The Centre for Human Rights in collaboration with the Department of Political Sciences, University of Pretoria, convened an international conference, 6-7 December 2012, under the over-arching theme: ‘Article 4(h) @ 10: How to End Mass Atrocities in Africa.’ The conference was held in commemoration of the fact that it is now 10 years since the coming into force of the Constitutive Act of the African Union. Article 4(h) of the Constitutive Act allows the African Union to intervene in a member state in the face of war crimes, genocide and crimes against humanity. The aim of the conference was to provide an opportunity for academics, judges, practitioners, policy makers, military personnel, government officials, among others, to consider legal, procedural and practical challenges to the implementation of Article 4(h).

In her opening remarks, the Vice Principal of the University of Pretoria, Professor Stephanie Burton, said that the Conference could not have come at a better time as Africa is now seeking “to better take care of itself.” She urged the participants to explore “how Article 4(h) can be implemented better in practice but also investigate why it has not been well implemented.” Professor Frans Viljoen, the Director of the Centre for Human Rights, highlighted that the aim of the Conference was to “find clarity around Article 4(h) and the context in which it can be used.” Delivering the keynote address, Justice Richard Goldstone, the former Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia and Rwanda, stated that “the question is whether the AU (and by that I mean its leading member States) will in the future find the political will to save the lives of many thousands of the people and prevent human catastrophes that might again threaten our continent.” In reference to the situation in DRC and northern Mali, Justice Goldstone added that “Indeed it is happening right now!” Justice Goldstone further stated that “[i]f that is to happen there must be clarity on the law and the constant pressure from the governments and non-governmental organisations for action. It is to that end that we are assembled in Pretoria.” He expressed the hope that “the discussions of this group and its recommendations will help move this process along and help bring about a situation in which Africa will find its own way to prevent the massacres, rapes, maiming and dislocation of societies that has been the hallmark of the past century and more.” 

The speakers at the Conference came from all the four corners of the globe and covered diverse topics regarding intervention to protect populations from mass atrocities. “There is no aspect that has not been covered,” remarked Dr. Jakkie Cilliers, the Executive Director of the Institute of Security Studies who was one of the moderators at the session. In his presentation, the former Force Commander for the AU Mission in Somalia (AMISOM), Major General Fred Mugisha explained the complexity of intervention forces on the ground when he said that the people in Somalia used to tell him that “thank you for chasing the terrorist but we do not have water and you end up sharing the little water that you have for your troops with the people.” Gen Mugisha exposed the protection gap between the military and humanitarian agencies in armed conflicts and urged for proper coordination between the military and humanitarian agencies. Maj Gen Mugisha said that   “this is a planting generation in terms of peace and security – not a reaping generation.” In his contribution, General Odillo, Commander of the Malawi Defence Force, stressed that “to move from promise to practice, there is need for proper training and equipment for troops to engage in rapid deployment to halt mass atrocities when diplomacy fails.” In agreement, Professor Jeremy Levitt commended the participation of the military in this “solution oriented conference” together with scholars, judges and practitioners. Professor Levitt argued that Article 4(h) intervention should be viewed as narrow –implying coercive means limited to military intervention. In his remarks, Ambassador Jan Mutton questioned why the African Union only endowed itself with the right to intervene and not highlighting the peoples’ right to be protected. Professor Michelo Hansungule even argued for a repeal of Article 34(6) of the Protocol of the African Court of Human and Peoples’ Rights in order to give individuals direct access to seek the Court’s protection from atrocities.

The Conference focused on the current version of Article 4(h) which aims at protecting populations from mass atrocities and not the amended version – which is not yet in force – that aims at restoration of legitimate order. Generally, the Conference emphasized that States have the primary responsibility to protect the human rights of the populations within their jurisdiction and that if a State is unable or unwilling to protect the population from mass atrocities then the African Union can intervene to protect the population at risk. The Conference considered that there are several ways to respond to mass atrocities and that military intervention pursuant to Article 4(h) is just one of them. The Conference noted that there are usually no problems when peaceful means are employed to respond to mass atrocities. It is when military force is deployed that is problematic as it infringes upon the question of state sovereignty hence the need for clarity as to the scope and the procedure for such intervention. The Conference also resolved that Article 4(h) should not be read in isolation but in line with other provisions of the AU Constitutive Act.

The Conference noted that the AU may seek authorisation of the UN Security Council to intervene in a Member State but that the AU may also inform the UN Security Council after the fact as Article 4(h) intervention is treaty-based intervention for AU Member States to prevent or halt mass atrocities by the AU. The Conference noted that where the UN Security Council does not authorize a clear case of Article 4(h) intervention, it should take responsibility for the consequences. The Conference recommended that the AU needs to prioritise prevention in terms of Article 4(h); the military, including the African Standby Force, should have a capability to protect and deter potential perpetrators of mass atrocities; the African human rights mechanism should play a proactive role to monitor the compliance of human rights and humanitarian standards in order to detect and prevent mass atrocities; governments should enhance their political responsibility to address the root causes of conflicts and mass atrocities; African States should also allocate resources for mass atrocity prevention initiatives; and in implementing Article 4(h), the humanitarian imperative to save lives and protect human dignity should override national or strategic interests.

On her part, the Norwegian Ambassador in Pretoria, Ms. Kari Bjørnsgaard, stated that the Norwegian Government was pleased to fund the conference because Norway believes in the norm of saving lives and protecting human dignity regardless of race, nationality, ethnic group, colour, sex, language or any other status. The Conference also facilitated a debate to draw guidelines on the role of the African Union and other stakeholders in ending mass atrocities in Africa’, which the participants termed “the Pretoria Principles”. A committee of experts was selected to consider and refine the guidelines in greater detail. The conference agreed to have a follow up session where stakeholders will be invited to consider the guidelines and devise the way forward. Commenting on the Conference, Professor Ademola Abass said the Conference was a great success. “It was well attended and the discussions were open and frank” he said. In the words of Professor Viljoen, this was a “conference that counted; and a meeting that mattered.”