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The Institutionalization of Cosmopolitan Justice: The Case of the African Union’s Right of Intervention

17 June 2013
1024px-Rwandan_Peacekeepers_return_home_from_Darfur_4oct2005

Rwandan peacekeepers prepare to board a U.S. Air Force C-130 Hercules aircraft in Sudan after a stop in Abeche, Chad, on Oct. 4, 2005. The peacekeepers are departing the region and returning to Rwanda after a six-month deployment supporting the African Union Mission. DoD photo by Master Sgt. David D. Underwood, Jr., U.S. Air Force.

Girmachew Alemu Aneme*

PDF Available for Official Citation

 

 I. INTRODUCTION

In May 2001, all but one African state ratified a regional treaty, the African Union Constitutive Act, which provides for intervention inside African Union (AU) Member States against genocide, crimes against humanity, and war crimes.[1] The AU Constitutive Act is the first international treaty that institutionalized the cosmopolitan ideal of protecting people inside states against mass atrocities as a matter of common obligation. The unanimous adoption of the AU’s right of intervention is a deviation from the longstanding strict adherence to the principles of sovereignty and non–intervention by African states.[2] A number of historical and political factors may have motivated African states to promulgate the right of intervention under the AU Constitutive Act.[3] By the end of the 1990s, the high cost of strict adherence to the principles of sovereignty and non–intervention in the face of massive atrocities in African states reached its crescendo. Notably, the horror of the 1994 Rwandan genocide and the fact that it could have been prevented or stopped was still fresh in the minds of African leaders when they enacted the AU’s right of intervention.[4]

The objective of this Note is to explain the AU’s right of intervention against genocide, crimes against humanity, and war crimes in its normative and institutional context. Part two of this Note highlights the development of cosmopolitanism and intervention in order to illustrate the context and relevance of the AU’s right of intervention under international law. Part three explains the content of the AU’s right of intervention by analyzing its constituent elements. Part four describes the institutional framework for the implementation of the AU’s right of intervention. Part five offers a conclusion.

II. COSMOPOLITAN JUSTICE, SOVEREIGNTY, AND INTERVENTION

The basis for the cosmopolitan theory of justice is the notion of humanity that binds all human beings in a common moral community.[5] In the context of international law, cosmopolitanism asserts the primacy of humanity over the sovereignty of states.[6] However, the principle of sovereignty of states and its corollary principle of non–intervention, remain as pillars of international law since their formulation in sixteenth century Europe.[7] The UN Charter and the majority of subsequent resolutions, with the exception of the Genocide Convention, do not allow the use of force inside a state to stop mass atrocities committed against its inhabitants.[8] Thus, the cosmopolitan ideal that all humanity has a legitimate interest to protect members of its family faced with massive atrocities inside states is antithetical to the predominantly state–centric conception of international law.[9] Nonetheless, the growing normative and institutional prominence of human rights has led to the development of various arguments to justify the use of force inside states against mass atrocities. A case in point is the “responsibility to protect” argument in favor of humanitarian intervention that has emerged in recent years.

Humanitarian intervention is generally understood as unilateral or collective use of force against atrocities such as massive violations of human rights and humanitarian laws by state and non–state actors against inhabitants of the state.[10] Despite considerable scholarly attention and use as a justification for a number of interventions,[11] humanitarian intervention does not have a definite normative and institutional basis under international law.[12] For instance, there is no agreement among states or scholars on what kind of atrocities or which human rights violations would lead to humanitarian intervention.[13] Moreover, the lack of predictable decisionmaking procedures and institutions has led to a wide spread understanding that the concept of humanitarian intervention is used to justify the unilateral or multilateral use of force to protect the political and economic interests of powerful states.[14]

Over the years, proponents of cosmopolitan justice, the United Nations (UN), and its members have attempted to develop an acceptable framework of intervention inside states against massive violations of human rights and humanitarian laws.[15] In his Millennium Report, former UN Secretary–General Kofi Annan challenged the UN General Assembly to address the dilemma involved in intervention against mass atrocities when he asked “If humanitarian intervention is indeed an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica—to gross and systematic violations of human rights that offend every precept of our common humanity?”[16]

As a response to the Secretary–General’s Millennium Report, the government of Canada established the International Commission on Intervention and State Sovereignty (ICISS) in September 2000 to study the legal, moral, operational, and political issues involved in intervention against massive atrocities inside states and report its findings to the UN Secretary–General.[17] The ICISS submitted its most comprehensive report, entitled “The Responsibility to Protect,” to the UN Secretary–General at the end of 2001.[18] In 2005, the UN General Assembly adopted the World Summit Outcome document adopting the Responsibility to Protect on the basis of the ICISS Report.[19]

In 2006, UN Security Council Resolution 1674 endorsed the World Summit Outcome declaration on the Responsibility to Protect.[20] Even though the ICISS report on the Responsibility to Protect provides detailed arguments and explanation for the use of force against mass atrocities inside states, the world community failed to institutionalize the framework beyond general endorsement, thereby diminishing its status to a mere moral argument.[21]

III. THE CONSTITUENT ELEMENTS OF THE AU’S RIGHT OF INTERVENTION

A. “Right” vs. “Responsibility” to Intervene

The AU says that intervention is a “right,”[22] whereas the ICISS Report on the Responsibility to Protect uses the word “responsibility.”[23] The three main reasons why ICISS adopted the phrase “responsibility to protect” rather than “right of intervention” were to: (1) place more emphasis on the right of the people under mass and systematic violations; (2) make the language less confrontational; and (3) clarify that the responsibility to protect includes intervention, prevention, and rebuilding.[24]

The “right to intervene” under the AU Constitutive Act is not necessarily in conflict with the “responsibility to protect” phrase adopted by the ICISS.[25] First, many of the crimes that are grounds for the AU’s right of intervention are crimes against individuals or groups of citizens, not states; thus, the duty bearer is the State whose citizens are facing one or all of the three identified crimes.[26] Second, the AU Constitutive Act is a treaty between fifty–three African states, and therefore there is a shared collective responsibility of all state parties against the commission of genocide, crimes against humanity, and war crimes inside a Member State.[27] Third, the AU’s right of intervention refers only to the responsibility to react, not the responsibility to prevent and rebuild, and therefore is within the limits of ICISS Report.[28] It is worth noting that the AU’s mandate for prevention and rebuilding comes from a different normative and institutional framework.[29]

B. Measures of Intervention

The AU’s right of intervention constitutes forcible measures, or actions aimed at changing the behavior of identified state and non–state actors, to protect people within a Member State of the AU from genocide, crimes against humanity, and war crimes.[30] However, the AU Constitutive Act is unclear on what kinds of forcible measures constitute intervention.[31]

In general, the ICISS Report divides forcible measures into three broad categories: military, economic, and political and diplomatic forcible measures.[32] The AU’s right of intervention constitutes military forcible measures and is discernible from the African Defense and Security Policy, which states that “the existence of grave circumstances, namely war crimes, genocide, and crimes against humanity” are common internal threats.[33] As such, the commission of genocide, crimes against humanity, and war crimes in a Member State of the AU can give rise to collective action.[34] AU instruments for non–military forcible measures are notably absent in the implementation of the AU’s right of intervention, despite the fact that provisions for non–military measures are not foreign to the AU.[35] Since military forcible measures may not be applied for various reasons, the AU’s right of intervention should be interpreted to include non–military forcible measures such as economic, political, and military sanctions.[36]

C. Criteria for the Application of Military Forcible Measures

The Peace and Security Directorate of the AU Commission is supposed to develop the standards of implementation for military intervention under Article 4(h) of the AU Constitutive Act.[37] However, the Directorate has not done so.[38] The ICISS provides the following six criteria for the application of military intervention: right authority, just cause, right intention, last resort, proportional means, and reasonable prospects.[39] Most of the above criteria are drawn from the jus ad bellum principles under just war theory.[40] As will be shown below, the AU’s right of intervention implicitly contains some of these criteria.

1. Right Authority

The “right authority” criterion provides that the UN Security Council should be the first institution to which to refer for military authorization to protect people from mass human rights violations.[41] However, the ICISS recognized that in case of failure of the UN Security Council to authorize military intervention, other institutions such as the UN General Assembly can be used through the “Uniting for Peace” procedure or regional organizations.[42] The UN High–Level Panel that adopted the Responsibility to Protect, in contrast, recommended that the sole authority for authorizing the use of military intervention inside a state should be the UN Security Council.[43]

In the case of the AU, the AU Assembly passes the final decision on military intervention.[44] A relevant question is whether the AU Assembly needs UN Security Council authorization to implement its decision on military intervention inside its Member States.[45] The AU’s right of intervention is treaty–based,[46] so all members of the AU have given their consent for intervention when they ratified the AU Constitutive Act, and therefore the implementation of the AU’s right of intervention does not require UN Security Council authorization.[47] However, if a target AU Member State rejects and opposes the decision to intervene, the possible military confrontation between that Member State and the other AU Member States requires UN Security Council authorization.[48]

2. Just Cause

The “just cause” criterion relates to the grounds that can trigger military intervention inside states.[49] The ICISS stipulates that military intervention is justified under the following circumstances:

- large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state, situation; or

- large scale “ethnic cleansing,” actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.[50]

The AU Constitutive Act clearly specifies that the commission of genocide, crimes against humanity, and war crimes can trigger military intervention inside AU Member States.[51] Compared to the above grounds enumerated by the ICISS, the grounds for the AU’s right of intervention are much more precise.[52] The AU Peace and Security Council Protocol provides that the organization’s power should be understood “as defined in relevant international conventions and instruments.”[53]

3. Right Intention

“Right intention” provides that the primary purpose of military intervention operations should be limited to averting or ending violations of human rights and humanitarian laws that are grounds for intervention.[54] For instance, military intervention against genocide, crimes against humanity, and war crimes by the AU should not result in the occupation of a State or the redrawing of its borders.[55] Also, AU Member States have agreed that the use of military intervention against the commission of genocide, crimes against humanity, and war crimes “should not be used as a pretext to undermine the sovereignty, independence and territorial integrity of states.”[56]

Nevertheless, intervention operations may entail disabling the regime’s capability and could eventually lead to the removal of said regime.[57] Moreover, temporary occupation of a territory may also be necessary to protect civilians.[58] In such cases, the AU or UN should establish an interim administration until the harm is stopped and the territory is returned to its sovereign owner.[59]

4. Last Resort

The “last resort” is the fourth criterion for military intervention provided by the ICISS.[60] “Last resort” refers to the exhaustion of all non–military measures before military action.[61] In its explanation of the “last resort” criterion, the ICISS does not differentiate between non–military forcible measures and the whole set of preventive actions such as the use of diplomatic envoys and political mediation.[62] The AU’s right of intervention, however, can only be implemented once the circumstances that would trigger intervention are imminent or are already taking place.[63] Thus, within the AU, the criterion of “last resort” should generally refer to the exhaustion of the non–military preventive measures such as the application of diplomatic and political pressure on the target state.[64] The “last resort” criterion should be applied reasonably on a case–by–case basis with the purpose of avoiding the prolonged suffering of people while ineffective preventive measures are being applied instead of military forcible measures.[65]

5. Reasonable Prospects

The fifth criterion of “reasonable prospects” is the probability of a successful military intervention.[66] A basic factor which affects the success of military intervention is the power balance between the intervener and the state and non–state actors in the target state. Gareth Evans, Co–Chair of the ICISS, explains the dilemma: “This is why a military intervention to respond to the situations in Indonesia’s Aceh or Papua provinces, however much it deteriorated, can be effectively ruled out.”[67] The application of military intervention in such cases, despite the negative assessment of the “reasonable prospects” test, will lead to a greater disaster than the one military intervention is trying to avoid.[68]

The “reasonable prospects” test is the most difficult test in the implementation of military forcible measures under the AU’s right of intervention primarily because of the following factors. First, currently the development of the AU’s military capabilities is still in its infancy.[69] The establishment of strong and coordinated financial and logistical capability depends on the political will of Member States.[70] But Member States have not been able to provide the AU with contingents for much less demanding operations like observation and peacekeeping in places such as Sudan and Somalia.[71] The prospects of AU military intervention can improve with the development of the African Standby Force[72] and clearer structure for the involvement of sub–regional organizations.[73]

Second, most African states have built massive armies, spending a good portion of their revenue on acquiring sophisticated military machines.[74] Studies have shown that the existence of conflicts has caused more military expenditure and military build–up in sub–Saharan Africa.[75] Such military build–up has led to easy access to weaponry by state and non–state actors on the continent.[76] This may make military intervention highly confrontational, affecting the AU’s assessment of reasonable prospects.[77]

Third, most intra–state conflicts in Africa impact the whole sub–region because of state borders that often randomly divide ethnic groups between two States.[78] Thus, in a case of military intervention by the AU in a conflict situation, the assessment of reasonable prospects needs to include regional and sub–regional actors that may be involved in the conflict.[79] For instance, military intervention in Darfur, Sudan should take into consideration the impact on Chad, the Central African Republic, and the whole sub–region.[80]

6. Proportional Means

The proportional means criterion provides that “[t]he scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective . . . .”[81] Under the just war theory, the test of proportionality comes in to play both as part of jus ad bellum and jus in bello.[82] Under jus ad bellum standards, proportionality requires analysis of military intervention in terms of “the universal goods expected to result from it, such as securing the just cause, against the universal evils expected to result, notably causalities.”[83] Such a standard is part of the “reasonable prospects” criterion discussed above.[84] Under jus in bello standards, proportionality refers to the proportional use of force after the decision to use military intervention is made.[85]

IV. IMPLEMENTING INSTITUTIONS

The AU’s right of intervention is provided with specific institutions for its implementation. The major implementing institutions will be explained below.

A. The AU Assembly

The power to pass the final decision on the AU’s right of intervention lies with the AU Assembly.[86] The AU Assembly decision in favor of intervention contains, inter alia, the following: (1) decision on the existence of at least one of the grounds of intervention under Article 4(h) of the AU Constitutive Act;[87] (2) decision on the failure or inability of the target state to protect the population inside its borders from the crimes;[88] (3) decision on the applicability of non–military and/or military forcible measures;[89] and (4) the framework within which the measures are to be implemented.[90]

The AU Assembly is the supreme decisionmaking organ of the Union.[91] It is composed of the Heads of State and Government of all Member States of the AU, or their accredited representatives.[92] The Assembly meets at least once a year in an ordinary session and convenes for an extra–ordinary meeting at the request of a Member State and at the approval of a two–thirds majority of Member States.[93] The decisions of the Assembly are made either by consensus or by a two–thirds majority of the Member States of the Union.[94] The Assembly is led by a Chairperson, elected from among the heads of state or government, for a period of one year.[95] The AU Assembly decision passes the final decision on intervention on the basis of the recommendation of the AU Peace and Security Council.[96]

B. The AU Peace and Security Council

The AU Peace and Security Council is a permanent decisionmaking organ for the prevention, management and resolution of conflicts in Africa.[97] The Peace and Security Council is supported by the AU Commission, the Panel of the Wise, the Continental Early Warning System, an African Standby Force and the Peace Fund.[98]

The Member States of the Peace and Security Council are fifteen in number and elected by the AU Assembly based on the principles of equitable regional representation and rotation.[99] There are three members from the center, three members from the east, two members from the north, three members from the south, and four members from the west of Africa.[100] There is no provision for permanent and non–permanent members of the Peace and Security Council.[101] However, the prospective Member States to the Peace and Security Council are required to exhibit, inter alia, respect for constitutional governance, the rule of law, the protection of human rights, and the commitment to honor financial obligations of the Union.[102]

The AU Peace and Security Council has the mandate to recommend intervention to the AU Assembly on the basis of Article 4(h) of the AU Constitutive Act.[103] The Council’s mandate of recommendation implies that it is the organ responsible to establish the occurrence of genocide, crimes against humanity, and war crimes in a Member State.[104] However, there is no procedure that can be utilized to establish the occurrence of the specified grounds of intervention.

The AU Peace and Security Council should also establish why and how the target state is unable and unwilling to protect the people inside its borders against the commission of the crimes under Article 4(h) of the AU Constitutive Act.[105] Moreover, the Council’s recommendation needs to suggest the kind of intervention to be authorized by the AU Assembly and accordingly indicate the specific actions to be taken.[106] Thus, in case of non–military forcible measures, the recommendation should, inter alia, provide the specific sanctions and the modalities of their application.[107] In case of military intervention, the recommendation should, inter alia, point out the kind of force to be employed and the details of the cost and logistical requirements of the proposed military action.[108]

C. The African Standby Force

The African Standby Force (the “ASF”) is an organ accountable to the AU Peace and Security Council with the mandate of, inter alia, carrying out the AU’s right of intervention under the direction of the AU Peace and Security Council.[109] The ASF is a collection of sub–regional standby forces established by the five sub–regions, namely the eastern, western, northern, central and southern sub–regions of Africa. As such, the word “force” in the ASF is a misnomer insofar as there is no single African army.[110]

The major economic communities in each sub–region are instrumental in the establishment of the ASF based on consultation with the AU Peace and Security Council and the AU Commission. Some of the sub–regional economic communities had previous experiences in the deployment of military missions. In this regard, the western and southern sub–regions are expected to lead in the establishment of their respective contingent of the ASF, based on their past experience of collective actions under the Economic Community of West African States (the “ECOWAS”) and the South African Development Community (the “SADC”), respectively.[111] The wide disparity between the African sub–regional organizations in terms of normative and institutional structure and experience is a challenge for the establishment of the ASF.

At the initial stage, each sub–region is expected to establish a standby force at the brigade level with an approximate number of 5,000 troops per sub–region, making the overall number of the ASF troops approximately 20,000, excluding the civilian elements and military observers. The brigade in each sub–region is made up of multidisciplinary contingents located in their countries of origin, ready for rapid deployment anywhere in Africa at appropriate notice.[112]

The brigade level of composition for the ASF is taken as ideal for all scenarios with the exception of military intervention under Article 4(h) of the AU Constitutive Act. The ASF Policy explains that complexities involved in military intervention under Article 4(h) of the AU Constitutive Act needs a capability of more than a brigade level.[113] Thus, the ASF Policy provides that a nation “with standing deployable [Headquarters] capacity of greater than brigade level, and with forces that are capable of seizing points of entry, ideally using airborne or airmobile assets” should lead the military intervention to preempt or bring to halt the commission of genocide, crimes against humanity and war crimes.[114] To this end, the ASF Policy recommends the early identification of the lead nations for the purpose of military intervention under Article 4(h) of the AU Constitutive Act.[115] The idea is that once entry is secured by a lead nation in cases of military intervention under Article 4(h) of the AU Constitutive Act, the regional standby forces can be used as “follow–on” forces.[116] It is the intention of the ASF Policy that in the long run the AU should develop its own military capabilities and stop relying on lead nations for military intervention under Article 4(h) of the AU Constitutive Act.[117]

The plan to develop ASF capability for military intervention under Article 4(h) of the AU Constitutive Act is a step in the right direction as the extended reliance on the use of lead nations may invite unnecessary political factors and state interests. Among other factors, the legitimacy of military intervention under Article 4(h) of the AU Constitutive Act lies in the fact that it is a collective action rather than an action by a single state. For instance, the legitimacy of the ECOWAS intervention in Liberia and Sierra Leone, as well as the SADC intervention in Lesotho, suffered because of their over–reliance on Nigeria and South Africa as lead nations, respectively.[118] Moreover, the lead nation concept presupposes the existence of a stable and capable nation that can carry out the military mission, which is not currently the case in good numbers in Africa.

D. The Peace Fund

The Peace and Security Council Protocol provides for the establishment of a Special Fund, known as the Peace Fund, in order to finance the activities of the AU aimed at maintaining peace and security on the continent, including intervention under Article 4(h) of the AU Constitutive Act.[119] The primary source of the Peace Fund is the regular budget to the AU, known as the General Peace Fund.[120] The other major category of the Peace Fund is the Special Contribution.[121] Under the Special Contribution, the sources of the Peace Fund are voluntary contributions from AU Member States, voluntary contributions from the private sector and civil society as well as individuals in AU Member States, and donations from non–Member States.[122] Donations and voluntary contributions from sources outside of Africa are accepted in so far as they are “in conformity with the objectives and principles of the Union.”[123]

Despite the declaration of AU Member States to support the Peace Fund and to increase the statutory contribution from the AU regular budget to the Fund,[124] the AU budget in general and the Peace Fund in particular are in a constant state of shortage to finance the activities of the AU in the maintenance of peace and security on the continent.[125] 

V. CONCLUSION

Currently, the AU Constitutive Act is the only international treaty that provides for a legally binding right of intervention against genocide, crimes against humanity, and war crimes against inhabitants of a state within its boundaries. The fact that the AU’s right of intervention is treaty–based and that it is in the process of being institutionalized are positive steps towards the realization of the cosmopolitan ideal of protecting people against mass atrocities from their own state. However, as shown in this Note, there are major normative and institutional gaps that may hamper the institutionalization and enforcement of the AU’s right of intervention. Among the normative gaps, the most notable are the lack of details on the types of intervention and the criteria for military intervention. Moreover, the AU needs to address the institutional gaps in the procedures of investigation of the grounds of intervention, credible enforcement organs, and financial capability.

 


        * 2012–13 Hubert Humphrey Fellow, University of Minnesota Law School, Minneapolis, Minnesota. This Article builds on research done for an earlier book by the author: Girmachew Alemu Aneme, A Study of the African Union’s Right of Intervention against Genocide, Crimes against Humanity and War Crimes (2011).

        [1].    Constitutive Act of the African Union, art. 4(h), May 26, 2001, available at http://www.africa-union.org/root/au/aboutau/constitutive_act_en.htm#Article4 [hereinafter AU Constitutive Act]. A reference to “Article 4(h)” or the “AU’s right of intervention” throughout this article refers to the AU’s right of intervention against genocide, crimes against humanity, and war crimes inside states. Fifty–three African States ratified the Constitutive Act of the African Union. Morocco is the only African State that has not ratified the Constitutive Act. Morocco withdrew in 1984 from the predecessor of the AU, the Organisation of African Unity, protesting the admission of Western Sahara.

        [2].    See Robert Fine, Cosmopolitanism 78–82 (2007) (giving an overview of the arguments against humanitarian intervention, including the argument of state sovereignty).

        [3].    These include the end of the cold war and growing focus on human rights and the intention to develop collective self–reliance in the face of a widespread perception that the UN has decreased its commitment to resolve African conflicts. See Francis Kofi Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention 137–145 (1999) (explaining the change in behavior of international organizations after the end of the Cold War).

        [4].    See International Panel of Eminent Personalities, Rwanda: The Preventable Genocide ¶ 10.1 (2000), available at http://www.africa-union.org/Official_documents/reports/Report_rowanda_genocide.pdf (“If there is anything worse than the genocide itself, it is the knowledge that it did not have to happen. The simple, harsh, truth is that the genocide was not inevitable; and that it would have been relatively easy to stop it from happening prior to April 6, 1994, and then to mitigate the destruction significantly once it began. In the words of one expert, ‘This was the most easily preventable genocide imaginable.’”).

        [5].    Lorraine Elliott, Cosmopolitan Militaries and Cosmopolitan Force, in Fault Lines of International Legitimacy 284 (Hilary Charlesworth and Jean–Marc Coicaud, eds., 2010).

        [6].    Fine, supra note 2, at 2.

        [7].    Albert Bleckmann, Article 2(1), in 1 The Charter of the United Nations: A Commentary 79–84 (Bruno Simma et al. eds., 2d ed. 2002); see also Antonio Cassese, International Law 22–25 (2d ed. 2005).

        [8].    See U.N. Charter art. 2, ¶ 4, 7; see also G.A. Res. 2131 (XX), U.N. Doc. A/RES/20/2131 (Dec 21, 1965). But see Convention on the Prevention and Punishment of the Crime of Genocide art. 8, Dec. 9, 1948, 78 U.N.T.S. 277 (1949) (“Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.”)

        [9].    See Sam Adelman, Cosmopolitan Sovereignty, in Cosmopolitan Justice and its Discontents, 11–29 (Cecilia M. Bailliet and Katja Franko Aas, eds., 2011).

      [10].    Wil D. Verwey, Legality of Humanitarian Intervention After the Cold War, in The Challenge to Intervene: A New Role for the United Nations 114 (Elizabeth G. Ferris, ed., 1992).

      [11].    See Abiew, supra note 3, at 102–221 (giving case study examples of humanitarian intervention).

      [12].    See, e.g., Christine Gray, International Law and the Use of Force 31–48 (2nd ed. 2004). Cf. Klinton W. Alexander, Ignoring the Lessons of the Past: The Crisis in Darfur and the Case for Humanitarian Intervention, 15 J.Transnat’l L. & Pol’y 1, 22–28 (2005–2006); Amy Eckert, The Non–Intervention Principle and International Humanitarian Interventions, 7 Int’l Legal Theory 49 (2001).

      [13].    See, e.g., Ian Brownlie, International Law and the Use of Force 338 (1963) (lamenting that “[t]he doctrine was inherently vague and its protagonists gave it a variety of forms. Some writers restricted it to action to free a nation oppressed by another; some considered its object to be to put an end to crimes and slaughter; some referred to ‘tyranny’, others to extreme cruelty; some to religious persecution, and, lastly, some confused the issue by considering as lawful intervention in case of feeble government or ‘misrule’ leading to anarchy.”). Cf. Mourtada Deme, Law, Morality and International Armed Intervention 116 (2005) (“International law is not concerned with democratic credentials or popular sovereignty; and human rights violations are not per se legal basis for armed intervention.”).

      [14].    Kok–Chor Tan, Enforcing Cosmopolitan Justice: The Problem of Intervention, in Cosmopolitanism in Context 158 (Roland Pierik and Wouter Werner, eds., 2010).

      [15].    See Darrel Moellendorf, Cosmopolitan Justice 104 (2002) (providing the argument that “[t]he cosmopolitan conception of sovereignty holds that an intervention into one of the domains reasonably claimed by a state is a violation of sovereignty if and only if intervention will not attempt to advance the cause of justice either in the basic structure of the state or in the international effects of its domestic policies.”).

      [16].    U.N. Secretary–General, We the Peoples: The Role of the United Nations in the 21st Century, 48, Millennium Report, (Apr. 3, 2000) (Kofi A. Annan), available at http://www.un.org/millennium/sg/report/.

      [17].    Int’l Comm’n on Intervention & State Sovereignty, The Responsibility to Protect (2001) [hereinafter The Responsibility to Protect].

      [18].    Id.

      [19].    U.N. General Assembly, 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, U.N. Doc. A/60/L.1, ¶¶ 138–140 (Sept. 15, 2005) (endorsing the concept of the responsibility to protect).

      [20].    S.C. Res. 1674, ¶ 4, U.N. Doc. S/RES/1674 (Apr. 28, 2006).

      [21].    See The Responsibility to Protect, supra note 17.

      [22].    AU Constitutive Act, supra note 1, art. 4(h) (“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.”).

      [23].    The Responsibility to Protect, supra note 17, ¶ 2.27.

      [24].    Id. ¶ 2.29.

      [25].    Compare The Responsibility to Protect, supra note 17, with AU Constitutive Act, supra note 1.

      [26].    See Solemn Declaration on a Common African Defence and Security Policy ¶¶ 8–9, 13 (Feb. 28, 2004); AU Constitutive Act, supra note 1, art. 4(h).

      [27].    AU Constitutive Act, supra note 1, art. 4(h).

      [28].    Id.; The Responsibility to Protect, supra note 17, ¶¶ 5.1. Cf. Gelijn Molier, Humanitarian Intervention and the Responsibility to Protect after 9/11, 53 Neth. Intl. L. Rev. 37, 48 (2006) (criticizing the meshing of the responsibility to prevent and the responsibility to rebuild with the responsibility to react under the ICISS Report: “This broad approach is also undesirable from a legal point of view, given that different legal rules apply to these forms of the responsibility to protect. It would have been better if the Commission had confined the responsibility to protect to the reaction phase, in other words to the question of the use of force for human protection purposes.”).

      [29].    See Protocol Relating to the Establishment of the Peace and Security Council of the African Union arts. 7(1)(g)–(m), 13(1), July 9, 2002, available at http://www.au.int/en/sites/default/files/Protocol_peace_and_security.pdf [hereinafter Peace and Security Council Protocol].

      [30].    See U.N. Charter art. 39; see also AU Constitutive Act, supra note 1, art. 4(h).

      [31].    See AU Constitutive Act, supra note 1, art. 4(h).

      [32].    See, e.g., The Responsibility to Protect, supra note 17, ¶¶ 4.64.9.

      [33].    Solemn Declaration on a Common African Defense and Security Policy, supra note 25, ¶¶ 8(ii)(e), (j), 13(a).

      [34].    Id.

      [35].    Cf. Assembly of the African Union: Rules of Procedure of the Assembly of the Union, Rule 37, Ass/AU/2(I)–a (July 10, 2002) (enumerating the non–military measures to be taken against an unconstitutional change of government in Member States, therefore showing that non–military measures to enforce norms are not alien to the AU) [hereinafter AU Assembly Rules of Procedure].

      [36].    See The Responsibility to Protect, supra note 17, ¶ 3.3 (detailing a list of non–military forcible measures and criteria).

      [37].    Rep. of the 3d Ordinary Sess. of the Exec. Council on the Proposed Structure, Human Res. Requirements and Conditions of Serv. for the Staff of the Comm’n of the African Union and their Fin. Implications, Assembly/AU/Dec.22 (July 8, 2003).

      [38].    See generally Peace and Security Directorate, African-Union.org (Jan. 27, 2013, 6:22 PM), http://www.africa-union.org/Structure_of_the_Commission/depPEACE%20AND%20SECURITY%20DIRECTORATE.htm.

      [39].    The Responsibility to Protect, supra note 17; see The Common African Position on the Proposed Reform on the United Nations: “The Ezulwini Consensus,” Mar. 8, 2005, Ext/EX.CL/2 (VII) [hereinafter Ezulwini Consensus] (showing that the AU has generally accepted the concept of the responsibility to protect); see also U.N. SCOR, 60th Sess., 5319d mtg. at 10:15, U.N. Doc. S/PV.5319 (Dec. 9, 2005); U.N. SCOR, 60th Sess., 5319d mtg. at 3, U.N. Doc. S/PV.5319 (Resumption 1) (Dec. 9, 2005); 2005 World Summit Outcome, G.A. Res. 56/211, U.N. Doc. A/60/L.1 (Sept. 15, 2005), ¶ 13840 (endorsing the responsibility to protect by the African States and other members of the U.N.).

      [40].    See Brian Orend, Michael Walzer on War and Justice 8687 (2000) (detailing that just war tradition has six requirements that must be fulfilled in order to conduct a justified war: just cause, right intention, proper authority and public declaration, last resort, probability of success, and proportionality). Cf. Fine, supra note 2, at 8288 (giving similar standards of intervention adopted by proponents of cosmopolitan justice).

      [41].    The Responsibility to Protect, supra note 17, ¶ 6.15.

      [42].    Id. ¶¶ 6.2835.

      [43].    Rep. of the Secretary–General’s High–Level Panel on Threats, Challenges and Change, U.N. Doc. A/59/565, ¶ 198, 207 (Dec. 2, 2004), available at http://www.un.org/secureworld/report2.pdf.

      [44].    AU Constitutive Act, supra note 1, art. 9(1).

      [45].    Compare U.N. Charter, with AU Constitutive Act, supra note 1, art. 4(a).

      [46].    Id. at art. 4(h); Solemn Declaration on a Common African Defence and Security Policy, supra note 25, ¶¶ 89, 13.

      [47].    Aneme, supra note *, at 15484 (arguing that consent is an exception to the prohibition of the use of force under Article 2(4) of the U.N. Charter).

      [48].    See U.N. Charter art. 53, ¶ 1.

      [49].    The Responsibility to Protect, supra note 17, at XII.

      [50].    Id. ¶ 4.19.

      [51].    AU Constitutive Act, supra note 1, art. 4(a).

      [52].    Compare The Responsibility to Protect, supra note 17, ¶ 4.19, with AU Constitutive Act, supra note 1, art. 4(a).

      [53].    Peace and Security Council Protocol, supra note 29, art.7(1)(e).

      [54].    The Responsibility to Protect, supra note 17, ¶ 4.33.

      [55].    Id.

      [56].    The Ezulwini Consensus, supra note 39, § B(1); see also AU Constitutive Act, supra note 1, art. 4(a) (providing that “sovereign equality and interdependence among Member States of the Union.”).

      [57].    The Responsibility to Protect, supra note 17, ¶ 4.33.

      [58].    Id.

      [59].    Id.

      [60].    See id. ¶ 4.16.

      [61].    See id. ¶ 4.37.

      [62].    See, e.g., Peace and Security Council Protocol, supra note 24, arts. 6(a), (b), (c).

      [63].    See AU Constitutive Act, supra note 1, art, 4(h) (listing the circumstances in which the AU may intervene in a Member State: war crimes, genocide, and crimes against humanity).

      [64].    See Orend, supra note 40, at 87 (contending non–military means should always be exhausted before using military means).

      [65].    See Greg Puley, The Responsibility to Protect: East, West and Southern African Perspectives on Preventing and Responding to Humanitarian Crises 15 (2005), available at http://ploughshares.ca/wp-content/uploads/2012/08/R2PAfrica.pdf (“Recent experiences in Africa indicates that the greater danger is not that the range of non–coercive means will be rushed through too quickly, but rather that the collective response to a crisis may be stalled at this stage even if these means prove ineffective. It is not difficult to imagine a situation in which, a critical mass of opinion not having formed at either the sub–regional or continental levels in favour of intervention in a catastrophic situation, a long series of hearings and fact–finding missions plays itself out while suffering on the ground continues or accelerates”).

      [66].    See Orend, supra note 40, at 87 (“Probability of Success: A state may not resort to war if it can foresee that doing so will have no measurable impact on the situation. The aim here is to block mass violence which is going to be futile.”).

      [67].    Gareth Evans, President, International Crisis Group, and Member, High–level Panel on Threats, Challenges and Change, to Geneva Centre for Security Policy Forum on Global Peace and Security, Challenges and Responses (May 18, 2005).

      [68].    The Responsibility to Protect, supra note 17, at XII (”Reasonable prospects: There must be a reasonable chance of success in halting or averting the suffering which has justified the intervention, with the consequences of action not likely to be worse than the consequences of inaction.”).

      [69].    See Puley, supra note 65, at 19–22 (discussing projections for the development of the African Standby Force).

      [70].    Puley, supra note 65, at 21.

      [71].    Burundi Joins Somalia Peace Force, BBC (Feb. 1, 2007, 1:09 PM) available at http://news.bbc.co.uk/2/hi/africa/6319937.stm (“The AU has struggled to raise the 8,000 troops it wants to send to Somalia . . . .”).

      [72].    Puley, supra note 65, at 20. The Africa Standby Force will be discussed more in section 4.3, infra.

      [73].    See generally Peace and Security Protocol, supra note 29, at 16 (discussing Peace and Security Council relationship with regional mechanisms).

      [74].    See Nadir A L Mohammed, Trends, Determinants and the Economic Effects of Military Expenditure in Sub–Saharan Africa, in The Military and Militarism in Africa, 94–95 (Eboe Hutchful & Abdoulaye Bathily, eds., 1998); see, e.g., IANSA, OXFAM & Saferworld Africa’s Missing Billions: International Arms Flows and the Cost of Conflict (2007) available at http://www.oxfam.org/en/policy/bp107_africas_missing_billions.

      [75].    See Mohammed, supra note 74, at 94–96.

      [76].    See IANSA et. al., supra note 74, at 3.

      [77].    See id.

      [78].    See Stelios Michalopoulos & Elias Papaioannou, The Long–Run Effects of the Scramble for Africa 1–2 (Nat’l Bureau of Econ. Research, Working Paper No. 17620, 2011) available at http://www.nber.org/papers/w17620.pdf.

      [79].    See Puley, supra note 65, at 17 (“[T]he most effective guarantor of the principle of ‘reasonable prospects’ is cautious, considered deliberation on the part of the various decision making bodies. Indispensable to the objective is the availability of the most accurate and sophisticated research and analysis possible, allowing decision makers to consider all of the possible consequences and incorporating the enormous lessons learned from the experiences of Somalia, Rwanda, Liberia, Sierra Leone, and elsewhere. This in turn will require a highly competent and professional staff working in close cooperation with the appropriate sub–regional bodies . . . .”).

      [80].    See, e.g., Lydia Polgreen, Darfur Crisis Draws Chad and Sudan Toward Deeper Conflict, N.Y. Times, Apr. 13, 2008, available at http://www.nytimes.com/2008/04/13/world/africa/13iht-chad.1.11934808.html?pagewanted=all&_r=0.

      [81].    The Responsibility to Protect, supra note 17, ¶ 4.39.

      [82].    See Orend, supra note 40, at 5, 87.

      [83].    See id. at 87. The issue of the jus ad bellum standards are already discussed under the “just cause” criterion, supra.

      [84].    See id. at 100 (discussing the calculus of whether the potential damage is worth the potential results which must be made prior to engaging in combat).

      [85].    Id. at 5 (“[P]roportionality of benefits to costs must also be considered in planning specific attacks . . . .”).

      [86].    Compare Peace and Security Council Protocol, supra note 29, art. 7(1)(e), with AU Constitutive Act, supra note 1, art. 6 (2).

      [87].    AU Constitutive Act, supra note 1, 4(h).

      [88].    See generally id. 4(a), (g), (h), (j) (listing the powers of the AU Assembly).

      [89].    See generally id.

      [90].    See id. 4(m) (describing AU Assembly promotion of the rule of law).

      [91].    See AU Constitutive Act, supra note 1, art. 6(2).

      [92].    Id. art. 6 (1); see also AU Assembly Rules of Procedure, supra note 35, r. 3.

      [93].    AU Constitutive Act, supra note 1, art. 6(3); see AU Assembly Rules of Procedure supra note 35, r. 5–14 (giving details of meetings of the Assembly); see also African Union Assembly of Heads of State and Government, Decisions on the Periodicity of the Ordinary Sessions of the Assembly, Assembly/AU/Dec.53 (III) (July 2004) (deciding, in its 2004 summit, that the AU Assembly should meet twice a year in ordinary session because of increased responsibilities in the face of the many challenges of the continent).

      [94].    AU Constitutive Act, supra note 1, art. 7(1).

      [95].    Id. art. 6(4); AU Assembly Rules of Procedure, supra note 35, Rule 15.

      [96].    Peace and Security Council Protocol, supra note 29, art. 7(1)(e).

      [97].    See Peace and Security Council Protocol, supra note 29, art. 2(1); see also AU Constitutive Act, supra note 1, art. 5(2) (providing that the Assembly of the AU may decide to establish additional organs not provided for in the Constitutive Act).

      [98].    Peace and Security Council Protocol, supra note 29, art. 2(2).

      [99].    Id. art. 5(1) (“(a) ten members elected for a term of two years; and (b) five members elected for a term of three years in order to ensure continuity”).

    [100].    African Union Executive Council, Decision on the Election of Members of the Peace and Security Council, EX/CL/Dec.78 (IV) (March 2004).

    [101].    Musifiky Mwanasali, Policy: Issues and Actors, in Emerging Security Architecture in Africa, 14 at 17(4) (2004) (providing that the composition of the Peace and Security Council was a matter of debate in the deliberations of the AU policy organs where ‘initially, the idea was to institute the equivalent in Africa of UN Security Council’s permanent members (i.e. the so–called African ‘hegemons’) and non–permanent rotating members’ which was later rejected).

    [102].    Peace and Security Council Protocol, supra note 29, art. 5(2)(a)–(j).

    [103].    Id. art. 7(1)(e).

    [104].    See id. 7(1)(h) (“[T]he 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 . . . . ”) (emphasis added).

    [105].    See AU Constitutive Act, supra note 1, arts. 4(g), (h) (affirming the principle of non–interference in internal affairs except under the circumstances named in Article 4(h)).

    [106].    Peace and Security Protocol, supra note 29, art. 7(1)(d), (j); see Section4.1, supra.

    [107].    See id. art. 7(1)(g).

    [108].    Id. art. 7(1)(d), (j); AU Assembly Rules of Procedure, supra note 35, r. 19(3).

    [109].    Peace and Security Council Protocol, supra note 29, arts. 13(1), 13(3)(c), 13(5), at 18–19.

    [110].    See id. art. 13(1), at 18 (“Such Force shall be composed of standby multidisciplinary contingents, with civilian and military components in their countries of origin and ready for rapid deployment at appropriate notice.”); see also Cedric De Coning, Refining the African Standby Force Concept, Conflict Trends 2004/2, at 20–21, available at http://www.accord.org.za/downloads/ct/ct_2004_2.pdf (observing that “[t]he concept of a ‘force’ is perhaps misleading, because what is in fact proposed is not a standing force but a standby system.”).

    [111].    See Policy Framework for the Establishment of the African Standby Force and the Military Staff Comm. Part I, African Chiefs of Defence Staff, 3rd meeting, ¶ 2.16, Exp/ASF–MSC/2(l), at 8 (May 15–16, 2003) http://www.africa-union.org/root/au/auc/departments/psc/asf/documents.htm [hereinafter Policy Framework].

    [112].    Peace and Security Council Protocol, supra note 29, art. 13(1), at 18.

    [113].    Policy Framework, supra note 111, ¶¶ 2.4, 2.5, at 5.

    [114].    Id. ¶ 3.11(a)(3), at 17.

    [115].    Id.

    [116].    Id. ¶ 3.12(b)(5), at 20; see also id. ¶ 3.24(b)(2), at 31 (“For intervention, the level of coherence and capability required is such that a phased concept of deployment is required, involving a lead or single nation to seize a point of entry(s) to stabilize the situation, followed by standby brigade group(s) deployment.”).

    [117].    Id. ¶ 2.5, at 5.

    [118].    See Bjorn Moller, The Pros and Cons of Subsidiarity: The Role of African Regional and Subregional Organisations in Ensuring Peace and Security in Africa 33 (Danish Inst. for Int’l Studies, DIIS Working Paper No. 2005/4), http://www.isn.ethz.ch/isn/Digital-Library/Publications/Detail/?id=18629&lng=en (explaining that “[t]he greatest weakness of ECOWAS may be its critical dependency on the contribution of Nigeria, both in military and other terms, and the accompanying suspicions that the organization is little more than a convenient multilateral framework for Nigerian interventions.”).

    [119].    Peace and Security Council Protocol, supra note 29, art. 21(1) (stating that all operations directed by the Peace and Security Council are envisaged to be supported by the Peace Fund under Article 13(3) of the Peace and Security Council Protocol); see generally art. 22(2) (providing that the Peace Fund was originally established under the OAU in 1993 under the 1993 OAU Conflict Prevention, Management and Resolution Mechanism).

    [120].    Rep. of the Chairperson of the Comm’n on the Status of the AU Peace Fund as at 31 December 2004, Advisory Subcomm. on Admin., Budgetary and Fin. Matters, Adv.S/Cttee.8 (VIII) (2005).

    [121].    Id.

    [122].    Peace and Security Council Protocol, supra note 29, art. 21(2).

    [123].    Id. art. 21(3).

    [124].    See Statement of Commitment to Peace and Security in Africa, Issued by the Heads of State and Gov’t of the Member States of the Peace and Security Council of the African Union, Peace and Security Council ¶ 8, PSC/AHG/ST.(X) (May 25, 2004) available at http://www.africa-union.org/News_Events/Calendar_of_%20Events/Lancement%20PSC/Statement.pdf.

    [125].    See Indicative Work Programme on Peace and Security Issues in Africa for the Central Organ of the African Union for the Period 2002–2003, Central Organ of the Mechanism for Conflict Prevention, Mgmt. and Res. at Ambassadorial Level, 86th Sess., Oct. 29, 2002, ¶ 3, Central organ/MEC/AMB/3 (LXXXVI) (2003), available at http://dspace.cigilibrary.org/jspui/bitstream/123456789/32201/1/The%20AU%20and%20the%20search%20for%20Peace%20and%20Reconciliation.pdf?1 (discussing the approach to be followed by the AU Commission for the establishment of the Continental Early Warning System); see also Rep. of the Chairperson of the Comm’n of the Establishment of a Continental Peace and Security Architecture and the Status of Peace Processes in Africa, Peace and Security Council, 9th Sess., ¶ 2, PSC/AHG/3(IX) (May 25, 2004), available at http://www.peaceau.org/uploads/report-9th-en.pdf.

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