The African Union (AU) The AU was created in July 2000 as the successor institution to the Organisation of African Unity (OAU), the pan-African political entity that had existed since 1963. The AU became operative in July 2002. Its rather complex institutional framework, which has loosely been based on the European Union, comprises the Assembly of Heads of State and Government, the Executive Council (EX), the Pan-African Parliament (PAP), the Court of Justice (not yet in operation), the Commission, the Permanent Representatives Committee (PRC), the Peace and Security Council (PSC), the Economic, Social and Cultural Council (ECOSOCC), and the Financial Institutions (not yet in operation). Other associated entities include the African Commission on Human and Peoples' Rights and the African Court of Human and Peoples' Rights (not fully in operation). The AU principles and objectives include the unity and solidarity between African states; the defense of Member States' sovereignty; Africa's political and socio-economic integration; the promotion of democratic principles and institutions, popular participation, good governance and sustainable development; the promotion and protection of human rights; and enabling the continent to play its rightful role in the global economy and in international negotiations. The AU is the only regional organization to have been expressly authorized to intervene in a Member State when grave circumstances (namely, war crimes, genocide or crimes against humanity) are present. Currently, it has a membership of 53 states, i.e. all African countries with the exception of Morocco. Recent Developments: The criminal case against Hissène Habré, former president of Chad Habré was a dictator like so many other African rulers. He was president of Chad from June 1982 until December 1990, when he was deposed and went into exile in Senegal. He has allegedly been responsible for the killing of a large number of people (probably in the thousands) and for an even larger number of acts of torture (tens of thousand). On 19 September 2005, Belgium, acting under its extraterritorial criminal legislation, which was promulgated on 1 August 2003, indicted him for crimes against humanity, torture, war crimes and other human rights violations.[1] On the basis of the indictment, Belgium asked Senegal to extradite him.[2] On 15 November 2005, Senegal did arrest Habré but the competent domestic court ruled that it lacked jurisdiction to determine on his extradition to Belgium. To alleviate itself from a potentially complicated situation, a fortnight later, Senegal placed Habré "at the disposal of the African Union" and asked it to recommend the appropriate jurisdiction to prosecute him. In January 2006, the AU Assembly decided to appoint a Committee of Eminent African Jurists with terms of reference to consider all aspects and implications of the case as well as to propose viable options for his trial.[3] In the meantime, a number of Chadian nationals had brought a complaint before the UN Committee against Torture (the treaty body established under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and mandated with examining complaints by individuals against contracting parties) against Senegal for not having prosecuted Habré and for failing to extradite him to a third country that would be prepared to put him on trial. The Committee found in favour of the complainants and settled a number of issues as regards Senegal's role in the non-prosecution of Habré.[4] The Eminent Jurists Committee submitted its Report promptly for the Seventh Ordinary Assembly Session on 1 July 2006. It recommended that Senegal prosecute Habré "in the name of Africa" without explaining in detail what this novel proposition entailed.[5] The Assembly considered that the AU lacked a legal organ to try him and, consequently, mandated Senegal to prosecute him and to ensure that he receives a fair trial.[6] Even though the Assembly's pronouncement was correct from a strictly legal point of view, it is submitted that there might be other ways and means to compensate for this lack. One suggestion would be for an African state to lodge an inter-state complaint or for interested individuals to lodge private complaints against Senegal with the African Commission of Human and Peoples' Rights pursuant to, respectively, Article 49 and Article 55 of the African Human Rights Charter; these complained could have been founded on the Torture Committee's conclusions. The other suggestion would be to bring a test case before the African Court of Human and Peoples' Rights, which in theory has become operative since 2004 but still remains inactive,[7] and explore whether the Court would be prepared to effectively rule on individuals and not on contracting states. In the event, Senegal did nothing to implement the decision issued by the Assembly, which repeated the mandate at the January 2007 session.[8] Again, Senegal did not commence proceedings against Habré but the Assembly did not discuss the issue of its non-compliance during its July 2007 and January/February 2008 sessions. The Habré case was running out of steam and the AU inaction portrayed it as a powerless institution, which was unable to confront complex situations and to assail those Member States that were not complying with its Decisions. It was perhaps a bad time for the AU, which was seen like behaving as a 'club for dictators'. Regarding Senegal, it had always maintained that internal constraints prevented it from bringing Habré to trial. However, in mid April 2008 Senegal announced that the National Assembly had amended the problematic provisions in the Constitution, which (a) prohibited the prosecution of crimes (including crimes against humanity) that were committed prior to the promulgation of the relevant legislation; (b) stipulated a ten-year statute of limitations (which would have allowed the prosecution against Habré to collapse); and (c) barred the prosecution of crimes committed outside its territory. The amendment procedure was apparently completed in late July 2008. The trial, the cost of which Senegal has estimated at USD 45million, has still not started for a simple reason: Habré has yet to be formally prosecuted! **** One way of viewing the case of former Chadian President Hissène Habré is that it constitutes the first ever occasion that the African Union has put into practice its right to intervene in a Member State's internal affairs (in casu, Senegal)[9] and has implemented the principle of condemning and rejecting impunity and political assassination.[10] It is submitted that this is not the correct approach: Habré should not be construed as Senegal's internal affair. He was a citizen of Chad, who fled to Senegal when his regime collapsed and who was accused by Belgium for having committed torture and other acts that would probably qualify as "crimes against humanity". The nexus with Senegal is that he resides in its territory and, of course, that Senegal tolerates his presence. However, as Habré has been charged by another state with the commission of serious crimes, Senegal has a number of international obligations, which primarily flow from the fact that it participates in the UN Torture Convention. The rationale behind the Convention is that any contracting party, in whose territory the person accused of torture is located, shall either prosecute him itself or shall extradite him to another contracting party (in casu, Belgium) where he must be brought to a fair trial. Considering that Senegal did not consent to Habre's extradition to Belgium, it is under the other international obligation, namely to prosecute him and to try him fairly and justly. Finally, Senegal might have other international obligations deriving from the AU Constitutive Act (e.g. Article 3(h) as well as Article 4(m) and (o)) and the African Human Rights Charter. Therefore, the way the AU has handled the affair (specifically through the aforementioned Assembly Decisions) in conjunction with the fact that it was Senegal itself that placed Habré "at the disposal of the African Union" should lead to the conclusion that the Organization was not interfering with its internal affairs but was in effect dealing with Senegal's international responsibility. However, given the transnational aspects that characterize the case of Habré and the stated inability of the current African judicial and quasi judicial institutions to deal with the case, it is perhaps unfortunate that the Assembly did not play with the idea of creating an ad hoc internationalized regional criminal court, akin to those promoted by the United Nations in Sierra Leone, Cambodia and Lebanon. Arguably, this would have been an excellent opportunity to generate a discussion on an array of issues that have plagued Africa: the roots of gross violations of human rights; the tradition of non prosecution of former and serving heads of state accused of heinous crimes; the culture of impunity; etc. In time, some form of indigenous African jurisprudence might have emerged which, together with the jurisprudence emanating from the International Criminal Court of Rwanda and the decisions of the African Human Rights Commission (and Court?), could have led to a much-needed corpus of legal rules and principles. Considering that this corpus would reflect peremptory rules of international law, African states would be under a duty to apply it and the African Union could demand compliance with it. Indeed, it would enable the Organization to fend off any cries for interfering with the Member States' domestic legal orders. The case of the trial of Habré is anything but over. With some determination, the African Union could have used it as a test case to adopt a far more pro-active stance and to show to the world at large that some things could change. Dealing with low intensity security threats: Conflict in The Comoros The most recent constitutional crisis in the Comoros is a good illustration, on the one hand, of the way the African Union and in particular the African Peace and Security Council (PSC), has handled security situations of low intensity and, on the other hand, of other stakeholders' involvement, which might not always be officially sanctioned.[11] Since gaining its independence from France in July 1975, the Union of the Comoros Islands, which is composed of the Autonomous Islands of Grande-Comoros, Anjouan and Mwali, has been plagued by continuous unrest and coups d'etat. In December 2001, a new Constitution was promulgated. Its aim was to afford greater autonomy to the islands, to provide for a rotating presidency among the islands as well as for a separate presidency of the Union. In preparation for the elections for choosing the islands' presidents, which were due to take place on 10 June 2007, the PSC authorized the deployment of the African Union Electoral and Security Assistance Mission to The Comoros (MAES). It included civilian personnel and police and military components from the Republic of South Africa, Senegal, the Sudan and Tanzania.[12] A few days before the elections, the Union President decided to postpone them for a week in the island of Anjouan on the ground that under the prevailing conditions no free and transparent elections could have taken place. Although, arguably, this ought to have been considered as a purely internal affair for an independent and sovereign Member State, the PSC issued a Communiqué where it "took note" of this decision, "endorsed" the assessment that the prevailing conditions did not guarantee democratic voting, and indicated that, should the elections be held as planned, they would not be recognized by the AU and the international community.[13] In the event, voting took place in Anjouan as scheduled and the incumbent President, General Mohamed Bacar, won 73% of the vote. Notwithstanding that the other four candidates boycotted the election and the result was never recognized by the Union government, he was promptly sworn into office on 14 June 2007. A crisis broke out between the "de facto" authorities in Anjouan and the Union government. As it could not be resolved, the so-called Ministerial Committee of the Countries of the Region on The Comoros (hereinafter, the "Committee") was established under the coordination of the Republic of South Africa and with the participation of Tanzania, Mozambique, Mauritius, Seychelles, Kenya and Madagascar. Even though it would appear that no AU organ had sanctioned the Committee, it met twice on June 19, 2007 and on July 8-9, 2007 and formulated specific recommendations and conclusions[14] for which the PSC expressed its full support.[15] When the de facto authorities ignored them, the PSC "deplored the intransigence displayed" and the lack of cooperation with the regional initiative,[16] which, it should be repeated, had apparently not been expressly and officially endorsed. The PSC discussed next the situation in October 2007. The fact that the 'illegal authorities of Anjouan' had continued to reject the Committee's proposals of June and July 2007 in conjunction with the fact than "any further delay in the resolution of the crisis would further destabilize" the Comoros led the PSC to "reiterate" its determination to ensure that the de facto authorities comply fully and unconditionally with, inter alia, the demands of the countries of the region. Furthermore, it approved the Committee's additional recommendations submitted on September 18, 2007 and decided that AU Member States shall impose the following sanctions against the 'illegal authorities' for an initial period of 45 days: (a) prevent the entry into their territories of all individuals constituting a threat to the peace and security in the Comoros; and (b) freeze their funds and assets. At the same time, the PSC reviewed the mandate of MAES and instructed it to support the sanctions' implementation, to establish in Anjouan an internal security force, and to facilitate the restoration of the Union government's authority on the island. Finally, the PSC created a follow-up mechanism consisting of two of its Members (Angola and Senegal) as well as representatives of the countries of the region, the Union government and the AU Commission.[17] The PSC extended the imposed sanctions and the mandate of MAES until the end of February 2008.[18] During its January/February 2008 session, the AU Assembly dealt with the Comoros situation on two different instances. The first instance was in the course of examining the PSC's Annual Activity Report. There, it simply expressed its full support for the Union government's efforts "in pursuance of the pertinent decisions of the PSC with a view to restoring State authority in Anjouan and put[ing] a definite end to the crisis from the attitude of Anjouan's illegal authorities".[19] The second instance was when it deliberated the situation in the Comoros as a separate item on the agenda. By adopting Decision 186 (X), the Assembly effectively approved the activities of MAES, avoided making any references to the Committee and urged the UN Security Council to adopt a Resolution that would have endorsed the sanctions imposed by the PSC.[20] Even though Decision 186 (X) did not expressly consent to the deployment of foreign troops on the soil of Anjouan to overturn the 'illegal authorities', it was presumed that it did so. Thus, on 25 March 2008, Operation 'Democracy in The Comoros' was launched by Comorian forces, which were backed by Tanzania, the Sudan, Libya and Senegal, while France and the United States of America provided transportation and logistics support. The 'illegal regime' was successfully removed,[21] and Bacer himself fled. On 30 April 2008, the PSC extended for six months the mandate of MAES, which was now authorized to establish an internal security force.[22] With the constitutional order restored, new elections were planned for the President of the Autonomous Island of Anjouan. The first round took place on 15 June (turnout was less than 50% of registered voters), followed by a run-off on 29 June 2008. **** Despite the fact that the situation in the Comoros is one of the less important cases that the AU has had to address, the role of the Ministerial Committee, the PSC and the Assembly in the handling of the crisis should be evaluated. As far as the former stakeholder is concerned, it is submitted that the Committee did not confine itself to the role of an intermediary but moved on to the formulation of recommendations (rather in the form of ultimatums), which were later converted into AU policy by the PSC. Even though the South African Foreign Ministry has claimed that the AU had asked the Committee to facilitate peace and national reconciliation in the Comoros, this cannot be corroborated by the action of the AU organs. On the contrary, judging by how the PSC has handled the affair, it would appear that it 'delegated' the management of the Comoros situation to the Committee; thereafter, it was only happy to follow and rubberstamp the Committee's suggestions and recommendations. To put it otherwise, the Committee was seen to act as the "agent" and the PSC as the "principal". Given the geographical and socio-economic location of the Comoros (a small and poor archipelago country) and the fact that it has faced internal strife ever since it gained its independence, it was obvious that the latest constitutional crisis could not have escalated to a regional security threat. Therefore, the establishment of MAES had probably more to do with ensuring that the presidential elections were held in a free and transparent environment rather than dealing with any security problems. However, with the crisis in Anjouan escalating, the PSC would appear to have been content with letting the Committee take the initiative, work out solutions and, when required, to back it up by adopting the necessary decisions including authorization for (what would amount to) use of force in a sovereign Member State's territory. The obvious question that arises is whether the PSC would have followed the same course of action, if it had been the security situation in a different Member State (one cannot but think the recent developments in Zimbabwe). As far as the Assembly is concerned, the fact that it asked the UN Security Council (SC) to adopt a Resolution approving the PSC imposed sanctions arguably raises the issue whether, from the Assembly's point of view, the PSC might have exceeded its powers and belatedly the Security Council's approval was sought.[23] It is interesting to note that the SC has not addressed any of the recent crises in the Comoros and, therefore, it was almost improbable that it would suddenly be seized of the matter and approve the punitive measures by the PSC. Indeed, when the political instability of the Comoros was brought to the SC attention through the submission of the Resolutions adopted by the Islamic Conference of Foreign Ministers in June 2004,[24] the Council did not discuss it at all.[25] During its latest Session (July 2008), the AU Assembly did not address specifically the March 2008 operation and has left open the question whether military actions by the PSC need to be legitimized by the Assembly or the latter will dodge the issue as long as everything had a happy end. In the event, the Assembly expressed its satisfaction with operation "Democracy in the Comoros", expressed its gratitude to the Members States that supported it as well as "to the countries of the region, under the coordination of the Republic of South Africa, which spared no effort to come to the aid of Comoros and support the reconciliation efforts".[26] Konstantinos D. Magliveras Associate Professor in the Law of International Organizations School of Mediterranean Studies, University of the Aegean Footnotes:
1
See KONSTANTINOS MAGLIVERAS & GINO NALDI, THE AFRICAN UNION, para. 128 (2008) (forthcoming). For background facts, see the Habré profile by Trail Watch, http://www.trial-ch.org/en/trial-watch/ 2 See B. Baker, Twilight of Impunity for Africa's Presidential Criminals 25 THIRD WORLD Q. 1487-1499 (2004); and R. Brody, The Prosecution of Hissène Habré - An "African Pinochet 35 NEW ENG. L. REV. 321 (2001). 3 African Union [AU], Decision on the Hissène Habré Case and the African Union, AU Doc. Assembly/AU/Dec. 103 (VI) (Jan. 24, 2006). 4 UNITED NATIONS, COMMITTEE AGAINST TORTURE,, COMMUNICATION NO. 181/2001: SENEGAL, U.N. Doc. CAT/C/36/D/181/2001 (May 19, 2006), reproduced in U.N. Report of the Committee against Torture, Thirty-fifth session and thirty-sixth session, U.N. Doc. A/61/44 (Nov. 1, 2006). For the follow-up to the complaint, see U. N. Report of the Committee against Torture, Thirty-seventh session and thirty-eighth session, U.N. Doc. A/62/44 (Dec. 1, 2007), pp. 111-115. During the thirty-ninth (Nov. 2007) and the fortieth (May 2008) Committee sessions there was apparently no action taken on the complaint. 5 See AU, Report of the Committee of Eminent African Jurists on the Case of Hissène Habré, (July 1, 2006), available at www.africa-union.org. 6 AU Assembly, Decision on the Hissène Habré Case and the African Union, AU Doc. Assembly/AU/Dec. 127 (VII) (July 2, 2006). 7 On developments regarding this judicial organ, see my previous Report on the African Union, (Apr. 2, 2008), http://www.asil.org/rio/africanunion.html. 8 AU Assembly, Decision on the Trial of Mr H. Habré and the African Union, AU Doc. Assembly/AU/Dec. 157 (VIII) (Jan. 30, 2007). See Generally, Human Rights Watch, Hissène Habré and the Senegalese Courts: A Memo for International Donors, December 2007, at http://hrw.org/backgrounder/africa/habre1207/index.htm. 9 See Constitutive Act of the African Union art. 4(h), Jul. 11, 2000, 2158 U.N.T.S. 3
10
Id. Article 4(o). This argument was advocated in: TOWARDS A PEOPLE-DRIVEN AFRICAN UNION: CURRENT OBSTACLES AND NEW OPPORTUNITIES, 44 AFRICAN NETWORK ON DEBT AND DEVELOPMENT, OPEN SOCIETY INITIATIVE FOR SOUTHERN AFRICA AND OXFAM GB, , (Jan. 2007), available at http://www.soros.org/resources/articles_publications/ 11 MAGLIVERAS & NALDI, supra note 1, paras. 215-218 (forthcoming). 12 AU, Peace & Security Council, Communiqué PSC/MIN/Comm.1 (LXXVII), 77th Meeting, (May 9, 2007). Note that the deployment of MAES was financially assisted by the League of Arab States, in which the Comoros has participated since 1993. 13 AU, Peace & Security Council, Communiqué PSC/PR/COMM (LXXVIII), 78th Meeting, (June 9, 2007). 14 Note that the separatists in the Anjouan had caused problems during the time of the Organization of the African Unity (OAU) as well. Thus, in 2000 the Council of Ministers had recommended to the Assembly the taking of military measures against the separatists and had also requested the countries of the region, under the coordination of the Republic of South Africa, to take all appropriate steps; see AU Council of Ministers, Decision on the Comoros, OAU Doc. CM/Dec. 523 (LXXII) Rev. 1 (July 8, 2000). The Assembly approved the recommendations and authorized these countries as well as the Central Organ of the Mechanism for Conflict Prevention, Management and Resolution (the predecessor to the PSC) to determine the modalities of the military measures to be taken; see AU Assembly, Decision on the Comoros, OAU Doc. AHG/Dec. 149 (XXXVI) (July 12, 2000). 15 Press Statement, AU Peace & Security Council, Press Statement in the Situation of the Comoros, PSC/PR/PS (LXXXII), 82nd Meeting, (July 23, 2007). 16 AU Peace & Security Council, Communiqué PSC/PR/COMM (LXXXVII), 87th Meeting, (Aug. 13, 2007). 17 AU Peace and Security Council, Communiqué PSC/PR/COMM (XCV), 95th Meeting, (Oct. 10, 2007). 18 AU Peace and Security Council, Communiqué PSC/PR/COMM (CII), 102nd Meeting, (Nov. 26, 2007), and PSC/PR/COMM (XVII), 107th Meeting, (Jan. 21, 2008). 19 AU Assembly, Decision on the Activities of the Peace and Security Council of the African Union and the State of Peace and Security in Africa, AU Doc. Assembly/AU/Dec. 177 (X) (Feb. 2, 2008). 20 AU Assembly, Decision on the Situation in The Comoros, AU Doc. Assembly/AU/Dec. 186 (X) (Feb. 2, 2008). 21 Press Statement, AU Peace & Security Council, Press Statement PSC/PR/BR (CXVII), (Mar. 28, 2008). 22 AU Peace and Security Council, Communiqué PSC/PR/COMM (CXXIV), 124th Meeting, (Apr. 30, 2008). 23 23 For a critical view of the way the AU handled this affair, see G. Swart, From Rhetoric to Rapid Reaction: The Consequences of the AU Intervention in the Comoros, Apr. 2008, http:// www.consultancyafrica.com/conflict-terrorism/newsletter/April-2008. 24 G.A. Res. 58/856, U.N. Doc. A/RES/58/856 (July 15, 2004) 25 G.A. Res. 60/2, p. 186, U.N. Doc. A/60/2, (Sept. 21, 2005). 26 AU Assembly, Decision on the Report of the Peace and Security Council on its activities and the State of Peace ace and Security in Africa, AU Doc. Assembly/AU/2 (XI) (July 1, 2008). |
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