From stopping to preventing atrocities

Abstract

The Constitutive Act of the African Union (AU) provides for the right of the continental body to intervene in the face of war crimes, genocide and crimes against humanity. According to its formulation, Article 4(h) intervention entails military force, which is triggered when a target state fails to discharge its duty to protect its population from mass atrocities. Although Article 4(h) is an ambitious statutory commitment to intervene in a member state by the AU, the Libyan crisis in 2011 showed the ambivalence of the continental institution to act in a decisive and timely manner. The AU’s failure to invoke Article 4(h) exposed the need for building the capacity and political will to intervene and to interpret Article 4(h). Therefore, the primary focus of this article is on how Article 4(h) should be interpreted. Flowing from the Pretoria Principles, which seek to provide clarity on the implementation of the AU’s right of intervention, Article 4(h) should be viewed as a duty rather than a right to prevent or stop mass atrocities. The duty dimension of Article 4(h) derives from the international instruments that AU member states have ratified to prevent mass atrocities. Rather than being a paper tiger, Article 4(h) should be used in a proactive and timely manner as a military option available to the AU to persuade member states to prevent or halt atrocities. As a last resort, military force pursuant to Article 4(h) should aim at protecting the population at risk and pursuing the perpetrators in order to avoid contravening Article 2(4) of the Charter of the United Nations (UN). Although military intervention can save lives in the short term, it cannot necessarily address the underlying, structural causes of atrocities, such as ethnic rivalries, economic inequalities and scramble for natural resources, among others. Therefore, the prevention of mass atrocities should not be equated with, or be seen through the prism of, Article 4(h) intervention alone. The focus should instead be on the entire spectrum of preventive strategies at the disposal of the AU in the face of mass atrocities, including the African human rights system and the African Peer Review Mechanism.