Book Review: Africa and the Responsibility to Protect: Article 4(h) of the African Union Constitutive Act

Africa and the Responsibility to Protect: Article 4(h) of the African Union Constitutive Act, edited by Dan Kuwali and Frans Viljoen. Oxford and New York: Routledge 2014. 398 pp, $155 hardcover 9780415722315

Many of the world’s violent conflicts involving human rights abuses take place in African states. The African Union (AU) has responded to this in Article 4(h) of its Constitutive Act, which gives the AU an unprecedented right of (military) intervention in a member state in cases of war crimes, genocide and crimes against humanity (in striking contrast to the rules of non-intervention and non-use of force characterising general international law and the United Nations Charter). These circumstances make a study of Africa and the Responsibility to Protect (R2P) timely and interesting.

Africa and the Responsibility to Protect: Article 4(h) of the African Union Constitutive Act is a book developed from the proceedings of a conference held in 2012 on Article 4(h) and its ability to end mass atrocities in Africa. The book’s aim is to investigate the application of Article 4(h) and its non-invocation, as well as providing concrete recommendations on how to stop mass atrocities through Article 4(h) (p.2). The 24 chapters in the book are divided into four parts, covering conceptual issues, institutional perspectives, preventive mechanisms and operationalisation. Together these provide a detailed and interesting introduction to the issues raised by Article 4(h) and the specific conflict prevention and reaction mechanisms available to African states through the AU and associated organs. The incorporation of R2P into the book is explained as being due to the fact that the AU’s right to intervene is ‘based on the same realisation’ as R2P and because Article 4(h) is viewed as a small part of the R2P’s broader circle (pp.1-2).

That said, most of the chapters focus on Article 4(h) more than R2P and at times the link between Article 4(h) and R2P is assumed rather than explored fully. At times this makes the book’s R2P references seem something of an ‘add on’ for publication of the conference proceedings. Nevertheless, the detailed content on Article 4(h) and the range of views presented in the book make this an interesting contribution to the literature.

Part I, addressing conceptual issues, is a useful introduction to Article 4(h) for anyone unfamiliar with this provision, its rationale, scope and relationship with the UN Charter’s peace and security regime, which accords primacy to the Security Council in governing the use of military force. This Part would have been even more interesting with greater consideration of the R2P literature – for example, Martin Kunschak’s suggestion that the AU has incorporated the R2P into the binding legal document of the Constitutive Act (p.54), or Chacha Bhoke Murungu’s interesting chapter on the crimes that trigger an Article 4(h) intervention. Issues of the legal status and the delineation of atrocities have attracted a large amount of R2P literature, which would have provided a fruitful source of insight and comparison (e.g. Focarelli 2008; Reinold 2010; Scheffer 2007-8; Evans 2008: p.48; Gallagher 2012: p.7).

Part II, institutional perspectives, provides an interesting overview of some aspects of the AU’s peace and security architecture and its supranational status. John-Mark Iyi’s chapter on the AU’s Early Warning System engages with Alex Bellamy’s R2P comments on the difficulty of warning specifically of atrocities, given that they are often the result of a complex set of causes including structural indicators such as economic inequality (p.166). Charles Hunt offers a description of the African Standby Force and, while his description is limited to this Force specifically, there are potential comparisons to be drawn with the failed UN force envisaged by Article 43 of the UN Charter.

Part III’s focus on prevention is to be welcomed, balancing the focus of existing literature, and Article 4(h) itself, on reaction rather than prevention. Dan Kuwali’s assertion that military intervention is ‘the most realistic means to stop ongoing mass atrocities’ (p.36) may be correct, but if violence can be prevented in the first place then military intervention, with all its difficulties, will not be necessary. Echoing Iyi in the previous section, Thembani Mbadlanyana rightly notes the complex web of causes of atrocities (p.209) and explains how the African Peer Review Mechanism (APRM) is designed to help prevent conflicts – though the APRM itself does not seem to delve into these complex causes. Again some of these chapters would benefit from greater engagement with R2P literature, where the issue of prevention versus reaction is hotly debated (e.g. Evans, 2009).

Part IV, on operationalisation, includes useful examples of specific interventions involving the Economic Community of West African States and the African Union Mission in Somalia as well as more general chapters on ‘political will’, the role of South Africa and the issue of responsibility while protecting. Noel Morada suggests that the idea of responsibility while protecting – i.e. accountability of those using military force in the name of humanity – could help to move forward the implementation of Article 4(h) after the setback caused by NATO’s regime change activities in Libya (p.319). Naomi Kikoler’s chapter on South Africa is one of the only places in the book which devotes significant attention to understanding the relationship between R2P and Article 4(h); it also devotes attention to structural prevention of conflicts as the way to make a lasting impact on international peace and security (p.337).

The book is premised upon the idea that Article 4(h) (and the R2P) is ‘noble in purpose’, but suffers from implementation problems (p.3) - the implication being that the problems experienced in this region are to be solved by shoring up political will (p.288) to implement the much-needed Article 4(h). However if, as some chapters suggest, atrocities have complex causes including underdevelopment and economic inequality, then we need to ask if it is really useful to push for military intervention after a crisis has broken out - as opposed to increasing efforts to address underlying causes of ‘African problems’ (p.325), including Western states’ contribution to underdevelopment generally and particular crises more directly (e.g. Branch 2011; Robbins 2002). The introduction notes that Article 4(h) interventions ‘cannot replace the social policies needed to combat deprivation and social injustice’ (p.9). But by focusing so much on military intervention – which is, after all, the purpose of the book – the book risks encouraging the prioritising of military intervention over these social policies. There is a wealth of debate on this in the R2P literature, and situating discussions of Article 4(h) and military intervention more deeply within this literature would have enabled the book to provide a nuanced account of ‘African problems’. As it is, the book remains a useful source of information and debate on Article 4(h) and the role to be played by various parts of the African peace and security architecture in dealing with conflicts.

Dr Alexandra Bohm completed her PhD thesis on the Responsibility to Protect at the University of Sheffield and from 1 September 2014 will be a Teaching Fellow at the University of Birmingham’s Law School. Email: A.Bohm@Bhm.ac.uk.

References:

Branch, A, ‘The Irresponsibility of the Responsibility to Protect in Africa’ in P. Cunliffe (ed.), Critical perspectives on the responsibility to protect: interrogating theory and practice (Routledge 2011)