Edited collections

Dan Kuwali, Frans Viljoen

Description

Recent times have witnessed civilians increasingly becoming the main casualties of violence, often deliberately targeted rather than merely caught up in the midst of the fighting in armed conflicts, leading to an unacceptably high toll on human life and livelihoods of civilians around the globe, and particularly in Africa.The Centre for Human Rights, Faculty of Law, University of Pretoria, with the assistance of the United States Africa Command through the Africa Military Law Forum, on 18 and 19 September 2014 hosted a ‘Colloquium on the Protection of Civilians in Armed Conflict’, in Pretoria, bringing together over 80 academics, judges, practitioners, policy makers, military personnel, government officials and other commentators. The aim of the Colloquium was to consider the legal, procedural and practical challenges in the implementation of measures to protect civilians in armed conflicts and prevent mass atrocities.Participants examined the notions of the ‘responsibility to protect’ (and its relationship to article 4(h) of the Constitutive Act of the African Union) and the ‘protection of civilians’. They further examined the scope and effectiveness of states’ obligations under international human rights law, international humanitarian law, and the law relating to the protection of women, girls, children, internally displaced persons, refugees and other vulnerable populations in armed conflict.This publication, By all means necessary: Protecting civilians and preventing mass atrocities in Africa, consists of the papers presented at the Colloquium, which were subsequently peer-reviewed and reworked, and updated. The Colloquium and this publication were sponsored by the Norwegian Government, through its Embassy in Pretoria.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2017
• Nombre de lectures: 0
• EAN13: 9781920538668
• Langue: English
• Poids de l'ouvrage: 3 Mo

Extrait

By all means necessary: Protecting civilians and preventing mass atrocities in Africa

Dan Kuwali & Frans Viljoen (editors)

2017

By all means necessary: Protecting civilians and preventing mass atrocities in Africa

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: BusinessPrint, Pretoria

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

ISBN: 978-1-920538-66-8

© 2017

PART I:

1 2

3

4

PART II:

TABLE OF CONTENTS

Acknowledgments Preface Abbreviations and acronyms List of contributors

vi vii ix xiii

IMPLEMENTATION OF PROTECTION OF CIVILIANS MANDATES

Introduction Dan Kuwali and Frans Viljoen

Article 4(h), the responsibility to protect and the protection of civilians Dan Kuwali

1

16

Defining protection of civilians in the context of armed conflicts41 Conor Foley

Interpretation of protection of civilians mandates in United Nations Security Council Resolutions73 Dire Tladi

PROTECTION OF SPECIFIC POPULATIONS AND PROPERTY AT RISK

Protection of civilians from wilful killing in armed 5 conflicts88 Thompson Chengeta Prevention of violent extremism in Africa102 6 Dan Kuwali Protection of children in armed conflicts120 7 Cephas Lumina 8 Protection of refugees and internally displaced persons during armed conflicts144 Cristiano d’Orsi 9 Protection from sexual and gender-based violence in Africa167 Dan Kuwali, Catherine Nakirya and Grace Amuge 10 Protection of minorities185 Dan Kuwali and Gudmundur Alfredsson

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11

Protection of cultural heritage during armed conflicts in Africa200 Jan F Mutton

PART III: MEANS AND STRATEGIES FOR DEALING WITH MASS ATROCITIES The role of humanitarian agencies in the protection 12 of civilians222 Anna Larsson and Dan Kuwali The role of the UN Human Rights Council 13 Special Procedures in protecting the right to life in armed conflicts239 Thomas Probert The role of courts in protection of civilians258 14 John-Mark Iyi Conflict prevention, peace building and 15 prevention of mass atrocities288 Mphatso Boti-Phiri The role of the United Nations Security Council 16 in protection of civilians306 Neville Dastoor and Dan Kuwali

PART IV: LESSONS LEARNT IN PROTECTION OF CIVILIANS IN ARMED CONFLICTS Protection of civilians in armed conflicts in 17 West Africa318 Buba Bojang No peace, no war: Protection of civilians in 18 the Great Lakes Region of Africa342 Bright Nkrumah and Godard Busingye Protection of civilians in the Horn of Africa356 19 Paul Phiri Protection of civilians: Experiences from the 20 Middle East and North Africa372 Joe Stork The African Union’s agenda on the protection 21 of civilians: A review of its ambition and practice394 Solomon Dersso

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Asian perspectives on atrocity prevention and 22 protection of civilians420 Noel M Morada

PART V: THE FUTURE OF PROTECTING CIVILIANS AND PREVENTING MASS ATROCITIES IN AFRICA Overcoming challenges in protecting civilians438 23 Gilbert Mittawa The future of protection of civilians in Africa456 24 Dan Kuwali Conclusion475 25 Dan Kuwali and Frans Viljoen

Selected bibliography

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490

ACKNOWLEDGMENTS

This volume is a fruit of the assistance rendered by the Royal Norwegian Government, through its Embassy in South Africa, the United States Africa Command (AFRICOM) through the Africa Military Law Forum (AMLF) and the inspiration of LTC Austin Matakala. Their support made possible a ‘Colloquium on the Protection of Civilians in Armed Conflict’, which was hosted by the Centre for Human Rights, University of Pretoria, on 18 and 19 September 2014. In this regard, much appreciation goes to AFRICOM’s Colonel DJ Riley, Cdr J Trent Warner, Cdr Michelle Bas, LTC Glenn Harwood (Rtd), and Alfred Gonyer, for their assistance in hosting the Colloquium. A debt of gratitude is also owed to Captain Gilbert Mittawa of the Malawi Defence Force for coordinating and acting as a bridge between AFRICOM and AMLF, not forgetting LTC Austin Mataka for his inspiration. Carole Viljoen from the Centre for Human Rights played an immeasurable role in organising the Colloquium and provision of logistical support, together with Professor Magnus Killander, Thuto Hlalele and Yvonne Oyieke, who all put hands on deck.

Much gratitude is also owed to the Commander of the Malawi Defence Force, General Griffin Spoon-Phiri, his two deputies: Lt General Clement Namangale, Lt General Vincent Nundwe; and former Commanders: General Marko Chiziko (Rtd), General Henry Odillo and General Ignacio Maulana, for providing the opportunity to participate in the AMLF. Colleagues at KD Freeman & Associates in Lilongwe Malawi, Likhwa and Thoko Mussa, Shadreck and Joana Mhango, including Ben and Anita Wandawanda and Chimwemwe Kuwali, offered unwavering support during the journey towards publishing this volume. Professor Ademola Abass also graciously assisted in editing some of the chapters at an early stage. Several scholars who meticulously reviewed various Chapters in this volume are also greatly commended for their candid and collegiate comments. The breadth and depth of this volume derive from the rich contributions of scholars, both seasoned and upcoming, who generously authored several chapters comprising this volume. Clearly, this book could not have been published without the meticulous typesetting skills of Lizette Hermann. Abiy Ashenafi must be singled out for his editorial support. Yolanda Booyzen designed a cover that aptly sets the tone of the book.

Any opinion expressed in this volume is solely that of the authors and not necessarily that of the institutions they represent.

Dan Kuwali and Frans Viljoen Centre for Human Rights, University of Pretoria April 2017

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PREFACE

This is a timely, insightful and valuable book. The volume deals with an issue of great relevance, namely the protection of civilians and prevention of mass atrocities on the African continent, and provides insights on this topic from a range of perspectives, both theoretical and practical. It is particularly encouraging to see that authors from human rights as well as security backgrounds are represented.

The role of the international community in the protection of civilians is a complex subject, fraught with pitfalls and ambiguity. Both too much and too little international intervention can present serious dangers. States remain pillars of international security, and the main responsibility to protect the population is that of domestic governments. To that end, states have, and should have, singular powers of enforcement. Yet, in some instances they fail to exercise those powers in ways which protect the population, either by failing to eliminate threats to their population or even by posing a threat themselves. Thus, the question becomes to what extent should the international community step in to fill the protection vacuum in a particular case, without undermining the longer term role of the state and other local actors as the primary custodians of the human rights and welfare of their people.

Africa is one of the regions of the world – although by no means the only one – where this question is of particular relevance. A disproportionate percentage of global conflicts take place on this continent. While a sixth of the world’s population live on the continent, a third of its conflicts play themselves out on African soil. At the same time this is not an intractable situation. While political violence is rising, there has been a decline in recent years in the extent to which these conflicts are deadly. Much remains to be done, but through well-informed and properly conceptualised interventions, the incidence and burden of violence can be reduced. The contents of this book constitute an important step in that direction.

The international system as a whole is grappling with the question of humanitarian intervention and the responsibility to protect. In Africa this was given an additional layer through the inclusion of article 4(h) in the Constitutive Act of the African Union, which provides that the continental body will function in accordance with the principle of ‘the right of the Union to intervene in a member state pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.’ Much of this book grapples not only with the question of how to understand the role of the international community in Africa in terms of protection of the population but also with the question of what these pious and enigmatic words about the principles on which the African Union is supposed to function mean in practice.

The Centre for Human Rights, African Military Law Forum, and the contributors to this publication, must be congratulated for bringing

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together such a multi-faceted, comprehensive and academically rigorous investigation of this important issue by people who are either from the continent or are deeply interested in its future. The book poignantly provides clarity on the interface of highly amorphous notions of article 4h- intervention, responsibility to protect and protection of civilians and provides concrete recommendation on their implementation. This book will serve as a resource and in many cases as an inspiration to those involved in the process of ensuring that the African continent becomes a safer place, allowing the flourishing of all its people.

Christof Heyns Professor of Human Rights Law, University of Pretoria United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions 2010-2016 Member: UN Human Rights Committee

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ABBREVIATIONSAND ACRONYMS

ACHPR African Commission on Human and Peoples’ Rights AFISMA African-led International Support Mission to Mali AFL Armed Forces of Liberia AFRICOM United States Africa Command AG armed groups AICHR Inter-Governmental Commission on Human Rights AmCHR American Convention on Human Rights AMISEC African Union Mission for Support to Elections in Comoros AMLF Africa Military Law Forum APSA African Union Peace and Security Architecture AQAP Al-Qaeda in the Arabian Peninsula AQIM Al-Qaeda in the Islamic Maghreb ASDSSA Alteration of Sex Description and Sex Status Act ASEAN Association for Southeast Asian Nations ASF African Standby Force ATT Arms Trade Treaty AU African Union AUC African Union Commission AUPSC African Union Peace and Security Council C34 Special Committee on Peacekeeping Operations of the United Nations CADSP Common African Defense and Security Policy CAR Central African Republic CEDAW Convention on the Elimination of All Forms of Discrimination against Women CEPGL Economic Community of the Great Lakes Countries CEWERU Conflict Early Warning and Response Unit CIA Central Intelligence Agency CIIS China Institute of International Studies COI Commission of Inquiry COMESA Common Market for East and Southern Africa CRC Convention on the Rights of the Child CSO civil society organisation CVE countering violent extremism DDR demobilisation, disarmament and reintegration DIRCO Department of International Relations and Co-operation (South Africa) DPA Department for Political Affairs DPKO Department of Peacekeeping Operations DRC Democratic Republic of the Congo EASBRIG East African Standby Brigade ECOMC ECOWAS Mission in Côte d’Ivoire ECOMIG ECOWAS Mission in The Gambia ECOMOG ECOWAS Monitoring Group ECOWAS Economic Community of West African States ECOWASBRIG ECOWAS Brigade EECC Eritrea-Ethiopia Claims Commission ERC Equity and Reconciliation Commission (Morocco)

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EU FARDC

FIB FOMAC GCIV GIA GLR GPA GPC HoA HPG HRW IAC IASC ICC ICCPR ICGLR ICID ICISS

ICJ ICL ICRC ICTR ICTY ICU IDLO IDPs IED IGAD IGASOM IGO IHFFC IHL IHRL IIHL ILO IRL ISS KDF LRA LTTE M23

MAPROBU MARO MDF MERIP MINUSMA

European Union Forces Armées de la République Démocratic du Congo(Armed Forces of the Republic of the Congo) Force Intervention Brigade Force Multinationale de l’Afrique Centrale Fourth Geneva Convention Armed Islamic Group (Algeria) Great Lakes Region Global Political Agreement Global Protection Cluster Horn of Africa Humanitarian Policy Group Human Rights Watch international armed conflict Inter-Agency Standing Committee International Criminal Court International Covenant on Civil and Political Rights International Conference on the Great Lakes Region United Nations International Commission of Inquiry on Darfur International Commission on Intervention and State Sovereignty International Court of Justice international criminal law International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia Islamist Courts Union (Somalia) International Development Law Organisation internally displaced persons improvised explosive device Inter-Governmental Authority on Development IGAD Mission in Somalia inter-governmental organisation International Humanitarian Fact-Finding Commission international humanitarian law international human rights law Institute of International Humanitarian Law International Labour Organisation international refugee law Institute for Security Studies Kenya Defense Force Lord’s Resistance Army Liberation Tiger of Tamil Eelam March 23 [2012] Movement (Democratic Republic of the Congo) Africa Prevention and Protection Mission in Burundi Mass Atrocity Response Operations Malawi Defence Force Middle East Research and Information Project United Nations Multidimensional Integrated Stabilisation Mission in Mali

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MISCA

MNJTF MNLA MOJWA MONUC MONUSCO

MOOTW MSF MSU MUJAO NASBRIG NATO NCIC NEPAD NetPeace NGO NIAC NSAG NSAs OCHA ODP OHCHR

ONUB OP-CAC

OSCE P5

PoC PSC PSOs R2P R2P-SCC RCI-LRA

RN2V RoE RwP SAARC SADC SALW SCSL SGBV SMS SOFA SOMA SSR TCCs TFG TFIs

African-led International Support Mission to the Central African Republic Multinational Joint Task Force against Boko Haram National Movement for the Liberation of Azawad Movement for the Oneness and Jihad in West Africa United Nations Mission in the Democratic Republic of Congo United Nations Stabilisation Mission in the Democratic Republic of Congo military operations other than war Médecins Sans Frontières United Nations Mediation Support Unit movement pour l’Unification et le Jihad en Afrique de l’Ouest North Atlantic Regional Standby Brigade North Atlantic Treaty Organisation National Cohesion and Integration Commission New Partnership for Africa’s Development Network of African Journalist for Peace non-governmental organisation non-international armed conflict non-state armed groups non-state actors Office for the Coordination of Humanitarian Affairs Orange Democratic Movement United Nations Office of the High Commissioner for Human Rights United Nations Operation in Burundi Optional Protocol to the Convention on the Right of the Child on the Involvement of the Children in Armed Conflict Organisation for Security and Co-operation in Europe Five Permanent Members of the United Nations Security Council protection of civilians Peace and Security Council of the African Union peace support operations responsibility to protect Security Council Committee on the Responsibility to Protect Regional Task Force of the African Union-led Regional Cooperation Initiative for the Elimination of the Lord’s Resistance Army responsibility not to veto rules of engagement responsibility while protecting South Asian Association for Regional Cooperation Southern African Development Community small arms and light weapons Special Court for Sierra Leone sexual and gender-based violence short message service Status of Forces Agreement Status of Mission Agreement security sector reform troop contributing countries Transitional Federal Government (Somalia) transitional federal institutions (Somalia)

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