ANNEXURE A

Briefing notes on Protocol Establishing the Peace and Security Council of the African Union

1. SUMMARY

The Protocol Establishing the Peace and Security Council of the African Union was adopted by the First session of the African Union Assembly which took place in July 2003, Durban, South Africa.

The Peace and Security Council will be the standing decision-making organ for the prevention, management and resolution of conflicts. The Peace and Security Council shall be a collective security and early-warning arrangement to facilitate timely and efficient response to conflict and crisis situations in Africa.

The Peace and Security Council shall be supported by the Commission, a Panel of the Wise, a Continental Early Warning System, an African Standby Force and a Special Fund.

The functions of the Peace and Security Council will include early warning and preventative diplomacy, peace-making, peace support operations. Its mandate according to the Constitutive Act will include the right of the AU to intervene in member states in respect of grave circumstances, war crimes, genocide and crimes against humanity. It may also respond to requests by member states to intervene in restoring peace and security and its primary function will be peace-building and post-conflict reconstruction. It will ensure the implementation of the OAU/AU, UN and other relevant international Conventions and Treaties on arms control and disarmament. It may take action where the national independence and security of a member state may be threatened by acts of foreign aggression, including mercenaries. It will co-ordinate and facilitate humanitarian action in situations of armed conflict and natural disaster and take decisions on issues relating to peace on the continent. It also provides the mandate for developing a Common African defence and Security Policy.

The Peace and Security Council will have fifteen members in total, but without permanent membership as originally envisaged. Instead, five member states which could be considered to be "locomotives" on the continent in terms of economic power and good governance, will hold membership for a three-year period, with the opportunity to be re-elected based on performance. The stated intention of this provision is to provide for continuity.

Member states will also have to contribute to a type of Peace Fund, which will partly be used to maintain national contingents, in member states’ national defence forces, which together will form the continent’s peacekeeping force. The equipping of these forces will have to be considered.

2. DISCUSSION

2.1 Designation of the Peace and Security Council

The Decision AHG/Dec1 (XXXVII) adopted by the 37^th Ordinary Session of the Assembly of Heads of State and Government, held in Lusaka in July 2001, provided for the Central Organ of the OAU Mechanism on Conflict Prevention, Management and Resolution to be incorporated as one of the organs of the African Union, as provided for Article 5(2) of the Union’s Constitutive Act. (Article 5(2) provides the Assembly of Heads of State and Government with the authority to establish organs other than those established by Article 5(1)). It was nevertheless resolved to provide for the establishment of a Peace and Security Council, and not to make reference to either the Central Organ or the Mechanism. As a consequence, the Protocol Establishing the Peace and Security Council (PSC) was developed, as an entirely new organ of the African Union.

It was also determined that, pending the ratification and entry into force of the Peace and Security Council, the Cairo Declaration on the OAU Mechanism for Conflict Prevention, Management and Resolution shall remain valid.

During the process to amend the Constitutive Act, Heads of State also agreed to include the Peace and Security Council as one of the organs of the African Union in the Constitutive Act.

2.2 Composition of the Peace and Security Council

The composition of the Peace and Security Council, provided for in Article 5, was the subject of considerable deliberations. One of the proposals contained in the Protocol provides for a two-tier system of membership, five members serving for three years and 10 members serving for two years. Members are to be elected by the Assembly. A retiring member of the PSC shall be eligible for immediate re-election.

In electing members, the Assembly shall take into account the principles of equitable regional representation and rotation and that membership shall be based on equality. Besides the requirements for membership contained in Article 5, additional membership criteria were set, namely actual participation in peace-building, peace-making and conflict resolution at regional and continental levels and the willingness and ability to take responsibility for such initiatives. Members will be subject to periodical review to ensure that they are still fulfilling the criteria.

2.3 Functions of the Peace and Security Council

2.3.1 The PSC’s functions were identified as the following (Article 6):

early warning and preventive diplomacy;
peace-making, including the use of good offices, mediation, conciliation and enquiry;
peace support operations and intervention pursuant to Article 4 (h) and (j) of the Constitutive Act (which respectively provide for intervention by the Union in a Member State, pursuant to a decision of the Assembly, in respect of grave circumstances like war crimes, genocide and crimes against humanity and intervention upon the request of member States in order to restore peace and security);
peace-building and post-conflict reconstruction;
promotion of security and stability on the Continent; and
humanitarian assistance.

2.3.2 The PSC will exercise its functions in conjunction with the Chairperson of the Commission and the relevant Commissioner responsible for Peace and Security in the AU Commission. It has a wide mandate for the execution of its functions, which will be operationalised by means of:

conflict prevention, peace-making and peace-building;
peace support missions;
collective security and common defence policies and the deterrence of acts of external aggression;
anti-terrorism efforts;
co-ordination with Regional Organisations and the UN;
policy development and formulation;
monitoring of good governance, the rule of law, the protection of human rights and fundamental freedoms and international humanitarian law as part of its early warning responsibilities;
humanitarian actions in situations of armed conflicts or major natural disasters; and
arms control and disarmament.

It can further recommend intervention in member States pursuant to Article 4(h) and (j) of the Constitutive Act, while provision is also made for sanctions against Member States in cases of unconstitutional changes of government in terms of the Lome Declaration.

It was specifically provided that Member States agree to accept and implement the decisions of the PSC.

2.4 Structures of the PSC

Panel of the Wise

2.4.1.1 The Panel of the Wise will be created in terms of Article 11 of the Protocol Establishing the Peace and Security Council (PSC) and will be composed of five highly respected African personalities from various segments of society who have made outstanding contributions to the cause of peace, security and development on the continent. They shall be selected by the Chairperson of the Commission after consultation with the Member States concerned, on the basis of regional representation and appointed by the Assembly to serve for a period of three years. In general the Panel has an advisory role. Throughout the Protocol, various references to the Panel can be found, read together they describe the functions and purpose of the Panel of the Wise:

Article 1, which refers to the Nature, Establishment and Function of the PSC determines that "The Peace and Security Council shall be supported by the Commission, a Panel of the Wise, a Continental Early Warning System, an African Standby Force and a Special Fund."
Article 9, which refers to Entry Points and Modalities for Action, stipulates that, in order to either prevent conflict, intervene in conflict situations or support agreements reached in conflict situations, "the Peace and Security Council shall use its discretion to effect entry, whether through the collective intervention of the Council itself, or through its Chairperson and/or the Chairperson of the Commission, the Panel of the Wise, and/or in collaboration with the Regional Mechanisms"
In Article 10, which deals with the Role of the Chairperson of the Commission, it is mentioned that he/she may bring to the attention of the Panel of the Wise any matter which, in his/her opinion, deserves their attention. The Chairperson of the Commission may also may, at his/her own initiative or when so requested by the Peace and Security Council, use his/her good offices, either personally or through special envoys, special representatives, the Panel of the Wise or the Regional Mechanisms, to prevent potential conflicts, resolve actual conflicts and promote peace-building and post-conflict reconstruction.

2.4.2 African Standby Force

An African Standby Force shall be established in order to enable the PSC to perform its responsibilities with respect to the deployment of peace support missions and intervention pursuant to article 4 (h) and (j) of the Constitutive Act. This force shall be composed of standby multidisciplinary contingents, with civilian and military components in their countries of origin and ready for rapid deployment at appropriate notice.

Member States are expected to take steps to establish standby contingents for participation in peace support missions decided on by the PSC or intervention authorised by the Assembly. The strength and types of such contingents, their degree of readiness and general location will be determined in accordance with established African Union Peace Support Standard Operating Procedures (SOPs), and will be subject to periodic reviews depending on prevailing crisis and conflict situations. The African Standby Force will, inter alia, perform functions in the following areas:

Observation and monitoring missions;

Other types of peace support missions;

Intervention in a member state in respect of grave circumstances or at the request of a member state in order to restore peace and security, in accordance with Article 4(h) and (j) of the Constitutive Act;

Preventive deployment in order to prevent (i) a dispute or a conflict from escalating, (ii) an ongoing violent conflict from spreading to neighbouring areas or states, and (iii) the resurgence of violence after parties to a conflict have reached an agreement;

Peace-building, including post-conflict disarmament and demobilisation;

Humanitarian assistance to alleviate the suffering of civilian population in conflict areas and support efforts to address major natural disasters; and

Any other functions as may be mandated by the PSC or the Assembly.

In undertaking these functions, the African Standby Force will, where appropriate, cooperate with the United Nations and its Agencies, other relevant international organisations and regional organisations, as well as with national authorities and NGOs.

2.4.3 Early Warning Centres

2.4.3.1 Critical to early response by the African Union to potential conflict situations on the continent is that early warning systems be created and established at the African Union Headquarters in Addis Ababa as well as at the headquarters of the Regional Economic Communities (RECs).

2.4.3.2 The Protocol states that, in order to facilitate the anticipation and prevention of conflicts, a continental early warning system will be established, consisting of:

An observation and monitoring centre, known as "The Situation Room", located within the Conflict Management Directorate of the Union, and responsible for data collection and analysis on the basis of an appropriate early warning indicators module; and

Observation and monitoring units of the Regional Mechanisms to be linked directly through appropriate means of communications to the Situation Room, and which shall collect and process data at their level and transmit the same to the Situation Room.

2.4.3.3 The Commission will also collaborate with the United Nations, its agencies, and other relevant international organisations, research centers, academic institutions and NGOs, to facilitate the effective functioning of the early warning system. The early warning system is expected to develop an early warning module based on clearly defined and accepted political, economic, social, military and humanitarian indicators, which shall be used to analyse developments within the continent and to recommend the best course of action.

2.4.4 Relationship between the regional security mechanisms and the Peace and Security Council

In order to effectively advance peace and security issues it would be necessary for the matter to be devolved to regional security mechanisms. In certain instances these are already operational whereas in others they are not yet established. It is therefore important to evaluate the structures in place and determine the action and resources required to establish/strengthen all such security organs and Early Warning Centres harmonising their capabilities and modus operandi.

The Protocol recognises the regional security mechanisms as part of the overall security architecture of the Union, which has the primary responsibility for promoting peace, security and stability in Africa. In this respect, the PSC and the Chairperson of the Commission, will:

Harmonise and coordinate the activities of regional mechanisms in the field of peace, security and stability to ensure that these activities are consistent with the objectives and principles of the Union;

Work closely with regional mechanisms, to ensure effective partnership between them and the PSC in the promotion and maintenance of peace, security and stability. The modalities of such partnership will be determined by the comparative advantage of each mechanism and the prevailing circumstances.

2.4.4.3 Regarding the relationship with the United Nations Security Council, it should be noted that the PSC is carefully aligned with the UN Charter and aims to give expression to Chapter VIII (Regional Arrangements) of the Charter, which provides that nothing in the Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements are consistent with the purposes and principles of the UN. Specific reference is made in this regard in the Preamble, which refers to Chapter VIII of the UN Charter and acknowledges the need to forge a closer partnership between the UN and the African Union. Article 11 of the PSC Protocol also specifically regulates the relationship with the UN and provides for co-operation by the PSC with the UN Security Council in fulfilling its mandate, and acknowledges the UN Security Council’s primary responsibility for the maintenance of international peace and security. Reference is made throughout to provide for co-operation between the PSC and other relevant UN bodies and close and continued interaction between with the UN Security Council and the UN Secretary General.

CONCLUSION

The African Union has placed a high level of trust in the Peace and Security Council. However, it will most visibly give effect to the ceding of authority, however slight, to the collective demanded by the current level of integration of the African Union.

The ratification of the Protocol Establishing the Peace and Security Council is progressing very slowly. To date the only states that have ratified are Mali and Algeria. Meetings during which this have been discussed, seems to indicate that member states have no problems with the Protocol as such, but due to its wide-ranging requirements, ratification processes are subject to more national consultations than usual. Member states do however appear to be fully committed to the PSC, and initial discussions on the development of the Common Defence and Security Policy have declared the PSC to be the primary implementation organ for a CDSP.