Africa is failing the Responsibility to Protect its citizens

The twentieth century gives us a bleak past regarding war. The killing fields of Cambodia, the genocide in Rwanda and Srebrenica massacres, the last two under the supervision of the Security Council and peacekeeping forces of the UN peace. This legacy reflects the failure of each state to fulfil its responsibilities, as well as the collective failure of international institutions to maintain peace and the protection of civilian lives.

Intervention in states for human rights violation purposes was done under the right to intervene. It has brought a lot of controversy. That is why recently the right to intervene evolved to the responsibility to protect, putting emphasis on the state responsibility. The concern of the international community vis-à-vis the safety of people is not that recent, especially with the events that occurred during the 1990s (Iraq with the Kurds, 1992-1993 Somalia, Bosnia and Herzegovina 1993-1995), interest in the protection of populations has increased. The responsibility to protect, does not insist on the need for states to legitimize their actions, but rather on the claims, rights and prerogatives of potential stakeholders states. [1]

With the resurgence of conflict in 2013 on the African continent this article wants to take a look at the state of play of the principle. Is the principle in favour of the protection of the suffering population or other dimensions should play a bigger role? Humanitarian intervention in areas of armed conflict has always been controversial, by its presence or absence. Whether by inaction in Rwanda, or the intervention in Libya, there have always been complaints. Current trends reveal that wars and conflicts between states have become fewer and there are more battles for power among inner state players. This fact has pushed for implementation for the R2P. But why is it still possible for states to inflict violence with impunity to massive populations on the continent?

It is generally admitted that the legal framework for intervention is available on the continent whether it is at the continental level or sub-regional level. The article will briefly define the R2P and its criteria before delving into short analysis of the legal instrument available on the continent and the challenges around the implementation of the principle.

DEFINING R2P
The concept of the responsibility to protect was established by the International Commission on Intervention and State Sovereignty (ICISS). The Commission was set up following a call from the Secretary General of the UN in 1999 and 2000 to urge the international community to consider ways in which the intervention could and should exercise. Specifically, the commission was created in 2000 at the initiative of the Government of Canada and its report, ‘The Responsibility to Protect’ was presented in December 2001. The responsibility to protect is in essence, then, to provide protection and assistance to populations in danger. It applies to war crimes, crimes against humanity and ethnic cleansing. The principle consists of three essential elements: the responsibility to respond to an actual or apprehended human catastrophe, the responsibility to prevent and the responsibility to rebuild after the event. [2]

• The responsibility to prevent: the responsibility to address the underlying and direct causes of internal conflict and human-made crises
• The responsibility to react: the responsibility to respond to conflict and crises with appropriate measures, which may include sanctions, international prosecution and, in extreme cases, military intervention, whether consensual or otherwise
• The responsibility to rebuild: the responsibility to assist with post-conflict or post-crisis reconstruction and reconciliation.

The principle of the R2P was endorsed by the General Assembly of the United Nations in 2005 and unanimously reaffirmed in Resolution 1674 of the Security Council in 2006. This has been made possible by the criteria proposed by the ICISS. R2P is first and foremost the responsibility of the state. It does not establish criteria for the justifiable use of force beyond the exceptions of the United Nations Charter.

The Committee in its 2001 report, paragraph 2.30, says that the ‘Responsibility to protect resides first and foremost with the state whose people are directly affected [… because"> the domestic authority is best placed to take action to prevent problems from turning into potential conflicts.’ The Committee also noted the existence of a ‘subsidiary’ responsibility that would in fact be a responsibility to the community of states as a whole. This responsibility is activated when a particular state is clearly either incapable or unwilling to fulfil its responsibility to protect, or is itself the actual perpetrator of the crimes or atrocities in question.

R2P is not to be confused with military or humanitarian intervention even if intervention criteria are not really clear. [3] In this regard the observation made by Bellamy is worth a full quotation:

‘R2P sets out responsibilities that states have to their own citizens (the primary responsibility to protect), responsibilities that all states have as members of the international community (responsibilities to help build capacity and use peaceful means to prevent and protect) and responsibilities that certain institutions have (the Security Council’s responsibility to use all appropriate means when necessary, in partnership with relevant international organizations). […] R2P does not set out criteria for the use of force…’ [4]

Thus all states have a responsibility to protect their citizens, and all other states have a duty to assist their peers in this. Should a state fail in accomplishing this task, the Security Council in partnership with various regional organizations would then take the relay. Responsibility to protect, therefore, does not affect, but actually strengthens the legal obligation imposed on Member States to refrain from using force. Unfortunately, it is one thing to agree on an international principle that promises protection to population (R2P) but it is another thing entirely to find international agreement on the best way of providing protection in individual cases. [5]

R2P IN AFRICA IS NOT A MATTER OF LEGAL NORMS...

• AU level

The principle has been largely adopted in different documents on the continent either at a regional level or a sub-regional level. However the state of peace and security on the African continent is still full of challenges. The inability of the international community to solve crisis that erupted in Africa in early 1990s pushed African states to want to solve their crisis themselves.

African nations had already enshrined the R2P though in a different language before the formal adoption by UN in 2005. At some point, the R2P can be seen as part of the ASAP (African Solution to Africa’s Problems) doctrine on the continent. The wish of African states to deal with their own crisis and protection of their people can be seen even before AU. The Organisation of African Unity (OAU) in 1993 established a Mechanism for Conflict Prevention, Management and Resolution (CPMR) and as a matter of fact, the mechanism was not effective taking in account crises in Liberia, Sierra Leone or even Rwanda.

The AU took decisive steps in its constitutive act showing that it was ready to deal with arising problems. The AU set the steps for the ‘right 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.’ [6]

The OAU in 1963 represented pan Africans ideals and was to put an end to colonialism. However, the organisation with its doctrine of non-intervention was not efficient in dealing with problems afflicting the continent. With the AU, a shift in policy has been operated meaning that member states of the AU should be concerned with events happening in the neighbourhood. [7] Indeed the continent is full of potential and there is an urgent need to find solutions because it is generally admitted that without peace, development is not possible, and without development, peace is not durable. The adoption of these principles marks a clear normative break with the emphasis by post-colonial Africa on the sanctity of state sovereignty. [8]

To put words into practice the AU has established a mechanism for preventing and managing conflict. Article 2 of the Peace and Security (PSC) protocol defines the main mechanism of the African peace and security architecture (APSA) which includes the African standby Force (ASF), Panel of Wise (POW), Peace Fund (PF) and a continental early warning system (CEWS) which recognizes the role of regional economic communities and regional mechanism in promoting peace and security in Africa. Through that mechanism, the AU provides direct inputs for sub regional organisations in participating to peace and security.

The interesting point echoing the R2P at the AU level is that the consensus is found around the principle to intervene [militarily"> in a state. Unlike at the international level with the UN, ‘AU Constitutive Act and the Protocol to the PSC broke a new legal ground under international law. They are the first legal instruments to codify the right of an intergovernmental organisation to intervene for preventing or stopping the perpetration of such serious international crimes…’ [9]

• Regional Economic Communities (RECs)

It cannot be emphasised enough that the need to engage RECs in the application of the R2P. Indeed, RECs have the opportunity to work directly with the local communities, which have a positive influence on the local’s commitment to implement some of the proposed solutions on peace and security. As a matter of fact, most of the RECs that were founded for economic and integration purposes started now to focus on peace and security matters.

On the SADC (Southern African Development Community) level, Article 5 of the Treaty provides that the promotion and defense of peace and security is a core objective of the Community; Article 4 requires that Member States act in accordance with the principles of human rights, democracy and the rule of law; and, with particular resonance for R2P, Article 21 urges the Community to cooperate beyond their collective borders in the areas of politics, diplomacy, international relations and peace and security. [10] Similar provisions can be found in the East African Community (EAC) treaty or even COMESA (Common Market for Eastern and Southern Africa) and ECOWAS (Economic Community of West African States).

It is interesting to note that the International Conference on the Great Lakes Region (ICGLR) is the only intergovernmental organisation with an explicit mandate on Peace and Security matters strongly echoing R2P. The organisation founding element is the Pact on Security Stability and Development. It is a huge instrument with multiple elements as the Dar-es-Salaam Declaration (2004), ten Protocols, four Programs of Action (including 33 priority projects), and a set of implementing mechanisms and institutions. For instance the Protocol on Non-Aggression and Mutual Defense in the Great Lakes Region explicitly acknowledges the prior obligation of states with respect to R2P. Article 4(8) of the Non-Agression Protocol notes that the prohibition on the threat, or use of force in the Protocol “shall not impair the exercise of their [Member States’"> responsibility to protect populations from genocide, war crimes, ethnic cleansing, crimes against humanity, and gross violations of human rights committed by, or within a State.” [11]

...IT IS A MATTER OF POLITICAL ACTION AND FINANCIAL CAPACITY

The articulation of the principle of R2P and its endorsement by the international community offers potential to protect civilians from crimes against humanity, ethnic cleansing, genocide and war crimes. In Africa violations continue to occur despite the legal peace and security architecture to deliver on the principle. Ongoing conflicts and commission of atrocities across the continent from South Sudan to CAR are a test of whether leaders in regional and sub-regional bodies have the political will to deliver on the mechanisms and standards embodying R2P which they have put in place.

Libya is considered as the first application of the principle on the African continent, but the organisation has failed to accomplish its responsibility to protect. Reflecting back few years down the line after the Libyan crisis, AU could not intervene and was not strong enough to protect the civilians. As far as the AU is concerned for the Libyan crisis, they (AU Commission and the PSC) decided to adhere to a political solution to the Libyan Crisis which failed. Indeed the R2P principle is not limited to use of force. Diplomatic, humanitarian and other peaceful means should be given priority.

While looking at the intervention pattern of the AU, in Darfur for instance, it was probably too little too late. It is relevant to analyse the pattern of behaviour of the AU in cases of intervention as it will be important to see whether the AU is inconsistent in its interventions or are there some other political or logistical impediments to AU’s methods of intervention. Amid political dialogue, the continent witnessed foreign powers intervention French intervention in Mali and now Central African Republic and NATO in Libya. These interventions although welcomed by the States, showed the lack of capacity of the AU to rapidly handle crisis. A full analysis of these interventions is not possible in this short reflection. But it is interesting then to notice that despite the legal framework provided for intervention the continent is still struggling to deliver.

As stated earlier, the AU has, for example, established the African Standby Force, an international, continental peacekeeping force including civilian and police components for deployment in times of crisis in Africa. The force will be comprised of five regional brigades established by Africa’s regional economic communities. The operationalisation of the force is still facing huge financial and technical challenges from States even if it is acknowledged that this component of the APSA will help the organisation deliver its promise. There are several factors that suggest that Africa will continue to witness violent conflicts and political upheavals. [12] Thus the need to operationalise the African force is more than urgent.

To overcome the financial problem, an alternative has been found by AU members in the name of the African Capacity for Immediate Response to Crises (ACIRC). The ACIRC is based on the voluntarism and the capacities of the participating countries. It is commendable that some countries already proposed their contribution: Algeria, Angola, Chad, Ethiopia, Guinea, Mauritania, Niger, South Africa, Senegal, Sudan, Tanzania and Uganda. Far from being sceptical about this new alternative, AU at its last Summit of January 2014 took decisive step to operationalise the ACIRC as a transitional arrangement. [13] In its decision Assembly/AU/Dec.515 (XXII), it is said that the PSC of the Commission would coordinate the implementation of the force.

WAY FORWARD

Finally, it must be said that the implementation of the principle is not a legal issue, but also political. AU has moved from non interference doctrine to non-indifference. It is encouraging to witness the recent development on the implementation of the ACIRC as transitional measure. It is important that the AU commission does not take the transitional measure as a permanent one, as:

The ASF is one of the most critical elements of the APSA that will enable the AU to deliver on its promise of intervention to protect people in grave circumstances and to provide a prompt and robust response to manage and resolve African crises. It enables the PSC first to prevent and manage conflicts, among others by containing their spread or escalation, second to support its peace processes as a peace support mission, and third to enforce its decisions in cases of grave circumstances or to intervene. [14]

There is no doubt that the international community is increasingly concerned over the protection of citizens at risk. Challenges remaining for the AU to prevent and respond to atrocity crimes, and the actions that can be undertaken by civil society and other actors in strengthening this institution for the advancement of the Responsibility to Protect.

* Gino Vlavonou is Junior Fellow, Conflict Prevention and Risk Analysis Division-Nairobi, Institute For Security Studies

ENDNOTES

[1] Marianne Huard ‘la responsabilité de protéger, nouveau concept déclinable en une application effective ? le cas du canada’, Université Laval, septembre 2008, HEI, p5
[2] La responsabilité de protéger, Rapport de la commission internationale de l’intervention et de la souveraineté des Etats, CRDI, Canada, 2001, p18 paragraphe 2.32
[3] For in depth discussion on the matter, see Alex BELLAMY « the responsibility to protect and the problem of military intervention » International Affairs 84: 4 (2008) p 618, 2008
[4] Ibid. 9,
In fact, to avoid situations like that of Kosovo, where the Security Council was blocked by veto, the criteria provided a pathway for legitimizing intervention not authorized by the Security Council, but it has not received international support. Negative attitudes towards criteria of intervention were hardened by the US-led invasion of Iraq in 2003. Fearing that criteria might be used to justify the invasion the criteria of intervention has been rejected.
[5] Bellamy, Alex. "R2P–Dead or Alive?." The Responsibility to Protect–From Evasive to Reluctant Action? (2012): 11. Available at, http://tinyurl.com/nrbpmwg (accessed, 21/02/2014)
[6] Constitutive Act of the African Union (2000), article 4 (h), http://tinyurl.com/ovnplo8 (accessed, 01/10/2014)
[7] Kasaija, Phillip Apuuli. "The African Union (AU), the Libya Crisis and the notion of ‘African solutions to African problems’." Journal of Contemporary African Studies 31, no. 1 (2013): 117-138.
[8] International Refugee Rights Initiative, some reflections on the legal and political mechanisms bolstering the responsibility to protect: the african union and the great lakes, eastern, southern and horn of africa sub-regional arrangements, 13p, http://tinyurl.com/qb746fn (accessed, 12/04/2013)
[9] Solomon Derso, The role and place of the African Standby Force within the African Peace and Security Architecture, Institute for Security Studies paper, 209, (2010), http://tinyurl.com/pxhxjm9 (accessed, 02/02/2014)
[10] International Refugee Rights Initiative, Op. Cit., 6
[11] ICGLR, Pact on Security, Stability and Development, 2006, http://www.icglr.org/index.php/en/the-pact (accessed, 07/03/2013)
[12] Solomon Derso Op. Cit., 2
[13] Decision On The Operationalisation Of The African Capacity For Immediate Response To Crises Doc. Assembly/AU/4(XXII), http://tinyurl.com/nhu3cta (accessed 02/17/2014)
[14] Solomon Derso Op. Cit., 6

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