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The failure by the Organisation of African Unity (OAU) to prevent and halt the genocide of Tutsis in Rwanda more than two decades ago was a major factor in the establishment of the African Union (AU) peace and security architecture.

However, the AU does not seem to have a full grasp of how to prevent atrocities from happening on the continent.

The Peace and Security Council (PSC) held a session on 11 April 2017 on the prevention of hate crimes and the ideology of genocide in Africa.

This meeting was the culmination of a month of commemorations of the genocide in Rwanda, which took place in 1994.

PSC stresses the critical need for early warning and democracy

In its statement following this meeting, the PSC underscored ‘the imperative of early appropriate responses to credible early warning signs of situations, that if not addressed in a timely and effective manner could lead to potential genocide’. This PSC statement echoed a previous one in March that addressed the challenges of early warning. It emphasised the need for ‘proper analysis in order to avoid denialism’.

The PSC also stressed the importance of a culture of peace, democracy and ‘participatory and inclusive governance’ as a critical factor in preventing genocide.

In order to give credence to its commitment of this issue, the PSC decided to convene an open session every year in April to discuss the prevention of genocide.

Lack of definition of ‘ideology of genocide’ and ‘hate crimes’

While the PSC has decided to position itself on this critical issue, its meeting and subsequent statement have raised many questions, the first of which deals with definitions.

The ‘ideology of genocide’, defined in Rwandese law in 2008 as the ‘aggregate of thoughts characterized by conduct, speeches, documents and other acts aiming at exterminating or inciting others to exterminate people based on ethnic group, origin, nationality, region, color, physical appearance, sex, language, religion or political opinion, committed in normal periods or during war’, does not have an equivalent in the AU Constitutive Act or the PSC Protocol.

The decision by the PSC also does not identify a legal framework that allows it to prevent the ideology of genocide and hate crimes. Such a definition is critical.

Limitations of the AU Constitutive Act

At the AU level, the Constitutive Act’s Article 4(h) establishes‘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’.

However, the PSC decision on Burundi in December 2015, which referred to Article 4(h) and authorised the deployment of a protection force to the country, only demonstrated the limitations of this symbolic provision. PSC ambassadors believed that the increasing violence and human rights abuses in Burundi, in the lead up to and following the election of President Pierre Nkurunziza, merited AU intervention. Yet the deployment was halted by the PSC heads of state at their summit meeting in January 2016.

There are clearly various hurdles to be overcome before deployment under Article 4(h). The first – legal – hurdle is the fact that such a military intervention would require authorisation by the UN Security Council (UNSC). Yet the UNSC remains divided in the aftermath of NATO’s intervention in Libya in 2011.

The second – political – hurdle is that it requires consensus among AU heads of state. The case of Burundi showed that obtaining such consensus largely depends on the consent of the host state. Without this consent, many heads of state would oppose a deployment even if the African Commission on Human and People Rights signalled the threat of genocide or impending war crimes, as it did in the case of Burundi in 2015.

Third, the ‘halting of war crimes, genocide or crimes against humanity’ also raises operational challenges. For example, can a hypothetical African force deployed in a given country, halt a genocide without overthrowing the government responsible for the atrocities? Following the military intervention in Libya, most African heads of state and government are more inclined to oppose any interventions that could resemble regime change.

The fact that the AU is, more than ever, an intergovernmental organisation that is reluctant to contest sitting heads of state, endangers its capacity to prevent genocide.

No reference to international legal instruments

While the PSC decision refers to individual efforts by members to prosecute those responsible of genocide, there is no mention of the international legal instruments applicable to this scenario. A critical absence is that of the International Criminal Court (ICC). While the PSC welcomes the efforts of those member states that prosecute individuals involved in genocide, nothing is said about the existing international legal instruments to try those responsible.

Meanwhile, the ICC mandate explicitly covers genocide, war crimes and crimes against humanity. The yet-to-be-operationalised African Court of Justice and Human Rights is also supposed to prosecute these three crimes.

The fact that the ICC is not mentioned certainly reflects the poor relationship between AU member states and The Hague-based institution. More importantly, it also points to the internal contradictions in the AU, which wishes, on the one hand, to prevent genocide, while at the same time shielding from prosecution a sitting head of state (Sudan’s President Omar al-Bashir) accused of this very crime.

In this regard, the PSC decision fails to articulate a continental legal vision on how to prosecute those responsible for genocide. This comes at a time when it is supposed to be busy setting up a hybrid court on atrocities committed in South Sudan.

It should be recalled that just more than half of AU member states (30 out 55) have signed and ratified the UN Convention on the Prevention and Punishment of the Crime of Genocide, meaning that commitment at the continental level is uneven. States such as Algeria and Morocco have raised reservations regarding the competence of legal instruments to punish acts of genocide.

Has the AU stagnated on preventing genocide on the continent?

In its latest decision, the PSC refers to the 2000 Report of the International Panel of Eminent Personalities appointed to investigate the 1994 genocide of the Tutsis in Rwanda. The PSC argues that this report provides ‘a framework of principles, strategies and policies, that if followed could create conditions in which genocide will become both, unthinkable and impossible to organize’.

However, a closer look at the recommendations made by this panel reveals that the AU still falls short in many areas.

At the then-OAU level, the panel had recommended several improvements in early warning, peacekeeping capabilities and the participation of women and civil society in conflict resolution. Yet these have not been implemented and the AU still faces challenges in each of these areas.

The panel had also advocated that monitoring human rights violations should be undertaken by the African Commission on Human and Peoples’ Rights, which should be given additional means to carry out independent activities. Such monitoring, however, depends on the political will of the AU heads of state. In Burundi, the bold recommendations of the commission were never implemented, but just ‘noted’ by the PSC without any follow up.

In addition, the panel called for a re-examination of the 1948 Geneva Convention in a number of critical areas such as the definition of genocide, a mechanism to prevent genocide, the absence of political groups and gender as genocidal categories, the legal obligations of states when genocide is declared, and the concept of universal jurisdiction. Such calls are lacking in the PSC decision.

While the PSC is showing its commitment to preventing genocide and hate crimes on the continent, this effort has largely symbolic value. Honouring the Tutsi victims of genocide requires more than symbolic gestures: it requires the establishment (or the strengthening) of policies and instruments that effectively prevent this from happening again in Africa.