The silence of Africa in the international humanitarian law debate

• Author: Mutuma, K.W.
• DOI: https://doi.org/10.47348/AYIH/2021/a5
• Published date: 15 December 2022
• Date: 15 December 2022
• Citation: (2021) African Yearbook on International Humanitarian Law 134
• Pages: 134-149

134

https://doi.org/10.47348/AYIH/2021/a5

The silence of Africa in the

international humanitarian law

debate

Kenneth Wyne Mutuma*

Abstract

International human itarian law (IHL), as a component of international

law, specically seeks to l imit the effects of wa rfare. The law of wars ai ms

to limit suffer ing by regulating how war is fought. D espite the universal

nature of most rules of IH L, Africa has been largely lef t behind, especially

in the development of these laws and also i n understanding and applying

such laws on the continent. Notably, Africa has had its fa ir share of armed

conicts over the year s, the effects of which have bee n devastating.

However, there has been a disconnec t between the development and the

application of the rules of IHL i n Africa. The hi story of Africa has led

to the continent being discon nected from the development of IHL over

the years. This a rticle, therefore, aims to i llustrate the gaps that exist i n

regard to Africa i n the development of IHL as well as the exclusion of

Africa’s concerns from t he global IHL debate. The art icle considers why

there is regional di sengagement when it comes to IHL debates on the

continent. This is done by rst e xamining the re ality of wars in A frica,

which are simila r to those that have occurred i n other parts of the world.

The article then con siders the development of IHL as a body of inter national

law that regulates armed c onicts and the gaps that exist in its applicat ion

to and development in Africa. Fi nally, this article reec ts on some of the

ways of ensuring t hat Africa does not remai n passive when engaging in

the global IHL debate.

Keywords: international humanitar ian law (IHL), Africa, development

of IHL in Africa, a rmed conicts, traditional A frican law

1 THE REALITY OF WARS IN AFRICA

As wars have been a reality si nce the beginning of human ex istence,

IHL rules have become universa l,1 with the Geneva Conventions being

ratied by every state, a milestone that is seldom achieved by most

* BA Law LLM PhD, Senior Le cturer at the Univers ity of Nairobi. Email:

wyneken neth@gmai l.com

1 Michelle Mack Increasing Re spect for International Humanitar ian Law in Non-Inter-

national Armed Conict s (2008).

(2021) African Yearbook on International Humanitarian Law 134

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AFRICA IN THE INTERNATIONAL HUMANITARIAN LAW DEBATE 135

https://doi.org/10.47348/AYIH/2021/a5

international convent ions.2 Over the years, a rmed conicts have often

occurred in A frica. From the pre-colonial per iod through the colonial

period up to the post-colonial period, war has had over whelming

effects on the Af rican population. Most cases of armed con ict in

recent Africa are dr iven by prospects of political power and economic

gain, where armed groups seek to acquire t he available resources, assert

their ideologies and address their gr ievances.3 The Democrat ic Republic

of Congo (DRC), Sudan, Somalia and Libya are prime exa mples of

countries that have experienced some of the worst forms of ar med

conict on the continent. The occur rence of this armed conict

requires us to ask what rules regu lated such situations for Africa before

the development of conventional international humanitarian law

(IHL), which is the body of law that relates to armed conict.

Before the development and codication of modern conventional

IHL rules, wars st ill occurred. A frican societies were g reatly shaped

and guided by customs and trad itions that were largely inuenced

by the virtues of huma nism and pragmatism during the pre- colonial

period .4 These traditions were mainly common to the diffe rent African

communities, which were organised according to hiera rchy and

endorsed fairly similar values. T hese traditions and customs greatly

inuenced the legal system for most Africa n countries over the years and

this was reected in va rious aspects of life, including conict situations.

Therefore, Africans enjoyed rights and sim ilarly had obligations that

were shaped by oral traditions and African traditional religion.5 As there

was respect for one another and human life was va lued, the application

and implementation of the traditions and customs called for protection

and rehabilitation rather than repression.6

Contrary to popular bel ief that Africa was ‘unciv ilised’ and

characterised by barba ric behaviour, for many African commun ities,

war was not a normal state of affairs but rather a last res ort since

many communities were profoundly devoted to peace.7 Instances of

2 Christopher J Greenwood ‘ Historical Development and L egal Basis’ in Dieter

Fleck (ed) The Handbook of International Humanitarian Law 2 ed (2008).

3 Ali Mazr ui ‘Conict in A frica: An Over view’ Keynote speec h, in the proceeding s

of the international con ference on African conict s: management, resolution,

post-conict re covery and development, 29 November to 1 Dec ember 2004,

Addis Ababa, Ethiopia.

4 Emmanuel Bello Af rican Customary Humanitarian Law (1980) 19.

5 M Kalongo ‘Individua lisation et Collect ivisation Du Rappor t Juridique de

Responsabilite’ Civ ile En Droit Prive’ Zai’roi’ (1972) 1 Annales de la Facultide

Droit 39– 40.

6 Mutoy Mubiala ‘African States and the P romotion of Humanitarian Pri nciples’

(1989) 29 International Revie w of the Red Cross 93 at 94.

7 Yolande Diallo ‘Humanita rian Law and Traditional Africa n Law’ (1976) 16:176

International Re view of the Red Cross 57.

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