By Chief Charles A.Taku

His Excellency President Adama Barrow represented here by His Excellency the Permanent Secretary in the Ministry of Defence of the Republic of the Gambia, President of the African Bar Association, The Honourable Chairperson of the Gambian forum of the African Bar Association, Excellencies and Plenipotentiaries present or represented, distinguished Presidents and representatives of participating or co-sponsoring associations, distinguished participants in this historic workshop, permit me once more to sincerely thank His Excellency the President of the Republic of the Gambia for once more demonstrating the leadership of this great country in supporting the international rule of law through his support and that of this country for this workshop.

In my twenty years of uninterrupted participation in international law practice, I had the opportunity of working with citizens of this great country, whom the international community trusted with the leadership at various levels of international justice institutions to fulfill the universal quest for justice, peace and security.

I stand here today, in all humility to affirm with gratitude that the support that His Excellency the President and the Government of the Gambia have provided towards the holding of this important conference on the continent of Africa, is a practical justification for the confidence reposed on the Gambia by the international community as well the African Bar Association and our international partners, present or represented here today.

Permit me your Excellencies, distinguished Ladies and Gentlemen to commence my address with a reference to a remarkable event that touched me profoundly during my mandate as the President of the International Criminal Court Bar.

That event is worthy of note because it is related to the topic I have been invited to talk about today. The very professional way the armed forces and security forces of this great country conducted themselves during the events is worthy of note.

A Report in The Point Newspaper dated Wednesday December 21, 2016, announced the arrival in the Gambia, of “a delegation from the African Bar Association to meet with the outgoing and incoming president, as well as other political leaders in the country”. The delegation met with “outgoing president Yahya Jammeh and president-elect Adama Barrow, the civil society organisations, to discuss with them to find a solution to the political crisis in the country. The current political situation in The Gambia is something of concern to West Africa, and that is why the African Bar Association decided to come to advise the Gambian people to find a solution to maintain peace,” Mr Achigbue said. “President of African Bar Association, Hannibal Uwaifo, said the primary essence of their trip is to call for the maintenance of peace and tranquillity in The Gambia”. “We come purposely to meet President Jammeh and president-elect Adama Barrow, to advise them to find a solution to maintain peace,” he said.

The message of the President of the African Bar Association in that occasion brings to light the leading role that the African Bar Association is playing in the continent towards the respect of the international rule of law and peaceful resolution of conflicts. The maturity of the people of the Gambia and the exemplary sense of discernment and respect by the armed forces of the Gambia to the core values of their constitutional mission and rule of law in times of crisis is worthy emulating by their peers throughout the continent.

Introduction

This conference and my keynote address will focus on the essential mission of advocating for justice, peace and security, which the African Bar Association has deployed tremendous efforts in advocating and promoting in Africa. The timely interventions in Zimbabwe, Burundi, Cameroon, Gabon, Nigeria, Sierra Leone, Sudan, Libya and many countries are there for all to see. The objectives of these interventions are neither activist nor political. They are aimed at fulfilling a mandate to promote the respect for the international rule of law, constitutional democracy, peace, justice, human rights and core human values that are holding our common humanity together

Talking about “the need for the military in Africa and armed groups in combat to observe international law and human rights during armed conflicts” is a subject that I am most comfortable with considering the two of my four decades of law practice in the UNICTR, SCSL and at the ICC. These courts, we all know were established by the International Community to investigate and prosecute atrocity crimes committed mostly in Africa, although not necessarily by African criminal actors. Although only a select few were brought to trial due to policy and political reasons, my personal involvement in these courts led me to discover significant tons of incriminating evidence against state and non and non-state actors who were involved in these conflicts.

The seemingly unpredictable process of accountability may seem slow, leading to perpetrators of atrocity crimes in positions of power to think that they are insulated from all forms of accountability. That is no longer the case because historical records will always keep the memory of the crimes alive. With time, platforms will emerge to provide victims of atrocity crimes, dead or alive with the voices to plead their causes and seek justice.

International law and human rights protections in armed conflicts

This year marks the 70th anniversary of the Geneva Conventions (1949) and the 43rd year of its additional protocols. These anniversaries provide an opportunity for state parties and non-state parties, state actors and non-state actors, policy makers, military commanders, scholars, victims of armed conflicts, civil society organisations and the world at large to reflect on the state of compliance with the Geneva conventions. Have the Conventions attained their purpose? Through this workshop, the African Bar Association and its international partners have provided a platform for a candid discussion on the operation of this critical multilateral treaty regime in relation to armed conflicts and security challenges facing this continent and humanity at large.

The preamble of the United Nations specifies the following fundamental peace, security, human rights and justice motivations for the creation of the United Nations:

To save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and

To reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and

To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

To promote social progress and better standards of life in larger freedom.

Whereas the peace and security objective of the UN is addressed in Article 1(1) of the Charter the human rights objectives are addressed in Articles (1)(3) and Article 55(3).

Whereas, the United Nations Charter was intended to regulate the relations between states, its elaborate human rights regime, that includes the Universal Declaration of Human Rights 91948) and the International Covenant on Civil and Political Rights (1966) impose obligations that are applicable to state parties and all persons.

International obligations

The Military, Security agencies and Armed Groups may belong to different categories arising from their founding objectives, their missions and their legal status. No matter how defined, they are obligated to comply with the laws and customs of war during armed conflicts, whether internal or international.

They are bound to promote, protect, observe and respect the human rights of civilians not taking part in armed conflicts. Human Rights are peremptory norms, thus, jus cogens. That is to say, they are fundamental principles acceptable by the international community as norms from which there is no derogation. Treaties or laws that are inconsistent with them are void. They possess an erga omnescharacter. In other words, they are rights or obligations which are owed toward all. Therefore, human rights obligations recognized in general public international law are owed to the international community as a whole and thus imposes erga omnes obligations. These rights and obligations bind everyone, irrespective of status. It binds each addressee simultaneously with regards to all others. The respect of human rights of all persons by all persons, military or civilian, armed combatants or insurgents in times of peace or war is a mandatory obligation in international law with a universal enforceable mandate.

International law regulates the circumstances under which states may use armed force known as jus ad bellum and the way in which armed force is used, known as jus in bello or the law of war. We are concerned with the law of war jus in bello.

For the purpose of this paper, an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups within a State.

The potential causes of war or armed conflict are many. The use of war or resort to the use of arms to resolve conflict situations in state or interstate conflicts are no longer the monopoly of state actors. Unfortunately, the United Nations Charter in its Article 51, did not anticipate the possibility that non-state actors would greatly influence international relations, and in significant ways pose serious challenges to international peace and security. The ability of non-state actors to conduct destabilising armed conflicts in which atrocity crimes shocking the conscience of humanity would be committed was not reasonably anticipated.

Yet when ever these conflicts warrant robust military responses, serious atrocity crimes are perpetrated by the parties to the conflicts. The right by a state to deploy its army to armed combat activities within or out of its national territory is not a blanket authority or license to exterminate civilians not participating in the armed conflicts or to commit atrocity crimes under the pretext of a legitimate resort to war for self-defence or other legitimate purposes. No matter the justification or legitimacy of a resort to force, individual members of the armed forces must act pursuant to the law of armed conflict failing which they or their commanders will be held accountable for the crimes committed.

The main purpose of the law of armed conflict is to protect combatants and non-combatants from unwarranted suffering, and to protect the fundamental human rights of civilians and persons who are not taking part or are no longer taking part in the conflict. These include persons who are hors de combat, prisoners of war, the wounded and the sick. The Hague Regulations which regulates military operations and the Geneva Conventions which protects civilians in armed conflicts have now merged giving that they have a common focus.

The Law of Armed Conflicts binds states, but it also regulates the conduct of individuals in armed conflicts. A violation may occasion state responsibility but also the prosecution of individuals, their military and civilian commanders. The International Military Tribunal in Nuremburg decided on September 30, 1946, that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provision of international law be enforced”. Trial of the Major War Criminals before the International Military Tribunal (IMT), Vol XXII,477.

Responsibility for international violations

The individual criminal responsibility of armed groups and members of armed forces taking part in armed conflicts is well entrenched in international criminal jurisprudence that has been developed at the Ad Hoc International Tribunals for the Former Yugoslavia and Rwanda, the Special Court for Sierra Leone, the Grand Chamber of the Tribunal for Cambodia, Leste Timor and also at the International Criminal Court.

Also, well developed is the jurisprudence on superior command responsibility. A commander may he held criminally liable for the violations arising from the orders he gave to forces deployed by him and under his command or for failing in his command obligations to prevent the crimes or punish the perpetrators. This responsibility is engaged only when he knew or had reason to know that crimes were about to be committed and did not prevent them or had the material ability to prevent or punish but did not do so. How far the knowledge and information about the crimes or violations go up the chain of command determines the superior criminal responsibility of the commander.

The law presumes that the high command of the army or the militia or armed group engaged in armed conflict bears the responsibility for defining the enemy that its forces are deployed and ordered to take out; that the choice of methods and means of warfare are circumscribed by military necessity, humanity, distinction and proportionality; that the enemy is not defined to include protected persons and property under the Geneva Conventions; that the choice of weapons for the prosecution of the war is not outlawed by the Conventional Weapons Convention 1980 and Chemical Weapons Convention 1993 etc. The civilian and military commanders responsible for the deployments in violation of international law in this respect may bear both individual and superior command responsibility for the violations and potentially other forms of criminal responsibility.

It is necessary to explain further the four principles: The definition of the enemy, humanity, distinction and proportionality. The greatest kept secret in all armies world-wide is the definition of the enemy which is regularly revised in times of peace and in times of war. It is the heartbeat of the security system of all nations and even non-state armed actors. A deployment of armed combatants without defining the enemy subject of the military operation, may potentially lead to the commission of atrocity crimes.

The principle of humanity in warfare prohibits the infliction of suffering, destruction or injury that are unnecessary for the attainment of legitimate military purposes. There is no military purpose to continue to attack or kill an enemy combatant who is wounded or captured. Civilian populations, targets and objects that are not contributing to the war efforts or participating in the war are protected and immune from attack.

During war, incidental civilian casualties and damage may occur from legitimate attacks on enemy military targets. Provided that these casualties are not excessive to the direct military advantage sought, this may be excused.

Distinction: Principle of distinction or discrimination also known as identification imposes an obligation to clearly and identifiably make a distinction between armed forces and civilians or combatants and non-combatants, protected objects and objects that are the focus of legitimate military operations. This depends on the quality of intelligence available to the commander who is obligated to make every available reasonable effort and conclude in good faith that he is attacking a legitimate military target in order to be absolved of criminal responsibility.

Proportionality: The principle of proportionality is linked to the principles of military necessity and humanity. This principle requires that losses from a military operation must not be excessive to the anticipated military advantage.

Precautionary measures

All organised armed groups and units which are under an identifiable command that is responsible for the conduct of subordinates are considered as parties to a conflict, even if not represented by a government, or an authority or are not recognized by the other party. The group must be subjected to an internal disciplinary mechanism capable of complying with the laws applicable in armed conflict. An armed guerrilla or resistance movement that meets this requirement are parties to a conflict. In the case of resistance movements, operating in occupied territories, the formal recognition of the government is not a requirement and thus unnecessary. What is required is that the commander should bear responsibility for the acts of his subordinates and he should take orders from the authority that appointed him.

Apart from the requirement that an armed force must be under a command responsible to a party in armed conflict, the armed force must be subject to a disciplinary regime which facilitates compliance with the laws of armed conflict. Where an armed group is not subjected to an effective disciplinary regime it may lose recognition as an armed group under international law and subjected to prosecution and punishment as non-combatants participating directly in armed hostilities. This is one compelling reason why armed groups and resistance movements involved in armed conflicts must submit themselves under reasonable command and disciplinary regime to deserve recognition as armed combatants or parties to an armed conflict under international law whether they are recognised as such by their protagonists or not.

Armed combatants have a responsibility to distinguish themselves from the civilian population when engaged in military operations or attacks. The purpose of this is to protect civilians from being conflated with armed combatants engaged in combat. Parties to armed conflicts must carry their weapons openly to clearly identify themselves. Irregular forces in armed conflict due to the paucity of distinctive uniforms, are known to wearing distinctive head or arm bans to identify themselves from civilians.

The parties to a conflict must to the extent possible give notice to civilians to vacate the potential zones of attacks prior to military operations. The use of civilians in overt or covert military operations; as spies, infiltrators, armed civil militias and mercenaries which is prevalent in African conflicts is outlawed. When used in the war efforts by the armed forces, they lose their civilian character along with the protections afforded in international law.

African Armed Conflicts.

It is hard in this occasion to present a comprehensive overview of armed conflicts in Africa and compliance with international law and human rights. The Complexity is aptly captured by Brigadier General R. A Adeshina in his book The Reverse Victory: Story of Nigeria Military Intervention in Sierra Leone. [1]

According to him, every military operation involves the following four broad phases: “The decision phase, the mobilization phase, the execution phase and the withdrawal phase. The decision phase takes place at the political level. Citing Carl Von Clausewitz, he wrote “War is merely the continuation of politics by other means”. In relation to Sierra Leone, General Adeshina doubted if the politicians in his country subjected the military intervention by his country to the time-tested scrutiny required for the Sierra Leone military expedition. General Adesanya wondered why the “Nigerian government for many reasons decided to utilize the military option rather than the continuation of diplomatic options which the rest of the sub-region favoured”.

To its credit, the Nigerian government recognized that a military solution could not resolve the crisis in the Niger Delta and deployed its conflict resolution skills to diffuse the potential powder keg that was likely to destabilize the maritime and oil economy of a strategic part of the Gulf of Guinea.

The submission of military command to constitutional civilian command is not subject of controversy. The exercise of this authority must take into consideration the respect of the constitution and the multilateral treaty obligations of the country. Apart from excruciating poverty, systemic injustices and corruption, the politicization of the military and security forces and the militarization of politics have been identified as some causes of armed conflict in Africa. Many African conflicts have arisen from the arches of unaddressed historical wrongs and egregious violations leading to the commission of atrocity crimes such as genocide, crimes against humanity and war crimes.

In Cameroon alone, the Centre for Human Rights and Democracy in Africa, Human Rights Watch, Human Rights International and the International Crisis Group have consistently published reports of the extermination of thousands of civilians not taking part in the armed conflict, the torching of more than 147 civilian settlements killing the aged and the sick in their homes, the deportation of hundreds of thousands of civilians across the border to Nigeria and hundreds of thousands more internally displaced. There has been no commitment by Cameroon which is a state party to the Geneva Conventions to respect its treaty obligations by respecting the call by the international community for an all-inclusive dialogue without preconditions to resolve the root causes of the crisis. The primary responsibility for the crimes committed in this senseless war of choice falls on the civilian commanders but also on the military commanders who are obeying illegal orders to commit atrocity crimes when like their peers in other situations, they should have refused.

The multinational efforts aimed at confronting Boko Haram and armed groups in the Sahel must aim at prosecuting the war in accordance with the laws and customs of war, in full respect of international human rights. While war is necessary to combat international terrorism and destabilizing armed groups in the continent, war alone cannot tackle the causes of conflict or provide durable and acceptable solutions to armed conflicts in Africa. Participatory democracy, good governance and credible justice mechanisms will bring justice, enduring peace and reconciliation in conflict communities in Africa. The rule law of deficit and the disrespect of court orders by many African governments are known to be potential catalysts for discontent, violence and armed conflict.

Justice by the barrel of the gun has caused so much bloodletting on the continent for the saying goes that violence breeds violence and not peace. Justice through unfair judicial processes are as harmful as the atrocity crimes the judicial processes were established to redress. For this purpose, Justice Robert H. Jackson of Counsel for the United States before the International Military Tribunal at Nuremberg established to hold Nazi war criminals accountable for the crimes that shocked the conscience humanity, in his submission on November 21, 1945, reminded the Military Tribunal and the world at large that: “Fairness is not a weakness but an attribute of our strength. We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to task that this trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice”

The international criminal justice mechanism that was put in place to try the Nazi war criminals in Nuremburg and Tokyo after the Second World War, did not bring an end to atrocity crimes that the world pledged to end. Does that make the “never again” pledge that the civilized world made to itself after the second world war an empty slogan? To the extent that the Geneva Conventions, its Additional Protocols and the resolve of a determined majority of humanity are firmly on the side of the founding objectives of the United Nations which I spelt out earlier in this speech, that pledge will remain a living testament of our collective consciences and will to live in peace and prosperity. This is the resolve to which the African Bar Association and its international partners who organized this conference are firmly committed.

Before I conclude, permit me to pay homage to Africa’s monumental contribution to international dispute resolution and international law through the Truth and Reconciliation Justice Mechanism. It is humanity at its best.

Presently, this mechanism is providing an opportunity for many communities and countries in South America to avoid armed conflicts in the settling of long-standing conflicts and providing remedies to historical wrongs. It is strongly recommended for the settlement of conflicts in several conflict situations in other parts of the world. The victims of atrocity crimes especially historical wrongs need no more than an admission of responsibility, an apology and a symbolic remedy to restore their lost humanity and dignity. This is not too much for African governments and armed groups to fulfill. The time to abate the bloodletting in this continent is now. I wish all of you present here, a very successful conference and hope many more of these workshops will be organized in future.

Thanks so much for your attention.