ISS Seminar Report, Pretoria The Future Direction for UN-AU relations

Date: 2012-03-01

Venue: , ISS Seminar Room, Block C, Brooklyn Court, 361 Veale Street, New Muckleneuk, (Parking in Brooklyn Mall and ABSA Court)

RSVP: Ms. Khunjulwa Peter
Tel: 012 346 9500
Fax: 012 460 0997
Email: [email protected]

Presented by the Conflict Management and Peacebuilding Division, ISS Pretoria.

CHAIR

• Col. Festus Boahen Aboagye, Senior Research Fellow, Conflict Management and Peacebuilding Division, Institute for Security Studies

SPEAKERS

• Dr. Laurie Nathan, Extraordinary Professor and Director, Centre for Mediation in Africa, University of Pretoria
• Dr. Sabelo Gumedze, Senior Researcher, Conflict Management and Peacebuilding Division, Institute for Security Studies

The recent AU Chairperson’s report on the UN-AU partnership as well as that of the UN Secretary-General Ban Ki-Moon that was tabled at the United Nations Security Council (UNSC) during January 2012, have indicated that a great deal of importance has been accorded to developing a cohesive partnership between these two organisations. The UN report aimed to delineate and define the UN`s strategic vision for UN-AU cooperation and in so doing `assist the Security Council and the AU Peace and Security Council in formulating cohesive positions and strategies`.

An expansive AU report on the partnership entitled `Towards Greater Strategic and Political Coherence’ complimented and responded to the UN report, emphasising that the AU would commit itself to improving the strategic partnership between the two bodies based on an innovative interpretation of Chapter VIII of the UN Charter.

A number of crucial challenges and problems were however quickly apparent, including the divergence of perspectives on the partnership. Presenters and participants furthermore recognised the serious capacity deficits that exists for all international organisations, particularly for the AU, as well as the need for collaboration in important areas such as mediation. Focusing on mediation illuminated some of the major challenges facing future cooperation.

Since the launch of the AU Peace and Security Council (PSC) in Addis Ababa on 25 May 2004 the relationship between the PSC and the UNSC is a sine qua non for the fulfillment of the mandate of the PSC (According to Article 17(1) of the PSC Protocol). However, it was noted that power relations between the UN and the AU would continue to challenge the maintenance of a close and continued interaction between the PSC and the UNSC. A number of significant challenges were subsequently identified rendering cooperation one-sided.

Firstly, the political interest dynamic whereby the political interests of the UNSC members threatens to confound and challenge cooperation efforts. Secondly, the veto power dynamic ensures that the P5 (the five permanent UNSC members – the USA, UK, China, Russia and France) could frustrate the PSC. Thirdly, the UNSC continues to be hindered by inefficiency and finally it also suffers from divisions caused by the infiltration of rivalries such as that between the US and China.

A number of stumbling blocks to the UN-AU relationship were identified. Firstly, the relationship is broadly defined, and there is a lack of proper consultation between the AU and the UNSC. This results in a situation in which the PSC and UNSC are not treated as equal partners and propose different approaches to addressing conflicts. Two relevant examples discussed were the interpretation and implementation of UNSC Resolution 1973 (2011) on Libya and the rejection or non-cooperation of the PSC (and the AU) in the ICC process against Sudanese President Omar al-Bashir. The lack of agreement between the PSC and the UNSC on the Ezulwini Consensus, which calls for two permanent seats and five non-permanent seats for African states, was also discussed.

These significant concerns are further compounded by a “conflict of laws” that arguably exists between the AU and the UN, which has had a bearing on the relationship between the PSC and the UNSC, in particular concerning the use of force and UNSC authorisation. Whilst Article 4(h) of the Constitutive Act and Article 4(j) of the PSC Protocol clarifies the right to intervene in respect of grave circumstances (war crimes, genocide and crimes against humanity), Articles 2(4) and 53(1) of the UN Charter prohibit the threat or use of force and of enforcement action unless the UNSC’s authorisation have been first attained.  

Attention was drawn to circumstances where urgent action is needed and in which the approval of the UN Security Council can be granted ex-post facto. It was noted that the UN Secretary-General Report has remained silent upon this possibility. In addition the Regional Economic Communities (RECs) approach to intervention is varied. The AU has a right to intervene and seek ex-post facto UNSC approval, whilst the Economic Community of West African States (ECOWAS) has a right to intervene according to Article 25 of its Protocol, whilst the Southern African Development Community (SADC) has a right to intervene, upon the approval of the UNSC, according to Article 11(2)(b)(ii) of its Protocol.

It was recommended that the AU consider amending the PSC Protocol in 2014 - a process that must involve the AU Commission on International Law. The UN and AU and Recs must also harmonise their legal regimes and align them with the UN Charter, specifically Articles 2(4), 53(1) and 103.

Mediation efforts were subsequently focused upon in great depth. It was noted that whilst a cooperative relationship has been established, undergirded by high-level dialogue necessary for building strategic partnerships, the relationship exists at a nadir as a consequence of political tension over mediation in Libya, Darfur, Cote d’Ivoire and Madagascar. This has dealt considerable damage for future harmonious partnerships.

Whilst intransigence and unwillingness is well known amongst conflicting groups - where negotiations and settlements can be perceived as a sign of weakness - a significant drawback has occurred amongst mediators themselves. A major problem in this regard is the unprofessional treatment of mediation. It was noted that whilst in a domestic setting mediators are accredited and acquire substantial skills and knowledge, this has seldom been applicable at the international level. The practice of appointing former ministers or leaders has not proved to be a success given the specifics requirements of mediation which many do not possess. Various mediators have also competed with one another if there is a lack of clarity over who leads. Such was the case in Madagascar, where a tussle occurred over who was to be lead mediator. In 2011 the situation in Cote D’Ivoire was fraught with competition as the ECOWAS and AU competed whilst France and UN simultaneously moved towards the use of force in resolving the election crisis. Elsewhere, the Darfur initiative was beset by chronic disagreement that intensified and became an issue in the public arena.

This has obvious consequences for peace-making initiatives. Firstly, for instance in Madagascar and Darfur, mediators paid too much attention to scheming about other mediators. Secondly, at times mediator actions were undertaken with the deliberate intention of undermining opponent mediators. An example of this occurred when AU criticism of the Darfur mediation - which was perceived to be more accountable to the UN and France than the AU - led to the involvement of former South African President Thabo Mbeki. This sent a deliberate message to the UN that although Mbeki’s work was concerned with the Comprehensive Peace Agreement (CPA), he would also undertake mediation efforts in Darfur. Thirdly, a lack of cohesion and cooperation between various organisations engenders a lack of confidence in mediation amongst the clashing parties. Fourthly, rival mediation efforts could result in conflicting parties possessing leverage over mediators and choosing only those who were favourably disposed towards them. Mediators might also attempt to appear more sympathetic to one or another party relative to other mediators if they are competing. When these consequences have been present mediation has been conducted in suboptimal conditions in which opportunities were squandered and confidence was undermined.

It was also noted that the principle of subsidiarity requires reflection from all actors concerned, as its application remains inconsistent and confusing to observers. RECs favour the principle in relation to the AU, whilst in reality AU claims primary responsibility on the continent. A contradictory situation transpires whereby the AU supports subsidiarity in relation to the UN but not in relation to the RECs. This not only results in a great deal of inertia but scepticism and a high degree of independence. A notable example of this has occurred whenever the AU or UN has wished to intervene in Zimbabwe and is warded off by South Africa or SADC.

Seminar Report compiled by Timothy Walker, Conflict Management and Peacebuilding Division, ISS Pretoria Office.