Abstract
Pre-colonial African communities had a well-established system of human rights protection applicable to armed conflicts, which became lost as a result of the break-up of traditional societies. This paper will show that traditional rules can be revived and integrated into future conflict management efforts. The ancient authentically African roots of international humanitarian law (ihl) could serve as receptors forming the basis for ihl and human rights law dissemination. Listening to local communities and learning about their aspirations and cultural practices should inform the peacebuilding programmes which need to be introduced before the cessation of hostilities. In the long run, engaging the armed non-state actors in the development of norms, could help improve certainty and predictability of ihl. Recent efforts by Geneva Call comprising a study of indigenous cultural norms relating to civilians’ protection in Mali underline the growing importance of integrating local approaches in ihl dissemination.
1 Introduction
The comparison between the contemporary international humanitarian law (ihl) principles and traditional African laws has been the focus of extensive qualitative research in the 1970s and 1980s, but is relatively nascent in more recent debates on ihl dissemination and discussions on the ways to resolve uncertainties in the applicability of modern law to non-international armed conflicts (niacs). 1 The ancient rules of warfare are also omitted in discussions on the inclusion of non-state armed groups in shaping the codes of conduct. Authors analysing the African contribution to ihl have failed to critically juxtapose the provisions of modern ihl with the rules of traditional African warfare, 2 which, it is argued, share many similarities with contemporary Geneva Conventions and Additional Protocols. 3 Admittedly, the period of the societal disintegration that commenced with the introduction of slavery and colonialism resulted in the obliteration of the ancient laws of war. 4 Furthermore, traditional institutions playing important reconciliatory roles in the pre-colonial societies were dismantled and conflict prevention became inevitably ungovernable. However, the memory of traditional conflict-prevention and reconciliation mechanisms, as well as ancient codes of warfare are kept alive in the narratives of the storytellers, and the codes could be revived as a means of humanising present-day conflicts or preventing future ethnic tensions. Moreover, it is suggested that listening to local communities and learning about their aspirations and cultural practices should inform the peacebuilding programmes which need to be introduced before the cessation of hostilities and not after, for instance in the case of Yemen. Recent initiatives by a Swiss-based non-governmental organisation (‘ngo’) – Geneva Call – including a study of indigenous cultural norms relating to the protection of civilians in Mali, 5 as well as the launch of the ‘Booklet on Key Rules of ihl with Islamic References’ in the Philippines 6 – underline the growing importance of integrating local (and often inter-tribal) approaches to conflict prevention, management and resolution in ihl dissemination.
The following article will postulate ways to improve compliance with ihl in niacs specific to Africa. 7 Drawing on examples of the Bashingantahe councils in Burundi, the humanitarian law of the Peul society in Senegal, the Oron district in Nigeria, and the Kamajors in Sierra Leone – among others – the author shall argue that uncertainties in contemporary ihl present an opportunity to transform the way scholars and practitioners approach ihl research and dissemination by introducing traditional African perspectives to the law of armed conflict through the receptor approach.
In the first part, the author introduces the theoretical perspectives of Third World Approaches to International Law (twail) and the receptor approach, which will guide the normative analysis in later parts of the article. Part 4 addresses the uncertainties in contemporary niacs and suggests solutions for improving compliance and certainty in ihl. Firstly, the author discusses the advantages and disadvantages of the human rights approach. Secondly, the practice of the development of rules of conduct by armed non-state actors is discussed. The author concludes that a comprehensive accountability framework – consisting of reliance on domestic courts and traditional transnational justice mechanisms – is the way forward. In Part 5 the sources of traditional African approaches to the law of armed conflict are presented. It is argued that contrary to some of the contemporary human rights norms, the contents of ihl are not alien to African traditions and could act as receptors for the purposes of ihl dissemination and enforcement. This is illustrated with the aid of the mapping exercise conducted by Geneva Call in communities of Mopti and Gao in Mali between 2018 and 2019. The project which involved community consultations and round table talks with a wide range of local actors and experts in history, sociology, customary law, Islam studies and ihl helped identify the ‘common ground’ connecting traditional rules with modern ihl. The multi-stage process involved members of youth representatives, local non-state actors and women groups who helped identify how traditional rules correspond to contemporary laws on the protection of persons not taking direct part in hostilities and, according to the author, provides an illustration of the applicability of the receptor approach to ihl dissemination. Part 6 addresses the challenges to ihl enforcement linked to the legitimacy deficit of the international criminal tribunals. Lastly, limitations and points for further discussion are presented.
2 Methodology
Debates on the applicability of ihl to niacs and the interplay between ihl and international human rights law (ihrl) have been at the centre of recent significant scholarly attention. 8 However, the dominant focus has been restricted to legal doctrinal analysis and, it has largely omitted considerations of culture and Third World Approaches to International Law. The nuanced approach offered by this article therefore constitutes an added value in the debates on ihl compliance in niacs.
The examples of traditional rules of warfare and pre-colonial reconciliation practices discussed in the article relate to the entirety of the behaviour in niacs, therefore combining ihl and human rights law in accordance with the integration theory on the interplay between ihl and human rights norms. 9 This methodological choice is justified by the difficulties in classifying armed conflicts from both pre-colonial and present times. Equally, it is often difficult to determine the point in time when hostilities commence, 10 and when ihl application is triggered. Moreover, the International Court of Justice (icj) in the Nuclear Weapons case, ruled that the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant, whereby certain provisions may be derogated from in a time of national emergency. 11 This view has been confirmed in the Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 12 and the drc v Uganda case. 13 The integration theory assumes that there is a high degree of convergence of human rights and ihl norms and that certain ihl and ihrl norms have been combined to such an extent, that their common elements can be ‘identified and articulated as fundamental standards of humanity that ought to apply along the entire spectrum of violence’. 14 It is argued that in light of the high degree of uncertainty in classifying conflicts and conflict stages, the integration theory is best suited for this study and as an approach towards the dissemination of ihl in Africa.
The evolution of varying types of conflicts, in which the opposing parties are no longer States or insurgency groups but rather a complex myriad of non-state actors, calls for an epistemological reflection and an informed response to the crises, which takes into account local needs and realities. 15 The author has decided to focus on examples of traditional rules of warfare as well as traditional measures of conflict prevention, management and resolution. 16 Due to the complexity of the conflict cycle, is it critical to take a holistic approach to conflict prevention, management and resolution, especially since each facet is often inseparable from the rest. 17
Conflict prevention has been defined as ‘a medium and long-term proactive operational or structural strategy undertaken by a variety of actors, intended to identify and create the enabling conditions for a stable and more predictable international security environment’. 18 Conflict management, on the other hand, has been described as ‘the limitation, mitigation and/or containment of a conflict without necessarily solving it’, 19 in which an increasingly important role is played by ngos. 20 It is argued that the best approach towards conflict management is the combination of informal and formal methods of conflict prevention, management, and resolution in an integrated fashion, 21 which can create the foundation for effective conflict resolution. 22 In practice, these measures can be seen as working simultaneously at different levels in one conflict.
Examples contained in this paper include rules and institutions from Somalia, Senegal, Nigeria and Sierra Leone, however many more examples could be drawn. The reason for the selection of these countries lies in the persuasiveness of the academic works which have analysed the traditional African laws of the armed conflicts in these selected regions. 23 Further, the country examples drawn from academic research conducted in the 1970s and 1980s as well as the case study of the mapping exercise conducted recently by Geneva Call, including community consultations and round table discussions with local members of the society, could meaningfully contribute to the debate on the applicability of ihl in niacs.
With regard to the terms used, the author has decided to refer interchangeably to ‘traditional’ and ‘ancient’ methods or warfare or laws of armed conflict. These terms relate to the conflict rules which date back to pre-colonial times and were used by African tribes before the European colonisers arrived in Africa. The term ‘Western’ refers to all influences which are not African in nature, very often of European origin. This term will be used to distinctively reference contemporary ihl, meaning not the pre-colonial African rules of warfare, but the rules stemming from The Hague and Geneva Conventions and the Additional Protocols. An important term employed by the author, which requires further elucidation is ‘culture’. Culture is at the very core of this analysis and represents ‘the accumulation of a people’s wisdom and thus their identity’. 24 It constitutes a set of local truths which serve as a guide for a life in society. 25 Culture also consists of a dynamic mix of many entities including philosophy, religion, mythology, politics, history, environmental factors, language, and economics. Notably, it is the interaction between the above entities, which produces competing visions and values in society. 26
It needs to be stressed, that although the terms ‘traditional African’ and ‘African culture’ appear throughout the text of this article, the author does not imply that the African continent contains a uniform body of values or cultural practices. Quite the contrary – the African continent is known to contain more cultural (social, economic, political) differentiation than Europe and North America taken together. 27 Africa does not have one homogeneous culture. 28 It is inhabited by numerous ethnic groups with different social structures and cultures. African culture refers to the broad patterns of social organisation, values and norms generally possessed by most ethnic groups in Africa. In this general respect, however, there is a similarity among them in terms of emphasis on community and ties of kinship, 29 and for the purposes of this article, the terms ‘traditional African’ and ‘African culture’ should be viewed in this light. According to Article 47 of the 1949 Geneva Convention i, Article 48 of the 1949 Geneva Convention ii, Article 127 of the 1949 Geneva Convention iii and Article 144 of the 1949 Geneva Convention iv, as well as Article 83 of the 1977 Additional Protocol i, ihl dissemination means spreading the knowledge about the ihl principles to the entire population. 30
3 Theoretical Framework – Third World Approaches to International Law (twail)
The choice of theoretical perspectives was dictated by historical considerations and the characteristics of Africa as the continent affected by colonialism and slavery. Nowadays, the ideas of Western superiority as conceptualised in the principles of ihrl, are not always suited for the needs of non-Western countries. 31 This leads to the ‘dynamic of difference’. 32 Third World Approaches to International Law will shed light on the importance of studying traditional African rules of armed conflict, whether that be Senegalese, Somali or Nigerian. For decades, African, Asian, Latin American or Eastern European perspectives on international law, and equally, international law developments in these regions, were not perceived as a part of the broader international legal history. 33 Moreover, the dissemination of human rights internationally has been summarised as an attempt to replace the local ‘savage’ culture with the ‘universal’ culture of human rights and values. 34 However, as rightly observed by Martti Koskenniemi, ‘histories of non-European worlds are needed to illuminate the diversity of human experience and to create critical distance towards the intuitive naturalness of stories we have learned’. 35 The Third World Approaches to international law ‘seek to transform international law to a language of emancipation’ of the third world people by building a ‘body of rules and practices which would reflect their aspirations’. 36 This transformation can be achieved through the application of the receptor approach.
The receptor approach relies on ‘ethnographic research to identify social institutions and cultural values that match international human rights obligations’, 37 which will consequently aid the application of human rights law, like stem cells. This approach ensures that reforms can become embedded in the society concerned and, according to Tom Zwart, enhances human rights compliance by standing a better chance of being supported by the community as opposed to enforcing rules top-down. 38 Contrary to the view adopted by positivists who assume that in ratifying international treaties State parties – irrespective of the culture they represent – will abide by the same rules and obligations, the receptor approach ‘holds that within this regime of human rights grounded in positive law, states can remain loyal to their own philosophical convictions to the extent the legal regime allows them’. 39 The receptor approach is based on openness and respect for the culture of every society. It also assumes that every value system, whether coming from Europe, Africa, or Asia is equal, has its own ‘inner logic and is aimed at achieving its own conceptualisation of fairness and human dignity’. 40 Furthermore, since ‘human rights relations in Africa are more direct, personal, and reciprocal, and, therefore, more horizontal than they are in the West’, 41 ancient laws of war, humanitarian conventions, social institutions, dispute settlement mechanisms, and pre-colonial transitional justice institutions may also serve as receptors. It is argued, that this knowledge may be used to successfully disseminate ihl in Africa starting from the local community level and later, developing towards the State level. In contrast to the receptor approach advocated by Tom Zwart – the application by State parties – the present paper applies the receptor approach to non-state actors. Moreover, considering the rising importance of non-governmental organisations in the field of international law dissemination and conflict management, this paper advocates for the use of the receptor approach by ngos in disseminating ihl to non-state actors. Whilst the receptor approach to ihrl tends to rely on modern domestic social institutions, the receptor approach applied to ihl would rely on ancient rules and institutions. Traditional rules must be discovered through the help of ethnographic research. By relying on African codes of conduct, the receptor approach to ihl sets out to do justice to local culture and, at the same time, to enhance ihl and ihrl protection, especially in conflict affected areas where such enhancement is most needed.
A careful scrutiny of the existing mechanisms and practices on the ground will enable the revival of traditional approaches to humanitarian law that correspond to contemporary ihl standards. Historical sensitivity should be among the guiding principles of the dissemination work that needs to be conducted. Combining traditional African laws with contemporary provisions of ihl through the receptor approach in the dissemination work directed at the members of armed non-state actors has the potential of increasing compliance and leading to a meaningful dialogue on ihl. Disseminating the rules of ihl in the context of corresponding ancient rules of warfare, for instance through the work of Geneva Call, would help persuade more non-state actors to accept and abide by the rules of modern ihl. This is especially important since many armed non-state actors oppose neo-colonialism and question the legitimacy of international law and human rights. 42 The same armed groups claim the heritage of ancient African empires and kingdoms from pre-colonial times, which had advanced systems of rights protection. 43
Although ‘there are those who thrive on hostility and violent confrontation in Islamic as well as Western societies and those who seek cooperation and peaceful coexistence among both groups of societies’ if policymakers and legislators of different societies study each other’s legal traditions, ‘they will find many more grounds for cooperation than for confrontation’. 44 Therefore, the study of Third World Approaches to International Law and the traditional African approaches to the law of armed conflict is essential and may indeed enable the discovery of corresponding principles, which can then be used in aiding the implementation of ihl in Africa more broadly.
It is suggested that if conflicts are to be eradicated and humanitarian norms are to prevail, the civil society, state actors and international organisations need to work on the ‘reversal’ of the ‘othering’ of the traditional principles in the African society and, 45 rather embrace them together with contemporary ihl, putting emphasis on local values through the receptor approach. This will add momentum to the diversification of the prevailing human rights discourse. In the light of the receptor approach, this could be a successful strategy to both increase compliance with ihl in Africa, and to further the development of ihl as a body of law more broadly. According to Makau Mutua’s theory, the human rights movement should ‘rethink and re-orient its hierarchical, binary view of the world in which the West leads the way and the rest of the globe follows’. 46 Human rights, and it is suggested that ihl too, can play a role in changing the international order and particularly the imbalances between the West and the Third World. ‘Still, it will not do so unless it stops working within the “Savages – Victims – Saviours” metaphor. Ultimately, the quest must be for the construction of a human rights movement that wins for all’. 47 It is suggested that traditional pre-colonial mechanisms and practices provide a rich array of solutions ranging from conflict prevention to conflict resolution as well as transitional justice measures.
4 Addressing Uncertainties in Contemporary ihl
The state-focused nature of ihl makes it difficult to regulate the behaviour of armed non-state actors who cannot become parties to the treaties and are often not invited to take part in the law-making process. As a result, armed non-state actors do not identify with the rules imposed on them from the outside and often distrust the entire ihl system. 48
Some of the uncertainties in the applicability of ihl in niacs stem from the fact that non- state armed actors have not yet reached the level of organisation to trigger the application of ihl. 49 In other instances, the level of violence might not be intense enough to trigger the applicability of ihl or, even though the hostilities had ended, some groups managed to maintain control over the territory and population. 50 It is suggested that compliance of armed non-state actors with law in niacs could be enhanced by introducing Third World and traditional perspectives and pre-colonial dispute settlement mechanisms into the legal discourse. Where contemporary ihl fails to provide certainty and predictability, pre-colonial mechanisms and practices could act as a safeguard, ensuring basic protection in the conflict or even preventing the multi-factional conflicts from escalating altogether.
4.1 Adopting the Human Rights Approach to Address the Uncertainties in niacs
Since the law in niacs is much less regulated than in international armed conflicts (iacs), human rights already play an important role in this field. Michaela Hailbronner provides the example of the International Committee of the Red Cross as an institution which often relies on human rights standards and soft law in determining the state of customary ihl. However, as emphasised by the author, the fact that law regulating niacs is less clear is an unsatisfactory reason to adopt a pure human rights approach in this area. 51 Instead, a more context-sensitive analysis is necessary than in the case of international armed conflicts. The application of human rights treaties to armed non-state actors is problematic and even if they may be considered as applicable, the enforcement will pose many practical and legal challenges. 52 Non-state armed groups take pride in fighting against the Western values or institutions allegedly representing Western imperialist ambitions, and it is likely that they would not be willing to sign and abide by codes of conduct based solely on Western human rights norms.
Daragh Murray proposed that the development of human rights obligations could be used to fill the gap in the regulation of the relationship between armed groups and individuals subject to their authority. He argues that human rights law can be used to evince to armed groups how they can rule in the best interests of the affected population, and why it is in their interest to do so. 53 Undoubtedly, in situations of niacs when the state lost effective control and the conduct of armed non-state actors is not regulated by international law, the protection of fundamental rights of the local population cannot be assured. 54 Human rights are flexible enough, ensuring that its application can be adapted in light of the exigencies of the situation. At the same time, however, this approach does not take into account the fact that armed non-state actors might be distrustful of foreign human rights norms imposed top-down by the post-colonial authorities or promoted by organisations funded by Western countries.
A possible solution is incorporating the norms through the receptor approach, taking into account the ideas of African humanism. 55 Appealing to local culture and values, ideally corresponding to human rights standards and contemporary humanitarian law principles could prove more successful.
It is suggested that any initiatives aimed at improving the certainty and predictability of law in niacs should accompany the regional approaches to ihl and, should be introduced from the grassroots level.
4.2 Development of Rules of Conduct by Armed Non-state Actors
Although States might find it hard to accept that armed groups develop their own rules of conduct, it is now a growing practice which needs to be encouraged and facilitated in order to ensure the respect for the rights of the populations under the non-state actors’ control. 56 Nonetheless, conflicts have become more complex, involving multiple factions and a multiplicity of armed non-state actors, all of which makes it difficult to adopt general rules on engagement. 57 Therefore, armed non-state actors should be engaged in the development of law and the dissemination of ihl and ihrl rules. Their views, as well as cultural contexts and traditional African rules of warfare need to be meaningfully taken on board in order to enhance the chances to better implement ihl.
Whilst expounding the content of the traditional rules of warfare may not become a challenge, explaining to armed non-state actors the nature of some of the obligations contained in contemporary ihl may prove burdensome. Annyssa Bellal draws on the concept of opinio juris to exemplify the difficulty in disseminating complicated ihl concepts on the ground. 58 The role of ngos and foreign missions in the areas affected by niacs should be to engage with non-state actors to develop realistic and efficient legal frameworks and ensure that civilians’ fundamental rights are protected, even in situations that do not yet trigger the applicability of ihl. It is suggested that the crucial element in this system is enforcement. There is a need to devise a comprehensive accountability framework which is not exclusively premised on international criminal law, 59 but which relies on local courts and tribunals, traditional practices and rules as well as traditional transitional justice mechanisms and not exclusively on international criminal tribunals, 60 based in The Hague or elsewhere. All of this could be achieved through soft law, however engaging meaningfully with traditional approaches and transitional justice mechanisms from the pre-colonial era could make it easier for armed non-state actors to accept the authority of ihl and ihrl norms or could even help de-escalate the tensions and prevent conflicts.
An important initiative by Geneva Call are the deeds of commitment disseminated among the armed non-state actors. Since the armed groups participate in the rule formation, the initiative adds legitimacy to ihl and ihrl rules contained in the deed as well as associated enforcement and monitoring mechanisms. Critically, under the deed of commitment the armed non-state actors agree to cooperate with the monitoring of its compliance by Geneva Call. 61 Katharine Fortin, ‘Armed Groups and Procedural Accountability: A Roadmap for Further Thought’ (2016) 19 Yearbook of International Humanitarian Law 174.
The deeds of commitment developed by Geneva Call mention solely ihl and ihrl, however they do not invoke any regional instruments which could enhance the legitimacy of the principles and rules mentioned therein. 62 It remains an initiative that could be improved and become successful. Education here is key. The more people can be reached through dissemination activities, the more people will become aware of the similarities between the traditional laws of warfare and contemporary ihl and ihrl, and the more willing they will be to familiarise themselves with the rules to accordingly abide by them. In addition, the promotion of pre-colonial transitional justice mechanisms could contribute to conflict prevention.
A combination of different approaches aimed at enhancing compliance with ihl is also an option. Non-state actors may become bound by additional human rights norms through their consent expressed through either unilateral declarations or bilateral agreements between the relevant State and the armed non-state group. 63 These unilateral or bilateral commitments could incorporate elements of human rights law. 64 For example, in the 2011 Manual issued by the National Transitional Council (ntc) in Libya, a purely ihrl-model was adopted for all detainees, requiring release unless held on criminal charges and tried before a court in accordance with the Libyan Criminal Code. 65 However, the disadvantage of this approach is the fragmentation of rules applicable to niacs which, ironically, could lead to even more uncertainty and could jeopardise the efforts to improve the protection of rights in niacs.
The above section outlined the uncertainties in contemporary ihl with regards to niacs and presented certain remedies. Some commentators have expressed the view that the gaps could be filled by the armed non-state actors committing themselves to respect the ihl rules (like the Geneva Call deeds of commitment) or the customary ihrl rules. Conversely, this article proposes an approach which could incorporate both traditional and modern principles and methods, and thus respond to the armed non-State actors’ distrust in contemporary ‘Western’ ihl and ihrl rules. Combining the dissemination of the traditional and modern ihl together with contemporary African human rights, whilst taking the receptor approach to human rights, could lead to improved legitimacy of all three systems of law.
5 Sources of Traditional African Approaches to the Law of Armed Conflict
In 2013 the African Union launched Agenda 2063, a fifty-year plan aimed at a ‘shared strategic framework for inclusive growth and sustainable Development and a Global Strategy to Optimise the Use of Africa’s Resources for the Benefit of all Africans’. 66 The Agenda consisted of twelve ‘flagship programmes’, including Silencing the Guns by 2020. The programme’s aim is to ‘to end all wars in Africa by 2020’ and ‘make peace a reality for all African people and rid the continent free of wars, end inter- and intra-community conflicts, violations of human rights, humanitarian disasters and violent conflicts, and prevent genocide’. 67 Though Agenda 2063 is aimed at ending all wars, the relevance of ihl training, dissemination and compliance is not directly mentioned. 68 The reason for that omission might be the fact that ihl and ihrl are considered to be ‘foreign’ bodies of law in Africa. However, contrary to the views of Mubiala and Jo, 69 the origins of ihl are not solely ‘Western’. Although modern ihl was created by the Western States with limited Third World influence, the principles contained therein derive from ancient rules of warfare, similar to the ones present on the African continent. It is argued that although this fact has been often omitted in dissemination efforts, it could become the foundation of wider ihl dissemination in the future. Judge Weeramantry of the icj noted in his Dissenting Opinion in the Nuclear Weapons case, that ‘it greatly strengthens the concept of humanitarian laws of war to note that this is not a recent invention, nor the product of any one culture’. 70 Judge Weeramantry, himself of Sri Lankan background, observed that:
the concept is of ancient origin, with a lineage stretching back at least three millennia. … It is deep-rooted in many cultures Hindu, Buddhist, Chinese, Christian, Islamic and traditional African. These cultures have all given expression to a variety of limitations on the extent to which any means can be used for the purposes of fighting one’s enemy. 71
Indeed, this perspective can be supported by Judge Greenwood’s work, highlighting the ihl roots in inter alia, the ancient codes of Hindu law or in Qur’an. 72
5.1 Studies Conducted by Mubiala, Diallo and Bello
In the 1970s and 1980s, the topic of locating ihl sources in traditional African law was the focus of extensive academic research, however little contemporary research, including recent academic debate on uncertainties pertinent in niacs, delves into the traditional sources of ihl 73 The traditional pre-colonial Africa had three important social values: humanity, solidarity and interdependence. Traditional African laws are oral laws. This means that they are transmitted by word of mouth, for example through the griots (minstrels) that preserved the collective memory by means of ‘juridical dance songs’ which had a strong magical religious connotation. 74 Consequently, fearful of immediate consequences as well as the divine punishment that could await them if they broke the rules, members of the population were reluctant to violate these laws. 75
The studies carried out in the 1970s and 1980s identified similarities between the relevant principles of traditional legal systems and ihl. 76 The concepts of ‘moderation and clemency shown to enemies’ as well as the prohibition of certain weapons were not alien to the ancient African laws of war. 77 Instead, there existed rules that resembled modern rules of ihl. For instance, there existed rules forbidding the use of poisoned weapons; certain societies had highly developed systems of etiquette, and conventions and rules for both before and after the cessation of hostilities, including a system of compensation. 78 The pre-colonial African societies also had a well-established system for the protection of human rights. 79 The care of the wounded and sick was a custom. There was an understanding between the parties that at the end of the battle all wounded would be the direct responsibility of the opposing group. 80 Between the Kikuyu and the Masai people of the central and southern Kenya and northern Tanzania, the reason for going to war influenced the attitude of each side, and that eliminated or minimised reckless killing or wounding. According to Emmanuel G. Bello’s study, whenever the loss of lives occurred, as a form of a peace agreement between the tribes, at the end of the conflict the two sides would exchange assurances that they will not to engage in further raids on one another’s territory. 81
[i]n the conduct of warfare in Oron district in the north-eastern part of Nigeria, when one town decided to make war upon another, the inhabitants sent two men to lay a plantain leaf upon the road before the enemy’s town. Emissaries were also used in many parts of Africa to warn the adversary of the commencement of hostility. The opponents took the warning seriously and prepared themselves for war. However, before resorting to the use of force, the parties involved had to have attempted a peaceful negotiation. Compensation for war damages was common among many tribal groups. Modes of compensation followed determined procedures so that fair and just calculations were made as to the worth of persons and objects. 83
The Kamajors were a group of traditional hunters from the Mende ethnic group in the south and east of Sierra Leone. The word Kamajor derived from Mende ‘kama soh’, meaning traditional hunter with mystical powers. The traditional rules which regulated the behaviour of Kamajors in warfare included the prohibition of looting villages and the prohibition of committing rape (generally reflecting the contents of Article 4 of Additional Protocol ii), and even having contact with a woman while in battle uniform. The penalty for failure to abide by these restrictions was the loss of the occult protections, 84 which was a serious deterrent for an active combatant.
Another example of traditional mechanisms for the protection of human rights are the Bashingantahe councils in Burundi consisting of ‘virtuous men’ of high integrity (Abashingantahe) who were responsible for settling conflicts, investigating and deciding cases, as well as pursuing litigation. 85 The Arusha Accord for Peace and Reconciliation in Burundi states that the prevention of ethnic conflict was due to the Bashingantahe councils, who were the judges and the councilors at every level of power. The parties in Arusha peace talks following the end of the Burundian conflict recognised that pre-colonial Burundi had suitable instruments of ethnic conflict prevention, which had indeed made it possible for no ethnic conflict to have emerged before 1965. Since the end of the war in Burundi there have been calls for restoring the institution of Bashingantahe which would arguably play a vital role in post-conflict reconstruction and reconciliation. 86
The findings of the study of the Peul society in Senegal illustrated that war was always a measure of last resort, and even then was heavily regulated by various categories of oral rules. 87 The detainees were treated in a humane manner and often became part of the family of the persons into whose power they had fallen. 88 In practice, this meant that they were in conditions which exceeded the protections guaranteed by the Common Article 3 of the Geneva Conventions and Additional Protocol ii. In the Peul society, young warriors were trained in the laws of war prior to joining the battle. The rules included the prohibition of killing the enemy on the ground, 89 which is also contained in Common Article 3. The study also highlighted the rules concerning the protection of non-belligerents, removal from the combat zones of women, children, old people and serfs (corresponding to Article 17 of the Fourth Geneva Convention), observance of truces for agricultural reasons and respect for asylum zones. Corresponding rules were found in other parts of Africa such as the Upper Volta, Ghana, Mali, Niger and Togo. 90 Importantly, it has been exemplified that many principles expressed in the Geneva Conventions can be found in traditional African laws of armed conflict. The period of the societal disintegration commenced with the introduction of slavery and resulted in the obliteration of the ancient laws of war. 91
In contrast to some of the universal human rights, contemporary ihl is not alien to the African traditions. Conversely, it is in line with the most ancient rules of warfare. 92 Although most of the conventions of warfare and other humanitarian principles were recorded only in oral communication, other researchers have managed to compile an impressive amount of information through qualitative research analysis in Africa. Further, the ‘Spared From the Spear Report’, drawn on interviews conducted in various regions of Somalia, discussed traditional humanitarian principles found in the ancient Somali law; which still continue to operate among some sections of the population today. The icrc and the srcs commissioned several experts in Somali oral history and literature for the task of researching the material which formed the basis of this study, and thus ensured that the varying perspectives of the Somali people located across the nations geographical settlements were taken into consideration. 93 According to the report, the traditional Somali Society had its own ‘Geneva Convention’, with respect to the laws of armed conflict. In the Somali case, the principles and ideas belonged to a ‘familistic culture, where individual and collective honour was a social (and political) resource’, 94 which is in line with the ideas of African humanism and could be utilised in disseminating ihl and ihrl principles to armed non-state actors. Essentially, the contents of the ancient traditional laws of warfare could be used as stem calls which could then be planted and transformed, with the participation of the armed non-state actors, to create new, legitimate and uniform codes of conduct in contemporary niacs.
5.2 Somali Codes of Warfare
Somalis believed in the concept of ‘Nabsi’ which referred to the changing nature of one’s fortunes in life. They believed that peoples’ material conditions and social status never remained the same. The inevitability of the changing fortunes of life according to the nabsi concept meant that in war, if a certain party performed well in one battle, they could lose the next. This meant that they always had to bear in mind that if they treat their enemy in battle without respect for their dignity, the same fate may await them in a subsequent battle. 95 Believing in nabsi meant that the Somali warriors avoided perpetrating ‘war crimes’, according to the modern definition in ihl. As a result of the convention outlined above, acts of brutality were rarely committed by traditional Somali warriors. 96
Those individuals who are unconcerned with, and oblivious to, the war and who are not involved in the fighting, should not be killed; we should not abandon our wounded on the battlefield. We should rather fight tenaciously to rescue them and evacuate them to safety; 98 the wounded of the enemy must not be finished off; you should rather leave them alone; if certain men belonging to the enemy (specified by their names) are taken alive, they should not be killed but delivered to the commander; if one of us pledges his personal protection to a man from the enemy, or if a captured man belonging to the enemy invokes the name of a member of our clan, and declared that he seeks the protection of that particular kinsman of ours, he should not be touched with harm. 99
In certain parts of Somalia, the following directions were added to the above list of instructions in the event that the raid was being launched against the settlement of a related lineage:
the body of a man who is killed should not be searched for gain and any property that he had with him should not be confiscated; the bodies of the enemy dead should not be mutilated or burned; and particularly inhuman methods of killing such as choking or strangulation should not be used. 100
As has been shown, there exists extensive, however quite dated scholarship on the traditional African laws of armed conflict, which should form a basis for a more in-depth qualitative research. Although this scholarship was not considered during the drafting work of the contemporary ihl, it is suggested that African traditional laws of war could be of great assistance in framing the codes of conduct of armed non-state actors, which very often reject any Western-based principles of international law. These ancient codes and rules could serve as receptors and aid the dissemination of ihl and ihrl in circumstances of modern niacs where the classic ihl does not provide certainty or predictability. Highlighting parallels between Article 4 of Additional Protocol ii and traditional rules regulating the behaviour of Kamajors in Sierra Leone during trainings with armed non-state actors could enhance compliance and facilitate dissemination of ihl in local communities in fulfilment of obligations as to ihl dissemination stemming from Article 47 of the 1949 Geneva Convention I, Article 48 of the 1949 Geneva Convention ii, Article 127 of the 1949 Geneva Convention iii and Article 144 of the 1949 Geneva Convention iv, as well as Article 83 of the 1977 Additional Protocol I.
Some armed non-state actors do not accept the legitimacy of contemporary ihl, for instance the Islamic fundamentalist groups deny Western values and reject ihl altogether. 101 Arguably, the process of the creation of modern ihl also influenced the attitudes and thus had an impact on the legitimacy of ihl. Armed non-state actors could argue that they have not participated in the formation of modern rules of warfare, and their voices have not been heard, except as observers, for instance in the Additional Protocol negotiations. 102 In contrast, it is suggested that not all armed non-state actors reject ihl in its entirety. Similarly to scholars, even when they are aware of its main principles, they might find them hard to apply in practice in the uncertain environment of niacs. 103
Religious principles could also act as receptors. It has been demonstrated by Corri Zoli, Cherif Bassiouni and Hamid Khan that normative regimes of international and Islamic law have many elements in common including the principle of distinction or the principle of humanity. 104 Clarifying traditional African and religious law guidelines in conflict and post-conflict settings would aid in pressuring conflict actors to consider new sets of norms, which may combine traditional African, religious, modern ihl and ihrl rules in restraining the conduct of the armed non-state actors and, furthermore, in ‘anchoring post-conflict transition initiatives’ in Islamic/Christian/traditional African conceptions of justice and reconstruction. 105 The next part will illustrate the application of the receptor approach to ihl and ihrl dissemination in practice in Mali between 2018–2019.
5.3 Case Study: Mapping Exercise by Geneva Call
The widespread violence against the civilians in Mali and the difficulty in appealing to armed non-state actors that largely reject the ‘Western humanitarian values’ resulted in the need for a new approach, namely the ‘common ground’ approach, as opposed to imposing Western rules on the armed non-state actors. 106
An illustration of the application of the receptor approach to ihl can be the exercise carried out by Geneva Call between 2018–2019 in the communities of Mopti and Gao in Mali. This exercise consisted of local level community consultations in 2018 and round table discussions held between 16 and 17 April 2019 in Bamako in Mali. This double consultation with local actors allowed for the identification of the societal values which corresponded to the relevant provisions in ihl relating to the protection of civilians. Although Geneva Call does not refer to the receptor approach in its methodology, it is argued here that the mapping exercise focusing on the ‘socle commun’ is precisely the application of the receptor approach to humanitarian law.
The hypothesis underling the exercise was that relying on local traditions and principles, including religious values, might have wider resonance with the local armed non-state actors and thus could enhance ihl compliance. Juxtaposing the local values with modern ihl strengthens the message of the need for civilian protection. In their study, Geneva Call relied on ancient community rules as receptors. ‘The receptor approach in the field of human rights assumes that international human rights will be most effective if they are able to lock on to socio-cultural receptors in diverse cultures, which will allow them to play a role in the societies concerned’. 107 Similarly, through the receptor approach, Geneva Call is able to appeal to the local armed non-state actors in a more meaningful way if they refer to the ‘common ground’ by which they mean local values and customs stemming from the diverse community of rules which helped organise life under kingdoms and empires in the ancient times. 108 These rules include regulations governing the communal relationships in the area of trade and commerce, occupation of territory and distribution of goods and natural resources (including the protection of civilians in the event of conflicts).
The round table under Chatham House rules that followed had the objective of identifying the points of convergence or divergence between several sources of law (ihl, Islamic Law, customary law and social standards in the broad sense) concerning the protection of persons not taking direct part in hostilities. The round table discussions and presentations covered the topics of social norms (traditions and proverbs), the history of the empires and kingdoms conveyed by the oral tradition and the teachings on behaviour in armed conflicts. Geneva Call identified 60 participants for the purposes of further community consultations. Representatives of youth organisations, women groups, religious leaders and local authorities were invited to share their views. After the community consultations, the second phase of round table discussions took place, this time involving experts in the field of sociology, communication, law, Islamic studies and members of Geneva Call. Members of the first local community consultations were also invited to participate.
Based on the community consultations and round table talks Geneva Call was able to identify the relevant traditional rules and principles for the purposes of identifying the ‘common ground’ with modern ihl rules. It is suggested that in this way, the receptor approach was effectively applied to ihl. A significant challenge which remains to be addressed in the future is integrating the diversity within each community and considering the evolving nature of societal norms and rules. The pragmatic aim of the mapping exercise conducted by Geneva Call was to draw the attention of the armed non-state actors to the rules governing the conduct in warfare of their ancestors from pre-colonial times in order to enhance compliance with ihl in niacs. It is argued here that the real challenge, but also the added value comes with the distinctiveness of the rules in each traditional society, and with the need to identify the authentic values and cultural practices each time, as opposed to transplanting the contents of the previous training with an armed group in one society to another training. Only a meticulous study of the relevant traditional principles and a careful comparative exercise with modern rules of ihl, has the potential of influencing the behaviour of armed non-state actors in contemporary niacs, which effectively involves discarding the considerations of universality in ihl dissemination.
5.4 Limitations of Applying the Receptor Approach to ihl
elders are not in every instance well placed to facilitate justice and reconciliation; indeed, elders are not necessarily representative of or sensitive to the justice needs of women and youth, nor do they even agree on the necessity of adapting local mechanisms designed to address ordinary crimes to the extraordinary crimes committed in this conflict. 111
The receptor approach envisages potential conflicts between treaty requirements and traditional rules. Essentially, in the event that the local institutions fall short of the treaty requirements, they will have to be adjusted or amended in order to bring them into line with treaty standards. 112 Similarly, in relation to ihl compliance, ngos carrying out the dissemination work would clearly spell out the rules of ihl which are binding on non-state actors, and subsequently disseminate only these rules which conform to modern ihl provisions. On the other hand, they would also disseminate the traditional rules which exceed the protections offered by the Geneva Conventions. A certain characteristic of traditional law is its flexibility and adaptability, 113 applying the receptor approach to ihl dissemination has the potential for eradicating conflicts and bringing the communities together in the spirit of communality and respect for the common ancient roots dating to pre-colonial times.
6 The Challenges of Enforcement: Domestic Accountability Mechanisms as a Solution to the International Criminal Trials’ Legitimacy Crisis
Whilst disseminating ihl and ihrl principles through the receptor approach among the state and non-state actors engaged in hostilities in Africa could encourage better conduct in war, an issue that is left unaddressed is the enforcement of the principles by international courts and tribunals in the event of a lack of domestic accountability mechanisms. As mentioned above, some non-state actors play on the resentment towards Western states and could invoke the argument that promoting ‘Western’ ihl ‘under the disguise’ of the African traditional laws, and later prosecuting those taking part in hostilities under the ‘fully Western’ international law procedures is indeed a form of neo-colonialism. This could arguably lead to the feeling of betrayal and even more resentment on the ground, where the armed conflicts take place and, hence contribute to even more distrust towards institutions such as the International Criminal Court. The procedures in international courts and tribunals largely reflect the procedure in English common law courts, with several civil law elements. 114 A long-term solution in this case, apart from the development and dissemination of ihl with African traditional rules on the ground, would be domestic war crimes prosecutions in Africa itself, something that was already alluded to by Antony Anghie and B. S. Chimni. 115 This would lead to more accountability and enhanced compliance with both international and domestic humanitarian standards.
the multicultural traditions that exist on this important matter cannot be ignored in the Court’s consideration of this question, for to do so would be to deprive its conclusions of that plenitude of universal authority which is available to give it added strength – the strength resulting from the depth of the tradition’s historical roots and the width of its geographical spread. 116
Only when a meaningful exchange takes place and, both West/North and South/East traditions find a common legal humanitarian language, can compliance become a reality. This is in line with Abdullahi Ahmed An-Na’im’s theory presented above. According to him, ‘if lawyers and policymakers of different societies study each other’s legal traditions in a constructive and respectful manner, they will find many more grounds for cooperation than for confrontation’. 117 Accordingly, the receptor approach provides a useful, and arguably successful, tool to achieve wider ihl compliance. The study of traditional African approaches to the law of armed conflict is vital and can lead to the discovery of corresponding principles which can then be used in aiding the implementation of ihl in Africa more generally.
7 Conclusion
2018 and 2019 marked the 70th anniversary of the 1948 Universal Declaration of Human Rights as well as the four Geneva Conventions of 1949. It is suggested that the aim of the international human rights movement to create a ‘universal culture’ across the world is meant to fail. 118 Instead, the study of the ancient traditional rules reveals that the principles contained therein can correspond to modern ihl and ihrl, and suggests that further in-depth analysis can aid the dissemination of ihl through the receptor approach. Traditional laws from the pre-colonial times could become stem cells and subsequently transform into new bodies of law, that will be respected by all parties to the conflict including armed groups. The incorporation of the traditional rules and the revival of the pre-colonial conflict resolution and conflict prevention institutions could help prevent the escalation of ethnic tensions and improve compliance with ihl. Listening to local communities and learning about their aspirations and cultural practices should also inform the peacebuilding programmes which need to be introduced before the cessation of hostilities. Ultimately, there is a need to devise a comprehensive accountability framework, which relies on local courts and tribunals, traditional practices and rules as well as traditional transitional justice mechanisms going beyond the international law enforcement system based in The Hague.
The receptor approach relying on ethnographic research helps identify values and cultural practices that match ihrl obligations. 119 This approach ensures that reforms can become embedded in the society concerned and, according to Tom Zwart, enhances human rights compliance by standing a better chance of being supported by the community as opposed to enforcing rules top-down. 120 The receptor approach is based on openness and respect for the culture of every society. It also assumes that every value system, whether coming from Europe, Africa, or Asia is equal, has its own ‘inner logic and is aimed at achieving its own conceptualisation of fairness and human dignity’. 121 Recent initiatives by Geneva Call including the study of indigenous cultural norms relating to the protection of civilians in Mali as well as the launch of the Booklet on Key Rules of ihl with Islamic References in the Philippines are an illustration of successful application of the receptor approach to ihl. Engaging non-state armed groups in the development of codes of conduct which synthesise traditional approaches and modern ihl, could potentially help armed non-state actors to expand their international presence and influence the development of ihl more generally. 122 Tangentially, this could again lead to the enhancement of compliance and certainty of ihl in niacs.
Based on the analysis of academic works of Mutoy Mubiala, Yolande Diallo, Emmanuel G. Bello, Adamou Ndam Njoya and others, it has been demonstrated that pre-colonial African societies had a well-established system for the protection of human rights and rules applicable to armed conflict. Although the scholarship dates mostly back to the 1970s and 1980s, it can still form a basis for a more in-depth qualitative research, which should be conducted to distil as detailed as possible traditional laws of armed conflict. Clarifying traditional African and religious law guidelines in conflict and post-conflict settings would help pressuring conflict actors to consider new sets of norms and accountability mechanisms, which may combine traditional African, religious, as well as modern ihl and ihrl rules in restraining the conduct of the armed non-state actors and, furthermore, in ‘anchoring post-conflict transition initiatives’ in Islamic/Christian/traditional African conceptions of justice and reconstruction. 123
Referring back to Makau Mutua’s theory, it has been argued that the dissemination of human rights and ihl should not take the form of ‘displacing the local culture with the “universal” culture of human rights’. 124 It is argued here that the real challenge in the application of the receptor approach, but also its added value comes with the distinctiveness of rules and customs in each traditional society and with the need to identify the authentic values and cultural practices each time, as opposed to merely transplanting the rules’ contents. Only a careful study of the relevant traditional principles and unbiased juxtaposition with modern rules of ihl has the potential of having an impact on the behaviour of armed non-state actors in contemporary niacs, which effectively leads to discarding the considerations of universality in the dissemination of international law. Once accepted with its limitations, the receptor approach could prove indispensable in addressing challenges arising out of other contemporary humanitarian crises going beyond conflict prevention, management and resolution. For instance, the receptor approach could be helpful in addressing challenges related to displacement following sudden- and slow-onset disasters caused by climate change. Essentially, it could prove instructive in drafting relocation plans taking into account the culture and needs of affected communities from South Asia, the Pacific Islands or the Caribbean. 125 Certainly this could be the focus of further qualitative research in the fields of international refugee law and human rights.
The author would like to thank the editorial board of this journal, the anonymous peer reviewers and Moussa Touré and Giuliano Vascotto for the comments received on the draft versions of this article.
Further explored in sections 4 and 5.
See Vangah Francis Wodie, ‘Africa and Humanitarian Law’ (1986) 26(254) International Review of the Red Cross 249, 261; Frans Viljoen, ‘Africa’s Contribution to the Development of International Human Rights and Humanitarian Law’ (2001) 1(1) African Human Rights Law Journal 18.
Geneva Convention (i) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), 75 UNTS 31; Geneva Convention (ii) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949), 75 UNTS 85; Geneva Convention (iii) Relative to the Treatment of Prisoners of War (1949), 75 UNTS 135; Geneva Convention (iv) Relative to the Protection of Civilian Persons in Time of War (1949), 75 UNTS 287 (all entered into force on 21 October 1950); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (1977), 1125 UNTS 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (1977), 1125 UNTS 609 (all entered into force on 7 December 1978).
See also Mutoy Mubiala, ‘International Humanitarian Law in the African Context’ in Monica Kathina Juma and Astri Suhrke, Eroding Local Capacity: International Humanitarian Action in Africa (Nordiska Afrikainstitutet 2002) 49.
Moussa Touré and Giuliano Vascotto, ‘Sources de droit et normes socioculturelles au Mali, creusets pour la protection des civils’ (June 2019) <genevacall.org/geneva-call-publishes-a-report-entitled-sources-of-law-and-socio-cultural-norms-in-mali-a-tool-for-the-protection-of-civilians/>.
Geneva Call, ‘Show of Support as Geneva Call Launches Booklet on Key Rules of ihl with Islamic References’ <genevacall.org/show-of-support-as-geneva-call-launches-booklet-on-key-rules-of-ihl-with-islamic-references/>.
For works analysing ancient laws of war in different regions see for instance Venkateshwara S. Mani, Handbook of International Humanitarian Law in South Asia (Oxford University Press 2007) covering perspectives from India, Bhutan, Bangladesh, Nepal, Maldives, Pakistan and Sri Lanka, as well as Christian and Buddhist perspectives on ihl. See also Ahmed Al-Dawoody, ‘Non-International Armed Conflicts under Islamic Law: The Case of isis’ in Tallyn Gray (eds), Islam and International Criminal Law and Justice (Torkel Opsahl Academic Publisher 2018) 121–143; Ahmed Al-Dawoody, ‘Islamic Law and International Humanitarian Law: An Introduction to the Main Principles’ (2017) 99(3) International Review of the Red Cross 995, 1018.
See Issue 19 of the Yearbook of International Humanitarian Law (2016); Issue 12 of Human Rights and International Legal Discourse (2018): Ka Lok Yip, ‘What Does the Jurisdictional Hurdle Under International Human Rights Law Mean for the Relationship Between International Human Rights Law and International Humanitarian Law?’ (2018) 12(1) Human Rights and International Legal Discourse 99; Jean-Marie Henckaerts and Ellen Nohle, ‘Concurrent Application of International Humanitarian Law and International Human Rights Law Revisited’ (2018) 12(1) Human Rights and International Legal Discourse 23; Andrew Clapham, ‘Human Rights in Armed Conflict: Metaphors, Maxims, and the Move to Interoperability’ (2018) 12(1) Human Rights and International Legal Discourse 9; Tilman Rodenhäuser, ‘Armed Groups, Rebel Coalitions, and Transnational Groups: The Degree of Organization Required from Non-State Armed Groups to Become Party to a Non-International Armed Conflict’ (2016) 19 Yearbook of International Humanitarian Law 3; Annyssa Bellal, ‘Welcome on Board: Improving Respect for International Humanitarian Law Through the Engagement of Armed Non-State Actors’ (2016) 19 Yearbook of International Humanitarian Law 37.
Hans-Joachim Heintze, ‘Theories on the Relationship between International Humanitarian Law and Human Rights Law’ in Robert Kolb and Gloria Gaggioli (eds), Research Handbook on Human Rights and Humanitarian Law (Edward Elgar Publishing 2013) 54; see also Marco Milanović, ‘Norm Conflicts, International Humanitarian Law, and Human Rights Law’ in Orna Ben-Naftali (ed), International Humanitarian Law and International Human Rights Law (Oxford University Press 2011) 95–128; Naz K. Modirzadeh, ‘The Dark Side of Convergence: A Pro-Civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict’ (2010) 86 International Law Studies 349, 353; Michael Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’ (2005) 99 American Journal of International Law 119, 141. According to the icrc’s view, ihl constitutes the lex specialis governing the assessment of the lawfulness of the use of force against lawful targets in international armed conflicts. The interplay of ihl rules and international human rights standards on the use of force is less clear in niacs, and the use of lethal force by States in niacs thus requires a fact-specific analysis of the interplay between the relevant rules.
Sir Christopher Greenwood, ‘Human Rights and Humanitarian Law – Conflict or Convergence’ (2010) 43 Case Western Reserve Journal of International Law 491, 500.
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] icj Rep 226, 240.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] icj Rep 136, 177–178.
Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda) (Judgment) [2005] icj Rep 168, 242–243; Greenwood (n 10) 501.
Brian Sang YK, ‘The Approach of African Human Rights Treaty Bodies to International Humanitarian Law: Normative Basis and Institutional Practice’ (2017) 1 African Yearbook on International Humanitarian Law; Marco Odello, ‘Fundamental Standards of Humanity: A Common Language of International Humanitarian Law and Human Rights Law’ in Roberta Arnold and Noëlle Quénivet (eds) International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (Brill – Nijhoff 2008) 15, 34.
Touré and Vascotto (n 5).
See also Alice Ackerman, ‘The Idea and Practice of Conflict Prevention’ (2003) 40(3) Journal of Peace Research 339; Karin Aggestam, ‘Conflict Prevention: Old Wine in New Bottle?’ (2003) 10(1) International Peacekeeping 12.
See Niklas L.P. Swanström and Mikael S. Weissmann, ‘Conflict, Conflict Prevention, Conflict Management and Beyond: A Conceptual Exploration’ (2005) <files.ethz.ch/isn/113660/2005_swanstrom-weissman_concept-paper_conflict-prevention-management-and-beyond.pdf>.
David Carment and Albrecht Schnabel, ‘Introduction – Conflict Prevention: A Concept in Search of a Policy’ in David Carment and Albrecht Schnabel (eds), Conflict Prevention – Path to Peace or Grand Illusion? (United Nations University Press 2003) 11.
Fred Tanner, ‘Conflict Prevention and Conflict Resolution: Limits of Multilateralism’ (2000) 82(839) International Review of the Red Cross 541.
Swanström and Weissmann (n 17) 24.
ibid 28.
ibid 25–26; Kwok Leung and Dean Tjosvold, Conflict Management in the Asia Pacific: Assumptions and Approaches in Diverse Cultures (John Wiley & Sons 1998) 1–12.
Yollande Diallo, ‘Humanitarian Law and Traditional African Law’ (1976) 16(179) International Review of the Red Cross 57; Emmanuel G. Bello, African Customary Humanitarian Law (Oyez Publishing 1980); Emmanuel G. Bello, ‘A Proposal for the Dissemination of International Humanitarian Law in Africa Pursuant to the 1977 Protocols Additional to the Geneva Conventions of 1949’ (1984) 23 Revue de Droit Pénal Militaire et de Droit de la Guerre 313–323.
Makau Mutua, ‘Returning to My Roots: African “Religions” and the State’ in Abd Allah Ahmad Na’im, Proselytisation and Communal Self-Determination in Africa: Individual Versus Collective Rights (Orbis Books 1999) 169, 170.
Elvin Hatch, Culture and Morality: The Relativity of Values in Anthropology (Columbia University Press 1983) 8. See also American Anthropological Association, ‘Statement on Human Rights’ (1947) 49 American Anthropologist 539; Mutua (n 24) 170.
Makau Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) 42(1) Harvard International Law Journal 201, 220.
Ann-Belinda S. Preis, ‘Human Rights as Cultural Practice: An Anthropological Critique’ (1996) 18 Human Rights Quarterly 286, 293.
On the debate about the meaning of ‘culture’, see Preis (n 27) 294; Robert Redfield, Ralph Linton and Melville J. Herskovits, ‘Memorandum for the Study of Acculturation’ (1936) 38(1) American Anthropologist 149–152; Gregory Bateson, ‘Culture Contact and Schismogenesis’ (1935) 35 Man 178–183; Alison Dundes Renteln, ‘The Unanswered Challenge of Relativism and the Consequences for Human Rights’ (1985) 7(4) Human Rights Quarterly 514; Alison Dundes Renteln, ‘Relativism and the Search for Human Rights’ (1988) 90(1) American Anthropologist 56; Alison Dundes Renteln, International Human Rights: Universalism Versus Relativism (Quid Pro 2013); see also Preis (n 27) 310; Ann-Belinda S. Preis called for a paradigm shift – ‘poststructuralist and postmodernist work in sociology and anthropology must now begin to make substantial inroads into the analysis of human rights’.
Ebow Bondzie-Simpson, ‘A Critique of the African Charter on Human and People’s Rights’ (1988) 31 Howard Law Journal 643, 654–655.
‘The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries and, in particular, to include the study thereof [if possible] in their programmes of … civilian instruction, so that the principles thereof may become known to the entire population’. See also Etienne Kuster, ‘Promoting the Teaching of ihl in Universities: Overview, Successes, and Challenges of the icrc’s Approach’ (2018) 9 Journal of International Humanitarian Legal Studies 61.
See Gustavo Gozzi, ‘The Particularistic Universalism of International Law in the Nineteenth Century’ (2010) 52 Harvard International Law Journal 73, 86; Mutua (n 26) 221.
Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2004).
Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–1933 (Cambridge University Press 2015) 13; Anne-Charlotte Martineau, ‘Overcoming Eurocentrism? Global History and the Oxford Handbook of the History of International Law’ (2014) 25(1) European Journal of International Law 329, 335; Franziska Dübgen and Stefan Skupien, ‘Das Politische in der Afrikanischen Philosophie’ in Franziska Dübgen and Stefan Skupien (eds), Afrikanische Politische Philosophie: Postkoloniale Positionen (Suhrkamp Verlag 2015) 9.
Mutua (n 26) 221.
Martti Koskenniemi, ‘Histories of International Law: Dealing with Eurocentrism’ (2011) 19 Rechtsgeschichte 152, 171; Jakob Zollmann, ‘African International Legal Histories – International Law in Africa: Perspectives and Possibilities’ (2018) 31 Leiden Journal of International Law 897, 913; Dipesh Chakrabarty, Provincializing Europe. Postcolonial Thought and Historical Difference (Princeton University Press 2000). See also Jakob Zollmann, ‘African International Legal Histories – International Law in Africa: Perspectives and Possibilities’ (2018) 31 Leiden Journal of International Law 897, 914.
James Thuo Gathii, ‘twail: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography’ (2011) 3(1) Trade Law and Development 26, 43; Antony Anghie and B.S. Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’ (2003) 2 Chinese Journal of International Law 77, 79.
Tom Zwart, ‘Safeguarding the Universal Acceptance of Human Rights Through the Receptor Approach’ (2014) 36(4) Human Rights Quarterly 898.
Tom Zwart, ‘Using Local Culture to Further the Implementation of International Human Rights: The Receptor Approach’ (2012) 34(2) Human Rights Quarterly 546, 561.
ibid 552.
ibid 553.
See Josiah A.M. Cobbah, ‘African Values and the Human Rights Debate: An African Perspective’ (1987) 9 Human Rights Quarterly 309, 320; Thandabantu Nhlapo, ‘The African Customary Law of Marriage and the Rights Conundrum’ in Mahmood Mamdani, Beyond Rights Talk and Culture Talk: Comparative Essays on the Politics of Rights and Culture (Palgrave Macmillan 2000) 136, 142; Zwart (n 38) 555.
See Geneva Call, ‘In Their Words: Perceptions of Armed Non-State Actors on Humanitarian Action’ (2016) 13 <genevacall.org/wp-content/uploads/2019/05/WHS_Report_2016_web.pdf>.
Touré and Vascotto (n 5).
Abdullahi Ahmed An-Na’im, ‘Globalization and Jurisprudence: An Islamic Law Perspective’ (2005) 54 Emory Law Journal 25, 29.
Mutua (n 26) 208; See also Adamantia Pollis and Peter Schwab, ‘Human Rights: A Western Construct with Limited Applicability’ in Adamantia Pollis and Peter Schwab, Human Rights: Cultural and Ideological Perspectives (Praeger 1979); Asmarom Legesse, ‘Human Rights in African Political Culture’ in Kenneth W.Thompson, Moral Imperatives of Human Rights: A World Survey (University Press of America 1980) 123, 124; Raimundo Panikkar, ‘Is the Notion of Human Rights a Western Concept?’ (1982) 30 (120) Diogenes 86; Paulin J. Hountondji, ‘The Masters Voice-Remarks on the Problem of Human Rights in Africa’ in Paul Ricaeur, Philosophical Foundations of Human Rights (unesco 1988) 23; Dustan M. Wai, ‘Human Rights in Sub-Saharan Africa’ in Adamantia Pollis and Peter Schwab, Human Rights: Cultural and Ideological Perspectives (Praeger 1979) 115; Rhoda E. Howard, ‘Cultural Absolutism and the Nostalgia for Community’ (1993) 15 Human Rights Quarterly 315.
Mutua (n 26) 245.
ibid 245 (emphasis added).
Ezequiel Heffes, ‘Non-State Actors Engaging Non-State Actors: The Experience of Geneva Call in niacs’ in Ezequiel Heffes, Marcos Kotlik and Manuel Ventura (eds) International Humanitarian Law and Non-State Actors: Debates, Law and Practice (Springer 2020) 427–451.
Andrew Clapham, ‘Detention by Armed Groups under International Law’ (2017) 93 International Legal Studies 1, 26.
ibid 27.
Michaela Hailbronner, ‘Laws in Conflict: The Relationship Between Human Rights and International Humanitarian Law Under the African Charter on Human and Peoples’ Rights’ (2016) 16 African Human Rights Law Journal 339, 360.
Clapham (n 49) 22; see Greenwood (n 10).
Daragh Murray, ‘Engaging Armed Groups Through the Development of Human Rights Obligations: Incorporating Practice, Motivation and Ideology to Promote Compliance with International Law’ (2016) 19 Yearbook of International Humanitarian Law 121.
ibid; see also Marianne C. Ferme and Danny Hoffman, ‘Hunter Militias and the International Human Rights Discourse in Sierra Leone and Beyond’ (2004) 50 Africa Today 73, 79.
See Jeanne M. Woods, ‘Rights as Slogans: A Theory of Human Rights Based on African Humanism’ (2002) 17 National Black Law Journal 52, 54.
Clapham (n 49) 28.
Bellal (n 8).
ibid; see Annyssa Bellal and Ezequiel Heffes, ‘Yes, I Do’: Binding Armed Non-State Actors to ihl and Human Rights Norms Through Their Consent’ (2018) 12(1) Human Rights & International Legal Discourse 120.
See also Bellal (n 8) 57.
ibid.
ibid.
See the deeds of commitment on protection of children in armed conflict; sexual and gender-based violence; and anti-personnel mines here: Geneva Call, ‘Deed of Commitment Under Geneva Call for the Protection of Children from the Effects of Armed Conflict’ (December 2012) <genevacall.org/wp-content/uploads/dlm_uploads/2013/12/DoC-Protecting-children-in-armed-conflict.pdf>; Geneva Call, ‘Deed of Commitment Under Geneva Call for the Prohibition of Sexual Violence in Situations of armed conflict and Towards the Elimination of Gender Discrimination (December 2012) <genevacall.org/wp-content/uploads/dlm_uploads/2013/12/DoC-Prohibiting-sexual-violence-and-gender-discrimination.pdf>; Geneva Call, ‘Deed of Commitment Under Geneva Call for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action’ <genevacall.org/wp-content/uploads/dlm_uploads/2013/12/DoC-Banning-anti-personnel-mines.pdf>.
Lawrence Hill-Cawthorne, Detention in Non-International Armed Conflict (Oxford University Press 2016) 220.
ibid.
ibid; Daragh Murray, ‘Non-State Armed Groups, Detention Authority in Non-International Armed Conflict, and the Coherence of International Law: Searching for a Way Forward’ (2017) 30 Leiden Journal of International Law 435, 453.
See African Union, ‘Agenda 2063: The Africa We Want’ Background Note (2015) <au.int/sites/default/files/documents/33126-doc-01_background_note.pdf>.
African Union, ‘Agenda 2063: The Africa We Want’ (2015) <https://www.tralac.org/images/docs/8260/background-note-on-agenda-2063-september-2015.pdf>.
See Gus Waschefort, ‘Africa and International Humanitarian Law: The More Things Change, the More They Stay the Same’ (2016) 98(2) International Review of the Red Cross 593, 617.
See Mubiala (n 4); Hyeran Jo, ‘Compliance with International Humanitarian Law by Non-State Armed Groups: How Can It Be Improved?’ (2016) 19 Yearbook of International Humanitarian Law 71.
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] icj Rep 226, 478 (Weeramantry J).
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] icj Rep 226, 478 (Weeramantry J); Geza Herczegh, Development of International Humanitarian Law (Akademiai Kiado 1984) 14; See Sir Christopher Greenwood, ‘Human Rights and Humanitarian Law – Conflict or Convergence’ (2010) 43 Case Western Reserve Journal of International Law 491, 495.
Greenwood (n 71) 495.
Diallo (n 23); Bello, African Customary Humanitarian Law (n 23); Bello, ‘A Proposal for the Dissemination’ (n 23); Wodie (n 2); Mubiala (n 4); Waschefort (n 68) 595.
Antoine Sohier, Traité élémentaire du droit coutumier du Congo Belge (Larcier 1955).
ibid; Mubiala (n 4); Kéba M’Baye and Birame Ndiaye, ‘The Organization of African Unity (oau)’ in Karel Vasak, The International Dimensions of Human Rights (unesco 1982).
Emmanuel G. Bello, ‘Shared Legal Concepts between African Customary Norms and International Conventions on Humanitarian Law’ (1984) 23 Military Law and Law of War Review 286; George Okoth-Obbo, ‘“Traditional” African Humanitarian Law and the Other Issues Concerning the Humanitarian Law’ (1988) 4 Lesotho Law Journal 199.
Mubiala (n 4) 39.
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] icj Rep 226, 478 (Weeramantry, J) 480; Herczegh (n 71) 14; Yolande Diallo, Traditions africaines et droit humanitaire (Genève Comité International de la Croix-Rouge 1978) 16; Emmanuel G. Bello, African Customary Humanitarian Law (icrc 1980); see also Yolande Diallo, ‘African Traditions and Humanitarian Law’ (1976) 16 (185) International Review of the Red Cross 387, 394.
Kéba M’Baye, Les droits de l’homme en Afrique (Pedone and International Commission of Jurists 1992); Fatsah Ouguergouz, La Charte africaine des droits de l’homme et des peuples. Une approche juridique entre tradition et modernité (Presses Universitaires de France 1993); Mubiala (n 4) 38–9.
Bello (n 76) 290.
ibid 291.
ibid 292.
ibid 295.
Ferme and Hoffman (n 54) 81.
UN ecosoc, ‘Initial Report of the Special Rapporteur on the Situation of Human Rights in Burundi’ (1996) UN Doc E/CN.4/1995/15/Add.1, 19–20.
Agnes Nindorera, ‘Ubushingantahe as a Base for Political Transformation in Burundi’ (Boston Consortium on Gender, Security and Human Rights, Working Paper No. 102/2003, 2003) <genderandsecurity.org/sites/default/files/ubushingantahe_as_a_base_for_political_transformation_in_burundi_2.pdf>. See also, the Gacaca court system of community justice inspired by Rwandan tradition – Jacques Fierens, ‘Gacaca Courts: Between Fantasy and Reality’ (2005) 3(4) Journal of International Criminal Justice 896. See, more generally on the topics of transitional justice – Ruti Teitel, Transitional Justice (Oxford University Press 2000).
Yolande Diallo, ‘Humanitarian Law and Traditional African Law’ (1976) International Review
of the Red Cross 16, 57.
ibid; Mubiala (n 4) 39.
Diallo, ‘African Traditions and Humanitarian Law’ (n 78) 394.
Mubiala (n 4) 39.
ibid.
Adamou Ndam Njoya, ‘The African Conception’ in unesco, International Dimensions of Humanitarian Law (Martinus Nijhoff 1988) 11.
Musa Yusuf Hussein, Mohammed Abdilaani Riraash and Ibrahim Haji M. Wa’ais, Spared from the Spear. Traditional Somali Behaviour in Warfare (International Committee of the Red Cross 1998) 5.
ibid 2.
ibid 7.
ibid 9.
ibid 24.
ibid.
ibid 25.
ibid.
Hyeran Jo, ‘Compliance with International Humanitarian Law by Non-State Armed Groups: How Can It Be Improved?’ (2016) 19 Yearbook of International Humanitarian Law 71.
ibid.
Ferme and Hoffman (n 54) 79.
Corri Zoli, M. Cherif Bassiouni and Hamid Khan, ‘Justice in Post-Conflict Settings: Islamic Law and Muslim Communities as Stakeholders in Transition’ (2017) 33 (85) Utrecht Journal of International and European Law 38, 42; see Mashood Baderin, International Human Rights and Islamic Law (Oxford University Press 2005); James Cockayne, ‘Islam and International Humanitarian Law: From a Clash to a Conversation between Civilizations’ (2005) 84 International Review of the Red Cross 597.
ibid.
Touré and Vascotto (n 5).
Zwart (n 38) 548.
See also Geneva Call, ‘In Their Words: Perceptions of Armed Non-State Actors on Humanitarian Action’ (2016) <genevacall.org/wp-content/uploads/2019/05/WHS_Report_2016_web.pdf>.
See Erin K. Baines, ‘The Haunting of Alice: Local Approaches to Justice and Reconciliation in Northern Uganda’ (2007) 1 The International Journal of Transitional Justice 91, 107; Frédéric Megret, ‘Is There Ever a ‘Right to One’s Own Law’? An Exploration of Possible Rights Foundations for Legal Pluralism’ (2012) 45(1) Israel Law Review 3, 12, 31; David Pimentel, ‘Legal Pluralism in Post-Colonial Africa: Linking Statutory and Customary Adjudication in Mozambique’ (2011) 14 Yale Human Rights and Development Law Journal 59, 70; Lindsay Short, ‘Tradition versus Power: When Indigenous Customs and State Laws Conflict’ (2014) 15(1) Chicago Journal of International Law 376, 390.
See Hussein, Riraash and Wa’ais (n 93) 17.
Baines (n 109) 114.
Zwart (n 38) 558.
Barbara Meier, ‘“Death Does Not Rot”: Transitional Justice and Local “Truths” in the Aftermath of the War in Northern Uganda’ (2013) 2 Africa Spectrum 25, 28; Pimentel (n 109) 71.
See also John D. Jackson, ‘Finding the Best Epistemic Fit for International Criminal Tribunals: Beyond the Adversarial-Inquisitorial Dichotomy’ (2009) 7 Journal of International Criminal Justice 17; Kai Ambos, ‘International Criminal Procedure: ‘Adversarial’, ‘Inquisitorial’ or Mixed?’ (2003) 3 International Criminal Law Review 1.
Antony Anghie and B. S. Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflict’ (2004) 36 Studies in Transnational Legal Policy 185, 203.
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] icj Rep 226, 478 (Judge Weeramantry); Herczegh (n 71) 14.
Abdullahi Ahmed An-Na’im, ‘Globalization and Jurisprudence: An Islamic Law Perspective’ (2005) 54 Emory Law Journal 25, 29.
ibid 221.
Zwart (n 37) 898.
Zwart (n 38) 561.
ibid 553.
The limited international law making power of non-state actors has been explored elsewhere: see Cedric Ryngaert, ‘Non-State Actors in International Law: A Rejoinder to Professor Thirlway’ (2017) 64 Netherlands International Law Review 155; Cedric Ryngaert, ‘Non-State Actors: Carving out a Space in a State-centred International Legal System’ (2016) 63 (2) Netherlands International Law Review 183, 188; see also Philip Alston, Non-state Actors and Human Rights (Oxford University Press 2005); Jean d’Aspremont, Participants in the International Legal System Multiple Perspectives on Non-State Actors in International Law (Routledge 2011); Katharine Fortin, The Accountability of Armed Groups Under Human Rights Law (Oxford University Press 2017); Noemie Gal-Or N, Cedric Ryngaert and Math Noortmann, Responsibilities of the Non-State Actor in Armed Conflict and the Market Place: Theoretical Considerations and Empirical Findings (Brill Nijhoff 2015); Jean-Marie Henckaerts, Louise Doswald-Beck and Carolin Alvermann, Customary International Humanitarian Law (Cambridge University Press, 2005); Kimberley Trapp, ‘Shared Responsibility and Non-State Terrorist Actors’ (2015) 64 Netherlands International Law Review 141.
Zoli, Bassiouni and Khan (n 104) 52.
Mutua (n 26) 221.
See also, Jane McAdam and Elizabeth Ferris, ‘Planned Relocations in the Context of Climate Change: Unpacking the Legal and Conceptual Issues’ (2015) 4 (1) Cambridge Journal of International and Comparative Law 137–166; Bruce Burson, Walter Kälin, Jane McAdam and Sanjula Weerasinghe, ‘The Duty to Move People Out of Harm’s Way in the Context of Climate Change and Disasters’ (2018) 37 Refugee Survey Quarterly 379–407.