The African Union’s right of intervention and the UN system of collective security Het recht van interventie van de Afrikaanse Unie en het VN-systeem van collectieve veiligheid (met een samenvatting in het Nederlands) Proefschrift ter verkrijging van de graad van doctor aan de Universiteit Utrecht op gezag van de rector magnificus, prof.dr. G.J. van der Zwaan, ingevolge het besluit van het college voor promoties in het openbaar te verdedigen op woensdag 24 april 2013 des middags te 4.15 uur door Yves Gapasi Muhire geboren op 9 mei 1975 te Rutshuru, Democratische Republiek Congo Promotores: Prof. dr. E.P.J Myjer Prof. dr. A.H.A Soons This thesis was accomplished with financial support from NUFFIC. There are two kinds of injustice: the first is found in those who do an injury, the second in those 1 who fail to protect another from injury when they can. 1 Cicero, De Officiis I, vii (trans. Michael Winterbottom, 1994) see N. J. Udombana “When the Neutrality is a Sin: The Darfur Crisis and the Crisis of Humanitarian Intervention in Sudan” (2005) 27 The Human Rights Quarterly at 1149; K. Kindiki Intervention to protect civilians in Darfur: Legal dilemmas and policy imperatives, Institute for Security Studies, ISS Monograph Series, No 13, May 2007. To my wife, Umulisa Julie, for your love and support; To my son Ganza Dylan Pavel and daughter Gabe Kate Darlène for giving me the sense of living; I dedicate this thesis. Printed by: Proefschriftmaken.nl || Uitgeverij BOXPress ISBN: 978-90-8891-618-2 © Yves Muhire, 2013 v Acknowledgements The completion of this doctoral thesis has been made possible, beyond my personal effort, by the assistance of numerous people and institutions. First and foremost, my heartfelt and endless gratitude goes to the supervisors of this study Prof. dr Fred Soons and Prof. dr Eric Myjer. Coming from far and without knowing me they welcomed and unconditionally accepted to guide me in the long and hectic research process. I benefited and learned a lot from their enriched academic experience. Their encouragement, follow-up, openness and collaboration eased my task. I found them more like parents than mere supervisors. Through my supervisors I would like to thank Utrecht University for having accepted me as an exchange researcher. The facilities and services plus the good working environment were a great boost to my success. Among others, I am grateful to the staff of the International Office of Utrecht University, in particular Natalja Macnack and Julie Daems, who gave me a great deal of assistance during my stay in settling and finding accommodation in Utrecht. The librarians of the University unreservedly and kindly aided me by initiating me to the electronic use of the library and availing the materials I needed. The exchanges I had with some staff of the Wiarda Institute during coffee breaks made my stay enjoyable and enriching. To all these persons I say a big thank you. My deep and sincere thanks go to Peter Morris, who had the difficult task of editing the language of the manuscript. My gratitude also extends to the Dutch Government which, through NUFFIC, provided the financial support for the whole project. The Center for International Legal Cooperation (CILC) as the subcontractor of NUFFIC played an invaluable role in the implementation of the project. A particular mark of gratefulness goes to Dr Roelof H. Haveman. Not only did he pave the way for the project but also most importantly persuaded me to undertake the PhD research and gave me confidence. Above all, he successfully found for us (I and other colleagues) universities where we would carry out our research and he found and introduced us to our respective supervisors who would guide us. Words cannot adequately express the feelings of gratitude I personally owe him. Without underestimating the contribution of the other staff of CILC, I would also like to express my gratitude to those with whom I dealt with directly, namely Tamara van Vliet, Karin Nijenhuis and particularly Ingrid de Haer-Douma. I would have cheated myself if I had failed to recognise the role played by the Kigali Independent University (ULK), my employer, and in particular its Founder and President Prof. Dr Rwigamba Balinda for having given me the opportunity to undertake my doctoral research and allowed me to be absent from work for research purposes. I also thank the people I met at the Headquarters of the African Union in Addis-Ababa, Ethiopia who provided me with an insight into my topic. I keep in mind the precious assistance and care I received from Miss Ketsela Gadissa. She guided me throughout the metropolis of Addis Ababa and did her best to make my short stay agreeable and fruitful. I am indeed indebted to her. My long research process would not have been possible without the unreserved support and encouragement of my lovely wife Umulisa Julie. All through the years dedicated to this study she perfectly and bravely assumed the responsibilities of the whole family during my absence. vi Her abnegation and audacity during the pregnancies with our children, Ganza Dylan and Gabe Kate Darlene, when she was mostly in need of my presence were a source of inspiration and made me proud of her. She deserves more than mere words of acknowledgement and homage. To my son and daughter I can only say thanks for what you represent for me. It would also be unfair and a lack of recognition to forget to mention my parents for having brought me this far. I cannot forget to thank Mr Gumiliza Patient and his wife Karege Maryse. During my intermittent stay in Utrecht they made me feel at home, they made me part of their family and they left no room for loneliness. On a special note, I am grateful to their son Gumiliza Aimé Fontein, a friend of mine, from whom I learned a few Dutch words. Hence, to him I say dank je. Last but not least, I would like to extend my gratitude to Mbabazi Apollo, Robert (Charmant), and Mr. and Madam Kabia for their company. Finally, I am grateful to everyone who anonymously assisted me or contributed in one way or another in this project. You are so many that I cannot mention your names out of fear of forgetting some of you. May God bless you all! Yves Gapasi Muhire vii Table of contents Acknowledgements ...................................................................................................................... V Table of contents ........................................................................................................................ VII Principal abbreviations .............................................................................................................. XI List of cases ............................................................................................................................... XIV General introduction .................................................................................................................... 1 1. BACKGROUND .......................................................................................................................... 1 2. RESEARCH QUESTIONS ............................................................................................................. 3 3. METHODOLOGICAL APPROACH, SOURCES AND INTERPRETATION ............................................. 6 3.1 Methodological approach.................................................................................................. 6 3.2 Sources .............................................................................................................................. 7 3.3 Interpretation ..................................................................................................................... 9 4. RESEARCH STRUCTURE AND OUTLINE .................................................................................... 12 CHAPTER I. Regional organizations in the framework of the United Nations ................... 15 I.1 THE CONCEPT OF REGIONAL ORGANIZATIONS ....................................................................... 15 I.1.1 Regional organizations equated with regional arrangements and agencies ................. 16 I.1.2 What is a regional organization? .................................................................................. 18 I.2 HISTORICAL BACKGROUND OF REGIONAL ORGANIZATIONS .................................................. 21 I.2.1 From the League of Nations to the United Nations ...................................................... 21 I.2.2 Existing regional organizations .................................................................................... 23 I.3 REGIONAL ORGANIZATIONS WITHIN THE FRAMEWORK OF THE UN ....................................... 31 I.3.1 Regional organizations under Chapter VIII of the UN Charter .................................... 31 I.3.1.1 Regional organizations: entities for the maintenance of international peace and security .............................................................................................................................. 31 I.3.1.2 Appropriateness of regional action ........................................................................ 32 I.3.1.3 Consistency with the Purposes and Principles of the UN ..................................... 34 I.3.2 Relationship between the UN and regional organizations ............................................ 36 I.3.2.1 Universalism versus regionalism ........................................................................... 36 I.3.2.2 The complementarity between the UN and regional organizations