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Regional Arrangements and the Maintenance of International Peace and Security: The Role of the African Union Peace and Security Council

  • Charles Riziki Majinge

Summary

This article examines the role of regional arrangements under the Charter of the United Nations (UN Charter) in the maintenance of international peace and security. The African Union Peace and Security Council (AU PSC), the organ within the AU charged with addressing threats to international peace and security on the African continent, is used as a case study. The author contends that the major challenges facing regional arrangements in exercising mandates under Article 53 of the UN Charter of the United Nations have more to do with inadequate financial and logistical resources than the nature of those mandates. Taking the AU’s role in Somalia, Sudan, and other African countries as examples, the article demonstrates that the AU PSC has failed to achieve its objective of maintaining peace and security precisely because the United Nations (UN) Security Council — a more powerful and better resourced organ — has failed to live up to its responsibility of extending the assistance necessary to enable the AU PSC to perform its functions. Consequently, the author concludes that the UN Security Council, when delegating powers to regional arrangements to maintain international peace and security, should provide adequate resources to such regional arrangements, especially those that will otherwise have minimal or no capacity to fulfil their mandate effectively.

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1 Constitutive Act of the African Union, 11 July 2000, OAU Doc CAB/LEG/23.15 (2000) (entered into force 26 May 2001) [Constitutive Act]; Packer, Corrine A and Rukare, Donald, “The African Union and Its Constitutive Act” (2002) 96 AJIL 365. See also Maluwa, Tiyanjana, “The Constitutive Act of the African Union and Institution-Building in Post-Colonial Africa” (2003) 16:1 Leiden J Int’l L 157 at 157–70; Maluwa, Tiyanjana, “Reimagining African Unity: Some Preliminary Reflections on the Constitutive Act of the African Union” (2001) 9 Afr YB Int’l L 3 at 315.

2 Constitutive Act, supra note i, art 5(2). The African Union Peace and Security Council (AU PSC) was established under the Protocol Relating to the Establishment of the Peace and Security Council of the African Union, 9 July 2002,online: ˂http://www.au.int/en/sites/default/files/997Peace_and_Security.pdf˃ (entered into force 26 December 2003) [AU PSC Protocol].

3 The AU PSC is composed of fifteen members. As ofJanuary 2011, its members are: Rwanda, Burundi, Benin, Ivory Coast (suspended in December 2010), Chad, Mauritania, Namibia, South Africa, Kenya, Djibouti, Zimbabwe, Nigeria, Libya, Equatorial Guinea, and Mali. See African Union, online: ˂http://www.africa-union.org/root/au/AUC/Departments/PSC/PSC.htm˃. See further Cilliers, Jakkie, “Hopes and Challenges for the Peace and Security Architecture of the African Union,” in Besada, Hany, ed, Crafting an African Security Architecture: Addressing Regional Peace and Conflict in the Twenty-First Century (Surrey: Ashgate, 2010) 37 at 3750.

4 Art 24(1) of the Charter of the United Nations, 26 June 1945, Can TS 1945, No 7 [UN Charter], designates the UN Security Council as the primary body responsible for determining threats to, and maintaining, international peace and security. See also Malone, David Mq ed, The UN Security Council: From the Cold War to the Twenty-First Century (Boulder, CO: Lynn Rienner, 2004).

5 Art 53 of the UN Charter, supra note 4, provides that the UN Security Council may delegate enforcement action in international peace and security matters to regional arrangements or agencies, such as the AU PSC.

6 Mulikita, Njunga-Michael, “Cooperation versus Dissonance: The UN Security Council and the Evolving African Union (AU)?” (2001) 9 Afr YB Int’l L 75 at 7577.

7 See generally Adebajo, Adekeye, The Curse of Berlin: Africa after the Cold War (New York: Columbia University Press, 2010). See also Deng, Francis et al. Sovereignty as Responsibility: Conflict Management in Africa (Washington, DC: Brookings Institution, 1996) 130 ; Gomes, Solomon, “The OAU, State Sovereignty, and Regional Security,” in Keller, Edmond J and Rothchild, Donald, eds, Africa in the New International Order: Rethinking State Sovereignty and Regional Security (Boulder, CO: Lynne Rienner, 1996) 37.

8 See UN Security Council, Report of the Secretary-General: The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa, UN Doc A/52/871-S/1998/31 (1998).

9 Makinda, Samuel M and Okumu, F Wafula, The African Union: Challenges of Globalization, Security, and Governance (London and New York: Routledge, 2008) at 2224. See also Christopher Clapham, Africa and the International System: The Politics of State Survival (Cambridge: Cambridge University Press, 1996) at 8–32.

10 OAU Charter, 25 May 1963, online: African Union ˂http://www.au.int/en/sites/default/files/OAU_Charter_1963_o.pdf˃ art 3 [OAU Charter]. See also Munya, P Mweti, “The Organization of African Unity and Its Role in Regional Conflict Resolution and Dispute Settlement: A Critical Evaluation” (1999) 19 BC Third World LJ 537 at 537–51.

11 OAU Charter, supra note 10.

12 Yusuf, Abdulqawi A, “Reflections on the Fragility of State Institutions in Africa” (1994) 2 Afr YB Int’l L 3 at 9. For an account of the human rights situation in Africa during this period, see Murray, Rachel, Human Rights in Africa: From the OAU to the African Union (Cambridge: Cambridge University Press, 2004).

13 Cairo Declaration on Border Disputes among African States Legitimizing National Borders Inherited from Colonial Times, reproduced in Brownlie, Ian, African Boundaries: A Legal and Diplomatic Encyclopaedia (London: C. Hurst and Company, 1979) at 11 [Cairo Declaration]. See Abraham, Garth, “‘Lines upon Maps’: Africa and the Sanctity of African Boundaries” (2007) 15 Afr J Int’l & Comp L 61. See also Yakpo, EKM, “The African Concept of Uti Possidetis: Need for Change?” in Yakpo, Emile and Boumedra, Tahar, eds, Liber Amicorum: Judge Mohammed Bedjaoui (The Hague: Kluwer Law International, 1999) 272 at 274–77; Levitt, Jeremy I, “Africa: A Maker of International Law,” in Levitt, Jeremy I, ed, Africa: Mapping New Boundaries in International Law (Oxford: Hart, 2008) 1 at 13.

14 OAU Charter, supra note 10, art 3. See Gomes, Solomon, “The Peace Making Role of the OAU and AU: A Comparative Analysis,” in Akokpari, John, Ndinga-Muvumba, Angela, and Murithi, Tim, eds, The African Union and Its Institutions (Sunnyside, South Africa: Fanele, 2008) 113 at 113–17. See also Englebert, Pierre, Africa: Unity, Sovereignty and Sorrow (Boulder, CO: Lynne Rienner, 2009).

15 OAU, Report of the Secretary General on the Establishment of an International Panel of Eminent Personalities to Investigate the Genocide in Rwanda and the Surrounding Events, Doc CM/2048 (LXVII) (1997). The panel’s report was released on 7 July 2000. International Panel of Eminent Personalities (IPEP), “Report of the 1994 Genocide in Rwanda and Surrounding Events, 2000 (Selected Sections)” (2007) 40 ILM 141.

16 Declaration of the Assembly of Heads of State and Government on the Establishment within the OAU of a Mechanism for Conflict Prevention, Management and Resolution, OAU Assembly, 29th Sess, OAU Doc AHG/DECL.3 (XXIX) (1993) [Mechanism for Conflict Prevention].

17 For an account of UN failures in Africa, see, for example, UN Security Council, Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, UN Doc S/1999/1257 (1999). See also IPEP, supra note 15.

18 Ibid.

19 Dunbabin, JPD, “The Security Council in the Wings: Exploring the Security Council’s Non-Involvement in Wars,” in Lowe, Vaughan et al. eds, The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (Oxford: Oxford University Press, 2008) 494 at 500–3.

20 Ambassador Said Djinnit, address delivered at Addis Ababa, 28June 2004, quoted in Powell, Powell, “The African Union’s Emerging Peace and Security Regime: Opportunities and Challenges for Delivering on The Responsibility to Protect” (2005) 119 North-South Institute 1 at 4.

21 For an introduction to the subject “African solutions for African problems,” see Goldmann, Matthias, “Sierra Leone: African Solutions to African Problems?” (2005) 9 Max Planck YB UN Law 457 at 468–71. See also Besada, Hany, Goetz, Ariane, and Werner, Karolina, “African Solutions for African Problems and Shared R2P” in Besada, , supra note 3, 1 at 110 ; Engel, Ulf and Porto, João Gomes, eds, Africa’s New Peace and Security Architecture: Promoting Norms, Institutionalizing Solutions (Farnham, UK: Ashgate, 2010).

22 UN Charter, supra note 4, art 24(1).

23 Szasz, Paul C, “The Security Council Starts Legislating” (2002) 96 AJIL 901. For detailed discussion of the powers of the UN Security Council, see De Wet, Erika, The Chapter VIIPowers of theUnited Nations Security Council (Oxford: Hart, 2004); Simma, Bruno, The Charter of the United Nations: A Commentary, 2nd edition (Oxford: Oxford University Press, 2002).

24 Luck, Edward C, “A Council for All Seasons: The Creation of the Security Council and Its Relevance Today,” in Lowe, et al, supra note 19, 61 at 6182. See also Bedjaoui, Mohammed, The New World Order and the Security Council: Testing the Legality of Its Acts (Dordrecht: Martinus Nijhoff, 1994).

25 UN Charter, supra note 4, art 39.

26 Akande, Dapo, “The International Court of Justice and the Security Council: Is There Room for Judicial Control of the Decisions of the Political Organs of the United Nations?” (1997) 46:2 ICLQ 309. See also Chinkin, Christine M, “Kosovo: A ‘Good’ or ‘Bad’ War?” (1999) 93 AJIL 841 at 845–47; Bedjaoui, , supra note 24 at 920 37–50.

27 Minta, Ike, “The Rwanda Conflict: With the Failure of Peacekeeping, Is Peacemaking Still Possible?” (1996) 4 Afr YB Int’l L 19 at 1925. See also Ayoob, Mohammed, The Third World Security Predicament: State Making, Regional Conflict, and the International System (Boulder, CO: Lynne Rienner, 1995).

28 Quigley, John, “The ‘Privatization’ of Security Council Enforcement Action: A Threat to Multilateralism” (1996) 17 Mich J Int’l L 249 at 270–73. See also Barnett, Michael, Eyewitness to a Genocide: The United Nations and Rwanda (Ithaca, NY: Cornell University Press, 2002).

29 Belamy, Alex, “Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq” (2005) Ethics & Int’l Affairs 31 at 3142. See also Weiss, Thomas G, “The Sunset of Humanitarian Intervention? The Responsibility to Protect in a Unipolar Era” (2004) 35:2 Security Dialogue 135 at 136–42.

30 Chesterman, Simon, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford: Oxford University Press, 2003) at 163251. See also Heinze, Eric, Waging Humanitarian War: The Ethics, Law, and Politics of Humanitarian Intervention (Albany, NY: State University of New York Press, 2009).

31 Sarooshi, Danesh, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Its Chapter VII Powers (Oxford: Oxford University Press, 2000) at 253.

32 UN Charter, supra note 4, c VIII. See also generally Sarooshi, supra note 31.

33 UN Charter, supra note 4, art 53(1).

34 Sarooshi, , supra note 31 at 248–52; UN Charter, supra note 4.

35 See Sarooshi, Danesh, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Oxford: Oxford University Press, 1999) at 7. There have been instances where the UN Security Council has retroactively “validated” regional arrangements’ interventions undertaken without prior UN Security Council authorization — for example, the intervention by the Economic Community of West African States (ECOWAS) in West Africa. The legality of such retroactive validation will not be addressed here, however, given that the focus of this article is advance resource provision to the AU PSC by the UN Security Council and, hence, on the prior authorization scenario.

36 Curtis, Devon and Nibigirwe, Gilbert, “Complementary Approaches to Peacekeeping? The African Union and the United Nations in Burundi,” in Besada, supra note 3, 109 at 109–25. See also Svensson, Emma, The African Mission in Burundi: Lessons Learned from the African Union’s First Peace Operation (Stockholm: Swedish Defence Research Agency, 2008) at 817 ; de Coning, Cedric, “The Evolution of Peace Operation in Africa: Trajectories and Trends” (2010) 14 J Int’l Peacekeeping 6 at 612.

37 Adebajo, Adekeye and Landsberg, Christopher, “South Africa and Nigeria as Regional Hegemons,” in Baregu, Mwesiga and Landsberg, Christopher, eds, From Cape to Congo: Southern Africa’s Evolving Security Challenges (Boulder, CO: Lynne Rienner, 2003) 171 at 171–84.

38 Ibid.

39 Nowrojee, Binaifer, “Joining Forces: United Nations and Regional Peacekeeping — Lessons from Liberia” (1995) 8 Harv Hum Rts J 129 at 129–45. See also Adebajo, Ad-ekeye, Liberia’s Civil War: Nigeria, ECOMOG, and Regional Security in West Africa (Boulder, CO: Lynne Rienner, 2002).

40 Majinge, Charles Riziki, “The Future of Peacekeeping in Africa and the Normative Role of the African Union” (2010) 2:2 Goettingen J Int’l L 463 at 481–83.

41 Ibid at 495–99.

42 See, eg, Sarooshi, , supra note 31 at 246.

43 Boulden, Jane, “United Nations Security Council Policy on Africa,” in Boulden, Jane, ed, Dealingwith Conflicts in Africa: The United Nations and Regional Organizations (New York: Palgrave Macmillan, 2003) 11 at 1123.

44 Adebajo, Adekeye, “The Security Council and Three Wars in West Africa,” in Lowe, et al, supra note 19, 465 at 476–80.

45 Ibid.

46 Cotonou Agreement [Liberia], 25 July 1993, UN Doc S/26272 (9 August 1993), Annex, online: ˂http://www.unhcr.org/refworld/docid/3ae6b5796.html˃ [ Cotonou Agreement].

47 Adebajo, , supra note 44 at 472–75, 489.

48 AU-PSC, Communiqué of the Sixty-Ninth Meeting of the Peace and Security Council, 69th Meeting, Doc PSC/PR/Comm (LXIX) (2007) [Communiqué of the Sixty-Ninth Meeting].

49 UN Security Council Resolution 1744, UNSC, 5633rd Meeting, UN Doc S/Res/1744 (2007).

50 See, eg, Security Council Resolution 1910, UNSC, 6266th Meeting, UN Doc S/Res/1910 (2010). This resolution reiterates the UN Security Council’s and international community’s commitment to support the African Union Mission in Somalia’s (AMISOM) peacekeeping efforts. See also UN Security Council Resolution 751, UNSC, 3069th Meeting, UN Doc S/Res/751 (1992); UN Security Council Resolution 1356, UNSC, 4332nd Meeting, UN Doc S/Res/1356 (2001 ); UN Security Council Resolution 1425, UNSC, 4580th Meeting, UN Doc S/Res/1425 (2002); UN Security Council Resolution 1519, UNSC, 4885th Meeting, UN Doc S/Res/1519 (2003); UN Security Council Resolution 1725, UNSC, 5579th Meeting, UN Doc S/Res/1725 (2006); UN Security Council Resolution 1772, UNSC, 5732nd Meeting, UN Doc S/Res/1772 (2007); UN Security Council Resolution 1801, UNSC, 5842nd meeting, UN Doc S/Res/1801 (2008); UN Security Council Resolution 1811, UNSC, 5879th Meeting, UN Doc S/Res/1811 (2008); UN Security Council Resolution 1814, UNSC, 5893rd Meeting, UN Doc S/Res/1814 (2008); UN Security Council Resolution 1844, UNSC, 6019th Meeting, UN Doc S/Res/1844 (2008). The Security Council has also adopted various presidential statements on Somalia that reaffirm its commitment to finding a lasting peace in Somalia. See, eg, Statement by the President of the UN Security Council, UNSC, 5486th Meeting, UN Doc S/PRST/2006/31 (2006); Statement by the President of the Security Council, UNSC, UNSC, 5611th Meeting, UN Doc S/PRST/ 2006/59 (2006); Statement by the President of the UN Security Council, UNSC, 5671st Meeting, UN Doc S/PRST/2007/13 (2007); Statement by the President of the UN Security Council, UNSC, 5695th Meeting, UN Doc S/PRST/2007/19 (2007); Statement by the President of the UN Security Council, UNSC, 5812th Meeting, UN Doc S/PRST/2007/49 (2007); Statement by the President of the Security Council, UNSC, 5970th meeting, UN Doc S/PRST/2008/33 (2008).

51 Murithi, Tim, “The African Union’s Foray into Peacekeeping: Lessons from the Hybrid Mission in Darfur” (2009) 14 J of Peace, Conflict & Development, online: ˂http://www.peacestudiesjournal.org.uk/dl/Issue%2014%20Article%2015%20Revised%2ocopy%20i.pdf˃.

52 IPEP, supra note 15.

53 Ibok, Sam, “The OAU/AU: Records, Challenges and Prospects,” in Bujra, Abdalla and Solomon, Hussein, eds, Perspectives on the OAU/AU and Conflict Management in Africa (Tripoli, Addis Ababa: African Center for Applied Research and Training in Social Development, Community of Sahel-Sahara States, Development Policy Management Forum, 2004) 11 at 16.

54 Sarooshi, , supra note 31 at 253.

55 Ibid at 251. Indeed, this view was reaffirmed by the German Constitutional Court in its decision that NATO can be classified as a type of collective security system. Deployment ofthe Federal Armed Forces [Bundeswehr] in International Operations (1994), BVerfGE 90, 286 (Constitutional Court of Germany).

56 Sarooshi, , supra note 31 at 251–52.

57 AU PSC Protocol, supra note 2, art 17.

58 The Fourth Ordinary Session of the AU Executive Council, meeting in Addis Ababa in March 2004, and acting on behalf of the AU Assembly, elected the fifteen members of the AU PSC and decided that it should be operationalized on 25 May 2004. See Decision on Election of Members ofthe Peace and Security Council, AU Executive Council, Fourth Sess, AU Doc EX/CL/Dec.81 (IV) (2004); and Decision on the Operationalization of the Peace and Security Council, AU Executive Council, Fourth Sess, AU Doc EX/CL/Dec.79 (IV) (2004), online: AU ˂http://www.africa-union.org/official_documents/council%20of%20minsters%20meetings/4th%2oordinarysession%2oAAEthiopia/ex%2ocl%2odec%2o75%20-%2092%2oiv.pdf˃.

59 Constitutive Act, supra note 1.

60 The AU PSC Protocol, supra note 2, entered into force on 26 December 2003 after ratification by twenty-seven AU member states.

61 Mechanism for Conflict Prevention, supra note 16.

62 Williams, Paul D, “The Peace and Security Council of the African Union: Evaluating an Embryonic International Institution” (2009) 47:4 J Modern African Studies 603 at 605.

63 Yusuf, Abdulqawi A, “The Right of Intervention by the African Union: A New Paradigm in Regional Enforcement Action?” (2003) 11 Afr YB Int’l Law 3 at 317. See generally Muyangwa, Monde and Vogt, Margaret A, An Assessment of the OAU Mechanism for Conflict Prevention, Management and Resolution, 1993–2000 (New York: International Peace Academy, 2002); Biswaro, Joram Mukama, Perspectives on Africa’s Integration and Cooperation from OAU to AU: “Old Wine in a New Bottle”? (Dar Es Salaam: Tanzania Publishing House, 2006).

64 Constitutive Act, supra note 1 , art 5(2).

65 AU PSC Protocol, supra note 2, art 3(a).

66 Ibid, art 3(b).

67 Ibid, art 3(c).

68 Ibid, art 3(d).

69 Ibid, art 3(e)-(f).

70 Ibid, art 4(a).

71 Ibid, art 4(b).

72 Ibid, art 4(c).

73 Ibid, art 4(e).

74 Ibid, art 4(f).

75 Ibid, art 4(h).

76 Ibid, art 4(i).

77 Ibid, art 4(k).qq

78 Ibid, art 4(j); Constitutive Act, supra note 1 , art 4(h).

79 AU PSC Protocol, supra note 2, art 5(1).

80 Ibid, art 5(2).

81 Ibid.

82 Ibid, art 5(2)(c).

83 Ibid, art 5(2)(f).

84 Ibid, art 5(2)(j).

85 Ibid.

86 Ibid, art 5(4).

87 Ibid, art 5(3).

88 This excludes the period of conflict in the South, which dates from 1956 when Sudan attained its independence. This conflict ended in 2005 after the signing of the Comprehensive Peace Agreement (Government of the Republic of Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation Army), 31 December 2004. For a comprehensive account of the conflict in southern Sudan and the South’s self-determination claim, see Charles Riziki Majinge, “Southern Sudan and the Struggle for Self-Determination in Contemporary Africa: Examining Its Basis under International Law” (2010) 53 German YB Int’l L 541.

89 For example, see Resolution 6/34, UNHRC, 6th Sess, UN Doc A/HRC/RES/6/34 (2007); Resolution 6/35, UNHRC, 6th Sess, UN Doc A/HRC/RES/6/35 (2007); Resolution 7/16, UNHRC, 7th Sess, UN Doc A/HRC/RES/7/16 (2008).

90 Human Rights Watch, “Rwanda: Silencing of Dissent Ahead of Elections” (2 August 20IO), online: Human Rights Watch ˂http://www.hrw.org/en/news/2010/08/02/rwanda-attacks-freedom-expression-freedom-association-and-freedom-assembly-run-presi˃. See also Longman, Timothy, “Limitations to Political Reform: The Undemocratic Nature of Transition in Rwanda,” in Straus, Scott and Waldorf, Lars, eds, Remaking Rwanda: State Building and Human Rights after Mass Violence (Wisconsin: University of Wisconsin Press, 2011) 25.

91 See, eg, the 2008 US State Department report on human rights in Swaziland. The report documents various abuses of human rights that are sometimes condoned by the state and the lack of accountability of leadership (it being an absolute monarchy). Bureau of Democracy, Human Rights, and Labor, “2008 Human Rights Report” (25 February 2009), online: US Department of State ˂http://www.state.gov/g/drl/rls/hrrpt/2008/af/ 119027.htm˃.

92 AU PSC Protocol, supra note 2, art 5(2).

93 Ibid, art 5(2)(f).

94 Majinge, Charles Riziki, “The Concept of Global Governance in Public International Law: Addressing Democratic Deficit and Enhancing Accountability in Decision-Making of the AU” (2010) 3:1 J Afr & Int’l L 1 at 619.

95 AU PSC Protocol, supra note 2, art 7(1).

96 Ibid, art 7(1

97 Ibid, art 7(1 )(r).

98 Ibid, art 7(3).

99 Ibid, art 8(13).

100 Ibid, art 16(1).

101 Ibid, art 17(1).

102 Kioko, Ben, “The Right of Intervention under the African Union’s Constitutive Act: From Non-Interference to Non-Intervention” (2003) 85 Int’l Rev Red Cross 807 at 821. See also Akuffo, Edward Ansah, “Cooperating for Peace and Security or Competing for Legitimacy in Africa? The Case of the African Union in Darfur” (2010) 19:4 African Security Review 74.

103 Common African Position on the Proposed Reform ofthe United Nations: “The Ezulwini Consensus,” AU Executive Council, 7th Sess, Doc Ext/EX/CL/2 (VII) (2005)at 6.

104 Ibid. Besides the question of intervention, the Ezulwini consensus reaffirms the long-standing demand of Africa for two permanent seats and five non-permanent seats on the UN Security Council. As to who would occupy these seats, this would be determined on the basis of criteria to be established by the AU. Ibid at 9–10.

105 AU PSC Protocol, supra note 2, art 17.

106 Ibid, art 17(2).

107 Ibid, art 17(3).

108 Funmi Olonisakin, “Liberia,” in Boulden, , supra note 43, 111 at 111.

109 AU PSC Protocol, supra note 2, arts 18–20.

110 Ibid, art 19.

111 African Charter on Human and Peoples’ Rights, 6 June 1981, 21 ILM 58, art 59 (entered into force 21 October 1986).

112 See, eg, Assembly, AU, Decision on the 17th Annual Activity Report of the African Commission on Human and Peoples’ Rights, 3rd Sess, AU Doc EX.CL/109 (V) (2004) (suspending the publication of the commission’s report).

113 Constitutive Act, supra note 1 , art 6(2).

114 Franke, Benedikt, Security Cooperation in Africa: A Reappraisal (Boulder, CO: First Forum Press, 2009) at 142–43.

115 Ibid at 143. See also Albert, Isaac Olawale, “The African Union and Conflict Management” (2007) 32:1 Africa Development 41 at 4755.

116 The Panel of the Wise was established pursuant to the AU PSC Protocol, supra note 2, art 11. The current members (as of January 2011 ) are Ahmed Ben Bella (North Africa), Salim Ahmed Salim (East Africa), Kenneth Kaunda (Southern Africa), Marie Madeleine Kalala-Ngoy (Central Africa), and Mary Chinery Hesse (West Africa). On the work of the Panel of the Wise, see 0luborode, Jegede Ademola, “The African Union Peace and Security Architecture: Can the Panel of the Wise Make a Difference?” (LL.M. dissertation, University of Pretoria, 2008). See also Nathan, Laurie, Mediation and the African Union’s Panel of the Wise, Crisis States Development Research Centre Discussion Paper no. 10, (2005), online: ˂http://eprints.lse.ac.uk/ 28340/ 1/dp10.pdf˃.

117 Modalities for the Functioning ofthe Panel ofthe Wise, as adopted by the Peace and Security Council at its 100th Meeting on 12 November 2007, art III, online: AU ˂http://www.africa-union.org/root/au/publications/PSC/Panel%20of%20the%2owise.pdf˃ [Panel ofthe Wise Modalities].

118 AU PSCProtocol, supra note 2, art 11 (2).

119 Panel of the Wise Modalities, supra note 117, art III.

120 AU PSC Protocol, supra note 2, art 8(2). Note that the minimum twice monthly meetings need only be at the ambassadorial level, whereas the AU PSC must meet at least yearly at the ministerial and heads-of-state-or-government levels. Ibid.

121 Ibid, art 8(6).

122 Sarkin, Jeremy, “The Role of the United Nations, the African Union and Africa’s Sub-Regional Organizations in Dealing with Africa’s Human Rights Problems: Connecting Humanitarian Intervention and the Responsibility to Protect” (2009) 53:1 J African L 1.

123 Africa’s conflicts continue to proliferate, affecting even countries previously considered peaceful: see Gettleman, Jeffrey, “Africa’s Forever Wars” (2010) 178 Foreign Policy 73.

124 See, eg, Assembly, AU, Resolution on Zimbabwe, 11 th Sess, AU Doc Assembly/AU/ Res.i (11) (2008).

125 AUPSC Protocol, supra note 2, art 7(e).

126 Communiqué ofthe Sixty-Ninth Meeting, supra note 48.

127 AU PSC, Report of the Chairperson of the Commission, AU Doc PSC/PR/2 (CV) (2008).

128 Communiqué of the Sixty-Ninth Meeting, supra note 48.

130 UN Security Council Resolution1972, 6496th Meeting, UN Doc S/RES/1972 (2011).

131 Fifth Committee Takes up Financing for Peacekeeping Missions in Haiti, Sudan, Hybrid Operation in Darfur, Support for African Union Mission in Somalia, UNGAOR, 65th Sess, UN Doc GA/AB/3990 (2011).

132 Hull, Cecilia and Svensson, Emma, African Union Mission in Somalia (AMISOM): Exemplifying African Union Peacekeeping Challenges (Stockholm: Swedish Defence Research Agency, 2008) at 2930.

133 Menkhaus, Ken, “Stabilization and Humanitarian Access in a Collapsed State: The Somali Case” (2010) 34:3 Disasters 320.

134 See, eg, UN Security Council Resolution 1872, UNSC, 6127th Meeting, UN Doc S/Res/1872 (2009). Among other things, this resolution reiterates the Security Council’s commitment to “a comprehensive and lasting settlement of the situation in Somalia.”

135 Hull, and Svensson, , supra note 132 at 2728. See also Sage, Andre Le, “Somalia’s Endless Transition: Breaking the Deadlock” (2010) 257 Strategic Forum 1 ; Pirozzi, Nicoletta, “Towards an Effective Africa-EU Partnership on Peace and Security: Rhetoric or Facts?” (2010) 45:2 International Spectator 85.

136 Hull, and Svensson, , supra note 132 at 40.

137 See comments of the secretary general during the UN Security Council’s 6407th meeting, UN Doc S/PV.6407 (2010). See also Vines, Alex, “Rhetoric from Brussels and Reality on the Ground: The EU and Security in Africa” (2010) 86:5 International Affairs 1091.

138 AU PSC, Communiqué on the Solemn Launching ofthe Tenth Meeting ofthe Peace and Security Council, 10th Meeting, AU Doc PSC/AHG/Comm (X) (2004).

139 Ibid.

140 Appiah-Mensah, Seth, “The African Union Mission in Sudan: Darfur Dilemmas” (2006) 15:1 African Security Rev 2.

141 In December 2010, the Sudanese government pulled out of the UN- and AU-supported Doha peace talks, contrary to the advice of the joint AU-UN mediator, Djibril Bassolé. See “Sudan Recalls Its Team from Doha but Says It’s Still Committed to Peace in Darfur,” Sudan Tribune (30 December 2010), online: Sudan Tribune ˂http://www.sudantribune.com/Sudan-recalls-its-team-from-Doha,37446˃. As a result, Ambassador Bassolé resigned from his position as the joint UN/AU mediator in April 2011. See Statement of the AUC Chairperson, “Resignation of the Joint Chief Mediator, Djibril Bassolé,” 29 April 2011, online: African Press Organization ˂http://appablog.wordpress.com/2011/04/29/statement-of-the-auc-chairperson-resignation-of-the-joint-chief-mediator-djibril-bassole/˃.

142 In 2010–11, the African Union Mission in Sudan’s assessed budget was US $1 billion while that of the African Union Mission in Darfur was US $1.8 billion dollars. See General Assembly Calls for Intensified Effort towards Goal of Conflict-Free Africa, UNGAOR, 65th Sess, UN Doc GA/1106 (2011).

143 Prosecutor v Omar Hassan Ahmad Al Bashir (Omar Al Bashir), Case ICC-02/0501/09, Warrant of Arrest for Omar Hassan Ahmad Al Bashir (Public) (4 March 2009). See also Akande, Dapo, “The Legal Nature of Security Council Referrals to the International Criminal Court and Its Impact on Al Bashir’s Immunities” (2009) 7:2 J Int’l Crim Just 333 ; Gaeta, Paola, “Does President Al Bashir Enjoy Immunity from Arrest?” (2009) 7:2 J Int’l Crim Just 315.

144 AU PSC, Communiqué ofthe 142nd Meeting ofthe Peace and Security Council, 142nd Meeting, AU Doc PSC/MIN/Comm (CXLII) (2008). Indeed, during its ordinary session held in Kampala in July 2010, the AU Assembly expressed its disappointment over the refusal of the UN Security Council to defer the International Criminal Court (ICC) arrest warrant against President Bashir of Sudan. See Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/AU/Dec. 270 (XIV) on the Second Ministerial Meetingon the Rome Statute of the International Criminal Court (ICC), AU Assembly, 15th Sess, AU Doc Assembly/AU/io(XV) (2009) at para 4.

145 See “Sudan Reiterates Rejection of Darfur Hybrid Courts,” Sudan Tribune (31 October 2009) online: Sudan Tribune ˂http://www.sudantribune.com/spip.php?page=imprimable&id_article=32973˃.

146 Rome Statute ofthe International Criminal Court, 17 June 1998, 2187 UNTS 90, art 17, 37 ILM 1002 (entered into force 1 July 2002) [Rome Statute]. See also generally Odero, Steve, “Politics of International Criminal Justice: The ICC’s Arrest Warrant for Al Bashir and the African Union’s Neo-Colonial Conspirator Thesis,” in Murungu, Chacha and Biegon, Japhet, eds, Prosecuting International Crimes in Africa (Pretoria, South Africa: Pretoria University Law Press, 2011) 145. See also Kleffner, Jann KThe Impact of Complementarity on National Implementation of Substantive International Criminal Law” (2003) 1:1 J Int’l Crim Just 86 ; Burke-White, William W, “Complementarity in Practice: The International Criminal Court as Part of a System of Multi-Level Global Governance in the Democratic Republic of Congo” (2005) 18:3 Leiden J Int’l L 557.

147 Rome Statute, supra note 146, art 16.

148 See, eg, Decision on the Report of the Commission on the Meeting of African States Parties to the Rome Statute of the International Criminal Tribunal (ICC), AU Assembly, 13th Sess, AU Doc Assembly/AU/Dec.245 (XIII) Rev (2009). In 2010, during the AU Assembly ordinary session in Kampala, the AU rejected the request of the ICC to open a liaison office in Ethiopia. See Decision on the Progress Report ofthe Commission on the Implementation of Decision Assembly/AU/Dec.2 7o(XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC), AU Assembly, 15th Sess, AU Doc Assembly/AU/io(XV) (2010). For growing concerns regarding the ICC and its activities in Africa, see Jalloh, Charles C, Akande, Dapo, and Plessis, Max du, “Assessing the African Union Concerns about Article 16 of the Rome Statute of the International Criminal Court” (2011) 4:1 African J Legal Studies 5 ; Eberechi, Ifeonu, “‘Rounding Up the Usual Suspects’: Exclusion, Selectivity and Impunity in the Enforcement of International Criminal Justice and the African Union’s Emerging Resistance” (2011) 4:1 African J Legal Studies 51.

149 Botswana and South Africa have publicly disagreed with the AU’s decision not to co-operate with the ICC, by reaffirming their international obligations under the Rome Statute. See, eg, “South Africa Reverses Course on ICC Arrest Warrant for Bashir,” Sudan Tribune (30 July 2009), online: Sudan Tribune ˂http://www.sudantribune.com/South-Africa-reverses-course-on,31986˃. See also Tladi, Dire, “The African Union and the International Criminal Court: The Battle for the Soul of International Law” (2009) 34 SAYB Int’l L 57 ; Stone, Lee, “Implementation of the Rome Statute in South Africa,” in Murungu, and Biegon, , supra note 146, 305.

150 The UN mission in Ivory Coast certified the election on 3 December 2010 and declared Alassane Ouattara the winner in accordance with UN Security Council Resolution 1765, UNSC, 5716th Meeting, UN Doc S/Res/1765 (2007). See also “Ban Reaffirms the UN’s Unwavering Support for Poll Result in Côte d’Ivoire,” UN News Centre (2 January 2011) online: UN News Centre ˂http://www.un.org/apps/news/story.asp?NewsID=37i9i&Cr=Ivoire&Cri˃.

151 AU PSC, Communiqué ofthe 252nd Meeting ofthe Peace and Security Council, 252nd Meeting, AU Doc PSC/PR/COMM. 1 (CCLII) (2010).

152 Ibid at para 4.

153 AU PSC Protocol, supra note 2, art 7(1 )(g).

154 Ibid, art 5(2).

155 During the sixteenth ordinary session of the Executive Council of the AU, Rwanda was elected to serve on the council for a two-year term with effect from April 20IO. Other members elected were Chad and Burundi (Central Africa), Mauritania (North Africa), Benin, Mali, and Ivory Coast (West Africa), Namibia and South Africa (Southern Africa), Djibouti (East Africa). See Election of the Members of the Peace and Security Council of the African Union Decision, AU Executive Council, i6thSess, AU Doc EX.CL/Dec.553 (XVI) (2010).

156 For example, the opposition candidate running for the Office of the President in Rwanda was disqualified from running in 2010 and imprisoned. She was charged with terrorism offences, among others. See “Rwanda: Opposition Leader Charged with Terrorism,” New York Times (26 October 2010), online: Afrika.no ˂http://www.afrika.no/Detailed/20012.html˃. Similarly, in January 2011, some high ranking military officers who disagreed with the government and went into exile were sentenced to prison for committing terrorist acts against the state. See David, Kezio-Musoke and Miwambo, Norman SNation Jails Nyamwasa for Twenty-Four Years for Terrorism,” The Monitor (17 January 2011), online: All Africa ˂http://allafrica.com/stories/201101170007.html˃.

157 In January 2011, the AU PSC established a High-Level Panel for the Resolution of the Crisis in Ivory Coast. The panel was composed of the heads of state of South Africa, Mauritania, Burkina Faso, Chad, and the United Republic of Tanzania as well as the chairperson of the AU Commission and the president of ECOWAS. It was chaired by the president of Mauritania, Mohamed Ould Abdel Aziz. The panel was mandated to “evaluate the situation and formulate, on the basis of the relevant decisions of the AU and ECOWAS, an overall political solution.” It was required to conclude its work in a period not exceeding one month. See AU PSC, Communiqué of the 259th Meeting of the Peace and Security Council, 259th Meeting, AU Doc PSC/AHG/COMM(CCLIX) (2011). See also generally the AU PSC, Report of the Chairperson of the Commission on the Situation in Côte d’Ivoire, 273rd Meeting, AU Doc PSC/PR/2 (CCLXXIII) (2011).

158 UN Charter, supra note 4, art 52(2). It can also be argued that the UN Security Council’s decision to support the AU’s mediation efforts was consistent with art 52 (3) of the UN Charter, which states that “[t]he Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council” (ibid, art 52(3)). See also UN Security Council Resolution 1975, UNSC, 6508th Meeting, UN Doc S/Res/1975 (2011), which, among other things, noted “the constructive efforts of the African Union High-level Panel for the resolution of the crisis in Côte d’Ivoire” and reiterated the UN Security Council’s “support to the African Union and the Economic Community of West African States (ECOWAS) for their commitment to resolve the crisis in Côte d’Ivoire.”

159 See ECOWAS, Heads of State and Government, Final Communiqué on the Extraordinary Session of the Authority of Heads of State and Government on Côte d’Ivoire, Extraordinary Session, ECOWAS Doc 188/2010 (2010).

160 Resolution on Zimbabwe, AU Assembly, lith Sess, AU Doc Assembly/AU/Res.i (XI) (2008), online: ˂http://www.africa-union.org/root/AU/Conferen-ces/2008/june/summit/dec/ASSEMBLY%2oDECISIONS%20i93%20-%20207%20(XI).pdf˃.

161 Global Political Agreement (Zimbabwe African National Union-Patriotic Front and the Movement for Democratic Change), 15 September 2008, online: Zimbabwe African National Union-Patriotic Front and the Movement for Democratic Change ˂http://www.zimfa.gov.zw/index.php?option=com_docman&task=doc_details&gid=12&Itemid=91˃.

162 See Decision on the Situation in Comoros, AU Assembly, 10th Sess, AU Doc Assembly/Dec.186 (X) (2007), requesting “all Member States capable of doing so to provide the necessary support to the Comorian Government in its efforts to restore, as quickly as possible, the authority of the Union in Anjouan.” This mission, which was code named “Operation Democracy in the Comoros,” was hailed by the African Union chairperson as a success. See AU PSC, Report of the Chairperson of the African Union Commission on the Situation in the Comoros Since the ioth Ordinary Session ofthe Assembly of the African Union Held in Addis Ababa from 31 January to 2 February 2008, 124th Meeting, AU Doc PSC/PR/2 (CXXIV) (2008).

163 AU Central Organ of the Mechanism for Conflict Prevention, Management, and Resolution at Ambassadorial Level, Communiqué of the Ninety First Ordinary Session of the Central Organ of the Mechanism for Conflict Prevention, Management, and Resolution at Ambassadorial Level, 91st Sess, AU Doc Organ/MEC/AMB/ Comm. (XCI) (2003).

164 AU, Communiqué ofthe 261st Meeting of the Peace and Security Council, AU Doc PSC/ PR/COMM (CCLXI) (2011) at para 2.

165 Ibid at para 3.

166 Ibid at para 5.

167 AU, Communiqué of the 265th Meeting of the Peace and Security Council, AU Doc PSC/PR/COMM.2 (CCLXV) (2011), online: AU ˂http://www.au.int/en/dp/ps/sites/default/files/2011_mar_11_psc_265theeting_libya_communique_en.pdf˃. The High-Level Panel is composed of the heads of state of Mali, Congo, Mauritania, South Africa, and Uganda. See Report of the Chairperson of the Commission on the Activities of the AU High Level ad hoc Committee on the Situation in Libya, AU Doc PSC/PR/2 (CCLXXV) (2011) at para 6, online: AU ˂http://www.au.int/en/dp/ps/sites/default/files/275%20-%20Report%2oon%20Libya%20_Eng%20_%20(3).pdf˃. It is worth noting the declaration issued by the AU Assembly on the state of peace and security in Africa on 25 May 2011, in which the Assembly reiterated “the need to assess the status of implementation of the AU instruments relating to democracy, good governance and the rule of law, in order to enhance their effectiveness and to adapt them, if necessary, to changing circumstances in the historical evolution of the African people and the progress made in the achievement of the strategic objectives of the AU.” See Declaration on the State of Peace and Security in Africa: Enhancing Africa’s Leadership, Promoting African Solutions, AU Assembly, Extraordinary Session on the State of Peace and Security in Africa, AU Doc EXT/ASSEMBLY/AU/DECL/ (01.2011 ) (2011).

168 Council of the League of Arab States Resolution 7360, 12 March 2011, UN Doc S/2011/137 (Annex) (2011 ) at para 1, online: UN ˂http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/263/05/PDF/N1126305.pdf?OpenElement˃.

169 AU High Level Ad Hoc Committee on Libya, Communiqué ofthe Meeting ofthe AU High Level Ad Hoc Committee on Libya, 19 March 2011, at para 2, online: AU ˂http://au.int/en/dp/ps/sites/default/files/COMMUNIQUE_EN_19_MARCH_2011_PSD_MEETING_AU_HIGH_LEVEL_AD_HOC_COMMITTEE_LIBYA_NOUAKCHOTT_ISLAMIC_REPUBLIC_MAURITANIA.pdf˃.

170 See, eg, the press release by the AU on 3 May 2011, stressing the need for a “political solution in Libya and the importance for NATO to respect the letter and spirit of UN Security Council Resolution 1973/2011.” AU, The AU Intensifies its Efforts towards a Political Solution in Libya and Stresses the Importance of the Respect ofthe Letter and Spirit of Resolution 1973 (2011), Press Release(3 May 2011). See also Decision on the Peaceful Resolution of the Libyan Crisis, Extraordinary Session of the Assembly of the Union on the State of Peace and Security in Africa, AU Doc EXT/ASSEMBLY/AU/DEC/(01.2011) (2011) at para 5.

171 See AU PSC, Report of the Chairperson of the Commission on the Activities of the AU High Level Ad Hoc Committee on the Situation in Libya, 275th Meeting, AU Doc PSC/PR/2 (CCLXXV) (2011). On 25-26 May 2011, the AU Assembly held an extraordinary session devoted to discussion of the work of the High-Level Committee on Libya and collective African responses to the situation there. See Decision on the Peaceful Resolution ofthe Libyan Crisis, supra note 170.

172 In Libya, the Transitional National Council rejected the “peace plan” advanced by the AU precisely because it did not provide for the removal of Muammar Gaddafi and his associates from power. In Ivory Coast, the Gbagbo regime rejected the “peace plan” advanced by the AU on the basis that it favoured the opposition. The opposition, led by Alassane Ouattara, rejected the AU’s appointment of the former foreign minister of Cape Verde as the mediator in the Ivorian crisis, accusing him of being too close to the regime of Laurent Gbagbo.

173 AU PSC Protocol, supra note 2, art 7(2)-(4).

174 Howard-Hassmann, Rhoda E, “Mugabe’s Zimbabwe, 2000-2009: Massive Human Rights Violations and the Failure to Protect” (2010) 32 Human Rts Q 898 at 909–12.

175 This argument is made in light of the fact that most donors do not keep their promises to fund the activities or peace missions of the AU. For example, out of the total US $213 million pledged in April during the AU/UN Donor Conference to support AMISOM and the Transitional Federal Government, by November 2009 only US $77.7 million had been received, of which AMISOM received US $25 million and the AU received US $16.6 million. See Omorogbe, Eki Yemisi, “Can the African Union Deliver Peace and Security?” (2011) 16 J Conflict & Security L 35 at 5859, who contends that between 2008 and 2010 there was a decline in funding to Somalia to the tune of US $178 million. See also “Donor Fatigue, Conflict Worsen Humanitarian Disaster in Somalia,” Afrique en ligne, 19 May 2011, online: ˂http://www.afriquejet.com/news/africa-news/donor-fatigue,-conflict-worsen-humanitarian-disaster-in-somalia-2011051912438.html˃.

176 For example, China voted down the decision to support peacekeeping missions in Macedonia and Guatemala mainly because these two countries had recognized Taiwan. See Dunbabin, supra note 19 at 502. See also Wuthnow, Joel, “China and the Processes of Cooperation in UN Security Council Deliberations” (2010) 3:1 Chinese J. Int’l Politics 55.

177 The Peace Fund is established under the AU PSC Protocol, supra note 2, art 21.

178 The AU budget for 2010 was approximately US $250 million. Of this amount, less than half, or US $118 million, was to be contributed by AU member states through normal assessment. The remainder, or $133 million, was to be secured from international partners. The approved budget for the AU PSC was only US $695,000. This budget was adopted during the sixteenth ordinary session of the Executive Council in Addis Ababa, Ethiopia, on 1 February 2010. See AU Executive Council, Decision on the Budget for the African Union, 16th Sess, AU Doc EX.CL/ 537 (XVI) (2010). Indeed, it is recognition of these inherent challenges facing the AU that has led the UN secretary-general to call for increased funding of the AU’s peace initiatives by the international community. See “Ban Calls for Predictable Funding for African Union Peace Initiatives,” UN News Centre (22 October 2010), online: UN News Centre ˂http://www.un.org/apps/news/story.asp?NewsID=36545&Cr=african+union&Cri˃.

179 See Majinge, , supra note 40 at 496.

180 For example, in February and March 2011, more than fifty peacekeepers from Burundi were killed in Mogadishu while trying to secure the city from Al Shaa-bab. Houreld, Katherine, “Fifty-Three African Union Peacekeepers Killed in Somalia Offensive,” Associated Press (5 March 2011), online: The Independent ˂http://www.independent.co.uk/news/world/africa/53-african-union-peacekeepers-killed-in-somalia-offensive-2233169.html˃).

181 For example, there has been a sense of competition between mediators in Darfur because of the differing interests of the various countries involved. See, eg, “Arab Competition over Roles Slowing Darfur Initiative: Qatar,” Sudan Tribune (12 January 2009), online: Sudan Tribune ˂http://www.sudantribune.com/Arab-competition-over-roles,29849˃.

Charles Riziki Majinge, LL.B. (University of Dar Es Salaam), LL.M. (Northwestern University School of Law, Chicago), is a doctoral candidate in the London School of Economics and Political Science. I am grateful to Dr. Tim Murithi of the Institute for Justice and Reconciliation in Cape Town, South Africa, and external anonymous reviewers whose comments and suggestions were extremely useful. It was also a great pleasure working with the editors of the Canadian Yearbook of International Law, whose meticulous support helped get this article into its current form. I gratefully acknowledge the insightful discussion with Judge James L. Kateka of the International Tribunal for the Law of the Sea and former member of the United Nations International Law Commission. I am most grateful to my joint doctoral supervisors Chaloka Beyani and Christine Chinkin, whose constant support in the preparation of my doctoral thesis continues to be outstanding and a source of inspiration. The author is solely responsible for any errors.

Regional Arrangements and the Maintenance of International Peace and Security: The Role of the African Union Peace and Security Council

  • Charles Riziki Majinge

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