Challenges and Opportunities for Implementation in Africa
Author: Obinna Ifediora, UQ
In recent times, global-regional cooperation on peace and security issues in Africa have come under serious strains, as the event in South Africa, last June, regarding the attempted arrest of Omar al-Bashir over allegations of genocide and war crimes in relation to the crisis in Darfur region, Sudan on ICC arrest warrant demonstrate. Analysts, academia, and commentators have sought to explain this widening dichotomy with the notions of ‘African Unity’ or ‘African Solidarity’ and still, on the basis of state-led policy of ‘Pan Africanism’. Instead, I present, in this blog, a different narrative to this stand-off of global liberal institutions/ideas and regional approaches, which are as a result of the African Union (AU) asserting its powers over continental Africa. For vivid illustration, I found the concept of responsibility to protect (RtoP) apposite. I argue that rather than seeking explanations to the disagreements on global-regional peace and security dynamics in Africa through state practices, the AU provides more effective analytical basis because AU now tends to exercise what I refer to as continental sovereignty over Africa. This exercise of power and authority over Africa is being reflected, for instance, in its relationship with the International Criminal Court (ICC). Furthermore, recall that at the turn of the twenty-first century, one of the overarching commitments to improving global safety, security and development by world leaders was to strengthen cooperation by building effective multilateral institutions – the Millennium Declaration. My contention here is that it appears that the commitment has not received much political and diplomatic attention, and hence, the global-regional frictions we are witnessing today.
As civil society groups and academia take stock and reflect on the implementation of RtoP – a concept endorsed by world leaders in 2005 World Summit where they committed to, among other things, the prevention of genocide, war crimes, crime against humanity and ethnic cleansing – there is little to be hopeful about a concept that was introduced to address exactly the current situations in Sudan, Syria and Iraq. Proponents of the RtoP concept take comfort on the fact that RtoP language has gained prominence within the work of the UN Security Council. They defer to recognize RtoP as a ‘failure’; rather, they argue that states and the UN Security Council have failed to uphold their RtoP commitment to the people of Sudan, Syria and Iraq, and all other populations suffering from organized violence and egregious human rights abuses. Critics and sceptics riposte that the measure of success should be based on how many lives were saved; whether there are changes in the working method of UN Security Council, particularly regarding consensus and use of veto in RtoP situations. While the RtoP concept is not a ‘magic wand’ that will solve all of humanities problems in one fell swoop, its influence on global affairs has to be judged within the parameters of its original mandate – that is, to build global political consensus on issues of intervention for human protection (international peace and security) and sovereignty. The brutal truth is that RtoP, rather than fostering healthy multilateralism on the ‘doctrine for human protection operations’, it has effectively polarized the international community, even alienated regional and subregional partners, to such an extent its predecessor, ‘right of humanitarian intervention’, would envy.
According to Ban Ki-moon, fostering more effective global-regional collaboration is a key plank of the strategy for fulfilling the promise embodied in RtoP, in line with paragraph 139 of the 2005 World Summit Outcome document. Arguably, over the past decade, there has been a significant increase in joint activities between the UN Security Council and the AU Peace and Security Council in the areas of peace and security in the African region. But this improved coordination between the two organs is yet to incorporate the RtoP concept because prior to the endorsement of RtoP in October 2005 World Summit, the AU had held its own Summit earlier in March 2005 where it adopted the ‘responsibility to protect’ as set out in the report of the Secretary-General’s High Level Panel on Threats, Challenges and Change: A more secure world; our shared responsibility. In the document that emerged from the AU Summit, now refers to as the ‘Ezulwini Consensus’ – that is, the common African position on the reform of the UN – the Union evinced RtoP through the lens of the independent International Commission on Intervention and State Sovereignty (ICISS) conception based on ‘humanitarian intervention for human protection purpose’, and thus, itemized conditions for such operations. The key criterion for the Union’s embrace of RtoP is the reform of the UN Security Council, which it views as undemocratic and unrepresentative. In practical terms, the effect is that the AU has not recognized UN-led conception of RtoP as a working concept. Indeed, there has not been any further official statement or references to RtoP by the Union. Now, there is a tendency to conflate the position of the AU on RtoP and the positions of its constituent Members States, which may appear sympathetic to the October 2005 RtoP doctrine. I therefore argue that, for effective analyses of RtoP implementation in Africa, we need to always keep this distinction in perspective. This is not to say that AU abhors intervention for human protection purpose. Of course, the AU had pioneered a formulation of a legal basis for trumping sovereignty over human rights concerns. Accordingly, pursuant to Article 4(h) of the Constitutive Act of the AU, the Union has the right to intervene in a Member State in grave circumstances, such as genocide and war crimes.
Moreover, the re-characterization of ‘sovereignty as responsibility’ by, effectively, RtoP doctrine coheres with the finiteness of sovereign immunity of sitting Heads of State and Government in relations to individual international criminal responsibility, now codified in the Rome Statute that established the ICC. Although a good number of African states have acceded to the Rome Statute, the AU, as an entity, does not recognize the Court’s jurisdiction over serving Heads of State and Government, based, again, on its position on the reform of the UN Security Council. The problem here is that the Security Council has the authority to demand from the Court to defer proceedings against any accused person if it deems continuation of a trial detrimental to the maintenance of international peace and security. In this context, AU had persistently requested of the UN Security Council to exercise its deferral powers by concluding a resolution demanding that the Court suspend criminal proceedings against serving Heads of State and Government in Africa, including Omar al-Bashir of Sudan and William Ruto of Kenya to no success. In response, AU has asserted its sovereignty over continental Africa, referring to its mandate to protect Africa’s political independence and territorial integrity, as well as promoting and defending common African position on issues of interest to the continent and its people pursuant to Article 3 (b and d) of the Constitutive Act. The Union’s position, which appears similar to the powers of the UN Security Council under Article 16 of the Rome Statute, is that the search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace. In the Assembly of the Union decision in January 2014, the AU reserves the right to take any measures that may be necessary in order to preserve and safeguard peace, security and stability, and dignity, sovereignty and integrity of the continent. In what may be considered a desperate measure in this regard, the Assembly of the Union in January 2015 reaffirmed the principle of customary international law by which serving Heads of State and other Senior Officials are granted immunities during their tenure in office, and based on this legal principle demanded from its Member States not to cooperate with the ICC and threatened to sanction erring Member States who fail to comply with the decision, consistent with Article 23(2) of the AU Constitutive Act.
The policy implications of the Union’s claim of continental sovereignty could have far-reaching consequences to the effort to fight impunity and protect populations from atrocity crimes. The recent event in South Africa concerning al-Bashir of Sudan is a clear indication of how much influence this notion of continental sovereignty is gaining in Africa. This is because South Africa has always been viewed as a model for the rest of African states in upholding the rule of law, promoting human rights and accountability. However, this trend can be corrected by greater coordination between the UN Security Council and the AU Peace and Security Council in forging common policy for human protection. Moreover, more resources could be marshalled towards a Commission on comprehensive, rather than ‘a case-by-case’ global-regional cooperation on peace and security to improve on the work of the Independent Commission on Multilateralism (ICM). Furthermore, serious consideration should be given to the contents of the Ezulwini Consensus if the Union were to adopt the 2005 version of RtoP. For consideration, how agreeable, across relevant stakeholders, to the AU becoming a permanent member of the UN Security Council as a continental sovereign? In other words, to represent the interest of African continent at the world’s supreme decision-making forum; this could help in building confidence on shared collective sense of security, challenges and responses in this twenty-first century. Additionally, Article 98 of the Rome Statute, which recognizes diplomatic immunity and the challenges the principle pose for states vis-à-vis cooperation with the Court provides a leeway for the Court to address some of the concerns highlighted by the AU and its Members regarding ‘hibernating’ criminal proceedings against sitting Heads of State and Government. It has to be said, however, that sovereignty, be it continental sovereignty, was and can never be absolute. Therefore, AU should be aware of the responsibilities such rights and privileges inherently imply. Above all, the task of the new principle and new approaches in this twenty-first century is to save human lives, and not to resurrect obsolete claims to abstract concepts, such as sovereignty. And perhaps, it is time the five permanent members of the UN Security Council came around to the new power balances of our time – we cannot save human lives by remaining entrenched in outdated power structure that practically serve no humane purpose; rather, it fosters global disunity to our shared insecurity.
Obinna is a PhD candidate at the Centre. His current research is looking at ‘The Bases of Implementing the Responsibility to Protect (RtoP) in Africa’. His areas of expertise include Human Security, International Humanitarian Law, and Public International Law.