The Legality of Intervention by the African Standby Force in Grave Circumstances
As the African Standby Force (ASF), one of the components of the new African Peace and Security Architecture, approaches its operational readiness by 2010, questions are now emerging about the legal obligations of the African Union (AU) in using the ASF.
As the African Standby Force (ASF), one of the components of the new
African Peace and Security Architecture, approaches its operational
readiness by 2010, questions are now emerging about the legal
obligations of the African Union (AU) in using the ASF. Framed
specifically, the central questions are whether intervention by the ASF
requires the prior authorization of the UN Security Council (SC) and
whether such intervention can at all be legal under international law,
particularly in the light of Article 2 (7) of the UN Charter.
The main source of these questions is the legal right of
intervention conferred on the AU under its Constitutive Act. According
to Article 4 (h) of the Constitutive Act, one of the principles of the
AU is ‘the right of the Union to intervene in a member state … in
respect of grave circumstances, namely: War Crimes, genocide and crimes
against humanity.’ One of the six scenarios, defined by the Policy
Framework for the Establishment of the African Standby Force, for which
the ASF will be called upon, is Scenario 6. This is the case of AU’s
intervention in situations of grave circumstances such as genocide.
Art 4 (h) of the Constitutive Act and mission scenario 6 for the
deployment of the ASF break new ground in international law by vesting
the AU with a legal authority to intervene in a state. In other words,
the AU has come to assume greater legal authority than what the UN
Charter grants to regional organizations with respect to the
maintenance of peace and security.
Within the framework of the UN Charter (Art. 24 (1)), the primary
responsibility for the maintenance of peace and security lies with UN
Security Council (UNSC). Additionally however, the Charter recognised
the role to be played by regional organizations in the maintenance of
peace and security. According to Chapter VIII of the Charter their role
is however mainly with respect to the pacific settlement of disputes.
With respect to enforcement action, Article 53 of the Charter provides
that regional arrangements or agencies are legally bared from taking
enforcement action without the authorization of the UNSC. Additionally,
the Charter obliges regional arrangements or agencies to fully inform
the UNSC on actions taken or contemplated for the maintenance of
international peace and security.
It is clear from the above that the AU may take enforcement action
either where the UNSC employs the AU for enforcement action under its
authority or where the AU gets authorization from the UNSC to undertake
such action by itself. The AU is also obliged to fully inform the UNSC
on actions taken or contemplated by it for the maintenance of
international peace and security. According to the Charter of the UN,
enforcement action can be taken only where the UNSC determines that
there exists a ‘threat to the peace’, a ‘breach of the peace’ or an ‘act
of aggression’. The aim of such enforcement action is also ‘to
maintain or restore international peace and security.’ Beyond this, let
alone regional organizations, it is doubtful that even the UNSC has
the authority to intervene against a state.
http://www.un.org/secureworld/report2.pdf
Seen in this light, it is clear that the AU Constitutive Act and the
Protocol to the PSC broke a new legal ground under international law.
They are the first legal instruments to codify the right of an
intergovernmental organization to intervene for preventing or stopping
the perpetration of such serious international crimes that go beyond
those provided for under Article 33 of the UN Charter.
As envisaged in the AU Constitutive Act and most particularly the
Protocol Relating to the Establishment of the Peace and Security
Council, the ASF is to be deployed, among others, in respect of grave
circumstances such as genocide. When seen in the light of Article 53 of
the UN Charter, one therefore finds that intervention by the ASF under
mission scenario 6 is not the same as enforcement action for which the
AU requires the authorization of the UNSC. Nor can such intervention
be said to be an action that is taken purely ‘for the maintenance of
international peace and security’ as stipulated under Article 54 of the
Charter of the UN.
The grounds for intervention by the ASF under mission scenario 6
are what the Constitutive Act called grave circumstances namely war
crimes, genocide and crimes against humanity. The aim of such
intervention is also specifically preventing or stopping perpetration
of such gross international crimes as opposed to maintenance of
international peace and security as understood within the framework of
the UN Charter. The implication of this is that intervention by the ASF
in case of Mission Scenario six is not something for which the AU can
be said to have legal obligation to seek the authorization of the UNSC.
Indeed, despite references to the primary responsibility of the
UNSC in the maintenance of international peace and security, the main
legal documents (Constitutive Act and the Protocol to the PSC) relating
to the ASF do not envisage that the AU would seek the authorization of
the UNSC when it intervenes ‘in respect of grave circumstances’. From a
legal point of view, the stipulation in the Policy Framework for the
Establishment of the ASF that ‘while the AU will seek UN Security
Council authorization for its enforcements action, African regions
similarly will seek AU authorization of their interventions’ fails to
clarify the matter on various grounds. First, unlike the Constitutive
Act and the Protocol to the PSC, the Policy Framework is not a legally
binding instrument. Second, it erroneously equates enforcement action
and intervention. Finally, if one maintains that the reference made in
the Policy Framework is only to enforcement action (understood within
the context of the UN Charter) as it makes no reference to Article 4
(h) of the Constitutive Act, it leaves the issue of whether the AU
needs UNSC authorization for intervention open.
To the extent that this authority of the AU is treaty based,
member states of the AU can be considered to have surrendered their
sovereign right against intervention as envisaged under Article 2(7) of
the UN Charter. As such intervention by the ASF in respect of grave
circumstances would not be illegal even when undertaken without the
authorization of the UNSC.
The fact that there is no such legal requirement gives the ASF the
necessary legal space to intervene in a AU member state in case of
grave circumstances and thereby prevent the repetition of the inaction
(particularly that of the UNSC) that allowed the most horrific incident
of our time on the continent, the 1994 Rwandan genocide.
This does not however mean that the AU should not consult with and
get the support of the UNSC when it uses the ASF in case of mission
scenario 6. This would not only add to the political legitimacy of such
intervention but also enables the UN and other members of the
international community to provide various kinds of support (financial
as well as logistics) and eventually to facilitate the UN’s takeover
from the ASF. It also addresses any concerns that AU’s unilateral
action might undermine the global collective security regime. This is
however possibly one of the areas, which according to the Report of the
African Union-United Nations Panel on modalities for support to
African Union Peacekeeping Operations, that need further clarity in the
UN/AU strategic relationship.
Solomon A. Dersso, Senior Researcher, APSTA, ISS Addis Ababa
