Laws of Yesterday’s Wars Symposium – East African Laws of War

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| Mar 31, 2023

African Masaai Warrior

Editor’s note: The following post highlights a chapter that appears in Samuel White’s edited volumes Laws of Yesterday’s Wars published with Brill. For a general introduction to the series, see Samuel White and Professor Sean Watts’s introductory post.


In our chapter for Volume 2 of The Laws of Yesterday’s Wars, we test the popular notion that African communities did not have humanitarian principles and were also incapable of understanding them. The chapter examines the East African traditional war customs and juxtaposes them with the contemporary IHL principles.

We consider examples from traditional African communities, particularly from Kenya, Uganda, and Ethiopia, to show significant similarities in the concepts underlying African customary norms and traditions on warfare and the concepts or principles expressed in international conventions on humanitarian law. We provide evidence that select East African communities formulated pragmatic warfare traditions and customs resembling modern IHL principles. We acknowledge that there were universally accepted norms or laws among the East African tribes and villages to guide the communities in conflict situations. However, these norms demonstrate that the respective communities’ rules and principles are reflected in today’s IHL conventions and protocols.

Historical Traditions

Historically, African war customs and traditions regulating the conduct of belligerents outlined rules and principles that protected non-combatants and civilian objects. The Buganda and Maasai customs guaranteed the protection of certain classes of people, including mediators, envoys, priests, medicine men, the elderly, women, children, diviners, the disabled, and rainmakers. Equally, certain civilian objects of cultural significance were protected. These included sacred places, burial grounds, shrines, sacred forests, idols, sculptures, and monuments. These protections are consistent with the modern international humanitarian law (IHL) principle of distinction.

African war customs also guaranteed that sick and wounded enemies would not be killed. This is consistent with the principle of necessity, as killing a wounded or sick enemy or captive would be unnecessary if the individual’s wounds or sickness were already sufficient to provide military advantage. Prisoners of war were integrated into the captor’s family. For instance, when a woman was captured, she was considered part of the captor’s family, and the captor would be entitled to receive a dowry or bride price upon their marriage.

And like the IHL principle prohibiting the use of weapons of a nature likely to cause superfluous injury and unnecessary suffering, some African war customs and traditions restricted the choice of weaponry and methods of warfare. For example, poisoned arrows, spears, food poisoning, and the poisoning of wellswas prohibited.

Present African Outlooks

Despite the striking resemblance between the modern IHL principles and African customs and traditions of warfare, the involvement of African States in the negotiation and development of IHL has been inadequate. This is a consequence of a Eurocentric bias in the development of IHL and the presentation of IHL principles as Western ideals. This view sits uncomfortably with African States, which have instead looked to “African solutions for African problems.” The slogan seems to have inspired African States to adapt their African paradigm to the regulation of warfare in a way that is distinct from “foreign” IHL principles. This approach may explain why the implementation of IHL principles is poor in the East Africa region despite the ratification of various IHL conventions and protocols by most States in the region.

Understanding East African war customs and traditions would significantly inform a more inclusive approach to the development of IHL and help promote compliance with IHL principles in Africa. The history of African approaches to warfare and the region’s contributions to IHL refute the conception that IHL is a Western ideal. Unfortunately, the belief, held both in the West and Africa, that IHL principles are Western ideals has exacerbated the exclusion of Africa from the global IHL debate. Because IHL principles are erroneously perceived as alien to Africa, African States are deemed incapable of making any significant contribution to the development of IHL and unable to engage in a meaningful way in the global IHL debate.

As part of its political emancipation and decolonization, Africa is determined to find solutions to African problems, including the problems inherent in situations of armed conflict. Various IHL principles are deeply embedded in African war customs and traditions. Appreciation of this point will foster an understanding that IHL principles are neither alien nor inconsistent with the African experience. This realization will perhaps change the skewed attitude of key African policymakers regarding modern IHL principles. Consequently, IHL principles will gain legitimacy in Africa as “African solutions” to the problems inherent in armed conflict situations. This could result in increased ratifications of IHL conventions and protocols and compliance with IHL principles across the African continent.

Greater appreciation for African war customs and traditions could also improve participation by relevant African institutions to the development of IHL. For example, the African Union, mandated to promote peace and stability in the region, has no express IHL mandate. Consequently, IHL is not a key focus of the AU in the exercise of its authority. Similarly, the African Commission and the African Court perceive IHL as a side product of other more specified roles which has led to weak, vague, and unclear interpretations of IHL principles. Underscoring the close and direct correlation between African war customs and traditions will hopefully inspire various African institutions to revise their instruments to include an IHL mandate as part of the core mandate of their institutions.

Concluding Thoughts

Because the African continent is disproportionately affected by armed conflict, war arguably remains one of Africa’s biggest challenges. Adherence to IHL principles is essential to managing humanitarian emergencies and minimizing the unnecessary suffering of the civilian population. Accepting IHL principles as being central to African war customs traditions can help IHL gain greater legitimacy across the continent. Such legitimacy would reinvigorate its implementation and enforcement by relevant institutions and agencies.

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Dr Kenneth Wyne Mutuma is a Senior Lecturer at the University of Nairobi, School of Law. Dr Mutuma co-authored the chapter discussed in this post with Dr Eve Massingham who was, at the time, a Senior Research Fellow at the University of Queensland.

 

Photo credit: Wellcome Images