By Chief Charles A. Taku

Introduction

Excellencies members of Government and the peoples’ representatives of the Republic of Liberia, Excellencies Ambassadors and Heads of diplomatic missions and International Organisations, the Hon President and members of the Governing Council of the African Bar Association, the Honourable President of the African Bar Association and members of the Executive Council of the African Bar Association, the Honourable President and members of the Liberian Bar Association, distinguished participants at this historic workshop,

Permit me to pay special homage to the Government of Liberia and the Liberia Bar Association for hosting this workshop which is intended to discuss a subject of great importance to the continent of Africa. I wish to thank the African Bar Association and its international partners for inviting me to present this opening address.

This address comes three days to the 20th anniversary of my uninterrupted international law practice which commenced at the International Tribunal for Rwanda on the 25th October 1999 in Arusha Tanzania. Tanzania and Africa were in grief when I arrived because of the death of Mwalimu Kambarege Julius Nyerere who had died a week earlier on October 14, 1999.

Africa will always celebrate with pride, its pantheon of freedom, Mwalimu Nyerere who provided strong leadership in the struggle for the liberation of some embattled colonial African countries. Under his leadership, Arusha Tanzania became a laboratory for reconciliation, peace and justice on the African continent are African.

I am honoured to be invited to present this address at the threshold of this memorable anniversary, in an event of great continental importance in this beautiful country of pioneers, hosted by the African Bar Association, its international partners and the Liberian Bar Association that was created in 1907, the remarkable year of the Second World Peace Conference.

Complexity of African asymmetric armed conflicts

My knowledge of armed conflicts in Africa; and my experience with conventional forces, non-conventional forces and victims in armed conflicts in Africa are united by their shared African origin. This is one reason why asymmetric armed conflicts in Africa are complex, rendering its prosecution through conventional war operations alone difficult. The African origin of these conflicts may conceal the involvement of non-African states and non-state actors. In one armed conflict situation, I identified the capricious foreign non-state actors involved in the conflict as “weapons for minerals merchants”.

The reach of justice mechanisms mandated to investigate and prosecute atrocity crimes that are committed in these conflicts has fallen short in addressing the role of these capricious actors. This failure gives tacit blessings to the arrogant impunity fuelling these conflicts. Without these weapons for mineral weapons merchants, many armed conflicts in Africa and the ocean of blood generated, will be limited or abated.

It is common knowledge that African warring actors do not manufacture weapons. The proliferation of small and lethal weapons in Africa, continues unabated in violation of the United Nations Global Programme of Action to Prevent, Combat and Eradicate the illicit Trade in Small Arms and Light Weapons in All its Aspects (PoA) 2001 which the United States opposed and did not ratify, Ecowas Convention on Small Arms and Light Weapons, their related Ammunitions and related Materials done in Abuja on June 14 2006 and related elaborate multilateral and bilateral treaty regimes emplaced. Boko Haram for example, does not manufacture the weapons that it deploys to terrorise and exterminate armless civilians. Armed militias in the Democratic Republic of Congo and elsewhere in the continent do not manufacture the weapons that they use to kill and maim armless civilians.

The challenges

The distinguishing features of belligerents in asymmetric warfare are discernible in the organization, objectives, training, logistics, strategy and tactics. There is a proliferation of militia groups, resistance movements, insurgency groups, rebel groups, and armed bands fighting for all sorts of causes in the continent of Africa. These causes may be ideological, religious, political, activist, separatist, economic, piracy, mercenary, cultural and terrorists etc.

The drafters of the United Nations Charter in 1945 did not foresee the fact that nonstate actors would rise to prominence and play a significant rule in international relations and pose significant peace and security challenges that are facing the world today. There is no provision in the UN Charter, including article 51, that identified and recognized nonstate armed actors as key players in international relations. Overtime, this omission has come to be costly.

Nonstate actors have risen on the watch of the civilized world to pose significant threats on world peace and security. Terrorism has emerged as a leading threat to world peace and security without an appropriate, effective universal response. The world is still struggling with an acceptable legal definition of terrorism.

This universal phenomenon complicates the peace and security situation in Africa. It is further aggravated by a plethora of challenges such as acute endemic diseases, environmental hazards, climate change, precarious economic trends, debilitating food insecurity, political instability, excruciating poverty, and the proliferation of new technological tools of warfare and mass destruction.

The paucity of adequate health and food security resources aggravates the mounting security challenges that are confronting the continent. This dire situation aggravates and complicates the conventional duties of African military and security leaders. The list of challenges that the African military and security leaders must confront in other to fully realize their mandate of defending their countries and providing security to the people is on the increase while the resources available to confront these challenges are dwindling, misappropriated, siphoned through corruption or misallocated to wrong causes and objectives.

Collaborative initiative

The solution to these challenges must not be left in the hands of African Governments, Military and Security Leaders alone. The maintenance of peace and security in full respect of the fundamental rights of Africans and persons within this continent is the collective duty of all. I stand here today, in all humility to state with pride, that this duty is an essential mission of the African Bar Association.

Pursuant to this mandate, the African Bar Association conducted essential official engagements in Zimbabwe, Nigeria, Burundi, Cameroon, Gabon, Nigeria, Sierra Leone, Sudan, Libya and many African countries to initiate dialogue as an alternative to armed conflicts. African Bar Association also conducted fact finding missions to verify serious allegations of the violation of international human rights against civilians and protected persons within the territories of some these countries.

The objectives of these interventions were neither activist nor political. They were aimed at fulfilling its mandate of promoting and protecting 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.

These fact-finding missions aimed at verifying the truthfulness or falsity of serious allegations of atrocity crimes. The commissions also aimed at sensitising the parties in conflict to abide by the international law of armed conflicts.

In Nigeria for example, the military leadership invited the African Bar Association to assist in its ongoing mission to ensure compliance by the military of international law and international human rights laws in its operations.

In Burundi, a fact-finding mission led by the President of the African Bar Association conducted a visit of locations which some foreign non-governmental organisations insistently alleged were mass graves. The fact-finding mission moved to the alleged locations with video cameras and discovered to its dismay that the allegations were unfounded. Since the African Bar Association published its report, those spurious reports have since not been repeated.

These examples among many, show that the African Bar Association is a faithful partner in ensuring compliance with local and international law in the formulation and implementation of rules of engagement in asymmetric warfare and security operations in Africa.

Upon request as Nigeria and Burundi did, African Bar Association stands ready to conduct independent professional verification of alleged atrocity crimes to ensure that allegations of atrocity crimes are well founded and are not politically motivated or recklessly made for blackmail or malign legitimate armed combat or security operations.

This workshop, it is hoped, will mark the beginning of an enduring relationship between the African Bar Association, its partner-organisations and African military and security sector, to provide workshops and specialized professional training to African militaries and security personnel to ensure compliance with local and international law in the establishment of rules of engagement that are consistent with national and international law during asymmetric warfare and security operations.

International law and human rights protections in armed conflicts

You may be aware that armed conflict exists with or without a formal declaration of war. This may occur whenever there is a resort to armed force between states or between a government and organized armed groups within and /or out of a state. When this situation occurs, the laws of armed conflict are automatically triggered.

The law of armed conflict protects civilians and armed combatants who are no longer taking part in the armed conflict from direct attacks and dangers arising from combat operations conducted by the belligerents.

The law of armed conflict differs from terms or rules of engagement. The rules of engagement are operational command rules that are constantly reviewed based on international, national, political and /or military assessment intended to accomplish a military operational objective.

Formulation and implementation of rules of engagement in asymmetric warfare and security operations must be consistent with nation law, international law of armed conflicts and international human rights law; failing which the high command and senior commanders may bear the greatest responsibility for atrocity crimes committed by the forces under their command during armed military operations.

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.

Through this workshop, the African Bar Association and its international partners have provided a platform for a candid discussion on the operation of the elaborate multilateral treaty regime emplaced by the international community to regulate armed conflicts and security challenges facing this continent and humanity at large. Asymmetric armed conflicts which are intranational and transnational in nature, are afflicting most countries on the African continent and thus, require attention due to its expansive occurrence and the atrocity crimes committed in the prosecution of these wars.

The preamble of the United Nations charter specifies that fundamental peace, security, human rights and justice are the motivations for the creation of the United Nations whose purpose was:

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), 24, 2(7) and Chapter VII Security Council mandate of the Charter, its human rights objectives are addressed in Articles 1(3), 13,55(3), 62 and 76

The United Nations Charter regulates the relations between states. However, the UN Charter on human rights provisions and its elaborate human rights regime, that includes the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966) impose obligations that are applicable to state parties and all persons.

International human rights obligations in armed conflicts

Military, Security Agencies and Armed Groups in armed conflicts belong to different categories but 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. The rules of engagements developed by army commanders as well commanders in armed groups must specify this clearly.

Human Rights are peremptory norms, therefore, jus cogens. They are fundamental principles that are acceptable by the international community as norms from which there is no derogation. Treaties or laws that are inconsistent with human rights are void. Human Rights possess and are said to possess an erga omnes character because human rights are rights or obligations which are owed toward all.

Human rights obligations recognized in general public international law are owed to the international community as a whole and that is why they are said to impose 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 combatant or insurgent 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 our purpose today, 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, as I have stated earlier, 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.

Unable to learn from the past, emerging live-threatening natural and human made security threats to the collective survival of humanity appear to have caught the world, unprepared and /or in denial unaware. The ability and capacity of non-state actors to conduct destabilising armed conflicts in which atrocity crimes shocking the conscience of humanity would be committed was not reasonably anticipate. These challenges separately or in aggregate, leaves the world with the security task of devising means of saving humanity from itself and from nature or from both.

Unregulated responses to these threats in robust armed military operations, may lead to serious atrocity crimes being 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 who are not participating in the armed conflicts. It is not a license 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 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 been merged giving that they have a common focus.

The Law of Armed Conflicts binds states and regulates the conduct of individuals in armed conflicts. A violation may occasion state responsibility and 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 provisions 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.

The jurisprudence on superior command responsibility is well developed and entrenched. A commander may he held criminally liable for the violations arising from the orders he gives 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 the commander knew or had reasons 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 going up the chain of command determines the superior criminal responsibility of the commander.

The law presumes that the high command of an army, a militia or armed group engaged in armed conflict bears the responsibility for establishing the terms of engagement and defining the enemy that its forces are deployed and ordered to take out. The rules of engagement and the choice of methods and means of warfare are circumscribed by military necessity, humanity, distinction and proportionality. The enemy is not defined to include protected persons and property under the Geneva Conventions. 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 deployments in violation of international law may bear both individual and superior command responsibility for the violations and potentially other forms of criminal responsibility.

Rules of engagement in international law

It is necessary to explain further the following four principles: The definition of the enemy, humanity, distinction and proportionality.

The definition of the enemy is a fundamental responsibility of the high command of every military. The definition of the enemy is regularly revised in times of peace and in times of war. It is the heartbeat of the security system of 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 against civilians and protected non-military targets.

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 a wounded or captured enemy combatant. 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 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 protagonist 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.

Excruciating poverty, endemic diseases, climate change, corrupt and reckless exploitation of mineral and natural resources, systemic injustices, corruption, historical wrongs, the politicization of the military and security forces, the militarization of politics and the politicisation of justice are among the identifiable causes of armed conflicts in Africa. Unaddressed historical wrongs and egregious violations are strong catalysts of atrocity crimes such as genocide, crimes against humanity and war crimes. Addressing them require a strong political will and not military might.

It is hard to enumerate the reasons for the proliferation of asymmetric armed conflicts in Africa. The complexity of armed conflicts in Africa makes the monitoring of compliance with international law and human rights in the prosecution of the conflicts difficult. Brigadier General R. A. Adeshina in his book “The Reverse Victory: Story of Nigeria Military Intervention in Sierra Leone.

Identified four broad phases in every military campaign: 1) The decision phase, 2) the mobilization phase,3) the execution phase and 3) the withdrawal phase. Citing Carl Von Clausewitz, in discussion the decision phase which he states occurs at the political level, he concluded that “War is merely the continuation of politics by other means”.

Commenting on the deployment of the Nigeria expeditionary military contingent in 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. He 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”.

Nigeria decided to resort to an internal peace mechanism to attempt to resolve the asymmetric armed conflict in its Niger Delta. The origins of the armed conflict could be traced to alleged environmental, economic, political and historical wrongs. Nigeria rightly ascertained that the escalation of armed conflict alone would never diffuse the potential powder keg that was likely to destabilize the maritime and oil economy of that strategic region of the Gulf of Guinea.

The submission of military command to constitutional civilian command is not subject of reasonable controversy. The exercise of civilian authority over military command must be consistent with the national law, international law and the multilateral treaty obligations of each country. Army commanders who are charged with the execution of war decisions made by their civilian commanders must ensure compliance with international law on armed conflicts, humanitarian law and international law of armed conflict. Commanders of a professional army engaged in military operations must take responsibility for international crimes committed under their command.

In Cameroon for example, there are largely concordant reports of the systemic attacks and destruction of internationally protected objects such as hospitals, places of worship, schools, palaces and the extermination of thousands of civilians not taking part in the armed conflict. The century old palace where the tombs of my own ancestors are resting, has been occupied, desecrated and transformed into a Government military camp. The looting of centuries old arts from our palace is rivalled only by the looting carried out by German expeditionary forces who attacked and looted priceless arts of a spiritual and religious value including the legendary Bangwa Queen which is currently in a Western Museum in France.

The torching of more than 200 civilian settlements killing the aged and the sick in their ancestral homes, the deportation of hundreds of thousands of civilians across the border to Nigeria and hundreds of thousands more internally displaced are systemic atrocity crimes begging for an urgent international response to avert the ongoing humanitarian calamity of unimaginable proportions. The use of armed force to abate peaceful protests seeking solutions to long standing historical wrongs, has plunged the restless sub-region into an unwinnable war with potentially profound consequences on the conscience of humanity.

The multinational efforts aimed at confronting Boko Haram and armed groups in the Sahel must comply with the laws and customs of war, in full respect of international human rights and international multilateral treaty obligations. War is necessary to combat international terrorism and destabilizing armed groups in the continent, but war alone cannot tackle the root causes of armed conflicts or provide durable and acceptable solutions to armed conflicts in Africa.

A good faith and candid examination of the root causes of armed conflicts in each Africa situation, may provide durable solutions to African armed conflicts. Doing so requires the political will of political leaders who in some situations benefit from the war economies generated from the prosecution of these wars. Others rely on the wars to eternalise political power.

The rule law deficit in Africa is clearly established by the disrespect of court orders by many African governments. The paucity of credible justice mechanisms in African countries makes armed conflicts attractive alternatives to the rule of law. Justice by the barrel of the gun is causing so much bloodletting on the continent. Justice through unfair judicial processes are just as harmful as the atrocity crimes the judicial processes were established to redress. I am impelled to invite everyone present here today and everyone in the continent of Africa to harken to the appeal Africa to harken to the appeal made Ben Ferencz the last surviving Chief Prosecutor of the Nuremburg trials in a lecture to Students of Emory University on humanity to “stop glorifying war, and begin glorifying peace. You cannot kill an ideology with a gun. You have to have a better ideology”. (Emory School of Law, 2 Jan. 2015).

A campaign against the glorification of war will have limited chances of success in Africa if the rule of law is impeded by the politization of national and international justice that have rendered fair trials and the rule of law mere political slogans.

The “never again” pledge that the civilized world made after the second world war has not been realized making the world progressively unsafe. Does that make it an empty slogan? To the extent that the Geneva Conventions, its Additional Protocols, the multilateral international human rights regime 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 on the individual and collective conscience of humanity. This is the resolve to which the African Bar Association and its international partners who organized this conference are firmly committed.

Conclusion

In conclusion, permit me to pay homage to Africa’s monumental contribution to international dispute resolution and international law through the Truth and Reconciliation Justice Mechanism. For want of a better language, I will call the truth and reconciliation mechanism, Africa at its best. The civilized world has seen merit in it. Victims of atrocity crimes especially historical wrongs may require 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 fulfil. The time to abate the bloodletting in this continent is now.

Thanks, so much for your attention.

Bio of Chief Charles Taku

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[email protected]

Chief Charles A. Taku specialises in International Criminal Law, International Humanitarian Law and Human Rights Law and Practice.

He is the immediate past President of the International Criminal Court Bar Association (ICCBA). He is a member for life of the Executive Governing Council of the African Bar Association (AfBA).

At the International Criminal Court for Rwanda, Chief Taku was Lead Counsel for Laurent Semanza and thereafter Lead Counsel for Major Francois Xavier Nzuwonemeye, the Commander of the Reconnaissance Battalion (Military II case) where he and a noted champion of fair trials in International Courts Beth Lyons obtained an acquittal on appeal.

Lead counsel for the Deputy Leader and Commander Morris Kallon of the Revolutionary United Front for Sierra Leone (RUF) at the Special Court for Sierra Leone.

Lead Counsel for Samuel Kargbo member of the Armed Forces Revolutionary Council of Sierra Leone (AFRC) in the Contempt proceedings.

Lead Counsel for Narcisse Arido in the case of Jean Pierre Bemba (Situation in Central Africa Republic) at the ICC.

Lead Counsel in the investigation of Dr David Matsanga (Situation in the Republic of Kenya) at the ICC.

Counsel for Mr Dominic Ongwen (Situation in Northern Uganda) at the ICC.

Lead Counsel for General Banda at the ICC (Situation in Darfur).

Victims Counsel at the African Court on Human and Peoples’ Rights.

As President of the ICCBA, presented an address on behalf of the association before the ICC Plenary at the 20th anniversary of the Rome Statute on July 17, 2018.

As President of the ICCBA presented an address on behalf of the association during the plenary of the Assembly of State Parties Conference on 6 December 2018 in the Hague, Netherland.

He delivered a keynote address at the National Association of American Administrative Judges in Washington DC on July 17, 2007 during the annual luncheon of the distinguished association.