OpinionWorld

Decision to grant Israel observer status at the African Union sets a dangerous legal precedent

The unilateral decision by African Union Commission chairperson Moussa Faki Mahamat to accredit Israel to the AU is a grave violation of the Constitutive Act of the union and the criteria for accreditation system for non-African states.

On 22 July 2021, the chairperson of the African Union Commission, Moussa Faki Mahamat, decided to unilaterally accredit Israel to the African Union, which has created an unprecedented strong response and objection from AU member states at all political levels. So far, the AU has accredited more than 170 non-African states and organisations.

Throughout the years, accreditation of a new non-African state to the AU has been a non-event and never created so much controversy as has been the case with Israel. This is a clear political and diplomatic message addressed to the chairperson who should deal with it in a very wise and prudent manner.

On 6 August 2021, after receiving a lot of criticism and objections from member states and interest groups, the chairperson issued a communiqué. A reading of the communiqué raises several legal and political questions related to the AU Constitutive Act and other relevant policy documents.

Was the communiqué another violation by the chairperson of the powers and mandate vested in him by the heads of state and government? What about the oath he took before the Assembly in February 2021 where he swore to discharge his functions and to regulate his conduct with only the interests of the union? Certainly, the accreditation of a state that has been internationally known as an occupying force and an “apartheid regime” goes against the values and principles that the Organisation of African Unity (OAU), now the AU, was founded upon, which include the eradication of all forms of colonialism and apartheid.

The arguments or criteria that the chairperson cited in his communiqué were based purely on an alleged number of member states (he indicates that it is 46) that have established or reinstated bilateral relations with the concerned state.

However, the Criteria for Accreditation of Non-African States (pg 116) clearly indicate as the first criterion that the aims and purposes of non-African States shall be in conformity with the spirit, objectives and principles of the Constitutive Act of the African Union.

The State of Israel has been described by numerous OAU/AU decisions and resolutions as an occupying force of Palestine, and therefore violating the principle of prohibition of use of force mentioned in the Constitutive Act and international conventions. This alone should have been enough for the chairperson to reject this request.

Furthermore, the criteria outlines the process of accreditation of non-African states and clearly indicates that the chairperson should consider the decisions of the AU and bear in mind the supreme interests of the union and the concerns of its member states. This critical aspect of the procedure was evidently ignored by the chairperson. All OAU/AU decisions recognise the Palestinian people’s legitimate rights to self-determination, liberation, independence and full sovereignty. On the contrary, Israel has denied the Palestinian people these fundamental rights by systematically oppressing them.

The chairperson also used the term “majority of more than two-thirds” in an attempt to legitimise this grave violation of the Constitutive Act of the union and the criteria for accreditation system for non-African states. If his decision was indeed made by receiving the approval of this number of member states, this could mean that the chairperson had only consulted parts of the organisation and disregarded the rest of the member states. Again, this in itself would be a violation of his mandate and procedure, and therefore, setting a dangerous legal precedent. The usual procedure calls for gaining the two-thirds majority only through official communication by member states to the commission, which in this case was never received.

The chairperson justified his decision by taking into consideration “the expressed demand” of more than two-thirds of AU member states. There is no documentation or evidence showing what the chairperson referred to as “expressed demand of member states”. On the contrary, 24 member states expressed, officially and publicly, their objection to and rejection of his decision; he described them as “a few”.

The chairperson went further and used non-diplomatic terminology when he used the word “a few” in the last paragraph to describe and refer to member states that officially rejected his unilateral decision. The Constitutive Act gives equal sovereignty to all member states and so the expression “a few Member States” not only belittles and undermines certain members of the union, but could be interpreted to mean that the chairperson does not take the concerns of those expressing objection into consideration.

The criteria indicates that if any member state, which means one or more, objects to the accreditation, the issue should be tabled at the Executive Council for review. When the criteria clearly give the full weight for just one member state to object, how is it possible for the chairperson of the commission to describe 24 member states as simply “a few”?

The chairperson should be reminded that the criteria give the sole prerogative of the granting, suspension and withdrawal of accreditation of a non-African state to the member states. This clause of the criteria contradicts the chairperson’s statement that this “falls within his full sphere of competence”. Therefore, this unfortunate decision of the chairperson should be suspended or withdrawn by the Executive Council.

The chairperson should have acknowledged the concerns raised and officially communicated by many member states. He needs to lead by example and reassure member states that he holds the oath he has taken before the heads of state and government very seriously and that he would always ensure consensus in decision-making on issues of importance to the AU and its image and credibility in the global arena.

The chairperson who made the decision on 22 July 2021 after being confirmed for a second and last term at the helm of the AU Commission, is in contradiction to the person who made a strong and principled declaration against former US President Donald Trump’s decision in December 2017 to recognise Jerusalem as the capital of Israel. What has changed?

Throughout history, organisations commit unintentional mistakes or political oversight, which negatively affect image and credibility. However, what is important is to remedy the situations that arise from these oversights. In this case, the chairperson of the AU Commission has an opportunity to take a courageous step to rectify the situation. History would mostly recognise the steps taken to correct the mistakes rather than the mistakes themselves.

After the decision of the Southern African Development Community Summit, the total number of member states that have so far rejected the chairperson’s unilateral decision on Israel has increased to 24. This shows that the accreditation of Israel is a source of division among AU member states, thereby jeopardising its unity, which is a source of pride for the continent and an embodiment of the spirit of pan-Africanism.

The chairperson should not only see the perspective of bilateral relations of some member states with Israel, but also take into consideration the unity of the organisation as the supreme interest that should always prevail and ensure that the Africa We Want is always united, strong and speaking with one voice. There is an absolute need to separate bilateral relations countries have with Israel from the interests and objectives of the union as contained in the AU Constitutive Act.

Right now, the chairperson is at a critical crossroads in his diplomatic and political career, and the choice he makes next will have permanent consequences for the future of the organisation and his legacy. He should consider taking a principled stand to protect and safeguard the unity, interests, principles and objectives of the union by suspending the accreditation of Israel.

In this way he will be remembered, as he was when he was elected in February 2021, as a person of consensus and not division.

Source: Daily Maverick

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