Enforcing the African Court's Order on Libya

In his interesting discussion (over at International Law Observer) on the African Court on Human and Peoples' Rights' ruling that Libya “immediately refrain from any action that would result in loss of life or violation of physical integrity of persons”, Abebe A. Mulugeta raises the issue of enforcement. He suggests that although the Order is binding, it "can only be implemented through diplomatic pressure". There may however be other avenues open to the Court and states wishing to enforce it.

As we noted previously, the Court was introduced in part to address the African Commission's inability to give binding decicions. To this end Article 30 of the Court's Statute states:

"The States parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution."

In addition, Rule 60(5) of the Court's Interim Rules states: "The judgment of the Court shall be binding on the parties."

Notably, these provisions refer to the judgement. However, there seems to be little basis for differentiation between the binding nature of provisional measures and judgements of the Court. In this regard the Rules refer to the Court's discretion to "prescribe to the parties any interim measure which it deems necessary to adopt in the interest of the parties or of justice". (Rule 51) This language serves to confirm the peremptory nature of "interim measures".

So what then of enforcement measures. On a generous interpretation of the Court's Statute two avenues exist:

First, article 29 of the Court's Protocol states that the AU's Executive Council "shall monitor [the Court''s judgements] execution on behalf of the Assembly" of the AU. Again, if one considers "interim measures" to be as binding as judgements, then arguably the Executive Council's responsibility under article 29 would extend to such measures as well. The question then becomes how "monitor" is constructed.

Second, and perhaps more generously, one could interpret article 30 as placing an obligation on States Parties to the Court to guarantee the enforcement of the Court's decisions (including interim measures for the reasons set out above). This can be done by reading the provision disjunctively; thereby creating two obligations on States Parties: The first being a specific obligation to "comply with the judgment in any case to which they are parties within the time stipulated by the Court", the second being a general obligation on all States Parties to guarantee the execution of decisions of the Court. This is a tenuous reading of the text, but two aspects of article 30 make a plain reading of it difficult and suggest it is open to a more constructive, nuanced interpretation.

The first is its reference to "States Parties". Surely it would have been simpler to merely state that "Parties to a decision of the Court undertake to comply with the judgment" or, better still, "The Court's decisions are binding". This is the simpler formulation adopted in Rule 60(5). In addition, if the provision is read narrowly it suggests that only states that are party to a dispute are bound by the Court's decisions, while "other" parties (such as an individual complainants or the Commission) are not. This cannot be so. Rule 60(5) confirms this by referring to "parties" being bound (including an individual complainant or the Commission). In light of these complications, one could argue that the reference to States Parties in article 30 must have been made deliberately and with a purpose: to establish obligations in respect of the judgement on all States Parties to the Banjul Charter, not merely those who are party to the judgement.

The second "kink" in article 30 militating in favour of a more nuanced interpretation is its requirement that its subjects "guarantee [the Court's judgment's] execution". Given that the article already requires that states who are party to the dispute comply with the judgements of the Court, this additional requirement is puzzling. It's not clear what guaranteeing a judgements execution means, how it differs from compliance and (if it doesn't) why it was included. Here the doctrine of effective construction might be put to work, to say that in order give this phrase meaning it must be understood as referring to states other than those already under an obligation to comply with the judgement (as parties to it), this can only be all other States Parties. This would square nicely with, and give meaning to, the article's reference to States Parties to begin with.

These are not merely hypothetical ruminations. Under the terms of the Order, Libya was due to report back to the Court within 15 days on measures it had taken to give effect to it. By my count that gave it until last weekend (Saturday), about the time the African Union delegation headed by Jacob Zuma arrived in Libya to present its peace plan (I wonder if the Order was mentioned in their discussions). To date, there is no indication from the Court that Libya did so, and so the avenues open to the Court in ensuring that it does are of immediate relevance.

If Libya did not respond to the Court's ruling, and does not intend to, Rule 55 of the Court's Interim Rules might come into effect. In terms of which :

"Whenever a party does not appear before the Court, or fails to defend its case, the Court may, on the application of the other party, pass judgement in default after it has satisfied itself that the defaulting party has been duly served with the application and all other documents pertinent to the proceedings."

If that happens we will once again be in the realm of enforcement measures, but there will be little doubt as to the judgments binding nature.

Ex Africa Semper Aliquid Novi: The African Court’s ruling on Libya

Amidst a stagnant political and institutional response to the Libya crisis from Africa it’s great to see some good news emerge in the form of the unanimous Order for Provisional Measures by the new African Court on Human and Peoples’ Rights (African Court) in respect of Libya. The Order, issued on 25 March 2011, demands that Libya “immediately refrain from any action that would result in loss of life or violation of physical integrity of persons” and report back to the Court within 15 days on “measures taken to implement this Order”. It was made proprio motu (of its own accord) by the Court in the course of its consideration of an application brought urgently against Libya by the African Commission on Human and Peoples’ Rights (the African Commission) on 16 March 2011 alleging “serious and massive violations of human rights guaranteed under the African Charter on Human and Peoples’ Rights” (the Banjul Charter). Further, the Court is now “seized” with the matter, having made a prima facie determination that it has jurisdiction to hear the case, and has asked Libya to respond to the application within 60 days.

These welcome developments at the regional level are not only significant for the immediate crisis in Libya but, perhaps more so, for the African Human Rights system generally. To understand the ruling’s full import some background is necessary.

Background to the Court

The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the African Court) was adopted on 10 June 1998 at the Summit of Heads of State and Government in Ouagadougou, Burkina Faso. The Court came in to operation on 25 January 2004 after the requisite 15 instruments of ratification were deposited. This Court was established to address the shortcomings of the African Commission and in recognition of the trend in other regional systems towards more robust regional enforcement mechanisms. Up until this point, the African Commission was the sole institutional guarantor of the 1986 “Banjul Charter”, designed to “promote and protect human and peoples’ rights in Africa”.

The African Court was not meant to supplant the African Commission but rather was intended to operate in tandem with it (although how this might happen was not clear) and remedy its deficiencies, particularly insofar as enforcement is concerned. However, despite its promise for many the African Court was a disappointment from the outset. The chief complaint was the limited ability of individuals and NGOs to approach the Court directly. Under article 5(3) of the Protocol individual/NGO access to the Court was made subject to article 34(6), which states:

“At the time of the ratification of this Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under article 5(3) of this Protocol. The Court shall not receive any petition under article 5(3) involving a State Party which has not made such a declaration.”

In response to this provision Makua Matua opined: “This limitation will render the proposed Court virtually meaningless unless it is interpreted broadly and liberally”. The Court did meet expectations in at least one crucial respect: enforcement of its decisions. According to article 30 of the African Court’s Statute: “The States parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution.” In addition, article 29(2) of the Protocol provides that the Council of Ministers will monitor the execution of judgments on behalf of the Assembly.

However, the African Court’s death was guaranteed almost immediately after its birth. At the African Union’s 3rd Ordinary Session of the Assembly of Heads of State and Government in July 2004, African states decided that “the African Court on Human and Peoples’ Rights and the African Union Court of Justice should be integrated into one Court”, to be named the African Court of Justice and Human Rights (the Merged Court). The arguments for the Merged Court were both financial (funding one Court was already a challenge) and organisational (African leaders were reportedly keen to avoid the overlap that exists in the European system between the European Court of Human Rights and the European Court of Justice).

As the African Court had already entered into force when the decision was taken to merge the two courts, their rationalisation required the formulation, adoption and ratification of an entirely new Statute. That instrument – the Draft Protocol on the Statute of the African Court of Justice and Human Rights – was adopted in July 2008, but has not yet been ratified by the requisite 15 states in order to enter into force. Ironically (again), Libya was the first to do so and, to date, Libya and Malawi are the only states that have ratified. (Notably, despite initial indications to the contrary, it appears that the Merged Court will also be subject to the same limited jurisdictional regime in respect of individual/NGO petitions. Article 8(3) of the Merged Protocol – the poorly drafted successor to Article 34(6) – states, inter alia, that “[a]ny Member State may…make a declaration accepting the competence of the Court to received cases under Article 30(f)” – the latter article providing for direct access to the Court for individuals or AU-accredited NGOs.)

Crucially, at least insofar as the African Court is concerned, in terms of article 7 of the Merged Court Protocol the African Court remains in operation until one year after the Merged Protocol comes into force. Further, insofar the Libya case is concerned, article 5 of the Merged Protocol states that cases pending before the African Court that have not been concluded before the entry into force of the new Protocol shall be transferred to the Merged Court. The upshot being that the African Court remains operational for the foreseeable future.

With this in mind the condemned African Court has forged ahead. Undeterred by its moribund status, the Court issued its first decision on 15 December 2009 (In the Matter of Michelot Yogogombaye v The Republic of Senegal, Application number 001/2008). In that case Mr. Yogogombaye asked the African Court to instruct Senegal to suspend its criminal proceedings against Hissene Habre on numerous grounds – some more thoughtful than others – and to order both Senegal and Chad to establish a “Truth, Justice, Reparations and Reconciliation Commission” for Chad. This Commission would be based on South Africa’s TRC and the philosophical concepts of “Ubuntu” and “resolve in an African manner the problematic case” of Mr Habre. Mr Yogogombaye did not however manage to make it past the preliminary phase of proceedings, the Court ruling that it did not have jurisdiction to hear his complaint as Senegal had not made a declaration under article 34(6). As a result, the Court was spared having to consider the more extravagant aspects of Mr Yogogombaye’s claim.

Mr. Yogogombaye’s case, failing as it did at the jurisdiction phase of proceedings, made for a rather unremarkable start to the African Court. It’s second decision – taken this year on 25 March in respect of Libya – was anything but.

From the Ridiculous to the Sublime?: The African Court’s decision on Libya

The African Court’s Libya Provisional Measure Decision is remarkable in a number of respects. The first notable feature is its origin (i.e. how the matter came before the Court). The limitations placed on direct individual access to the Court led many to believe that the Court would become a “lame duck”, as states could merely refuse to make article 34(6) declarations and prevent any individual/NGO complaints coming before the Court. In a sense, this fear was confirmed for many by the Court’s first decision in respect of Mr Yogogombaye who found himself false-started because of Senegal’s failure to allow individual complaints .

If there was any glimmer of hope it lay in the African Commission. Article 5(1)(a) of the African Court Statute gives the Commission the right to submit cases to the Court. As one of the authors – Du Plessis and Stone -- noted in an article (optimistically it seemed at the time):

“However, it must be noted that the requirement of the Article 34(6) Declaration is not fatal, due to the fact that Article 5(1)(a) of the Protocol permits the African Commission to submit cases alleging violations of “individuals” rights to the Court.”

Given the Commission’s history and composition - and its need to fight for its own relevance - it appeared unlikely that there would be much appetite to use article 5(1)(a) liberally, and certainly not in the bold manner that it has in respect of its Libya application.

Nonetheless, it seems that Pliny the Elder’s adage “Ex Africa Semper Aliquid Novi” is recurringly accurate. Following “successive complaints against Libya” received by the Commission at its 9th Extraordinary Session in Banjul, The Gambia from 23 February – 3 March 2011, the Commission concluded that there was evidence of violations of articles 1, 2, 4, 5, 9, 11, 12, 13 and 23 of the Banjul Charter. On this basis the Commission brought an application to the Court, against Libya, alleging “serious and widespread” violations of the Banjul Charter. The violations relate to, inter alia, the detention of an opposition lawyer in Benghazi; random shooting of demonstrators in Benghazi, Al Baida, Ajdabiya, Zayiwa and Dema by security forces; and “excessive use of heavy weapons and machine guns against the population, including targeted aerial bombardment”.

Not to be outdone, the African Court responded to the Commission’s application timeously and with a boldness that suggests that the Court may yet live up to its promise. On 21 March the Court’s Registry acknowledged receipt of the application and then forwarded copies thereof to Libya the following day. In terms of Rule 35(4)(a) of the African Court’s Rules, Libya has “thirty (30) days of receipt of the application, [to indicate] the names and addresses of its representatives”. In terms of Rule 37, Libya has sixty days to respond to the application, but the Court may grant an extension “if the need arises”. In addition, and remarkably on its own initiative, the African Court decided to issue an Order for Provisional Measures that states:

The Great Socialist People’s Libyan Arab Jamahiriya must immediately refrain from any action that would result in loss of life or violation of physical integrity of persons, which could be a breach of the provisions of the Charter or of any other international human rights instruments to which it is party.



The Great Socialist People’s Libyan Arab Jamahiriya must report to the Court within a period of fifteen (15) days from the date of receipt of the Order, on the measures taken to implement this Order.

The Order was made pursuent to article 27(2) of the African Court's Statute which provides that:

“In cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary.”

What is more, the Court did so without eliciting the views of the parties to the matter, on the basis of the imminent risk to human life and the difficulty in scheduling an appropriate hearing involving Libya. In establishing the factual basis for the need for provisional measure, the Court relied on the information contained in the Commission’s application (permitted under Rule 29(1)). In particular the Court cited the statements of the African Union (condemning the use of excessive force), the Arab League (suspending Libya) and UN Security Council Resolution 1970 (condemning gross and systematic violations of human rights and referring Libya to the ICC for possible crimes against humanity) in support of its finding that the situation was of extreme gravity and urgency and that such measures were necessary to avoid irreparable harm to persons.

Finally, the Court held that at this stage of the proceeding it need only establish prima facie that it has jurisdiction under articles 3 and 5 of its Statute. It did so with relative ease. (Libya fortuitiously having ratified the African Court Protocol on 19 November 2003).

The most inspired action of these proceedings against Libya might yet be to come. The African Court is now seized with the matter. Although the Court was careful to note in its Decision that the “measures ordered by the Court would necessarily be provisional in nature and would not in any way prejudice findings the Court might make on its jurisdiction, the admissibility of the application and the merits of the case”, there is little reason to doubt that it will confirm its findings on jurisdiction and admissibility at the next stage of proceedings. In terms of article 6(2) of its Statute, the Court “shall rule on the admissibility of cases taking into account the provisions of article 56 of the Charter”. In order for the Commission to have been seized with the application initially it must have satisfied itself that these same requirements have been met.

Insofar as the merits of the application are concerned, the Court will probably have to narrow down the scope of the violations considerably which at the moment include potentially innumerable victims and claimants. However, in doing so the Court is not limited to violations of the Banjul Charter but can – if it chooses – consider violations of “any other relevant Human Rights instrument” ratified by Libya. The term “Human Rights instrument” is not defined in the African Court’s statute, but it could conceivably include any one of the numerous human rights treaties that Libya has ratified. As far as remedies are concerned, article 27(1) empowers the Court to “make appropriate orders to remedy the violation, including the payment of fair compensation or reparation”.

Concluding Remarks

The significance of the African Court’s Order for Provisional Measures, and the proceedings against Libya more broadly, cannot be overstated. The African Union’s response to the crisis in Libya has been paralytic, even by its own standards. The intervention of the Commission first, and then the Court, could not have been more timely and may yet save the African multilateral human rights regime from desuetude. What is more, these actions demonstrate the unfairness of using the AU’s brush of incompetence and/or political intransigence to paint other African institutions.

More broadly, the Court’s bold assertion of its own role as the guarantor of human rights in Africa augers well for its future as well as that of its successor (should the Merged Protocol ever come in to force) and goes some way in dispelling the fear held by many that this Court might become a shrinking violet in light of its seemingly imminent demise. More prosaically, the Court’s decision in Libya is a much more fitting introduction for the Court – both to Africa and the World – than its previous decision which, in many different ways, was reminiscent of some of the less noble features of African human rights institutions and litigation.

Finally, the African Court’s decision on Libya – both in form and substance – represents a bold advance into a situation whose political implications have rendered the AU’s other institutions ineffectual. One might hope that the Court’s decision will elicit a response from Libya. But even if there is nothing but the sound of guns and cannonfire, then the Court’s decision will at least have assisted in this way: by confirming that Gadaffi’s terrorisation of his people continues in the face of both Western and African opposition.

Collateral Damage: Libya, the AU and the ICC

Irrespective of how the ongoing Libyan crises unfolds (or unfurls) over the coming weeks and months, it seems inevitable that it will leave its mark on two nascent institutions both of which hold promise for ensuring a lasting peace in Africa: the African Union (AU) and the International Criminal Court (ICC). Unfortunately, at least insofar as the AU is concerned, Libya might well prove to be its death knell.



When the AU replaced the out-dated Organization of African Unity (OAU) in 2001, it brought with it the promise of a normative shift insofar as regional African politics are concerned from regime security to human security. In the wake of the West’s and Africa’s failure to prevent the Rwandan genocide, the continent’s politicians included within the AU’s founding document the “[t]he 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”. Further, the AU Peace and Security Council was established in order to, inter alia, make recommendations to the Assembly regarding the employment of this “humanitarian provision” when war crimes, crimes against humanity and genocide were being perpetrated against the people of Africa. This commitment to prefacing human rights over sovereignty was mirrored in the various sub-regional arrangements which contained similar provisions. However, the failure of the AU to take any concrete measures against Colonel Gadaffi over the past two weeks, and its opposition to the measures being taken by others, will most likely kill off any remaining hope that this provision was anything more than a paper tiger.



That this provision should meet its end in Libya is not without its ironies. Three come to mind:

First, the formation of the AU as a replacement for the defunct OAU – which facilitated the shift to human security and the inclusion of the "humanitarian provision" – was only possible with significant support from Gadaffi himself, just as the continued functioning of the body is largely dependent on the financial support of Libya.

Second, in 2003 the AU adopted a Protocol to its Constitutive Act that provided, inter alia, for the addition of another ground for intervention, namely: a “serious threat to legitimate order” which would allow the AU to intervene to “to restore peace and stability to the Member State”. The inclusion of this ground of intervention was driven solely by Libya who at the time (presciently) envisaged it as a means of guarding against foreign intervention. However, the provision was ultimately phrased in such a manner that makes it the perfect fit for the current Libyan malaise. The Protocol is not yet in force – having been ratified by just under half of the AU member states – however the potential for it to be used as the basis for intervening in Libya, although not realised, remains ironic.

Third, in their fervour to take responsibility for collective security African states have gone so far as to assert that in times of humanitarian crises the AU – as a regional organisation contemplated by article 53 of the UN Charter – can intervene without the authorisation of the Security Council. This bold assertion of autonomy considerably increases the potential for humanitarian intervention by the AU and, until the seismic political shift that led to the passing of Resolution 1973, would have served as the AU’s justification for intervening in the absence of Council approval in Libya had they chosen to do so. The irony is that this autonomy, which not only provided the basis for AU intervention in Libya pre-Resolution 1973 but also strengthened the arguments of other bodies such as NATO for similar autonomy, was proclaimed by the AU in the wake of its disapproval of the UN Security Council’s sanctions imposed on Libya.



Whether the AU as an institution will be able to survive financially post-Gadaffi remains to be seen, what seems inevitable is that the body’s credibility insofar as its commitment to human security will not.







As far as the ICC is concerned, the threat posed by Gadaffi’s fall from grace is less proximate but no less serious. Despite numerous commentator’s creative (and at times morbidly enthusiastic) euphemisms calling for the Colonel’s assassination, the far more likely scenario remains some form of negotiated exit from power that involves political asylum for himself, his family and his inner circle. If that’s to be the case, the likely destination will be an African state (Zimbabwe has already offered such to Ghadaffi, South Africa has an unfortunate history of being a soft-landing spot for Africa’s disfavoured leaders). However, in terms of UN Security Council Resolution 1970 the ICC has jurisdiction over the crimes committed in Libya over the past two months. That investigation, which the Prosecutor (unwisely) has indicated will produce its first “indictments” soon, will more than likely involve request to arrest either Ghadaffi himself or those of his inner circle (including his sons) who will most-likely benefit from the “exit-package” mentioned above. This produces the distinct possibility of another African leader wanted by the ICC being on the territory of an African state, and possibly even a state party to the Rome Statute at that.



The fall-out over the ICC arrest warrant for Sudanese President al-Bashir led to the decision by the AU Assembly that its members shall not cooperate in the arrest of al-Bashir. That decision, and Bashir's subsequent visits to ICC States Parties Kenya and Chad, has brought the relationship between Africa and the Court to its lowest point in both institutions’ short history. Given the increased strain placed on this relationship by the Prosecutor’s investigations in Kenya and the AU’s unfortunate response thereto, it is not by any means clear that this relationship will survive another Bashir-type scenario in the case of Ghadaffi.

The African Union, Libya and the true costs of non-intervention

After a week of military action in Libya by the US and its allies aimed at enforcing the Security Council’s Resolution 1973 – which called for the establishment of a “no-fly zone” and authorised UN members to take “all necessary measures” to protect civilians – African states are starting to find their voice. However, the majority of these voices – including those of the Presidents of South Africa and Nigeria, both of whom voted for Resolution 1973 – has been critical of the intervention. While there are undoubtedly a number of arguments to be made against “humanitarian intervention” generally, and this intervention in particular, as a result of their own words and (in)actions African states are precluded from making most of them.  



Due to the media and political hype inevitably occasioned by such events, distinct arguments for and against intervention are generally conflated and confused. It is important to distil the arguments in order to understand and respond to them.  



The first is empirical. All arguments about humanitarian intervention revolve around the question of whether there are grounds for intervention in the first place (i.e. a humanitarian crisis).   If the empirical hurdle can be overcome arguments for or against intervention become arguments about ends or arguments about means.  



Arguments against intervention based on the ends accept the empirical basis of intervention (a humanitarian crisis) but either do not accept that saving lives is a worthwhile end, or advance some other end that outweighs intervention. Traditionally the competing end advanced against intervention has been state sovereignty: a foundational norm of the international order and the basis of the principle of non-intervention.



The rise of human rights over the past 60 years and the end of the Cold War has undercut the blunt force of sovereignty as an end. More recently, the advent of the Responsibility to Protect (R2P) doctrine has recast sovereignty, at least rhetorically, from being an absolute, intrinsic right of statehood, to being a “responsibility” to protect one’s citizens from crimes against humanity, genocides and war crimes (and the corollary, that a state not engage in such mass violence against its own people). If this responsibility is deliberately flouted, the R2P doctrine stipulates that the offending state becomes vulnerable to intervention from the international community. In the face of these developments arguments against intervention based on competing ends are rarely made openly; no civilised state would reject the protection of human life as an end worth protecting, and few would explicitly present sovereignty or regional stability or (worse still) regional solidarity as a greater end. As a result,most debates about intervention are not about ends (whether intervention is morally justified), but means.  



Arguments about means might accept the humanitarian crisis as an empirical fact and accept that the end of protecting human lives outweighs all competing ends, but would posit that military intervention is not an acceptable means of achieving that end. The argument might run that in general such interventions do not save lives, or that a particular intervention does not result in the protection of human life or that there are some other, better means available to achieve that end.  The debate becomes particularly heated where the means employed to achieve the end results in an unnacceptably high number of civilians lives being put at risk (for example, through high-altitude bombing) – precisely because the means itself begins to undermine the end.  



The type (or means) of legal response is also at issue. A significant amount of debate regarding humanitarian intervention is about: (i) what legal means are available; and (ii) whether there is any basis for arguing for legitimate intervention outside of those legal means. Generally speaking, most international lawyers and academics would accept that the only legal means for intervening militarily to prevent humanitarian catastrophes (as opposed to self-defence) is through the UN Security Council (as through SC resolution 1973 in Libya), and all other military action would violate the UN Charter’s prohibition on the use of force in article 2(4). It is the acceptance of this uncomfortable reality that led some international law experts to argue that NATO’s intervention in Kosovo in 1999 – without UN Security Council approval – was illegal but legitimate, a perilously conditional argument.  



What of the Libyan intervention?  At the outset it is important to notice how two fallacious arguments commonly employed by opponents of humanitarian intervention have been dusted off in respect of Libya. The first challenges the intervention’s legitimacy on the basis of its improper motive. Regarding Libya states have attacked the motive of the US and its allies as being about “petro-imperialism”, geo-politics and anti-Islamic sentiment – and those who would defend the intervention are required to defend the intervening countries’ motives for doing so. Zimbabwean President Robert Mugabe for example has decried the intervention as being about “oil, oil, oil”. These arguments however confuse motive with effect. Few people would argue that Libyan lives are protected because the Americans and their allies genuinely intervened to protect them.  Those lives are protected (or not) based on the effect of the intervention as a matter of fact. That allied countries may have other motives for intervening does not make this the wrong course of action per se, if it is successful in protecting human lives.  



The second argument points to the selectivity of interventions historically to challenge the legitimacy of a specific intervention, and is captured in the refrain “why now and not then”. Ugandan President Yoweri Museveni has criticized the intervention in Libya on the basis that Western Leaders “turn a blind eye to the very same conditions or even worse conditions” in “other areas where there are pro-Western regimes”. Similarly, Nigerian Foreign Minister Odein Ajumogobia reportedly criticized the action in Libya on the basis of inaction in the case of the Ivory Coast. Again, these claims miss the point. These are arguments for other interventions, not against this one.  



Bearing the above in mind, the question becomes what arguments the AU and its members can plausibly raise in respect of the UN-sanctioned intervention in Libya.  



As far as empirical arguments are concerned, there is an overwhelming acceptance from the international community that there is some form of humanitarian catastrophe in Libya. For one, all states (including South Africa, Nigeria and Gabon) that accepted the need for a no-fly zone effectively accepted first, that there is a threat to civilians emanating from Colonel Ghadaffi’s regime and second, that the threat involves the use of air power against them, making it a serious one. In the face of the facts, there have to date been few arguments challenging the empirical basis for the intervention.  



What, then, is the AU’s underlying reasoning? As noted earlier few arguments against intervention that involve competing ends are made explicitly. What is more, by its own standards the AU has little margin for denouncing intervention. Since it replaced the Organization of African Unity in 2001 the AU has tried to position itself at the forefront of the normative shift from state sovereignty to human security. Its founding charter’s “humanitarian provision” – which enshrines “[t]he 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” – is the most progressive of its kind. The founding instruments of Africa’s numerous sub-regional groupings such as the Great Lakes Protocol, ECOWAS Protocol and SADC, contain similar provisions.    



In the end the only arguments the AU might plausibly raise against the intervention in Libya are ones relating to means. (i.e. that intervening generally, or this intervention in particular, is not an appropriate means of achieving the end of protecting human life). However, once again the AU’s own standards make arguments against intervention based on means difficult to swallow.



First, UN Security Council Resolution 1973 means that the legal arguments about intervention are not available to the AU. In the lead up to Resolution 1973 many African states were arguing that the only legal means of intervening in Libya was with Council-approval, presumably relying on the (seemingly) predictable veto of Russia and China to do their dirty work by killing the Resolution come voting time. Second, and in any event, on more than one occasion the AU has asserted that it does not require Security Council authorisation to undertake interventions under its own “humanitarian provision”. The AU’s legal advisor Ben Kioko has opined that through the inclusion of this provision “[African] leaders have shown themselves willing to push the frontiers of collective stability and security to the limit without any regard for legal niceties such as the authorization of the Security Council”. Up until the evening of 17 March when the Security Council passed Resolution 1973, many African states sought refuge in those niceties.  



Therefore, African states are forced to argue against intervention on some other basis. Absent legal niceties, in order for the intervention to be the wrong course of action the AU must show either: (a) that it does not result in the protection of human life, or (b) that there was some other means available that better protects human life. In the case of other interventions there have been strong arguments that (a) is in fact true. However, at the time the decision was taken to intervene in Libya it seems that concrete action did in fact save lives, at the very least those of the citizens of Bhengazi.  



That leaves (b), the argument that at the time the intervention was undertaken there was some other means available that better protects human life. For example, it might be argued that some form of non-coercive political solution or, failing that, an intervention force that did not consist of the US, France and the UK – three historically compromised actors in the region – would have been a more appropriate means of protecting the people of Libya. The problem is that the African Union was best placed to undertake both of those courses of action and it did not. Not even the AU’s founding instrument - crafted ironically by Colonel Gadaffi and ratified by all African states – was relied upon to intervene to prevent the attacks on civilians. In fact, numerous calls were made for regional action to be taken in respect of Libya. However, all the body could mustre was hand-wringing, politically finessed communiqués and a belated and compromised five-man mediation panel.  



One may thus rightly conclude that the AU’s humanitarian provision is nothing more than a paper commitment. However, even to those who would argue that regional stability and solidarity are comparable to or even greater ends than protecting human lives, the Union’s limp response to the crisis in Libya further undermines its credibility. African states missed the rarest of opportunities to make these ends meet: to strike a blow against perceived “petro-imperialism” and for human rights simultaneously.

NICOLE FRITZ: On Libya, SA has done both good and well

[Editors Note: Nicole is director of the Southern Africa Litigation Centre. She kindly agreed to let us post the following piece which first appeared as an op-ed in the Business Day on 23 March 2011]





NO ONE can rejoice at what is happening in Libya. The use of force by states acting under United Nations Security Council resolution — even in defence of civilian lives — still carries with it considerable risk: of costly damage to infrastructure and livelihoods and, worse, of deaths of civilians themselves. But global leadership demands agonising choices and as it is, the council may have stalled too long, waiting until the opposition was almost entirely overrun by Muammar Gaddafi’s loyalist forces before authorising "all necessary measures" to defend civilian lives.





But difficult though the situation in Libya is, it may be one of SA’s most shining moments on the international stage. SA was one of the 10 Security Council members to support the resolution authorising force. Five states abstained. And of those five, four were the founding Bric states (Brazil, Russia, India and China) — a collective in which SA makes a home. Those states abstaining did not wish to thwart the authorisation of military measures, but neither did they wish to be seen as publicly endorsing such action.



SA might well have done likewise: a further abstention would not have endangered passage of the resolution. But global leadership also demands accountability — requiring that states take responsibility for difficult choices, not that they merely hedge their bets and seek to play all sides. SA’s vote would have been particularly hard because it ordinarily finds common cause with emerging powers’ scepticism about military intervention and the enhanced role it provides established powers such as the US. But the resolution contains explicit language likely lobbied for by SA prohibiting any "foreign occupation force of any form on any part of Libyan territory", thus referencing the African Union’s (AU’s) concern for the territorial integrity of Libya and its rejection of any "foreign military intervention".



Certainly SA’s Security Council persona regarding Libya seems at odds with its positions on Myanmar and Zimbabwe when it last held S ecurity C ouncil status. In this most recent resolution on Libya and in the previous resolution, which imposed an arms embargo and asset freeze and referred the situation to the International Criminal Court, it takes the view — principled and uncontroversial — that mass killings of civilians even when confined within a single state’s borders constitute a threat to international peace and security and so warrant s ecurity c ouncil action. It voted against such findings on Zimbabwe and Myanmar.



SA would likely attempt to reconcile these positions by arguing it gives deference to neighbouring states in their assessment of whether the situation rises to the level of international threat: clearly the Arab League’s call for the enforcement of a no-fly zone indicated that the neighbourhood looked to S ecurity C ouncil intervention. Still, SA’s votes on Libya have been fundamentally the exercise of its global leadership in defence of human rights and democracy.



SA has also acted strategically, ensuring not only co-ordination of S ecurity C ouncil and AU actions in respect of Libya but critically salvaging an AU initiative, which looked likely only to demonstrate the moribund nature of the regional grouping. As the Arab League sought to show itself a responsible global actor by calling for a no-fly zone in Libya, the AU steered clear of any such pronouncements — its Peace and Security Council instead dispatching a five head-of-state committee to engage all sides in the Libya crisis. The composition of the mission — in particular the inclusion of Mali, Mauritania and Congo, which are all financially beholden to Gaddafi — suggested robust recommendations for reform were unlikely to be forthcoming and that the AU would appear to be Gaddafi’s club of cronies. In particular, President Jacob Zuma ’s inclusion meant the international fallout for SA might be severe.



Instead, last Thursday’s resolution allowed SA to turn its handicap to global advantage, deftly weaving the Security Council and AU pieces together, saving face for the AU and elevating its role — the council resolution specifically heralds the AU’s high-level committee and its aim of "facilitating dialogue to lead to the political reforms necessary to find a … sustainable solution." Overnight, the AU’s initiatives looked bold and prescient, not craven and concealing, and in managing the transformation, SA underlined its global authority to AU partners.



To use a US idiom, denoting both smarts and substance, on Libya, SA has both done good and well.