Forceful Intervention For Human Rights Protection In Africa: Resolving Systemic Dilemmas In The Implementation 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.
Publisher
University of Nairobi