IHL in Africa: from rules to action
Experts and State representatives from 18 African countries gathered recently in Pretoria, South Africa, to review the ratification and implementation of international humanitarian law in the region and to discuss developments in the field of IHL.
Implementation of IHL in Africa
The “implementation of IHL” means ensuring full compliance – moving from theory to practice.
Between January 2011 and July 2012 Africa accounted for 41 out of 87 IHL ratifications but only four of the 49 IHL implementation laws passed worldwide. “States that have ratified IHL treaties must incorporate them into national legislation,” said Jürg Eglin, who heads the ICRC’s regional delegation in Pretoria. “Too many States take far too long to implement IHL.” South Africa’s Deputy Minister of International Relations and Cooperation Ebrahim Ebrahim agreed. “IHL remains critical in dealing with contemporary armed conflicts, but more must be done to enhance its effective implementation.”
National IHL committees
Some States create ‘national IHL committees’ to advise and assist their governments in implementing IHL.
Jamie Williamson, ICRC legal advisor in Geneva, explained that many African national IHL committees lacked resources, influence, technical expertise and continuity, with governments often seeing IHL treaties as low-priority. Uganda national IHL committee member Rachael Odoi Musoke added that a lack of awareness of IHL was hampering the work of her committee. “IHL isn’t well-known, but we’re trying to create awareness. Fortunately, several universities now have it as a core subject.”
Transitional justice and the elimination of impunity
Implementation also means ensuring punishment for war crimes and other violations of IHL.
Transitional justice is one method. Vagn Joensen, Judge President of the International Criminal Tribunal for Rwanda (ICTR), explained: "Transitional justice is a set of measures that redress the legacy of massive human rights violations. They can be judicial, such as prosecutions (usually of those most responsible), or non-judicial, such as peace and reconciliation commissions."
According to Joensen, international criminal tribunals can only prosecute the first tier of those suspected of war crimes or other atrocities (when a country is unable or unwilling). National courts must develop the capacity and impartiality to try the second tier. In some countries, a large percentage of the population is implicated at the bottom level. Here, truth and reconciliation commissions are necessary, to bring healing and the conditions for redevelopment.
IHL applies during armed conflicts, transitional justice afterwards. "They sort of feed on each other, because if IHL rules are observed, then there will be no transitional justice issues," Joensen said. "On the other hand, the threat of being held responsible before the courts, as a part of a transitional judgment, might also make parties more willing to respect their IHL obligations."
While the threat of prosecution can deter, courts must prosecute violations by both sides, to send a clear message that no party is above the law. "The Nuremburg and Tokyo tribunals only prosecuted the losing side," Joensen explained, "what we call ‘victor's justice’. If we can develop a system where those most responsible are prosecuted on both sides, it will have a much greater preventive effect."
The ICTR has helped Rwanda’s courts acquire the capacity to try cases, referring the first case to Rwanda in 2011 and seven more in 2012.
Overcoming challenges to the implementation of IHL
Regional inter-governmental cooperation
Regional organizations can make their structures and expertise available. "There is a need to use African Union and Southern Africa Development Community structures to reflect on the effective implementation of IHL in Africa,” said Mr Ebrahim.
There is still a need to raise awareness of IHL among bodies that can influence the enacting of IHL-related legislation and among local communities, especially those affected by armed conflict. If governments understand IHL better, they may implement it faster.
Support for IHL committees
National IHL committees in a region need to exchange information and experience. The regional seminar provided a good basis for that type of exchange, and will lead to further dialogue in the future.