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Africa and international humanitarian law: The more things change, the more they stay the same

Published online by Cambridge University Press:  31 May 2017

Gus Waschefort
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Abstract

Africa, both on the inter-State level and the academic level, maintains a very low profile in the global debate on international humanitarian law (IHL). IHL issues do not feature prominently in the armed conflict debate within Africa, and African States and people do not significantly participate in the global IHL debate. This contribution is aimed at both identifying the reasons for this lack of regional engagement with IHL and identifying entry points for such engagement. It also ambitiously calls for ongoing and engaged focus on IHL in Africa, and to this end, a number of issues for future consideration can be extrapolated from the issues discussed.

Keywords

law of armed conflict in Africahistorical development of the law of armed conflict in Africacolonialism and the law of armed conflictAfrican perspective on the law of armed conflict
Type
Selected articles on IHL and humanitarian action
Information
International Review of the Red Cross , Volume 98 , Issue 902: War and security at sea , August 2016 , pp. 593 - 624
Copyright
Copyright © icrc 2017 

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References

1 The International Rescue Committee (IRC) has estimated that 5.4 million excess deaths occurred between August 1998 and April 2007. Benjamin Coghlan, Pascal Ngoy, Flavien Mulumba, et al., Mortality in the Democratic Republic of the Congo: An Ongoing Crisis, IRC, 1 May 2017, p. ii. On the other hand, the Human Security Report Project of Simon Fraser University disputes these findings, finding instead that the armed conflict-related fatalities for this period are closer to 860,000. Human Security Report Project, Human Security Report 2009/2010: The Causes of Peace and the Shrinking Costs of War, 2 December 2010, Part II, p. 131. For an academic discussion of methodology, see Spagat, Michael, Mack, Andrew, Cooper, Tara et al. ., “Estimating War Deaths: An Arena of Contestation”, Journal of Conflict Resolution, Vol. 53, No. 6, 2009CrossRefGoogle Scholar.

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11 Ibid., p. 5.

12 See, generally, Y. Diallo, above note 4; E. G. Bello, African Customary Humanitarian Law, above note 5.

13 Ibid.

14 V. F. Wodie, above note 6, p. 249.

15 Simma has warned that the effects of such expansion and diversification should not be overstated, and notes that different sub-regimes of international law, which would include modern IHL, developed and continue to exist very much within the structural confines of international law more generally. Simma, Bruno, “Fragmentation in a Positive Light”, Michigan Journal of International Law, Vol. 25, No. 4, 2004, pp. 846–847Google Scholar.

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17 The Berlin Conference (1884–85) regulated European colonization and trade in Africa, and introduced the principle of “effective occupation”. See, generally, Förster, Stig, Mommsen, Wolfgang Justin and Edward Robinson, Ronald, Bismarck, Europe and Africa: The Berlin Africa Conference 1884–1885 and the Onset of Partition, Oxford University Press, Oxford, 1988Google Scholar.

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20 See, generally, Hochschild, Adam, King Leopold's Ghost: A Story of Greed, Terror, and Heroism in Colonial Africa, Pan Books, London, 2006Google Scholar. See also, generally, Bierman, John, Dark Safari: The Life Behind the Legend of Henry Morton Stanley, Hodder and Stoughton, London, 1991Google Scholar.

21 M. Koskenniemi, above note 18, pp. 124–125.

22 Lindley, Mark Frank, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law and Practice relating to Colonial Expansion, Longmans, Green & Co,, London, 1926, p. 187Google Scholar.

23 During the nineteenth and early twentieth centuries, there was a nuanced debate regarding the regulation by international law of European engagement with the non-European world. The particularities of this debate go above and beyond the scope of this contribution. For more on this debate, see M. Koskenniemi, above note 18, pp. 98–178.

24 M. F. Lindley, above note 22, p. 187.

25 M. Mubiala, above note 7, p. 47.

26 M. Koskenniemi, above note 18, p. 127.

27 The notion of civilized peoples and States in international law thinking came to the fore during the later parts of the nineteenth century. “For purposes of the application of European international law, Lorimer, in 1883–1884, divided the human race into three categories: ‘civilized’, ‘barbarian’ and ‘savage’; Von Liszt, in 1898, classified it, in his turn, as ‘civilized’, ‘semi-civilized’ and ‘uncivilized’.” Mohammed Bedjaoui, “General Introduction”, in Mohammed Bedjaoui (ed.), International Law: Achievements and Prospects, Martinus Nijhoff, Dordrecht, 1991, p. 8. The full extent of international law was to apply only among civilized States, meaning Christian States, whereas semi-civilized States, such as Siam and China, had a limited international law status, allowing them to be party to treaties, for example. Uncivilized States existed outside of the confines of international law. Ibid.

The remnants of this approach remain visible today in some of the most important international law instruments – for example, Article 38(1) of the Statute of the International Court of Justice (ICJ), which provides the traditional expression of the sources of international law, defines the general principles of international law as “the general principles of law recognized by civilized nations”. Statute of the International Court of Justice, Annex, Charter of the United Nations, 26 June 1945 (entered into force 24 October 1945). Similarly, Common Article 3 of the Geneva Conventions prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”.

28 These were the Congo (27 December 1888), the Orange Free State (28 September 1897) and the South African Republic (30 September 1896). For a list of States Parties, see ICRC Database on Treaties, States Parties and Commentaries, available at: https://ihl-databases.icrc.org/ihl/INTRO/120?OpenDocument (all internet references were accessed in January 2017).

29 These States were the Argentine Republic, Bolivia, the United States of Brazil, Chile, Colombia, Costa Rica (invited but did not attend), Cuba, the Dominican Republic, Ecuador, Guatemala, Haiti, Honduras (invited but did not attend), Nicaragua, Panama, Paraguay, Peru, Salvador, Uruguay and the United States of Venezuela.

30 Westlake, John, “The Native State of India”, 1910, in Oppenheim, L. (ed.), The Collected Papers of John Westlake on Public International Law, Cambridge University Press, Cambridge, 2014, p. 623Google Scholar.

31 Final Record of the Diplomatic Conference of Geneva of 1949, Vol. 1, 1949, pp. 158–170.

32 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts Geneva, Vol. 2 (1974–1977), 1977, pp. 25–408.

33 Ibid.

34 V. F. Wodie, above note 6, p. 251.

35 Bothe, Michael, “Conflits armés internes et droit international humanitaire”, Revue Générale de Droit International Public, No. 1, 1978, pp. 82.Google Scholar

36 M. Mubiala, above note 7, p. 39.

37 Gibbs, David N., The Political Economy of Third World Intervention: Mines, Money and U.S. Policy in the Congo Crisis, University of Chicago Press, Chicago and London, 1991, pp. 77–164Google Scholar.

38 See, generally, Cronjé, Suzanne, The World and Nigeria: The Diplomatic History of the Biafran War, 1967–1970, Sidgwick and Jackson, London, 1972Google Scholar.

39 Zunes, Stephen and Mundy, Jacob, Western Sahara: War, Nationalism, and Conflict Irresolution, 3rd ed., Syracuse University Press, Syracuse, NY, 2010, pp. 3–90Google Scholar.

40 Ratner, Steven R., “Drawing a Better Line: Uti Possidetis and the Borders of New States”, American Journal of International Law, Vol. 90, No. 4, 1996CrossRefGoogle Scholar.

41 ICJ, The Case Concerning the Frontier Dispute (Burkina Faso v. The Republic of Mali), Judgment, 22 December 1986, ICJ Reports 1986, paras 20–32.

42 John Westlake, Chapters on the Principles of International Law, as quoted in M. Koskenniemi, above note 18, p. 127.

43 Anghie, Anthony, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law”, Harvard International Law Journal, Vol. 40, No. 1, 1999, p. 7Google Scholar.

44 The Boer Wars were two separate armed conflicts. The First Boer War was fought between the United Kingdom and the South African Republic from 20 December 1880 to 23 March 1881. The Second Boer War, which was a much more significant armed conflict, both in intensity and duration, was fought between the British Empire on one side and the Zuid-Afrikaansche Republiek (Transvaal, known as the South African Republic) and Oranje-Vrijstaat (Orange Free State) on the other, and lasted from 11 October 1899 to 31 May 1902. See Raugh, Herold E., The Victorians at War, 1815–1914: An Encyclopedia of British Military History, ABC-CLIO, Santa Barbara, CA, 2004, pp. 49–54Google Scholar.

45 Lord Wolseley to Parliamentary Under-Secretary, War Office 32/850, 14 February 1900, as quoted in Raath, Andries W. G. and Strydom, Hennie A., “The Hague Conventions and the Anglo-Boer War”, South African Yearbook of International Law, Vol. 24, 1999, p. 156Google Scholar.

46 John Charles Ardagh, “Ardagh Papers”, Microfilm A422, Transvaal Archives, Pretoria.

47 John Charles Ardagh, “Major-General Sir John Ardagh: Papers”, National Archives of the United Kingdom, PRO 30/40/17.

48 M. Koskenniemi, above note 18, pp. 76–88.

49 See above note 26 for more detail.

50 Reservation to the Geneva Conventions (1949) by Portugal, available at: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Notification.xsp?action=openDocument&documentId=663716D11E477ECFC1256402003F977C.

51 The application of IHL during the Second Boer War arguably provides a limited exception to the general statement that conventional IHL first found application to African armed forces during WWI.

52 See Bidwell, Robin Leonard, Morocco under Colonial Rule: French Administration of Tribal Areas 1912–1956, Frank Cass, Abingdon, 1973, pp. 48–62Google Scholar. This armed conflict was fought from 1914 to 1921 between France and the French Protectorate of Morocco on one side, and the Zaian Confederation (together with various Berber tribes) on the other. During WWI, the Zaian Confederation received support from the Central Powers.

53 See Boahen, A. Adu, General History of Africa, Vol. 7: Africa under Colonial Domination 1880–1935, UNESCO, 1990, pp. 132–142Google Scholar; Strachan, Hew, The First World War in Africa, Oxford University Press, Oxford, 2004, pp. 93–184Google Scholar. The East Africa Campaign lasted from August 1914 to November 1918. African forces from across the British Empire were mobilized; German forces also relied heavily on local conscripts.

54 Koller, Christian, “The Recruitment of Colonial Troops in Africa and Asia and their Deployment in Europe during the First World War”, Immigrants & Minorities, Vol. 26, Nos 1–2, 2008CrossRefGoogle Scholar.

55 Ibid., p. 113.

56 Ibid., p. 114.

57 Paice, Edward, Tip and Run: The Untold Tragedy of the Great War in Africa, Weidenfeld & Nicolson, London, 2007, pp. 392–393Google Scholar.

58 Guillaume Gueguen, “Hollande Honours Africa Role in France's WWI Fight”, France 24, 8 November 2013, available at: www.france24.com/en/20131108-african-troops-soldiers-world-war-french-hollande-senegal-algeria-tunisia.

59 M. Mubiala, above note 7, p. 47.

60 Makau Mutua, “What is TWAIL?”, Proceedings of the 94th Annual Meeting of the American Society of International Law, 5–8 April 2000, p. 31.

61 Abdulai argues that “African leaders also tend to resent the paternalistic attitude of Western Countries toward them. This warped idea in the West that it is their responsibility to ‘change’ a ‘backward Africa’ to be like them is much resented in modern-day Africa.” Abdulai, David N., Chinese Investment in Africa: How African Countries can Position Themselves to Benefit from China's foray into Africa, Routledge, Abingdon, 2017Google Scholar, section 9.4.

62 For instance, the International Law Association's (ILA) study group on “The Conduct of Hostilities under International Humanitarian Law: Challenges of 21st Century Warfare” specifically included the issue of the geographic scope of the battlefield in its study. See ILA Study Group, “The Conduct of Hostilities and International Humanitarian Law: Challenges of 21st Century Warfare”, Interim Report, 2014.

63 ICRC, The People on War Report: ICRC Worldwide Consultation on the Rules of War, 1999, available at: www.icrc.org/eng/assets/files/other/icrc_002_0758.pdf. The States where in-depth, face-to-face interviews were carried out were Afghanistan, Bosnia-Herzegovina, Cambodia, Colombia, El Salvador, Georgia/Abkhazia, Israel, the occupied territories and the autonomous territories, Lebanon, Nigeria, the Philippines, Somalia and South Africa.

64 The States that were surveyed on a questionnaire-only basis were France, the Russian Federation, Switzerland, the United Kingdom and the United States. See “About the People on War Project”, in ibid.

65 ICRC, above note 63, p. 19.

66 Ibid., p. 20.

67 The media do not influence the agenda of the global debate directly. They may take up a relevant issue, such as unmanned aerial vehicles (UAVs) or child soldiering, but they typically do not couch the issue as an IHL issue as opposed to an IHRL issue. Having said that, the media play a massive role in drawing attention to IHL issues such as UAVs and child soldiering.

68 See, for example, Harold H. Koh, “The Obama Administration and International Law”, Annual Meeting of the American Society of International Law, 25 March 2010.

69 See for example, Hassan v. United Kingdom, [2014] ECHR 29750/09, 2014, p. 31.

70 The phrase “African solutions for African problems” was coined by the economist George Ayittey in 1993. See George Ayittey, “An African Solution for Somalia”, Wall Street Journal, 7 October 1993, p. A12.

71 Solomon A. Dersso, “The AU's ICC Summit: A Case of Elite Solidarity for Self Preservation?”, Institute for Security Studies, 15 October 2013, available at: www.issafrica.org/iss-today/the-aus-icc-summit-a-case-of-elite-solidarity-for-self-preservation.

72 Cole, Rowland J. V., “Africa's Relationship with the International Criminal Court: More Political than Legal”, Melbourne Journal of International Law, Vol. 14, No. 2, 2014, p. 679Google Scholar.

73 Sen, Amartya, “Global Justice”, in Heckman, James J., Nelson, Robert L. and Cabatingan, Lee (eds), Global Perspectives on the Rule of Law, Routledge, Oxon, 2010, pp. 69–70Google Scholar.

74 See, for example, Sassòli, Marco, “Taking Armed Groups Seriously: Ways to Improve Their Compliance with International Humanitarian Law”, Journal of International Humanitarian Legal Studies, Vol. 1, No. 1, 2010CrossRefGoogle Scholar.

75 The organization Geneva Call is a leader in the field in such direct engagement with armed non-State actors. This organization has been active in twenty-seven States, including eight African States (Burundi, the DRC, Mali, Niger, Senegal, Somalia, Sudan and Western Sahara). See the organization's website, available at: http://genevacall.org/.

76 The TWAIL movement engages with these issues; see, generally, M. Mutua, above note 60, pp. 31–40.

77 Constitutive Act of the African Union, 2158 UNTS 3, 1 July 2000 (entered into force 26 May 2001), Art. 3.

78 Indeed, the Organization of African Unity (OAU), the predecessor to the AU, was set up with the express purpose of promoting “the unity and solidarity of the African States” and “eradicat[ing] all forms of colonialism from Africa”. As provided for in Charter of the Organization of African Unity, 479 UNTS 39, 25 May 1963 (entered into force 13 September 1963), Art. 2.

79 The nationality of holders of United Nations (UN) human rights special procedures mandates is indicative in this regard. All six working groups include a member from Africa (however, this is a formal requirement); of the six independent experts, one is from Africa; and six of the thirty Special Rapporteurs are from Africa. The fact that the UN aspires to geographic representation may account for this to some extent, but it is worth noting that a strong African voice has emerged during the past decades in the human rights discourse. The work of Mahmood Mamdani, Makau wa Mutua, Christof Heyns and Frans Viljoen, among many others, serves well as an example in this regard.

80 A key example in this regard is the Centre for Human Rights at the University of Pretoria, which won the 2006 UNESCO Prize for Human Rights Education as well as the 2012 African Union Human Rights Prize.

81 There are literally thousands of such NGOs – the following list serves merely for illustrative purposes: Zimbabwe Lawyers for Human Rights (Zimbabwe); Uganda Conflict Action Network (Uganda); Mubende Human Rights (Uganda); Sudan Organisation Against Torture (the Sudan); Youths for Human Rights Protection and Transparency Initiative (Nigeria); Association Malienne des Droits de l'Homme (Mali); Association Mauritanienne des Droits de l'Homme (Mauritania); Association Marocaine des Droits Humaine (Morocco); Centre for Human Rights and Rehabilitation (Malawi); Centre for Minority Rights Development (Kenya); Chadian Association for the Promotion and Defense of Human Rights; and the Legal Resources Centre (South Africa).

82 Viljoen, Frans, “Africa's Contribution to the Development of International Human Rights and Humanitarian Law”, African Human Rights Law Journal, Vol. 1, No. 1, 2001Google Scholar.

83 Ibid., pp. 19–22. Group or peoples’ rights serve as a very good example.

84 Ibid., pp. 22–23. Viljoen illustrates that in many respects the African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49, 11 July 1990 (entered into force 29 November 1999), provides better protection than the UN Convention on the Rights of the Child, 1577 UNTS 3, 20 November 1989 (entered into force 2 September 1990).

85 F. Viljoen, above note 82, pp. 23–28. The expansion of the concept of “persecution” for purposes of refugee status determination by the OAU Convention Governing Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45, 10 September 1969 (entered into force 20 June 1974), is emphasized.

86 F. Viljoen, above note 82, pp. 23–28. African Convention on the Conservation of Nature and Natural Resources, 1001 UNTS 3, 15 September 1968 (entered into force 16 June 1969); Bamako Convention on the Ban on the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, 2101 UNTS 177, 30 January 1991 (entered into force 22 April 1998).

87 F. Viljoen, above note 82, p. 31.

88 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 17 July 1998 (entered into force 1 July 2002).

89 The first ever convention regulating mercenary activities was elaborated in Africa: OAU Convention for the Elimination of Mercenarism in Africa, OAU Doc. CM/433/Rev. L. Annex 1, 3 July 1977 (entered into force 22 April 1985).

90 It should be acknowledged that in period since Viljoen's article (above note 82), a number of instruments have been adopted in Africa that contribute to IHL in respect of specific issues. These include the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention, 2009), and on the sub-regional level, the ECOWAS Convention on Small Arms and Light Weapons, Their Ammunition and Other Related Materials (2006).

91 UNSC Res. 955, 8 November 1994.

92 IHL certainly plays a very meaningful role in the development of international criminal law (ICL), and vice versa. Klabbers has noted that it is useful and justifiable to treat IHL and ICL separately, as IHL covers more than war crimes, crimes against humanity, genocide and aggression, and similarly, ICL covers more than IHL. Moreover, ICL “assigns responsibility to individuals, and thereby breaks through the classic structure of international law”. See Klabbers, Jan, International Law, Cambridge University Press, Cambridge, 2013, p. 219CrossRefGoogle Scholar.

93 Taulbee, James L., “Myths, Mercenaries and Contemporary International Law”, California Western International Law Journal, Vol. 15, 1985, p. 342Google Scholar.

94 F. Viljoen, above note 82, p. 37.

95 Ibid., pp. 31–32.

96 AU, Agenda 2063: The Africa We Want, Framework Document, September 2015.

97 Ibid., p. 108.

98 AU, Agenda 2063: The Africa We Want – First Ten-Year Implementation Plan 2014–2023, September 2015.

99 Ibid., p. 73.

100 Ibid., p. 74.

101 Ibid., p. 78.

102 Ibid.

103 Ibid., p. 79.

104 Ibid., p. 81.

105 Ibid., p. 78.

106 Ibid., p. 79.

107 Ibid., p. 80.

108 For additional information on the APSA, see Aning, Kwesi and Atuobi, Samuel, “Responsibility to Protect in Africa: An Analysis of the African Union's Peace and Security Architecture”, Global Responsibility to Protect, Vol. 1, No. 1, 2009Google Scholar; Jegede, Ademola, “The African Union Peace and Security Architecture: Can the Panel of the Wise Make a Difference?”, African Human Rights Law Journal, Vol. 9, No. 2, 2009Google Scholar.

109 Protocol relating to the Establishment of the Peace and Security Council of the African Union, 9 July 2002 (entered into force on 26 December 2003) (PSC Protocol).

110 Solemn Declaration on a Common African Defence and Security Policy, 28 February 2004.

111 PSC Protocol, above note 109, Arts 3(f), 4(c).

112 Ibid., Art. 7(1)(m).

113 Ibid., Art. 13(13).

114 Ibid., Art. 3(f).

115 See, for example, Office of the UN High Commissioner for Human Rights (OHCHR), Report of the Mapping Exercise Documenting the Most Serious Violations of Human Rights and International Humanitarian Law Committed within the Territory of the Democratic Republic of the Congo between March 1993 and June 2003, August 2010. Additionally, trial records and judgments of the ICTR, the Special Court for Sierra Leone and the ICC provide compelling evidence of broad non-compliance with IHL.

116 AU, African Union Handbook, 2016, pp. 60–63.

117 M. Mutua, above note 60.

118 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human rights (Malabo Protocol), 24 June 2014 (not in force).

119 Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, May 2009. This process was conducted under Chatham House rules, and a list of expert participants was never released. Thus, this information cannot be confirmed.

120 Schmitt, Michael N. (ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare, Cambridge University Press, Cambridge, 2013CrossRefGoogle Scholar.

121 Ibid., p. 16.

122 Unlike the Tallinn Manual, the ICRC Interpretive Guidance does not list the names of the experts that were involved in the process. Nevertheless, the New York University Journal of International Law and Politics, Vol. 42. No. 3, 2010Google Scholar, was dedicated to a forum in which the Interpretive Guidance was debated. Kenneth Watkin, Michael N. Schmitt, Bill Boothby, W. Hays Parks and Nils Melzer all contributed to this special edition, and they were all part of the expert group. Of these individuals, only W. Hays Parks was not included in the expert group for the Tallinn Manual process.

123 The Kimberley Process Certification Scheme is a process created by UNGA Res. 55/56, 29 January 2001, in order to “give urgent and careful consideration to devising effective and pragmatic measures to address the problem of conflict diamonds”. The Kimberley Process has also received the support of the Security Council: UNSC Res. 1459, 28 January 2003.

124 See, for example, OHCHR, above note 115.

125 Ewumbue-Monono, Churchill and von Flüe, Carlo, “Promotion of International Humanitarian Law through Cooperation between the ICRC and the African Union”, International Review of the Red Cross, Vol. 85, No. 852, December 2003, p. 764Google Scholar.

126 Ibid., p. 760.

127 ICRC, Annual Report 2015, Vol. 1, 2015, p. 104, available at: https://app.icrc.org/files/2015-annual-report/.

128 Mutsa Mangezi and Sarah Swart, “Back to Basics: Enhancing African Adherence to the Rules of War”, Humanitarian Law & Policy, 4 October 2016, available at: http://blogs.icrc.org/law-and-policy/2016/10/04/africa-ihl-ratification-compliance/.

129 See: www.iihl.org/africa-accountability-colloquium/.

130 Emmanuel G. Bello, “A Proposal for the Dissemination of International Humanitarian Law in Africa”, above note 5, p. 311. Bello's call was echoed in M. Mubiala, above note 7, p. 47.