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Challenges and prospects of AU to implement the Ezulwini Consensus: The case of collective security and the use of force
Tunamsifu Shirambere Philippe
May 20, 2014
The "Ezulwini Consensus" has endorsed the Responsibility to protect (R2P) that recognizes the "right to intervene when a State is unwilling or unable to protect its populations" from genocide, war crimes, ethnic cleansing and crimes against humanity. In such situations, the Ezulwini Consensus emphasizes that regional organizations in areas of proximity to conflicts should be empowered to take action. However, the conflict situation in the Eastern DRC has challenged the ICGLR to implement the Ezulwini Consensus. The ICGLR was unable to take appropriate action against Member States who were providing support to armed groups destabilizing other Member States. In order to protect the population under imminent threat and maintain the Great Lakes Region as a specific zone of reconstruction and development, Member States of the ICGLR could demonstrate their political will to respect the fundamental principles particularly of the territorial integrity, national sovereignty, non-interference and non-aggression against another Member State. Besides, the AU could have taken its own responsibility by sending African Experts in order to help the ICGLR to resolve the crisis as the mediator between the Government of the DRC and M23 was no longer neutral.
This paper was presented at the South African Association of Political Studies (SAAPS) 2013 Regional Colloquium on “The African Union: Quo Vadis - the next 50 years” at the University of South Africa on 4 October 2013.
The Organization of African Unity (OAU) was founded in 1963 and worked to bring African nations together to gain and strengthen their independence. However, during its existence, the OAU experienced various internal and intra-States conflicts. In 2000, conscious of the fact that the scourge of conflicts constitutes a major impediment to development, African Heads of State and Government resolved to replace the OAU by adopting unanimously the Constitutive Act of the African Union (AU).
Indeed, Article 3(f,h) of the Act provides the promotion of peace, security, stability and the promotion and the protection of human and peoples’ rights on the continent. To make difference with the previous OAU, Article 4(h) of the Act provides “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”. Thus, desirous of establishing an operational structure for the effective implementation of the decisions taken in the areas of conflict prevention, peace-making, peace support operations and intervention, as well as peace-building and post-conflict reconstruction, the Protocol creating the Peace and Security Council (PSC) was adopted in accordance with Article 5(2) of the Act. Besides, the Protocol has integrated Article 4(h) with the objective to anticipate and prevent conflicts (art 3(b)).
Acting under those provisions, considering atrocities against citizens in Darfur as well as in Burundi, the AU was obliged to intervene with the aim of resolving both crises. The African Union's Mission in Sudan (AMIS) and the African Mission in Burundi (AMIB) were deployed in 2003. However, due to financial constraints of the AU during both operations, the UN Security Council (SC) decided to establish hybrid operations.
For a better decisive response in such situations, the UN General Assembly on its sixtieth session adopted Resolution 60/1 known as the 2005 World Summit Outcome that the paragraphs 138-139 provide the Responsibility to Protect. During an Extra Ordinary Summit, Heads of States and Government of the AU have endorsed the Responsibility to Protect in a report known as Ezulwini Consensus.
Given that many African states remain in fragile peace due to “revolutions”, internal and internationalized armed conflicts, coup d’état, etc., the question arises: how can the AU respond in a timely manner in order to ensure the full protection of civil population under imminent threat?
This paper begins by discussing the origin of the 2005 World Summit Outcome with the content of the Ezulwini Consensus regarding collective security and the use of force. We then analyse the challenges of the African Union to implement the Ezulwini Consensus. Next, we analyse the prospects of the African Union to implement the Ezulwini Consensus. Finally, we present a concluding remark.
2. Genesis of 2005 World Summit Outcome to Ezulwini Consensus
Before emphasizing the 2005 World Summit Outcome, it is crucial to understand the acknowledgment of the former UN Secretary-General Kofi Annan following two important reports: the report of the International Commission on the Intervention and State Sovereignty (ICISS), and the report of the High-level Panel on threats of the UN, challenges and change.
In the Millennium Report of the UN Secretary-General, Kofi Annan admitted that the principles of sovereignty and non-interference offer vital protection to small and weak states. However, to the critics he posed the following question: “if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica—to gross and systematic violations of human rights that offend every precept of our common humanity?” On the dilemma of the humanitarian intervention and the defence of sovereignty principle, Kofi Annan states that “[w]here such crimes occur and peaceful attempts to halt them have been exhausted, the SC has a moral duty to act on behalf of the international community. The fact that we cannot protect people everywhere is no reason for doing nothing when we can. Armed intervention must always remain the option of last resort, but in the face of mass murder it is an option that cannot be relinquished”.
From the above, the dilemma is justified in accordance with international law, particularly the purposes and principles of the UN Charter; the case of Article 2 (1, 7) which underlines the principles of sovereignty and non-interference. However, these principles do not allow any sovereign State to abuse the human rights of its own people by evoking domestic jurisdiction. In other words, there is a limitation to the principles of sovereignty and non-interference when a government is unwilling or failing to protect its own nationals because sovereignty is also the capacity for a state to be able to protect its own peoples and its borders. In this way, Ved Nanda argues that a government can no longer “hide behind the shield of sovereignty, claiming non-intervention by other states in its internal affairs, if it fails to protect the people under its jurisdiction from massive violations of human rights”.
Accordingly, the report presented by the ICISS in December 2001 on the R2P marked a new milestone for international humanitarian law. The theme reflects “the idea that sovereign states have a responsibility to protect their own citizens from avoidable catastrophe - from mass murder and rape, from starvation - but that when they are unwilling or unable to do so, that responsibility must be borne by the broader community of states”. About collective security, the High-level Panel on threats of the UN, challenges and change has endorsed the same point of view. Besides, the report mentions that when a State fails to protect its civilians, the international community then has a further responsibility to act, through humanitarian operations, monitoring missions and diplomatic pressure – and with force if necessary, though only as a last resort.
It is in this context that the UN General Assembly adopted the Resolution 60/1 (the 2005 World Summit outcome). The paragraphs 138-139 provide that each individual State has the R2P to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In addition, the international community, through the UN, has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from aforementioned crimes. In this context, the international community is prepared to take collective action, in a timely and decisive manner, through the SC, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations.
In Africa, the R2P has been endorsed by Heads of States and Government of the AU in a report known as Ezulwini Consensus. The report recognizes the authority of the UNSC to authorize the use of force in situations of genocide, crimes against humanity, war crimes and ethnic cleansing and insists that in such cases regional organizations in areas of proximity to conflicts should be empowered to take action. As the UN General Assembly and the SC are far from the scenes, the report insists that in circumstance requiring urgent action, the UNSC should approve after and assume responsibility for financing such operations. However, besides the right of the AU to intervene, there is the fact that it cannot protect people everywhere. That is why the UNSC encourages the development of pacific settlement of local disputes through regional arrangements or regional agencies (Article 52, 3). In this regards, the AU has given among objectives to coordinate and harmonize the policies of existing and future Regional Communities (Article 3, l). Thus, the implementation of the Ezulwini Consensus in Africa by sub-regional organisations as is the case of the International Conference of the Great Lakes Region (ICGLR) faces many challenges.
3. Challenges to implement the Ezulwini Consensus
The focus point of this paper is the actions undertaken by the ICGLR on the situation of the latest armed conflict in the DRC that opposed the Movement of 23 March (M23) to the Government.
Indeed, the peace agreement signed on 23 March 2009 between the Government of the DRC and rebel group called the National Congress for the Defence of People (CNDP: Congrès National pour la Défense du Peuple) allowed former rebels to integrate the Armed Forces of the DRC, the National Police as well as the provincial government of North Kivu. However, the ICC’s judicial decision that found Thomas Lubanga guilty of war crimes changed the situation on the ground. As there was an arrest warrant of the ICC against Bosco Ntaganda who was officer of the armed wing of Lubanga’s movement, integrated in the army with the rank of general, due to international pressure President Kabila issued an instruction for arresting him. Consequently, by the end of March 2012 the former CNDP combatants, integrated in the Armed Forces of the DRC, deserting from the army claiming that the DRC’s Government had failed to fully implement the peace agreement of 23 March 2009.
Gravely concerned by the escalation of the armed conflict in the Eastern DRC, the ICGLR, as the regional organisation in the area of conflict, has organised more than one extraordinary summit of Heads of State and Government. Different resolutions adopted during extraordinary summit on the security situation in Eastern DRC show a challenge to implement Ezulwini Consensus.
ICGLR Regional Inter-Ministerial Committee and Ministers of Defence of 11 July 2012
The Government of the DRC requested the extraordinary meeting held at the Headquarters of the African Union. The analyses of the decision taken by the Committee are the following:
The Committee failed to take note and to suggest to the Summit of the Heads of State and Government of the ICGLR to acknowledge the findings of the Group of Experts of the UNSC on the DRC regarding the involvement of Rwanda in the provision of support to the Congolese rebel group M23 (S/2012/348) which is the violation of the arms embargo. The Rwandan support is also a violation of the Protocol on Non-aggression and Mutual Defence in the Great Lakes Region (Article 5 of the Pact on Security, Stability and Development of the ICGLR (hereinafter Pact)). Besides, the support is also the violation of paragraph 5 of the Peace, security and cooperation framework for the DRC and the region (PSC Framework) that provides to neither harbour nor provide protection of any kind to persons accused of international crimes.
The Committee strongly condemned the actions of the M23 without recalling the government of Rwanda to respect the national sovereignty, the territorial integrity, and non-interference in the internal affairs of the DRC.
Requesting all the negative Forces, in particular M23, to stop armed activities and that no support should be given to any Negative force to destabilize the Region and Eastern Congo in particular: the Committee failed to request Rwanda to stop any support to M23 regarding many evidences from the UN Group of Experts as well as from NGOs such as HRW.
Recalling Members States to fully implement the Pact and in particular the Protocol on Non-Aggression and Mutual Defence, the Committee failed to anticipate sanctions or possible measures that could be taken against Member States violating these instruments.
Extraordinary Summit of the Heads of State and Government of the ICGLR on 15th July 2012
Meeting in the margins of the 19th Ordinary Session of the African Union and on the security situation in Eastern DRC that constitutes a serious threat to peace, security, stability and the entire Great Lakes Region, the Heads of State and Government of the ICGLR have approved and endorsed the report from the Extraordinary Meeting of the Regional Inter-Ministerial Committee.
The Heads of State and Government also decided that the negative forces, in particular M23, stop armed activities immediately and no support should be given to any negative force to destabilize the Region and the Eastern Congo in particular. Besides, they called Member States to fully implement the Pact and the Protocol on Non-Aggression and Mutual Defence in the Great Lakes Region. However, they failed to request Rwanda to provide response to the allegations against them for supporting M23 rebel group.
Extraordinary Summit of the Heads of State and Government of the ICGLR on 7-8th August 2012
The Heads of State and Government of the ICGLR, by taking note and having considered the Report of the Extraordinary Meeting of the Regional Inter-Ministerial Committee, have considered that the security and humanitarian situation in Eastern DRC constitutes a serious threat to peace, security, stability and development in the entire Great Lakes Region (GLR) due to the armed activities. Determined to seek home-grown solutions to the problems of the GLR through established Regional Mechanisms, among decisions, the following have been adopted:
To stop fighting in Eastern DRC with the possibility of sanctions against those who obstruct the peace process. However, they did not as well take note of the findings of the Group of Experts of the UNSC on the DRC and request Rwanda to stop any support to the Congolese rebel group M23 (S/2012/348).
To establish a Sub-Committee composed by the Ministers of Defence of the Republic of Angola, of Burundi, of Congo, of the DRC, of Rwanda, of Uganda and of Tanzania with the mandate to propose urgent actionable steps to ensure that fighting stops completely, and also provide details on the operationalization of the neutral International Force. However, even the government of Rwanda was denying the accusation of providing support to the rebel group M23, better could be the withdrawal of the Minister of Defence of Rwanda in the sub-committee for a neutral proposition.
Fifth Extraordinary Summit of the Heads of State and Government of the ICGLR on 24 November 2012
As the M23 rebel movement captured the city of Goma on 19 November 2012 in violation of the previous Summit of the Heads of State and Government held in Kampala on 7-8th August that requested to stop fighting. Due to that, the summit decided that the DRC Government listen, evaluate and resolve the legitimate grievances of M23; for the M23 to withdraw from Goma up to not less than 20km; and the Goma airport being deployed a composite force of one company for the Neutral force, for FARDC and for M23, etc. However, it is without a surprise that the Extraordinary Summit of the Heads of State and Government did not take note of the report of the Group of Experts of the UN Security Council’s DRC Sanctions Committee of 15 November 2012 the findings of which demonstrate the following evidences:
The Government of Rwanda continues to violate the arms embargo by providing direct military support to the M23 rebels, facilitating recruitment, encouraging and facilitating desertions from the armed forces of the Democratic Republic of the Congo, and providing arms, ammunition, intelligence and political advice. The de facto chain of command of M23 includes Gen. Bosco Ntaganda and culminates with the Minister of Defence of Rwanda, Gen. James Kabarebe. Following the publication of the addendum to its interim report (S/2012/348/Add.1), the Group met the Government of Rwanda and took into consideration its written response. The Group has, however, found no substantive element of its previous findings that it wishes to alter.
Senior officials of the Government of Uganda have also provided support to M23 in the form of direct troop reinforcements in Congolese territory, weapons deliveries, technical assistance, joint planning, political advice and facilitation of external relations. Units of the Ugandan People’s Defence Forces and the Rwandan Defence Forces jointly supported M23 in a series of attacks in July 2012 to take over the major towns of Rutshuru territory and the Congolese armed forces base of Rumangabo. Both Governments have also cooperated to support the creation and expansion of the political branch of M23 and have consistently advocated on behalf of the rebels. M23 and its allies include six sanctioned individuals, some of whom reside in or regularly travel to Rwanda and Uganda.
From the above, it is clear that the ICGLR Summit on 24 November 2012, the Chairperson of the ICGLR the President of the Republic of Uganda, H.E. President Yoweri Museveni, who invited Heads of State and Government of the ICGLR was at the same time judge and party in the situation. A mediator is supposed to be neutral, but how did the Heads of State and government of the ICGLR endorse the President of Uganda, Yoweri Kaguta Museveni, as facilitator of the Dialogue between the DRC Government and the M23 while Uganda was continuously accused to provide as well support to rebel group M23? In such situation, even the DRC’s Government did not recuse the mediator, better could be for the Chairperson of the ICGLR to resign from the position of Chairperson even though he was denying the accusations. Besides, the ICGLR failed to establish a subcommittee with the mandate to deal with those allegations against Rwanda and Uganda in order to take appropriate action in accordance with the Protocol on Non-aggression and Mutual Defence in the GLR of the Pact (article 5).
Sixth Extraordinary Summit of the Heads of State and Government of the ICGLR on 31st July 2013
Deeply concerned about the resumption of fighting in Eastern DRC, the Heads of State and Government of the ICGLR called for a quick conclusion of the Dialogue between the Government of the DRC and M23 by reiterating that the primary responsibility of the GLR is to find lasting solutions to peace and security challenges in the region. Besides, they welcomed the adoption of the UNSC Resolution 2098 of 2013 establishing the Force Intervention Brigade with the responsibility of neutralizing armed groups. However, the Summit did not take note of the DRC Midterm Report of the UN Group of Experts under Resolution 1533. According this report, “[s]ince the outset of its current mandate, the Group has to date found no indication of support to the rebels from within Uganda, and has gathered evidence of continuous –but limited- support to M23 from within Rwanda”. Nevertheless, instead of requesting Rwanda to provide response to the continuing allegations, the Summit encouraged Rwanda and the DRC to pursue bilateral discussions in order to strengthen confidence and cooperation. There is a remarkable imbalance in dealing with complaints against Rwanda because the Sudan’s complaint against Uganda to provide arms to Sudanese rebels, the Summit had the opportunity to listen to Uganda’s response and requested that the Joint Intelligence Fusion Centre reports on the issue be discussed by the Committee of Ministers of Defence for appropriate action.
Seventh Extraordinary Summit of Heads of State and Government of the ICGLR
The Ezulwini Consensus recognises that the UN General Assembly and the SC are far from the scenes to better understand the situation on the ground at the regional level. In this way, there is no reason for the ICGLR to request the UN System to find urgently a definitive solution to the former M23 combatants interned in eastern Rwanda since March 2013.
As the DRC requested the Government of Rwanda the extradition of former warlords from M23 on the territory of Rwanda, the ICGLR could immediately request both countries to undertake cooperation in matters of extradition, judicial investigation and prosecution as provided by Article 7 of the Pact. In this regards, as Rwanda denied the DRC’s request due to the death penalty in the DRC and because it could not be neutral to prosecute, the Summit could request that both countries agree that former M23 combatants that have committed crimes under international law be extradited in a third State applying universal jurisdiction where they could be judged.
4. Prospects to implement the Ezulwini Consensus
The responsibility to protect implies a duty to react to situations in which there is compelling need for human protection. If preventive measures fail to resolve or contain such a situation, and when the state in question is unable or unwilling to step in, then intervention by other states may be required. Coercive measures then may include political, economic, or judicial steps. In extreme cases they may also include military action.
Clearly, the R2P embraces three following specific responsibilities: the responsibility to prevent, to react and to rebuild.
Indeed, the Ezulwini Consensus has endorsed the R2P by prioritizing regional organizations in the areas of conflict to take action in situations of genocide, crimes against humanity, war crimes and ethnic cleansing. In this way, as the DRC is situated in the GLR, the ICGLR was deeply concerned about the security situation in the eastern DRC that constitutes a serious threat to peace, security and development in the entire GLR.
Following requests from the DRC, different extraordinary meetings by the ICGLR Regional Inter-Ministerial Committee and Ministers of Defence as well as by the Heads of State and Government of the ICGLR have been held. From different declarations, it is has been reiterated that the primary responsibility of the GLR is to find home-grown solutions to the problems of peace and security in the region. Due to that, the ICGLR decided to intervene through a neutral International Force to eradicate M23 and all negative forces in Eastern DRC, and to open a Dialogue process in Kampala between the Government of the DRC and M23 under the mediation of the Chairperson of the ICGLR, H.E President of Uganda. Thus, working with the AU and the UN, the UNSC decided to establish the Intervention Brigade through Resolution 2098 (2013). Nevertheless, many evidences from the UN Group of Experts and NGOs have proved that the Government of Rwanda as well as senior officials of the Government of Uganda have cooperated to support the creation and expansion of the political branch of M23 and have consistently advocated on behalf of the rebels. Besides, both Governments have violated the arms embargo by providing direct military support to the M23 rebels in the destabilization of Eastern DRC.
From the above, in order to implement Ezulwini Consensus, this paper endorses the following recommendations for a better collective security and the use of force in the GLR.
For Member States of the ICGLR
As the consent was free to be bound by the Pact and its Protocols as expressed by ratification, the Member States of the ICGLR solemnly agreed to honour their commitments in a spirit of mutual trust. In this way, Article 26 of the Vienna Convention on the Law of Treaties (1969) stipulates [e]very treaty in force is binding upon the parties to it and must be performed by them in good faith (Pacta sunt servanda). Therefore, Member States of the ICGLR have to demonstrate their political will to respect the fundamental principles enshrined in the UN Charter and the African Union Constitutive Act. It is the case notably of the territorial integrity, national sovereignty, non-interference and non-aggression, prohibition of any Member State from allowing the use of its territory as a base for aggression or subversion against another Member State as expressed by the Preamble of the Pact. By doing so, they will ensure the Great Lakes Region (GLR) a specific zone of reconstruction and development as declared in the Preamble of the Pact, and create the conditions for security, stability, and sustainable development between the Member States as provided by Article 2c.
To not transform the ICGLR into a club of friends instead of undertaken required actions to protect populations under imminent threat.
Demonstrate their capacity to enforce the decisions of the ICGLR in order to protect civilians in Member States.
To renounce the threat or the use of force as policy means or instrument aimed at settling disagreements or disputes or to achieve national objectives in the GLR (Article 5a of the Pact).
To abstain from sending or supporting armed opposition forces or armed groups or insurgents onto the territory of other Member States (Article 5b of the Pact); to abstain from tolerating the presence on their territories of armed groups or insurgents engaged in armed conflicts or involved in acts of violence or subversion against the Government of another State. If any Member State fails to comply with the provisions of this Article, an extraordinary Summit shall be convened to consider appropriate action (Art 5a of the Pact).
To neither harbour nor provide protection of any kind to persons accused of international crimes (paragraph 5 of the PSC Framework).
For the African Union
Since July 2012, the ICGLR has organised many summit of Heads of State and Government, but the conflict in Eastern DRC but some Member States have failed to comply with the Pact that created the ICGLR as well different resolutions. Clearly, Rwanda was continuously accused to provide military support to the rebel group destabilising Eastern DRC that constituted a serious threat to peace, security and development in the entire GLR. Besides, Uganda, playing the role of mediation between the Government of the DRC and M23, was as well as accused to provide military support to the rebel group M23.
Due to that, it is important that is such situation the AU takes its own responsibility by sending African Experts in order to help sub-regional organisations to resolve the crisis when the mediator is no longer neutral as it was the case of President Museveni. This could help the AU to take appropriate measure to implement the Ezulwini Consensus. As the situation on the ground is not yet totally restored or fragile, the AU must open a permanent office in the Eastern DRC that will keep informing the AU of the situation. Collaborating with the UN Mission, the ICGLR, and the civil society the representative of the AU in Eastern DRC, being on the ground, will suggests the AU strategies that will definitely help to resolve the cycles of armed conflicts and persistent violence by armed groups. Besides, the Joint ICGLR-SADC Final Communiqué on the Kampala Dialogue between the Government of the DRC and M23 that was signed on 12 December 2013, the representative of the AU would have the task for monitoring its enforcement.
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Tunamsifu Shirambere Philippe is a researcher associate at the Institute for Dispute Resolution in Africa (IDRA) University of South Africa. He is an LLD Student in the College of Law at UNISA, MA in International Law and the Settlement of Disputes from the UN affiliated University for Peace (Costa Rica 2011) and a Licence (Honours) in Public International Law from the Université Libre des Pays des Grands Lacs (ULPGL-Goma 2005). He is also a Lecturer of law at the ULPGL.