Does International Humanitarian Law reflect African customs and traditions? A spotlight on the ICRC’s Tool on African values in war

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.

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Image Credit: The IHL Customary Law Tool, ICRC

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^[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.  

Looking Back to Old Laws and Customs of War in Ethiopia: Establishing Groundwork for Further Research

Authors: Eyuel Zelalem and Michael Mengistu

Painting by:

Studying the history of existing laws helps in understanding its relationship with its subjects. When it comes to International Humanitarian Law (hereafter IHL), it is equally important to understand the laws and customs of war of the past to understand the contemporary normative rules of war. In this regard, there is a well-established research in the history of the laws and customs of warfare in Europe where the modern humanitarian laws emerged. Researches on traditional rules of warfare in some African States such as Somalia have also been carried out by the International Committee of the Red Cross. However, very little is known about old laws and customs of war in Ethiopia. This blogpost explores the Ethiopian experience to motivate readers to conduct further research on the issue. It does so by first discussing the laws and customs of war that existed in Europe and other civilizations that flourished in various parts of the world such as the Pacific Islands and Africa. 

Laws and customs of war in Europe, the Pacific Islands and Africa before the 19th century

Due to the recurrence of war and violence in ancient times, long before the development of modern international legal and institutional framework for IHL, societies had to come up with limitations on the conduct of war which is often called “cultural regulation of violence”. These self-imposed codes of conducts/limitations of war originate from cultures of the war-making societies.^[1] When it comes to Europe, these limitations, having their roots from the codes of chivalry and rules of Christendom, were existent since ancient times.^[2] For example, Western scholars in European medieval and classical period were concerned with defining what a just war (Jus ad bellum) was and developing the principles of just war which are still applicable to this day.  

In general, having a look at the development of the laws and customs of war in Europe point to three principles that contributed to its growth. First, the principle that a belligerent should be justified in applying force which is necessary for the realization of the purpose of war.^[3] Second, the principle of humanity at work which says that all such kinds and degrees of violence which go beyond overpowering the opponent should not be permitted to a belligerent person.^[4] Third and lastly, the principle of chivalry which arose in the Middle Ages and introduced a certain amount of fairness in offence and defense, protection of non-combatants from pillages, and a certain mutual respect.^[5]

The origins of these principles, however, are not confined to Europe but were also evident as the customs of war of other ancient civilizations. Ancient civilizations such as the pacific societies had imposed limitations on the conduct of war that resembled the modern principles of IHL.^[6] For example, the Fijian society used weapons as a means of attack only when “this was deemed necessary upon provocation”.^[7] Similarly and interestingly, African tribes that lived in the present days of Ghana, Somalia, and the Sahel region had traditional customs of war that were almost similar to the rules of IHL under the Geneva conventions.^[8] Were there similar laws and customs of war in Ethiopia?

Laws and customs of war in Ethiopia before the 20th century

Ethiopia is a party to the four Geneva Conventions on the laws and customs of war and the additional protocols to the Geneva Conventions. However, very little is known about the rules of war that used to exist in Ethiopia before the ratification of these Conventions in 1969. In order to understand the rules of war that existed in the country before the 20^th century, we believe that researchers need to look at the history, governance systems, and laws – both customary and written – of the various civilizations that flourished in Ethiopia. Accordingly, the first document that should be studied to understand these laws and customs of war, we believe, is the Fetha Negest (Law of the Kings) since it served as the law of the courts of the Emperors of Ethiopia who had the final say in all matters including warfare and justice. 

The Fetha Negest says little on the rules of warfare. However, it tries to govern some aspects of war in a haphazard manner such as the treatment of captives of war. For example, it states: “At the beginning of creation, all men were free. But war and raids bring them to serve others, since the law of war is that conquest makes the conquered slaves of the conqueror”.^[9] This reads as if the rules of war in the courts of Ethiopian emperors were opposed to the laws and customs of war that we have now. But can we reach conclusions about the old laws and customs of war in Ethiopia based on the Fetha Negest? Albeit the fact that the Fetha Negest incorporated such kinds of provisions, research show that customs of war that resembled contemporary normative rules of armed conflict existed in Ethiopia. For instance, Donald N. Levine wrote that during the Gondarine period (1632 – 1769 AD):

[The] Echage Bet [of the Ethiopian Orthodox Church] was reserved for the … monk who served as administrative head of the Church. […] The Echage Bet and the church compounds were considered sanctuaries and thus, in theory at least, were secure from plunderers. The Gondares and wealthy people from the country used these areas as a safety vault for their valuables.^[10]

This customary understanding of the rules of war is in line with today’s customary international humanitarian law protection of religious buildings from military attack. In addition, according to Nega Ewnetie, some Emperors of Ethiopia even tried to reform the rule of the Fetha Negest that concerned captives of war in favor of humanitarian concerns. For instance, Emperor Tewodros II (1855-1868 AD) tried to abolish the practice of selling captives of war into slavery.^[11] He also mentions that Emperor Tewodros’s court decisions over war related cases considered aspects that we have under normative IHL rules.^[12] Moreover, if we turn to Western Ethiopia, we will find that  the Nuer of the Gambella region observed a rule of war that protected villages which are “home” to Nuers’ god of war, Wiw, from forceful eviction even if the dwellers of the villages were defeated in battle.^[13]  As a result, there may have been a mix of modern and old understandings of the laws of warfare, at least in some parts of Ethiopia, before the ratification of the Geneva Conventions. Nevertheless, further research on this issue is needed to bring a clear understanding about the history of laws and customs of war in Ethiopia. In conclusion, various research show that there were laws and customs of war in Ethiopia before the 20th century. Some of these rules might not have been in line with today’s humanitarian law while other customs resembled contemporary armed conflict rules. However, thorough research has to be conducted in order to clearly understand the regulation of hostilities that used to exist in Ethiopia before the 20th century. 

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^[1] Michael Howard “Constraints on Warfare” in Michael Howard, George J. Andrepoulos, and Mark R. Shulman “The Laws of War; Constraints on Warfare in the Western World”, (1994), p.2.

^[2] Id. p.1.

^[3] Lassa Francis Oppenheim, International Law: A Treatise: War and Neutrality, Volume II, (1912), p. 226.

^[4] See ibid.

^[5] Id, p. 227. See also Robert C. Stacy “The Age of Chivalry” in Michael Howard, George J.Andrepoulos, and Mark R. Shulman “The Laws of War; Constraints on Warfare in the Western World”, (1994), pp. 34 – 36.

^[6] International committee of the Red Cross, Under the Protection of the Palm: War of Dignity in the Pacific, (2009), p.9.

^[7] Ibid p.14. 

^[8] International committee of the Red Cross, African Values in War: A tool on Traditional Customs and IHL, <https://www.icrc.org/en/document/african-customs-tool-traditional-customs-and-ihl> last accessed on 28 July, 2021.

^[9] A.L. Gardiner, “The Law of Slavery in Abyssinia”, Journal of Comparative Legislation and International Law, vol. 15 no. 4, (1933), p.196.

^[10] Donald N. Levine, Wax and Gold: Tradition and Innovation in Ethiopian Culture, (1965), p. 41.

^[11] Nega Ewnetie Mekonnen, “የዓለም አቀፍ የሰብአዊነት ሕግጋትና መርኆች በዳግማዊ አጼ ቴዎድሮስ የጦር ሜዳ ውሎዎችና ውሳኔዎች ውስጥየነበራቸው ቦታ”, Bahir Dar University Journal of Law, Vol. 6 No. 2, (2016), p.347.

^[12] See ibid.

^[13] Dereje Feyissa, “Customary Dispute Resolution Institutions: The Case of the Nuer of the Gambella Region” in Alula Pankhurst and Getachew Assefa “Grass-Roots Justice in Ethiopia”, <https://books.openedition.org/cfee/494>  last accessed on 27 July, 2021. 

Authors’ Bio

Eyuel Zelalem Abebe: Eyuel received his LL.B. from Addis Ababa University in 2018. He is now working as a Desk officer at the Coalition of Civil Society Organizations for Elections (CECOE).

Michael Mengistu Woldeyes: Michael received his LL.B. from Addis Ababa University in 2018. He is now studying for his master’s in human rights law at the University of Groningen. 

(Re)visiting the Relationship Between International Humanitarian Law and the Crime of Aggression

By Emmanuel Maphosa

Photo Credit: Tom Stoddart Copyright: Getty Images/ICRC

Africa is in the process of making modifications on the definition of the crime of aggression, with possible implications on the scope of international humanitarian law (IHL) application. The application of IHL could soon be considered without going through the traditional classification criteria in non-international armed conflicts (NIACs) with regard to the crime of aggression in Africa.

The prospects of modifying the definition to qualify attacks by non-state actors as acts of aggression is a departure from a static and outdated approach to aggression. This is also an attempt to prevent an otherwise conduct of hostilities level of violence going unchecked for a considerable period.

The crime of aggression together with genocide, war crimes and crimes against humanity can be viewed as core international crimes in the public international law arena. One notable difference in those crimes is that the crime of aggression unlike the others is in the ius ad bellum (the law regarding resort to armed conflict) category. The others are in the ius in bello (the law governing conduct during the armed conflict) category.

At least from the Nuremberg Tribunal, attempts have been made to define and determine the scope of application of the crime of aggression. States have been identified as sole actors in the commission of the crime. Further, the crime is out of the ambit of IHL because ius ad bellum considerations are irrelevant in the interpretation or application of IHL. Therefore, the crime of aggression by itself is not a violation of IHL. It is the conduct after the crime has been committed that may amount to violations of the rules governing the conduct of hostilities. An act of aggression creates room for the commission of the other crimes.

The foregoing shows that an interconnectedness exists between the crime of aggression and other crimes. The connection is visible when an act of aggression results in an international armed conflict (IAC). On the other hand, the chain does not hold in NIACs. The evolution of armed conflicts and the desire of States in Africa, to find sustainable and tailored made solutions indicate that it will be naïve to maintain the traditional approach to the crime of aggression. In fact, Africa’s approach to the crime of aggression may serve as one of the African solutions to African problems.

Should the Protocol on the Amendments to the Protocol of the African Court of Justice and Human Rights (Malabo Protocol) come into force in its present form, or at least on the part on the crime of aggression, a mere invasion or attack by a non-state actor would qualify as an act of aggression. This progressive interpretation and development of international law demands a revisit on the relationship between IHL and the crime of aggression.  

Globally, the direct forms of aggression are committed by States and the indirect forms of aggression include inter alia, terrorist attacks and material support such as ideas, money and arms to a State committing an act of aggression. The defect of this view is that it excludes those providing material support as parties to a conflict. The view also fails to address the issue of whether the cross-border element of terrorist and insurgency acts qualify as acts of aggression. From the African perspective, terrorism and material could soon be considered as direct forms of aggression. In this regard, IHL would be activated early.

Material support may precede a violent attack or territorial invasion. Further, an act of aggression may occur within an ongoing armed conflict. This means IHL would once again be called upon to address the complexity caused by additional parties. Hence, IHL cannot afford to detach itself from acts of aggression. IHL should make some adjustments to keep up with the changing battlefield.

This article comes against the backdrop of violent and ῾terrorist᾿ attacks by non-state actors in various parts of Africa. For example, such attacks emerged in Mozambique in October 2017. The government classified them as violence against public order that required a law enforcement dimension response. Words such as ῾terrorism᾿ and ῾insurgency᾿ have been associated with the said situation. These are ῾transnational crimes᾿ which have actual or potential transboundary effects.

The violence in Mozambique has caught the attention of the Southern African Development Community (SADC) governments. On 17 August 2020, the 40^th SADC Summit of the Heads of State and Government committed to support the government of Mozambique in combating terrorism and violent attacks. While the classification of the conflict in Mozambique is beyond the scope of this article, it is worth considering whether IHL may in future be applicable earlier than expected in such situations. Reports that the Islamic State of Iraq and other foreign actors are actively involved in Northern Mozambique, ignite debate on whether acts of aggression exist in light of the modifications mentioned earlier.

How IHL responds to these ῾new wars᾿ is of essence. Acts of terrorism have caught the international eye, albeit with no link to the crime of aggression. At present, these acts are prosecutable before an international court if they amount to war crimes and crimes against humanity. This demonstrates that at some stage the acts trigger the application of IHL.

The challenge for IHL is that States and other international players are hesitant to activate its application where non-state actors are involved in attacks until the duration and intensity of attacks has reached a certain level. The Malabo Protocol on the other hand, presupposes the existence of an armed conflict from the onset under certain circumstances and a situation in which IHL would be activated automatically like in cases of IACs.

Arguably, an early qualification of a NIAC would be beneficial to non-state actors who would otherwise be deprived of protections accorded by IHL to those who are fighting. Likewise, civilians would enjoy without much delay the protections associated with the status of a civilian during armed conflicts.

Author’s Bio – Emmanuel Maphosa works for the International Committee of the Red Cross Regional Delegation for Southern Africa in Pretoria as a Program Adviser to the Armed and Security Forces Department. He is a holder of a Bachelor of Law Degree (LLB) from the University of Fort Hare and a Masters of Law Degree (LLM) with Specialization in Human Rights and Constitutional Practice from the University of Pretoria.