Autor: Sarah Jean Mabeza

Image Credit: The IHL Customary Law Tool, ICRC

Is International Humanitarian Law (IHL) a Western concept?  This is a question that causes me, as an African IHL practitioner, great cause for concern, as I am convinced of the universality of this body of law.  But I must admit that while my answer to the question would be an adamant “no”, I do not blame those who ask it.  I recall the experience of a colleague who, attempting to convince a Chief in the Pacific Ocean Islands to ratify the 1949 Geneva Conventions, was asked by the Chief “but where is Geneva?” and “what is a convention?”.[1]  This story has always perturbed me, and as an African, I have wondered about the level of ownership over this important body of law from my own continent.

This lack of ownership could, to a certain extent, be understood.  Firstly, the codification of IHL was led by a select few States and centred in the West.[2]  Secondly, African States rarely benefited from the application of principles of IHL, both during the wars of colonization and decolonization on the continent.[3]  And yet despite this, reasons for increased African ownership of IHL exist. The aim of this contribution to is highlight just one of those reasons – the historical relationship that exists between Africa and the law of war.  Indeed, many African cultures have for decades, if not centuries, contained practices that share humanitarian values with modern day IHL provisions. 

In mid-2021 the ICRC launched a Tool to highlight the link between African traditions and customs and modern-day IHL – the ‘African Values in War Tool on Traditional Customs and IHL’.[4]  The tool is the product of a number of years of research into the values underpinning African customs concerning warfare, and is unique in that it collates practices from across the continent that reflect some of the fundamental principles of IHL.  According to one of the legal advisors who worked on the Tool, its purpose is “firstly to contribute to current debates on relevance of IHL to Africa; and secondly to increase understanding and acceptance of IHL rules on the African continent”.[5]  Overall, the ICRC hopes that this Tool may contribute to increased awareness of IHL and improved compliance with the body of law, which may then in turn ultimately contribute towards the reduction of suffering during times of armed conflict.    To illustrate its value, listed below are four of the collected traditions and customs that are geographically representative of the continent:

  • The Tallensi tribe in Ghana considered attacking, looting and pillaging of civilian property a violation of their dignity and a dishonourable act to be avoided; and the traditional rule which regulated the behavior of the Kamajors of Sierra Leone in warfare included the prohibition on looting villages.  These customs reflect the modern-day principle of IHL which states that pillage is prohibited.[6]
  • In the Oronn district in Nigeria when one town decided to go to war against another, two men were sent to lay a plantain leaf upon the road entering the town, signaling an official declaration of war and warning civilians of impending hostilities.  This practice reflects the modern-day principle of IHL which states that effective advanced warning of attacks which may affect the civilian population shall be given, unless circumstances do not permit.[7]
  • In Somalia it was strictly forbidden to desecrate the bodies of the enemy dead or take their possessions for personal gain.  This tradition reflects the modern-day principles of IHL which state that each party to the armed conflict must take all possible measures to prevent the dead from being despoiled, and that mutilation of dead bodies is to be prohibited.[8]
  • As a final example, Maasai warriors in Kenya wore distinctive armbands to distinguish themselves from the civilian population.  This reflects the modern day principle of IHL which states that in order to promote the protection of the civilian population from the effects of hostilities, combatants are urged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.[9]

Despite the clear links between the traditional practices mentioned above and contemporary principles of IHL, there is not always a direct correlation between the two.  For example, many of the traditional customs collected come from contexts of non-international armed conflicts, whereas some of the IHL principles referenced apply only in international armed conflicts.  Yet the value of the Tool lies in the fact that it provides clarity and confirmation that the rules contained in modern IHL are not foreign concepts in Africa.  

Does IHL reflect African customs and traditions?  To a certain extent, yes.  The Tool will need to be extended and updated in order to answer that question clearly, but for now, it certainly points to the existence of African values in war, which are reflective of contemporary principles of IHL.  As an African IHL practitioner, this gives me hope.

Image Credit: The IHL Customary Law Tool, ICRC

[1] Email exchange with Helen Durham, International Law and Policy Director, International Committee of the Red Cross; 17.08.2021.

[2] To illustrate, all of the 12 countries that signed the 1864 Geneva Convention at the conclusion of its negotiation were European.  See https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=120 (accessed 17.08.21).

[3] This contribution will not focus on the above-mentioned criticisms of IHL in Africa.  For more analysis on that topic, see G Waschefort, “Africa and international humanitarian law: The more things change, the more they stay the same”, International Review of the Red Cross, 2016, 98 (2), p. 603.

[4] ‘African values in war: A Tool on traditional customs and IHL’, https://www.icrc.org/en/document/african-customs-tool-traditional-customs-and-ihl (accessed 16.08.21).

[5] Interview with Tamalin Bolus, Legal Advisor, Pretoria Delegation, International Committee of the Red Cross; 12.08.2021; Pretoria, South Africa.

[6] See GC IV Art. 33(2); AP II Art. (4)(2)(g) and CIHL Rule 52. 

[7] See AP 1 Art. 57(2)(c) & CIHL Rule 20.  

[8] See for example GC I Art. 15(1); GC II Art. 18(1); GC IV Art. 16(2); AP I Art. 34(1); AP II Art. 8 & CIHL Rule 113.  

[9] See AP I Art. 44(3) & CIHL Rule 106. 

Author’s Bio

Sarah J Mabeza, ICRC Regional Legal Advisor, Pretoria Delegation, International Committee of the Red Cross; LLB (UKZN), LLM, Human Rights and Democratisation in Africa (CHR, UP); sarah.mabeza@outlook.com.  

The views expressed are those of the author and do not necessarily represent those of the ICRC.  

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Published by AAU-IHL Clinic