A critique often held is that international law and, in this case, specifically International Humanitarian Law (ihl) is based on western philosophies.1 One could argue that given the universal nature of the principles enshrined in the Geneva Conventions, it encompasses ideals of traditions and customs which transcend borders. However, a more nuanced understanding of the development of ihl in Africa presents compelling reasons as to why this criticism is well founded. Reflecting on the negotiations of the Geneva Conventions and the lack of African state participation, provides one such reason as to why there is a lack of ownership over this important body of law.2 Moreover as the status of African states in the international legal order changed alongside the development of contemporary ihl, many African states who had not benefitted from ihl during the fight for independence were now obligated to adhere to the same rules.3
As a means of better explaining the relevance and authority of ihl, the icrc undertook to examine the historical relationship between Africa and ihl, as reflected in traditional customs. With the objective that the resulting research could contribute to current debates on the relevance of ihl to Africa and thereby increase the understanding and acceptance of ihl rules on the African continent. From the research conducted it became evident that established norms that regulated the conduct of hostilities existed in many African tribes and cultures. In addition, it became clear that these norms or practices had broad connections with the general rules of modern-day ihl. This could
As the research provided some clarity into the norms of traditional African customs in war, it became important to conceptualize a means of showing the link between culture and law that would effectively contribute to current debates on relevance of ihl to Africa and to and increase understanding and acceptance of ihl rules on the African continent. The outcome was the production of the âTool on African Traditions and the Preservation of Humanity during Warâ, a resource with which to engage various audiences on the relationship between Africa and ihl. 5 The tool consists of 11 cards, highlighting firstly the African traditional custom in question, secondly the African tribes or cultures who have a history of practicing that traditional custom, and thirdly the related rule under modern-day ihl. The cards are available in various formats, including as playing cards, which can easily be shared with armed actors manning check points, for example. They are also available as post cards, which are useful in a pedagogical context, and finally in a poster format, so they can be showcased as part of a photo exhibit. The tool has also been adapted into additional formats which it is hoped will be beneficial in operational settings - these include a short video that can be used on social media but also shown by humanitarian actors to armed actors on a mobile device, as well as the inclusion of the Tool in a recently produced icrc notebook for armed actors in the field. Additionally, the Tool has been translated into French and Portuguese, with the intention to translate into further languages in the future. Additional research has been conducted and the Tool will be updated with further examples in 2024.
The Tool by no means reflects a different set of ihl norms to be respected. It is clear that contemporary ihl, both treaty and customary, is the definitive set of rules applicable today. Indeed, the hope is that by providing these examples and exploring the development of ihl on the Africa continent, the Tool will rather illustrate how ihl is relevant, and perhaps garner greater respect for the law, thereby contributing towards the reduction of suffering during times
- âIs it sufficiently convincing that by merely demonstrating the links between culture and law is an effective means of generating increased respect for the law? Does knowledge of such traditional norms actually contribute towards achieving the objectives of ihl? Does respect and implementation of ihl rules depend on such a clear correlation between the applicable rule and local customs?
- âWill the outcomes of this research actually contribute to mainstreaming ihl in Africa?
- âWhat do these examples illustrate on how wars were fought in pre-colonial Africa? Is there a link with how Africa engages in ihl today?
We hope to address some of these questions and offer reflections on the use of the Tool in the upcoming Volume 4 of The Laws of Yesterdayâs Wars.
Mutoy Mubiala, âInternational Humanitarian Law in the African Contextâ, in Monica Kathina Juma and Astri Suhrke (eds), Eroding Local Capacity: International Humanitarian Action in Africa, Nordiska Afrikainstitutet, Upsala, 2002, p. 48.
To illustrate, all of the 12 countries that signed the 1864 Geneva Convention at the conclusion of its negotiation were European. See
Gus Waschefort. âAfrica and international humanitarian law: The more things change, the more they stay the sameâ, above note 5, p.602â603.
Mutoy Mubiala, âInternational Humanitarian Law in the African Contextâ, above note 4, p. 37â39; Gus Waschefort, âAfrica and international humanitarian law: The more things change, the more they stay the sameâ above note 5, p. 597.