Abstract
Since the end of the Cold War NATO’s role includes also crisis prevention, conflict management and post-conflict peace-building. Recently the Alliance has carried out in Africa some specific peace maintenance operations that can be divided in two groups: (a) the Alliance has intervened responding to a request from the African Union; (b) NATO has acted implementing a resolution of the UN SC.
The legitimacy or not of NATO’s interventions in Africa under International Law seems to depend respectively on the existence of a UN SC resolution and on the legitimacy of the AU’s action.
The cooperation between a local regional organization (the AU) and another organization which acts ‘out of area’ but has more financial means and military capability (NATO) seems not only to be legitimate but also hoped for, since it allows to conjugate the reasons in favor of a contribution by a local regional organization to the settlement of disputes with the material needs of a peace maintenance operation, reducing at the same time the risk of degeneration inherent to enforcement actions.
Generally speaking, when NATO operates solely on the basis of a SC Resolution the risk of abuse seems to be greater (see Libya). The cases examined show how NATO might better reach the objectives designated in its own post-Cold War Strategic Concepts observant of international law when it acts in support of regional organizations competent for the area where peace is at risk.
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Notes
- 1.
However, although this function is the main one of military alliances, it is not the sole. More can be added as the organization of the international political space by the alliance for partner countries’ interests or the achievement of a certain level of integration between member States (a function that can go from the cultural influence of the dominant State to the provision of police operations within the member States, as in the case of the Holy Alliance). As a matter of fact, this achievement of a certain level of integration between member States is often implicitly provided for in treaties of military alliances. In this sense see, inter alios, Zorgbibe (1999), p. 425.
- 2.
Article 6: ‘For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack: 1. on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France; 2. on the territory of or on the Islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer; 3. on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer’.
- 3.
Wörner (1991), p. 3.
- 4.
The full text of the 1991 Strategic Concept can also be found on NATO’s website www.nato.int, as well as every other legal document that I will mention hereinafter, if another source is not indicated.
- 5.
Kriendler (2004), p. 425.
- 6.
See paras 31 and 32.
- 7.
On the (problematic) conformity of this NATO transformation, from collective self-defense organization to crisis management structure on a global basis, with International Law see Cannizzaro (2012), pp. 95 et 96.
- 8.
See paras 27 and 33 of the 1991 Strategic Concept, and para. 3 of the Peace and Cooperation Declaration also adopted at Rome the 8th of November, 1991.
- 9.
As announced during the NATO ministerial meeting held at Oslo the 4th of June, 1992.
- 10.
See Preface of the 2010 Strategic Concept.
- 11.
Ibid.
- 12.
See the 1991 Strategic Concept, para. 33.
- 13.
Ibid., paras 31–33.
- 14.
Ibid., para. 31.
- 15.
Ibid., para. 4.2.
- 16.
‘Situated on the westerner part part of the Sudan, the Darfur region is home to an estimated seven million people. Over the past decades, the region has been affected by intermittent conflict, arising from competition over access to grazing land and water between sedentarians and paternalists; rivalries between communities over representation in the local structures of governance; as well as impact of national policies. The situation was aggravated by the widespread circulation of small arms and light weapons … In February 2003, the Sudan Liberation Army/Movement (SLA/M), initially called the Darfur Liberation Front, launched an attack on Gulu, capital of the Jebel Marrah Province, capturing the city. The SLA demands included, amongst others, the socio-economic development of the region and the end to the activities of the tribal militias. A number of attacks took place subsequently, particularly on El Fashirthe capital of North Darfur, and Mellit, the second largest city in North Darfur. In response to the attacks, the government forces launched offensives against the SLA, including aerial bombings. Later in 2003, a second movement called Justice and Equality Movement (JEM) emerged and joined the SLM in waging a military offensive against the GoS and the militia groups’; Report of the Chairperson of the Commission on the situation in the Sudan–AU Peace and Security Council, 5th meeting, Addis Abeba (Etiopia), April 13th, 2004, PSC/PR/2 (V), paras 2 e 3. The full text of the Report, as wella as alla other documents of this Council, can be found on its website: www.peaceau.org.
- 17.
‘The Darfur crisis also has adverse effects on the stability of neighboring Chad, which shares a 10000 km long border with Sudan. More that 110,000 refugees have fled to Chad, and a number of ethnic groups affected by the conflict saddle on both side of the border’; ibid., para. 4. See also Wadlow (2006), p. 87.
- 18.
This agreement was subscribed not only by the Sudanese Government and the main rebel groups (i.e. ‘JEM’, the ‘Justice and Equality Movement’ and SLM/A, the ‘Sudan Liberation Movement/Army’), but also by the President of Chad and by the Chairperson of the AU Commission. On this subject see de Waal (2007), p. 1039.
- 19.
Representatives of the parties in conflict, of Chad and of the International Community, in particular correspondents of USA and EU were also part of the mission.
- 20.
See decision on Darfur, Assembly of the AU, third ordinary session, Addis Ababa (Ethiopia), 6–8 July 2004–Assembly/AU/Dec.54 (III). The full text of the decision, as well as all other documents of the AU Assembly can be found on the internet website: www.au.int.
- 21.
‘AMIS shall consist of 3,320 personnel, including 2,341 military personnel, among them 450 observers, up to 815 civilian police personnel, as well as the appropriate civilian personnel’; see Communiqué—17th meeting of AU Peace and Security Council, Addis Ababa (Ethiopia), 20th of October, 2004—PSC/PR/Comm. (XVII), para. 7.
- 22.
UN SC Resolution 1564 (2004) of the 18th of September, 2004.
- 23.
Communiqué, paras 4 and 6.
- 24.
‘Council … Recalls the decision adopted at its 13th meeting held on 27 July 2004 [PSC/PR/Comm.(XIII)], requesting the Commission to prepare and submit to it, for consideration, a comprehensive plan on how best to enhance the African Mission in the Sudan (AMIS), including the possibility of transforming the said Mission into a full-fledged peacekeeping mission, with the requisite mandate and size, to ensure the effective implementation of the Humanitarian Ceasefire Agreement of 8 April 2004’; ibid., para. 1.
- 25.
Ibid., para. 2.
- 26.
As underlined by scholars: ‘the AU lacked the capabilities to deploy this force and AMIS lacked the necessary experience to undertake the mission’; Segell (2008), p. 4.
- 27.
On the EU role in Peace-maintenance in Africa see the chapter of this book written by Criseide Novi.
- 28.
NATO Documents, Assistance to the African Union, last updated 9 November 2015.
- 29.
‘NATO member states had been expressing deep concern since 2003 over the conflict in Darfur and at atrocities against civilians. They were uncertain on how to ameliorate the situation but were engaged in ongoing diplomatic efforts, especially at the United Nations (UN). Numerous debates and limited sanctions were levelled at the Sudanese Government yet consensus on a Security Council Resolution for a mandate on the use of armed intervention was not forthcoming. A permanent member of the Council, China, had shown reluctance to see such a resolution and would probably have vetoed it if one had been tabled’; ibid.
- 30.
After the visit on 17th of May of the Chairman of the AU Commission, Mr Alpha Oumar Konaré, to NATO Headquarters in Brussels; NATO Documents, Assistance. Actually it was the first ever visit of an AU official to NATO Headquarters.
- 31.
NATO Documents, NATO Secretary-General Pledges Darfur Support, 26 May 2005.
- 32.
Press conference by NATO Secretary-General, Jaap de Hoop Scheffer after the Plenary Meeting of the EAPC Security Forum.
- 33.
Preceded by NATO’s Secretary-General participation, together with UN’s Secretary-General Kofi Annan and AU Commission’s President Alpha Oumar Konaré, in an international donors’ conference in Addis Ababa for the AU’s peacekeeping mission in Darfur; NATO Documents, NATO Secretary-General Pledges.
- 34.
Meeting of the North Atlantic Council in Defence Ministers Session, Brussels, 9 June 2005, Final Communiqué, para. 9, NATO Press Release (2005) 076.
- 35.
The military machinery put into place being predominately US Air Force transport aircraft; ibid.
- 36.
NATO Documents, NATO Starts Airlifting African Union Troops to Darfur, 1 July 2005.
- 37.
‘In July, NATO has airlifted over 1,300 additional African Union peacekeepers into Darfur, helping the Union boost its presence on the ground in a concerted effort to end mass killings and rape in the region. The Alliance will continue to airlift additional peacekeepers into Darfur in August and September … NATO’s airlift mission began on 1 July. Since then United States C-130 and C-17 aircraft has moved approximately 680 troops to the region, while the United Kingdom supported the airlift of another 680 troops’; NATO Documents, 1,300 African Union Peacekeepers Airlifted to Darfur, 3 August 2005.
- 38.
NATO Documents, First NATO Airlift of Civilian Police into Darfur, 7 August 2005.
- 39.
Segell (2008), p. 11.
- 40.
‘A plan was formulated, and NATO responded by providing two phases of training, targeting two different training audiences. The first phase was conducted in August 2005 in Addis Ababa, Ethiopia at the DITF Headquarters and was designed to train the DITF staff members on strategic level tasks. The second phase of the training was conducted in El-Fashir, Sudan at the AMIS Force Headquarters compound and was designed to train the Force Headquarters on operational and tactical level tasks. This training was widely accepted and in total, 114 Force Headquarters and Sector Headquarters staff officers were trained from all the combined Force HQ components (Military, Civilian Police, CIMIC and NGOs)’; ibid., 12.
- 41.
NATO Documents, NATO Starts Airlifting.
- 42.
Ibid.
- 43.
Segell (2008), p. 13.
- 44.
NATO Documents, NATO Starts Airlifting.
- 45.
Increasing the number to 6.171 in September 2005 ‘with an appropriate civilian component, including up to 1,560 civilian police personnel’; see Communiqué—28th meeting of AU Peace and Security Council, Addis Ababa (Ethiopia), 28th of April, 2005—PSC/PR/Comm. (XXVIII), paras 3 and 9.
- 46.
NATO Documents, Assistance to.
- 47.
That according to some scholars was not capable of giving help for the resolution of the conflict because of poor leadership and insufficent equipment, among other things; Wadlow (2006), p. 88.
- 48.
Communiqué—45th meeting of AU Peace and Security Council, Addis Ababa (Ethiopia), 12th of January 2006—PSC/PR/Comm. (XLV), para. 5.
- 49.
For instance US President Bush or the UK's International Development Secretary; see Segell (2008), p. 15.
- 50.
Such as NATO's growing role in securing Afghanistan, the risk to inflame regional (Muslim) sensitivities and the low interest in Western countries about Darfur; ibid.
- 51.
NATO Documents, Assistance to.
- 52.
The full text of the statement can be found on the internet web site: www.sudantribune.com.
- 53.
One of the two factions of SLA, the one leaded by Mini Minnawi.
- 54.
Communiqué—51st meeting of the AU Peace and Security Council, Addis Ababa (Ethiopia), 15th of May, 2006—PSC/MIN/Comm/1(LI), para. 10.
- 55.
See Communiqué—58th meeting of the Peace and Security Council, Banjul (Gambia), 27th of June, 2006—PSC/MIN/Comm/1(LVIII), para. 7.
- 56.
‘The Security Council … Acting under Chapter VII of the Charter of the United Nations, 1. Calls upon the parties to the Darfur Peace Agreement to respect their commitments and implement the agreement without delay, urges those parties that have not signed the agreement to do so without delay and not to act in any way that would impede implementation of the agreement, and expresses its intention to consider taking, including in response to a request by the African Union, strong and effective measures, such as a travel ban and assets freeze, against any individual or group that violates or attempts to block the implementation of the Darfur Peace Agreement’; UN SC Resolution 1679 (2006) of the 16th of May, 2006.
- 57.
Mainly because of the inability of AU to enforce them; see Bah (2010), p. 9.
- 58.
NATO Documents, Assistance to.
- 59.
NATO Documents, NATO News, 12 December 2006.
- 60.
Especially the risk of resistance from the Government of Sudan and the difficulties due to the terrain (in particular the lack of water); see Segell (2008), p. 17.
- 61.
NATO Documents, NATO News.
- 62.
S/RES/1679 (2006).
- 63.
NATO Documents, Assistance to.
- 64.
Ibid.
- 65.
See UN SC Resolution 1769 (2007) of the 31st of July, 2007.
- 66.
Ibid., para. 2.
- 67.
Ibid., para. 15.
- 68.
AMIS had suffered many armed attacks against its staff which also caused victims, just as in the attack against the Hasjkanita base in September 2007 where twelve peace-keepers lost their lives.
- 69.
NATO Documents, Assistance to.
- 70.
Amongst which, the arrest mandate of the International Criminal Court against the Sudanese President Bashir in March 2009 and the drawing up of a peace agreement in Doha in July 2011 between the Government of Sudan and the rebel group named ‘Liberation and Justice Movement’ stand out.
- 71.
The AU has also given its contribute for international peace and security avoiding the spreading of the conflict amongst the other states of the region.
- 72.
- 73.
Ibid.
- 74.
Being accused of unleashing the Janjaweed (an Arab tribal militia) against civilians; Segell (2008), p. 3.
- 75.
The USA having moreover a parallel interest in keeping Sudan as an ally in the war against international terrorism; Raftopoulos and Alexander (2008), p. 84.
- 76.
This was the opinion of former Foreign ministers of important countries, such as Madeleine Albright (USA), Robin Cook (UK), Lamberto Dini (Italy), Lloyd Axworthy (Canada), Ana Palacio (Spain), Erik Derycke (Belgium), and Surin Pitsuwan (Thailand); International Herald Tribune, 25 May 2005.
- 77.
In order to be legitimate under International Law such an intervention requires an UN SC Chapter VII resolution and in the specific case China would have probably opposed it; on the point see alsoSegell (2008), p. 7.
- 78.
Ibid., 13. See also NATO STOPWATCH, Debate 1: NATO, the African Union, the United Nations and Darfur Special Interactive Video Forum Series with Jamie Shea, 30 September 2005.
- 79.
- 80.
On IGAD’s role in peace-keeping see Pasquali (2012), p. 90 et seq.
- 81.
UN SC Resolution 1725 (2006) of the 6th of December, 2006, para. 3.
- 82.
IGASOM’s mandate was: ‘(a) To monitor progress by the Transitional Federal Institutions and the Union of Islamic Courts in implementing agreements reached in their dialogue; (b) To ensure free movement and safe passage of all those involved with the dialogue process; (c) To maintain and monitor security in Baidoa; (d) To protect members of the Transitional Federal Institutions and Government as well as their key infrastructure; (e) To train the Transitional Federal Institutions’ security forces to enable them to provide their own security and to help facilitate the reestablishment of national security forces of Somalia’; ibid.
- 83.
AU Peace and Security Council—Communiqué PSC/PR/2(LXIX) of the 19th of January, 2007, para. 8. More specifically, AMISOM tasks were: ‘- to support dialogue and reconciliation in Somalia, working with all stakeholders, - to provide, as appropriate, protection to the TFIs and their key infrastructure, to enable them carry out their functions, - to assist in the implementation of the National Security and Stabilization Plan of Somalia, particularly the effective reestablishment and training of all inclusive Somali security forces, bearing in mind the programs already being implemented by some of Somalia’s bilateral and multilateral partners, - to provide, within capabilities and as appropriate, technical and other support to the disarmament and stabilization efforts,—to monitor, in areas of deployment of its forces, the security situation, - to facilitate, as may be required and within capabilities, humanitarian operations, including the repatriation and reintegration of refugees and the resettlement of IDPs, and - to protect its personnel, installations and equipment, including the right of self-defense’.
- 84.
UN SC Resolution 1744 (2007) of the 20th of February, 2007, para. 4.
- 85.
The mandate, initially for a period of six months, was: ‘(a) To support dialogue and reconciliation in Somalia by assisting with the free movement, safe passage and protection of all those involved with the process referred to in paragraphs 1, 2 and 3; (b) To provide, as appropriate, protection to the Transitional Federal Institutions to help them carry out their functions of government, and security for key infrastructure; (c) To assist, within its capabilities, and in coordination with other parties, with implementation of the National Security and Stabilization Plan, in particular the effective re-establishment and training of all-inclusive Somali security forces; (d) To contribute, as may be requested and within capabilities, to the creation of the necessary security conditions for the provision of humanitarian assistance; (e) To protect its personnel, facilities, installations, equipment and mission, and to ensure the security and freedom of movement of its personnel’; ibid. AMISOM’s mandate was extended by the SC for six months periods at first and for longer periods more recently. Lastly, in July 2015, the UN SC gave a green light to AU member States to continue the operation in Somalia until 30 May 2016, but ‘as part of an overall exit strategy for AMISOM, after which a decrease in AMISOM’s force strength will be considered’; UN SC’s Resolution 2232 (2015) of the 28th of July 2015, para. 3.
- 86.
Poli (2011), p. 202. It has been argued that: ‘In Resolution 2036 of 2012 the Security Council was more specific in authorising AMISOM ‘to reduce the threat posed by Al Shabaab and other armed opposition groups in order to establish conditions for effective and legitimate governance across Somalia’; Freear et de Coning (2013), p. 3.
- 87.
NATO Documents, Assistance to the African Union.
- 88.
- 89.
NATO Documents, Assistance.
- 90.
ibid.
- 91.
The AU Peace Support Operation Division is responsible for the planning, conduct and management of AU operations and missions.
- 92.
- 93.
The Protocol was adopted on the 9th of July, 2002 in Durban (South Africa) by the first ordinary session of the AU conference and it came into force on the 26th of December, 2003 according to its Article 22. Concerning the AU Peace and Security Council in general, inter alios, see Strydom (2003), p. 59.
- 94.
The full text of the Policy Framework can be found on the internet website of the AU Peace and Security Department.
- 95.
The thesis of Poli (2011), p. 159, according to which interventions in serious circumstances of scenario 6 the Policy Framework considers the institutional cover offered by the AU enough to legitimate the use of force, not being necessary the authorization of the UN SC does not convince, not only because the Policy Framework (as indeed pointed out by the same author) is not a binding document, but mostly because such a conclusion is hardly compatible with the current principles of International Law concerning the use of force.
- 96.
NATO Documents, Assistance.
- 97.
- 98.
UN SC Resolution 1676 (2006) of the 10th of May, 2006, ninth preambular paragraph. As it has been argued, the Council feared that the attacks against merchant ships would exacerbate the unstable situation within the country which it had already qualified as a threat to peace; Annoni (2013), p. 179.
- 99.
- 100.
See Noto (2009), p. 439.
- 101.
UN SC Resolution 1816 (2008) of the 2nd of June, 2008, para. 2.
- 102.
Ibid., para. 7.
- 103.
See NATO Documents, Operation Allied Protector, last updated 17 November 2009.
- 104.
Such as China, India, Islamic Republic of Iran, Japan, Malaysia, Republic of Korea, Russian Federation, Saudi Arabia, and Yemen. See UN SC Resolution 1950 (2010) of the 23rd of November, 2010, 9th preambular para.
- 105.
In particular EU operation Atalanta, North Atlantic Treaty Organization operations Allied Protector and Ocean Shield, Combined Maritime Forces’ Combined Task Force 151. Ibid.
- 106.
See NATO Documents, Operation Allied Protector.
- 107.
Ibid.
- 108.
NATO Documents, Operation Allied Protector.
- 109.
On Operation Ocean Shield see NATO Marcom Factsheet, Operation Ocean Shield.
- 110.
NATO Documents, Counter-piracy Operations, last updated 19 December 2015. As NATO itself makes clear, the reason of the termination of Ocean shield is the fact that no successful piracy attacks took place since 2012. Ibid.
- 111.
‘NATO naval forces operate off the Horn of Africa, including the Gulf of Aden and the Western Indian Ocean up to the Strait of Hormuz. An area greater than 2 million square miles or approximately the size of Western Europe’; ibid.
- 112.
Ibid.
- 113.
NATO Documents, Counter-piracy.
- 114.
‘NATO is not a lead actor in regional capacity building, but it provides added value in niche areas such as military training, command and control, and coordination in complex situations which can benefit countries in the region. NATO is therefore taking advantage of port visits to provide training and conduct ship-rider programmes for the local population’; ibid.
- 115.
Ibid.
- 116.
‘In January 2013 there were no attacks, approaches or disruptions in the area. In comparison, in January 2012 there were four pirate attacks all of which were unsuccessful and 80 suspected pirates were captured by counter piracy forces of which 59 were captured by NATO ships. In January 2011 there were 29 attacks and six ships were pirated’; NATO Marcom Factsheet; ‘The very presence of this international naval force, composed of vessels from NATO and other entities, is deterring pirates from pursuing their activities to the point of completely suppressing piracy in the region. The implementation of best management practices by the shipping industry, as well as the embarkation of armed security teams on board, has also contributed to this trend. There have been no successful attacks since May 2012’; NATO Documents, Counter-piracy.
- 117.
‘Pirates still seek to, and have the capacity to, mount attacks. Counter-piracy efforts at sea and ashore remain important to prevent a resurgence of piracy. Against this background, at the Wales Summit in September 2014, NATO leaders agreed to continue NATO’s involvement off the coast of Somalia until end 2016’; ibid.
- 118.
See, for instance, S/RES/1950 (2010), 9th preambular para.
- 119.
Whose Presidents, respectively Ben Ali and Hosni Mubarak, where actually forced out by public demonstrations and protests between January and February 2011.
- 120.
- 121.
See Johnson and Mueen (2012), p. vii.
- 122.
Composed both by new people and defectors from the Gaddafi regime and headed by by former Justice Minister Mustafa Mohamed Abud Al Jeleil. Scholars consider that Libya’s uprising was not a genuine popular revolution, but rather an elite movement which aimed to overthrow the regime in power; Ronzitti (2011), p. 4.
- 123.
‘The Libyan leader expressed clear intent to continue committing massive human rights violations by announcing to Benghazi residents that his forces would show ‘no mercy’ to rebels. Gaddafi’s cruel objective was clear in his potent speech broadcasted on 22 February 2011, when he used language reminiscent of the genocide in Rwanda and stated that he would rather die a martyr than step down. Gaddafi called on his supporters to attack the protesting ‘cockroaches’ and ‘cleanse Libya house by house’ until protestors surrendered.’; ICRtoP Documents, The crisis in Libya, at www.responsibilitytoprotect.org.
- 124.
Such as ill-treatment, beatings, injuries, rapes, torture, killings, enforced disappearances and arbitrary arrests of protesters (including lawyers, human rights defenders and journalists), firing at random on protesters and bystanders from rooftops, using warplanes and helicopters to strike at demonstrators, using foreign mercenaries and attempting to restrict the broadcasting of the situation in the country by cutting off landlines and internet access and by restricting media coverage; see Ulfstein and Christiansen (2013), pp. 159 et 160.
- 125.
‘Condemnations of the violent suppression by the Qaddafi regime mounted from both the UN and regional organizations, including the African Union, the Arab League, the Gulf Cooperation Council and the Organization of the Islamic Conference. On 22 February 2011 the UN High Commissioner for Human Rights, Navi Pillay, called for an immediate cessation of the human rights violations committed by Libyan authorities. On the same day the Arab League decided to suspend Libya from the organization, the UN Security Council issued a statement urging the Libyan authorities to ‘meet its responsibility to protect its population’ and the Organization of the Islamic Conference uttered that it “considers the ongoing coercion and oppression in Libya as a humanitarian catastrophe”. On 24 February the African Union condemned “the disproportionate use of force” against Libyan civilians’; ibid.
- 126.
UN SC Resolution 1970 (2011) of the 26th of February, 2011.
- 127.
Ulfstein and Christiansen (2013), p. 160.
- 128.
See AU Peace and Security Council’s, Communiqué PSC/PR/COMM.2(CCLXV) of the 10th of March, 2011, para. 6. On the AU role in Libya see, among others: de Waal (2013), p. 365.
- 129.
See Bellamy and Williams (2011), p. 840.
- 130.
NATO Documents, NATO Ready to Support International Efforts on Libya, last updated 15 March 2011.
- 131.
Ibid.
- 132.
‘On 17 March, speaking on a radio show in Tripoli, Qaddafi raised the levels of urgency of the situation. He threatened civilians living in areas that refused to comply with his rule, declaring “We will come house by house, room by room ... We will find you in your closets. We will have no mercy and no pity’; Ulfstein and Christiansen (2013), p. 160.
- 133.
See Bellamy et Williams (2011), p. 840.
- 134.
It has been argued that the position taken by these regional organization has been crucial in convincing the UN SC to authorize the use of force; ibid., 843.
- 135.
UN SC Resolution 1973 (2011) of the 17th of March, 2011.
- 136.
South Africa, Bosnia and Herzegovina, Colombia, France, Gabon, Lebanon, Nigeria, Portugal, the United Kingdom and the United States. Actually France and the United Kingdom had drafted the resolution, which was co-sponsored by the USA and Lebanon.
- 137.
As it has been pointed out, the Resolution was preceded by very intense negotiations, with the Russian Federation unconvinced of the necessity to resort to force; Ronzitti (2011), p. 6.
- 138.
On this no-fly zone see Vierucci (2011), p. 21.
- 139.
S/RES/1973 (2011), para. 6.
- 140.
Ibid., para. 8.
- 141.
Ibid., para. 4. Any form of occupation of any part of Libyan territory was explicitly excluded.
- 142.
Allowing also inspections on air cargo and vessels in international space and reiterating the prohibition of introducing armed mercenary personnel in Libya. Ibid., paras 13–16.
- 143.
Ibid., paras 17–18.
- 144.
Ibid., paras 19–21.
- 145.
See ICRtoP Documents, The Crisis in Libya.
- 146.
See Pommier (2011), p. 1064. The author, though points out that the R2P concept was not always explicitly raised in the debates leading to the adoption of the resolutions.
- 147.
Apuuli (2012), p. 139.
- 148.
Between 31 March 20111 and 31 October 2011 when Operation Unified Protector terminated, NATO and partner air assets had flown in more than 26,000 sorties in Libya, of which forty-two per cent were strike sorties. Over 7,600 air-to-surface weapons were used damaging or destroying approximately 6,000 military targets; Vierucci (2011), p. 23.
- 149.
United Arab Emirates, Jordan and Qatar.
- 150.
Such as Sweden and Morocco.
- 151.
UN SC Resolution 2016 (2011) of the 27th of October, 2011.
- 152.
- 153.
Although in Article 53 the terms used are ‘enforcement action’, according to the prevailing interpretation such an expression is meant to be limited only to actions involving the use of force. See Walter (1997) p. 141: ‘The justification of the use of force which is inherent in Security Council decisions under Article 42 has to be kept in mind when interpreting Article 53. By contrast to the functions of Article 41 of the Charter, the justification with respect to Article 2 para. 4, which is inherent in an Article 42 decision of the Council may not be established in a regional treaty. The functions of decisions under Article 41 could be fulfilled in a regional treaty. The decisions of the competent organ could be mandatory for all members and non-military sanctions could be justified vis-à-vis the addressee if the latter is a member state of the organization. Any use of military force, however, may only be justified by a decision of the Security Council. Article 53 has to be interpreted as part of this system of the Charter which concentrates the use of military force within the Security Council. The requirement for authorization must be seen as an instrument to ensure Security Council control over use of military force. It follows from this analysis that it is only military enforcement action which requires Security Council authorization under Article 53. Non-military sanctions do not fall under the same rigid system as military action does. Therefore, an interpretation of the term ‘enforcement action’ in Article 53, which takes into account the system of maintenance of international peace and security established by the Charter and the role of the Security Council within that system, leads to the conclusion that the term only refers to military enforcement action. Non-military sanctions are not subject to an authorization by the Security Council’. Also express themselves in the same way, ex plurimis, Conforti and Focarelli (2010), p. 327, who also point out how practice of regional organizations and of the UN SC itself has developed in this way.
- 154.
See, inter alios, Erkki Kourula (1978), p. 95 et seq; Walter (1996), p. 324 et seq; Villani (2001), p. 324 et seq; Villani (2002), p. 535 et seq; De Wet (2004), p. 290 et seq; Lattanzi and Spinedi (2004); Cellamare (2015). The mentioned contributions regard the relationship between the UN SC and regional organizations in general, in the framework of Article 53. Several works about the relationship between a single regional organization and the UN SC as well as texts concerning a specific coercive action by a regional organization according to Article 53 have also been published. The cooperation between the UN SC and regional organizations has also been the subject of some UN SC Resolutions, such as: 1631 (2005); 2033 (2012) and 2167 (2014).
- 155.
The full text of the Constitutive Act of the AU (in English, French and Arabic) can be found on the AU’s internet website. According to Article 9.g the management of conflicts, of war situations and other urgent situations, as well as peace restoration are referred to the Executive Council which acts on the base of the Union Conference’s’ directives. The Conference and the Executive Council are among the main bodies of the AU. The Conference is formed by the Heads of State and Government of member States and it is the Union’s supreme body (Article 6.1–2). The Executive Council instead is formed by the Ministers for Foreign Affairs or by other Ministers or authorities appointed by the governments of the member States, as specified by Article 10.
- 156.
The structure of the AU Peace and Security Council’s is inspired both by the mechanism that preceded it and by the one of the UN SC. It is formed by 15 member States of the AU elected by the Conference of the Heads of State and Government of the AU considering not only the principle of equal regional representation and the principle of rotation but also the respect of pre-determined standards by candidates. No permanent members and no right of veto are present. The UN SC meeting is formed by permanent representatives, Ministers or Heads of State and Government and it may create the necessary structures in order to carry out its functions. Among these structures mediation and conciliation committees, commissions of inquiry formed by a State or by a group of States can be found. As a general rule its meetings are closed doors meetings and the decisions are adopted by consensus, although the majority of 2/3 of the voters is sufficient (with the exception of procedure matters for which the majority requested is a simple majority). Every State has one vote. Member States directly involved in a conflict or in a situation submitted to the Council cannot participate to the discussion and neither to the decision. They might be invited to present their position during the opening of the meeting but after they must retire. On the Peace and Security Council of the AU see, ex plurimis, Strydom (2003), p. 59; Lecoutre (2004), p. 131; Cilliers and Sturman (2004), p. 97; Chouala (2005), p. 288; Cellamare (2015), p. 38.
- 157.
With the final end of assuring protection and conservation of life and goods and the wellbeing of African populations and their environment, as well as the creation of favourable conditions for a lasting development as specified by Article 3.a.
- 158.
Including even a role in the battle against international terrorism in Africa and in the creation of a common defense policy of the AU and also the possibility of carrying out humanitarian actions and natural disasters management.
- 159.
In this sense see in particular Articles: 3.b; 6.1.d; 7.1.b–d; 9.1; 13.
- 160.
For this aspect see in particular Articles: 3.c; 6.1.e; 14.
- 161.
Certain scholars assumed that according to such a provision, the AU would have been able to deploy its troops at the beginning in order to permit a ‘UN follow-on multi-dimensional peace support operation’; see Cilliers (2008), p. 7. Actually, recent events seem to have proven this assumption wrong.
- 162.
See, for instance, Article 1 and Article 12, but also the preamble, of NATO Treaty. Indeed opinions have not always been even in this sense (especially during the Cold War). In fact, as soon as the Northern Atlantic Treaty became public, the Tass Agency (from 1925 to 1992 Tass—acronym in Latin letters for Telegrafnoe Agentstvo Sovetskogo Sojuza—was the official printing Agency of the Soviet Union), stated that the references to the full respect of the UN Charter were “phrases falsifiées” that were used only to “dissimuler le caractère évidemment agressif du pacte Nord Atlantique”; see Le Monde of 20 March 1949, as reported by Boutros-Ghali (1949), p. 154.
- 163.
See Article 7 of NATO Treaty.
- 164.
The doctrine concerning the abstract definition of regional organization according to Chapter VIII of the UN Charter is quite wide. Let me recall, ex plurimis, the following contributions: Yepes (1947), p. 246; Boutros-Ghali (1949), p. 3; Kelsen (1951), p. 319; Saba (1952), p. 639; Quadri (1968), p. 373; Panebianco (1990), p. 9; Walter (1996); Villani (2001); Boisson de Chazournes (2010), p. 244; Conforti and Focarelli (2010), p. 326; Cellamare (2015), p. 22.
- 165.
Some scholars actually believe that considering NATO a regional arrangement or agency under Article 53 of the UN Charter can be problematic, not just because the Alliance acts almost exlcusively in the field of militar cooperation, but also because the Treaty of Washington is a 'closed' treaty; Cannizzaro (2012), p. 92.
- 166.
- 167.
See Cellamare (2015), p. 23.
- 168.
‘les Ententes régionales jouent à l’heure actuelle un rôle politique et diplomatique qui n’avait pas été prévu au moment de l’élaboration de la Charte… Il importe d’offrir une définition des Ententes régionales qui servirait de cadre aux manifestations régionalistes. Il importe surtout que cette définition s’appuie sur des réalités … le motif qui a porté à créer l’expression ‘entente régionale’ a pour origine l’élaboration de l’Article 21 du Pacte de la S.D.N… L’expression ‘entente régionale’ fut adoptée, nous dit le Président Wilson, non parce que quelques délégués avaient estimé qu’il existait, ou bien qu’il pourrait exister un pareil accord, mais simplement pour éviter l’apparence de traiter dans un tel document de la politique d’un seul état … L’expression a pour origine un hasard, un accident. C’est aux conséquences infinies de cet hasard, aux constructions juridiques qu’il a permises, c’est à l’historie des faits et à leur interprétation que nous ferons appel pour élaborer une définition’; Boutros-Ghali (1949), pp. 5 et 9; italics added.
- 169.
‘The Charter deliberately provides no precise definition of regional arrangements and agencies, thus allowing useful flexibility for undertakings by a group of States to deal with a matter appropriate for regional action which also could contribute to the maintenance of international peace and security. Such associations or entities could include treaty-based organizations, whether created before or after the founding of the United Nations, regional organizations for mutual security and defence, organizations for general regional development or for cooperation on a particular economic topic or function, and groups created to deal with a specific political, economic or social issue of current concern’; Boutros-Ghali (1995), p. 63, para. 61. The point of view expressed by the Secretary-General Boutros-Ghali has been confirmed many times by the practice of the UN. It is in fact sufficient to examine the list of organizations which have participated to the various meetings starting from the beginning of the 90s to today, such as the high level meeting on cooperation between organizations and regional agreements and the UN for the maintenance of peace held on the 1st of August, 1994 as well as the various thematic meetings organized by the UN SC in order to discuss with the regional organizations the current peace and international security challenges. The OSA, the AU, the ECOWAS, the Arab League, the OSCE, the European Union, the NATO, the ASEAN, the CIS, the Islamic Conference, the Council of Europe, and the Organization of the Collective Security Treaty have taken part to these meetings at least once (but some have taken part with a certain frequency, for example the AU, the Arab League, the OSCE and the European Union). On the subject see the recent publication of Cellamare (2015), p. 22. In the light of such a practice of the UN, the doubts concerning the legitimacy of some organizations suggested by Del Vecchio (1995), p. 235, seem no longer to be existent.
- 170.
- 171.
Cellamare (2015), p. 22.
- 172.
See the final communication of the meeting.
- 173.
Cellamare (2015), p. 29. The author also points out that some not recent SC resolutions already suggested the qualification of NATO as a regional arrangement or agency under Article 53 of the UN Charter.
- 174.
For more on the AU role in Peace-maintenance in Africa see the chapter written by Giovanni Cellamare in this volume.
- 175.
On the subject (including also an analysis of practice) see Pasquali (2012).
- 176.
Ibid., pp. 270–272.
- 177.
As it has been pointed out NATO's use by the SC is mostly due to the fact that the Alliance involves the most important part of international community from a political and military point of view; Cannizzaro (2012), p. 92.
- 178.
Cellamare (2015), p. 32. In the light of such a practice, the author does not hesitate to qualify as 'irrelevant' the place where the regional organisation acts.
- 179.
On the legitimacy of AU operations see, inter alios, Cellamare (2015), p. 38.
- 180.
ibid., pp. 50–51. See also the chapter written by Giuseppe Pascale in this volume.
- 181.
See the 1991 Strategic Concept, paras 31–33.
- 182.
See the 1999 Strategic Concept, para. 31.
- 183.
See the 2010 Strategic Concept, para. 4.2.
- 184.
See Cannizzaro (2012), p. 95.
- 185.
See Cannizzaro (2012), p. 96.
- 186.
A wide range of bibliography exists concerning NATO’s intervention in Kosovo. Let me remind you, ex plurimis, the following monographic contributions and articles: Ronzitti (2000), Sciso (2001), Tomuschat (2002), Henkin (1999), p. 824; Wedgwood (1999), p. 828; Charney (1999), p. 834; Chinkin (1999), p. 841; Falk (1999), p. 847; Franck (1999), p. 857; Reisman (1999), p. 860; Koskenniemi (1999), p. 177; Ripol Carulla (1999), p. 59; Ronzitti (1999), p. 476; Simma (1999), p. 1; Zappalà (1999), p. 476; Picone (2000), p. 309; Thürer (2000), p. 1; Weckel (2000), p. 19; Benvenuti (2001), p. 503.
- 187.
As mentioned above, the fact that three local regional organizations such as the Gulf Cooperation Council, the Organization of Islamic Conference and the Arab League had endorsed an UN-backed no-fly zone in Libya has been considered one of the key elements at the basis of the UN SC decision to adopt Resolution 1973 (2011). See Bellamy and Williams (2011), p. 843.
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Pasquali, L. (2018). NATO and Peace Maintenance in Africa. In: Cellamare, G., Ingravallo, I. (eds) Peace Maintenance in Africa. Springer, Cham. https://doi.org/10.1007/978-3-319-72293-1_4
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