The African Union's right of intervenion and the UN system of collective security

Abstract

The African Union (AU) was created in 2001 in replacement of the Organization of the African Unity in order to address inter alia the issues of peace and security as well as gross violations of human rights on the continent. For this purpose, paragraphs (h) and (j) of Article 4 of the Constitutive Act of the AU provide respectively for “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”, and “the right of Member States to request intervention from the Union in order to restore peace and security.” While endowing the AU with the right of intervention, the constituent texts of the AU do not require it to seek authorization from the Security Council in order to undertake any intervention as is required by Article 53 (1) of the UN Charter. This paragraph provides that no enforcement action should be taken by a regional organization (like the AU) without the authorization of the Security Council. Only Article 17 (1) of the Protocol Establishing the Peace and Security of the AU calls for the Peace and Security Council to “cooperate and work closely with the [UN] Security Council.” For this cooperation, Article 17 (2) of the same Protocol underlines that “[w]here necessary” such recourse should be made to the UN, (and not specifically to the Security Council), not to request an authorization for the intervention but rather in order for the UN “to provide the necessary financial, logistical and military support” needed by the AU. Arguably, there is an apparent conflict between the provisions of the AU texts and those of the UN Charter, especially Article 53 (1), in which case the UN Charter would prevail pursuant to its Article 103. The object of this research was to respond to the brief question of whether the right of intervention of the AU as provided for in its constituent texts is in conformity with the UN Charter law. In other words, it was to find out whether the AU texts by authorizing the AU to intervene in its Member States establish a new reinterpretation of the UN Charter in particular its Articles 2 (4), 2 (7) and 53 (1) or whether the AU’s right of intervention is justifiable either under the UN Charter or under general international law. It came out of this study that despite the confusion raised by the AU texts regarding the Security Council’s authorization, under optimal conditions the AU has to seek a prior and express authorization of the Security Council in case it intends to intervene by military force under the circumstances of Article 4 (h) of its Constitutive Act. Otherwise, the intervening States would be in violation of the UN Charter. However, the AU’s intervention pursuant to Article 4 (j), be it forceful or not, to restore peace and security at the request of a concerned Member State is in conformity with the UN Charter.