The importance of International Humanitarian Law in Africa – Some thoughts for Africa Day
25-05-2005 by Lynn Zhandire
As we celebrate Africa Day this year, we again have an opportunity to reflect on its significance. For me, this is a time to contemplate our common identity as Africans – for I firmly believe that we have strong bonds of kinship despite our cultural and ethnic diversity. Lynn Zhandire is officer in the office of the legal counsel of the African Union (Addis Ababa, Ethiopia).
Africa Day is, equally, a time to assess where we mean to go as a continent, and this is a complex matter, covering all aspects of our human experience, endeavour and aspirations.
I believe that development is perhaps one of the most important of our continuing endeavours and that, in our reflection, we should devote some time to pondering the obstacles that slow our progress as African people. Arguably one of the greatest challenges today is that posed by armed conflicts and the suffering which inevitably accompanies them. In this connection, a pragmatist has observed that all the realities of war should be accepted as “par for the course”. I am unable to agree with this sentiment, but what, in any event, can be done to mitigate the suffering that attends these circumstances?
The answer is that greater effort should be expended in promoting respect for international humanitarian law (IHL), namely the laws that, during wartime, seek to protect those who are not or are no longer taking part in hostilities and which govern the means and methods of warfare. If properly respected, IHL results in the protection, to the extent practically possible, of non-combatants, as well as the preservation of the symbols of our heritage. The tragedy unfolding in the Sudan, mightily demonstrated by its effects on the civilian population, is testimony to the fact that the value of IHL cannot be over-stressed.
Disappointingly, many are still of the view that IHL is not a priority and that there are many more pressing issues on the African agenda. However, if we accept that conflict and its effects are major obstacles to development, we must also accept that it costs us dearly to ignore the role of IHL.
And yet, there are indications which lead me to hold out hope and believe that African countries are becoming more aware of the effectiveness of IHL if properly applied and respected:
In the negotiations leading up to the adoption of the Ottawa Treaty of 1997 banning, among other things, the use, production and stockpiling of anti-personnel mines, African countries played a prominent role. The result of these negotiations was a comprehensive legal instrument containing a veritable plan of action aimed at ending the use of anti-personnel mines and at their removal from military arsenals.
Article 4(h) of the Constitutive Act of the African Union (AU) allows the AU to intervene in a Member State in the event of grave circumstances (such as war crimes, genocide and crimes against humanity). Quite apart from being a unique provision in the founding document of an intergovernmental organisati on, article 4(h) lays to rest – at least for the AU – the legal difficulties associated with the so-called principle of humanitarian intervention and sanctions intervention to assist the victims of these most egregious violations of IHL.
The Rome Statute of the International Criminal Court (the Statute) finally entered into force on 1 July 2002, creating an international regime for the repression of serious violations of the laws of war. As of now, African countries have the largest representation in the Assembly of States Parties to the Statute, with 27 countries having ratified the Statute. This amounts to just over half of the membership of the AU.
In two of the matters in which the Court has so far taken an interest, this has been done at the request of the governments concerned, namely the DRC and Uganda. This is further evidence of growing concern that the rules of IHL should be enforced.
There are many other examples in the same vein. Suffice it to say that these are indeed very encouraging signs. The challenge now is to continue the momentum and harness the support of all partners, including the ICRC, in working for a greater respect for humanitarian law and principles and towards their more effective integration into African discourse and practice. My wish is that, one Africa Day in the near future, we will as a continent, have made progress towards realising this critical objective and will, in this way, free ourselves to confront more concertedly the other problems that threaten to undermine our collective well-being.