The Right to Remedies and the Responsibility of the African Union Peacekeeping Missions under the African Charter on Human and Peoples’ Rights
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Date
2018-06
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Addis Ababa University
Abstract
Article 4(h) of the Constitutive Act of the African Union (AU) empowers the Union to intervene in member states in order to prevent or halt grave situations such as war crimes, genocide, and crimes against humanity. Pursuant to this provision, the AU has deployed several peacekeeping operations for over a decade, including in Burundi, Darfur and Somalia. As observed from the experiences of the UN in similar endeavors, peacekeeping missions can potentially commit human rights violations against civilians in territories where they are supposed to keep peace. In relation to AU’s peacekeeping missions, a question arises as to who bears the responsibility for violations of rights recognized in the African Charter on Human and Peoples Rights if/when they are committed by AU peacekeeping missions against non-combatant civilians in the territories of member states of the AU. The problem is aggravated mainly due to the fact that these missions (under the various Status of Mission Agreements) and the AU itself have immunity from being subjected to domestic judicial systems. As explained by the ICJ in the Reparations Case, international organizations do have an international legal personality derived from their purposes and functions and that they are given the right to bring claims to enforce their rights. The right to bring claims also entails the possibility of being sued. With this line of argument, a claim against the AU as the spearhead of these missions, at the African Commission on Human and Peoples’ Rights or the African Court on Human and Peoples’ Rights would have made it possible for the victims to have redress for the violations. However, both the Commission and the Court declined to entertain claims against the AU and its predecessor OAU for the reason that the OAU and subsequently the AU are not state parties to the African Charter on Human and Peoples’ Rights and that state obligations as per the treaties are not expected from the organizations. This scenario creates a potential gap between rights violations and remedies available under the African regional system of human rights to repair such violations. Thus, the thesis argues that the AU does have obligations to respect/protect human rights in line with its functional legal personality and in situations where violations of rights are committed by it, victims should be able to gain remedy by instituting an action against it. In spite of the absence of a specific provision on the right to remedies in the African Charter on Human and Peoples’ Rights, the thesis also argues that the right to a remedy is implicitly incorporated in the Charter by virtue of the principle: ubi jus ibi remedium (where there is a recognized right, there should be a remedy) as corroborated by the emerging jurisprudence of the African Commission and the African Court.
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war crimes, genocide,crimes against humanity