Symposium on Unbroken Bond: Tracing the Ties Between African and Palestinian Anti-Colonial Struggles – Peoples’ Rights Without Borders? The Significance of the African Charter’s Liberation Ethos to the Palestinian Struggles

[Trésor Muhindo Makunya is an Associate Professor of Constitutional and International Human Rights Law in Africa at the University of Goma]

Article 19: All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another’. Article 20(3): ‘All peoples shall have the right to the assistance of the state parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.

Articles 19 & 20(3) of the 1981 African Charter on Human and Peoples’ Rights

Israel’s ongoing unlawful occupation of Palestine and its perpetration of egregious human rights violations raise several legal questions including whether and how the African Charter on Human and Peoples’ Rights (African Charter) could be used as a sharp and mighty sword to support their liberation struggles. In what follows, I argue that the context of the adoption of the African Charter and its normative provisions on peoples’ rights enjoin its Member States that have suffered from the dire consequences of colonialism and other forms of foreign domination to ensure the respect of Palestine’s right to self-determination and support them in their ‘liberation struggle against foreign domination, be it political, economic or cultural’ (Article 20(3)).

The African Charter’s Liberation Ethos Beyond Continental Borders

An important and revolutionary hallmark of the African Charter is its explicit recognition and elaboration of peoples’ rights. No other binding instrument, whether regional or universal, that predates the Charter has devoted much attention to peoples’ rights. The two United Nations international covenants on civil and political rights and on economic, social and cultural rights attempted to fill this normative lacuna under common article 1 but the standards they posited do not come close to the normative content of the Charter.

Peoples’ rights in the African Charter respond to the continent’s colonial past. They remind everyone of the continent’s commitment not to tolerate any behaviour that condones domination and subjugation of a people, irrespective of their justification and origin. This is because ‘colonisation, apartheid, military occupation and various forms of foreign oppressions that the continent experienced have defined the African identity and history as inherently and inextricably intertwined with the struggle for self-determination’ (Mornah case, para 290). This struggle was first posited in the Organisation of African Unity’s (OAU) Charter (May 1963) which purported to protect countries’ sovereignty, territorial integrity and independence, to combat colonialism and neocolonialism so that people can ‘control their destiny’. It became a fundamental peoples’ right under the African Charter.

The transformation from the OAU to the African Union (AU) did not alter the liberation ethos of the organisation and the African Charter. The AU built its actions on the OAU’s success ‘in the liberation of the continent’ to ‘defend the sovereignty, territorial integrity and independence of its Member States’. Although all African countries but the Sahrawi Arab Democratic Republic are free from colonialism and direct foreign domination, the persistence of neo-colonial and neo-liberal domination by Western powers or of externally engineered (armed) conflicts undermine the ability of many African peoples to fully enjoy their rights to self-determination. Multinational corporations’ (mis)use of national armies to protect their interests on African soil against local population or hazardous waste dumping in Africa by western businesses are new forms of dominations the African Commission and Court have grappled with and countered using the African Charter. 

Beyond foreign domination, the African Charter remains relevant to counter the hegemony of authoritarian civilian or military leaders who have hijacked the domestic political process and consolidated their powers with no direct hope that the will of the people will be respected anytime soon. Both the external and internal dimensions of the right to self-determination are constantly undermined. 

Obligation to Assist Palestinians

Although six of the African Charter provisions reiterate peoples’ rights, two are of particular importance to the Palestinian struggles for self-determination. It is beyond contention that Palestinians are a people and benefit from all the rights and privileges accrued to this status. Article 19 of the Charter does not distinguish among peoples and does not confer rights on ‘Africans’ alone as the qualifier ‘African’ is absent from the provision. The provision confers on peoples the right to be free from domination. Article 20 cements this protection. Not only does it guarantee the right to existence and self-determination, but it also enables other Charter parties to help people who want to liberate themselves from external domination. Like article 19, the protection deriving from article 20 is not confined to ‘African people’. In other words, as Africans had the right to ‘free themselves from the bonds of domination’, so are Palestinians.

The African Charter could be interpreted as imposing a positive obligation on African states to assist Palestinians in their liberation and to adopt political, diplomatic, and other positions which further the liberatory ethos of the Charter in their relations with African and non-African states. First, both the African Court and the International Court of Justice confirms the jus cogens or peremptory nature of the right to self-determination which generates obligation erga omnes on all States (Mornah case, para 298; Chagos Advisory Opinion, para 180). Equally important is the obligation not to acquire territory using force which has achieved a similar status. Therefore, an African state that will ‘recognize the illegal situation resulting from’ the violation of these obligations and render aid or assistance to maintain the situation violates both the Charter and general international law. Any support or cooperation with an apartheid state contravenes both the AU Constitutive Act and the Charter. When the OAU was formed, it called for sanctions against apartheid South Africa and called on its member states to contribute 1% of their budget to the liberation struggle. Other countries suspended their diplomatic relations with South Africa, boycotted its companies, and refrained from doing business with South Africa.

Second, the right to self-determination has an extraterritorial reach in the sense that States must comply with the right towards people under and outside their jurisdiction especially when the latter ‘are not able to exercise or have been deprived of their right to self-determination’ (Mornah case, para 299). There are neither geographic nor temporal limitations.

Third, the practice of African states and the African Charter’s primary monitoring body—The African Commission—is largely in favour of the right of Palestinians to self-determination and exercise of their rights as free people. No African country voted against the UN General Assembly Resolution of 10 May 2024 that determined Palestine met the requirement for full membership under Article 4 of the UN Charter and recommended the UN Security Council to reconsider the situation. Statements of African states and the African Union in the Advisory proceedings on Legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory, including East Jerusalem supported Palestinians’ right to self-determination. In 2000, the African Commission called for the establishment of an International Commission of Inquiry to investigate the September 2000 events that led to the killings of Palestinian civilians by the Israel Occupying forces. One may also interpret South Africa’s prowess to approach the ICJ against Israel on the conformity of its reactions against 7 October 2023 attacks or The Gambia’s application instituting proceedings in the ICJ against Myanmar on the treatment of members of the Rohingya group as symbolising the implementation of their duty to defend peoples’ rights beyond continental borders. Last, as the situation of Palestine directly affects several African countries, it may appear like self-flagellation to remain indifferent towards apartheid actions of Israel and enter with it into diplomatic and other forms of cooperation which in turn support Israel war/apartheid efforts. 

African States must choose means of assistance of Palestinian people to achieve their right to self-determination that are effective and sufficient to achieve this goal. AU Member States discretionary powers to select how they may assist Palestinians is constrained by the result. Unlike what the African Court held in Mornah (para 315), measures selected by states should be adequate. Clearly, supporting diplomatic efforts for over five decades to find a political solution is neither sufficient nor adequate.

Continental Quiproquo: Israel’s Observer Status at the AU 

The foregoing leads to the following conclusion: the African Union and the African Charter’s ideologies do not condone overt and covert cooperation with an apartheid state and the entertainment of any forms of relationships that undermine the right to self-determination. Some of the measures African Union Member States could adopt to assist Palestinian people include the refusal to grant Israel Observer Status at the African Union, the breaking of diplomatic relations with Israel, and giving a short notice ultimatum to Israeli’s diplomats to leave their countries.

Surprisingly, the Chairperson of the AU Commission granted Israel an observer status with the AU in July 2021 in accordance with the 2005 Sirte Criteria for Accreditation of Non-African States. The status has been suspended following an outcry by many member states. The granting of the observer status to Israel came as a surprise owing to its colonial and apartheid policy towards Palestine which are at odds with the ideology of the Union and the Charter. In his remarks, the AU Commission (AUC) Chairperson justified his decision on the fact that the 2005 Sirte Criteria empowered him to approve applications for Observer Status from non-African states without consulting member states. He also justified his decision on the recognition of the State of Israel by 44 AU member states that maintain, in addition, diplomatic relations with it; the support from some Member States of Israel’s application for observer status; that the logical consequence of granting the observer status to Palestine is that Israel should be accepted too and the important role Egypt plays in finding a lasting political solution to the Israel-Palestine problems.

These justifications are unconvincing for various reasons. Although the Criteria do not explicitly request the Chairperson to consult Member States, it is self-defeating to grant the observer status to a country that illegally occupies the territory of another and enforces policies and laws that have been recognised as inconsistent with international law. Furthermore, the recognition of the state of Israel by 44 member states and the maintenance of diplomatic relations with Israel as the AUC Chairperson suggests do not translate into Member States’ acceptance of Israel’s policy. Despite their recognition of Israel, Morocco, South Africa, Zambia, The Gambia among others made clear before the ICJ that Israel should stop its policies in the Occupied Palestinian Territories and respect Palestinian’s right to self-determination. In the Wall Advisory opinion, South Africa went further to conclude ‘the construction of the Separation Wall is illegal, and regardless under which pretext it is being constructed, the practical consequence of the existing and planned Separation Wall is that it is being constructed on Palestinian Occupied Territory’. 

In addition, an international organisation such as the African Union enjoys a legal personality distinct from that of its Member States that the latter’s decisions do not in any way represent the former’s view on specific issues. The African Court echoed this view in Mornah when it held, regarding the admission of states as members of the African Union that such a decision is one of the Assembly and ‘not the individual Member States’ (para 317). While the organisation can be influenced by the practice of member states, it should be guided by its normative standards including the protection and promotion of human rights in accordance with the African Charter. Therefore, the position of the AU should remain clear: the fact that Member states request the granting of the observer status to Israel is not an excuse for it to disregard its norms of reference. Using the granting of the observer status to Palestine as a justification seems absurd as it is Israel, not Palestine, that is carrying out apartheid policies in the Palestinian Occupied Territory.

Towards a Charter-compliant Diplomacy 

African states must conduct their foreign policy and diplomacy in a manner compliant with their obligations under the African Charter. Their ratification of the Charter meant the measures adopted in all the domains must aim to ‘give effect’ to, and not contradict or undermine, the rights, duties and freedoms provided for under the African Charter. The Charter and international human rights law in general ‘humanise’ foreign policy and diplomacy. This duty can be materialised in two ways. 

First, state parties to the Charter must enter diplomatic relations and cooperations with countries that champion policies that are not inimical to the Charter’s content, values, and ideals. Some countries have broken diplomatic ties with Israel over its policies in Occupied Palestinian Territories and, recently, over its actions in Gaza. States should materialise this process by withdrawing their diplomats in Israel and recalling their ambassadors while giving a short notice ultimatum to Israeli’s diplomats to leave the country. Second, in accordance with their duties not to recognise the illegal situation resulting from the violation of the right to self-determination, African states must not recognise Jerusalem as Israel’s capital. The AUC Chairperson notes such a move may decrease tension in the region and foster a peaceful solution to the Israeli-Palestinian conflict. Sadly, however, some African countries promised to move their embassies in Israel to Jerusalem.

Conclusion

At this stage, my conclusion should be clear: the African Union and its Member States must be more demanding towards Israel than they have been thus far. As the ICJ ruled, Israel’s occupation of Palestinian territories is unlawful under international law and so are its human rights-unfriendly policies in occupied territories. While African countries that recognise the existence of Israel as a state do not violate the African Charter, they violate it by maintaining and nurturing diplomatic relations with Israel and promising to move their embassies from Tel Aviv to Jerusalem. The African Commission that is empowered to receive and examine every two years reports of States on their implementation of the African Charter should engage Member States on the consistency of their foreign policy and diplomacy towards Israel with the African Charter.