The African Union (AU) was established by the African Union Constitutive Act in 2000 to address the shortcomings of its predecessor the Organisation for African Unity (OAU). One of the main considerations for the establishment of the AU was the OAU’s strict adherence to the principle of non-intervention. The OAU was established on the principle of sovereignty and territorial integrity but the leaders of Africa realised that while the protection of sovereignty and territorial integrity was important ambitions for the African continent, it was just as important that African conflicts are resolved more effectively. While the AU Constitutive Act restates the commitment of the AU to the principles of sovereignty and territorial integrity, the AU Constitutive Act also provides for protection of human rights and, most significantly, for the limited intervention by the AU in grave circumstances.
Article 4(h) of the AU Constitutive Act provides 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”. The right to intervention contain in this article provide a great opportunity to improve the effectiveness of conflict management on the African continent. However, Articles 2(4) and 2(7) of the United Nations Charter pose a strong challenge to the legality of intervention under article 4(h) of the AU Constitutive Act.
It is generally accepted that consent or invitation by the state concerned precluded any wrongfulness of the prima facie violation of international law and in particular a valid exception to the prohibition on the use of force. By signing the AU Constitutive Act the member states of the AU consented in advance to the possibility of intervention and consequently there is no conflict between the right to intervene and the prohibition of the use of force, as long as the AU remains within the bounds set out in the AU Constitutive Act and the succeeding mandate given by the Assembly.
It might be argued that the prohibition on the use of force is a ius cogens norm that cannot be contracted out and that any agreement to this effect is void. However, the commentaries to Article 26 of the Articles on State Responsibility state that consent may be relevant when applying such a peremptory norm. Furthermore, only the prohibition on aggression is peremptory in nature. The definition of aggression states inter alia that aggression is the use of armed force on the territory of another in contravention of an agreement between the parties concerned. Thus, use of force undertaken in the territory of a state within the bounds of the agreement between the parties is not aggression and thus not a violation of a peremptory norm.
The increased international focus on human rights and human security has influenced the way the notion of sovereignty and the principle of non-interference are understood. In 2001 the International Commission on Intervention and State Sovereignty’s report “The Responsibility to Protect” introduced the twin norms of sovereignty as a responsibility and the Responsibility to Protect. The notion of sovereignty as a responsibility implies that every state has the responsibility to protect its people from gross human rights abuses, while the Responsibility to Protect (R2P) refers to the responsibility of the international community to act should as state be unwilling or unable to fulfil its responsibilities towards its citizens.
By incorporation of the right to intervention in its Constitutive Act, the AU has embraced the concept of Responsibility to Protect. While the international endorsement of this concept and the constant paralysis of the SC, especially in respect of Africa, adds considerable legitimacy to possible intervention by the AU in terms of article 4(h).