From Non-Interference to Non-Indifference: The African Union and the Responsibility to Protect


Executive Summary

In the last decades, the African continent has been the theatre of massive human rights abuses, including genocide, war crimes and crimes against humanity, and is still prone to various forms of intra-state violence. The failure of regional and international actors to protect civilian populations against international crimes, most horribly illustrated during the 1994 genocide in Rwanda, has prompted UN members to unanimously adopt the principle of responsibility to protect (R2P). This commitment provides that states are primarily responsible for protecting their populations from genocide, war crimes, crimes against humanity and ethnic cleansing and should assist each other in fulfilling this responsibility, but also entails that if a state fails to do so, the international community will respond, using peaceful means or, if such means fail, through coercive action.

The principle of R2P has gradually also been introduced at the African level. While the Organisation of African Union (OAU) had no legal power to get involved in internal conflicts on the continent and was largely inactive on this front, its successor, the African Union (AU) has been granted the right to intervene in a member state in respect of war crimes, genocide and crimes against humanity. Those provisions, contained in the AU Constitutive Act, have together been termed “non-indifference” and may be viewed as the African equivalent of R2P.

This paper explores how R2P has taken root within the AU in the form of non-indifference.

Part one provides background on the principle of R2P and the relevant legal and institutional framework of the OAU and the AU. It describes the challenging legal framework of the OAU on the matter, whose principles of non-intervention, coupled with persistent financial difficulties effectively prevented it from tackling conflict in Africa. This ineffectiveness contributed to the transformation of the OAU into the AU, formalised in 2001. The AU’s legal framework allows the organisation to intervene in a member state, following a decision by the assembly of heads and state, in case of international crimes, or when members request intervention to restore peace and security. This, coupled with a new prominence to the protection of human rights, led to the creation of an elaborate institutional framework to implement the right to intervene.

Within the AU, the most important body to implement this principle is the Peace and Security Council (PSC), which is tasked with respond to conflict and crisis situations. It is supported by the AU Commission and three dedicated bodies: the Panel of the Wise, the Continental Early Warning System and the African Standby Force. In addition to those institutions, the New Partnership for Africa's Development (NEPAD) also bears relevance for the AU’s conflict prevention set-up, as it aims to improve governance and peace and security, including by instituting a peer review mechanism.

Furthermore, the AU’s human rights bodies, the African Commission on Human and Peoples’ Rights (ACHPR) and the African Court on Human and Peoples’ Rights (ACtHPR), also play a role, furthering the normative development and referring to the concept of R2P in its decisions. The Malabo Protocol, intended to merge the ACtHPR with the African Court of Justice, explicitly recalls the right to intervene and will, when established, grant criminal jurisdiction over, amongst others, genocide, crimes against humanity and war crimes.

In the Ezulwini Consensus, the AU clarified its position on the normative conflict between the AU’s right to intervene and the required authorisation for the use of force by the UN Security Council (UNSC). It recalls the importance of regional organisations to take action in the case of security situations, if necessary with an approval from the UNSC after the fact.

In the second part of the report, cases of intervention under the OAU and the AU are analysed.
The OAU was largely unsuccessful in its attempts to intervene in conflict situations. It played a modest role when Morocco attempted to claim border areas of Algeria, but failed outright in its efforts to intervene in the Biafran war in Nigeria, because of its focus on non-interference. In 1981, the OAU deployed its first peacekeeping force, in Chad, where a civil war was raging, but was unable to achieve any results. Its role in the conflict in Western Sahara conflict was similarly unsuccessful, but it was the Rwandan genocide in 1994 which painfully showed the OAU’s weakness. Only in the context of the war between Ethiopia and Eritrea, did the OAU finally achieve a measure of success in mitigating conflict.

In Burundi, the first test of the AU’s ability to better deliver than its predecessor, regional leaders assisted in brokering the Arusha Peace and Reconciliation Agreement (2000), and the AU sent a peacekeeping mission in 2003. However, the AU has to date failed to resolve a new crisis, which erupted in April 2015: proposed sanctions and a peacekeeping mission never materialised. The AU deployed a peacekeeping force in Sudan’s Darfur region in 2004, which later transformed into a hybrid AU-UN operation (UNAMID), and in Somalia (AMISOM), both struggling from a lack of resources and criticised for its failure to protect civilians. It obtained better results in the Comoros, where a coalition of African states military intervened to restore unity, and after Kenya’s disputed 2007 elections, where a Panel of Eminent African Personalities mediated and ultimately resolved the crisis. The AU was less relevant in 2011 during the crises in Ivory Coast and Libya, where its role was overshadowed by other regional and international actors. However, more recently it supported the strong regional action of the Economic Community of West African States (ECOWAS) in Gambia, when long-time autocrat Jammeh refused to step down after losing elections.

Part three analyses how the AU has implemented R2P in the form non-indifference. Firstly, it discusses how the two terms relate. Secondly, it mentions the absence of clear triggers for AU action, as there is no consistent approach. Third, it discusses the lack of clarity about decisionmaking between the AU heads of state, the PSC and the UNSC, partially addressed in the Ezulwini Consensus. Fourthly, it highlights the challenges of accompanying commitments with significant resources, especially for its peacekeeping missions and conflict prevention efforts. Finally, it addresses the weak political will among heads of state to deal with abusive leaders and to take meaningful action.

Based on these conclusions, the International Refugee Rights Initiative (IRRI) recommends to the African Union to increase efforts, individually and collectively, to protect populations against international crimes, by more pro-active conflict prevention efforts, effective intervention in crises and the adoption of sanctions, if necessary. It should clarify its relation to the UN, commit the necessary financial resources and come up with a framework for decision-making. These efforts should be supported by the African Commission and receive adequate support from donors.