Forceful intervention for human rights protection in Africa: resolving systemic dilemmas in theimplementation of the African Union's right of intervention

Abstract

This thesis examines the legal and political dilemmas in the implementation of the African Union’s (AU) ‘right’ of forceful intervention through a systemic method of analysis. It first addresses the question of whether the AU’s intervention system represents a paradigm shift in international law on intervention and the authorization role of the United Nations. It examines whether there is a justifiable basis for the implementation of the AU’s intervention mandate outside the UN system, while taking into account the necessity of the international rule of law. It then analyzes the manner in which the failure to institutionalize the concept of sovereignty as responsibility within the AU system has contributed to the Union’s failure to implement its intervention mandate even within the UN system.

The AU’s legal framework expressly grants the Union the mandate to forcefully intervene in a member state in situations of genocide, crimes against humanity and war crimes. However, the failure of the AU’s legal framework to explicitly require authorization by the Security Council for intervention (as required by the UN Charter) has led to uncertainty on the envisaged implementation mechanism, including allegations of its inconsistency with the UN Charter and international law. The Security Council may, however, be ineffective in granting authorization due to the use of the veto. There is, therefore, the question of whether the AU’s legal framework exemplifies the crystallization of a customary law permitting humanitarian intervention, or is consensual (since African states have agreed by treaty to such intervention) and consequently, Security Council authorization is not mandatory.

The core argument of this thesis is that although the necessity for the international rule of law restricts African Union’s forceful interventions to United Nations authorized enforcement action, robust intervention by the Union within that framework is compromised by a systemic failure of institutionalization of the concept of sovereignty as responsibility.

This thesis recommends that for robust implementation of the African Union’s intervention mandate within the UN system, alternative authorization from the General Assembly be sought where the Security Council is ineffective. However, implementation of the AU’s intervention mandate within the UN framework is compromised by continued concerns of protecting traditional concepts of unfettered sovereignty. This is evident in non-intervention oriented clauses within the AU’s legal framework (which negate the intervention mandate) and the Union’s practice of opposing forceful interventions like in the case of Libya. Possible solutions to that predicament are examined. A systemic method of analysis is utilized in this thesis since there is an interaction of various legal norms within the AU system, in addition to the system’s interaction with environmental factors such as politics and increasing global interdependence, while it is also subject to the UN and international law systems. The significance of the research is in identifying legal, policy and contextual factors that can transform the AU into an effective regional mechanism for institutionalization of the rule of law within the African region (by deterring gross human rights violations) while safeguarding the values of the international rule of law.