Persuasive Prevention: Implementation of the AU Right of Intervention

Abstract: This thesis explores the scope and limits of Article 4(h) of the AU Act in order to generate new thinking on, and contribute a fresh legal approach to, the implementation of the AU’s right to intervene under Article 4(h). While Article 4(h) intervention can be construed as enforcement by consent, it is not clear whether the UN Charter provides for enforcement action by consent to be outside the purview of Article 53(1) of the UN Charter. Thus, Article 4(h) intervention without authorisation of the UN Security Council faces legal challenges in view of Article 103 of the UN Charter and Article 53 of the Vienna Convention on the Law of Treaties, which stipulates that a treaty is void if, at the time of its conclusion, it conflicts with a jus cogens norm. However, Article 4(h) can be interpreted as a general a priori invitation in the form of a treaty-based intervention to prevent or halt mass atrocity crimes, which are of legitimate concern to the international community, and give rise to prosecution under the principle of universal jurisdiction. Nevertheless, measures to ensure the observance of the law in prospect, rather than intervention and penalisation of violations after the fact are worthwhile in preventing violations given the financial and institutional incapacity of the AU. Hence the need for ‘persuasive prevention’ to deter potential perpetrators and ensure compliance of human rights and humanitarian law obligations.