Humanitarian Intervention in International Law

Humanitarian Intervention in International Law: The Right of Intervention of the African Union in a Member State in Respect of Grave Circumstances

1. Background

The Organization for African Unity (OAU) was established in 1963 by the then sovereign states of Africa and continued to be operational up until it was taken over by the African Union (AU) in 2002. The establishment of the African Union (the Union) was inspired and influenced by a number of factors, ranging from historical to socio-economic, as well as by developments around the world. Thus, the Constitutive Act of the African Union was adopted in Lome, Togo in July 2000 and entered into force in 2002.

Article 4 of the Constitutive Act lists down a number of principles of the continental organization. The principle of much relevance to this paper is Article 4 (h) of the Act which provides that the AU has 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.

The right of intervention has always been controversial in international law. Humanitarian intervention has been defined by the Danish Institute of Foreign Affairs as "coercive action by States involving the use of armed force in another State without the consent of its government, with or without authorization from the UN Security Council, for the purpose of preventing or putting to a halt gross and massive violations of human rights or international humanitarian law".

The above definition on humanitarian intervention calls into question a number of issues. The first of such issues concerns the age old principle of sovereignty and non-interference in the domestic affairs of states. It appears now that contemporary international law is in favor of intervention to halt those gross human rights violations than sit and look as those violations are undertaken with impunity. In other words, the international community has come to the conviction that the protection of human beings prevails the principles of sovereignty and non-interference in the domestic affairs of states.

The other issue worth noting in the above definition is as regards the authorization of the United Nations (UN) Security Council. The African Union is a regional arrangement within the meaning of Chapter VII of the UN Charter. While the UN Charter recognizes the existence of regional arrangements for the maintenance of international peace and security, it also requires the authorization of the UN Security Council. However, there is no mention of authorization of the Security Council on its right of intervention.

Article 4 (h) of the AU Act clearly states that it is the AU Assembly which is to decide on the intervention by the AU in respect of the circumstances stipulated under Article 4 (h). It has become rather clear now that the Peace and Security Council of the AU is the organ that is to recommend to the Assembly intervention.

2. Statement of the Problem

Although the AU Act talks about intervention, there is no mention of the UN Charter and members' obligations