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Background Information

Article 4(h) @ 10:
Ending Mass Atrocities in Africa?

Senate Hall, Conference Centre, University of Pretoria
6-7 December 2012

The transformation from the Organization of African Unity (OAU) to the African Union (AU) ushered in a normative change to the pan-African peace and security agenda, particularly regarding the parameters of sovereignty and intervention for humanitarian ends. The unprecedented violence by both government forces and non-state armed groups against the population – such as in the Horn of Africa, the Mano River region and the Great Lakes in Africa – precipitated a debate over whether the notions of sovereignty and non-interference should continue to be held as sacrosanct.

 

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The fact that in 1994 the international community consciously abdicated their responsibility for Rwanda, impelled the AU Heads of State and Government to incorporate the AU’s right to intervene in a member state pursuant to Article 4(h) in the Constitutive Act of the AU. According to Article 4(h) the AU has the right to intervene in a member state in the face of war crimes, genocide and crimes against humanity. Thus, if a state is unable or unwilling to protect its people the responsibility falls on the AU and its member states.

The right to intervene under Article 4(h) of the AU Act is a radical departure from, and in stark contrast with, the principle of state sovereignty and non-intervention, the very cornerstones of the erstwhile OAU. The unprecedented agreement among AU member states to limit their own traditional rights of absolute sovereignty in Article 4(h) and departure from the earlier norm of non-intervention in each others’ affairs has come to be known as the ‘doctrine of non-indifference.’ Although Article 4(h) does not use the precise language of Responsibility to Protect (R2P), as articulated by the International Commission on Intervention and State Sovereignty in 2001 and its political adoption at the 2005 World Summit by world leaders, the two notions have the same root, namely to protect citizens from mass atrocity crimes by their own governments. Today, human rights are not a purely domestic concern and sovereignty can no longer shield repressive states.

It is now 10 years since the African Union was launched in July 2002 in Durban South Africa. What is certain is that the thresholds for Article 4(h) intervention are serious crimes under international law, which are subject to universal jurisdiction. Therefore, Article 4(h) can be viewed as providing for statutory intervention in form of enforcement action by consent to prevent or halt mass atrocity crimes. However, yet to be answered is how to reconcile Article 4(h) with the provisions of the UN Charter, especially where the AU exercises military intervention. Although peaceful intervention was successful following the post electoral violence in Kenya in late 2007, recent events in Côte d’Ivoire and Libya and ongoing crises such as Somalia, and Darfur in Sudan have drawn the implementation of Article 4(h) into even sharper focus, and raised probing questions about how legal obligations should be translated into concrete policies that prevent and halt mass atrocities. The right to intervene under Article 4(h) also faces challenges ranging from violations of state sovereignty to questions of national interest and political will and the violations of human rights that so often accompany military intervention. Financial and institutional incapacity exacerbates the problems for the AU to implement the right to intervene in a member state. In terms of procedure, there is still confusion about which AU organ would actually invoke intervention and the legal relationship between the AU and the UN Security Council.

Further, the scope of the amendment to Article 4(h) has not been clearly defined. The purported amendment of Article 4(h) intends not to limit the right of intervention only to “grave circumstances, namely: war crimes, genocide and crimes against humanity” but also extend it to “a serious threat to legitimate order to restore peace and stability” to the Member State upon the recommendation of the Peace and Security Council. The amending Protocol requires ratification by a two-thirds majority of the Member States. So far, only 25 States out of 36 required (from the 54) Member States have ratified the Protocol.

The Centre for Human Rights in collaboration with the Department of Political Sciences, University of Pretoria will host a Conference from 6-7 December 2012 in Pretoria, to provide an opportunity for academics, judges, practitioners, policy makers, military personnel, government officials and other commentators to consider legal, procedural and practical challenges in the implementation of Article 4(h). The Conference will provide a forum for important issues to be addressed through evidence-based research and policy debate.  The main issue for discussion at the Conference will be how to prevent and end mass atrocity crimes in Africa? As such, the over–arching theme of the Conference is ‘Article 4(h) @ 10: How to End Mass Atrocities in Africa? The Conference will also facilitate a debate to draw a “Statement on the Role of Article 4(h) in Ending Mass Atrocities in Africa.” The idea of “Pretoria Principles” is to providing actionable guidelines to governments, R2P focal points and practitioners on operationalizing R2P, in general, and particularly on preventing atrocities, compliance with international human rights and humanitarian law instruments, cooperation with international human rights institutions and the international criminal court.

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