Laws of Yesterday’s Wars Symposium – South Sudanese Laws of War

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

Our book chapter “South Sudanese Laws of War” published in Laws of Yesterday’s Wars 3: From the Highlands of Papua New Guinea to the Island of Malta provides an account of the Customary Code of Warfare (CCoW) of the Dinka, Lotuka, Mundari, and Nuer communities in South Sudan. It uses doctrinal research and interviews conducted with chiefs and former fighters from these communities. The research findings provide an insight into: the regulations and rules of the CCoW in South Sudan; the nature of prohibited conduct that violates the CCoW; defences against violations of these regulations and rules; and the consequences for breaches of the CCoW in instances of no defence.

The chapter establishes that the CCoW evolved from South Sudanese cultural and traditional beliefs and was not derived from the international treaty and customary law obligations of South Sudan under international humanitarian law (IHL). Nevertheless, to a large extent, the CCoW emulates much of IHL’s Geneva and Hague instruments.

Customary Methods and Means of Warfare

The historical existence of traditional means and methods of warfare of the South Sudanese communities is well established. The advent of European civilisation was independent of the traditional South Sudanese means and methods of war. However, South Sudanese means of warfare are slowly being replaced by European means of warfare. For example, South Sudanese use of spears, arrows, and bows is being abandoned in favour of guns and other modern European weapons. While South Sudanese traditional means of warfare have been abandoned, those practices resemble European ones in significant respects and therefore are not entirely irrelevant to legal analysis. For example, under IHL rules, which were largely adopted by Western countries, methods such as perfidy are prohibited by both traditions.

It is interesting to note that in the South Sudanese CCoW, when applying the means and methods of war, warriors acknowledge basic legal principles of war such as that of precaution. The locations of children and women are not subject to attacks and steps are taken during confrontations to insulate them from the effects of hostilities. Moreover, in the event confrontations reach the locations of children, women, and the elderly, victorious combatants immediately cease attacking the adversary’s warriors who have fled to those locations.

Notably, women in most communities in South Sudan play an important role during confrontations. For example, they spread news about potential or imminent attacks from adversary combatants. They ensure that precautions are taken to guarantee that non-combatants do not become victims of the confrontation. Other precautionary methods, such as beating of drums, are employed to warn vulnerable groups. Whilst there are many similarities between traditional South Sudanese restrictions on warfare and modern IHL, they are not a complete match. It is therefore important to explore all aspects of these CCoWs to explore the unique nature of South Sudanese conflict.

Types of Prohibited Conduct

The South Sudanese CCoW can be depicted from three angles. These include communities of persons exempt from attack, protection of civilian property, and civilian property that can become a lawful target.

According to the CCoW, children, women, and the elderly are not subject to attack. While women and the elderly are exempted from attacks due to their physical vulnerability, South Sudanese communities believe that children are angels of God and should remain untouched during attacks.

Available evidence indicates that in South Sudanese traditional rules of fighting, looting and destruction of property are prohibited acts. This is consistent with the IHL core principle of distinction, which provides that attacks should only be directed against combatants. Captured combatants are dealt with by a high authority or the chief of the community. Furthermore, treatment should be on a humane basis while in the custody of an adversary. At the end of the fighting, the chief releases prisoners of war and grants them safety until they arrive at their villages.

Furthermore, the evidence arising from our qualitative study is that there are no circumstances where protected people and objects could possibly turn into lawful objectives. No instances were given across Dinka, Lotuka, Mundari, and Nuer communities of where civilian property could become targetable, even if being used as a shield by combatants. The CCoW was to wait for the individual to leave the civilian property and then resume fighting. This is a strict rule, unlike under contemporary IHL whereby civilian objects could turn into military objectives in certain circumstances. The South Sudan CCoW are obviously set in a more preventive and preserving manner.

Defences for Breaches of Customary Rules of Warfare

There are two primary defences for breaches of the CCoW. The first relates to collateral damage or incidental causalities that are not excessive. The second concerns the presence of an eager and pressing cause for conducting an attack regardless and irrespective of all circumstances. In such cases, no prior determination nor evaluation of a need to call off or suspend an attack are typical.

Our analysis furthermore found that the CCoW requires the conduct of warfare to be as balanced as possible. This requirement dictates that attacks are always aimed and directed towards an adversary using suitable and necessary weapons only and must protect non-fighters. This is similar to the rule of proportionality in IHL provided in Article 51 of the First Additional Protocol and Rule 14 of the International Committee of the Red Cross (ICRC) customary rules of IHL. The CCoW further established that those who are found in the middle of the battle and are not part of the fighting are granted protection by pausing the fight and allowing passage to safe locations in which other civilians and non-fighters are gathered. This appears to match the provisions of Article 57 of the First Additional Protocol and Rule 18 of the ICRC’s study of customary rules of IHL.

Nevertheless, the chapter’s research findings determined that under the CCoW, there is no requirement to cancel or permanently suspend a fight. In this aspect, there appears to be a divergence from the provisions of IHL on the need to call off an attack should there be no military objective from it (ICRC, Customary IHL Study, rule 19).

Consequences for Breaches of Customary Rules of Warfare

Generally, African traditions of warfare provide consequences for their breach. Normally, the consequences are civil in nature. The only exception applies when the matter has not been addressed appropriately and results in “revenge killing.” This practice seems uniform among various communities in South Sudan. The practice may be traced to historical commonalities.

In contrast to the CCoW, the IHL rules clearly view unlawful atrocities committed as criminal wrongs that should be handled in criminal processes. It can be argued that the IHL approach to atrocities as criminal matters encroaches into the South Sudanese system. For example, under the South Sudanese Penal Code Act, section 206, the death penalty is provided as a consequence for murder and blood compensation as the alternative. The alternative resonates with the traditions of warfare of the South Sudanese communities while the first option aligns with IHL.

The CCoW advances restorative and compensatory consequences for the victim rather than a punitive approach against the violator who breaches the customary regulations and rules. Empirical research indicates that a fighter who violates the CCoW and as a result kills non-fighters, is required to pay higher blood compensation. In addition, a fighter who damages property will be “named and shamed.” That practice involves inflicting cultural and moral shame in the community, in addition to financial compensation to the nonfighter victim. However, it is worth mentioning that the empirical account also identifies that the aforementioned rule is applied by some communities in instances of their intra-community battles and not as consequences for breaches in intercommunity battles. The latter appears not to require higher compensation and might even result in in no consequences at all.

Conclusion

In sum, South Sudanese communities (Dinka, Lotuka, Mundari, and Nuer) had and continue to have rules that governed their warfare before and after the arrival of European communities and traditions into Africa. The CCoW of the South Sudanese communities is similar to IHL in significant respects, such as prohibitions on perfidy and having customary regimes to limit means of warfare.

While this convergence between the South Sudanese traditions of warfare and the IHL rules has been established, there are clearly situations in which they diverge. Where there has been a notable divergence, there should be a need to educate the South Sudanese communities to ensure effective compliance with IHL rules domestically. Conclusively, under IHL frameworks, the consequence for violating IHL rules is handled in a criminal way whereas the consequence for infringing on South Sudanese traditions of warfare is in a civil form.

Author’s Note: This post is written in the authors’ personal and private capacities. The opinions and views expressed herein are their own and do not necessarily reflect the views or opinions of any of the institutions or entities to which they are associated to/with.

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Marco Chol Ayat is a South Sudanese legal researcher working as a legal advisor at the International Committee of the Red Cross.        

Ruben SP Valfredo is a legal researcher and former lecturer at the School of Law, University of Juba in South Sudan.

Justin Monyping Ater is an LLD Candidate at the University of Pretoria and also a law lecturer at the University of Juba, South Sudan.

Photo credit: Diego Delso