Situation in Somalia and Operations of ATMIS
Situation in Somalia and Operations of ATMIS
Date | 11 November 2022
Tomorrow (11 November), the African Union (AU) Peace and Security Council (PSC) is expected to consider as an agenda item of its 1121st session, the request submitted by the Federal Government of Somalia (FGS) to extend Phase 1 of the AU Transition Mission in Somalia (ATMIS) CONOPS and to delay the drawdown of 2000 troops from December 2022 to June 2023.
The session will have two segments. In the first, open segment, opening remarks will be delivered by the Permanent Representative of the Republic of Namibia to the AU and Chairperson of the PSC for the month, Emilia Ndinealo Mkusa, to be followed with statements by the AU Commissioner for Political Affairs, Peace and Security (PAPS), Bankole Adeoye and the Representative of the Federal Republic of Somalia, as the concerned country. In the closed segment of the session, Interim Deputy Special Representative of the Chairperson of the AU Commission for Somalia and Acting Head of ATMIS, Fiona Lortan will present a briefing to the Council.
It is to be recalled that Council last discussed the situation in Somalia and operations of ATMIS at its 1112th session which took place on 10 October 2022. The session served to consider the report of the Chairperson of the AU Commission on the situation in Somalia and implementation of ATMIS’s mandate. At the session, Council drew attention to the fast approaching deadline of the drawdown of 2000 ATMIS troops which according to PSC’s decision outlined in the Communiqué of its 1068th session, is expected to take place by 31 December 2022. Tomorrow’s session is being convened in the context of this approaching deadline and the request submitted by FGS to extend the timeline of Phase 1 of ATMIS CONOPS which envisages the reduction of 2000 uniformed personnel by the end of December 2022.
Despite the registration of notable success in degrading Al-Shabaab, the terrorist group not only continues to maintain presence in multiple parts of the country, but is also continuing to plan and orchestrate its devastating attacks. As recent as 29 October 2022, Al-Shabaab carried out two major bombings in Mogadishu. The death toll from these attacks has reached over 120 people and continues to increase as many of the hundreds of people injured from the bombings are under intensive care and in critical conditions. The intensity and resulting death toll from these bombings is said to make the attack the second deadliest attack in Somalia’s history after the 14 October 2017 attack which claimed the lives of 587 people and injured hundreds more. Days after the attacks in Mogadishu, Al-Shabaab fighters carried out another bombing targeting a Somali military base in central Galgaduud region. In addition to killing several soldiers, the fighters reportedly stole multiple weapons and military vehicles.
It emerges from these and other recent Al-Shabaab attacks that the terror group has the ability to carry out consecutive and at times, simultaneous attacks and is in possession of explosives that can cause heavy and wide-range damage to both human life and infrastructure. In the AU Commission Chairperson’s report submitted to the PSC’s 1112th session, it is also noted that not only is Al-Shabaab proving to be highly adoptive, it is also acquiring new capabilities in terms of both means and methods of carrying out attacks. It is noted for instance that the terrorist group has been able to acquire commercial drones, foreign fighters and snipers while also enhancing its ability to rapidly mobilise its forces and conduct swift intelligence-led targeted operations. These realities on the ground, along with the need to avoid any vacuum that may result from reduction of ATMIS at a time when the government affiliated forces are engaged in heavy fighting against the group, are likely among the factors informing FGS’s request to delay the envisaged drawdown of 2000 ATMIS uniformed personnel by the end of December 2022.
On its part, ATMIS has been able to carry out multiple successful operations against Al-Shabaab, jointly with the Somali Security Forces (SSF). As observed in the AU Commission Chairperson’s report, the mission has been engaged in key initiatives that have made significant military gains for SSF including the use of local community defence groups fighting alongside the national security forces, to liberate villages in the Hiraan region of Hirshabelle state and Galmudug. It has also been playing a significant role in providing operational support to the Somali Police Force in addition to its other multiple contributions. ATMIS however faces considerable challenges, mainly related to the absence of predictable funding and limitation of human resources – the last one being a major factor in overstretching existing ATMIS forces. This issue is also directly related to the slow progress obtained in Somalia’s force generation and integration, as an adequate generation of force under SSF would have lessened the existing burden on ATMIS. Speedy force generation and timely implementation of the Somali Transition Plan (STP) therefore remain key for the gradual handover of security responsibilities from ATMIS to SSF. It may hence interest Council to hear about the specific factors that continue to constrain the FGS in the implementation of the STP and the force generation and mobilisation process, in order to reflect on ways to address these challenges.
Phase 1 of ATMIS drawdown (reconfiguration) is also well underway but continues to experience delays due to the lagged process of force generation and mobilisation by the SSF. While ATMIS has already proposed prioritising reconfiguration of forces to reinforce Forward Operating Bases (FOBs) and requested FGS to avail the agreed number of troops to take over the FOBs, FGS is clearly facing difficulties in availing the required forces. At its 1112th session, it is to be recalled that the PSC called on the international community and member States to provide support to the FGS in its force generation and integration efforts, in order to avoid delays being faced in the transition of security responsibilities from ATMIS to SSF. Council may wish to reiterate its call at tomorrow’s session.
On the political front, Somalia continues to register notable progress in terms of efforts aimed at strengthening both internal reconciliation (between FGS and Federal Member States (FMS) in particular) as well as external/foreign relations. Following his inauguration in June 2022, President Hassan Sheikh Mohamud has been advancing the agenda of reconciliation and building an inclusive federal system in Somalia, in addition to being actively engaged in expanding diplomatic relations with multiple countries. In terms of priority areas, the FGS has adopted a four-year work plan, which has been endorsed by the FMS, envisaging activities within six major areas including security, justice, reconciliation, economic development, social development, and foreign relations. For the AU and other key partners of Somalia including UN and EU, it is critical to take note of these priorities and align their support along these lines.
Tomorrow’s session may also serve to reflect on the concerning humanitarian situation in Somalia. The current drought in Somalia is said to surpass the historic droughts of 2010/11 and 2016/17, both in its severity and duration. According to the UN, 7.8 million people in Somalia are affected by the drought as at end of October 2022. Among these are 1.1 million people who have been displaced due to the impacts of the drought. Of the affected people are also 1.8 million children who face acute malnutrition – accounting for over 50% of the total child population in the country – and 301,000 people facing phase-5/catastrophic level Acute Food Insecurity. In multiple of the drought affected areas, 10,440 cholera cases and 59 deaths were also recorded by the UN since January 2022. Added to these figures is the continuing displacement of people due to insecurity and intensifying conflicts between Al-Shabaab and government forces. In the month of September 2022 alone for instance, 101,000 people were newly displaced due to insecurity and conflict.
The expected outcome of the session is a Communiqué. Council may commend the government of Somalia for political milestones achieved particularly in advancing engagement with FMS and setting national priorities. It may commend ATMIS for its perseverance and its continued support to the SSF in degrading Al-Shabaab. It may also condemn in strongest terms the recent consecutive attacks carried out by the insurgent group in various parts of the country and pay condolence to the families of those who lost their lives in these attacks. Having deliberated on the request of FGS to extend Phase 1 of ATMIS CONOPS and to delay the drawdown of 2000 troops to June 2023, Council may underscore the importance of fortified efforts of partners and international community to support the government of Somalia in carrying out all necessary tasks for the gradual handover of security responsibilities from ATMIS to the SSF, particularly in the area of force generation and integration. In this regard, it may accept the request on extension. Considering the implications of the extension on resources and logistics as well as the overall exit plan, the PSC may request the AU Commission to hold consultations with all the stakeholders to achieve consensus on the adjustments to the exit plan and the mobilization of the resources for implementing the adjusted plan. Council may further emphasise the importance of securing predictable, sustainable and flexible financing in order to ensure the mission’s continued effective and impactful operation and to maintain the security gains ATMIS and Somali forces continue to register. The Council may also urge the need for concerted efforts in the force generation and integration of SSF to ensure timely progress in the transfer of security responsibilities from ATMIS. Noting the deterioration of the humanitarian situation in the country and particularly the grave impact of the current drought, Council may call on the international community to mobilise timely humanitarian assistance to avert further suffering.
Consideration of the Report of the Chairperson of the Commission on the Situation in Chad
Consideration of the Report of the Chairperson of the Commission on the Situation in Chad
Date | 11 November 2022
Tomorrow (11 November) the African Union (AU) Peace and Security Council (PSC) will convene its 1121st session to consider the report of the Chairperson of the Commission on the situation in Chad.
The session is expected to have two segments. In the first segment which will be open to invited guests, opening remarks will be delivered by the Permanent Representative of the Republic of Namibia to the AU and Chairperson of the PSC for the month, Emilia Ndinealo Mkusa, to be followed with a statement from the Chairperson of the AU Commission, Moussa Faki Mahamat. Representative of the Republic of Chad and Representative of the Economic Community of Central African States (ECCAS) will also deliver statements during the open segment. In the second, closed segment of the session, AU Commissioner for Political Affairs, Peace and Security (PAPS), Bankole Adeoye will present a statement to be followed with a briefing by Basile Ekouebe, AU High Representative for Chad.
Since the emergency session on Chad that was held following the death of President Idriss Deby in April 2021, the PSC held about four sessions after that on the situation in Chad including two that were held within the framework of countries in transition. Tomorrow’s session will be the first session of 2022 that is entirely dedicated to the situation in Chad. The last time the PSC held a dedicated session on Chad was in August 2021. The need to have a dedicated session on Chad is pursuant to 19 September PSC’s 1106th session which ‘decided to convene a special session in due course to specifically consider the political transition in Chad’ and the various major recent developments.
In September the PSC held a meeting on countries in transition and one of the cases it considered was the situation in Chad. The session took place during the time when Chad was holding its national dialogue which was launched on 20 August after 16-month rule by the military junta and two months before the end of transitional period. The much-awaited national dialogue was concluded on 8 October. Although the dialogue brought a large number of stakeholders around 1400 participants from the civilian and military side, there were however notable absences namely the Front for Change and Concord in Chad, the “Les Transformateurs” party, and the Wakit Tama coalition. The national dialogue, also referred to as the Inclusive and Sovereign National Dialogue (DNIS) was held in a tense atmosphere characterized by boycotts of political opposition parties and civil society organizations and also by clashes between security forces and demonstrators.
While the expectation was for the national dialogue to lead to a free and fair election, the outcomes were far from the set objectives. On October 1 the national dialogue forum announced the extension of the transition to elections for another 24 months, agreed to keep the head the Transitional Military Council (TMC) Mahamat Idriss Deby Itno as the interim head of state and also decided that he is eligible to run for the presidency when election are held. It is to be recalled that the chair of the military junta made reference to the possibility of the extension of the 18 months depending on two factors: agreement of Chadians ‘to move forward at the planned pace’ and the second is that partners assist Chad to ‘finance the dialogue and the elections.’
The announcement by the national dialogue forum was highly criticized and faced a lot resistance. Opposition groups called for a protest on the day in which the transitional period was supposed to end, October 20, to denounce the delay in the transition. The violent crackdown by security forces on that day led to the death of 50 individuals and hundreds of people were injured, according to the figures presented by Prime Minister Saleh Kebzado. The government also declared a state of emergency in the capital N’Djamena and two other cities to allow local authorities to take any necessary measure to suppress the protests. The government also banned Wakit Tamma and suspended activities of political parties involved in the demonstrations.
On the day of the protest, the AUC Chair tweeted that he strongly condemns the repression of the demonstration which led to the killing of people and called on the parties to respect human lives and property and find peaceful ways to overcome the crisis.
Following the deadly protest, the Economic Community of Central African States (ECCAS) held its second extraordinary session of the Conference of Heads of State and Government on 25 October fully focusing on the situation in Chad. The ECCAS Summit expressed its concern about the demonstrations of 20 October 2022 which resulted in loss of lives and the destruction of properties following the dialogue. As a way of supporting Chad in this difficult transition process, ECCAS appointed President Felix Tshisekedi Tshilombo, of DRC and current ECCAS Chairperson, as the Facilitator of the transition process in Chad. It is envisaged that President Tshisekedi will be assisted by two Special envoys: the President of the Council of ECCAS Ministers and the President of the ECCAS commission.
During its last meeting on Chad (996th session), the Council requested, among others, the completion of the transition to democratic rule within 18 months, effective from 20 April 2021; assurances that the Chairman of Transitional Military Council (TMC) and its members do not run in the upcoming national elections; and the urgent revision of the Transition Charter. In am interview with a Jeune Afrique magazine in June 2021, the leader of TMC, Mahamat Deby, ‘did not rule out’ the possibility of extension of the 18 months deadline attaching the elections on two conditions. The first is that ‘Chadians are able to agree to move forward at the planned pace’ and the second is that partners help Chad to ‘finance the dialogue and the elections.’ On the other hand, to allay concerns about their future plans, in a statement made on 20 May, the TMC members and its leader affirmed that they are not taking part in the upcoming elections, which is in adherence to the PSC’s demands.
The outcomes of the national dialogue and the political crisis, involving protests and deadly crackdown by security forces against peaceful protesters mark major departure from the expectations set in the decisions of the PSC and the initial promise of the TMC leadership. It is to be recalled that despite the fact that the military seized power unconstitutionally, suspending the Constitution and dissolving the government, the PSC, unlike in the case of Mali, did not apply the rule under Article 7(1)(g) of the PSC Protocol. This decision has exposed the PSC to charges of inconsistency and selective application of the ban on military seizure of power and dented the credibility of both the PSC and the AU’s policy of zero tolerance to military seizure of power. Indeed, when the TMC deviated from and violated some of the conditions set by the PSC, again the PSC did not take any measure. In the process, the PSC unwittingly came to be seen as being too weak and flexible such that the TMC felt emboldened to use its control of the transitional process for entrenching its grip on power, with complete disregard to AU rules on unconstitutional changes of government. In the light of this, the fact that the national dialogue process led to outcomes that go directly against the requirements that the PSC set in the communiqué of its 996th session does not come as a complete surprise, although was not inevitable and the transition could have unfolded following the parameters set by the PSC.
Considering the direct and full breach of the parameters that the PSC set in the decision it adopted at its 996th session and the fact that the PSC avoided the application of Article 7(1)(g) of the PSC Protocol on suspension at the time in full expectation of compliance by the TMC with the conditions now flaunted, the major policy issue that the PSC faces is to determine how to respond to these breaches. The PSC has two choices. One is to allow the decision on both the extension of the transitional period and the candidacy of the leader and members of the TMC for election at the end of the transition, with or without protesting against these decisions. This will deal a further blow to the credibility of the PSC. The other is for the PSC to uphold its decision set out in the communique of the 996th session and apply Article 7(1)(g) by suspending Chad. The PSC at its 996th session opted not to suspend Chad with the understanding that the TMC will comply with the conditions it set. With those conditions in the communique of the 996th session having been disregard, the logical thing to do for the PSC is to apply the suspension. This measure would also help in restoring the credibility the PSC lost for failing to apply the suspension during its 996th session.
No doubt that the determination of the PSC may not be based purely on the foregoing considerations. Indeed, there are countries who view the situation in Chad through the prism of Chad’s role in the region and the risk that Chad’s neighbors in particular face in their relationship in the security sphere with the TMC. These countries would therefore focus on the short term perceived negative ramifications to their security cooperation with Chad of the possible suspension of Chad. As such, they will oppose suspension of Chad. There would be others who would put the case of Chad in the larger context of the resurgence of military seizure of power in Africa. They may stress the need for engagements with Chad within the parameters agreed to by all AU member states and avoid the long term consequences and the precedent not taking action would set.
The expected outcome is a communique. The PSC may take note of the report of the AUC Chairperson on the situation in Chad. The Council may reiterate its zero tolerance to any form of unconstitutional change of government. It may strongly oppose the announcement made by the national dialogue forum which contravenes previous directions set by the PSC. In this regard, the PSC could decide to suspend Chad until the transitional process is carried out in accordance with the initial understanding. It may express its deep dissatisfaction with the extension of the transition period and the decision for Mahamat Idriss Deby Itno to run as presidential candidate during the election to be held at the end of the traditional period. The Council may call on the head of the TMC and the members to honor their commitments. The PSC may recall and reiterate its previous decision of 996th which asserted that ‘no form of extension of the transition period prolonging the restoration of constitutional order, would be acceptable to the AU’. It may also reiterate its decision for the members of the TMC not to run for election. The PSC may condemn the political repression and heavy crackdown by security forces on protestors and call for an independent investigation on the killings of 20 October. It may take note of ECCAS summit decisions for initiating diplomatic efforts and may welcome the appointment of President Tshisekedi as the facilitator for the situation in Chad. It may task the AUC to work closely with ECCAS in support of the political transition in Chad.
Briefing on the agreement for lasting peace through permanent cessation of hostilities in Ethiopia
Briefing on the agreement for lasting peace through permanent cessation of hostilities in Ethiopia
Date | 9 November 2022
Tomorrow (9 November), the African Union (AU) Peace and Security Council (PSC) will convene its 1120th session to receive a briefing on the Agreement for Lasting Peace Through Permanent Cessation of Hostilities Between the Government of the Federal Democratic Republic of Ethiopia and the Tigray People’s Liberation Front (TPLF). This will be the second agenda item that Council will consider during its 1120th session.
Opening remarks is expected from the Permanent Representative of Namibia to the AU and Chairperson of the PSC for the month of November, Emilia Ndinealo Mkusa, followed by a statement from AU Commissioner for Political Affairs, Peace and Security (PAPS), Bankole Adeoye. Former President of Nigeria and AU High Representative for the Horn of Africa, Olusegun Obasanjo, will brief the Council on the recently signed agreement between government and TPLF. The representatives of Ethiopia, the Secretariat of the Inter-Governmental Authority on Development (IGAD) are also expected to deliver statements as concerned state and relevant regional mechanism, respectively.
The last time that Council convened a session on Ethiopia was during its 1115th session that took place on 21 October, just few days before the start of the AU-led peace talks to end the conflict in the Tigray region of Ethiopia in Pretoria, Republic of South Africa. In that session, while welcoming the initiation of the AU-led peace talks slated for 24 October, Council laid down its expectation for ‘an immediate, comprehensive and unconditional ceasefire and the resumption of humanitarian services’. It also welcomed the newly constituted High-Level Panel of eminent Africans by the Chairperson of the AU Commission, composed of Olusegun Obasanjo, AU High Representative for the Horn of Africa, Uhuru Kenyatta, former President of Kenya, and Phumzile Mlambo-Ngcuka, former Deputy President of the Republic of South Africa and Panel of the Wise Member.
Tomorrow’s session, which comes in the context of Council’s request form its last session for the AU Commission to provide regular updates on the situation in Ethiopia, presents members of the Council the opportunity to receive updates on the peace process. In this respect, a key development to be highlighted in the session will be the cessation of hostilities agreement (COHA) signed between the parties. The two parties were able to strike the deal after 10 days of intensive negotiation, which started on 25 October under the auspice of the AU and with the participation of IGAD, UN, and US in observer capacity.
The PSC is expected to welcome the signing of the agreement with a sigh of relief. It constitutes an embodiment of the hope that the talks would lead to a cessation of hostilities agreement and the concomitant expectation for it to bring the two-year conflict to an end. In so many ways, this agreement also represents marked improvements from the truce that only lasted for less than half a year. As such, main aspect of tomorrow’s briefing is expected to be on the main elements of the COHA, progress made thus far in its implementation, and issues that may require the attention of the Council. The first important element of the COHA is the agreement to an ‘immediate and permanent Cessation of Hostilities’, which include the cessation of ‘overt and covert acts of violence’ and all forms of hostile propaganda, rhetoric, and hate speech. The cessation of hostilities constitutes the first critical step that clears the deck for taking actions on the rest of the commitments entered by the two parties in the agreement. Indications over the last five days after the agreement are that it is largely holding.
The second important element is the agreement to a comprehensive disarmament, demobilisation, and reintegration (DDR) program for TPLF combatants pursuant to article 6 of the COHA. The agreement further outlines steps that need to be followed by the two parties to translate the DDR program into action. Accordingly, they have agreed to establish an ‘open channel of communication between senior commanders of both sides’ within 24 hours, and then to convene a follow-up meeting of senior commanders within 5 days from the signing of the agreement to ‘discuss and work out detailed modalities for disarmament for the TPLF combatants, taking into account the security situation on the ground’. The implementation of this part of the agreement is again fully on course with the establishment of hotline by the parties within 24 hours of the signing of the agreement. This was followed by the convening of the ‘Senior Commanders’ Meeting’ on 7 November in Nairobi, Kenya under AU’s Panel facilitation. On the Nairobi meeting, the expected outcome is to agree on the ‘modalities for silencing the guns, humanitarian access, and the restoration of services in the Tigray region’, according to AU’s 7 November press release. Once modalities are agreed, the two sides are therefore expected to start embarking on the delicate matter of the disarmament process.
Once the two sides agreed on the modalities for disarmament, the disarmament activities are envisaged to commence prioritizing the heavy armaments of TPLF combatants. The disarmament of heavy weapons is set to happen within a 10-days timeframe (with a possibility of extension) after the conclusion of the meetings of senior commanders while the overall disarmament of the TPLF combatants will be completed within 30 days from the signing of the COHA, which means before 3 December. It is worth noting that, the demobilization and reintegration part of the program is to take place taking into account the framework of the FDRE constitution and considering ‘Tigray region’s law-and-order needs’.
The third element of COHA is what may be considered to be the item with immediate dividends for people caught up in the crossfire. This is the agreement to expedite humanitarian aid and restore essential services in Tigray that has been under blockade since withdrawal of Ethiopian National Defence Force (ENDF) in June 2021. While the signing of the agreement on its own brings a respite for affected people, the immediate implementation of this commitment would be even more important for millions of civilians in a desperate condition due to the blockade and the disruption of services.
The COHA also provides for detailed terms on restoration of constitutional order and federal authority in Tigray. The specifics of how this would happen are stipulated in articles 3, 7, 9, and 10 of the agreement, covering the entry into and seizure by federal forces of Mekelle and other parts of Tigray and establishment of inclusive interim administration until elections are held in the region. Additionally, it also envisages the launch of a comprehensive national transitional justice system to ensure accountability for widespread human rights and humanitarian law violations and heal wounds through the ascertainment of truth, reconciliation, and redress of victims. Of course, it remains to be seen how this would be pursued in relation to pre-existing processes such as the dialogue process.
Unlike the failed truce, apart from the stipulation of negotiated terms, the COHA has a monitoring, verification, and compliance mechanism. As stipulated under article 11, the parties agreed to establish a Joint Committee comprising a representative from each party, a representative from IGAD and chaired by the high-level panel. The Joint Commission will be assisted by a team of African Experts with the mandate to monitor the implementation of the permanent cessation of hostilities as agreed under article 3 of the COHA. AU, through the high-level panel, will appoint the team comprising not more than 10 for a duration of six months after their deployment with a possibility of extension upon agreement with the parties to the agreement. In case of instances of violation of cessation of hostilities, the team of experts will inform the concerned party to immediately rectify violations. If no rectification measure is taken within 24 hours, the AU, through the high-level panel, will convene the Joint Committee to resolve the problem. However, the agreement does not inform next steps if the Joint Committee could not resolve the issue. The other concern is whether the Joint Committee would be able to effectively discharge its mandate with this small size of team of experts.
It has been only few days since the singing of the COHA. If the early signs are anything to go by, the implementation of the agreement is off to a good start. While the COHA is not without challenges on the ground, encouraging signs include the fact that the TPLF negotiation team stayed in Addis Ababa after the conclusion of the talks for the COHA in Pretoria. The convening of the military leaders of the two parties in Kenya in accordance with the terms in COHA is a further encouraging sign that the COHA is holding. Indeed, both of these are also indicative of the commitment that the parties are demonstrating to implement the agreement. Sustaining the momentum requires speedy follow up of the delivery of humanitarian assistance and the resumption of services. It is also important to guard against what the leader of the Ethiopian Federal Government’s negotiation team, Redwan Hussein, called disgruntled actors from either side of the two parties or third parties who don’t have interest in peace. Obviously, the future of the COHA and the peace it promises also depend on how various issues such as withdrawal of Eritrean forces and delicate aspects of the COHA are dealt with during implementation and in subsequent talks.
The expected outcome of tomorrow’s session is either press statement or a communique. Council is expected to warmly welcome the signing of the COHA and commend the AU high-level panel for the successful effort in facilitating the Peace talks. It may also commend both the federal government of Ethiopia and TPLF for the commitment to the peace talks and the conclusion of the agreement. It is expected that the PSC may call on the parties to show the same resolve for the implementation of the agreement as they did for negotiating the terms of the agreement during the talks. It may also call on all AU member states and partners to extend their full support for the peace process and help the parties in their efforts to the follow up to the COHA. The Council may express its gratitude to the government and people of South Africa and Kenya for hosting the AU-led peace talks and the Senior Commanders’ Meeting, respectively. Council may also commend other partners particularly IGAD, UN, and the US for their support towards the peace process and may encourage them to continue supporting the implementation phase of the agreement. It may also request the Commission to accompany the implementation of the agreement.
Engagement between the PSC and the AU Commission on International Law (AUCIL) on international law and cyberspace
Engagement between the PSC and the AU Commission on International Law (AUCIL) on international law and cyberspace
Date | 9 November 2022
Tomorrow (9 November), the African Union Peace and Security Council (PSC) will convene its 1120th session to engage with the AU Commission on International Law (AUCIL) and discuss the issue of international law and cyberspace.
Permanent Representative of Namibia to the AU and Chairperson of the PSC for the month of November, Emilia Ndinealo Mkusa, is expected to make opening remarks, followed by a statement from AU Commissioner for Political Affairs, Peace and Security (PAPS), Bankole Adeoye. Guy Fleury Ntwari, the AU Legal Counsel, will make a presentation touching on the role of international law in the advancement of peace and security and the importance of the role of the AU in shaping international law rules governing peace and security in cyberspace. The PSC also expects presentations on the thematic focus of the session from Hajer Gueldich, Chairperson of AUCIL, and Mohamed Helal, Special Rapporteur on Cyberspace and International Law and a member of the AUCIL.
Tomorrow’s session, during which the PSC will interact for the first time with the AUCIL in relation to its mandate, is expected to provide an opportunity for the PSC and the AUCIL to harness their respective mandate for the articulation of an African position on the formulation of international law rules governing cyberspace with a particular focus on the making of international law rules and peace and security in the cyberspace. The AUCIL is an 11 members independent advisory organ established in 2009 in line with article 5(2) of the AU Constitutive Act. As envisaged under article 4 of AUCIL Statute, the Commission is envisaged to undertake activities related to codification and progressive development of international law in Africa, with particular attention to the laws of the AU; propose draft framework agreements and model regulations; assist in the revision of existing treaties and identify areas in which new treaties are required; conduct studies on legal matters of interest to the AU and its Member States; encourage the teaching, study, publication and dissemination of literature on international law, specifically the laws of the AU.
The nature of the mandate of the AUCIL is such that it can also advise the AU and contribute to the crafting of African positions on the development of international law rules for the governing of global matters that affect peace and security in Africa. Tomorrow’s session falls within this category of the mandate and work of the AUCIL.
The technological advance particularly in information and communication technologies (ICT) is a double-edged sword, offering both benefits and risks. Despite the enormous benefits that ICTs continue to produce in the social, economic, political spheres, State and non-state actors are increasingly using the cyberspace to carry out cyber-attacks on critical national infrastructure and democratic institutions, steal and launder money, illegally transfer funds, propagate hate speech, and incite violence. A worrying trend has been also emerging in the continent with the increasing use of the cyber space by terrorist groups who often exploit the platform for radicalization, lure recruits into their ranks, mobilize fundings and logistics, as well as train individuals, incite and stage violent attacks. Furthermore, it has been used to influence domestic political outcomes that would destabilize governments of another state.
The PSC has addressed itself to the issue of cyber security and the need for addressing the deficit in the rules regulating cyberspace in earlier sessions. In this context, PSC’s 627th session of September 2016 noted that ‘cybersecurity concerns are broader than national security and that they can become a planetary emergency with the potential of amplifying the traditional security threats that include terrorism and violent extremism’. In the absence of regulation, the cyberspace therefore poses a serious risk to the national, regional, and international peace and stability. The 627th session recognized ‘a safe and secure cyber space’ as a ‘necessary condition for reaping the benefits of the digital transformation of Africa and for ensuring the positive impact of ICTs on human and economic development throughout the continent’. Furthermore, Council, in the same session, stressed the importance of ‘regional and global frameworks for promoting security and stability in the cyberspace’.
The AU has taken steps in developing framework to govern the cyber space at a continental level with the adoption of the African Union Convention on Cyber Security and Personal Data Protection (Malabo Convention), but such kind of tailor-made frameworks for regulating cyberspace at a global level are still missing. Yet, efforts are underway to clarify and develop a normative architecture for cyberspace. Such effort of developing normative architecture is happening within the UN with the establishment of two working groups with the mandate to study how international law applies to states’ operations in cyberspace. The two groups are: UN Group of Governmental Experts (UN GGE) and an Open-Ended Working Group (OEWG). While the GGE is comprised of approximately 25 states, the OEWG is envisaged to be more inclusive, accepting participation of any interested state. Round of talks under these separate and independent processes indeed reveal consensus on variety of norms of general behavior in cyberspace including the applicability of international law in cyberspace, but the issue of how international law applies in this space remains contested. Some countries are of the view that there is no need for new rules regulating cyber activities. Others favor agreed non-binding norms that complement existing international law, while others have questioned whether existing international law as it stands is capable of regulating states’ cyber interactions hence call for the development of new rules.
There is also contention over the application of some of the core principles and rules of international law such as sovereignty, intervention, state responsibility, legal response options to malicious cyber activity, as well as the rules governing the use of force (jus ad bellum) and international humanitarian law (jus in bello) within the context of cyberspace. On sovereignty, one of the controversial issues remains the question of whether cyber operations affecting networks in another state’s territory would amount to a violation of state’s sovereignty. Regarding intervention, while there could be common understanding that the principle of non-intervention applies to state conduct in cyberspace within the context of the fulfillment of two conditions that the action constitutes coercive interference and falls into the domaine réservé of a state. Yet, there is no clarity on the threshold of the coercion element as well as which specific acts falls within the domaine réservé of a State. For instance, it is not clear whether cyber operations to manipulate electoral results of another state could constitute as a breach to the international obligation of non-intervention. Again, on the prohibition of use of force, there is unclarity on which specific cyber operations could constitute the use of force (armed attack) against another state and therefore trigger the right to self-defence. On due diligence, while states are under obligation not to allow knowingly their territory to be used for acts contrary to the rights of other states under international law, there is a need for clarifying how far this obligation applies in the cyberspace. With respect to state responsibility, the main confusion concerns the technical aspect of the application of the attribution standard to cyberspace given the anonymity, interconnectedness, transboundary nature, and the use of proxies in cyberattacks. On legitimate response to cyber attacks, while there seems to be agreement among some states about the availability of at least three options (retorsion, countermeasures, and the plea of necessity), there is unclarity on whether collective countermeasures are permitted, whether there is a duty of prior notification of the response options, and whether states are allowed to take non-cyber-based countermeasures for cyberattacks. The other uncertainty is on the extent of the application of human rights and international humanitarian law (IHL) to cyberspace.
Despite the growing importance of the cyberspace to the life of individuals, communities and societies on the continent and the grave threat that cyber attacks pose to the peace and stability of Africa, the discourse on the making of the international law rules for governing peace and security in the cyberspace is dominated by the global north. In this respect, countries such as Germany, Canada, Sweden, Australia, Estonia, France, the Netherlands, the United Kingdom, and the United States have released their comprehensive positions on the application of international law in cyberspace. There should be similar efforts from the continent of Africa in developing and publishing its views and perspectives on how international law applies to cyberspace so that African voices are taken onboard in the ongoing effort towards developing rules of international law governing cyberspace in general and peace and security in cyberspace in particular. Tomorrow’s PSC engagement with the AUCIL therefore comes within this framework of developing African common position on the issue.
The expected outcome from tomorrow’s engagement is a communique. Among others, Council may express its concern over acts of violence in the cyber security, which constitute serious threats to national, regional, and international peace and security. While highlighting the need to harness the potentially of information and communication technologies for enhancing democratic governance and socio-economic advancement, Council may also reiterate its concern over their increasing use by state and non-state actors of cyberspace for malicious activities, including the spread of misinformation and disinformation, propagation of hate, cyber attacks on critical infrastructure, manipulation of elections, and incite violence. It may encourage all Member States, which have not yet done so, to expedite the signature and ratification of the Malabo Convention. The PSC may welcome the engagement with the AUCIL on the issue of international law and peace and security in the cyberspace. Cognizant of the role that Africa should play in the development of rules of international law in the area of cyberspace, Council may emphasize the importance of having Africa’s common position on the application of international law to cyberspace. In this respect, it may request the Commission, together with the AUCIL, to prepare the common position and submit for its consideration within a specified timeframe. While preparing the common position, Council may direct the Commission to engage Member States with the view to getting their respective national perspectives on the issue of the application of international law in cyberspace and their positions on contested issues.
