, Article 2, (7) of the Charter prevents the United Nations from intervening in the domestic affairs of any state. With the same token, Article 4, letter (g) of the Constitutive Act condemns the interfering in the internal affairs of another state.
However, in the contemporaneous global set-up, the concept of absolute non-interventionism has changed. In the emerging consensus, the state sovereignty and territorial integrity are not absolute blockades against intervention. On the other hand, responsibility to protect should not be a Trojan horse for the interveners’ selfish interest. It should be tailored for halting conscious shocking mass atrocities or restoring peace and stability. The international community may intervene into another state under the name of responsibility to protect to prevent or stop grave crimes like war crimes, genocide, and crimes against humanity.
3. The Emerging Intervention
Intervention may be considered ‘an unacceptable assault on state sovereignty’ (Kioko, 2003, p. 818) if a state intends to live in line with the Westphalian principles. However, on the new global stage where the concept of sovereignty reconstructed in terms of responsibility of states to shield their people from mass human rights violations, at times, intervention is a necessary and an acceptable evil.
The principle of sovereign equality of states is provided under Article 4, letter (a) of the Constitutive Act. Member states are also prohibited from interfering in the internal affairs of any country. However, the non-interference principle has relativised by allowing the African Union to intervene in member states to put a stop to grave human rights violations (war crimes, genocide, and crimes against humanity) and to restore peace and stability when a serious threat to legitimate order happens.
Intervention is institutionalized by the Constitutive Act of the African Union under the name of responsibility to protect. The principle of the responsibility to protect emerged from the work of Francis Deng and the report of the International Commission on Intervention and State Sovereignty (Williams 2007). Its incorporation in the Constitutive Act of the African Union is stimulated by the failure of the Organization of the African Union to end the scourge of major human rights violations in such countries as Uganda, Central African Republic, and Rwanda. The Act is the first international treaty that explicitly recognises the right to intervene in the internal affairs of a member state.
Intervention is considered as any action against the state without its consent directed at the political independence, territorial integrity or sovereignty of the nation. It may take different forms as perceived by the ICISS report as ‘actual or threatened political and economic sanctions, blockades, diplomatic, and military threats, international criminal prosecutions’, and military intervention (ICSSI, 2001, p. 8). However, in the African setting, the Constitutive Act seems to envisage a military intervention. This is because the acts that invite intervention pursuant to the Constitutive Act are crimes that are ‘likely to occur in the context of armed conflict’ (Kindiki, 2003, p.9). Because of that, military intervention is an apt form of intervention to address these heavy breaches of laws. Yet, a military intervention should only be preferred as a last resort when the other less-intrusive mechanisms have failed.
Interventions that take place with the invitation of the host country are out of the boundaries of the conception of intervention by the ICISS and by the Constitutive Act. The notion of intervention gained the present currency mainly due to the ICISS Report. Besides, the Constitutive Act is short of criteria except setting forth the just causes that warrant intervention. Therefore, it is pertinent to discuss the six conditions pointed out by the Report that must be observed before launching a military intervention. These criteria are ‘right authority, just cause, right intention, last resort, proportional means, and reasonable prospects’ (ICISS, 2001, p.32).
According to the ICISS report, the UN Security Council should grant a prior authorization for the intervention. This is a controversial point of the concept of intervention. Despite the UN Charter and Commission empowerment of the Security Council to authorise a military intervention, the Constitutive Act, and the Protocol Relating to the Establishment of the Peace and Security Council of the AU do not envisage a prior authorization.
In the ICISS report, ethnic cleansing and genocide are the causes that may trigger an override of the non-intervention principle. The circumstances that are envisaged by the Constitutive Act are genocide, crimes against humanity, war crimes, and serious threat to legitimate order. This shows a certain dissonance between the report and the Constitutive Act. The crimes of ethnic cleansing fall under crimes against humanity and genocide as defined by the Statutes of the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia. However, the Constitutive Act went as far as to include war crimes and serious threat to legitimate order. War crimes, as part of mass atrocities and grave human rights violations, fall as a ‘just cause’ pursuant to the report. ‘Serious threat to legitimate order’ has no any international or regional definition and may be predisposed to abuse. Baimu and Sturman argue that this circumstance is not compatible with the other conditions enshrined under the Constitutive Act (2003).
Moreover, they stress that this condition focuses on state security and is a deviation from the humanized sovereignty concept (ibid). Prevention of mass atrocities is meant for the protection of the people from human rights violation, but prevention of ‘serious threat to legitimate order’ is inscribed to uphold state security. It may be difficult to imagine human rights and human security without the prevalence of legitimate order. However, its seriousness may not warrant overriding the non-intervention principle.
The other element that the Commission incorporated in its report is ‘right intention’. The primary aim of the intervention should be to stop the causes that triggered the intervention. Intervention should be tailored ‘to halt or avert human sufferings’ (ICISS, 2001, p.35). The occupation of territory and the overthrow of the regime may be right measures to lighten the human sufferings, but they should not be the primary intentions of the intervention. Restoring peace and stability is another ‘right intention’ of an intervention under the AU framework.
The other criteria of the Commission dictate the utilisation of military intervention as a last resort. Since military intervention is controversial and a serious breach of state sovereignty, it must be applied as a last option. Though it seems circumstances that trigger intervention cannot be averted without military intervention, less intrusive measures must be exhausted before military deployment. Additionally, military intervention is only justified if it is proportional and has a reasonable chance of achieving its aims.
4. Normative and Practical Problems of Intervention
Whether the intervention seen by the Constitutive Act is compatible with the UN Charter is a controversial point. Article 2, (4) of the UN Charter prohibits ‘threat or use of force against the territorial integrity and political independence of any the state’. Contrasting with this provision, the Constitutive Act allows the use of force against any member state to prevent or stop mass atrocities or to restore peace and stability. Ostensibly, these points are not compatible. However, some commentators argue that the intervention envisaged by Article 4, letter (h) is not directed against the territorial integrity or political independence of the state, but rather to prevent mass atrocities or threat to legitimate order (Kuwali, 2015 and Kindiki, 2003). Therefore, the provision of the Act is not in contrary to the Charter.
Kuwali pointed out that the conditions seen by the original Article 4, letter (h) of the Constitutive Act (war crime, genocide, and crimes against humanity) are peremptory norms that impose a duty on states either to prevent or stop their occurrence. Therefore, AU’s intervention to uphold a peremptory norm may not be against another peremptory norm - prohibition of the threat or use of force. This latter argument may not equally work for the condition of intervention inserted by way of amending Article 4, letter (h) - to restore peace and stability when a serious threat to legitimate order occur.
The other normative problem is whether the intervention conceptualised by the Constitutive Act needs a prior authorization by the UN Security Council. An intervention triggered by the reasons stipulated in the original Article 4, letter (h) of the Constitutive Act (war crimes, genocide and crimes against humanity) may be compatible with the UN Charter if it is meant for the maintenance of international peace and security and consistent with the purposes, principles of the organ, and authorized by the Security Council. Yet, neither the Constitutive Act nor the Protocol Relating to the Establishment of the Peace and Security Council of the African Union do contemplate an authorization of African Union by the Security Council before engaging in intervention. Kuwali argues that the Peace and Security Council of the AU is complementary to the UN Security Council (ibid).
Therefore, the AU may exceptionally act without authorization if the Security Council is unwilling or unable to show a green light. The latter may legitimatise the intervention ex post facto (after the intervention happened). However, Baimu and Sturman argue that an intervention taking place pursuant to the amended Article 4, letter(h) of the Act may transcend the UN Charter since the serious threat to the legitimate order of a country may not necessarily result in the disturbance of the international peace and security.
Still there are commentators who argue that intervention entails a moral duty of third parties to intervene in the domestic affairs of another state to put an end to mass atrocities (Peters 2009, p.14). A moral duty as an exception to authorisation may work for clear mass atrocities, but it is also amenable to manipulation. Under the African Union, a moral duty may be an exception to authorization for an intervention triggered by mass atrocities. However, it is still difficult to consider a moral duty as an exception for authorizing an intervention for the prevention of serious threat to legitimate order. Lack of conceptual definition makes it susceptible to abuse. It is also a regression of the concept of sovereignty from human to state security.
Besides the conceptual and normative problems, intervention under the African Union faces some practical impediments. First, an intervention demands a huge cost that goes beyond the capacity of the financially unstable African Union. Secondly, ‘logistical difficulties’ are another impediment that poses a problem for the agreement of the military deployments from different countries (Kioko, 2003, p.822). Moreover, lack of ‘political will’ that leads to disagreement to pass the decision for an intervention may be another problem.
In the international arena, sovereignty becomes a ‘second-order norm’ and it is not as it used to be. The African Union, too, has revisited the concept of sovereignty. The Constitutive Act of the African Union recognises the right of the Union to intervene in the domestic affairs of states in certain conditions. The circumstances that may prompt interventions are genocide, war crimes, crimes against humanity and serious threat to legitimate order. The Constitutive Act relativized the principle of non-intervention and humanised sovereignty.
The responsibility to protect entails an obligation on the government to its citizenry and the international community. The responsibility to the international community is an erga omnes obligation, which an obligation a state owes to the international community as a whole. The humanisation of sovereignty permits to forgo the principle of absolute non- interventionism for the sake of human rights when a state is unwilling or unable to execute its obligations. Therefore, in the contemporaneous world, sovereignty may no more be the shield of the government but of the people.
The conditions envisaged by the original Article 4, letter (h) of the Constitutive Act (war crime, genocide, and crimes against humanity) are peremptory norms that impose a duty on states either to prevent or stop their occurrence. Therefore, AU’s intervention to uphold a peremptory norm may not be against another peremptory norm - prohibition of the threat and use of force. Moreover, states have a moral duty to prevent mass atrocities. These arguments, however, may not equally work for the condition of intervention inserted by way of amendment of Article 4, letter (h) - a serious threat to legitimate order.
Neither the Constitutive Act nor the Protocol Relating to the Establishment of the Peace and Security Council of the AU does foresee an authorization of AU by the UNSC before engaging in an intervention. Nevertheless, there is also a moral duty to prevent or minimise the fallouts of mass atrocities.
Therefore, AU may intervene without authorization or its action may be legitimatised ex-post facto. The inclusion of serious threat to legitimate order as one of the circumstances that may trigger intervention is amount to back-pedaling to the anachronistic concept of sovereignty - from human to state security. This circumstance also lacks an agreed upon definition and may be manipulated to protect the government at the expense of the people.
This article was originally published in issue 4.2 of the magazine, which can be accessed here.