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African Yearbook of International Law
Annuaire Africain de droit international
A C.I.P. Catalogue record for this book is available from the Library of Congress.

Printed on acid-free paper.

ISBN 90-04-14362-9

© 2005 by Koninklijke Brill NV, Leiden, The Netherlands.

Koninklijke Brill NV incorporates the imprints Brill Academic Publishers,

Martinus Nijhoff Publishers and VSP.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,
or transmitted in any form or by any means, electronic, mechanical, photocopying,
microfilming , recording or otherwise, without written permission from the Publisher.

Authorization to photocopy items for internal or personal use is granted by Brill Academic
Publishers provided that the appropriate fees are paid directly to The Copyright Clearance
Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change.

Printed and bound in The Netherlands

 AFRICAN YEARBOOK OF
INTERNATIONAL LAW

ANNUAIRE AFRICAIN DE
DROIT INTERNATIONAL

Volume 11
2003

Published under the auspices of the African Foundation for International Law
Publié sous les auspices de la Fondation Africaine pour le Droit International

Edited by / Sous la direction de

Abdulqawi A. YUSUF

MARTINUS NIJHOFF PUBLISHERS

LEIDEN / BOSTON
 AFRICAN FOUNDATION FOR INTERNATIONAL LAW
FONDATION AFRICAINE POUR LE DROIT INTERNATIONAL

Governing Board
Conseil d’administration

Georges ABI-SAAB (Egypt)

Kader ASMAL (South Africa)

Peter H. KOOIJMANS (Netherlands)

Edward KWAKWA (Ghana)

Tiyanjana MALUWA (Malawi)

Fatsah OUGUERGOUZ (Algeria)

Mpazi SINJELA (Zambia)

Abdulqawi A. YUSUF (Somalia)

 AFRICAN YEARBOOK OF INTERNATIONAL LAW
ANNUAIRE AFRICAIN DE DROIT INTERNATIONAL

GENERAL EDITOR – DIRECTEUR

Abdulqawi A. YUSUF (Somalia)

ASSOCIATE EDITORS – DIRECTEURS ADJOINTS

Mpazi SINJELA (Zambia) Fatsah OUGUERGOUZ (Algeria)

EDITORIAL ASSISTANT – SECRETAIRE DE REDACTION

Roland ADJOVI (Benin)

EDITORIAL ADVISORY BOARD – COMITÉ CONSULTATIF DE RÉDACTION

Georges ABI-SAAB (Egypt)

Andronico O. ADEDE (Kenya)
Mohammed BEDJAOUI (Algeria)
Sayeman BULA-BULA (Democratic Republic of Congo)
Christof HEYNS (South Africa)
Edward KWAKWA (Ghana)
Chris Maina PETER (Tanzania)
Tiyanjana MALUWA (Malawi)
Muna NDULO (Zambia)
The General Editor and the African Foundation for International Law are not in any
way responsible for the views expressed by contributors, whether the contributions
are signed or unsigned.

Les opinions émises par les auteurs ayant contribué au présent Annuaire, qu’il
s’agisse de contributions signées ou non signées, ne sauraient en aucune façon
engager la responsabilité du Directeur de l’Annuaire ou de la Fondation Africaine
pour le Droit International.

All communications and contributions to the Yearbook should be addressed to:

Prière d’adresser toute communication ou contribution destinée à l’Annuaire à :

General Editor, African Yearbook of International Law

E-Mail: <[email protected]>
Website: <http://www.ayil.org>

or / ou

General Editor, African Yearbook of International Law

c/o BRILL, Martinus Nijhoff Publishers
P.O. Box 9000, 2300 PA Leiden
The Netherlands
Website: <http://www.brill.nl>
 TABLE OF CONTENTS
TABLE DES MATIÈRES

SPECIAL THEME: AFRICAN UNION

THEME SPECIAL: UNION AFRICAINE

The Right of Intervention by the African Union:

A New Paradigm in Regional Enforcement Action? 3-21
Abdulqawi A. Yusuf

Mise hors-la-loi ou mise en quarantaine des gouvernements

anticonstitutionnels par l’Union Africaine ? 23-78
Sayeman Bula-Bula

The Establishment of an African Court of Human and Peoples’ Rights:

A Judicial Première for the African Union 79-141
Fatsah Ouguergouz

The African Union Takes a Legal Stand on Corruption 143-159

Mpazi Sinjela

GENERAL ARTICLES
ARTICLES GÉNÉRAUX

Mother Tongue Instruction in Africa: Human Rights Treaty Bodies and

the Language Problem in Education 163-192
Katrien Beeckman

Quelques réflexions sur le droit relatif au maintien de la paix au début

du XXIème siècle 193-215
Robert Kolb

L’article 2, paragraphe 7, de la Charte des Nations Unies :

une lecture à la lumière de la pratique récente de l’Assemblée
générale et du Conseil de sécurité des Nations Unies 217-262
Guillaume Etienne

Security Council Action in the Name of Human Rights 263-298

Christopher J. Le Mon & Rachel S. Taylor
viii

NOTES AND COMMENTS

NOTES ET COMMENTAIRES

Security Council Resolution 1540 and Non-Proliferation of Weapons

of Mass Destruction 301-311
Bimal N. Patel

Le Tribunal spécial pour la Sierra Leone : de sa genèse aux premiers

actes d’accusation 313-339
Pascal Turlan

Chronique des activités de la Cour internationale de Justice en 2002 341-382

Ludivine Keck-Tamiotti

Chronique des activités de la Cour internationale de Justice en 2003 383-426

Spyridon Aktypis & Mouloud Boumghar

BOOK REVIEWS
NOTES DE LECTURE

Inger Österdahl, Implementing Human Rights in Africa:

The African Commission on Human and Peoples’ Rights
and Individual Communications, 2002. 429-432
reviewed by James Busuttil

Vincent O. Orlu Nmehielle, The African Human Rights System:

Its Laws, Practice, and Institutions, 2001. 433-436
reviewed by James Busuttil

Mohamed Sameh M. Amr, The Role of the International Court of Justice

as the Principal Organ of the United Nations, 2003. 437-442
reviewed by Miša Zgonec-Rožej

Robert Kolb, Les cours généraux de droit international public

de l’Académie de La Haye, 2003. 443-445
recensé par Roland Adjovi

INTERNATIONAL LAW RESOURCES ONLINE

RESSOURCES EN DROIT INTERNATIONAL SUR INTERNET
African Organizations on Internet, Organisations africaines sur Internet 449-451
International Law on Internet, Ressources en droit international sur
Internet 452-454

ANALYTICAL INDEX 455-469

INDEX ANALYTIQUE 470-482
 SPECIAL THEME:
THE AFRICAN UNION

THÈME SPÉCIAL :
L’UNION AFRICAINE
THE RIGHT OF INTERVENTION BY THE AFRICAN UNION:
A NEW PARADIGM IN REGIONAL ENFORCEMENT ACTION?

Abdulqawi A. Yusuf*

1. Introduction

The Constitutive Act of the African Union (AU) – which has replaced the
Organization of African Unity (OAU) – provides as one of the basic
principles of the new Pan-African intergovernmental Organization under
Article 4(h):

“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”.

This constitutes a fundamental departure from the conservative stance of

the OAU whose Charter – adopted soon after the independence of most
African States in 1963 – established as one of its guiding principles
“Non-interference in the internal affairs of States”.1 It also represents an
innovative legal proposition since it establishes for the first time in the
history of regional arrangements or organizations the right to intervene in a
Member State on grounds of violation of human rights or humanitarian law.
A protocol on Amendments to the Constitutive Act Of the AU adopted on
3 February 2003 adds a new sub-paragraph to Article 4(h) which extends the
scope of the right of intervention to situations where there is “a serious threat
to legitimate order” in a Member State “to restore peace and stability to the
Member State upon the recommendation of the Peace and
Security Council”.2

*
General Editor. Associate Member of the Institut de Droit International.
1
Article 3(2), Charter of the Organization of African Unity. For an analysis, See
Z. Cervenka, The organization of African Unity, New York, 1969, pp. 30-68.
2
Protocol on Amendments to the Constitutive Act of the African Union adopted by the
1st Extraordinary Session of the Assembly of the African Union, Addis-Ababa, Ethiopia,
3 February 2003 (Article 4). The protocol has not yet entered into force.

A. A. YUSUF (ed.), African Yearbook of International Law, 3-21.

© 2005 African Foundation for International Law, Printed in The Netherlands.
4 Abdulqawi A. Yusuf

This paper examines the background to the right of intervention under the
AU Constitutive Act, its scope and the possible implications of its
application, as well as its relation to the UN Charter, and to the role of the
Security Council as the organ on which all UN Member States, including
African States, have conferred “primary responsibility for the maintenance
of international peace and security”.3 Finally, the paper addresses the
question whether this legal principle represents a paradigm shift in regional
enforcement action under the Charter system.

2. Background

When the first Pan-African intergovernmental organization (the OAU)

was established on 25 May 1963, article XIX of its Charter entitled
“Commission of Mediation, Conciliation, and Arbitration” provided that:
“Member States pledge to settle all disputes among themselves by peaceful
means and, to this end decide to establish a Commission of Mediation,
Conciliation, and Arbitration, the composition of which and conditions of
service shall be defined by a separate protocol to be approved by the
Assembly of Heads of State and Government. Said Protocol shall be
regarded as forming an integral part of the present Charter”. The protocol of
Mediation, Conciliation, and Arbitration was adopted on 21 July 1964 in
Cairo, Egypt.4 As evidenced by this important provision in the OAU Charter,
for which there is no corresponding provision in the Constitutive Act of the
AU, the main concern of the African States at the time was the prevention
and settlement of interstate disputes rather than intrastate conflicts. The main
emphasis of the OAU Charter, and its protocol, were therefore on the
manner in which conflicts between Member States of the Organization
would be settled.5 As no disputes had ever been referred to the Commission,
it died of institutional irrelevance following the abolition of its Permanent
Bureau by the OAU. As pointed out by Tiewul “in view of its history, the
bureau’s abolition perhaps entailed no great loss”.6 Neither did the
subsequent disappearance of the Commission itself.
Forty years later, the principal emphasis of the Constitutive Act of the
African Union as well as its Protocol Relating to the Establishment of the

3
Article 24 of the UN Charter.
4
See, T.O. Elias “The Commission of Mediation, Conciliation and Arbitration of the
Organization of African Unity”, British Yearbook of International Law (BYIL) 40 (1964),
p. 336. For the text, see International Legal Materials (ILM) 3 (1964), pp. 1116 et ss.
5
See, S.A. Tiewul, “Relations between the United Nations Organization and the
Organization of African Unity”, Harvard International Law Journal 16 (1975), where he
observes in respect of the Commission that “the strict limitation of its competence to
interstate disputes under article XIX of the OAU Charter rendered it irrelevant for the
settlement of internal conflicts” (p. 278).
6
Ibid.
 The Right of Intervention by the African Union 5

Peace and Security Council of the African Union (hereinafter the Peace and
Security Protocol) is explicitly on internal conflicts. This shift has come
about in a gradual manner as civil wars, and government and institutional
collapse have become widespread phenomena in the continent from the late
1980’s to the present. In a Declaration adopted in Cairo, Egypt, in 1993
(hereinafter the Cairo Declaration) the OAU established a Mechanism for
Conflict Prevention, Management and Resolution7 which, in keeping with
the overarching concern regarding internal conflicts, omitted any reference
to the Mediation, Conciliation and Arbitration protocol. Nonetheless, the
Cairo Declaration mentions both internal and interstate conflicts.8 Thus, it is
stated in Paragraph 9 of the Declaration that:

“No single internal factor has contributed more to the present socio-economic
problems in the continent than the scourge of conflicts in and among our
countries. They have brought about death and human suffering, engendered
hate and divided nations and families. Conflicts have forced millions of our
people into a drifting life as refugees and displaced persons, deprived of their
means of livelihood, human dignity and hope. Conflicts have gobbled up
scarce resources, and undermined the ability of our countries to address the
many compelling needs of our people”.

The declaration also acknowledges that the establishment of the Conflict

Prevention Mechanism was motivated by the need to bring a new
institutional dynamism to the process of dealing with conflicts in the
continent, thus implicitly recognizing the failure of the procedures laid down
under the Mediation, Conciliation and Arbitration Protocol which had never
been fully implemented or utilised. A major characteristic, and perhaps the
principal weakness, of the Mechanism established under the Cairo
Declaration was that it was based on, and was explicitly to be guided by, the
principles and objectives of the OAU Charter which strictly limited the
capacity of the Organization to interfere in the internal affairs of Member
States. These principles and objectives (including non-interference in the
internal affairs of States, respect of the sovereignty and territorial integrity of
Member States and inviolability of borders inherited from colonialism) are
recalled in Paragraph 14 of the Declaration which further provides that the
Mechanism will “function on the basis of the consent and the cooperation of
the parties to a conflict”. The requirement that the consent of the parties to a
conflict had to be obtained before any action could be undertaken in the

7
See, OAU Doc. AHG/DECL.3 (XXIX), 1993.
8
For an analysis, see S.B.O. Gutto, “The New Mechanism of the Organization of
African Unity for Conflict Prevention, Management and Resolution, and the
Controversial Concept of Humanitarian Intervention in International Law”, The South
African Law Journal 113 (1996), pp. 314-324.
6 Abdulqawi A. Yusuf

context of the Mechanism substantially weakened its effectiveness and

undermined its utility, particularly in internal conflicts where warlords were
involved.9
A primary objective of the Mechanism was to be the anticipation and
prevention of conflicts. It was built on the assumption that

“emphasis on anticipatory and preventive measures, and concerted action in

peace-making and peace-building will obviate the need to resort to the
complex and resource-demanding peace-keeping operations, which (our)
countries will find difficult to finance”.

Although this might have been, in theory, a reasonable and logical

approach to deal with conflicts for a resource-strapped Organization such as
the OAU, it did not work in practice since the Secretariat of the OAU, which
was designated as the “operational arm” of the Mechanism neither had the
institutional capacity nor the wherewithal to perform the functions entrusted
to it. Thus, the Mechanism failed to have any impact whatsoever on the most
murderous and destructive conflicts in the continent during the 1990’s
namely Rwanda, Somalia, Sierra Leone, Liberia and DRC. Nonetheless, it
deployed some observer missions in Burundi, Central African Republic and
Cote d’Ivoire.10 Faced with the lack of effectiveness of its own Mechanism,
the OAU had to resort, with regard to the majority of the African conflicts in
the 1990s, to the fallback position it had already provided for in the Cairo
Declaration which was to seek the assistance or where appropriate the
services of the United Nations under the general terms of the Charter,
particularly in cases where such conflicts required collective international
intervention and policing.11

9
In one case, reported by B. Kioko, a team dispatched to Somalia for discussions with the
warlords had to be recalled by the OAU because one of the warlords objected to the
presence in the delegation of a Somali official working for the Organization. B. Kioko,
“The Right of Intervention Under the African Union’s Constitutive Act: from Non-
Interference to Non-Intervention”, International Review of the Red Cross (IRRC) 85
(December 2003) 852, pp. 807-825.
10
On Burundi, See Eric G. Berman and Katie E. Sams, Peacekeeping in Africa: Capabilities
and Culpabilities, Geneva, UNIDIR 2000/3, OMIB, OAU Observer Mission in Burundi
(1993-1996), pp. 68-70; 2003, African Union Mission in Burundi (AMIB), and “Security
Brief”, African Security Review 12 (2003) 4, p. 38. On the Central African Republic, see
S/1997/561 regarding MISAB and S/2002/1113. On Côte d’Ivoire, see Report of the
Interim Chairperson on Conflict Situations in Africa, EX/CL/42(III), 8 July 2003.
11
Paragraph 16 of the Cairo Declaration.
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