1
LAW OF ARMED CONFLICTS IN AFRICA: A STUDY OF THE LIBERIAN CIVIL WAR
BY
NWANOLUE, OBIEKWE BONN GODWIN PG/Ph.D/98/25350
A THESIS SUBMITTED TO THE DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF NIGERIA, NSUKKA IN PARTIAL FULFILLMENT OF THE REQUIREMENT FOR THE AWARD OF DOCTOR OF PHILOSOPHY (Ph.D) IN POLITICAL SCIENCE
MARCH, 2008.
APPROVAL
2
This is to certify that Nwanolue Obiekwe Bonn Godwin, a postgraduate student in the Department of Political Science, with Registration Number, PG/Ph.D/98/25350, has satisfactorily completed the requirements for Seminar and Research work for the award of the Degree of Doctor of Philosophy in Political Science.
………………………….. ……………………… Prof. M. Ikejiani-Clark Prof. E. O. Ezeani Supervisor Head of Department
………………….. External Examiner
DEDICATION
TO GOD ALMIGHTY WHO ARE THE ALPHA AND OMEGA, AUTHOR AND FINISHER OF OUR FAITH, MUMMY OLIVE, MY 3
PRECIOUS WIFE, HELEN AND MY LATE DARLING DAUGTHER, CHINYERE.
ACKNOWLEDGEMENT
Indeed, a positive accomplishment of a work of this magnitude would have proved holistically abortive if not for the gracious and timely intervention of some number of people of unquestionable intellectual substance.
First, it will be a real tremendous injustice to my humble soul if I fail to display my unalloyed appreciation to my indefatigable and ever generous and 4 accommodating supervisor - Professor M.O. Ikejiani-Clark. It is not enough for me to qualify her just as a supervisor but also to admit that she not only inherited this work as a personal responsibility but also inherited me as a son while the work lasted. Her continued concern for the proper and timely completion of the work rekindled my desire not to drop by the side even when the ‘heat’ was becoming unbearable. Simply put, she was more than a counselor, mentor and comforter in moments of need. I cannot therefore go without acknowledging all these multiple roles of hers.
I wish to extend my hands of appreciation to all the lecturers in the
Department of Political Science, University of Nigeria, Nsukka, for their immeasurable contributions to the success of this work.
A special mention must be made of Professor E. O. Ezeani (Head of
Department of Political Science) for his immense assistance and immeasurable hard work towards the realization of my academic dream. Equally to be thanked are Dr
Alloy Okolie, Dr Ken Ifesinachi, Late Professor Aforka Nweke, Prof. Jonah Onuoha,
Mr. Ifeanyi Abada, Jerry Ezirim and the rest of the staff of the Department of Political
Science, University of Nigeria, Nsukka.
In the same vein, I must not fail to thank my spiritual father - His Grace, the
Most Rev. Professor Daddy Hezekiah, MFR, LTI, founder and leader of Living Christ
Mission Incorporated, for all his spiritual, physical and financial support to me for the realization of my yearnings and aspirations towards this direction. My spiritual mummy, Dr. Olive is too important to be left unappreciated, likewise other disciples.
Equally, I will not forget to commend my beloved and precious ever hardworking and God-giving wife (Helen) as well as my late darling daughter
(Chinyere Olive Ogechi Nwanolue) for all their tolerance, care, assistance, incomparable services, love and advice to me. May God bless them abundantly. In 5 addition, my relations - Mr. & Mrs. Emma Nwanolue, Lawrence, Onyebuchi,
Ikechukwu, Mrs. Clara Kwentor, Dr. & Mrs. Ikechukwu Ezekpeazu, Engineer Emeka
Onyia, Anthony Onyia, Elder & Mrs. E.A. Onyia, Mr. and Mrs. Chike Osegbue,
Patience Chidozie, Augusta Okeke, Mr. & Mrs. Arthur Obiora, Rev. Patrick Ejike,
Bro. Stanley Agu to mention but a few, are highly commended for their support towards a successful intellectual trip of this nature.
Again, I extend my heartfelt gratitude to the distinguished colleagues of mine in the Anambra State University, Uli. Prominent among them include Professor
M.S.O. Olisa, Dr. Chuba Ezeh, Charles Obiora, Ifeanyi Agbata, Agary Nwokoye,
Mazi Mbah, Uche Ojukwu, Dr. V.O.S. Okeke, Emeka Obi, Mbanefo Odum, to mention but a few. Chijioke Emenike, Sopuluchukwu Emeleje, Chidimma Okoli,
Alex Mba, Ogbonna Olemeforo, Ikenna Adim, Aunty Chinyere Okolo, Victor
Iwuoha, Ebuka Uzor, Ogugua Onyiba, Ogemdi Ozoemenam, Ezue Mmaju, Meg.
Olemeforo, Barrister Charles Okafor, Chika Iyabode Benson, Egondu Okoro,
Okwudili Okoh and members of Living Christ Mission are too significant to be forgotten in a scholarly circumstance of this nature. Equally to be appreciated is Hon.
Mrs. Oby Dike, for her priceless commitment and painstaking effort towards the success of this work, Rev. and Mrs Clement Iwuoha, Dr. and Mrs Eloka Chukwuma and Dr. Eke.
Finally, this acknowledgment will be half and half if I fail to register my incalculable degrees of appreciation to my students and well wishers of the
Departments of Political Science and Public Administration of the Anambra State
University Igbariam Campus. Notable among them are Miss Adaeze Iwuoha (my ever indefatigable research assistant, whose contributions towards the success of this work were essentially indescribable.) Indeed, she is a lady of intellectual substance with 6 sophisticated honour, proven integrity, patriotic zeal, transparent honesty with high level administrative competence and sagacity. Simply put, she is intensely human, humane and humorous, my precious and beloved daughter and Sister Osuchukwu
Nkechi C., for all her assistance to me.
Equally in the good book of record are Orji Amaka, Njideka Iwuoha, Ozegbe
Paul, Tony Udogu, and Obi Ebelechukwu Julia as well as Adaeze Akaigwe, Chidinma
Ogbodo for all their doggedness, sleepless nights, and unquantifiable cheerfulness and humor with which they assisted me, particularly Amaka Orji, Obi Ebelechukwu,
Nkechi, Iwuoha Adaeze and my precious wife, Helen. May God bless you all.
NWANOLUE, B. O. G. Department of Political Science University of Nigeria, Nsukka. March, 2008.
TABLE OF CONTENTS
Title Page ------i Approval ------ii Dedication ------iii Acknowledgement ------iv Table of Contents ------vii List of Tables ------x List of Appendices ------xi Abstract ------xii
CHAPTER ONE 7
1.1. Introduction ------1 1.2. Statement of the Problem ------5 1.3. Objectives of the Study ------9 1.4. Significance of the Study ------10 1.5. Literature Review ------10 1.6. Method of Data Collection ------44 1.7. Theoretical Framework ------50 1.8. Hypotheses ------53 1.9. Definition of Terms ------53
CHAPTER TWO: LAW OF ARMED CONFLICTS 2.1. Customary International Law ------59 2.2. Treaty Law ------60 2.3. Civilians and Associated Personnel Protected By the Law ------63 2.4. Objects, Designated Areas and Signs Protected By the Law of Armed Conflicts -- -65 2.5. Work and Installations Containing Dangerous Forces ------66 2.6. Integrating the Law into Military Operations ------69 2.7. The Key Principles Affecting the Conduct of All Military Operations ------71 2.8. Persons and Objects Specifically Protected In All Operations ------73 2.9. Method of Warfare Prohibited In All Operations ------77
CHAPTER THREE: MECHANISM FOR ENFORCEMENT OF THE LAW OF ARMED CONFLICTS 3.1. 1868 St Petersburg Declaration Renouncing the Use, In Time of War, Of Explosive Projectiles under 400 Grammies Weight ------121 3.2. 1899 Hague Declaration II Concerning Asphyxiating Gases------124 3.3. 1907 Hague Convention in Respecting the Laws and Customs of War on Land------125 3.4. 1907 Hague Convention (V), Respecting the Rights and Duties of Neutral 8
Powers and Persons In Case Of War on Land (Part A) ------127 3.5. Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case Of War on Land (Part B) ------128 3.6. 1907 Hague Convention IX Concerning the Bombardment by Naval Forces in Time of War ------129 3.7. 1907 Convention XI Relating To Certain Restrictions With Regard To the Exercise of the Rights of Capture in Naval War------130 3.8. 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous Or Other Gases, and Of Bacteriological Methods of Warfare------130 3.9. Institutional Mechanism of Enforcement------131 3.10. 1976 United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques------132 3.11. 1980 UN Convention on Prohibition or Restriction on the Use of Certain Conventional Weapons, Which May Be Deemed To Be Excessively Injurious Or To Have Indiscriminate Effects------133 3.12. The International Criminal Court------135 3.13. Military Mechanism of Enforcement------140 3.14. Types of Forces Available To a State for Internal Security Operations------141 3.15. Problems Faced By the Armed Forces during Armed Conflicts ------143 3.16. The Armed Forces Attitude to Internal Security Operations------145 3.17. Human Rights Standards on the Use of Force------146 3.18. Special Rules for Opening Fire------147
CHAPTER FOUR: NATURE AND CHARACTER OF VIOLATIONS OF THE INTERNATIONAL LAW OF ARMED CONFLICTS IN THE LIBERIAN CIVIL WAR - TEST OF HYPOTHESIS ONE 4.1. Violations of the Laws of Armed Conflict by the Insurgents ------152 4.2. Execution Committed By Prince Johnson------158 4.3. Conscription of Children into Child Soldiers ------159 9
4.4. The Taking of Hostage------160 4.5. Rebels killing of fleeing soldiers------161 4.6. Torture, Inhumane Treatment and Execution of the Detainees------162 4.7. Illegal Possession of Small Arms and Light Weapons in the Liberian Civil War------163 4.8. Sexual Slavery in the Liberian Civil War ------165
CHAPTER FIVE: INSTITUTIONAL MECHANISM OF ENFORCEMENT OF THE LAW OF WAR IN THE LIBERIAN ARMED CONFLICT – TEST OF HYPOTHESIS TWO 5.1. The Use of Guerrillas in the Liberian Civil War ------169 5.2. From ECOMOG to ECOMIL ------171 5.3. Establishment of ECOMIL ------175 5.4. The Roles of the United Nations on the Enforcement of the Law of Armed Conflicts in Liberia ------179 5.5. Disarmament and Demobilization ------182 5.6. Police and Judicial Reform ------188 5.7. Human Rights, Rule of Law & Transitional Justice ------193 5.8. Restoration of Civil Authority ------202
CHAPTER SIX: THE OBSERVANCE OF INTERNATIONAL HUMAN RIGHT LAW AND THE CONDUCT OF HOSTILITIES IN LIBERIA – TEST OF HYPOTHESIS THREE 6.1. Non-Conventional Warfare------208 6.2. Ethnic and Religious Factor------208 6.3. Lack of Control and Command------212 6.4. Political Propaganda------213 6.5. Child Soldiers------214 10
6.6. Hunger, Poverty and Frustration------215 6.7. Sadism------218 6.8 . Analysis ------218 6.9. Research Findings ------222
CHAPTER SEVEN: SUMMARY, CONCLUSION AND RECOMMENDATIONS 7.1. Summary ------227 7.2. Conclusion ------232 7.3. Recommendations ------234 BIBLIOGRAPHY ------239
LIST OF TABLES
1. Liberian Facts and Figures ------12 11
2. Violations of the International Law of Armed Conflicts by Rebel
Forces ------157
3. Hostage Taking of Persons in the Liberian Civil War------161
4. Illegal Possession of Small Arms and Light Weapons in the
Liberian Civil War ------164
5. Sexual Slavery in the Liberian Civil War ------166
6. The Composition and Deployment of UNMIL in the
Liberian Civil War ------180
7. Disarmament and Demobilization Process in Liberia (Phase I) ------183
8. Disarmament and Demobilization Process in Liberia (Phase II) ------185
9. Disarmament and Demobilization Process in Liberia (Phase III) ------186
10. Liberian Refugees in West Africa ------216
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LIST OF APPENDICES
APPENDIX I ------256 APPENDIX II ------257 APPENDIX III ------258 APPENDIX IV ------259 APPENDIX V ------260 APPENDIX VI ------261 APPENDIX VII ------262 APPENDIX VIII ------263 APPENDIX IX ------264 APPENDIX X ------265 APPENDIX XI------266 APPENDIX XII ------267 APPENDIX XIII ------268 APPENDIX XIV ------269 APPENDIX XV ------270 APPENDIX XVI ------271 APPENDIX XVII ------272 APPENDIX XVIII ------273 APPENDIX XIX------274 APPENDIX XX------275 APPENDIX XXI------276 APPENDIX XXII------277 APPENDIX XXIII------278 13
APPENDIX XXIV------279 APPENDIX XXV------282 APPENDIX XXVI------284 APPENDIX XXVII------286 APPENDIX XXVIII------289 APPENDIX XXIX------291 APPENDIX XXX------293
ABSTRACT
This work is on the Law of Armed Conflicts in Africa: A Study of the Liberian Civil War. In the Liberian Civil War, unprecedented war crimes were committed in spite of the existence of the law of armed conflicts. Hence, Liberia is a country with many ethnic groups, dominated by American freed slaves (Americo-Liberians). The Americo-Liberians constitute about seven percent (7%) of the Liberian population, who are still playing major roles in the present-day Liberian politics. The dominated groups differed radically in culture, degree of political cohesion, organization, ability and resolution to resist the domination of the Americo-Liberians and responsiveness to modernization. These ethnic wrangling sparked off the seven – year bloody civil war in Liberia. Therefore, this work is to examine the factors responsible for the violations of the law of armed conflicts in Liberian civil war (1989-1996). Equally, the nature and character of the gross violations of the law will be addressed in the said civil war. Further, conceptual discussions on the law of armed conflicts and its mechanisms of enforcement will as well be offered in respect of the civil war in Liberia. In other to achieve this, the work has been divided into seven chapters, which will be discussed in line with the posed research questions. Chapter One is the Introduction; Chapter Two is the Law of Armed Conflicts; Chapter Three centers on the Mechanism for the Enforcement of International Law of Armed Conflicts; Chapter Four dwells on The Nature and Character of the Violations of International Law of War in the Liberian Civil War; Chapter Five is on The Institutional 14
Mechanism of Enforcement of International Law of Armed Conflicts in the Liberian Civil War; Chapter Six examines The Observance of Human Rights and Conduct of Hostility in Liberia; while Chapter Seven is the Summary, Conclusion and Recommendations. We adopted the observation method for a descriptive study of this nature. Relevant data were generated from primary and secondary sources of institutional and official documents as well as textbooks, journals, magazines and other written studies. Our research design was based on ex-post facto model and our hypotheses were tested using the logical data framework. The hypotheses include: i. In operational conduct and occupation, irregular warfare tends to disregard the provisions of International law of war. ii. Guerrilla warfare tends to grossly violate enforcement action of the International law of war. iii. Unconventional observance of the rules of warfare in civil war tends to relegate the observance of human rights. In conclusion, the International law of war was breached in the Liberian civil war with impunity, not minding the existence of the United Nations, shouting on daily basis about the sanctions meted for war criminals. Accordingly, we recommended thus: First, the nature of warfare should be spelt out as to whether to be conventional or unconventional by the parties involved. Secondly, children should not be conscripted into child soldiers in any combat. Again, African Union should ensure adequate existence of command and control of their men in the battlefield. Finally, Liberia should move beyond political and social conflict to peace, reconciliation, development, and ultimate prosperity in this 21 st century. This will ensure effective socio-economic and political governance in that country.
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CHAPTER ONE INTRODUCTION
1.1. BACKGROUND TO THE STUDY The self-centered nature of man has brought about conflicts of all kinds in the international political system today. The following conflicts, among other ones, have occurred since 1914 to date, namely: World War I, War II, the Israeli-Palestinian crisis, the Iraq-Iran crisis, Saudi Arabia-Kuwait, the USSR invasion of Afghanistan, the United States invasion of Grenada, the United States-Vietnam crisis, the Cuban missile crisis, the Ethiopian-Italian crisis, the Israeli versus Arab Nations crisis, the
Spain-Moroccan war, the Rwanda-Burundi crisis, Nigeria-Cameroon border crisis,
Tanzanian-Ugandan crisis, Ethiopia-Eritrea war, Somalia, Angolan, Sudan, Sierra-
Leonean and the Liberian armed conflict (which is our particular area of study in this work).
There have been varying estimates of inter and intra-state wars and armed conflicts which have occurred throughout history. Edshardt, in Rourke (1997:12) in his eight hundred and ninety (890) years statistical study from 1110-1996, shows that this scientific study on armed conflicts has been of prime importance. The samples of ninety-four (94) armed conflicts came from the period 1919-1980, of which thirty- eight (38) occurred in the inter-war period, and fifty-six (56) since 1945. Of these, eighty-seven (87) could be classified as the major ones. Again, the Armed Conflicts
Report (2001:10) provides that:
At the end of 2000, there were 40 armed conflicts being fought on the territories of 35 countries. The total number of armed conflicts was unchanged from the previous years, although the number of countries involved was down by one. In 1999, there were 40 armed conflicts in 36 countries, compared to 36 armed conflicts in 31 countries in 1998 and 37 armed conflicts in 32 countries in 1997.
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The armed Conflicts Report includes three new conflicts, Aceh-Indonesia appears for the second time in the post-cold war era, Guinea and Nepal, and three conflicts that were included in earlier reports have been removed (Cambodia, Egypt, and
Tajikistan) leaving the total unchanged at forty (40). In two (2) of the new armed conflicts, the fighting had begun earlier, but it was in 2000 that they reached the threshold of 1,000 combatant deaths. By the mid-1990s, more than 1,000 people had been killed in the fighting. A period of relative calm led to the removal of Aceh from the list of active conflicts, but in 1998 there were reports of renewed violence. The escalation in 2000 also involved government forces in extra judicial killings, and the cumulative death toll in this new phase of unrest exceeded 1,000 in 2000. In fact, about 1,000 people, mostly civilians and separatist guerillas, were killed in 2000 alone, more than three times the number killed in 1997, 1998, and 1999, respectively.
It is however, believed that Africa continues to be a major site of on-going wars, with just over forty (40) percent of all current wars being fought there. Asia follows with thirty-five (35) percent, while the Middle East is the site of twelve (12) percent of the world’s armed conflicts. Africa and the Middle East must be judged the most war- torn regions of the world, in the sense that thirty-six (36) percent of states in each region are experiencing warfare, compared with nineteen (19) percent in Asia and significantly fewer in Europe and America (Armed Conflicts Report 2001:17) India and Indonesia each host three (3) conflicts, Philippines and Iraq each host two (2) conflicts, Israel and Lebanon together host the Israeli-Palestinian conflicts, Eritrea and Ethiopia together host the Eritrea-Ethiopia war (Aceh-Indonesia, Guinea and
Nepal, Cambodia, Egypt and Tajikistan)
Conflict could mean a relationship in which each party perceives the other’s goal, value, interest or behavior as artificial to its own. (Burton and Tillet, 1991:12) Filley, 17
(1975:25) in his own view posited different types of conflicts namely: perceived conflict, felt conflict and manifest conflict.
According to Finell,(2002:30) the nature of armed conflicts has changed quite dramatically during the last decades. Recent conflicts in Europe and elsewhere in the world reveal that most of the contemporary armed conflicts are not fought between two states, but rather between parties inside states. The occurrences of non- international and purely internal conflicts and tyrannical regimes, which produce systematic human rights violations, have dramatically increased victimization. Since the Second World War, around 250 conflicts of different kinds have taken place, and during these conflicts, some 170 million people have been killed. This is almost twice as much as during the two World Wars, and most of the victimization has, as we have witnessed, included genocide, crimes against humanity, crimes against peace and war crimes, along with extra-judicial killings, torture and arbitrary arrests of all kinds which constitute serious war crimes. In apprehension of this situation and being conscious of human life, there emerged an aspect of law that governs armed conflicts of all kinds. This is known as Law of Armed Conflicts (L.A.C)
International law relating or cognate to the attenuation of warfare excesses dates back to the 1899 and 1907 Hague Conventions respectively, being the first codification of this aspect of law. It is worthy to note that the law of war derives its name “Hague Law” from the Hague convention. However, both the Leber Code and the Declaration of St. Petersburg laid the foundation for the Law of Hague, which is currently known as Law of Armed Conflicts and was written in 1868. The law of war tends to set limit or circumscribe the conducts of military operation. Its rules are meant to attenuate and control or curtail the death and destruction as far as possible. It 18 establishes also the rights and duties of the belligerents in the conducts of operations and circumscribes the choice of means to injure the enemy.
It is of paramount interest to also make known that the replacement of the phrase
“Law of War” to International Humanitarian Law was desirably marked by or manifested in the following:
A. The resolution of the International Conference on Human Rights at Tehran in
1968, recommending to General Assembly of UN (GA) that a study be made of
existing rules for the protection of human rights in times of war.
B. The G.A’s resolution of December 19, 1968, calling upon the Secretary General to
make such study.
C. The reports of Secretary General, 1968-70, in respect of human rights in Armed
Conflicts.
D. Conference of government’s experts called under the aegis of the ICRC in 1971-
1972 on the reaffirmation and development of IHL applicable in Armed Conflicts.
E. Geneva Diplomatic Conference on the reaffirmation and development of IHL
applicable in Armed Conflicts, which since 1974, has been discussed till date; and
revision of the Geneva Red Cross Convention of 1949.
International humanitarian law deals principally with situations of war or more precisely, situations of armed conflicts. Another name for IHL is therefore the Law of
Armed Conflicts. Its main objective is to control and limit weapons and methods of warfare and conduct of hostilities on humanitarian grounds. (Ajala and Sagay
1998:24) Further, the laws of armed conflicts go to the extent of indicting war criminals and meting out adequate punishments for them. According to Unegbu,
(2000:20) history has it that in 1268, one Convadin von Hohenstafen was prosecuted for war crimes. Another account recorded that one Peter Von Haenbach was 19 successfully prosecuted in 1474. However, not much evidence of prosecutions existed until the idea was renewed in the late 19th century. It was recorded that efforts were made in 1899 to set up crimes tribunal under the Hague Convention for peaceful settlement of international disputes. This was followed later by the War Crimes Court which was set up after World War I in 1919 under the Treaty of Versailles. At the end of World War II, the victorious allied powers constituted two war crimes tribunal to try alleged war criminals from the camp of the vanquished nations. The London
Charter of August 8, 1945 constituted the Nuremberg Tribunal, which had power to try war criminals of the European axis power for war crimes and crimes against peace and humanity. The second tribunal, the Tokyo Tribunal, was set up in 1946 under the
Tokyo Charter to try war criminals from the Far East. These tribunals enunciated far- reaching principles, which have, over the years, become part of customary international law.
Nevertheless, it must be noted that the international community unfortunately was unable to set up more criminal courts until the year 2000 in Yugoslavia and
Rwanda, in spite of numerous international and civil wars which characterized the second half of twentieth (20 th ) century and which witnessed an extraordinary high rate of brutality and man’s inhumanity to man. In the light of these realities, some scholars have asked why IHL is being breached during Armed Conflicts, with particular reference to the gross violation in the Liberian Civil War.
1.2. STATEMENT OF THE PROBLEM Liberia is one of the countries in West Africa, with many ethnic groups. This complex ethnic situation still plays significant role in the present day Liberian politics, especially with regard to the unwarranted domination of the politics by the American freed slaves, otherwise referred to as Americo-Liberians. Gracia, (1999:33) argues that this process of establishing Muslim-dominated theocracies to the north of modern 20
Liberia continued at an accelerated pace toward the middle to the end of the nineteenth century as a consequence of the exploits of the great Malinke state builders such as Samori Toure, Mori Ule and Sere Boureima Cisse. Most of the nineteenth century was apparently marked by a constant series of movements, with stronger tribal groupings driving weaker ones further into the rain forest. Meanwhile, the
American freed slaves who were liberated and settled in the coast of Guinea with the assistance of the Black Americans belonging to the American Colonization Society – a religious philanthropic organization, inhibited the beginning of modern Liberia.
Some of the freed slaves who were persuaded arrived in Africa and settled in
Monrovia in 1822. The settlement, Monrovia, was named after President Monroe of
America, who actually ordered some of the earliest constructions in the capital city,
Monrovia.
It should be noted that the dominated groups differed radically in culture, degree of political cohesion and organization, ability and resolution to resist Americo
- Liberian domination and responsiveness to modernization. The ethnic wrangling, among other external factors, had led to the protracted bloody civil war in Liberia which lasted for almost a decade. The lack of obedience to international law governing Armed Conflicts as well as unethical leadership practices and absence of integrative political will by Liberian leaders, have been sharply responsible for the violation of the law of Armed Conflict in Liberia. There was a gross systematic violation of the international law governing Armed Conflict in the Liberian Civil War.
According to James and Robert, (2003:21) these violations committed by the National
Patriotic Front of Liberia (NPFL) led by Charles Taylor, took the character of amputations by machete of one or both hands, arms, feet, legs, ears, or buttocks and one or more fingers; lacerations to the head, neck, arms, feet, and torso; gouging out 21 of one or both eyes; gunshot wounds to the head, neck, arms, feet, and torso, and limbs; burns from explosives and other devices; injections with acid; rape and sexual slavery of girls and women including sexual mutilation, where breasts and genitalia were cut off. Often, child soldiers were used to carry out these mutilations. The victims would have to finish the amputation, or would be forced to participate in their own mutilation by selecting which body part they wanted amputated. Political messages were slashed into backs and chests, and amputees were told to take their limbs to President Samuel K. Doe. Children have often been the targets of brutal acts
- murdered, beaten, mutilated, tortured, raped, sexually enslaved, or forced to become soldiers for the National Patriotic Front of Liberia formed by Charles Taylor. Parents were killed in the presence of their children. Women and girls have been targets of systematic brutal gang rapes at gunpoint or knifepoint, or of rape by foreign objects such as sticks or flaming logs. Rapes have occurred in front of family members, or in some cases, rebels have forced a family member to rape a sister, mother, or daughter.
Witnesses have reported seeing the mutilated bodies of pregnant women whose fetuses have been cut out of their wombs or shot to death in the abdomen. The NPFL forced many civilians into slavery, to serve the rebel forces’ cause. Women and girls have been required to become “wives” or sexual slaves and forced to cook for the soldiers. Young men and boys have been forcefully recruited as soldiers, and required to commit armed attacks against the Liberian civilians, Civilian Defense Forces and the Economic Community Monitoring Group (ECOMOG)
Some particular ethnic groups were made victims by the NPFL. The Krahn and Mandingo ethnic regions were worst hit by violations. The soldiers, in addition to carrying out murders and mutilations of all kinds, engaged in obstructions of humanitarian aid and demanded compensation at roadblocks for “liberating Liberia 22 from the People’s Redemption Council (PRC)” headed by Doe. Many witnesses tell horrific stories of the grotesque nature of their killings. In some instances, victims were disemboweled, followed by the consumption of vital organs such as the liver or heart, apparently to transfer the strength of the enemy to those involved in the consumption (UN Publications, 2000:10)
All these war crimes grossly violated Articles (I, II, III and VIII) of the 1980
United Nations Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons which may be deemed to be excessively injurious or to have indiscriminate effects. Also violated was the 1925 Geneva Protocol (especially the
Articles I, IV, VII and XI) for the Prohibition of the Use in War of Asphyxiating,
Poisonous or other Gases, and of Bacteriological Methods of Warfare; the Hague
Law of 1907; the 1978 Red Cross Fundamental Rules of International Humanitarian
Law Applicable in Armed Conflicts; Articles (I, II, IV, V, and XII) of the 1976
United Nations Convention on the Prohibition of Military or Any Other of Hostile
Use of Environmental Modification Techniques; Articles (I, III, VIII, XIII, XVI, and
XXV) of the Geneva Convention for the Amelioration of the Condition of the
Wounded, Sick and Shipwrecked members of Armed Forces at Sea of August 12,
1949; and Articles (II, VII, and X) of the Protocol Additional to the Geneva
Conventions of the 12 August 1949, and Relating to the Protection of Victims of Non-
International Armed Conflicts were equally breached by all the parties in the Liberian
Civil War. Hence, the existing gap between the law of Armed Conflicts and its practical enforcement also appears to have brought about the weak implementation of the law of Armed Conflict in the Liberian Civil War, which resulted in gross violations of all kinds. 23
In the light of the above realities, the following questions have been posed to ensure effective and systematic outcome of this study. However, the posing of these research questions was strongly informed by the existing gap in the reviewed literature, which formed our research problem in this work.
1. Did the execution of the armed conflict in Liberia by actors occasion specific
violations of International law of war?
2. Did the mode and nature of conduct of hostilities in Liberia overstretch the
capacity of institutional mechanisms of enforcement of international law of
war?
3. Did the observance of international human rights law prevail in the conduct of
hostilities in Liberia?
1.3. OBJECTIVES OF THE STUDY The general objective of this research is to critically examine the extent to which the law governing Armed Conflicts was effectively observed in the Liberian Civil war.
Hence, Olatunde, (2007:103) argues that there is nothing like the existence of international law governing Armed Conflicts and where it does exist, it is profusely incapable of governing inter and intra-state conflicts especially in Liberia. The specific objectives of this research include:
i. To find out whether the execution of the armed conflict in Liberia by actors
occasioned specific violations of the International law of war.
ii. To find if the mode and nature of conduct of hostilities in Liberia
overstretched the capacity of institutional mechanisms of enforcement of
international law of war.
iii. To find out whether the observance of international human rights law
prevailed in the conduct of hostilities in Liberia.
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1.4. SIGNIFICANCE OF THE STUDY The significance of this study is twofold – academic and practical. In the academic aspect, it will critically contribute to the effectiveness of the existence of the law governing Armed Conflicts in Africa, with particular reference to its mechanism of enforcement in the Liberian civil war. It will also enable the academic community to perceive the weak observance of the law governing Armed Conflicts in the
Liberian civil war. Also, it will be significant to scholars and researchers in
International law and International relations at large via its findings. This is possible by way of referring to it for subsequent research on similar topics.
In the practical aspect, the study will enable the operators and makers of
International law policies governing Armed Conflicts to appreciate the causes of war within African states especially Liberia. This will outline the necessary modalities for its prevention and effective control as well as the implementation of the laws governing Armed Conflicts at large.
1.5. LITERATURE REVIEW
This part of the research work attempts an excursion into previous works, articles and other forms of contributions made on the dependent and independent variables. The literature review for this work centers mainly on Liberia; from the age of colonization to the moment of its bloody civil war during which there were violations of the law governing Armed Conflicts.
Liberia: A Brief History
Liberia is divided into thirteen counties. According to Africa Today, (1981) they include namely: Grand Cape Mount, Grand Bassa, Grand Keddeh, Grand Kru, Bong,
Lofa, Montserrado, Maryland, Margibi, Nimba, Since Bomi, and River Cess, with the 25 capital in Monrovia. The ethnic groups in the country include: the Bassa, Buzzi, Dan,
Gbandi, Gio, Gola, Grebo, Jabo, Kissi, Kpelle, Krahn, Kru, Loma, Madingo, Mende,
Sarpo, Vai, Dei, Mano and the Americo-Liberians, who were the descendants of freed
American slaves that settled in the country in the 19th century and lived mostly along the coast in Montserrado, Grand Cape Mount, Bassa, Since, and Maryland Counties
(Kinston, 1971: 40).
In the early 19th century, the rapidly increasing number of Negro people (both freed and slaves) in the United States of America caused many whites much concern.
There were over two hundred thousand (200,000) freed people of colour in the slave- holding Southern states of the United States in 1820 (Kinston: 1971:45). Blacks were then seen as sub-human, dirty, crime prone and generally a menace to the American society. Many southern whites argued that a multi-racial society of whites and many blacks in the United States was bound to lead eventually to civil strife. At the same time, there were liberal whites that wanted to end the injustices done to Negroes through slavery. These whites advocated the return of black people to their continent of origin. They also hoped that a community of black people from America would help “Christianize” and “Civilize” the indigenous people among whom they would settle (Pike: 2004:14).
With the assistance of the Black Americans belonging to the American Colonization
Society – a religious philanthropic organization, some of the freed slaves who were persuaded arrived in Africa and settled in Monrovia in 1822. The settlement,
Monrovia, was named after President Monroe of America, who actually ordered some of the earliest constructions in the capital city, Monrovia. Thus, the fledging colony was named Liberia i.e. Land of Liberty (West African Bulletin, 1997). 26
According to the African Contemporary Record (1968:2) the idea of Liberia was conceived in an attempt to find a solution to a critical problem of early American society. Indeed, the idea of founding a country in Africa for freed blacks of the United
States was as old as the American revolutionary struggle. It is important to understand the evolution of this idea as a basis for the unfolding of the colonization effort that led to the founding of Liberia. The statistical table below shows the facts and figures of
Liberia.
TABLE 1:
LIBERIAN FACTS AND FIGURES
Official name Republic of Liberia
Capital Monrovia
Area 99,067 sq km 38,250 sq mi
PEOPLE Population 3,334,587 (2008 estimate)
Population growth Population growth rate 3.66 percent (2008 estimate) Projected population in 2025 4,753,240 (2025 estimate) Projected population in 2050 7,091,537 (2050 estimate)
Population density 35 persons per sq km (2008 estimate) 90 persons per sq mi (2008 estimate) Urban/rural distribution Share urban 48 percent (2005 estimate) Share rural 52 percent (2005 estimate) Largest cities, with population Monrovia 572,000 (2003 estimate) Ethnic groups Indigenous African ethnic groups (Bassa, Gio, 95 percent Kpelle, Kru) Americo-Liberians (descendants of repatriated 5 percent 27 slaves) Languages English (official) 20 percent Mande, Kru-Bassa, other 80 percent Religious affiliations Indigenous beliefs 43 percent Muslim 16 percent Christian 29 percent Protestant 14 percent Roman Catholic 5 percent Other Christians 10 percent
Nonreligious 2 percent Other 10 percent HEALTH AND EDUCATION Life expectancy Total 41.1 years (2008 estimate) Female 42.5 years (2008 estimate) Male 39.9 years (2008 estimate) Infant mortality rate 144 deaths per 1,000 live births (2008 estimate) Population per physician 33,854 people (2004) Population per hospital bed 607 people (1975)
Literacy rate Total 59.5 percent (2005 estimate) Female 43.9 percent (2005 estimate)
Male 75.1 percent (2005 estimate)
Education expenditure as a share of gross 5.7 percent (1980) national product (GNP)
Number of years of compulsory schooling 10 years (2001-2002)
Number of students per teacher, primary school 36 students per teacher (1999- 2000) GOVERNMENT Form of government Republic
Voting qualifications Universal at age 18 Constitution 6 Januar y 1986; amended 1988 28
Armed forces Total number of military personnel 15,000 (2004)
Military expenditures as a share of gross domestic 11.4 percent (2003) product (GDP) ECONOMY Gross domestic product (GDP, in U.S.$) 631 million (2006)
GDP per capita (U.S.$) 176.30 (2006)
GDP by economic sector Agriculture, forestry, fishing 63.6 percent (2005)
Industry 15.2 percent (2005) Services 21.1 percent (2005) Employment Number of workers 1,306,549 (2006)
Workforce share of economic sector Agriculture, forestry, fishing 72 percent (1990) Industry 6 percent (1990) Services 22 percent (1990) Unemployment rate Not available National budget (U.S.$) Total revenue $242.1 million (1989 estimate) Total expenditure $435.4 million (1989 estimate) Monetary unit 1 Liberian dollar (L$), consisting of 100 cents Major trade partners for exports Germany, Indonesia, Greece, Poland, and Italy Major trade partners for imports France, South Korea, Japan, Singapore, and Germany ENERGY, COMMUNICATIONS, AND TRANSPORTATION Electricity production Electricity from thermal sources 100 percent (2003 estimate) Electricity from hydroelectric sources 0 percent (2003 estimate) Electricity from nuclear sources 0 percent (2003 estimate) Electricity from geothermal, solar, and wind 0 percent (2003 estimate) sources Source: Central Intelligence Agency (CIA) World Factbook (2008) 29
Staudenraus (1961:7) and Tocqueville (1969:363) have buttressed this fact by arguing that the idea of Liberia was conceived by individuals pursing divergent purposes to solve what was viewed as a serious problem, which was as ill-defined as it was morally controversial. However, Staudenraus and Tocqueville failed to tell us the nature of such divergent interest and purpose in the founding of Liberia as a country.
Olugbemi (1975:93) and Oyowole (1981:84) have argued that the concept of colonization as a means of preserving the institution of slavery proved to be incompatible with colonization as a humanitarian endeavor. According to them, the logics impelling missionary or humanitarian enterprise and a deportation scheme are starkly different. Incompatibility of purpose was not the only problem with the idea of
Liberia; there were flaws in implementing the idea. A major flaw was the almost total lack of comprehension of the actual African situation into which the emigrants were to be sent. Despite the exploratory mission of Mills and Burgess and the expedition of
Paul Cuffe, the organizers of the American Colonization Society (ACS) knew very little about Africa, especially about the social and cultural life of the Peoples of the region targeted for civilization. Meanwhile, Shayancho (1968:73) and Mudanga
(1977:87) have identified three distinct periods in the evolution of its formal constitutional framework. These are the colonial period from 1822 to 1839, the common wealth period from 1839 to 1846, and the period of the independent republic that began in 1847. Each of these periods defines a level of relationship between the settlers and the American Colonization Society, as the Settlers moved from a circumstance of total subordination to the ACS to one in which sovereign authority was internalized in the settler community. While these periods do tell us about the nature of the formal relationship between the ACS and settlers, we also need to 30 examine the internal relations among the settlements and their separate and collective relationships with the indigenous communities and the larger international order.
Before the first settlers embarked in their voyage, they had to agree to certain stipulations. These stipulations which were called the plan of government included an agreement that the ACS would administer the settlement to be founded in Africa, which all rules and regulations set down by the ACS would be respected and that aspects of English common law would form the basis of law regulating behaviour in the settlement. According to Huberich (1947:25) in June 1820, the Board of Managers of the ACS adopted a more formal document containing these and other stipulations in what was called the Constitution for the Government of the African Settlement, later to be known as the Constitution of 1820.
Further, Akpan (1968:37) opines that in the case of armed conflicts between the settlers and the indigenous communities, the first clash was significant because it triggered the settlers’ determination to remain a permanent presence in the sub region.
Again, as soon as a settlement had been established on the mainland, the ACS purchased three small vessels to engage in trade along the Coast. Yommi (1971:35) and Mukakah (1986:175) emphasized that throughout most of 1823, the Augusta and two other small vessels sailed between Monrovia and Settra Kru engaging in trade.
Jehudi Ashmun, had conceived of a priority role for the trade and a strategy for its promotion in the sub region. Writing to the Board of Directors of the ACS a few years later, Ashumun was to explain the role of trade in the development of the new society;
“the sources of trade and commerce naturally belonging to the colony, placed as it is on the central part of a coast of vast extent and bordering on populous and industrious nations in the interior of the continent…” created important opportunities, agriculture 31 was destined “ to follow in the train of trade and not to lead it” (ACS J. Ashmun
Annual Report, 1828, quoted in Syfert, (1977:65).
In continuation, Archibald (1969:97) and Elliot (1969:109) have maintained that upon proclaiming independence, the government declared a “Constitutional Zone” that included a Coast line extending from the area of cape Mount to the Kru Coast region bordering on the territory claimed by the colony of Maryland. The constitutional Zone also extended north for 45 miles into the hinterland. This zone that identified the territory legally claimed the newly independent state and within which it sought to exercise sole and sovereign authority. In addition to the Constitutional Zone, however, the Liberian government sought to exercise influence over a wider area that was considered essential to its vital interests. This wider region contained the important trade routes that led to the coastal and upriver towns. They included the region lying west of Monrovia and extending into the Gallians; north and northwest from Bopolu, and north of the constitutional zone surrounding every coastal settlement.
Agreeing with these facts, Azikiwe (1970:32) and Azanga (1971:23) opines that from its inception Liberia faced a double dilemma. The support of the western settler state required the support of the western powers in imposing settler authority in the area; however the western powers whose support was essential were themselves the major imperial powers whose activities in the region posed a challenge to Liberian territorial claims. In warding off imperialist claims, the Liberian state needed the control. In an attempt to resolve these dilemmas, and having neither the sustained goodwill of all the influential indigenous societies nor the genuine support of the imperial powers, Liberia was constrained to become a sub proprietor, as it were, in its relationships with the major imperial powers. Assumption of this role became the 32 price Liberia had to pay to have its minimum territorial claims and autonomy respected by European powers.
However, these scholars have failed to tell us that the Liberian elites posed serious social, economic and political problems to their country because of unquenchable spirit of avarice coupled with high sense of practical unreliability, mutual distrust and unquantifiable suspicion among themselves before and after the
Liberian independence. Supporting this argument, Cole (1967:66) and Dalton,
(1965:76) relate that the tension between the aspiration to establish a society based on
Jeffersonian agrarian ideals and the reality of merchant control was a significant feature of the social order after independence and a defining characteristic of the political structure.
The establishment of Jeffersonian agrarian democracy required openness to opportunities from private owners of small, real property holdings as the cornerstone of socio-economic relation. The soil and productive artisanship were to sustain society, thereby making the freeholder the producer of prosperity and the guardian of freedom. Despite this aspiration, the reality that evolved had seen authority transferred from the ACS to a political proprietorship dominated by merchants.
The civil war did not just erupt without antecedent; rather it was an accumulation of socio-economic and political misnomer that had befallen the country since antiquity.
According to Strum, (1980:55) ‘any serious investigation of the constitution of order in human societies has to take into account not only the prescribed institutional arrangements but the actual practices, the formal and informal patterns of relationships, that are fashioned by a society’s internal dynamics and the external influences on it.’ According to him, in the case of Liberia, we have seen the emergence of institutional arrangement in which a western style, unitary form of 33 government prescribed by a written constitution was imposed upon a settler-derived patrimonial and clientelist arrangements, overtime emerged as a system of concessionary rights in labour, land and natural resources that became the dominant form of property rights. A further consequence of these patterns of institutional relationships has been the emergence of a structure of political autocracy in Liberia.
Blamo (1971:33) and Boley, (1983:45) argue that the centralization of authority as prescribed in the written constitution, reinforced the proprietary control exercised by the Monrovia merchant. At the same time, the existence of semi autonomous local proprietorships established by local merchant groups in the coastal countries constituted a form of decentralization of authority that was incompatible with the prescriptions of the written constitution. Although the written constitution prescribed three coequal branches of government, merchant proprietary control created a fusion of political and legal authority within a frame work dominated by a kin and dependent relationships. Thus, political order in nineteenth century Liberia was characterized by tension which the prescriptions of the written constitution had on the decentralization.
It should be noted that the members of the merchant ruling elite that exercised control in the nineteenth century were divided on the question of race and the strategy for achieving Liberia’s mission, they were united in their concept of the patrimony.
Liberia was perceived both as a way out of their past oppression and as an expression of their aspirations. It was legacy to be protected and a torch to be kindled. The responsibility for doing both was to the leadership of settler society, the group that
Liberty (1977) has called the “upper echelon settlers”. The leader of the upper echelon settlers was considered primus inter pares. He was expected to fulfill two important functions: to ensure the protection and security of civilized values and to serve as a symbol of the dignity and promise the society offered to free blacks. 34
According to Michael, (1977:94) the political authority exercised by such a leader was based on his moral stature, as well as the patronage and levers available to him. The leader was not always expected to be the president, but he was expected to posses the moral authority to ensure that presidents did not perpetuate themselves or make mockery of the settlers’ civilizing aspirations.
Burrowers (1988:92) and Cassell, (1970:39) opine that by the later part of the nineteenth century, the aggressive pursuit of the territory near settler communities by
European imperial powers had contributed to a significant shift in settler perspective on Liberia. In earlier times, Liberia had been perceived simply as a settler society with a mission to enlighten Africa. To many of the leaders of that time, the perspective of
Liberia and its mission included only a rather vague notion of territoriality. By the turn of the century, Liberian elites were forced to think about the country as a modern state in a world of nation states. The drive to consolidate a modern state was among the factors most responsible for the emergence of Presidential authority as predominate over every other source of authority. Developments during the first three decades of the twentieth century provided the transition through which nineteenth century merchant proprietary authority was transformed into strong presidential authority and later into the personal authority of the president. According to Anderson
(1952:82) and Brown (1981:49) one of the most potent forces that confronted Tolbert was to be found within the ranks of the patronage network he inherited from Tubman.
His effort to establish bureaucratic rationality and introduce a more formal style of government was bitterly resented by the old guard. Many of them perceived Tolberts as moving too fast, breaking with tradition and showing disrespect and ingratitude to the old order that had produced him and elevated him to the presidency. 35
David (1984:121) and Dunn et al (1988:215) were of the view that the military takeover of the Liberian government came as a shock to Liberians. For many it was also a welcome relief from the increasing repression of Tolbert’s last days.
Nonetheless, in spite of the broad support it initially enjoyed, the military was unable to establish its legitimacy among the Liberian people. By instituting a corrupt and inept tyranny within a short time, the military was perceived by most Liberians to be wholly unstable as an instrument of governance. The military takeover period, tremendously disruptive as it was, (because it snatched power from the then existing
Government of Liberia) found itself in the throes of upheaval as a result of the new source of military authority now in control. Composed of poorly trained privates and non commissioned officers, the new military junta immediately purged senior officers, creating a void of expertise within the military. The People’s Redemption
Council, as the military Junta was called, consisted of seventeen men who had stormed the executive mansion, headed by Master Sergeant Samuel Doe, (the highest ranking officer among the coup makers) all from the Krahn, Dan and Kru ethnic groups in south eastern and north central Liberia, . More importantly, almost all were young men who had grown up in urban Liberia, attained about ten years of schooling and joined the military in the early 1970’s in search of new opportunities.
Further, Davis (1968:96) and Fahnbulleh, (1985:195) recount how a relatively small number of people with limited resource and inexperience could handle the preserved heritage of over a century and a half of the Liberian society. The ACS heritage, the heritage of the indigenous societies and the heritage of western civilization placed great burdens upon the viability of an experiment whose successes and failures no one could have anticipated over the course of some six or more generations. In the views of Maclander, et al (1975:94) the option exercised on the 36 part of settler society, indigenous communities, European nations, and the United
States, led to the emergence of an autocracy that became institutionally articulated in a particular system of governance. That system was centered on a presidency, an interior administration, a weak economy, property rights dominated by government ownership of the public domain to the exclusion of tribal and private property rights and contract labour bound by diverse farms of servitude to tribal and public authorities. Togrash (1979:11) views that in Liberian’s Presidential autocracy, the presidency became the nexus of a series of social, economic and political relationships that became indistinguishable from authority relationships. In all matters the role of the President was more prominent than the rule of law. The President stood entrenched, autonomous and sovereign. These were marks of autocracy. When one considers the deep and pervasive penetration of Liberian society by presidential authority in the light of the tyrannical mould with which that authority was cast as a result of the 1980 coup d’etat, the Presidency, according to him, can be perceived as the formidable instrument of repression and plunder it had become.
The collapse of the government as a result of the 1980 military takeover was not the collapse of presidential authority but rather the collapse of the already declining vestiges of settler patrimonial control and the degeneration of presidential autocracy into despotism.
However surprising, despite its unique history, the outcome produced by the nineteenth-century Liberian experiment closely resembles the typical contemporary
African political order as seen elsewhere on the continent. This, perhaps, demonstrates that bounds of real and common patterns of oppression did not constitute incentives strong enough to overcome cultural hostilities, economic circumstances, and the consequences of prevailed colonial patterns. Greg, (1985:19) 37 argues that Liberia today exhibits a problem common to most African countries, the existence of a set of highly centralized structures, called the state super imposed upon the array of social structures, and processes that constitute civil society. This arrangement is often referred to as the post colonial state.
Scholars of both the right and left are in agreement that the highly centralized, post colonial state is overbearing, restrictive and predatory (Wuncsh and Olowu,
(1990:45). It concentrates state power in one two institutions, and ultimately subject that power to the dominance of the executive arm of government - the President. This arrangement has been variously referred to as Presidentialism (Tordoff, 1984:72) or
Neo-presidentialism (Selassie, 1974:33).
According to Shanghai (2003:33) and Mugambo (2003:75) several years after the 1980 coup, there was still no authoritative and unchallenged version of the events that took place on the night of eleventh and the early morning of the twelfth of April
1980. What was planned and what was accidental or happenstance remains a mystery.
Rumours of impending coup had been circulating for over a month before the action of Sergeant Samuel K. Doe and his fellow enlisted men (two staff sergeants, four sergeants, eight corporals and two privates) materialized, but each version had a different group identified as the challenger to the regime of President William R.
Tolbert.
The Movement for Justice in Africa; for example, had become increasingly assertive and its leaders had decided to follow PAL’s lead and officially register as an opposition party. There were as well prominent people inside the government who were making Tolbert and his henchmen nervous with demands for moderation in dealing with political dissent. One of these was on original sponsor of PAL - the highly respected economist and former minister of finance, Ellen Johnson-Sirleaf who 38 was destined to continue her vigorous role as conscience critic and dissenter during the tenure of Samuel Doe as head of state. Of even greater political significance at the sedition law was that made by Tolbert’s own son-in-law (and son of former President
Tubman) senator “Shad” Tubman Jr. Equally believable however, were the rumours that it is was the old guard of the true Whig Party that elected to act, with or without the acquiescence of president Tolbert’s suggestion a week before the legislature, elimination of the property qualification for suffrage. It was strongly limited that the legislature eliminates the property qualification for suffrage. It was strongly hinted that the old Guard would wait before seizing power until Tolbert had left early the next week to preside over the independence celebrations in Zimbabwe in his capacity as chairman of the O.A.U. Many of the jailed dissidents firmly believed and some of the coup leaders purportedly confirmed having seen the paper - that the execution orders for the PAL/PPP leaders had already been prepared by Justice Minister Joseph
Chesson even before the April 14 trials were to have commenced. Credence was given to the prospects of a right-wing coup by the increased displeasure voiced by
House Speaker Richard Henries, Chief Justice James Pierre, and other extreme reactionaries regarding Tolbert’s vacillation on the question of permitting a legal opposition, and on his handling of internal developments at the University of Liberia.
Further analyzing the above, Senero Kakoya (2001:37) and Ndunga (2002:45) maintain that the Liberian military intervention, however, was supposed to be different. The long history of civilian politics, the close economic and cultural links with the United States, and the large pool of individuals who possessed degrees in higher education from Liberian institutions or universities overseas seemed to guarantee the early restoration of a more solidly established system of civilian government. Helpful in this regard was the recognition by the military itself regarding 39 its own limited talents in governing. The board popular acceptance of the PRC as the saviour rather than the destroyer of Liberian democracy seemed a further assurance of harmonious civil-military relations.
In analyzing the behaviour, the policy pronouncements, and the attitude of the
Liberian PRC, and Doe in particular, it is apparent that the regime either implicitly or explicitly considered several of the described models of civilian-military relationships between the 1980 coup and Doe’s inauguration as president in 1986.
THE 1985 ABORTIVE COUP IN LIBERIA In the midst of the post election despair, the announcement in the early morning hours of 12 November 1985 over the Liberian broadcasting system that “patriotic forces under the command of General Quiwankpa had toppled the Doe’s regime”, was greeted with unrestrained jubilation. Africa Won (1985:12). Pictures of Samuel Doe were stripped from the walls, and a holiday atmosphere prevailed in Monrovia and other centers, with demonstrators carrying huge posters with enlarged photographs of
Thomas Quiwankpa. The failure of the coup based on the report, demonstrated that good intentions and popularity were not sufficient to topple a regime that had become equipped to monopolize the use of force in a society and that had become pleased with the enjoyment of the fatal flaws in the coup attempt. Doe was able to counter
Quiwankpa’s early morning victory claim with announcement late in the day that he was still in charge.
This caused many of the civilian revelers to have second thought about pressing their assaults on the regime that would have been toppled and dampened the spirit of the potentially mutinous army troops who now remained emotionally committed to their old commander instead of supporting what could be a lost cause. 40
The second fatal flaw was the redundancy on the part of Quiwankpa to “go for the Jugular Vein” and carry out a frontal assault on the Executive Mansion itself. This gave Doe time for his Krahn-dominated Executive Guard and for the first infantry
Battalion to arrive from camp Schieffeling. Crocker (1986:40) maintains that important as the foreign implication were in the long run, the failure of the much abused curfew was reintroduced, as there were road blocks on the up-country high way. The fact moreover that Quiwankpa had indicated that he was not interested in power for himself but wanted to turn over the reins of government to the NDPL opposition gave Samuel Doe all the excuse that he needed to immobilize the leadership of the opposition parties. Ironically, one of the unanticipated consequences of the coup’s failure was the erosion of the very unity and discipline within the military ranks for which Quiwankpa had once been applauded. Many troops who had been at the Bar Day Training Centre (one of the few installations the rebels had captured) were held for trial. Others within the army who were Gio (Dan), the ethnic group from which both Quiwankpa and Jackson Doe came, were subjected to harassment.
However, based on the report of Footprint Today (1986:17) it was obvious that during the attempted coup Samuel Doe lacked broad based civilian support and that the military displayed a wait and see attitude toward the Doe regime during
Quiwankpa coup.
ETHNICITY AND ETHNOCENTRISM AS MAJOR FACTORS FOR THE EMERGENCE OF THE WAR
Liberia is a country characterized by complex ethnic historical development, which plays significant role in the present day Liberian politics. Hence Jankande (2001:4) and Anthony (1999:94) state: Interesting as this selective rewriting of history may be, it is extremely doubtful that the world watched or was even aware of the earliest 41 movement of Africans Southward and from the Sahel and thence from the Plateau and forest regions north and east of present-day Liberia. For despite the sporadic probes which took place over several millennia between the people of the interior and the prehistoric stone and iron workers of the West African Coast, significant inter- regional contacts did not begin until roughly the eighteenth century, when the forays emanating from the Western Sudanese trading empire brought the Sierra Leone-
Liberia areas into the network of the emerging mending peoples”. According to Green
(2001:195) “It was not, however, until the second half of the sixteenth century that the developing relationship became a sustained one, marked by regular expeditions of mending traders into the region”. Based on archeological, linguistic, medical and ethnological data, Okonji (2002:79) and Mancha (1998:33) have suggested a general migration of the present day Gola and Kissi into Western Liberia, at a fairly early period roughly between the 1300s to the 1700s. According to them, this was followed by the movement of the Dei, Bassa, Krahn, Kru, and Grebo in a westward- southwestward direction out of their earlier homes in the Mano River on Liberia’s present western boundary before 1500, followed closely by the Vai.
Whightly (1998:107) has argued that migration, however, was a dynamic phenomenon and some early arrivals in the coastal region such as the Belle and
Krahn-moved northward, while others – such as the Kru, Bassa, and Dei – spread further out along the Atlantic Littoral. It is possible that four or five centuries ago much of what is today Sierra Leone and Liberia was largely uninhabited tropical rain forest. Arguing further, Abudulahi (1994:109) opines that the great upheavals of the fifteenth and sixteenth centuries associated with the rise, flourishing, and eventual collapse of the Songhai Empire on the Niger River, changed matters. A series of crisis drove waves of non-Moslems at the coast further and this disturbed the political and 42 economic balances in West Africa’s patterns of trade especially with respect to human cargo. While some groups such as the Gola, migrated in search of salt, others sought new lands to cultivate. Still others, such as the Loma, the Mende, the Kissi, and
Gbandi people, were once again pushed southward as political refugees into their recent areas in northwestern Liberia by the mending (Malinke) expansionism occurring several decades before the arrival of the American Liberians in West
Africa. In the words of Gracia (1999:73) this process of establishing Muslim- dominated theocracies to the north of modern Liberia continued at an accelerated pace toward the middle to the end of the nineteenth century as a consequence of the exploits of the great Malinke State builders such as Samori Toure, Mori Ule, and Sere
Boureima Cisse. According to him, most of the nineteenth century was apparently marked by a constant series of movements, with stronger tribal groupings driving weaker ones further into the rain forest or down the coast. Indeed, there has always been a certain amount of fluctuation of ethnic (tribal) boundaries. This process of migration on an individual basis has continued after the advent of effective Americo-
Liberian rule under the first Republic as the constant search for new agricultural lands or the flight from tax collectors, labour recruiters, and arbitrary rules have constantly driven people into previously uninhabited and uncharted sections of Liberia.
Artificially and largely unregulated international boundaries have provided an obstacle to Mende, Gola, Kissi and Vai who moved back and forth to renew old ties with kinsmen in Sierra-Leone, Grebo, Kru or who visited their relatives in the Ivory coast; or to Coma, Kpelle, Mandingo, Mano, and Gio who have maintained their economic and social link with kinsmen in Guinea.
43
THE NATURE OF TRIBAL IDENTITY
Gamiu (2001:97) and Grolla (2001:73) affirm that the question of who were the first inhabitants aside from the nineteenth century expansion of the Liberian national community beyond the pockets of the settlement at the coast, created a highly complex political, social, and economic situation. It was not a simple case of one society dominating another, rather, it was a relationship that ultimately subordinated sixteen or more ethnic groups (the words “tribe” and “tribal” still being acceptable usage in Liberia) to the Western-oriented community of Americo-Liberians.
According to them, the dominated groups differed radically in culture, degree of political cohesion and organization, ability and resolution to resist Americo-Liberian domination, and responsiveness to modernization. Lacking both the personnel and the anthropological skills needed to carry out flexible and imaginative administrative policies in the tribal areas, the Americo-Liberian leadership was continually confounded by the character and variety of traditional ethnic institutions. Brown,
(1977:155) has argued that in a period of rapid change, understanding the nature of values and institutions of these ethnic groups by government leadership was a sine qua non for survival and continued domination. It should be made explicit at this point that it has only been within the past three or four decades that Liberian scholars, joined by others from the United States, Western Europe, and elsewhere, have produced serious studies in anthropology, history, economics, and political science which deal with the Gola, Grebo, Kru and other indigenous groups. According to him, we still lack definitive integrative studies which deal with tribal life in a comprehensive fashion but at the same time note the great variations and subtle nuances which differentiate the sixteen major ethnic groups from one another. This particular situation of tribal question has remained one of the remote factors that 44 brought about the bloody Civil war in Liberia. Though, it is unfortunate that the above scholars failed to address this particular important point.
CHALLENGES TO THE LEGITIMACY OF THE SECOND REPUBLIC
According to Footprint Today, (1986:20) on 6 January 1986, Samuel Kanyon Doe was inaugurated as the first civilian president under the constitution of the Second
Republic. This day which was to have signaled a milestone in the history of Liberia’s long quest for democracy had arrived. Yet, instead of it being the day of celebration and rejoicing that had been anticipated during the more than five and a half years of transition from military to civilian rule, it was a somber day indeed. Janet, (2001:73) and Pascal, (2000:125) noted that the honoured guest (including a pointedly low-level official delegation from the United States) and even many of those who had voted for
Doe and the NDPL realized that the election of that October had not been a fair one.
The challenges to the legitimacy of the Second Republic had been immediate once the election “results” had been announced by Special Electoral Commission. (SECOM) on 29 October, and the state became bloody and filled with acrimony in the ensuring two months leading up to the inauguration.
The West Africa (1986:12) relates that few Liberians or outsiders had been deceived by the announcement on 29 October 1986 that Doe had won the presidency by a margin of 50.9 percent. Admittedly, it was not the usual 90-plus percent that most autocrats in the world invariably award themselves in careful controlled elections, but it was explainable in the Liberian context. First of all, it would not have been sufficient to have achieved a mere plurality over his three opponents, since under the new constitution a majority vote is required. A run off a week later between the two leading candidates (neither one of which may have Samuel Doe) would have permitted the opposition to consolidate their strength. 45
The National Democratic Party of Liberia (NDPL) through its agent SECOM was not as prepared to be so generous with the opposition. However when it came to allocating Seats in the Senate and House of Representatives, Doe’s 51% electoral majority was mysteriously transformed into control of 84% of the legislative seats by
NDPL.
Albert, (1999:48) emphasizes on the report also that there were clear indications that the NDPL knew well enough of the public’s awareness of the fraud. On the night the results were announced, the government in what must have been a tongue-in-check explanation forbade demonstrations “out of fear that the jubilation might get out of hand”. It was almost three days, moreover, before Doe ventured to appear in public, and at that it was in the relative security of the Executive Mansion grounds before
NDPL partisan.
Arrogant in his triumph over his opponents, he called for a Government of
National Unity in which all Liberians would forget the past and work for the reconstruction of the country.
CHALLENGING THE ELECTORAL RESULTS
The Sun Times, (1986:18) reported that the proposal for a government of national unity under the NDPL’S leadership was rejected in turn by the leaders of each of the opposition parties. This was quickly followed on 5 November by a Joint Liberian
Action Party (LAP), Unity Party (UP), and Liberian Unification Party (LUP) communiqué which provided a detailed and thoroughly documented “Indictment” regarding the activities of SECOM, the military and the NDPL partisans during the campaign. Despite the presentation of their complaints to the registrar of SECOM being publicized in all three independent newspapers (Footprints Today, Sun Times, and Daily Star) Emmett Harman once more engaged in the formalism reminiscent of 46 his True thing past by categorically denying that SECOM had received any official complaints of electoral violations.
According to Anthonia, (1992:102) the next challenge to the legitimacy of the electoral results came with the individual and collective decision of the opposition parties to forbid their party candidates from assuming the legislative seats which
SECOM had conceded to them. It was argued by the leadership of the three parties that acceptance of the seats would compromise the will of the people, legitimize the fraudulent election tactics and results, relegate the opposition to a position of subservience, and mortgage the sovereignty of the Liberian people through the ambition of the candidates who had been given the seats fraudulently. Refusal to accept the seats took on added significance following the arbitrary arrests and detention of party leaders after the November 12 coup attempt in which former
General Thomas Quiwankpa challenged the Doe regime. The acrimony within the parties, according to her, was deep particularly on the part of the leadership that had been detained without charges after the November 2 Quiwankpa coup attempt. They felt a keen sense of betrayal. Their anger was in particular directed against Tuan
Wreh, the national chairman of the Liberian Action party, who had strong personal credentials. Crocker, (1985:65) opines that the videotaped meeting between Wreh and
Samuel Doe and his colleagues found him literally groveling and asking forgiveness for ‘the poor country boy that he was ‘. Although, his former expulsion from the
Action Party was later reversed, he was nevertheless stripped of his chairmanship of the party. Thus, each of the thirteen non-NDPL members of the legislature was compelled to serve as an independent rather than a representative of the party that had elected him. 47
The first stage of the domestic challenge to the NDPL’S claim that it was ushering in Liberia’s first real experiment in democracy came to an abrupt halt on 12
November 1985. The Quiwankpa attempted coup not only failed to accomplish its ultimate goal, but it further frustrated the ability of the opposition groups to sustain a concerted and unified attack on the legitimacy of the Second Republic.
THE EXTERNAL FACTORS
The “Special Relationship” Hayden, (1986:58) provides that U.S. support of the
Doe regime from 1980 to 1984 could have been fully justified as being in Liberia’s and American interests. Like the British Colonel in Bridge over the River Kwai, the
State Department appeared to be psychologically incapable of making a radical adjustment as the situation and circumstances dramatically changed. The United
States continued throughout the time of difficulties in 1985-86 to provide the formalities that are so dear to the heart of the Liberians such as the warm words of praise and assurances of continued economic support when the new U.S. Ambassador presented his credentials; Regan’s congratulatory message to Doe after the October election following the failure of the Quiwankpa coup attempt, and the dispatching of an official delegation (albeit of a lower level) to the inauguration of Doe on the other hand, showed that the Department of State, and even the Congress avoided doing those things which would have signaled deep concern and displeasure; such as sending an official observer team to Liberia during the elections; protesting the banning of the two most effective opposition parties and their leader; establishing sources of information regarding violation of human rights at the University of
Liberia or in Nimba country in the aftermath of the Quiwankpa coup attempt or protesting the interruption by SECOM of the ballot counting. 48
When a State Department spokesman according to West Africa (1986:21) did comment on developments, it was often in a way that undermined the effectiveness of the opposition to Doe. The suggestion following the election and the Quiwankpa coup attempt, for example, showed that there were injustices on all sides and efforts at even-handedness were a far cry. The insistence that the opposition after the election ought “to get on board” despite the irregularities not only revealed insensitivity but denied the validity of a multi party as opposed to a single party system. Several civilians were denied the justice of proper legal process and Doe remained adamant at this abuse of due process.
Moreover, characterizing the shift in ballot counting procedure as a ‘shortcoming’ ignored the fact that it was fatal to the process of free and fair elections.
Furthermore, criticizing the opposition leaders and citizens in general for disseminating unsubstantiated rumours about the number of persons killed or other atrocities committed overlooked the fact that the Doe regime controlled the flow of information which would have challenged the rumours. Certainly, Liberians were offended by the State Department spokesman’s summary remarks before a congressional subcommittee that “there is in Liberia today a civilian government based on elections, a multiparty legislature, a journalist community of government and non-government newspapers, an on-going tradition among citizenry that could speak out and a new constitution that protects their freedom.
Daily Star (1986:59) pose that as in the number of other contemporary cases, it has been the U.S. aid to Liberia that is linked to human rights performance and the establishment of a democratic political system. Unfortunately, the virtually unanimous resolutions of the senate in December 1985 and of the House of
Representatives in January 1986 were nonbinding. An administration which insists 49 upon executive branch preeminence in the field of foreign policy formulation resent being by both Republicans and Democrats in two chambers on a wide range of issues and areas (Philippines, South Africa, Central America, Angola and the Middle East).
The Liberian people thus became the unwitting victims of domestic political sparing in the United States.
INTERNAL CHALLENGES TO THE SECOND REPUBLIC
Crocker, (1986:17) opines that the failure of the Quiwankpa coup reduced the prospects of a challenge to Doe occurring from within the ranks of the military, and the policies of the Reagan administration gave every indication of continued support for Samuel Doe no matter how diminished his base of domestic support had become .
The strategy and tactics employed by Samuel Doe and the military civilian coalition which made up the NDPL had eroded the legitimacy of the regime prior to the elections: the forcible fashion in which Doe handled the Quiwankpa coup demonstrated that it was far from an authentic vehicle for the realization of democracy.
THE ECONOMIC CHALLENGE
According to Hayden, (1986:77) the failure of the Doe’s regime was everywhere in evidence, but it was the economic instability that proved to be the most critical, since it not only affected the Liberian people on a day-to-day basis but it undermined the confidence that the Doe regime had enjoyed earlier in the years of his overseas financial supporters and investors.
The shortage of (or even absence of) rice and other basic commodities in the market places of Monrovia was a recurrent phenomenon; petrol shortages had been experienced on almost a regular monthly basis, and teachers and other public servants
(with the exception of Doe’s own personal Executive Mansion forces and the Khran- 50 dominated First Battalion, which had been a factor in putting down the Quiwankpa coup) had gone up paid from October to mid-March. According to Meckett, (1988:55) the later situation had led to a teacher’s strike which in turn precipitated a student demonstration that turned into a riot in which brute force was employed before order was restored. Unemployment, particularly among the youth of Monrovia, had reached crisis proportions. There was furthermore, a continuing outflow of educated talent to
America, Europe and other African States despite the efforts of the Immigration
Department to deny exit Visas and passports to Liberians.
THE POLITICAL CHALLENGE
Politically as well, Samuel Doe found himself in an expanding quagmire of his own making. The few conciliatory gestures toward the opposition were in the traditional style of Liberian politics often canceled out by being coupled with outrageous threats. West Africa Bulletin, (1986:25) relates that the opposition response to Doe’s call for reconciliation was not what he had anticipated. Indeed,
Samuel Doe found himself hopelessly incapable of responding creatively and unequivocally to the almost spontaneous exercises of democracy which suddenly began to emerge shortly after the inauguration. Efforts to take the new constitution at face value were evidenced by both private individuals and groups. Many of the latter had been banned during the last several months of the interim Assembly transitional regime and in the wake of the Quiwankpa coup.
Lambert, (2004:122) has argued that the initial reaction of the Doe partisans to this developing scenario of taking the constitution of the Second Republic at face value was predictable. Justice Minister Jekins Scolt in February 1986 flatly stated that all former PRC decrees were in force and people would be prosecuted under those 51 decrees until the legislature had expressly challenged them (Footprint Today,
1986:19).
He and the Information Minister especially specifically warned the Press Union of
Liberia not to hold a meeting while still under an Assembly ban. A balancing of conciliation and threats also came when Jackson Doe and several others were released from jail on 12 February while the regime persisted in the persecution of Ellen
Johnson-Sirleaf, formally charging her with treason. Instead of taking steps to alleviate the deplorable situation faced by the teachers, who had gone on strike over their salaries being four months in arrears, the government humiliated the head of the
Union, undermining his leadership and broke up a demonstration of students who were demonstrating in support of their striking teachers. Jacobs and Pascal (2001:19) emphasizes that special riot police predictably turned the peaceful student demonstration into not far too often, the recurrent verbal harassment of journalists, church leaders, business men, educators, and others invariably carried the implied threat of resort to naked force. These actions caused a downward spiraling of popular support for the Doe regime, and the application of force, telegraphed in no uncertain terms the fragility of Samuel Doe’s base of authority. All these accumulated anomalies, had contributed to the spark off of the age long Civil war in Liberia.
THE NATURE AND CHARACTER OF THE VIOLATIONS OF THE LAW GOVERNING ARMED CONFLICTS IN THE LIBERIAN CIVIL WAR
In the beginning of the Liberian civil conflict, the government army and fighting factions were divided primarily along ethnic lines. It was common for civilians, when confronted by a soldier or fighter, to be forced to identify their ethnic group by speaking their ethnic language. Goham, (2007:35) emphasizes that in a survey conducted on the nature and character of the violations of the law governing armed conflicts in the Liberian civil war, women who were confronted by a soldier or 52 fighter, and accused of belonging to an enemy ethnic group or fighting faction were more likely to experience violence. Although, the data did not reveal whether women of those ethnic groups were at great risk than other ethnic groups, it was clear that violence against women affected all of the fifteen (15) ethnic groups in the sample.
Again, the violations of the law of armed conflicts in the Liberian civil war are better imagined than described. Hence, Ogundele, (2008:76) argues that another survey of twenty (20) women and girls over the age of fifteen (15) years was conducted in
Monrovia and its environs in 1994; nearly five years after civil conflict broke out in
Liberia. Thirteen (13), at the time the survey was conducted, the capital city had over five hundred thousand (500,000) people living in it. The surveys, according to him, were conducted by Liberian health workers in four types of setting: high schools, markets, displaced persons camps, and urban communities, in Monrovia. For clarity sake, the survey was conducted to find out how common it was for women who were living in Monrovia to have experienced violence, rape, and sexual coercion from soldiers or fighters since the war began in 1989. Sexual coercion in the views of
Garham, (1993:32) is conceptualized to mean “as being forced into a relationship with a combatant because of war time conditions, e.g. in order to feed oneself or one’s family, to get shelter or clothing, or for protection and safety”.
In the Liberian civil conflict, according to Swiss and Jennings (1998:12) “most women and girls were subjected to at least one act of physical or sexual violence by soldiers and fighters during the first five years of the war. Being accused of belonging to a particular ethnic group or fighting faction was a significant risk factor for physical violence and attempted rape. Women who were aged twenty (20) or older when the war began were at risk of being tied up or strip-searched. Young women and 53 women who were forced to cook for soldiers or fighters were particularly at risk of sexual violence.
Kromah, (2008:16) asserts that the unfolding events in Liberia was plunged into a nightmare. On the heels of the government’s revelation of the border incident,
Monrovia woke up to the knee-shaking news about the killing of a prominent businessman and budding politician, Robert Philips. His body was found at his
Monrovia Sinkor residence. Rumours quickly circulated that it was the handiwork of government agents. The government vehemently countered. He goes further to affirm that many Americo-Liberians at the funeral were concerned only because an
Americo-Liberian had been killed, and that the death that was being inflicted by
Taylor, another Americo-Liberian, meant nothing to them.
Concurring to the above, Huband, (2008:38) relates that it was alarming for such a killing to be taking place at the seat of government, which was condemning the invasion and the destruction of innocent lives. Two other alleged mysterious killings occurred in the suburbs of Monrovia. The Justice Ministry announced the alleged murder of a Togolese national identified as David Opati and a sergeant of the
Executive Guard Battalion, Peter Koleh who was killed on the Saturday night
President Doe revealed the coup on television.
According to Dogonyaro, (2000:7) the crisis that erupted in Liberia was as a result of economic backwardness versus economic interest, political hegemony of the
Americo-Liberians, ethnicity and ethnocentrism, religious cleavages, to mention but a few. In agreement to this, Africa Today, (1981:2) states that the Liberian crisis could be traced to the political and economic domination of the Americo-Liberians, to the total exclusion of the indigenous majority of the population. 54
However, the two authorities failed to provide us with the factors that immediately sparked off armed conflict in Liberia. In his own view, Mbabarah, (2003:3) opines that there was a master-servant relationship between the few settlers and the indigenous inhabitants, which brought about disharmony of all kinds that later culminated in armed conflict.
Further, it has been argued that Liberia has been known for violation of the Laws of
Armed Conflicts at the slightest moment of provocation. The West African Bulletin
(1997:8) has it that the Rice riots of April 1979 had hundred (100) persons killed, five-hundred (500) injured, houses and shops worth 35 million dollars destroyed.
Concurring with the above, the Socialist Standard World Socialist Movement, (2003) states that General Thomas Quiwankpa was killed as well his Gio and Mano ethnic groups, burnt and raised to dust, contrary to the international law governing armed conflict.
Pike, (2004:21) maintains that in the first segment of the civil war in Liberia, 1989-
1996, several international human right laws were breached, such as amputations, rape of women and children, and genocide which were caused by the Charles Taylor incursion into Liberia and his quest to topple the then existing government with his troops. Pike, failed to tell us how and why Taylor struck into the territorial integrity of
Liberia. Agreeing with Pike, (2004:17) opines that Charles Taylor’s incursion into the
Liberian government and the conflict therewith led to child soldiers, rape, child trafficking, genocide, illegal possession of arms, battering of the Liberian economy which triggered off hunger, disease and poverty. The point here is that we were not told by Challenges the efforts made by the Law governing Armed Conflict to bring
Charles Taylor to order from committing war crimes further. 55
Again, ECOWAS NOW, (1998) regrets the flagrant perpetration of war crimes by Charles Taylor and his Associates ranging from genocide, child soldiers, gouging of eyes to illegal possession of arms, as well as internal displacement of civilians unjustly in the Liberia armed conflict. One is therefore anxious to know the efforts of the then OAU, now (AU) in ensuring sanity and enormous respect to the law of armed conflict.
The Official Journal of ECOWAS, (1997:4) has it that more than two hundred (200) persons from the Mano and Gio ethnic groups were killed by troops of the government of Liberia with breasts and genitalia cut off. Between December 1989 and mid-1993, Charles Taylor’s national patriotic Front of Liberia (NPFL) was estimated to have been responsible for thousands of deliberate killing of civilians.(Amin, 2003:24) The Armed Conflict Report on Liberia , (2002:10) supports
Amin by stating that when the cold war was over, and Charles Taylor’s band of rebels
- some of them children - clashed with government forces and other ethnic militias in the streets, the resulting conflict was so frighteningly gruesome that for many, it was almost impossible to understand.
The Report and Amin, however, did not tell us the immediate response of some world body organizations, like the UN, OAU (now African Union) on stopping the war crimes and bringing Charles Taylor and allies to book.
Meanwhile, between 1997 and 2003, the people of Liberia experienced some ugly trends in their fatherland, as a result of Taylor’s administrative obstinacy and military exuberance, coupled with unprecedented attitudinal treachery. According to
Jokon and Mankah (2004:6) the insurgencies that affected the Lofa County in April and August 1999 constituted a major setback for Liberia. The Lofa County was the single largest refugee relief zone in Liberia, as well as the single largest county of 56 return for Liberian refugees, mainly from Guinea. The disturbance caused looting, theft, and destruction of infrastructure and equipment in Lofa County. Refugees scattered over a wide area as they sought to flee from Kolahun, and the general security situation and logistics constraints during this peak rainy season which did not permit assistance to reach them in the immediate period. Klaruim, (2004:52) welcoming the views of Jokon and Mankah, emphasizes that fighting intensified during 2001 between the security forces and the Liberians United for Reconciliation and Democracy (LURD). The LURD and many expatriate opposition groups have insisted that President Taylor leave office and that an interim government assume power, while the president insists on staying in power until the end of his term.
Violent conflict has continued between the Armed Forces of Liberia (AFL) and the
LURD in Northern Liberia, mostly in Lofa County. The overall situation continued to deteriorate in 2002 as sporadic fighting and insecurity hindered the efforts of relief agencies to reach vulnerable populations. These fighting did not go on without increase in perpetrating war crime that Liberia Today, (2004:5) reports that the
Liberian Civil war, which was one of Africa’s bloodiest, claimed the lives of more than two hundred thousand (200,000) Liberians and further displaced a million others into refugee camps in neighboring countries.
Liberia's seven-year civil war resumed in 1996 despite high hopes raised by the 1995 Abuja, Nigeria, peace accords. According to Vogt, (1998:42) “fighting began early in the year when Roosevelt Johnson, a Krahn tribe leader and warlord of the breakaway Ulimo-J faction, ordered his fighters to attack the Nigerian-dominated
West African peacekeeping force, ECOMOG, near Tubmanburg, about 50 miles from
Monrovia, where the peacekeepers were protecting the diamond mines in the area”. 57
In early April, the peace accord fell completely apart when Johnson, who was upset at being left out of the ruling Council of State in the 1995 agreement, was removed from his minister position. Also, Lyons, (1999:75) provides that the six-member Council of State, led by Charles Taylor of the National Patriotic Front of Liberia and Alhaji
Kromah of the main Ulimo faction, ordered Johnson arrested on murder charges.
Johnson then fled with hundreds of hostages, including a number of foreigners, to the
Barclay Training Center (BTC) in Monrovia. The barracks came under intense attack and in the following weeks fighting and looting among the various factions engulfed the city. There were even reports that ECOMOG peacekeepers were involved. By the time fighting slowed in late May an estimated 3,000 people had been killed.
Thousands more were forced from their homes, and Monrovia was in ruins.
GAPS IN LITERATURE
First and foremost, we wish to posit that the literature so far reviewed especially on the historical development of Liberia, up to the moment of its bloody civil war and the post-civil socio-economic and political reconstruction have been limited by the fact that they took a passive assessment of the Law of Armed Conflicts and its mechanism of enforcement in the Liberian Civil War, especially with respect to the immediate and the remote causes of the war. Secondly, the explanatory inroad into the nature and character of the violations of the law of war by the various parties involved in the
Liberian Civil war was as shallow as possible in the reviewed literature. In the same vein, the existing works were able to cover the extent to which ethnicity, ethnocentrism, and divergent economic, political and social interests had tremendously contributed to the intense nature of the war, but not as exhaustive as possible. 58
Lastly, we found in the reviewed literature that diplomatic external intervention in the Liberian Civil War describes and analyzes the art of mediating in the midst of war, techniques of encouraging negotiation, problems of cease-fires, troop encampment and demobilization, the fundamental causes of civil war in Africa, and cultural gaps between mediators and protagonists. Cohen, (2009:33) candidly characterizes key personalities and events and offers valuable lessons for practitioners of internal conflict resolution in Liberia. With civil wars still raging in Africa, Cohen's experiences as a diplomatic practitioner of conflict resolution and the complex lessons he learnt in the trenches remain as relevant as ever. However, Cohen fails to address the various approaches such diplomatic external interventions could take, taking into consideration the bloody civil war in Liberia.
1.6. METHOD OF DATA COLLECTION
We adopted the observation method of data collection as modern social science is rooted in observation. Observation is the method by which political scientists study the behavior of occupant of roles. Observation is a purposefully planned and executed act of watching or looking at the occurrence of events, activities and behaviours which constitute the subject or focus of research or study (Obasi, 199:69) Nachmias &
Nachmias, (1981:153) Plascoppiah, (1990:37) affirm that all social science research begins and ends with observation.
The usefulness of observation is again discussed by Patricks, (1997:29) and
Swazingpolo, (2000:98) who explained that deliberate and sustained personal observation is an indispensable part of the study of any social institution from which the investigator classifies his ideas, revises his personal classifications and tests his tentative hypotheses. Observation has directness as its major virtue because it makes possible to study behavior in their order of occurrence. Observation relies on firsthand 59 data and, therefore, minimizes the theoretical and personal bias or artificiality.
Matilda Riley (1963) holds that even though disposition to act politically and socially may be best accessed by questionnaire, observational methods are required to assess the “acting out” of these dispositions. More so, the relationship between a person and his environment is often best maintained in observational studies. Opportunities for analyzing the contextual background of behavior are improved by the researcher’s ability to observe the environment in operation with the observed.
Obasi, (1999) identified two forms of observation methods – the participant ant the onlooker or spectator – which aid a variety of research purposes and states that in the onlooker type, the researcher is restricted to watching the activities because “the onlooker sees most of the game” and is in a better position to judge than those who are taking part. Weich, (1968) supported by Ekuma (1957:141-149; 1965:441), holds that observation helps the researcher to evaluate verbal, nonverbal, extra-linguistic and linguistic phenomenon in order to compare them with actual behaviours. For our purpose of a descriptive study of the Law of Armed Conflicts in Africa: a Study of the
Liberian Civil War, observation method is apt to aid our sources of primary and secondary data.
Data for this scholarly research were extracted from primary and secondary sources.
The Primary Data sources included institutional and official documents from international organizations such as the United Nations (especially, United Nations
Division for Law of Armed Conflicts and office of Public Information) for information on current developments on International Humanitarian Law as regards its implementation in the Liberian Civil war. Relevant Official documents on
International Humanitarian Law Reports were also gathered from the libraries of the
Nigerian Institute of Advanced legal studies, Lagos, Nigerian Institute of International 60
Affairs, Lagos, Nigerian Institute of Social and Economic Research, Ibadan, United
States Information Centre, Lagos, Command and Staff College, Jaji, (Kaduna State)
National Institute for Policy and Strategic Studies, Kuru, (near Jos) ECOWAS
International Secretariat, Abuja, Liberian Embassy, National War College, Abuja and the University of Nigeria, Nsukka and Enugu campuses. Important primary as well as secondary materials were also sourced from the internet.
Also, data were collected from secondary sources such as textbooks, learned journals, magazines and other written studies on the contemporary Law of Armed Conflicts to collaborate the institutional and official documents. Effective utilization of the secondary data sources helped to determine the nature of scholarly thought and research, as well as broadening the research from which empirical analysis on the
Law of Armed Conflicts in Africa with respect to the Liberian Civil war is based.
Research Design
We adopted the ex-post facto analysis in our research design. Cohen and
Manion (1980) explain the phrase “ex-post facto” which means ‘after the fact’ or
‘retrospectively’ which refers to those studies that investigate the possible cause-and – effect relationships by observing an existing condition and searching back in time for plausible causal factors, conditions and /or situations.
An ex-post facto research is defined by Kerlinger (1977) as a descriptive research in which an independent variable has already occurred and in which, therefore, an investigator starts with the observation of dependent variable then studies the independent variable in retrospect or after the fact to discover its relationship to and effect on, the dependent variable. 61
Here, the ex-post facto or single-case design assumes the language of experimental design though it is based on observation for plausible evaluation of existing cases.
In the single-case design,
RR B1 B2 B3 X A1 A2 A3 1 Where,
O = observation
R = random assignment of subjects to experimental groups and
random assignments of experimental treatments to elemental groups
X = independent experimental variable which is experimentally manipulated.
Y = dependent experimental variable
B = Before observation
A = After Observation
This has a series of Before observation and one case (subject) and a series of After observations. It is an extension of quasi experimental design. Unlike experimental designs that rule out the effects of influences other than exposure to an independent variable or a stimulus, quasi experimental designs do not require randomization and often depends on stimulus-response and property-disposition relations (Rosenberg,
1968) to explain the possibility that influences other than the treatment can be ruled out by additional empirical evidence and/or data analysis techniques.
A randomized judgmental selection of “before” and “after” of the execution of the law of armed conflict in the Liberian civil war before 1997 and after and the mode and nature of conduct of hostilities which overstretched the capacity of institutional mechanisms of enforcement of international law of war in Liberia before 1997 and after. 62
The analytical routines involved in testing Just War theory, hypothetical inductions are based on concomitant variation of independent variables (X) and dependent (Y). This demonstrates that (X) is the factor that determines (Y).
In testing the hypothesis which states that: “In operational conduct and occupation, irregular warfare tends to disregard the provisions of international law of war”. Then
“irregular warfare” is seen as (X) while “the provisions of international law of war” is seen as(Y).
The empirical indicators of (X) are
• Illegal possession of dangerous weapons
• Sexual slavery
• Child Soldiers
• Arson
• Torture
The empirical indicators of (Y) are
• Four Geneva Convention of 1949
• Two Additional Protocols of 1977
• The 1997 Convention on the Prohibition of the use, stock piling, Production
and Transfer of anti-Personnel mines and on their destruction.
Method of Data Analysis
The method of data analysis is contained in the logical data table presented below:
63
Logical Data Framework (LDF)
S/N Hypothesis Variables Main Indicator Data/Source Method of Data Method of Analysis Collection 1 In (X ) * Illegal *UN Observation method Theoretical framework operational Irregular possession of Secretarial of primary and of just war theory, ex conduct warfare dangerous Website secondary sources post facto design, and weapons *UN document of recorded human statistical tables, occupation *Sexual slavery * ICRC documents such as figures, classifications , irregular *Child Soldiers document books, charters, and description of warfare *Arson *Library text, treaties, website, recorded works, tends to *Torture journal, essays, reports, concepts, themes, disregard magazines, discussions and inspections, challenges, the newspapers. journals. discoveries etc. provisions * Reports and of resolutions. Internation al law of war. *Four Geneva *UN Observation method Theoretical framework (Y) convention of Secretarial of primary and of just war theory, ex The provision 1949 Website secondary sources post facto design, of *Two *UN document of recorded human statistical tables, International additional * ICRC documents such as figures, classifications law of war. Protocols of document books, charters, and description of 1977 *Library text, treaties, website, recorded works, *The 1997 journal, essays, reports, concepts, themes, Convention on magazines, discussions and inspections, challenges, the Prohibition newspapers. journals. discoveries etc. of the use, *.Reports and stock piling, Resolutions Production and Transfer of anti-Personnel mines and on their destruction 2 Guerrilla (X) *Striking *UN Observation method Theoretical framework warfare Guerrilla swiftly and Secretarial of primary and of just war theory, ex tends to warfare unexpectedly Website secondary sources post facto design, grossly *Ambush *UN document of recorded human statistical tables, violate patrols and * ICRC documents such as figures, classifications enforceme supply convoys document books, charters, and description of nt action *Disrupting *Library text, treaties, website, recorded works, of the enemy journal, essays, reports, concepts, themes, Internation activities magazines, discussions and inspections, challenges, al law of newspapers. journals. discoveries etc. war *Reports and Resolution
(Y) * ECOMOG *UN Observation method Theoretical framework Enforcement *UNAMIL Secretarial of primary and of just war theory, ex action of the *African Union Website secondary sources post facto design, International *International *UN document of recorded human statistical tables, law of war Criminal Court * ICRC documents such as figures, classifications document books, charters, and description of 64
*Library text, treaties, website, recorded works, journal, essays, reports, concepts, themes, magazines, discussions and inspections, challenges, newspapers. journals. discoveries etc. * Reports and Resolutions
3 Unconvent (X) *Ethnic interest *UN Observation method Theoretical framework ional Unconvention *Propaganda Secretarial of primary and of just war theory, ex observance al observance * Displacement Website secondary sources post facto design, of the rules of the rules of of Civilians *UN document of recorded human statistical tables, of warfare warfare in *Refugees * ICRC documents such as figures, classifications in civil civil war *Arms document books, charters, and description of war tends trafficking *Library text, treaties, website, recorded works, to relegate journal, essays, reports, concepts, themes, the magazines, discussions and inspections, challenges, observance newspapers. journals. discoveries etc. of human *Reports and rights. Resolution
(Y) *Right to life *UN Observation method Theoretical framework Observance * Liberty and Secretarial of primary and of just war theory, ex of human Security of Website secondary sources post facto design, rights persons *UN document of recorded human statistical tables, * Freedom of * ICRC documents such as figures, classifications conscience and document books, charters, and description of Religion *Library text, treaties, website, recorded works, Freedom from journal, essays, reports, concepts, themes, arbitrary arrest magazines, discussions and inspections, challenges, *Freedom from newspapers. journals. discoveries etc. interference, in *Reports and privacy, home, Resolution etc *Right to Education
1.7. THEORETICAL FRAMEWORK
Our analysis of the law of Armed Conflicts in Africa with particular reference
to the Liberian Civil war is based on the theoretical context of Bellum Justum (Theory
of a Just War) derived from the Global Theory of Law and the State. The focus of our
analysis is based on the implementation of the law of Armed Conflicts in the Liberian
Civil war. The major exponent of this theory, was Jacobs Justino, (1895-1932) it was
later popularized by Michael Hallinton, after the second (2 nd ) World War.
Just War theory deals with the justification of how and why wars are fought. The
justification can either be theoretical or historical. The theoretical aspect is concerned 65 with the ethically justifying war and forms that warfare may or may not take. The historical aspect, or the “just war tradition”, deals with the historical body of rules or agreements that have applied various wars across the ages. For instance, International agreements such as the Geneva and Hague Conventions are historical rules aimed at limiting certain kinds of warfare which Nation- States refer to in prosecuting war criminals, but it is the role of ethics to examine these institutional agreements for their philosophical coherence as well as to inquire into whether aspects of the conventions ought to be changed. The just war tradition may also consider the thoughts of various scholars of International law and jurisprudence through the ages and examine both their philosophical visions of war’s ethical limits (or absence of ) and whether their thoughts have contributed to the body of conventions that have evolved to guide war and warfare.
The just war tradition is indeed as old as warfare itself. Early records of collective fighting indicate that some moral considerations were used by warriors to limit the outbreak or to rein in the potential devastation of warfare. They may have involved consideration of women and children or the treatment of prisoners of war (enslaving them rather than killing them, or ransoming or exchanging them)
In the twentieth century, just war theory had undergone a revival mainly in response to the invention of nuclear weaponry and American involvement in the Vietnam War.
The most important contemporary texts include Michael Walzer’s Just and Unjust
Wars (1977) Barrie Paskins and Michael Dockrill The Ethics of War (1979) and
Elizabeth Anscombe “War and Murder” (1981)
In the political circle, justification of war still requires even in the most critical analysis a superficial acknowledgement of justification. On the ground that generals have extolled their troops, to adhere to the rules, soldiers are taught the just war 66 conventions in the military academics (for example, explicitly through military ethics courses or implicitly through veterans’ experiences) Yet, despite the emphasis on abiding by war’s conventions, war crimes continue.
Just war theory, offers a series of principles that aim to retain a plausible moral framework for war. From the just war (justum bellum) tradition, theorists distinguish between the rules that govern the justice of war (jus ad bellum) from those that govern just and fair conduct in war (jus in bello) and the responsibility and accountability of warring parties after the war (just post bellum) The three aspects are by no means mutually exclusive, but they offer a set of moral guidelines for waging war that are neither unrestricted nor too restrictive.
However, the just war theory bridges theoretical and applied ethics, since it demands an adherence, or at least a consideration of meta-ethical conditions and models, as well as prompting concern for the practicalities of war.
The theory states that nation- states and combatants should abide by the law of armed conflicts, no matter the circumstances. The implication of this therefore, is that torture, genocide, taking of hostage, child soldiers, amputations, rape of women and children, the maltreatment of the prisoners of war, as well as the application of weapons of mass destruction, should not be experienced in any armed conflicts.
Accordingly, this theory is important to this study in the sense that it will enable us explain the extent to which the law governing Armed Conflicts was implemented in the Liberian civil war. Liberia is a signatory to the United Nations Charter, OAU
Charter (now AU) and the ECOWAS. According to the UN Charter, (Article 26)
“every treaty is binding upon the parties to it, and must be performed by them in good faith” – pacta sunt servanda. 67
Therefore, it is the submission of this theory to hold war criminals responsible for violating the law governing Armed Conflicts during or after the war.
1.8. HYPOTHESES This research formulated and investigated three conjectural statements namely:
1. In operational conduct and occupation, irregular warfare tends to disregard
the provisions of international law of war.
2. Guerrilla warfare tends to grossly violate enforcement action of the
international law of war.
3. Unconventional observance of the rules of warfare in civil war tends to
relegate the observance of human rights.
1.9. DEFINITION OF TERMS Armed Conflicts: Armed conflicts could mean a line of action that results from the meeting of opposing points, which might take the form of struggle, quarrel, or even exchange of weapon.
Law of War: According to the Hague Convention (1907), Law of war simply means a body of rules or code of conduct which regulate the conducts of the combatants in times of war. This law of war is also known as the “Hague Law” which is currently referred to as the Law of Armed Conflicts. This aspect of law is furnished directly to the High Commissioner of the armed forces.
Civilian: A civilian is a person who is not a member of the armed forces. Civilian refers in all cases to men and women and of course children of either sex.
Dangerous Forces: Th is applies to dams, dykes, and nuclear electrical generating stations.
Attacks: An act of violence against the adversary, whether an offence or defense. 68
Children : People who are not yet 18.
Certain Conventional Weapons : it governs weapons which may have indiscriminate effects or cause unnecessary injury.
ICRC: International Committee for the Red Cross and Red Crescent.
Rear Areas : Activities that take place in area where there is normally no fighting.
Logistics: All military activities aimed at combating support.
Nuclear Weapon: A weapon that derives its power from nuclear fission or fusion.
Non-Lethal Weapon: Non destructive weapons
Espionage: An activity of using spies to gather secret information
Internee: An inmate of a prison, prisoner-of-war camp, or similar place during a war.
Detainee: Somebody kept under restraint, i.e. one who is held in custody.
Belligerent Nation: Relating to or a participant in war or a fight.
Plenipotentiary: Conferring full power, i.e. giving the holder complete authority to act independently.
Insurgency: A rebel against an authority or leadership.
69
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CHAPTER TWO
LAW OF ARMED CONFLICTS
In this chapter, we shall examine the law governing armed conflicts in its various respects, as may be applied in any circumstance of war as a standard practice in
International law.
2.1. CUSTOMARY INTERNATIONAL LAW
The modern law of Armed Conflicts is clearly based on customs and traditions and experience of armed conflicts throughout the ages, all of which have, over the years, developed into “hard law” namely customary international law and treaty law.
In our consideration of the law of Armed Conflicts, it is important to take into account customary international law together with treaty law, which we will cover shortly. It is the principal source or component of the law of Armed Conflicts. It results from the general and consistent practice followed by states out of sense of Legal obligation.
The most obvious significance of the rules of customary international law is that they are binding on all States. This has some very important consequences. Even if a state is not party to a particular treaty, it is nevertheless bound by the provisions of that treaty which either codify existing customary international law or which have them become customary. According to Friedman, (1972:78) “the International Military
Tribunal at Nuremberg decided that, the regulations annexed to Hague Convention
No. IV international law, were therefore binding on Germany, a party to the convention, even though it was engaged in an Armed Conflict with Czechoslovakia, which was not party to the convention”.
Customary international law is also important for regulating matters which are not covered by law of armed conflict articles. For example, few of the rules applicable in non-international armed conflicts have been codified, but there is substantial body 74 of customary international law governing the conduct of operations in such conflict situations. Reisman, (1994:56) maintains that “the subsequent codification of existing rules of customary international law in treaties or conventions does not mean that the customary rules cease to exist or are no longer in vogue. In fact, they continue to exist and to evolve independently, alongside the treaty norms. This is expressed in what has become known as the Marten’s clause, which first papered in the preamble to the
1899 Hague Convention No 11 and was later to take the form of an article common to each of the Geneva conventions”. The Marten’s clause reaffirms that even if party denounces the convention, this “shall in no way impair the obligations which the parties to a conflict shall remain bound to fulfill by virtue of the principles of the law of nations, as they result from the usage established among civilized peoples, from the law of nations, as they result from the laws of humanity and the dictates of public conscience”.
In short, customary international law is of considerable importance to us. At times, it constitutes cornerstone of modern treaty law. To others it has developed from treaty law, and sometimes, it fills the gaps where no treaty law exists. Further, it clearly demonstrates the universal nature of the law of Armed Conflicts. It is neither western nor eastern law.
2.2. TREATY LAW
The treaty-making process began in the 1860s, when an international conference was held on two separate occasions to conclude treaties dealing with very specific aspects of the law. The first treaty was born quite literally on the battlefield of Solferino in
1859. Here, some thirty thousand (30,000) soldiers were left wounded or dead within the space of a few hours. Army medical services were virtually non-existent at the time. The scene of carnage was witnessed by a Swiss business man, Henry Dunant, 75 who happened to be in the region. He postponed his business trip and with the help of local village, did what he could to assist. On his return to Geneva, Dunant wrote a book on his experience, “A Memory of Solferino”. According to Schindler et al
(1988:65) “states should formulate some international principles sanctioned by a convention inviolable in character and giving legal protection to wounded soldiers in the field”. These proposals received enormous support all over Europe. To make a long story short, Dunant’s practical experiences of battle led to a diplomatic conference in Geneva, Switzerland, which resulted in the initial Geneva Convention of August 1864 for the Amelioration of the Condition of the Wounded and sick in
Armies in the field. For the very first time, states agreed to limit, in an international treaty open to all, their own power to wage war in favour of the individual, and for the first time, war gave way to written law. Modern international humanitarian law Or as we will continue to refer to it for military audience the law of Armed Conflicts, had been born. Scott and Brown, (1918:47) state that shortly after this, in 1868 in St
Petersburg, Russia, an international treaty was drawn up prohibiting the use of explosive rifle bullets under 400 grammes in weight. The St Petersburg Declaration, as the treaty is called, was the first to limit the use of a weapon of war. It also codified the customary principle prohibiting the use of weapons that cause unnecessary suffering or superfluous injury, which is still valid today. These two international conferences were therefore the starting point of the contemporary law of Armed
Conflicts. Both, as you can see, dealt with practical aspects of war: the first, which protects the victim of Armed Conflicts, has generally become known as Geneva Law, the second, which contain restrictions and prohibitions on the means and method of warfare, is known as Hague Law. Terms derive from the fact that the relevant treaties were drafted primarily on those sources. 76
With respect to Askin and Dawn, (1997:54) the Geneva Law comprises the four
Geneva Conventions drawn up in 1949 (and which supplemented the earlier conventions of 1864, 1906 and 1929). They concentrate on protecting the victims of armed conflict.
• The first Geneva Convention protects the wounded and sick on land. • The second Geneva Convention protects the wounded, sick and shipwrecked at sea. • The third Geneva Convention deals with the status and treatment of prisoners of war. • The fourth Geneva Convention protects civilians in times of war.
On the other hand, the Hague law deals with the practical military aspects of the conduct of hostilities for example, the Hague Regulations, first drafted in 1899 and amended in 1907, deals with the laws and customs of war on land, and the 1899
Hague Declaration on Expanding Bullets, banned the use of such ammunition. Hague
Law covers in particular:
• The rights and duties of the belligerents in their conduct of operation.
• The limitations and prohibitions in the choice of methods and means of
warfare.
• The rules regarding occupation and neutrality.
This chapter will be incomplete without a few words on another branch of international law which applies both during Armed Conflicts and in peacetime, namely human rights Law. This branch of the law is as important to the military as those we have already mentioned. Its aim is to protect the rights of the citizen against state authorities. The rights are contained in UN instruments such as the UN Covenant on Civil and Political rights and in regional Conventions and charters in Europe,
Africa and the Americas. All the rights listed in those treaties apply at all times. 77
Although, a state may derogate, under very specific conditions from certain human rights in the event of a public emergency threatening the existence of the nation, a number of core rights always apply. For the military, the two most important ones to remember are:
The right to life even in armed conflicts, acts such as the killing of prisoners and execution of hostages are unlawful. Torture, cruel, inhumane or degrading treatments are prohibited. Rape and sexual assault constitute torture. Atherley, (1907:55) argues that all the other rights can be modified, but never eliminated. For example, in an
International Armed Conflict, formal fighters can be detained as prisoners of war but even in an Armed Conflicts it is unlawful to arbitrarily detain people and to hold them incommunicado for a long period of time without having the desertion properly authorized.
The human rights system and the law of armed conflict should be seen as complementary. Respect for human rights should not be fragmented into time of peace and conflict. It is after all in conflict situations that those rights are most at risk and that civilians will look to the armed forces for protection.
2.3. CIVILIANS AND ASSOCIATED PERSONNEL PROTECTED BY THE LAW Under this law, civilians are not to be attacked. A civilian is a person who is not a member of the armed forces. Civilians are not permitted to take a direct participation.
“Civilian” refers in all cases to men and women and, of course, children of either sex.
In the view of Bailey, (1972:32) civilians who accompany the armed forces are people such as war correspondents, welfare, supply, labour or contract or personnel or civilian members of military air-craft crews and these are issued with a special identity card. They are in the same position as other civilians in that they must not take a direct part in hostilities in order to be protected against attack. They share the 78 dangers of conflict in the same way as the armed forces they accompany. If captured, they are entitled to Prisoners of War (POW) status and treatment. (See Appendix I)
Again, Bassionni, (1992:41) argues that in addition to accredited war correspondents, journalists may be found operating well forward on dangerous professional missions in conflict zones. They must, however, behave in such a way as to make themselves recognizable as civilians to guarantee their immunity. They may also obtain an identity card from their own government proving their status as journalists. Also, they must accept the dangers and risks of conflict. If captured, they must be treated humanely, protected and handed over to superiors, who will deal with them in accordance with specific provisions of the law applying to alien civilians. In contrast to war correspondents they are not entitled to POW status.
On the other hand, the law grants the same status to civilian medical and religious personnel as it does to military medical and religious personnel. These must be protected and respected. Every effort should be made to enable them to continue their work. The only difference is that if captured and required to be detained, military medical doctors or religious personnel receive POW treatment at a minimum because they are considered part of the armed forces. Civilian medical and religious personnel should wear a distinctive arm band with the Red Cross or Red Crescent (or red lion and sun) but this might not always be the case.
Further, Beigbeder (1991:27) points out that the purpose of civil defense is to protect the civilian population as far as possible from the effects of hostilities and to help it survive. Civil defense tasks might include warning, rescue and fire fighting operations, the construction of shelters, and emergency assistance in restoring and maintaining order in distressed areas. Civil defense organizations belong to the civilian sphere, although military unit might be assigned to support them. Their 79 personnel, buildings and equipment should be marked with the distinctive sign of civil defense: a blue triangle on a square orange background. Their personnel should also be issued with an identity card certifying their status. Civil defense workers can be armed with light individual weapons for their own protection. Civilian civil defense organizations and their personnel must be respected and protected. They must be allowed to perform their civil defense tasks except in cases of penetration of military necessity.
Finally, civil defense workers lose their protected status if they commit or are used to commit acts, which are outside their normal duties and are harmful to the enemy. Even then the protection does not cease until a warning has been given.
2.4. OBJECTS, DESIGNATED AREAS AND SIGNS PROTECTED BY THE LAW OF ARMED CONFLICTS
The Armed Conflicts law gives protection to certain objects, buildings and designated areas, and the people they contain, when marked with agreed signs. Civilian objects are not to be attacked. Civilian objects are all objects which are not military objects.
Benton, et al (1952:76) emphasize that military objects are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization in the circumstances ruling at the time, offers a definite military advantage. Examples of civilian objects are:
• buildings and facilities used by civilians, as long as they are not used for
military purposes, e.g. houses, apartment blocks, hospitals, factories and
workshops producing goods of no military significance; 80
• Offices, Markets, Warehouses, Farms, Schools, Museums, places of Worship
and other similar buildings, as well as means of transport such as civil aircrafts,
cars, trains and buses,
• Foodstuffs and food-producing areas, springs, wells, water works, reservoirs.
2.5. WORK AND INSTALLATIONS CONTAINING DANGEROUS FORCES
The Law contains a very specific definition of the term “dangerous forces,” which applies only to dams, dykes and nuclear electrical generating stations. Such facilities and military objects in their vicinity must not be attacked, if doing so may result in the release of dangerous forces which could be catastrophic for the civilian population, e.g. severe flooding or the release of radioactive material. The consequence of such an attack could also affect the operation of troops.
According to Bernhardt, (1982:59) military objects should not be sited close to these installations. They are however, authorized to provide close or defensive protection for them, e.g. anti aircraft’s guns or guards to protect against terrorist attack or sabotage. In addition, if the Opponents abuse the protection of the law and use those installations too regularly, significantly and directly to support their military operations, then the protection ceases. In such cases, imperative military necessity might well require you to neutralize them as the only means left of putting a stop to the abuse. In that case, all practical precautions must be taken to avoid the release of the dangerous forces and due regard must be paid to the safety of the civilian population, e.g. Warnings could be given to evacuate certain areas; the attack itself could be limited in scope and so on. In practical terms, bearing in mind the consequences, such decisions are likely to be made at the highest military or even political level. They are not within the decision-making sphere of a platoon commander. 81
The Law also contains guidelines on how these installations should be marked so that they can be clearly seen as protected sites by ground and air forces. Best,
(1980:64) maintains that the sign consists of a group of three bright orange circles in a line. At night these protective signs should illuminate. Remember, these and other protective signs we will mention might not always be correctly placed or indeed used at all. This does not relieve them in any way from obligation to stick to the Law and avoid attacking installations, works or buildings that could obviously release dangerous forces.
Further, the law of Armed Conflicts provides for a variety of protected zones or localities. It is important for us to know the purpose of these zones because we may well be involved as a staff officer in setting them up or as a combatant in guaranteeing their safety and protection. Although, the zones go by a number of names, they all have two features:
• to protect civilian or military victims from the effects of hostilities;
• to keep those victims out off harm’s way by guaranteeing to them and their
opponent that there are military objects in the areas that have been defined. In
this way, if opponent respects the law, the victims stand no risk of being
harmed by the effects of hostilities.
Also, hospital zones and localities established under GCI and aimed at providing protection for the sick and wounded of the armed forces and medical personnel, are created by written agreement between the two parties or by a unilateral declaration recognized by your opponent. Again, Best, (1994:68) argues that they are usually well back from the front line and marked (with red crosses or red crescents for red lion and sun) 82
The concept was developed in the Fourth Geneva convention to include the term safety zone as well. Safety zones are essentially aimed at protecting specific categories of civilians rather than just military dictions. The convention mentions in particular the wounded and sick, aged persons, children under 15, expectant mothers and mothers of children under seven. Again, they are situated well back from the front lines and are covered by exactly the same type of agreement. In this case they are marked with oblique red bands on a white ground. Equally, neutralized zones provide protection for all civilians who do not take part in hostilities as well as wounded and sick combatants. Another key difference is that they are intended for use inside the combat zones. They are set up by written agreement which includes details of exact location, how the zone is to be marked, food supply supervision and for how long the zone is to remain open. Also, neutralized zones should not be used for any military purpose, otherwise the protection disappears and these zones are likely to encompass larger areas than those described earlier. They might, for example, include whole towns.
On the non-defended localities, Boissier, (1985:29) explains that these are places directly left undefended in order to protect the civilian population and its property from injury and damage. They are set up by a unilateral declaration to the opposing party. They may also be the subject of separate agreements as required by both sides.
These agreements define as precisely as possible the limits of the non-defended locality, which is open for occupation and which your opponent’s armed forces may enter and take over. Non-defended localities are established near or inside the combat zone. They must be evacuated by all your military personnel and your mobile military weapon and equipment. They must not be used to support any military operations, such as gun positions or missile sites for offensive purposes. The party in control of 83 the locality should try to mark its limits by using signs on the perimeter or main entry roads. These localities are sometimes also referred to as open towns.
2.6. INTEGRATING THE LAW INTO MILITARY OPERATIONS
To spare, as far as possible, buildings dedicated to religion, art or science, and historic monuments, Geneva Protocol I confirms and expands this requirement by stating that no acts of hostility may be directed against such property, which must not be used in support of the military effort. Such property must not be made object of attack. Doing so, is a gross breach of the law, if the property is subject to special protection, extensive destruction is caused and the object is not the immediate proximity of military objectives.
In addition, Boisson et al (1999:193) states that the protection of cultural property is covered by a specific treaty, namely the 1954 Hague Convention on cultural property, which was supplemented with a new protocol which equally apply to international
Armed Conflicts. The two instruments provide for three forms of protection. The most relevant to us is the first; known as general protection and it is on this that we will concentrate.
This form of protection also includes special protection and is now under Protocol II.
“Should anybody be asked questions on these two categories, answers could be given as follows”:
Special Protection: states can decide to move important cultural objects to shelters, but it may be impossible to move some centers that still contain cultural objects.
These permanent or temporary centers must not be used for military purposes and must be situated well away from likely military objective, e.g. an industrial area, a port or an airport. Few states have used the opportunity to provide for this higher level of protection. To date, only the Vatican and fore shelter is designated for movable 84 cultural property, in all Europe, as a result of their registration asking for this condition.
Enhanced Protection: the latest protocol to the cultural property convention
{Protocol II} creates an even higher level of protection, known as Enhanced
Protection. This is granted to property of obvious importance to our common heritage as human beings. Such property should be entered in an international list maintained by the Committee for the Protection of Cultural Property in the event of Armed
Conflicts. In continuation, the law of Armed Conflicts on general protection applies to objects or property of great significance to a nation and its people, such as monuments, archaeological sites, major museums or libraries. Such property must be respected, avoid been damaged and not put at risk by improper military use, for example, by using it to store military or communication equipment or by locating weapons close by. Brown, (2004:36) and Thomason, (2001:106) argued that only if the site is misused or in the case of imperative military necessity should this protection cease. This decision must not be taken lightly and should be made at battalion commander level or higher and clearly marked with sign. The obligations towards cultural property are as follows:
• Soldiers should be explained the meaning of the protective sign.
• Ensure orders which include detail of these sites and their protected status.
• Avoid damaging cultural property, if at all possible.
If the property is misused by opponent and for reasons of military necessity it becomes an object which you have no choice but to target, then use the minimum force necessary to resolve the matter. The use of force should be preceded by a warning giving the opponent a reasonable amount of time to comply. Some people might say’ “they have traveled extensively and been involved in many operations but 85 have never seen such signs being used”. This may be true but again, don’t ever expect everything to be beautifully marked on the battlefield.
The law gives comprehensive and detailed protection to hospitals, medical units, medical transport and material. They must be respected and protected at all times, whether military or civilian. They must never be attacked. Military medical facilities and transport will be marked with the Red Cross or Red Crescent. A commander, in a tactical situation, may decide not to respect such protection. In such a case, the protection only ceases after a warning has been issued giving the offenders a reasonable amount of time to respond.
On the other hand, Barking and Gladys, (2005:75) affirm that in prisoners of war camp and in order to improve their safety and security, POW Camps should be clearly marked with the protective sign PW or PG (the French prisoners de guerre)
Normally, information regarding the location of POW camps is exchanged between the parties, for reasons of safety and security. However, during a conflict, a state may decide to intern certain civilians in internment camps. This usually is the case in occupied territory, but it has also happened with enemy civilians on national territory.
For example, the British interned Iraqi civilians during the Gulf war. The internees basically treated as POWs. Internment is a drastic restriction of personal freedom. It is permitted only if security requirements cannot be met by less severe measures.
2.7. THE KEY PRINCIPLES AFFECTING THE CONDUCT OF ALL MILITARY OPERATIONS All of the principles of the Law of Armed Conflicts we have covered remain relevant during the conduct of operations. Two principles, however, are of paramount importance. It is vital that you understand and apply them in the planning and conduct of any military operation. 86
It must be distinguished between combatants and civilians or the civilian population as principle of distinction in law governing Armed Conflicts. Both notions are familiar to combatants. Many of course are attacked unless they are out of action, i.e. hors de combat. Civilians are protected from attack but lose this protection during any period in which they take a direct part in hostilities. The protection of civilians applies to both enemy civilians and one’s own civilians.
Similarly, it must be distinguished between military objectives and civilian objects.
Only military objectives may be attacked. Civilian objects must not be made the objectives of attack unless they have become military objectives.
Acts or threats of violence whose primary purpose is to spread terror among the civilian population are prohibited.
As a consequence of the principle of distinction, indiscriminate attacks are prohibited. These are:
• Attacks which are not directed at a specific military objectives
• Attacks that employ a method or means of combat which cannot be direct at a
specific military objectives
• Attacks that employ a method or means of combat, the effects of which cannot
be limited as required by the law of Armed Conflicts.
Examples of indiscriminate attack are firing artillery or launching a missile in the general direction of the target {e.g. the use of the V2 missile during the second world war} or area bombardment in populated areas rather than the selection of individual clearly separated military objectives located there: This prohibition does not prevent the denial to the enemy of an area of law which is a military objective by, for example, artillery fire. 87
When military objectives are attacked, civilians and civilian objects must be spared incidental or collateral damage to the maximum extent position to the direct and concrete military advantage you anticipated from your operation. Such use of excessive force quite clearly violates the law of Armed Conflicts and is a war crime.
This means that when you plan or carry out operations, you are not allowed to engage in disproportionate attacks even with regard to combatants and military objectives.
You have to take into account the likely effect on civilians and their property. If it is apparent that the harm that might be caused to them in attacking a military objective with a particular weapon would be disproportionate in relation to the military advantage anticipated, then either use a different weapon which would not cause disproportionate harm to civilians or their property, or do not carry out the attack.
Clearly, to stay within the law requires good intelligence, planning and clear rules of engagement all three of which are, after all, the product of good training and professionalism in any military force. It also makes evident sense not to waste your own lives, time and ammunition in disproportionate attacks.
2.8. PERSONS AND OBJECTS SPECIFICALLY PROTECTED IN ALL OPERATIONS Medical and religious personnel and their facilities, both civilian and military are covered by special rules. These need to be taken into account in the conduct of operations, and in formulating the military medical plan. Who is protected? Medical and religions personnel, both military and civilian, have protected status and must not be attacked. These persons should display the distinctive emblem of the Red Cross or
Red Crescent. If military medical or religious personnel are captured and need to be retained, they are not POW, but receive POW treatment as a minimum. Medical personnel may be armed with light weapons for self-defense and the defense of echoes under the care. What is protected? The law gives comprehensive and detailed 88 protection to all civilian and military hospitals, medical units, medical transports and medical materials. Religious centers and items used for religious worship are also protected. They must be respected at all times and must never be attacked. Military and civilian medical facilities and transport are usually marked with the Red Cross or
Red Crescent (or red lion and sun) although for tactical reasons this may not be the case. Civilian hospitals and equipment should always be marked with the distinctive emblem. If the medical or religious facilities or equipment are being used for military purposes, they lose their protection, but only after a warning has been given which gives the offenders a reasonable amount of time in which to respond and after such warning are ignored or remain unheeded. Christopher, (1999:63) and Michael,
(1999:45) state that “under no circumstances must medical or religious protection be used to try and shield military objectives from attack” If at all they do not use the distinctive emblem, the personnel, facilities, equipment and so on, of civilian and military medical units are entitled to protection if it is known that is the function they are performing.
Medical units must be sited well away from military objectives. The law, however, does not lay down any specific distances. In the case of military medical units, this is obviously a matter for the commander to decide, taking into account the nature of the unit. However, a medical aid post or field ambulance might have to be sited well forward and will normally be camouflaged just like another tactical unit. A field hospital or permanent military hospital sited in the rear will normally be marked with the red cross or red crescent or red lion and sun and have full protection under the law.
On the other hand, why do we need to have separate sections on women and children? Are they not covered in the section on civilians? Of course, women and 89 children are protected as civilians. They do, however, also have to be considered separately for two reasons by the UN regulation.
First, both categories have special additional protection under the law, and secondly, both play an important role in combat – women legally and children illegally. Let us look at both categories in turn:
WOMEN: Women must be treated with special respect. Any attack on the physical or psychological integrity of women, in particular rape, enforced prostitution or any form of indecent assault of men are of course also prohibited, but such attacks are more prevalent on women. In the event of their detention, families must be kept together. Otherwise women are to be kept separate from men. If a pregnant woman or a mother with a young child is detained on suspicion of an offence, then her case is to be treated with priority. In the case of an offence related to the Armed Conflicts, pregnant women and the mothers of young children can be sentenced to death but the death penalty should not be carried out.
Women have full combat status in many armed forces throughout the world, in frontline as well as staff or logistic appointments. As combatants they must respect and are protected by exactly the same rules as their male counterparts. If captured, they must be treated with respect and not subjected to any form of violence, including sexual violence or abuse. If moved to a POW camp, they should be held separately from men.
Rape and indecent assault are prohibited and in most cases are forms of torture covered by a provision of the law. Rape, constitutes torture or “inhumane” treatment, is a grave breach of law and can be prosecuted by the courts of any state. Such abuse is all too common in conflict situations. Indeed, in recent conflict, e.g. in the former
Yugoslavia, Rwanda, Darfur in Sudan and the most devastating, Liberia systematic 90 and organized rape appears to have become an instrument of military policy. Such conduct debases the profession of arms and, like torture, must be held beneath contempt by all soldiers. If committed, it is a clear indication that discipline has completely broken down and that commanders lack any control over their subordinates.
CHILDREN: By children we generally mean people who are not yet 18. In the law of Armed Conflicts, however, different provisions apply to those under 15 years of age and those between 15 and 18. Children are entitled to special respect and must be protected against any form of indecent treatment. Every effort must be made to provide them with the special care and aid they require. A particular tragic aspect of modern conflict is the active participation of children in hostilities; both boys and girls. This would seem to have less to do with cultural traditions and more to do with expediency or the shortage of soldiers. Sometimes, it is simply an excuse for abuse by those in power; in other words getting a child to do an adult’s job. These children soldiers, with little or no training are often fed with diet of alcohol and drugs. Of course, they can constitute formidable and tough foes to deal with. In dealing with them you must, have due regard and some sympathy for their plight.
The law prohibits the direct participation in hostilities of children under the age of 15, who must not be recruited to the armed forces. (See Appendix ii). In recruiting those who have reached the age of 15 years but are not yet 18 years old, priority should be given to those who are the oldest.
If children are recruited into the armed forces or take a direct part in hostilities, they must, if captured, be guaranteed treatment and conditions of captivity which take their age into consideration whether or not they are POWs. Certainly in no circumstances should the standard of treatment given to them be lower than that given to POWs. In 91 particular such child soldiers must be held separately from adults, unless in a family unit.
In the case of children aged between 15 and 18, the more their treatment can be similar to that of those under 15, the better. Regarding the death penalty and children; in international armed conflicts persons under 18 where an offence was committed can be sentenced to death, but the sentence must not be carried out. In non- international Armed Conflicts, persons who were under 18 when they committed the offence may not even be sentenced to death.
2.9. METHOD OF WARFARE PROHIBITED IN ALL OPERATIONS It is prohibited to set out to starve civilians as a method of warfare; that is the old siege concept. It is also prohibited to direct attacks against, destroy, remove or render useless objects vital to their survival, such as foodstuffs, agricultural areas for the production of food, crops, livestock, drinking water installations and supplies for irrigation work. Morris, (2005:69) and Ericson, (2004:35) emphasize that “this prohibition does not apply to objects that are being used solely by the armed forces or indirect support of military action.” Even then, however, if these attacks would adversely affect the civilian population, and leave it with inadequate food or water, cause starvation or force it to move, then they are prohibited.
A scorched-earth policy may be implemented in exceptional cases where it is absolutely necessary to defend national territory against invasion.
ACTION ALLOWED IN OPERATIONS Ruses of War- this is a customary term that essentially refers to deception. Any good commander will use deceiving the enemy about the military situation to achieve milestone. The strength of your own forces, their location and your intentions and plans, have been customary tools of warfare throughout the ages. Ruses of war are 92 permitted. They comprise acts that are intended to mislead the enemy but do not infringe the law of Armed Conflicts and do not come under the heading of perfidy.
Example includes:
• Camouflage and concealment, either natural or in the form of camouflage nets, camouflage paint or smoke to cover movement: • Feints or deceptive attacks, flanking attacks to catch the opponent of guard; • The use of dummy weapons, for instance, rubber or wooden mock- ups of tanks or aircrafts to confuse or mislead your opponent as to your actual strength and development; • Transmission of misleading messages, using the enemy radio frequencies, breaking their passwords and codes, • Misinformation, disinformation or psychological operations to confuse or to weaken moral, provided the intent is not to spread terror among the civilian population. According to Bothe, (1982:41) “all such measures of operational deception, perfectly illustrate the exact difference between rules and perfidy, you are allowed to use nets, foliage, etc to camouflage a gun position in the field; that is a ruse of war”. You are not allowed to use canvas tenting bearing the Red Cross or Red Crescent to camouflage a gun position, implying that it is a medical facility: that as perfidious.
In the conduct of operations, there are times, apart of course from combat – where you might come into contact with your opponent. Here we refer to non-hostile contact or relations which opposing forces might find necessary or of mutual benefit.
Meanwhile, it is within the competence of any officer to arrange a temporary ceasefire for a specific and limited purpose. Obviously any such decision has to be cleared through the chain of command. Temporary cease-fires can be most useful to evacuate or collect casualties from the battlefield, or to allow civilians to be evacuated to a safer location. Cease-fires are limited in time and scope. Absolute good faith is required on both sides. You can contact the enemy by using intermediaries. The law 93 provides for two main options. The first is the use of a protecting power. This is a neutral state designated by a party to the conflict and accepted by its opponent. The protecting power acts as the honest broker between the two sides. It might, for example, visit POW or internment camps to ensure the law is being applied.
Bordwell, (1988:37) affirms that “States have in fact rarely used this facility, although, for example, the United Kingdom asked Switzerland to act as its protecting power during the Falklands/Malvinas conflict and Argentina asked the same of Brazil.
The second option is to use an impartial humanitarian organization as a substitute for the protecting power”. This is more frequent. For example, the international committee of the Red Cross is often requested to act as an intermediary by the parties to a conflict.
PRISONERS OF WAR – INITIAL TREATMENT ON CAPTURE IN THE COMBAT ZONE Here, we shall consider how prisoners must be dealt with immediately after capture in the operational area. All captured combatants are POWS, whether they have surrendered or not. They become protected persons under the law of Armed
Conflicts instantly when they fall into the power of the adverse party. They become prisoners of the state and not personal prisoners. Bowett, (1964:12) relates that,” it is forbidden taking a prisoner or who is hors de combat”. In this respect, you would do well to “do unto others as you would have others do unto you” They are no doubt tired, disorientated and very frightened. During and immediately after combat, soldiers are still hyped up; the adrenaline is running very high. One minute they may be required to kill the enemy and the next they have to treat him humanely – even though he might well have killed or wounded some of their own comrades.
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WEAPONS AND THE PRINCIPLES OF THE LAW OF ARMED CONFLICT Civilians must not be the object of attack. Therefore, any weapon or weapons system which does not enable one to distinguish between combatants and civilians and between military objectives and civilian objects must not be used. (See appendix iii). As regards proportionality, when a military objective is attacked, civilians and civilian objects must be spared from incidental or collateral damage to the maximum extent possible. Such damage must never be excessive in relation to the direct and concrete military advantage one anticipates from ones operations. According to
Collagie, (2005:24) ‘when an attack is planned, one cannot assess the risk of incidental or collateral damage, unless one is familiar with the weapons or weapons system which will be employed’ an attack that is lawful with one weapon may be unlawful with another weapon. For example, an attack that may be lawful if “smart” bombs such as precision laser-guided munitions are used may be unlawful if “dumb” bombs such as free-fall 1000-pound bombs are used.
In cases of imitations, the weapons and methods of warfare that may be used are limited. Weapons that are of nature to cause combatants unnecessary suffering or superfluous injury (i.e. designed to cause or which may foreseeably cause such effects) are prohibited and should not be issued to armed forces. The use of some weapons is specifically regulated.
The 1868 St Petersburg Declaration Prohibits the use of any projectile weighing less than 400g and which is either explosive or charged with fulminating or inflammable substances. The Declaration states that such projectiles “would uselessly aggravate the suffering of disabled men or render their death inevitable”. It outlaws so called “exploding” bullets which detonate on impact with the human body. This treaty 95 is an early expression of the now customary rule prohibiting the use of weapons causing superfluous injury or unnecessary suffering.
Since then, technological development have changed state practices. Exploding bullets weighing less than 400g are regularly used against materials and other hard surface objects. Buscher, (1989:23) argues that the prohibition on the use of bullets which explode upon impact with the human body remains valid.
The object and purpose of the St. Petersburg Declaration and the prohibition on the use of weapons causing injury or suffering beyond what is required to take a soldier out of action are important elements of the law of Armed Conflicts.
Again, the Hague Declaration of 1899 banned the use of expanding bullets, which are also commonly known as “dumdum” bullets. These are bullets that expand or flatten easily in the human body, causing massive and often fatal wounds. Examples are bullets with a hard outer covering which does not entirely cover the softer lead or bullets that have in visions across the tip. Soldiers must be instructed not to modify their ammunition to achieve this effect.
Customary law bans the use of poison; the poisoning of arrow tips or spears being good examples, and The Hague Regulations of 1899 and subsequently those of 1907 made the ban a part of treaty law.
The use of chemical and bacteriological weapons is prohibited by treaty and customary international law. The ban applies not only to direct use against enemy combatants, but also to the toxic contamination of water supply installations, food stuffs and other similar uses.
The ban also extends to the use of non control agents and toxins in Armed Conflicts as a method of warfare. 96
CERTAIN CONVENTIONAL WEAPONS The 1980 convention on prohibition or restrictions on the use of certain conventional weapons is deemed to be excessively injurious or to have indiscriminate effects. The convention on certain conventional weapons, often referred to as the
CCW, is a corner stone in the regulation of conventional weapons. Busuttil, (1998:43) relates that ‘it governs weapons which may have indiscriminate effects or cause unnecessary injury’. In an attempt to limit the suffering of both civilians and combatants in Armed Conflicts, certain types of weapons are prohibited while others are strictly regulated. It therefore provides commanders and staff with very useful and clear guideline.
Cassese, (1988:51) argues that in the conventional weapons, convention is sometimes referred to as a framework onto which individual protocols on specific weapons can be added as and when required. As at 1 May 2001, there were four protocols to the
CCW. Let us now look at the weapons they cover.
General Rules
The rules below apply to all type of mines, booty traps and other devices.
i. Prohibitions: It is prohibited in all circumstances to direct these weapons
against civilians or civilian objects. Their indiscriminate use is prohibited.
This refers to placement which:
• Is not directed at a military objective • Uses a means of delivery which cannot be directed at a specific military objective, • That cause loss of life, injury or damage to civilian, or damage to civilian property in excess of the military advantage anticipated.
In Castren, (1954:35) it is affirmed that it is prohibited in all circumstances to use any mine, booty trap or other device (such as a nail bomb) which is designed or of a 97 nature to cause unnecessary suffering or superfluous injury. It is prohibited to use mines, booty traps and other devices which explode when a commonly available mine detector is passed over them. The regulations on recording and precautions in use listed below must be followed for mines, booty traps and other devices. All feasible precautions, including advance warning (if the tactical circumstances permit) must be taken to protect civilians from the effects of these weapons. Records such as maps, diagram, aerial photographs, and satellite images must be kept off where these weapons have been laid or dropped. The parties are responsible for all mines, booty traps and other devices that they use. At the end of active hostilities, all such weapons must be cleared or steps taken to ensure clearance. As one can see, the general rules require soldiers, commanders or staff officers, to bear in mind two things when using these weapons:
First, the civilian population must be protected from their effects.
Second, they must be used with a high degree of professionalism, meaning minefields must be marked, and clear records kept at operational and staff levels of where you have actually placed them. Recording locations and posting warning signs will help to limit the effects of mines so that after the conflict they can be quickly found and cleared. Advance warning to civilians, if the circumstances permit, will also help limit casualties.
The general rules, you might agree, are simple and straightforward. But how often are they obeyed? Look at the problems faced in the aftermath of the conflict in
Afghanistan, Angola, Cambodia, the former Yugoslavia and North Africa. In the fog of battle, or with fluid front lines, the rules are often difficult to follow or forgotten and records are not kept or are simply lost. Long after the battle is over, mines remain 98 a threat to us all if they were not used properly in the first place. The general rules here tell us how they should be used. It is the duty of the combatants to obey to them.
THE 1997 CONVENTION ON THE PROHIBITION OF THE USE, STOCKPILING, PRODUCTION, AND TRANSFER OF ANTI- PERSONNEL MINES AND ON THEIR DESTRUCTION (THE OTTAWA TREATY)
The Ottawa Treaty is not a part of or a Protocol to the CCW. It is a separate treaty.
It is placed here because of its importance to the regulation of anti-personnel mines. It is most important that we cover the very latest instrument relating specifically to anti- personnel mines. The Ottawa treaty is now the norm governing anti-personnel mines.
It was adopted in response to the widespread human suffering caused by these weapons and because many states felt that the rules of CCW protocol (as amended in
1996) were too complex and did not address the problem adequately.
The Ottawa treaty is considered by many to be a landmark convention aimed at eliminating, once and for all, the suffering and casualties caused by anti-personnel mines.
Castren, (1966:26) again posed those states which are party to the treaty undertaken, never under any circumstances, including both international and non-international armed conflicts:
• to use anti-personnel landmines; • to develop, produce, acquire, stock pile, retain or transfer anti-personnel land mines, directly or indirectly • to assist, encourage or induce, in any way, anyone to engage in any activity prohibited by the convention. These are comprehensive prohibition aimed at eliminating all use of anti-personnel mines. They forbid both direct and indirect involvement in any of the activities listed above. For example, they prohibit a state to which the treaty applies from transporting 99 anti-personnel mines on behalf of a volition partner which is not bound by the treaty.
They also prohibit participation on planning to use the weapons in joint operations even if the actual use is by a non-party state or any other similar assistance. States must also:
• Destroy or ensure the destruction of all their stockpiles of anti-personnel
mines, clear mined areas under their jurisdiction or control
• If in a position to do, provide assistance for mine victim, for mine clearance
and for stockpile destruction.
Cohn, et al (1994:17) provides that under the Ottawa Treaty, anti-personnel mine means a mine designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons. This definition includes and the treaty therefore prohibits, explosive devices constructed, altered or adapted to function as anti-personnel mines. Command-detonated munitions (such as claymore- type mines) are permitted by the treaty but only if they are not equipped with a trip wire or similar victim-activated fuse.
Anti-vehicle mines, including those equipped with anti-handling devices, are not covered by the treaty. However, an anti-vehicles mine with a fuse which will be triggered by the presence, proximity or contact of a person is covered by the Ottawa treaty. In the views of Columbus, (1967:39) states are allowed to keep a limited number of anti-personnel mines specifically for the development of and training in mines-detection or mine- clearance techniques. The number must, however, not exceed the minimum necessary, which is generally understood to mean no more than several thousands. Plainly, States have decided not to retain any anti-personnel land mines for this purpose.
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NUCLEAR WEAPONS
Numerous multilateral and bilateral treaties are designed to prohibit the proliferation or stationing of nuclear weapons, reduce their numbers, restrict their testing and establish nuclear-free zone. Their objective is to limit the level of nuclear armament and to prevent the outbreak of nuclear war. The international law in force does not, however, contain any explicit prohibition of the use of such weapons. (See
Appendix IV). Condorelli et al (1996:61) opine that nuclear weapons are not free of all legal limitation. The basic principal of the law of Armed Conflicts certainly apply to them, as the international court of Justice affirmed in its 1996 Advisory Opinion on the legality of the Threat or use of Nuclear Weapons. On the basis of the evidence submitted to the court, the ICRC has stated that it is difficult to imagine how the use of nuclear weapons could be compatible with the principles and rules of the law of
Armed Conflicts. Some armed forces might consider the use of tactical nuclear weapons to be lawful in certain situations, such as against a military objective situated well away from civilian concentrations. One has to bear in mind, however, that the use of even a tactical nuclear weapon used by the parties to a conflict could produce a result beyond humanitarian law violations.
NON-LETHAL WEAPONS The term “non-lethal” weapons are becoming more and more common in military circles. What types of weapons are we referring to? In theory, they are not designed to kill but to incapacitate an opponent for a limited period of time while minimizing fatalities. Commanders and staff officers are expected to be knowledgeable in the use of such weapons, or even be involved in their development such as batons or truncheons, rubber or baton rounds, more futuristic weapons such as acoustic and electro-magnetic pulse weapons. Davis, (1975:20) argues that at first sight, these 101 weapons seem very attractive. Is it not more in keeping with the principle of humane treatment to put someone out of action temporarily than to kill him with conventional weapons? Closer examination reveals, however that the use and development of each proposed “non-lethal” weapons requires serious scouting. Some weapons, such as blinding lasers, incapacitating anti-personnel mines (under the Ottawa Treaty) and riot control agents, have already been prohibited under the law of Armed Conflicts.
Commanders and staff officers are expected to ensure that all” non-lethal” weapons comply with the rules of the law. Specifically, they:
• Must not cause unnecessary suffering or superfluous injury; • Must be capable of being directed against a military objective and must not be used in an indiscriminate manner ; • Must not cause disproportionate incidental damage. • Must not be prohibited by other specific legal provisions such as the ban on chemical weapons. It is also important to note that soldiers will need careful training in the use of such.
NEW WEAPONS
It is important to note that in the study, development, acquisition, or adoption of a new weapon, including "non-lethal” weapons or a new means or method of warfare, states are under an obligation to determine whether use of those weapons would, in some or all circumstances, be prohibited by the rules of international law, including the rules of the law of Armed Conflicts, that apply to that state. In the same vein, every member of the armed forces, whatever his or her ranks, has a personal responsibility to comply with the law. Commanders must ensure that it is complied with by orders and take action when violations are encountered. It is no defense to a war crime that the act was committed in compliance with a superior order. A soldier who carried out an order which is illegal under crime, provided that he or she was aware of the circumstances which made that order unlawful or could reasonably have 102 been expected to be aware of them. According to Delessert, (1977:30) “this point is of great significance to any situation but much more difficult for soldiers to actually carry out. It means that they must refuse a command if they believe it to be unlawful.
Surely, unflinching loyalty and obedience to superior commanders are fundamental to any armed force. This is true, but there is clearly a higher loyalty, to a state and its laws. The duty of all soldiers not to comply with unlawful orders is quite clearly established in international law.
During the Nuremberg and Tokyo trials that followed the Second World War, the defense of superior orders, which considered a mitigating factor in relation to sentencing in no way excused law breakers. The principle has been reaffirmed in modern tribunals such as those set up to deal with war crimes committed in the former
Yugoslavia and Rwanda, as well as Liberia.
With respect to criminal responsibility of commanders for acts committed by their subordinates, Commanders will be held criminally responsible under the law if:
• They know, or should have known, that subordinates were going to break the law, that is, commit a war crime, but did nothing to prevent it:
• They fail to take any action against (punish or report) subordinates who have already committed a war crime.
OPERATIONS IN ENEMY-CONTROLLED TERRITORY For operations like patrols, raids, higher commanders will need to issue very specific orders tailored to the task. These operations place considerable responsibility on the side of the patrol leaders, junior officers, or non-commissioned officers who are operating independently in a highly dangerous environment. Although, they are on 103 their own, they must act within the law. Dinstein, et al (1996:74) have argued that
‘orders’ here might well cover such additional details as:
Action on capture - expected behaviour, for example, what to do with documents of military value, duty or not to escape rights if captured; what to say when questioned.
Action if compromised - let use an example, you command a reconnaissance patrol and despite your best efforts to avoid detection, the enemy discovers you. A fight ensues. You kill three of the enemy and capture one who has a minor bullet wound in the arm. What do you do now? Let’s take same patrol, but this time you have been discovered by three passing farmers. You capture them, what do you do with them?
These are all operational dilemmas that any junior commander might face. In both cases, the patrol has obviously been discovered; the sound of shooting may have alerted others. Will the commander abort or cancel his mission, change positions or just lie low and continue later? These are purely tactical decisions. What about the legal aspects? Here the law does give guidance. In relation to wounded soldiers, it states that in unusual conditions of combat which prevent evacuation, they should be released and all feasible precautions taken to ensure their safety. Regarding civilians, we know fully well that they are protected by the law. What are a commander’s options in such circumstances? To kill the soldier and civilians with the patrol is obviously impractical. They could, however, be left where they were, and perhaps loosely tied up to give the patrol enough time to make a clean break.
As for the wounded soldier, if the patrol decides to abort its mission, it might well have the ability to move to a rendezvous position and be picked up by helicopter.
In that case, it could take the enemy soldier along, having attended to any wounds.
Distance and the severity of the wound will be a determining factor. A more likely scenario is that the soldier will be left behind. The patrol should bear in mind the law 104 and do everything it feasibly can to ensure the wounded enemy’s safety. It can arrange a drop in or close to a village or it can leave behind first aid material. Again, commanders are required to balance pure military necessity that is, accomplishing the mission or returning the patrol safely to base, against concern for humanity and correct treatment of wounded combatants.
On general logistics and rear concerns, we will examine the application of the law of Armed Conflicts. By “logistics” we mean all military activity aimed at combat support. By “rear areas” we mean activities that take place in area where there is normally no fighting. Nevertheless, we know in modern conflicts military medical bases, maintenance and supplies deport, and so on, can very often be directly affected by the hostilities. A feature of near area problems is the close cooperation required between military civilian and police authorities. Durand, (1984:15) says that all armed forces need smoothly operating supply chains, planned evacuation channels that deal with the wounded and captured, and well run rear area facilities such as hospitals and
POW camps. The forward commanders need ammunitions, food and fuel, they and their soldiers need to know that the wounded will be rigidly and efficiently evacuated.
Similarly, enemy wounded and captured must be moved back quickly, away from the front.
The law says that any military operation requires a transportation policy and plan. Without one, there will be utter confusion and forward fighting units will not receive vital supplies. The plan must pinpoint the routes to be used for re-supply and evacuation. It must include details on the specific use of your means of transport and who is in charge of them. The law prompts staff planners to keep military, medical and civilian transportation routes separate whenever the tactical situation permits, and from the practical point of view, too, it is more efficient to keep these routes separate. 105
A re-supply route blocked by fleeing refugees is not ideal. Another situation to avoid is medical transport moving to the rear being blocked and delayed by supplies moving forward. The European Commission, (1995:22) maintains that by separating these various re-supply and evacuation routes or chains, we not only improve military efficiency, we also provide a degree of protection to those granted it under the law, such as POWs, the sick and wounded civilian. Common sense and the law therefore come together in suggesting logical courses open to logistical staff. As far as your opponents are concerned, there is no reason why, for example, you should not notify them of the routes you will be using exclusively for medical or POW evacuation, or that you have dedicated for civilian use. It is in their interest to abide by the law as well. It would be extremely difficult for a medical convoy killing their own wounded soldiers. When separate routes are not available, and this is more likely to be the case than not, then the only option is to separate military routes from those used only for evacuation in time and space. According to Eyffinger, (1999:19) “certainly they should never be used for both purposes same time. Using protected persons for the specific purpose of striding military activity, for example, is a breach of the law. If you have organized a medical convoy, for example, you can notify your opponent that route x will be used between 0900 hours and 1200 hours for the evacuation of sick and wounded”. You could reach joint agreement on an invited cease-fire to allow refugees to move along a safe corridor.
PRACTICAL PROVISIONS REGARDING THE LAW OF NEUTRALITY {Treatment of members of belligerent armed forces} Neutral states receiving troops belonging to the belligerent armies on their territory must intern them. It would be a violation of the duty of non-participation if the neutral state permitted such troops to take part again in hostilities. Obviously, the rule provides a useful deterrent to trespass by the belligerents and this makes sense. If 106 whole units of a belligerent party deliberately operate in or through neutral territory and are captured, the neutral states are within its right to intern them. Nwankwo,
(2003:91) and Okebukola, (2002:60) emphasize that if whole units of a belligerent party deliberately operate in or through neutral territory and are captured; the neutral state is with its rights to intern them. If individuals or unit of a belligerent state cross the border into neutral territory simply because they desert from their armed forces
{this means to break allegiance with the party to which they belong) the neutral state might have a problem on its hands. Should it accept those people and intern them or send them back? If it accepts them, it risks antagonizing the parent belligerent state.
Deserters are in fact not covered by the Third Geneva Convention or the Hague
Convention”, and as such are not protected by the law of armed conflict when they find themselves on neutral territory. They are only protected by refugee law if they meet the conditions for refugee status. However, nothing prevents the neutral state from applying the third Geneva Convention and treating them like military internees.
As regards the legal position of the civilian population, the civilian population of an occupied territory owes no allegiances to the occupying power. It cannot be forced to fight its own country, be involved in any way with the armed forces or give military assistance to the occupying power.
It is in many ways difficult to separate the legal rights of the civilian population from the duties of the occupying power, that is, a duty for the latter is often a right for the former. Civilians are at all times entitled to respect for their persons, honour, family rights, religious convictions and manners and customs. Their private property is protected.
On the other hand, as regards Belligerent Occupation, any discrimination for reasons of race, nationality, language, religious convictions and practices, political 107 opinion, social origin or position or similar consideration is unlawful. The civilian population is in a tense and vulnerable position. The law states that it must be humanely treated in all circumstances and protected from any acts of violence, including by third parties. The occupying power may only put in place such measures of control and security as may be necessary as a result of the conflict. Collective penalty measures of intimidation, terrorism and hostage taking are prohibited.
Patrick, (2006:73) has maintained that the legal rights of the inhabitants of occupied territory cannot be curtailed by any agreement or other arrangement between the occupying power and the authorities of the occupied territory. This is intended to prevent national authorities from being put under pressure to make concessions which might not be in the population’s best interests or weaken its legal rights.
Similarly, Osefo, (2005:28) argues that the inhabitants of the occupied territory cannot renounce their rights under Fourth Geneva Convention. This again is a safeguard. It prevents the occupying power from exploiting the vulnerability of the occupied territory by exerting undue pressure to undermine and weaken the protection which the law affords. Individual or mass forcible transfers and deportations of the civilian population from occupied territory are prohibited
Specific areas may be temporarily educated if warranted by the security of the population or imperative military necessity. Generally speaking, the population may not be evacuated to locations outside the occupied territory, again unless this is the only option available. In that case, the evacuees must be returned to their homes as soon as the security situation allows. In any such evacuation, the occupying power must ensure to the greatest practicable extent that proper accommodation is made available for the evacuees male and female, that the move to the temporary holding 108 area is carried out in satisfactory conditions of hygiene, health, safety and nutrition and that members of the same family are not separated.
The occupying power must not deport or transfer parts of its own civilian population into the territory it occupies. If the occupying power considers it necessary, for imperative reasons of security, to take safety measures concerning civilians, it may, at most, subject them to assigned residence or to interment. Assigned residence could mean their homes or elsewhere.
With respect to the duties and rights of the occupying power, administrative and the legal system in general at legitimate state authority has now passed into the hands of the occupying power, the latter must take all measures in its power to restore and ensure, as far as possible, law and order and public safety. As a rule, the occupying power must allow the territory to be administered as before. It must respect the laws in force in the territory before occupation unless it is absolutely prevented from doing so.
The status of judges and public officials must not be changed. It is prohibited, however to compel them to perform their duties if for reasons of conscience they no longer wish to do so. Officials may therefore resign if they do not wish to serve under the occupying authorities, without suffering disadvantage as a result.
Equally, on the specific rules relating to penal matters, we have mentioned the principle that the occupation of a country does not invalidate its national legal system.
This also applies to penal law. As military commanders or members of the military legal services, one may become involved in applying the law (you are authorized, for example to establish military tribunals in occupied territory) the occupying power may well decide to repeal the penal laws of the occupied territory or to enact penal provisions of its own. It can choose the first option only if the existing laws constitute 109 a threat to security or are quite plainly an obstacle to the application of the Four
Geneva Convention of 1949. It can choose the second if it is required to do so to maintain law and order in the occupied territory and to ensure its own security. In either case, the population must be informed of all changes in its language before they come into effect.
Again, as regards the principle of the military course/tribunals, criminal offences in the occupied territory should continue to be prosecuted by the local courts; jurisdiction could pass if they are not able to function properly. Any breaches of the penal provisions promulgated by the occupying power for its security may be prosecuted by its own military courts.
Civilians who take a direct part in hostilities against the occupying power may be prosecuted. Remnants of the occupied country’s armed forces who continue fighting are of course combatants and must be treated as such. According to Grunawalt, et al
(1996:35) if captured to POW status and treatment as laid down in the Third Geneva
Convention; in particular, they cannot be tried for simple fact of taking part in hostilities. If however, they commit acts in violation of the law of Armed Conflicts, they may be subjected to prosecution.
The jurisdiction in penal matters may be assigned either to existing military tribunals or to special military courts created for the occupied territory, the judges being members of the occupying power’s armed forces. (Gultry, et al 1993:47) The courts must be non political and properly constituted, the judges independent and impartial, special courts set up on an ad hoc basis are not permitted. The courts must sit in the occupied country, i.e. the accused must be tried in their own surroundings.
On penalties, minor offences are punishable only by interment or simple imprisonment. Serious offences may be punishable by death. The law of Armed 110
Conflicts in no way, however, sanctions the death penalty, which many states worldwide have now banned. What it says is that if death penalty still exists in the occupied territory and the serious offences listed below here punishable by death before the occupation began, then and only then can the death penalty be imposed.
Serious Offences are exclusively:
• Espionage • Serious acts of sabotage against the occupying power’s military installations; • International acts causing the death of one or more persons, in so far as the national law in effect prior to occupation allows the death penalty for such acts. Anyone sentenced to death must have the rights of appeal. In no circumstance can penalty be carried out during the six months after which the protecting power has received notification of the final judgment confirming the death sentences, or of an order denying pardon or reprieve. The death penalty may in no circumstances be pronounced on a person who was under eighteen years of age at the time of the offence.
Every effort should be made not to pronounce the death penalty on pregnant women or mothers with dependent children even if pronounced; the death penalty must not be carried out. According to Hall & Edwards (1974:27) nationals of the occupying power who sought refuge before the conflict in the now occupied state e.g. refugees, must not be prosecuted on that account. They can however, be prosecuted for crimes and other punishable offences committed by them after the conflict began.
Persons accused or convicted of the offences must be detained under humane conditions. All detainees have the rights to be visited by delegates of the protecting power and the ICRC. 111
In the aspect of the requisition of civilian resources and services, the Civilian resources and services may be requisitioned in occupied territory in accordance with street rules. They must only be requisitioned if they are needed by the armed forces of occupation or public utility services, or to feed, shelter, clothe, transport or care for the population of the occupied country only if they are indispensable for these purposes. In addition, foodstuffs, general articles and medical supplies may not be requisitioned unless the requirements of the civilian population have been adequately met. According to Hannikainen, et al (1992:21) this is logical since under the law, occupying power is obliged to guarantee that the occupied territory is provided with foodstuffs and medical supplies.
The order to requisition must be issued by the locally occupied soldiers and cannot supply or take what they want. The requisition of civilian resources and services without the authorization of the commanding officer is prohibited in all circumstances. The amount of items and extent of the services requisitioned for the army of occupation must be in proportion to the territory’s resources, i.e. the occupied territory should not be bled dry. Items in kind, must as far as possible be paid for in cash. If this cannot be done, a receipt must be given, payment must then be made as soon as possible.
An occupying power may also collect taxes, tariffs and duties, again as far as possible on the basis of the regulations and system in place. It may not change the whole tax system overnight. Hartigan, (1993:59) says that the occupying power must use the funds thus raised to defray the administrative cost of ruling the occupied country’s administration. Additional funds may only be raised to meet the requirements of the occupying forces or to cover its administrative cost. No extra amounts (contributions) 112 are to be collected expect under a written order issued by a commanding officer. For every contribution a receipt must be given to the contributors.
ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS Article 3 common to all four Geneva Conventions represents the first attempt to lay down rules governing non-international armed conflicts. It has been described as a “Convention in miniature” because it contains within it basic minimum standards of international humanitarian law applicable in conflict situations. The international court of Justice reinforced this view, stating that the rules in common Article 3 reflect elementary considerations of humanity applicable under customary international law to any armed conflict.
In Haug, (1993:242) common article 3 does not attempt to define exactly what is meant by a non-international Armed Conflict. International tribunals have, however, ruled that it applies whenever there is protracted armed violent within the territory of a state between government forces and organized armed groups or between such groups.
Also, following the writings of Herezegh, (1984:269) shows that common article 3which emphasizes on the introduction of these minimum rules does not affect the legal status of the parties. This means that the fact of applying article 3 does not in itself constitute recognition by the de jure (legal) government that the opposition has authority of any kind.
Howard et al (1994:72) argues that the government authorities are still entitled to suppress an insurgency by all legitimate means. Under domestic legislation, common article 3 in no way affects the government’s right to prosecute, try and sentence its adversaries for their crimes, for example treason or common crimes, according to its own laws. 113
Under national legislation, any person can be prosecuted for the mere fact of participating in Armed Conflicts; there is no such thing as combatant status.
Consequently, captives are not entitled to POW status as defined in international
Armed Conflicts.
In practice, it would be advisable for a soldier in a tactical situation to treat captured members of the opposing force as if they were POWs.
On the issue of protection, common article 3 of the Geneva Convention provides as follows: in the case of an Armed Conflicts not of an international character occurring in the territory of one of the High contracting parties, each party to the conflict shall apply as a minimum, the following provisions:
1. persons taking no active part in the hostilities, including members of the
armed forces who have laid down their own and those placed hors de combat
by sickness, wounds, detention, or any other cause, shall in all circumstances
be treated humanely, without any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above mentioned persons. a. Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; b. Taking of hostages c. Outrages upon personal dignity, in particular humiliating and degrading treatment; d. The passing of sentences and the carrying out of execution without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 2 The wounded and sick shall be collected and cared for
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Common article 3 also provides that “an impartial humanitarian body, such as the
International Committee of the Red Cross, may offer its service to the parties to the conflict.
We have mentioned that non-international armed conflicts are subject to a different and more limited legal regime than international conflicts. Nevertheless, the law of international Armed Conflicts can still be applied. Common article 3 provides for this by encouraging the parties to the conflict “to endeavor to bring into forces, by means of special agreements, all or part of the other provisions of the Geneva conventions” ( Hutchinson, 1996:49)
Geneva Protocol II of 1977
The International Committee of the Red Cross and Red Crescent Society, (1994:36) argues that Protocol II is the outcome of a serious endeavor to define the protection afforded in non-international Armed Conflicts in greater detail. Its aim was “to develop and supplement common article 3”. Again, the desire of status not to have other interfering in their internal affairs was a major obstacle.
Rules of Geneva Protocol II
In the opinion of Jessup, et al (1995:184) the effect of Protocol II is that in the event of a non-international Armed Conflicts, the forces of both sides must behave in accordance with the minimum requirements of the law of Armed Conflicts applicable to international armed conflicts. However, in some important areas the law is slightly different. For example, combatant status does not exist; captured persons and children are sometimes treated according to other rules. Johnson, (1981:83) maintains that in other cases, rules are not mentioned but are part of customary international law.
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Scope of the Protocol
We have already discussed the types of conflict covered by protocol II. The following points also relate to the scope of the protocol. No Diverse Discrimination:
In the writings of Junod, (1996:169) protocol II applies without any adverse distinction founded on race, colour, sex, language, religion or other opinion, national or social origin, wealth, birth or other status, or any similar criteria, to all persons affected by an armed conflict as defined by the protocol.
According to Kalshoven (1991:158) the provisions define the personal field of application of Protocol II’s rules by indicating who benefits from them and for whom they are intended. It lays down that persons protected by the rules of the protocol must state that freedom of action is limited by rules it accepted as binding when it ratified the protocol, and it cannot subsequently claim that compliance with those rules constitutes an infringement of state sovereignty.
Fundamental Guarantee
Karsten, (1989:215) deliberates that all persons not directly participating in the conflict or who have ceased to do so because, for example, they are hors de combat or have surrendered are entitled to be treated humanely and to receive respect for their person, religious practices, honour and convictions without adverse distinction. Under
Protocol II, it is prohibited to order that there will be no survivors (no quarter). In addition, Protocol II contains a catalogue of fundamental guarantee prohibiting at anytime and anywhere.
• Violence to life, health and physical or mental well being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment. • Collective Punishment • Taking of hostages 116
• Acts of terrorism • Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; • Slavery and the slave trade in all their forms • Pillage; • Threats to commit any of the foregoing acts.
Protection of Children
Children must of course be protected in any Armed Conflict, and as we have seen, the law does indeed do this. In non-international Armed Conflicts, children tend to be more vulnerable and are often separated from their or other members of their family.
(Keijzer, 1978:137) One tragic example was Rwanda and the subsequent exodus of the Hutu population into what was then Zaire in the mid-1990s. In Johnson,
(1984:373) Protocol II’s provisions on children take account of this greater vulnerability. They stipulate that children must be provided with care and aid they require, and in particular with an education, including religious and moral education, in keeping with their parents’ or guardians wishes.
All appropriate steps must be taken to facilitate the reunion of families temporarily separated. (Kalshoven, 1987:84) Many will recall the efforts made by humanitarian organizations such as Save the Children, the United Nations High Commissioner for
Refugees and the International Committee of the Red Cross to that and during the crisis in Rwanda and Kosovo.
Khaddiri, (1995:161) also argues that where necessary, measures should be taken to remove children temporarily out of conflict areas to safer places. This should be done, whenever possible, with their parent’s or guardian’s consent. The move should be within the same country and the children should be accompanied by persons who are responsible for their safety and well-being. 117
In addition, Kuper, (1997:108) asserts that children under 15 must not be recruited into the armed forces or groups or allowed to take part in hostiles. If, despite this rule, children do take part in hostiles and are captured, they remain fully protected by the law.
The Treatment of Internees and Detainees
Protocol II seeks to provide for the proper treatment and care of all those in the hands of an opponent or whose liberty has been subjected to any restriction, for reasons related to the armed conflict. Kuper Leo, (1985:73) opines that the wounded and sick are to be treated humanely and receive such medical care and their condition requires, without discrimination; in particular, the fact that they fought on the other side must in no way lead to their being treated less well than their condition demands.
The only grounds for discrimination are medical, i.e. the severity of the illness or the wound.
In Kwakwa, (1992:194) all persons deprived of their liberty must receive food and water and enjoy safeguards in terms of health and hygiene and protection against the rigors of the climate and the dangers of the Armed Conflicts. They must be allowed to receive individual and collective relief, including, for example, from local organizations such as the Red Cross or Red Crescent Society. Levie, (1978:27) relates that they must be allowed to practice their religion and, if they so request, to receive spiritual assistance from those performing religious functions. If made to work, they must benefits from the same working conditions and safeguards as those enjoyed by the local civilian population.
Macalister, (1985:43) affirms that the authority responsible for the detention or interment is under the obligations, unless family members are detained together, to 118 hold men and women separately, with women under the direct supervision of members of their own sex.
All persons deprived of their liberty are entitled to send and receive letter and cards subject to any restriction in quantity the detaining authority considers necessary.
(McDougal et al, 1991:57) Places of internment or detention must not be located close to the combat zone. If they become particularly exposed to danger, the detainees must be evacuated to safer places, if their evacuation can be carried out under adequate conditions of safety.
Meron, (1989:43) argues that detained and interned persons must receive the benefits of medical examinations. Their physical and mental health and integrity must not be endangered by any unjustified act or omission. In particular, they must not be subjected to any medical procedure, which is not consistent with generally accepted medical standards.
Moreso, Meyer, (1990:21) maintains that when detained and interned persons are released, the holding authority is obliged to take the steps necessary to ensure their security, which they well be gravely endangered if they are released among those loyal to authority.
Trial and Punishment: Restrictions and Guarantees.
As regards the trial and punishment of those charged with criminal offences related to the conflicts, no sentences shall be passed or penalties executed for offences related to the conflict except pursuant to a conviction pronounced by a court offering the essential guarantee of independence and impartiality. Based on the view of
Meyrowitz, (1990:32) the accused must:
• Be informed of the particulars of the writ which they have been charged before and during their trial be given all the necessary rights and means of defense. 119
• Not be convicted of an offence except on the basis of individual penal responsibility; • Not be found guilty of an act which was not offence at the time it was committed; • Not be given a punishment more severe than that which was applicable at the time the offences was committed; if after the offences was committed, a lighter punishment was introduced, the accused should benefit from it; • Be presumed innocent until proven guilty; • Have the right to be present at the trail; • Not be compelled to testify against them or to confess guilt. Miller et al (1984:45), provide that convicted persons must be informed of the judicial or other remedies and the time limits involved (the right to appeal and how long they have to do it) The death penalty must not be pronounced on persons who were under the age of eighteen years at the time of the offence and must not be carried out on pregnant women or mothers of young children.
The Wounded, Sick and Shipwrecked: The rules here are essentially the same as those applicable in international Armed Conflicts. (See appendix v)
Protection and Care: In the opinion of Moorehead, (1998:26) the wounded, sick and shipwrecked must be respected and protected. They must be treated humanely in all circumstances. Every effort must be made to ensure they receive prompt medical assistance based on their needs and the severity of their wounds, not on whether they are on your side or your opponent’s.
Mulinen, (1987:33) opines that whatever circumstances permit and particularly after any engagement, every effort must be made without delay, to search for and collect the wounded, sick and shipwrecked. They must be protected against pillage and any ill treatment. The dead must be collected, the bodies must not be despoiled and they must be decently buried. It is also a sensible military practice to try 120 and identify bodies before burial or cremation and records the detail for the civil authorities.
Medical and Religious Personnel: The medical and religious personnel must be respected and protected at all times. They must be given all available assistance to carry out duties. They must not be compelled with their humanitarian mission.
Medical personnel must not be required to give priority to any person except on medical grounds. (O’Brien, 1981:53)
General Protection of Medical Duties: This provides that under no circumstances must any person be punished for having carried out medical duties compatible with medical ethics. No medical personnel may be compelled to perform acts contrary to, nor be compelled to refrain from acts required by the rules of medical ethics, or any other rules in the protocol relating to the care of the wounded and sick. This provides further protection against medical personnel in non-international Armed Conflicts restoring to medical experiments on those in their care. (Osiel, 1999:12)
Medical Units and Transport: In the contribution of Pictet, (1992:23) they are protected at all times and must not be attached. As in international armed conflicts, protection cases if the units or transports are being used for hostile purposes outside their purely humanitarian function, but not before adequate warning has been given allowing then time to react and comply and only if the warning goes unheeded.
The Distinctive Emblem: The authorization and supervision of the component authorities, the emblem of the Red Cross, Red Crescent (or red lion and sun) may be displayed on buildings and vehicles and worn by Medias and religious personnel. It must be respected in all circumstance and must not be used improperly. (Piggott,
1991:63) 121
The use of emblem is optional; medical personnel and medical units and transports are protected in any event. However, it is in the direct interest of those enjoying protection to ensure that they can be identified, not only by the adverse party, but also by the armed forces or armed groups of their own side, particularly in a non- international Armed Conflict where, in most cases, the area of confrontation and front lines are not well defined or shift frequently. (Plant, 1989:36)
The Civilian Population: In non-international armed conflicts; civilians are to be protected against the dangers arising from the fighting. The same rules apply as in international armed conflicts. (Playfair, 1992:49) The civilian population as such an individual civilian must not be made the object of an attack. Acts or threats of violence against them, the primary aim of which is to spread terror, are prohibited.
According to Pagans, (1989:76) civilians enjoy all the protection mentioned above, unless and for such time as they take a direct part in hostiles.
However, as civilian organizations, the civil defense must be protected and opposition groups must allow them to get on with their work unhindered. Similarly, military personnel assigned solely to civil defense tasks must be respected by opposition groups and protected. While on assignment they should wear the international destructive sign for civil defense. Protection of objects, indispensable to the survival of the civilian population
Ratner et al (1997:19) provide that saturation of civilians as a method of combat is prohibited. It is prohibited to attack, destroy, remove or render useless for that purpose, objects considered indispensable to the survival of the civilian population such as foodstuffs, agricultural areas, livestock, drinking water installations, irrigation works and similar objects. As in international armed conflicts, it is prohibited to attack: Works and installations containing dangerous forces; 122
• Cultural objects and places of worship, or to use these in support of military operations.
Prohibition of forced movement of civilians (Roberts, 1996:18) provides that civilians must not be displaced unless it is far their own security or for reasons of imperative military necessity. In that case, all possible measures must be taken to ensure that satisfactory arrangements are made in the new location for shelter, hygiene, safety and nutrition. It is also forbidden to compel civilians to leave their own territory for reasons connected with the conflict.
Relief societies and relief action : Relief societies such as the National Red Cross or
Red Crescent Society located in the country may offer their services to the victims of the conflict. (Rogers, 1996:84)
Similarly, as we mentioned in relation to common article 3, the international committee of the Red Cross may offer its services to the parties to the conflict to distribute relief supplies, visit detainees in accordance with the ICRC’s standard procedure, provide medical assistance etc.
THE LAW IN RETURN TO WEAPONS It would be illogical for states to use weapons within their own territory and yet prohibit or limit their use in international conflicts. Despite this, states have systematically refused to accept proposals explicitly extending such prohibitions to non-international armed conflicts. Recently, however, there has been a slight shift in attitude. (Royce et al, 1998:28)
Also, Sandoz et al, (1987:53) provide that the protocol on prohibition or Restrictions on the use of mines, booty-traps and other devices, as amended on 3 May 1996
(Protocol II) also applies to non-international Armed Conflicts. It loans in particular anti-personnel landmines, which are undetectable and remotely, delivered anti- personnel mines without self-destruction/ deactivating mechanisms. 123
The Ottawa Landmines Treaty of 1997 bans anti-personnel landmines in both international and non-international Armed Conflicts.
In addition, international customary law provides in general that it is prohibited to use weapons of a nature to cause unnecessary suffering or superfluous injury; or to use weapons which by their nature are indiscriminate
More so, Shamgar, (1992: 69) provides that it is explicitly prohibited to use the following weapons:
• Poison or poisoned weapons; • Chemical weapons, including riot, control agents; • Biological weapons • Bullets that explode in the human body; • Expanding bullets • Weapons primarily designed to injure by non detectable fragments, • Blinding laser weapons The United States Army, (1997:12) further maintains that the use of weapons is further governed, in particular, by the following restrictions.
• Landmines may not be used indiscriminately; • Minefields must be mapped and recorded • Incendiary weapons may not be used where there is no clear separation between opponent and civilians; • Objects entitled to special respect under the law of Armed Conflict must not be booty-trapped and booty traps may not be used in circumstances in which civilians or other protected persons are likely to be killed or injured. It is important to note that all these laws governing Armed Conflicts and as discussed above, would definitely serve as our foundation upon which the Liberian
Armed Conflict, was conducted vis-à-vis, the responsiveness of the parties towards their adherence to these laws.
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CHAPTER THREE MECHANISM FOR ENFORCEMENT OF THE LAW OF ARMED CONFLICTS
It is an established fact that all activities carried out in peacetime as combat are subject to an internationally accepted code of conduct, even though they will be conducted under stressful and often unsettling conditions. This code is known as the
Law of Armed Conflicts (LOAC) Laws of War, International Humanitarian Law
(IHL) or Laws and Customs of War. The law comprises the Geneva Conventions and
Hague Conventions, as well as subsequent treaties, case law, and customary international law. It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaningful civilians.
Christine, (2004:21) argues that LOAC is an internationally accepted legal code that is unconditionally binding on the conduct of all military operations. The individual combatants act for the nation in the application of lethal force although they are often operating under conditions of uncertainty and change.
If confusion arises, combatant individual commanders and combatants at all levels can be held legally accountable for their actions. With this in mind, no other profession has the burden of responsibility that matches the one faced by combatants.
The LOAC arises from a desire among civilized nations to prevent unnecessary suffering and destruction while not impeding the effective waging of war. LOAC regulates the conduct of armed hostiles. It also aims to protect civilians, prisoners of war, the wounded, sick and shipwrecked. According to Yoram (2004:39) the LOAC applies to International armed conflicts and in the conduct of military operations, as well as related activities in Armed Conflicts. 134
However, such conflicts are characteristical in nature. The two parts of the laws of war (or law of Armed Conflicts) ( LOAC): law concerning acceptable practices while engaged in war, like the Geneva Conventions is called jus in bellum ; while law concerning allowable justifications for armed force is called jus ad bellum ”. These laws are theoretically applicable only to nations which approve and consent to bind to them, usually in the form of international organizations of diplomacy, but in practice all nations are expected to follow the laws of war. Geopolitical conditions of a particular era often dictate which laws are enforced, and by whom.
Further, it has often been commented that creating law for something is inherently lawless as war seems like a lesson in absurdity. However, based on the adherence to what amounted to customary International law by warring parties through the ages, it was felt that codifying laws of war would be beneficial.
Some of the central principles under lying laws of war are:-
• Wars should be limited to achieving the political goals that started the war (e.g. territorial control) and should not include unnecessary destruction. • Wars should be brought to an end as quickly as possible. • People and property that do not contribute to the war effort should be protected against unnecessary destruction and hardship. To this end, laws of war are intended to mitigate the evils of war by:
• Protecting both combatants and noncombatants from unnecessary suffering. • Safeguarding certain fundamental human rights of persons, who fell into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilian; facilitating the restoration of peace. For the purpose of clarity and absolute comprehension of the subject matter, the discourse on the enforcement of law of armed conflicts will be weak if we don’t build it on the foundation of certain international declarations and conventions. These 135 declarations and conventions have gone a long way in identifying the facts about law of armed conflicts and its concomitant mechanism of enforcement.
3.1. 1868 ST PETERSBURG DECLARATION RENOUNCING THE USE, IN TIME OF WAR, OF EXPLOSIVE PROJECTILES UNDER 400 GRAMMIES WEIGHT
Attempts to prohibit the use of particular weapons in warfare have been made in various civilizations over a long period of time. For example, in ancient times, the laws of Manu (greatest of the ancient Hindu codes) prohibited Hindus from using poisoned arrows, and the Greeks and Romans customarily observed a prohibition against using poison or poisoned weapons. During the middle ages, the Lateran
Council of 1,132 declared that the crossbow and arbalest were “Unchristian” weapons. When the laws of war began to be codified by states in the mid-nineteenth century, the prohibition of a particular weapon was the subject of one of the first international agreements.
The 1868 St. Petersburg Declaration has been regarded as the first major international agreement prohibiting the use of a particular weapon in the warfare.
The prohibition followed the development of a bullet which exploded upon contact with a hard surface.
In 1863, the bullet was introduced into the imperial Russian Army to be used for blowing up ammunition wagons. In 1864 the imperial war minister considered it to be improper to use such a bullet against troops and its use was therefore strictly controlled. However, in 1867 a modification of the bullet was developed which enabled it to explode on contact with even a soft surface. Moreover, unlike the previous projectiles, the new bullet shattered upon explosion.
Understanding that such a bullet posed a greater danger to troops, the imperial war minister did not want it used either by the imperial Russian Army or the armies of 136 other states. The imperial war minister proposed to Tsar Alexander II that the use of all explosive bullets, or at least the bullet developed in 1867, should be renounced.
Tsar Alexander II invited states to attend an international military commission in St.
Petersburg to consider the matter. The conference met in St. Petersburg in three sessions, on 9, 13, and 16 November 1868 (all dates are by the Western Calendar) attended by the representatives of sixteen states with the aim of coming out with the possible mechanism of enforcing the above declaration. All of these states with the single addition of Persia formally signed the Declaration on 11th December.
At the conference, Prussia reiterated a request it had made earlier, that the scope of the inquiry be broadened to deal generally with the application of scientific discoveries to Armed Conflicts and to extend the proposed prohibition to other types of projectiles. British and French opposition to any general consideration of projectiles led to the Prussian suggestion being dropped. However, the Swiss suggestion that the proposed prohibition be extended to include inflammable bullets was accepted. Due to the fact that none of the states objected to use of explosives in shells, the prohibition was restricted to projectiles under 400 Grammies weight.
The St. Petersburg Declaration is notable not only for this substantive prohibition, but also for its succinct statement of principles in the preamble including the statement
‘that the only legitimate object which states should endeavor to accomplish during war is to weaken the military forces of the enemy”. Although the history of war since
1868 demonstrates the fragility of this principle, it has been reflected with certain variations in several subsequent agreement including the 1977 Geneva Protocol 1, article 48.
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Further, the St. Petersburg Declaration expresses with respect to a particular means of warfare, the customary principle prohibiting the use of means of warfare causing unnecessary suffering. This general customary principle was later embedded in article 23 of the regulations annexed to 1899 Hague Declaration represents customary international law, it would be binding upon all states and not merely those which are formally parties to it, and its general participation clause would cease to be relevant. The St. Petersburg Declaration led to the adoption of other declarations renouncing particular means of warfare at the first Hague Peace Conference of 1899 and the second Hague Peace Conference of 1907.
The application of St. Petersburg Declaration to certain weapons which were developed later raised difficult questions. With respect to incendiary weapons, such as flame - throwers and napalm, the Declaration’s prohibition does relate to projectiles.
Fewer than 400 grammes weight containing inflammable substances and this has been taken by some to imply by analogy that it is unlawful to use fire weapons. Others suggest that it is thereby only unlawful to use such fire weapons so as to cause unnecessary suffering to individuals. Still others doubt that any prohibition may be inferred by analogy, States practice has demonstrated that such incendiary weapons have been widely used especially in Liberia.
Indeed, the use of tracer, incendiary or explosive projectiles by or against aircraft was specifically not prohibited in article 18 of the 1923 draft Hague Air Rules. With respect to incendiary weapons and also blinding laser weapons, reference should be made to the 1980 UN convention on certain conventional weapons and its protocol III and IV. The 1998 Rome statute of the International criminal court (not yet in force includes in its list of war crimes and the use of projectiles causing superfluous injury or unnecessary suffering) 138
3.2. 1899 HAGUE DECLARATION II CONCERNING ASPHYXIATING GASES This agreement, prohibiting the use of projectiles whose sole object is to diffuse asphyxiating gases, was derived from the general principles of customary international law prohibiting the use of poison and materials causing unnecessary suffering. These general customary principles were embedded in article 23(a) and
23(c) of the regulations annexed to 1899 Hague convention II and 1907 Hague convention IV.
To the extent that the specific prohibition embodied in 1899 Hague Declaration 2 may be considered particular rule of customary international law. It would be applicable and enforceable to all states and not merely those which have formally ratified or acceded to it and the declaration’s general participation clause would cease to be relevant.
During the First World War, the use of gas began with irritant gas, but escalated rapidly. After the end of the war, the prohibition of gas warfare was reaffirmed in the
1919 treaty of Versailles similar provisions in other World War 1 peace treaties, the ungratified 1922 treaty of Washington and the 1923 Geneva Protocol. As a result of the fact that the 1899 Hague Declaration 2 prohibits the use of projectiles whose sole object is the diffusion of asphyxiating or deleterious gases, some suggest that the declaration may have been overtaken by the more comprehensive prohibitions in the
1925 Geneva protocol and the 1993 chemical weapons convention. The 1998 Rome statutes of the international criminal court (not yet in force) includes its list of war crimes the use of asphyxiating poisonous or other gases.
Concerning the enforcement of the Declaration (IV, 2) on Asphyxiating Gases, the undersigned, plenipotentiaries of the powers represented at the international peace conferences at the Hague, duly authorized to that effects by their governments, 139 inspired by the sentiments which found expression in the Declaration of St.
Petersburg of the 29th November (11th December) ,1868. Declare as follows:
The contracting powers agree to abstain from the use of projectiles, the sole object of which is the diffusion of asphyxiating or deleterious gases. The present Declaration is only binding on the contracting powers in the case of a war between two or more of them. It shall cease to be binding from the time when in a war between the contracting powers, one of the belligerents shall be joined by a non-contracting power. The present Declaration shall be ratified as soon as possible. The ratifications shall be deposited at the Hague a process - verbal shall be drawn up on the receipt of each ratification, a copy of which, duly certified shall be sent through the diplomatic channel to all the contracting powers.
The non-signatory powers can adhere to the present declaration. For this purpose they must make their adhesion known to the contracting powers by means of a written notification addressed to the Netherlands’ government, and by it communicated to all the other contracting powers.
In the event of one of the high contracting parties denoting the present
Declaration, such denunciation shall not take effect until a year after the notification made in uniting to the government of the Netherlands, and forthwith communicated by it to all the other contracting powers. The denunciation shall only affect the notifying power, in faith of which the plenipotentiaries have signed the present
Declaration, and affixed their seals thereto.
3.3. 1907 HAGUE CONVENTION IN RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND
His majesty the German Emperor, King of Prussia (etc): seeing that, while seeking means to preserve peace and prevent Armed Conflicts between nations, it is likewise 140 necessary to bear in mind the case where the appeal to arms has been brought about by events which their case was unable to avert. Thinking it important, with this objective, to revise the general laws and customs of war, either with a view to defining them with the greater precision or to confirming them within such limits as would mitigate their severity as far as possible, have deemed it necessary to complete and explain in certain particulars the work of the first peace conference, which following on the Brussels conference of 1874 and inspired by the ideas dictated a wise and generous forethought, adopted provisions intended to define and govern the usages and the enforcement of war on land.
According to the view of the high contracting parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants. It has not, however, been found possible at present to concert regulations covering all the circumstances which arise in practices.
On the other hand, the high contracting parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders. Until a more complete code of the laws of war has been issued, the high contracting parties deem it expedient to declare that, in cases not included in the regulations adopted by them, the inhabitants and the belligerent remain under the protection and the role principles of the law of nations, as they result from the laws of humanity and the dictates of the public conscience.
The 1907 Hague Convention in respecting the laws and customs of war on land, dwell on issuing of instruments to armed land forces by contracting parties in conformity with the regulations respecting the laws of war, which is applicable to 141 contracting parties. The violation of the provision by a belligerent party amounts to compensation. Equally, this convention shall be ratified, signed by the representatives, and deposited at The Hague. In addition, non signatory power may adhere to the present convention. (See Appendix XXIII for details)
3.4. 1907 HAGUE CONVENTION (V) RESPECTING THE RIGHTS AND DUTIES OF NEUTRAL POWERS AND PERSONS IN CASE OF WAR ON LAND (Part A) The adoption of the United Nations charter in 1945 increased the controversy over the statutes of traditional concepts of neutrality. Some suggested that the customary law of neutrality was incompatible with the international legal regime established by the UN charter. This conference rests on the combined effect of article 2(5) which requires UN member states to give the UN ever assistance in any action it takes, article 25 requires UN members to accept and comply with the decision of the
Secretary Council, and the articles in chapter VI. UN member states are free to neutral or non-belligerent if in armed conflicts, the UN does not call upon all members to take action involving the use of force under chapter VII of the charter. Such an outcome is particularly likely in the many cases in which the Security Council is unable to reach agreement on the use of force. Even in cases in which the Security Council has adopted resolution authorizing enforcement actions (e.g. Korea in 1950, Kuwait,
Somalia in 1992, the former Yugoslavia in 1993, and Rwanda and Haiti in 1993) it has not called upon all member states to participate in the use of force, but has instead authorized action by particular states and coalitions.
In contrast, Security Council Resolutions authorizing economic and other sanctions have called upon all states to observe such sanctions. Further, some states not directly involved in UN-authorized military action have granted transit rights or given other assistance to forces involved in such action. This is probative of the 142 position that a new form ‘non- belligerency or qualified neutrality’ has emerged, in which states not participating in a military action authorized by the Security Council may none the less take part in sanctions or provide other assistance.
With respect to the position of non-member states seeking to pursue a policy of neutrality or non-belligerency, Article 26 of the UN charter provides that the UN shall ensure that non-members not in accordance with the principles set forth in article 2 so far as may be necessary for the maintenance of international peace and security.
However practice suggests that members does not involve in a requirement that non- members join in the use of armed force and non-members have been free to remain neutral or non-belligerent even when the UN has acted.
3.5. CONVENTION (V) RESPECTING THE RIGHTS AND DUTIES OF NEUTRAL POWERS AND PERSONS IN CASE OF WAR ON LAND (PART B) His majesty the German Emperor, King of Prussia with a view to laying down more clearly the rights and duties of neutral powers in case of war on land and regulating the position of the belligerents who have taken refuge in neutral territory; being likewise desirous of defining the meaning of the term “neutral”, pending the possibility of settling, in its entirety, the position of neutral individuals in their relations with the belligerents; have resolved to conclude a convention to this effect.
The convention (v) respecting the rights and duties of neutral powers and persons in case of war on land (part b) emphasize on the prohibition of moving munitions of war across the territory of a neutral power by belligerents. Again, escaped prisoners of war received by a neutral power shall be left at liberty. Nationals of a state which are not taking part in war are considered neutral. Neutral power is bound to take measures of safety for the sick and wounded. 143
Finally, a neutral person in not said to be neutral if he commits hostile acts against belligerents or in favour of belligerent. (See Appendix XXIV)
3.6. 1907 HAGUE CONVENTION IX CONCERNING THE BOMBARDMENT BY NAVAL FORCES IN TIME OF WAR His majesty the German Emperor, king of war of Prussia animated by the desire to realize the wish expressed by the first peace conference respecting the bombardment by naval forces of undefended ports, towns, and villages; whereas it is expedient that bombardments by naval forces should be subject to rules of general application which would safeguard the rights of the inhabitants and assure the preservation of the more important buildings, by applying as far as possible to this operation of war, the principles of the regulations of 1899 respecting the laws and customs of land war.
Actuated accordingly by the desire to serve the interests of humanity and to diminish the severity and disasters of war; have resolved to conclude a convention to this effect.
This 1907 Hague convention ix concerning the bombardment by naval forces in time of war centers on the prohibition of the bombardment by Naval forces of undefended ports, towns, villages, dwellings or buildings. The prohibition does not include military or naval establishments’ depots of arms of war material which could be used for the needs of the hostile army.
In other to ensure effective enforcement, due notice must be given to the effect of bombardment and measures must be taken to spare sacred edifices, buildings used for artistic purposes and hospitals. (See Appendix XXV)
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3.7. 1907 CONVENTION XI RELATING TO CERTAIN RESTRICTIONS WITH REGARD TO THE EXERCISE OF THE RIGHTS OF CAPTURE IN NAVAL WAR. The German Emperor, King of Prussia, recognizing the necessity of more effectively ensuring equitable enforcement and application of law to the international relations of meantime powers in time of war for this purpose, it is expedient in giving up or, if necessary, in harmonizing for the common interest certain conflicting practices of long standing, to commence codifying in regulations of general application the guarantees dues to peaceful commerce and legitimate business as well as the conduct of hostilities by sea; that it is expedient to lay down in written mutual engagements the principles which have hitherto remained in the uncertain domain of controversy or have been left to the discretion of Government.
The 1907 convention (xi) relating to certain restrictions with regard to the exercise of the rights of capture in naval war dwells on the postal correspondence of neutrals or belligerents, whatever its official on the high seas on board a neutral ship is inviolable. Equally, vessels used exclusively for fishing along the coast are exempted from capture. Also exempted are vessels charged with religious, scientific or philanthropic missions.
In a situation where an enemy ship is captured by a belligerent, their crews which are
Nationals of neutral state are not made prisoners of war. The present convention is subject to ratification as soon as possible. (See Appendix XXVI)
3.8. 1925 GENEVA PROTOCOL FOR THE PROHIBITION OF THE USE IN WAR OF ASPHYXIATING, POISONOUS OR OTHER GASES, AND OF BACTERIOLOGICAL METHODS OF WARFARE. This convention prohibits the use in war of asphyxiating, poisonous or other gases, and of all analogues liquids materials or devices, condemned by the general opinion of the civilized world. The prohibition of such use has been declared in treaties to which the majority of powers of the world are parties, and to the end that 145 this convention shall be universally accepted as a part of international law, binding alike the conscience and the practice of nations.
This prohibition is extended to the use of bacteriological methods of warfare and parties are bound to the terms of this declaration. The high contracting parties will exert every effort to induce other state to accede to the present protocol. Such accession will be notified to the government of the French Republic, and by the latter to all signatory and acceding powers and will take effect on the date of the notifications by the government of the French Republic.
The ratifications of the present protocol shall be addressed to the government of the
French Republic, which shall at once notify the deposit of such ratification to each of the signatory and acceding powers. The instruments of ratifications of and accession to the present protocol will remain deposited in the archives of the government of the
French Republic. The present protocol will come into force for each signatory power as from the date of deposited of its ratification, and, from that moment, each power will be sound as regards other powers which have already deposited their ratifications.
3.9. INSTITUTIONAL MECHANISM OF ENFORCEMENT The 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide.
The contracting parties to the above convention decide that genocide whether committed in time of peace or war is a crime under international law and is subject to sanctions. Genocide, according to the convention connotes the intent to destroy, in whole or in part a national, ethnical, racial, or religious group.
Contracting parties undertake to enact in accordance with their respective constitutions, the necessary legislation to give effect to the provisions of the present convention. Persons charged with genocide acts enumerated in Article (iii) shall be 146 tried by a competent tribunal of the state in the territory of which the act was committed.
The general assembly shall decide upon steps to take if a request for the revision of the convention emanates. (See Appendix XXVII)
3.10. 1976 UNITED NATIONS CONVENTION ON THE PROHIBITION OF MILITARY OR ANY OTHER HOSTILE USE OF ENVIRONMENTAL MODIFICATION TECHNIQUES. The state parties to this convention, guided by the interest of consolidating peace, and wishing to contribute to the cause of halting the arms race, and of bringing about general and complete disarmament under strict and effective international control and of saving mankind from the danger of using new means of warfare determined to continue negotiations with a view to achieving effective progress, towards further measures in the field of disarmament.
Recognizing that scientific and technical advances may open new possibilities, with respect to the modification of the environment;
Recalling the declaration of the United Nations conference on the Human
Environment adopted at Stockholm on 16 June 1972;
Realizing that the use of environmental modification techniques for peaceful purposes could improve the interrelation of man and nature and contribute to the preservation and improvement of the environment for the benefit of present and future generations;
Recognizing, however that military or any other hostile use of environmental modifications techniques in order to eliminate the dangers to mankind from such use and affirming their willingness to work towards the achievement of this objective. 147
Also, to contribute to the strengthening of trust among unions and to the further improvement of the International situation, in accordance with the purpose and principles of the Charter of the United Nations.
The 1976 United Nations convention on the prohibition of military or any other hostile use of environmental modification techniques maintains that each contracting state is restricted not to engage in military or use of environmental modification techniques, having severe effects as means of destruction to any other state party.
The provision of this convention does not object to the use of environmental techniques for peaceful purposes with due consideration for the needs of the developing areas of the world.
Complaints may be lodged to the security council of the United Nations, if a state party to the convention perceives a breach of obligations deriving from the provisions of the convention by another state party.
However, a proposal may be made in respect to amendments on the convention, and shall enter into force with the acceptance of all states parties to the convention. (See
Appendix XXVIII)
3.11. 1980 UN CONVENTION ON PROHIBITION OR RESTRICTION ON THE USE OF CERTAIN CONVENTIONAL WEAPONS, WHICH MAY BE DEEMED TO BE EXCESSIVELY INJURIOUS OR TO HAVE INDISCRIMINATE EFFECTS The high contracting parties, recalling that every state has the duty in confirming with the Charter of the United Nations to refrain in its international relations, from the threat or use of force against the sovereignty, territorial integrity, or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. 148
Further, recalling the general principle of the protection of the civilian population against the effects of hostilities. This is based on the principle of International law, that the right of the parties to an armed conflict to choose methods of warfare is not unlimited. Also, on the principle that prohibits the employment in Armed Conflicts of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.
The high contracting parties of the 1980 UN convention on prohibition or restriction on the use of certain conventional weapons, which may be deemed to be excessively injurious or to have indiscriminate effects, maintain that every state has the duty in confirming with the Charter of the United Nations to refrain in its international relations, from the threat or use of force against the sovereignty, territorial integrity, or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.
The general principle of the protection of the civilian population against the effects of hostilities is based on the principle of International law, and the right of the parties to an armed conflict to choose methods of warfare is not unlimited. Also, on the principle that prohibits the employment in armed conflicts of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.
Expression of consent to be bound by any of the protocols annexed to this convention shall be optional for each state, provided that at the time of the deposit of its instrument of ratification, acceptance or approval of this convention or accesses thereto, that state shall notify the Depositary of its consent to be bound by any two or more of these protocols. 149
Further, it is prohibited, to employ methods or means of warfare, which are intended, or may be expected, to cause widespread, long-term and severe injury. (See Appendix
XXIX)
3.12. THE INTERNATIONAL CRIMINAL COURT The International Criminal Court (ICC) was established in 2002 as one of the mechanisms of enforcing law of Armed Conflicts by prosecuting individuals for genocide, crimes against humanity, war crimes, and the crime of aggression
(although it cannot currently exercise jurisdiction over the crime of aggression) The court came into being on July 1, 2002 the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force- and it can only prosecute crime committed on or after that date.
Adams, et al (2008:139) maintains that as of January 2008, 105 States are members of the court. Further, 41 countries have signed but have not ratified the Rome Statute.
However, a number of states, including China, India, and the United States, are cortical of the court and have not joined.
The court can generally exercise jurisdiction only in cases where the accused is a
National of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the court by the United Nations Security Council on damage to the natural environment.
The official seat of the court is in the Hague Netherlands’, but its proceedings may take place anywhere. The ICC is sometimes referred to as a “World Court” it should not be confused with the international court of Justice, also known as the World
Court, which is the United Nations organ that settles disputes between Nations.
(Roling 2007:173)
To date, the court has opened investigations into four situations: Northern Uganda, the
Democratic Republic of the Congo, the Central African Republic and Darfur. The 150 court has issued nine public arrest warrants and two suspects are in custody, awaiting trial.
War crimes are defined in the statute that established the international criminal court, which include:
1. Grave breaches of the Geneva conventions, such as willful Killing or causing great suffering or serious injury to body or health.
2. Torture or inhumane treatment.
3. Unlawful wanton destruction or appropriation of property.
4. Forcing a prisoner of war to serve in the forces of a hostile power.
5. Depriving a prisoner of war of a fair trial.
6. Unlawful deportation, conferment or transfer.
7. Taking hostages
The following act as violation of international Armed Conflicts according to the statutes of the ICC.
i. Directing attacks against civilian
ii Directing attacks against humanitarian workers or UN peacekeepers.
iii. Killing a surrendered combatant
iv Misusing a flag of truce
v Settlement of occupied territory
vi Deportation of inhabitants of occupied territory
vii Using poison weapon.
viii Using Civilian Soldiers
The following act as a violation of a non-international Armed Conflict
1. Cruel or degrading treatment and torture.
2. Directing attacks against civilians, humanitarian workers or UN peacekeepers, 151
3. Taking hostages
4. Summary execution
5. Pillage
6. Rape, sexual slavery, forced prostitution or forced pregnancy
In 1948, following the Nuremberg and Tokyo Tribunals, the United Nations
General Assembly recognized the need for permanent international court to deal with matters affecting war crimes. At the request of the General Assembly, the
International law commission drafted two statutes by the early 1950s but these were shelved as the cold war made the establishment of an international court politically unrealistic.
The idea was revived on 1989 when A.N.R Robinson, then Prime Minister of
Trinidad and Tobago proposed the creation of a permanent international court to deal with the illegal ding trades. While work began on a draft statute, the international community established ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda, further highlighting the need for a permanent international criminal court.
Following years of negotiations, the General Assembly convened a conference in
Rome in June 1998; with the aim of finally signing a treaty. On July 17, 1998, the
Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. Some of the seven countries that voted against the treaty were Iraq, Israel and Libya.
The Rome Statute became a binding treaty in April 11, 2002, when the number of countries that had ratified it reached 60. The statute legally came into force on July 1,
2002, and the court can only prosecute crimes committed after that date. The first bench of 18 judges was elected by an Assembly of States Parties in February at 2003. 152
They were sworn in at the inaugural session thereof of the court on March 11, 2003.
The court issued its first arrest warrants on 8 July 2005, and the pre-trial hearings were held in 2006.
Swiss, (1991: 64), argues that as of the January 2008, 105 countries, have ratified or be acceded to the court, including nearly all of countries in Europe and South
America, and roughly half the countries in Africa.
Article 5 of the Rome Statute grants the court jurisdiction over four groups of crimes, which it refers to as the “most serious crimes of concern to the international community as a whole” the crime of genocide, crimes against humanity, war crimes and the crimes of aggression. The statute defines each of these crimes except for aggression. It provides that the court will not exercise its jurisdiction over the crime of aggression until such time as the states powers agree on a definition of the crime and set out the conditions under which it may be prosecuted.
Some scholars have argued that the Rome Statute defines crime too broadly or too urgently: for example; China has argued that the definition of war crimes’ goes beyond that accepted under customary international law.
A review conference is due to take place in the first half of 2010. Among other things, the conference will review the list of crimes contained in Article 5. The final resolution on adoption of the Rome Statute specifically recommended that terrorism and drug trafficking be reconsidered at the conference.
The Rome Statute provided that all persons are presumed innocent until proven guilty beyond reasonable doubt. It also established certain rights of the accused persons during investigations. These include the right to be fully informed of the charges against him or her; the right to have a lawyer appointed free of charge, the right to a speedy trial; and the right to examine the witnesses against him or her and to 153 obtain the attendance and examination of witnesses on his or her behalf. Some argue that the protections offered by the ICC are insufficient. According to the Levitate
Foundation, “American who appears before the court would be denied such basic constitutional rights as trial by a jury of one’s peer, protection from double jeopardy, and the right to contradict one’s accusers”.
However, Human Rights Watch argues that the “ICC has one of the most extensive lists of due process guarantees ever written, including presumption of innocence, right to counsel, right to present evidence and to confront witnesses, right to remain silent, right to be present at trial, right to have charges proved beyond a reasonable doubt and protection against double jeopardy” According to David Schaffer, who led the U.S. delegation to the Rome Conference and who voted against adoption of the Statute “ when we were negotiating the Rome treaty, we always kept very close tabs on. Does this meet our constitutional test, the formations of this court and the due process rights that are accorded defendants? And we were very confident at the end of Rome that those due process rights, in fact, are protected, and that this treaty does not meet it”.
In order to ensure “equality of arms” between defense and prosecution team, the ICC has established an independent Office of Public Counsel for the Defense
(OPCD) to provide logistical support, advice and information to defendants and their counsel.
Article 16 of the Rome Statute also allows the Security Council to require the court to defer from investigating a case for a period of 12 months. Such a deferral may be renewed indefinitely by the Security Council.
The court co-operates with the UN in many different areas, including the exchange of information and logistical support. The court reports to the UN each year on its 154 activities and some meetings of the Assembly of states parties are held at UN facilities.
3.13. MILITARY MECHANISM OF ENFORCEMENT
The military mechanism is believed to demonstrate some vigorous sense of practical capabilities in the battle field. These appear possible through some strategically designed arrangements of enforcing the law properly in a more military sense. These arrangements also cover internal disturbances, escalated tension and other similarly violent situations.
TYPES OF MILITARY OPERATIONS ASSOCIATED WITH INTERNAL SECURITY DURING ARMED CONFLICTS
Here, we shall look at the involvement of the law and military in the internal security operations. Such include:
GENERAL
• Protecting persons and property (key points ups, vulnerable people such as
judges, key witnesses, etc)
• Apprehending violators and suspected violators of the law
• Ensuring respect for the law.
• Preventing the escalation of violence.
• Surveillance, intelligence and reconnaissance operations
• Evacuation operations
SPECIFIC
• Cordon and search operations (sealing off a village to search for offenders,
weapons or equipment)
• Urban and rural patrols, possibly joint patrols with police or paramilitary
forces.
• Manning observation posts, again in urban and rural settings. 155
• Guard duties at key point for VIPs
• Road blocks or vehicle check point (VCPs)
• Identity checks
• Controlling peaceful demonstrations
• Controlling or dispersing unlawful assemblies or demonstrations (riot
situations)
• Enforcing curfews
• Making arrests
• Detaining persons
• Acting as a reserve or reinforce. I.e. quick reaction duties on standby for
incidents.
• Keeping sides apart (manning a “peace line” or “green line”)
• Escort duties on standby for increment.
• Units the fire brigade
• Hostage rescue
• Cubbish
• Securing or picketing route for example to ensure safe passage of supplies
through sensitive measures
• Bomb disposal, or sealing with improvised explosive devices (Eds)
• Many of the above tasks can involve searching people, vehicle and property.
3.14. TYPES OF FORCES AVAILABLE TO A STATE FOR INTERNAL SECURITY OPERATIONS. Generally the state has three main types of force at their disposal:
The Armed Forces – the army, air force and navy. As we know, their main role is to defend the national territory from outside aggression 156
Paramilitary Forces – These normally have two roles: to support armed forces operations and to defend the state against outside aggression and to conduct internal security operations. Many paramilitary forces around the world are specially trained for internal security duties. Many countries have “Gendarmes” which often fulfill the same roles as we have described for paramilitary forces. Sometimes they are purely police forces.
Police Forces- These are usually trained and equipped for traditional policing roles and often also for certain levels of internal security duties. A state will use them for internal security operations for as long as possible. However, if the violence escalates, the police might be overextended and the civil authorities forced to request assistance.
Any available paramilitary force will no doubt be the first to provide reinforcements in many ways. This makes a lot of sense to divert police from their primary role and might actually contribute to a breakdown of law and order. Who does the policing?
Police are not normally trained and equipped to deal with increasing levels of violence. In conflict situations or situations of internal violence, the police remain the police. The threat to them and their type of work might change but they do not ever become armed forces.
What Forces are used is entirely a matter for the state, for our purpose, it is important to note the range of options available. Why? Because as an armed force you might, be called upon to assist. In providing this assistance, in the worst case you might be operating alone. In other situations, you might be operating in support of a paramilitary force, a police force, or both.
Operation in this sort of environment can pose problems for the military. It might be difficult to conduct joint operations if there has been no prior training or liaison. The 157
Standing Operating Procedures (SOPs) even the basic ethos, ethics and outlook of these forces will differ considerably.
3.15. PROBLEMS FACED BY THE ARMED FORCES DURING ARMED CONFLICTS The armed forces need to adjust to the demands of internal security operations.
Let us therefore highlight some areas where they may have problems adjusting at the operations level. One major problem for armed and paramilitary forces in internal security operations is that they may be unsure what law they are operating under.
Other problems might include the issue of training. The main role of the armed forces and the paramilitary is to deal with Armed Conflicts. Almost all their training and their equipment is based on inflicting maximum damage and destruction on their opponents and defeating them in the shortest possible time within the rules and the law of Armed Conflicts.
Key features of internal security operations, on the other hand, are restraint on the use of minimum force, of exactly the opposite of what is usually required of soldiers in conventional warfare. The reason is clear. Essentially they are now maintaining law and order among their own people in their own country. Soldiers need proper training to adjust to this new way of operating. Do not expect soldiers to know how to cope without training. If the army or paramilitary enter internal security operations completely cold, without training and detailed briefly on the applicable laws they will have problems. Because these situations require a cool head and majority, particular problems may be caused if young and inexperienced soldiers, whether conscripts or professional forces, are deployed of operations.
There are number of examples of highly regarded and well-trained conventional forces performing badly on internal security operations. Some over react to the situation facing them and actually exacerbate or prolong it, or cause more 158 victims by their behavior. Let us not make the mistake of downplaying the pressure and difficulties faced by soldiers on such operations. However, let us be equally clear that soldiers who are well trained to make the necessary adjustments and led by good professional commanders will be able to cope with the demands of internal security operations. They quite simply must cope; otherwise they become a liability to themselves, their fellow soldiers and their unit. They are also a threat to the very people it is their duty to protect; the civilians caught up in the violence.
EQUIPMENT
Often, armed forces are not properly equipped to deal with internal security operations. Soldiers faced by a hostile mob and equipped with only riffle will quite naturally use it if their lives are threatened. If they have defensive equipment, however (jackets, helmets and visors, batons and shields, rubber bullet guns, teargas, water cannon, etc) a graduated response can be used to dissuade or deter, without having to resort to extreme measures. It is difficult to demand restraint and minimum force from inexperienced soldiers whose lives are in grave danger if they are not properly equipped for the job. Certainly, they need to be taught on how to use this equipment which might be quite new and strange to them.
Enloe, (1992: 19) states that “the forces involved in internal security operations need a range of equipment enabling them to produce a graduated response” They must be trained in the use of that equipment.
TACTICS
As a result of the fact that they have been trained and equipped for Armed
Conflicts, where in the main large scale maneuvers and concentrations of massive force are required, armed forces will need to adjust to the smaller scale of operations and the tactical mobility required at this lower level of violence. Joan, (2006: 321) 159 argues that “Dealing with a hostile crowd of civilians in a riot situation requires a completely different approach from an attack on an enemy position in conventional war fare” Adjustments in training and tactics are required to deal with these situations.
3.16. THE ARMED FORCES ATTITUDE TO INTERNAL SECURITY OPERATIONS A word on the attitude of the armed forces to their involvement in internal security operations, some regard such operations with contempt. They consider that they have a nobler role. Louise, (1995:74) argues that “The only reason they‘ve called them in is because the police are inefficient and incapable of maintaining law and order” This rather arrogant but nevertheless often prevalent attitude can create major problems. Operationally, as we have said, these forces should work in “aid of the civil power” that is, in a secondary or supporting role to the police. In reality this quite often tends not to be the case on the ground. Armed forces in particular might be inclined to push the police aside and take the leading role. The legal system of most states will be based on the police primarily in such operations.
The Guidelines For Military Manuals, (1991: 311) provides that “the armed forces will often use the police when it suits them and will do things their own way when it does not” A further difficulty might be occasioned if the police are inadequately trained to deal with what for them might be an abnormal situation. Distrust between the armed forces and police can create all sorts of additional problems. Intelligence information tends to be jealously guarded and not shared. Duplication of effort due to mistrust results in inefficiency and undermines the state’s security efforts. Marco,
(2005: 215) states that “joint training between the military and the police, will ease operational problems, increase co-operation between the armed forces and civil 160 authorities including the police”. This is vital in such operations and the key to a successful restoration of law and order.
3.17. HUMAN RIGHTS STANDARDS ON THE USE OF FORCE
Rules and regulations: Governments and law enforcement agencies must adopt and implement rules and regulations on the use of force and firearms against persons.
This is an important point for armed forces. Based on these rules the armed forces should put together training packages and guidelines for their soldiers. If an internal security situation develops, they will not be caught off guard and become possibly ill prepared.
Range of equipment and weapons: We mentioned earlier that armed forces might be hampered in dealing correctly with an internal security situation because they lack adequate equipment or the range of weapons enabling them to provide a graduated response.
Non-lethal incapacitating weapons should be developed for use in appropriate situations, with a view to increasingly restraining the application of the means capable of causing death or injury to persons.
For the same purpose as above Wilson, (1988:261) argues “soldiers should be equipped with self- defensive equipment such as shields, helmets, bullet- proof vests and bullet- proof means of transport, in order to limit the need to use weapons of any kind”
The development and deployment of non- lethal incapacitating weapons should be carefully controlled. Maintaining minimum force in carrying out their duties, soldiers must, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use these only if other means remain ineffective or 161 hold no promise of achieving the intended result. If the lawful use of force and firearms is unavoidable, then the following rules must be followed:
A restraint: exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved so as to minimize damage and injury, as well as accord respect and preserve human life.
Medical assistance: ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment.
Notify next of kin: ensure that relative or close friends of the injured or affected person are notified at the earliest possible moment.
3.18. SPECIAL RULES FOR OPENING FIRE
In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender.
Apart from the general guidelines covered above, there are some special rules regarding opening fire in internal security situations.
In any operational internal security scenario firearms may only be intentionally used when strictly unavoidable to protect life.
These strict rules go hand –in-hand with another concerning warning before opening fire.
This is a major adjustment for a soldier, as a soldier you are simply not required under the law of Armed Conflicts to warn an opponent before you open fire, indeed to do so is tantamount to committing suicide. (One exception is POW escapes, when warning shots are appropriate). The guidelines say a number of things in relation to warnings. 162
In the circumstances described above, soldiers must identify themselves as such and give a clear warning of their intent to use firearms. They must allow sufficient time for the warning to be observed:
• Unless to do so would unduly place the soldier at risk or would create the risk
of death or serious harm to other person.
163
REFERENCES
A. Cassese (ed.) The New Humanitarian Law of Armed Conflicts , London: Cambridge
University Press.
Adams Roberts and Richard Guelph (2000) Documents on the Laws of War, 3rd ed. Oxford: Oxford University Press.
D. Schindler and J. Toman (1988) The Laws of Armed Conflicts, London: Martinus Nihjoff Publishers.
Enloe (1992) The New World Order at Home and Abroad: Collateral Damage. London: Martinus Nihjoff Publishers.
Guidelines for Military Manuals, and Instructions on the Protection of the Environment in Times of Armed Conflicts (1996). International Review of the Red Cross, Geneva: ICRC Press.
Joan T. Phillips. List of Documents and Web Links relating to the Law of Armed Conflict in Air and Space Operation s, (2006), Alabama: Research Information Center Maxwell (United States) Air Force Base.
Louise Oswald – Beck San P. (1995) Remo Manual on International Law Applicable to Armed Conflicts at Sea, International Review of the Red Cross Geneva: ICRC Press.
Protection of Civilian Populations against Bombing from the Air in Case of War, Unanimous Resolution of the League of Nations Assembly, (1938) Geneva.
Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, (1925), Geneva.
Roling C. (1979) Aspects of the Criminal Responsibility for Violations of the Laws of War, London: Cambridge University Press.
S. Swiss Liberia (1991) Women and Children Gravely Maltreated. Armsterdam: Armsterdam Press Ltd.
Yoram, Dinstein (2004) The Conduct of Hostilities Under the law of International Armed Conflicts , London: Cambridge University Press.
164
CHAPTER FOUR
NATURE AND CHARACTER OF VIOLATIONS OF THE INTERNATIONAL LAW OF ARMED CONFLICTS IN THE LIBERIAN CIVIL WAR
This chapter presents the analysis of data obtained from the administration of research instrument. The data are presented on the basis of research question one and hypothesis one that guided the study.
Research Question one:
Did the execution of the armed conflict in Liberia by Actors occasion specific violations of International law of war?
The data for providing answers to the above research question are presented below.
The documentations gathered and the discussions held with serving top military officers who participated in the seven year Liberian civil war (1989-1996) are highlighted in the hypothesis one.
Hypothesis One:
In operational conduct and occupation, irregular warfare tends to disregard the provisions of international law of war.
The above hypothesis was tested based on what were obtained from documentations and discussions had.
Most literature reviewed for this work proved that notable atrocities were committed in the Liberian Civil war which took the nature and character of rape, arson, displacement and killing of civilians, conscription of children into child soldiers, torture, inhumane treatment and execution of the Detainees.
The current crisis began when a small group of rebel insurgents attacked the Liberian border town of Butuo, in Nimba County, in late December 1989. The Liberian army conducted an extremely brutal counter insurgency operation in the area in early 1990, in which soldiers killed civilians indiscriminately. Further, they burnt whole villages, 165 looted all the nooks and crannies of the environment. The majority of the victims of this period were Manos and Gios, who have been regarded with hostility and suspicion by the government since the abortive coup attempt in 1985, led by a former officer from Nimba County, which is populated by Mamos.
The Nimba County was so vast that within four months, some 160,000 Liberians had fled into neighboring Guinea and the Cote d’Ivoire. The greater portion of the first large wave of refugees to flee in the January-May period, however, appeared to be
Mano and Gio people escaping abuses by government soldiers. Some, however, were
Krahn civilians escaping gross abuses by the NPFL forces, which killed noncombatants from that ethnic group who were encountered in the area. The atrocities committed by the Liberian army in Nimba county and other areas of Liberia intensified the insurgency, which had begun with only a few hundred rebels. Many of the new Recruits were children from Nimba County whose parents had been killed by soldiers in the first months of the conflict. As Charles Taylor’s NPFL grew, control of those forces evaporated by July, the NPFL was committing abuses on a massive scale against the krahn. The brutality of rebel troops was clearly motivated, though in no way excused, by the desire to avenge the abuses of 1985 and early 1990. The abuses by NPFL Forces and by government soldiers against innocent combatants from rival ethnic groups were not the inevitable consequence of communal hatred. Liberians of various ethnic groups lived peacefully for decades, and indeed, intermarriage between ethnic groups (including Americo-Liberians-the descendants of freed American slaves who settled in Liberia in the 1800’s) was common.
It was not until Samuel Doe took power in a bloody military coup in 1980, and began a policy of rewarding his own people, that problems of ethnic differences developed into a political problem. By surrounding himself with soldiers and cronies 166 from his own group, the Krahn, promoting and providing economic and educational opportunity for them at the expense of others, and permitting and even encouraging egregious abuses against civilians by Krahn military and police, president Doe’s policies sowed the seeds of hatred and set the stage for a civil war that had in the course of nine months reached near-genocidal proportion. (Hudson, 1991:28)
The situation in Liberia, clearly reflected a high degree of violence motivated by ethnic tensions, but even after extraordinary abuses by both sides to the conflict,
Liberian non-combatants, living in refugee camps and to their own devices, have shown that they can live together in peace.
4.1. VIOLATIONS OF THE LAW OF ARMED CONFLICTS BY THE INSURGENTS
The insurgent forces had consistently violated the international law of war from the outset of the insurgency. Charles Taylor was the commander- in- Chief of the National Patriotic Front of Liberia (NPFL) which comprised the bulk of rebel strength. Prince Johnson was an NPFL commander with Charles Taylor until he broke off in February 1989 to form the Independent National Patriotic Front of Liberia
(INPFL). Johnson’s forces, thought to number no more than 500 fighters, were based in Monrovia, and controlled several parts of the city, including Pushrods Island.
Troops under both commanders had engaged in violations of the laws of Armed
Conflicts including executions of civilians and captured soldiers, torture, and mutilation. (Elliot, 1990:3)
Gross abuses against civilians by the rebels had accelerated in the course of the
Liberian Armed Conflict. Rogers, (1996:153) has argued that since 1989, when rebel forces began to make significant inroads into the Krahn stronghold of Grand Gedeh, and violations reached staggering proportions, the Mandingo people, a mercantile tribe considered too accommodating to Doe had also been singled out for prosecution 167 and death by rebel troops. Since they had intended to be wealthier than other
Liberians, they had been perceived as having profited from their relationship with the authorities.
Killing of civilians
The violence against Krahn non-Combatants from 1989 had been so great that the
Krahn had poured out of Grand Gedeh at the rate of 1,000 per day. At this time, U.S
Officials and relief personnel estimated the number of Krahn refugees in the
Toulepleu area to be approximately seventy-five thousand (75,000) to eighty thousand
(80,000). This represented a significant portion of the total Krahn population of
Liberia, estimated at 4% of the national population, or approximately one hundred and twenty-five (125,000), people. (Africa Watch, 1989:12)
Liberian refugees in the Ivorian village of Pahoubi had entered Cote d’ Ivoire at various times in 1989. They fled their village of Gbarzon in Grand Gedeh when rebels attacked them in the middle of the night. Witnesses described how the rebels rocketed houses and shot people in their beds. Sick people or the elderly who couldn’t run were killed, and virtually the entire village fled into the forest. When asked how many had lost family members, the group of approximately 50 adults all raised their hands, stating that they didn’t know if their family members were dead, still in Liberia, or somewhere else in the Cote d’ Ivoire.
One refugee, Harris B, a junior high school teacher and a former Commissioner
(Superintendent) of his district in Liberia, described how rebels entered Grand Gedeh on June 27, 1990. He stressed that the Rebels entered Grand Gedeh and they killed everybody in the area- Krahn, Mandingo, and Bass. They didn’t try to choose between the groups, but killed everybody because they thought they were in Grand Gedeh.
According to an eye-witness account (Geggie) “I saw them kill three- year old twins, 168 and two others. My two brothers are missing, and three other members of my family. I don’t know where they are because we fled in all directions when the rebels attacked.
So many people died that you don’t have enough paper to write down all their names”. (Hazel, et al 1993:150)
Further evidence reveals that refugees interviewed in the Ivorian town of Pekam
Houebli in the Toulepleu area had much the same experience –Rev. Peter D., fled
Duegee Town when rebels entered the town, shot and killed civilians and rocketed homes. Rev-Peter D., saw a seventeen year old boy shot and killed with no questions asked. Jackson T, aged approximately 60, also fled from Duegee Town at the same time. Two of his sons: Ricky and Arthur, who were against the moves of the insurgents, were killed by the NPFL.
Another of the refugee, Harry P., also fled Duegee town when the NPFL attacked. His account follows:
“I fled Duegee Town when, I saw soldiers and rebels fighting. I saw rebels shooting people indiscriminately, including women and children. I can’t tell you their names because I was running, I just saw them drop when hit by soldiers, and I couldn’t go back to identify them. We are extremely concerned about the failure of NPFL leader,
Charles Taylor to take any measure to prevent such gross abuses against non-
Combatants. In particular, we are concerned about the killings of civilians’ targets solely on account of the fact that they are Krahn or of Mandingo”. The witness, affirmed that there were soldiers in the town, “but not enough to protect us, they were all killed”.
Under Humanitarian Law, (The 1997 Protocol 1 Additional to the 1949 Geneva
Conventions Article 36), the presence of soldiers in an area inhabited by civilians does not permit the rebels to attack the territory indiscriminately. The armed soldiers 169 themselves are permissible military targets but civilians and civilian structures such as homes and schools may not be targeted as such. The Combatants have the duty to avoid or minimize harm to civilians even when attacking soldiers who may be in the vicinity. That is, it is not permissible for them to shoot into a crowd of civilians because they think that a few enemy soldiers are among them.
The situation in Liberia during the civil war clearly reflected a high degree of violence. The insurgent forces had consistently violated these standards from the outset of the insurgency in late December, 1991. Charles Taylor, the then
Commander-in-Chief of the National Patriotic Front of Liberia (NPFL) comprised the bulk of rebel strength. Prince Johnson was an NPFL commander with Charles Taylor until he broke off to form the Independent National Patriotic Front of Liberia
(INPFL). Johnson’s forces, thought to number no more than 500 fighters, were based in Monrovia, and controlled several parts of the city, including Bushrod Island.
Troops under both commanders had argued in violations of the laws of Armed
Conflicts, including executions of civilians. Buchanan several months later (about 60 to 70 miles) His account follows: “All along, the way I saw dead bodies lying on the road, I was stopped at every checkpoints where the rebels would ask people to speak
Mano or Gio if they couldn’t they were led away. The rebels took them behind buildings, and I heard shots. The rebels took away three men just behind a house. I heard three shots, and the rebels returned and said they had killed the three. There were no Liberian army soldiers in the area when these incidents happened; the victims were non -combatants”.
Kissinger, (2001:55) reveals the execution of two men, a Krahn named
Frederick Tokpah, and Wilbert Matalay, a member of the Bassa ethnic group aged 60 and 55 respectively. Wilbert Matalay was grabbed by rebel soldiers, who accused him 170 of anti- government activities, and shot him. He was apparently suspected of government Ties because he had worked for the Tubman Government, many years before Doe took over power. The atrocities committed by the Liberian army in its counter insurgency campaign in Nimba County, include indiscriminate killing of men, women, and children.
In the months before Doe’s death, the group of Krahn Soldiers who surrounded the President in Monrovia engaged in gross abuses in the Capital, including regular executions of captured Civilians and the Large-scale murder of unarmed displaced persons. Government Soldiers outside the Capital continued their act of killing non- Krahn and suspected Political Opponents. One particular incident occurred when Liberian Army Soldiers attacked a large group of displaced civilians, who had sought refuge at St Peter’s Lutheran church. The International Press reported that more than six hundred (600) men, women, and children were murdered by soldiers who sprayed the church with gun fire. Andrew Voros, an American former
Peace Corps Volunteer, who lived in Liberia for many years, was in Monrovia at that time and attended to those wounded in the attack. In an interview with Africa Watch in Washington DC, on August 28, 1990, Voros stated that approximately one hundred and eighty-five (185) Civilians armed with sophisticated weapons attacked women and children indiscriminately. Following the attack, a large group of refugees fled to the United States.
The United Nations Agency for International Devolvement (USAID) entered the compound and broke down the gates. There were many civilians badly wounded in the attack according to Voros, who described women and children with hands and feet blown off. A group of Liberian Soldiers entered the compound and marched away with Civilians of about three hundred and fifty (350) ( Awosanya, 1990:7) 171
Reporters from the British Broadcasting Corporation (BBC) visited the Lutheran
Church where bodies of the victims of the massacre remained in an advanced state of decay. The Reporters visited a two-storey building next to the Church where people were lined up on their beds on which they were sleeping when the massacre happened.
Gen. Nimley the commander of the Executive Mansion Forces who with the death of
Doe claimed to be the President was reportedly one of the Officers’ Army. Some sources had also implicated Gen. Nimley in the brutal murder on January 4, 1990, of
Robert Philips, a former critic of President Doe. On October 10, 1990, two BBC reporters described a killing, where President Doe’s death squads took their Victims; the area, which was swampy, was littered with Corpses, mostly in skeletal form. They had just rotted away leaving only skulls and bones. There were also smashed bodies torn apart by either machetes or gunfire. (See appendix VI). The statistical table of atrocities committed by Charles Taylor, Prince Johnson, and Samuel Doe in the
Liberian civil war is shown below.
Table 2:
Violations of the International Law of Armed Conflicts by Rebel Leaders
Government/ Rebel Leaders Nature and Character of Ethnic Group No of Grand Violations Victims Total
Charles Taylor’s National Patriotic Rape Madingo 5,000 Front of Liberia (NPFL) Women 7,350 Prince Johnson’s Independent Rape Grand Gedeh 2,350 Women National Patriotic Front of Liberia Women Raped (INPFL)
Charles Taylor’s National Patriotic Torture Khran 15,000 Front of Liberia (NPFL Persons 19,015 Prince Johnson’s Independent Torture Victims were 4,015 Persons National Patriotic Front of Liberia spread across Persons Tortured (INPFL) the Liberian 172
Ethnic groups. Charles Taylor’s National Patriotic Displacement of Grand Gedeh 80,000 Front of Liberia (NPFL civilians Refugees Victims were 160,000 Prince Johnson’s Independent spread across 80,0000 Refugees National Patriotic Front of Liberia Displacement of the Liberian Refugees fled to Cote (INPFL) civilians Ethnic groups d’Ivoire -
Source: Human Rights Watch , (2006) Atrocities in the Liberian Civil War
From the Statistical Table above, it is empirically clear that about seven thousand, three hundred and fifty (7,350) women were raped, about nineteen thousand and fifteen persons (19,015) suffered torture and one hundred and sixty thousand
(106,000) civilians were displaced and turned into refugees.
4.2. EXECUTION COMMITTED BY PRINCE JOHNSON
As Prince Johnson’s small force of approximately five hundred (500) fighters were based in Monrovia, the forces were answerable to Charles Taylor who was responsible for most of the rebel abuses outside the Capital City. Prince Johnson’s forces engaged in abuses within Monrovia, however, the rebel leader himself had murdered innocent civilians in full view of the International Press. On August 3,
1997, Prince Johnson shot and killed a relief worker accused of profiteering from rice sales; - the victim was handcuffed by a Frenchman working for Catholic Relief
Services. The execution was carried out before photographers, and the International
Press carried photos of a gun-looting and grinning Prince Johnson pointing at the dying victim as he laid on the ground. Another incident was witnessed by a group of
Nigerian Journalists in mid-September of the same year. The Journalists reported that
Johnson sprayed a car with bullets, killing the driver. In another incident, Johnson accused a woman of stealing rice and shot dead. (Africa Watch, 1997:12) 173
The most dramatic case of rebel attitudes against prisoners was that of Samuel K. Doe captured by Prince Johnson’s forces when he came out of the Executive Mansion with sixty-five (65) members of his bodyguards on September 10, 1990, apparently to negotiate his departure from Liberia with the ECOMOG Forces. Doe was mutilated horribly before he finally died; his body was displayed and desecrated by the rebels at the island clinic. Such treatment which included desecration of the corpse was strictly prohibited by the International Humanitarian Law”. (Alexander, 1998:39).
The Liberian Civil war was heavily characterized by all sorts of atrocities, which have vehemently, violated the law of Armed Conflicts. Indeed, torture, ill-treatment, and executions of detainees where profusely pronounced in the country in question.
4.3. CONSCRIPTION OF CHILDREN INTO CHILD SOLDIERS
Conscription of Children was highly conspicuous in the Liberian Civil war.
Human Rights Watch Report, (2004:8) viewed that it unquestionably strengthened the nature and character of the violation of the law of Armed Conflicts in the Liberian
Civil War. Empirical evidence shows that children were heavily armed. Again, when the Krahn entered Nimba (county) all the kids’ parents died. The kids however sought revenge as this was the concept in their minds. Again, two nurses from New Zealand, working for a French Medical Organization within Nimba County in Liberia, reported that they recently saw a rebel as young as 7 or 8 years old, staggering under the weight of a Kalashirikov automatic rifle which was as tall as he was, menacing people with it. (Hudson, 1991:73)
A Kenyan nun, Josephine who was in Cote d’ivoire, stated that she had operated four schools in Buchanan which ranged from elementary school pupils and secondary school students with over 3,000 in population. By June, 1991 only one thousand 174
(1,000) students were left in school; the remainder had joined the rebels. She reported that Children as young as 10 years old-fifth and sixth graders – enthusiastically joined the rebels. According to Josephine, Charles Taylor was not recruiting the children; they had joined out of their own volition. (Footprints Today, 1990:16)
Whether or not the Children joined the rebels voluntarily, their presence with the fighting forces was a serious violation of humanitarian norms. International standards prohibit the conscription or recruitment of children under the age of 15.
(See appendix VII) For example Article 4(3) (c) of protocol II to the 1949 Geneva
Conventions, although not signed by Liberia, states that “children who have not attained the age of fifteen (15) years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities”.
4.4. THE TAKING OF HOSTAGE
The taking of hostage is strictly forbidden by Article 3 of the Geneva
Conventions of 1949, and is binding on rebel and government forces. Yet, foreign
Civilians in Liberia have been attacked by both government forces, and by the NPFL.
Charles Taylor had admitted taking at least one thousand (1,000) Nigerians,
Ghanaians, and Guineans hostage in Buchanan, where according to Reports, were in appalling condition. However, other reports received by Africa Watch, (1990:22) indicated that some of the foreign Nationals were being held in “protective custody “.
Hundreds of foreign Nationals from governments, which have sent troops to participate in the economy forces, fled to their embassy compounds in Monrovia.
Apparently, when Charles Taylor controlled these parts of Monrovia, he prevented them from leaving. He was reported as saying that “Nobody will leave Liberia until the conflict is over…. remember what the Americans did with the Japanese living in 175 the United States in world War II, they put them in concentrated camps”. The statistical table below shows the breakdown of persons held hostage, their countries as well as the perpetrators in the Liberian civil war.
Table 3:
Hostage Taking of Persons in the Liberian Civil War
Year Country No of Perpetrators
Persons
1989 Nigeria 1,000 Charles Taylor’s led
NPFL
1989 Ghana 1,000 Charles Taylor’s led
NPFL
1989 Guinea 1,000 Charles Taylor’s led
NPFL
Source: Africa watch, (1990) Hostage Taking in the Liberian Civil War
4.5. REBELS KILLING OF FLEEING SOLDIERS.
Relief personnel and the Ivorian authorities were concerned about fleeing army soldiers who had been pursued by rebels into Cote d ‘Ivoire. The Ivorian authority working through the United Nations High Commissions for Refugees
(UNHCR), had initiated a policy of disarming rebel soldiers within the Cote d’ivoire and exchanging their uniforms for Civilian clothes. To prevent hostilities from spilling over the Ivorian soil and to keep them from menacing the Mano and Gio refugees, they were relocated from the border to the Toulepleu area. The Ivorian have 176 also placed military personnel on the Liberian border to guard against rebel incursions in pursuit of fleeing soldiers. (Awosanya, 1990:7)
One such incident took place in the Ivorian Town of Bliheron when rebels from
Charles Taylor’s Forces crossed over to the Cote d’ivoire, shot and killed eight (8)
Soldiers who were attempting to swim across the Cavalla River in Cote d’ivoire. The rebel Soldiers claimed that they were in Liberia but turned themselves over the
Ivorian authorities. Refugees interviewed by the delegation in Bilheron, witnessed the execution and were terrified. Again, abandoned hostilities were protected under the provisions of Common Article 3 of the Geneva Accords. (Sawyer, 1990:26)
The death of Samuel K. Doe did not mean the dissolution of his army. The army was commanded by General David Nimley, who took over following series of gross abuses of human rights against Liberian Civilians and was widely thought to have organized a death squad within the Armed Forces. Indeed, at least one thousand
(1,000) heavily armed government Soldiers were in control of certain areas of the country and the army continued to abuse, loot and kill with impunity. (Africa Watch,
1990:18)
4.6. TORTURE, INHUMANE TREATMENT AND EXECUTION OF THE DETAINEES Samuel Doe’s forces had long been implicated in torture and inhuman treatment of detainees. Doe himself had been accused of being involved in the 1985
Murder of Thomas Quiwonkpa. Andrew Voros, was himself captured by seventeen
(17) Liberian Soldiers and held hostage at the Presidential Mansion for eight days. He was arrested at the residence of USAID Personnel in Monrovia. (Footprints Today,
1986:21) The report further revealed that Voros was questioned by General David
Nimley and accused of being a Central Intelligence Agency Point man. Also in the net 177 with Voros and Col-Doe were several dozens of Mano and Civilian Prisoners, some of who had been held for months. Some appeared to have been jailed solely because of their ethnicity.
The Prisoners (except for Voros) were not given food and water, and many of them were starved to death. They begged for food scraps at a tiny opening to the outside at the top of the cell, and passed around Crumbs of food between themselves. The unlucky prisoners were taken out and killed by soldiers. Col Doe was one of those killed; he was surrounded by a group of serenading soldiers and cut repeatedly with a machete until he was dead. Voros, saw two very emaciated prisoners, an old man and a younger one taken away. According to the younger man, the two were taken to a burial ground behind the Executive mansion and made to dig a mass grave. They buried twelve bodies, most of which were horribly mutilated. (Africa Watch 1990:18)
In fact, the gross violations of the law of Armed Conflicts in the Liberian Civil war would be better imagined than described, as the strength of atrocities committed was practically incalculable.
4.7. ILLEGAL POSSESSION OF SMALL ARMS AND LIGHT WEAPONS
The production, trafficking and illegal possession of small arms and light weapons in both International and non-International Armed Conflicts have gained momentum in the twenty- first (21 st ) century warfare. Peeknner, (2008:74) argues that from all that has been learned about the International trade in small arms and light weapons, it is evident that no single set of policy initiatives will suffice to deal with these problems. It is in the light of these realities that the Liberian civil war witnessed a gross violation of the rules governing small arms and light weapons. As a result, there was a clear cut illegal possession of small and light weapons by the rebel groups 178 fighting the national government of Liberia during the seven year civil war. These small arms and light weapons illegally possessed by some Liberian youths who were fighting the then existing government of the day were used along the major streets in
Liberia as well as public places like hospitals, churches, markets, schools. A breakdown of the illegal possession of small arms and light weapons by some
Liberian youths who were vehemently anxious in fighting the then government is shown below:
Table 4:
Illegal Possession of Small Arms and Light Weapons in the
Liberian Civil War
Year NPFL Models of Small and Light Weapons Youths
1989 515 1, 300,000 (Belgian FAL assault rifles)
1990 1,133 977,000 (AK assault rifles)
1991 3,011 511 (U. S M-16 rifles)
Total 4,659 2,277,511
Source: Votte Foundations (2009) Application of Illegal Weapons in the Mano Region (unpublished)
It is worthy of note to state that the major producers of these weapons illegally possessed and used in Liberia were the industrialized nations. In recent decades, however, these established producers have been joined by China, Israel, South Africa and many developing countries. These numbers do not include the surplus arms that have been sold or given away to countries in Mano region as the world’s major military powers have reduced their forces and found themselves with excess production capacity following the end of the cold war. In addition to illegal sales and 179 military assistance programs, small arms and light weapons are disseminated through covert channels, most often by government intelligence agencies or private companies linked to such agencies. Another form of transfer entails the delivery of weapons from government stockpiles to political entities and ethnic militias associated with the ruling clan or party in Liberia. Prior to the 1989 Liberian Civil war, Charles Taylor – led NPFL government distributed small arms and machetes to thousands of able bodied youths in his camp and under his control and loyalty. Several unarmed civilians in Liberia were crushed at Taylor’s instruction. (See appendix VIII)
4.8. SEXUAL SLAVERY
During the Liberian civil war, more than twenty-five thousand (25,000) girls under 18 years were victims of sexual violence. As a result, many of these young people suffer from Sexually Transmitted Diseases (STDs), inflicted in them by combatants. Their parents, guardians, relatives, and neighbours bear the primary responsibility over the fate of these children. Ogunjobi, (2008:33), argues that whether as a weapon of war, as punishment, or for the simple belief of some that a man has the right to have sexual intercourse with a woman when and how he pleases, the reality of sexual abuse of minors is a global health problem and a violation of fundamental rights of women especially as demonstrated in the Liberian civil war which was unprecedented since the history of warfare. Sexual slavery in Liberia actually put women’s lives at risk, as well as their families, because women are the backbone of the household in that country.
In the views of Akhangaki, (2007:107) approximately 10% of Liberian women under
18 years suffered sexual violence in the form of torture and forced sexual slavery 180 during the seven-year civil war. (See Appendix IX). Most of these offenders were rebel youths under the control of the Charles Taylor- led NPFL.
Further, the issue of sexual slavery was not as simple as people might think about during the Liberian civil war. Human Rights Watch, (2001:13) has it that fifteen (15)
Liberian boys (all Americo-Liberians) raped about twenty-five (25) girls from Bassa,
Gio, Kpelle, and Kru ethnic groups in Liberia. These sexual assaults took place on
22 nd of March, 1989. The victims were rushed to the hospital in Monrovia where they were given proper medical attention. Again, on 17 th April, 1990, about thirty-five (35)
Armed boys from NPFL sexually harassed more than thirty-three (33) girls from
Bassa and Gio ethnic groups at gun point for consecutive five days. Lastly, on the 17 th day of April, 1991, the Charles Taylor-led rebel groups, numbering about seventy-one
(71) besieged a secondary school in Kru ethnic region and sexually abused the female students numbering about hundred and seven (107). The statistical table of sexual slavery in the Liberian civil war is shown below:
Table 5:
Sexual Slavery in the Liberian Civil War
Year No of Women Raped Offenders
1989 25 15 (Americo-Liberian boys)
1990 33 35 (armed boys from NPFL)
1991 107 71 (Charles Taylor-led rebel boys)
Total 165 121
Source: Human Rights Watch , (2001) Sexual Slavery in the Liberian Civil War. 181
REFERENCES
Africa Watch, (1990) “Breach of International Law of War in Liberia”.
Africa Watch, (1997) “The Aftermaths of the Liberian Civil War” .
Alexander, Frank (ed) (1998) Encyclopedia of World History . Oxford: Oxford University Press.
Alston, Philip (2005) Ships passing in the Night: The Current State of the Human Rights and Development Debate seen through the lens of the Millennium Development Goals, Human Rights Quarterly Journal. New York: New York Press.
Awosanya, Kayode (1990) How the Liberia Time Bomb Exploded, Monrovia: Liberian Press Limited.
D. Wippman and M. Evangelista (eds.) New Wars, New Laws: Applying the Laws of War in 21 st Century Conflicts, New York: New York Press
Elliot, Berg (1992) The Liberian Crisis and an Appropriate U.S. Response, London: Oxford University Press.
Footprints Today (1997) “Liberia After the Civil War”
Hazel Fox and Michael A. Meyer (eds.) (1993) Armed Conflicts and the New Law; Effecting Compliance (vol. II) , London: The British Institute of International and Comparative Law.
Hudson, Manley O (1991) Present Status of the Hague Conventions of 1899 and 1907. Washington: The American Journal of International Law.
Human Rights Committee, General Comment (2001) Derogations from Provisions of the Covenant during a State of Emergency, Geneva.
Kissinger, Henry (2001) The Pitfall of Universal Jurisdiction. Foreign Affairs, Amnesty International, Amsterdam: Amsterdam Press.
Marco, Sassoli (2005) Targeting the Scope and Unity of the Concept of Military Objectives for the Protection of Civilians in Contemporary Armed Conflicts, New York: New York Press.
The United States of America: Human Dignity Denied. Torture and Accountability in the War on terror, Amnesty International (2007) New York: New York Press.
Votte Foundations (2009) Application of Illegal Weapons in the Mano Region (unpublished work).
1977 Protocol I Additional to the 1949 Geneva Conventions, Geneva.
182
CHAPTER 5
INSTITUTIONAL MECHANISM OF ENFORCEMENT OF THE LAW OF WAR IN THE LIBERIAN ARMED CONFLICT
This chapter presents the analysis of data obtained from the administration of research instrument. The data are presented on the basis of research question two and hypothesis two that guided the study.
Research Question Two:
Did the mode and nature of conduct of hostilities in Liberia overstretch the capacity of institutional mechanisms of enforcement of International Law of War?
The data for providing answers to the above research question are presented below.
The documentations gathered and discussions held with serving top military officers who participated in the war (1989-1996) are highlighted in the hypothesis two.
Hypothesis Two:
Guerrilla warfare tends to grossly violate enforcement action of the international law of war.
The above hypothesis was tested based on what were obtained from documentations and discussions had.
There was an unsystematic delay of punishing the war criminals in the Liberian
Armed Conflicts by the United Nations. For instance, the former Liberian President,
Charles Taylor, was led in chains in March 2006 (ten years after the Liberian Civil war had ended), there were some political influences behind this. Thus, according to
Courtenay Griffiths, the lead counsel for Charles Taylor, “this trial of Charles Taylor, and others, is not about the law as such, it is about politics, there are important political considerations at stake, Western influence had much to do with Taylor being charged in the first place”. (See Appendix XXX) 183
The above facts prove that the law of Armed Conflicts was ineffectively observed in the Liberian Civil war, especially with respect to the immediate punishment of war criminals.
This Chapter is a scholarly attempt to look at the enforcement of the law of
Armed Conflicts in Liberia (especially as regards the punishment of war criminals, as will be found in Appendix Vii of this work as stated above). Equally to be examined is the role of the United Nations Mission in Liberia (UNMIL) in the Protection of the
Civilians, as well as the enforcement of the Law by the ECOMOG. In this vein, the chapter explores the political and diplomatic developments leading to the deployment of the Economic Community of West African States (ECOWAS) mission in Liberian
Peace Process. The chapter then focuses on (UNMIL), Particularly its broad mandate, deployment and implementation of the Law of Armed Conflicts, especially, as it affects Critical peace-keeping and peace-building tasks, notably Disarmament,
Demobilization, Rehabilitations and Reintegration (DDRR) Reform of the Security
Sector, issues of human rights as well as the rule of law of transitional justice. These issues will be analyzed with the aim of highlighting their crucial importance to the overall Peace Process in general and the protection of Civilians in particular.
5.1. THE USE OF GUERRILLAS IN THE LIBERIAN CIVIL WAR
Guerrilla Warfare, military or paramilitary operations was conducted in the Liberian enemy-territory by irregular forces. They were made up of groups indigenous to that territory. They lacked the numerical strength and sophisticated modern weapons to oppose a regular army in the field. These guerrillas in question avoided pitched battles. Instead, they operated from basis established in remote and inaccessible terrain, such notable forests, mountains, and jungles in Liberia. It is of note to mention that they depended on the support of the local inhabitants for recruits, food, shelter, 184 and information. Equally, according to Manchaca, (2007:92) these guerrillas in
Liberia received assistance in form of arms, medical supplies, and military advisers from their own or allied regular armies.
The tactics of these guerrillas in the Liberian civil war were those of harassment.
Striking swiftly and unexpectedly, they raided enemy supply depots and installations, ambush patrols and supply convoys, cut communication lines, hoping thereby to disrupt enemy activities and to capture equipment and supplies for their own use. As a result of their mobility, the dispersal of their forces into small groups, and their ability to disappear among the civilian population, these guerrillas were extremely difficult to capture. (See Appendix XI)
Further, the violent civil war in Liberia, of which the use of guerrillas was as conspicuous as possible killed more than seventy-five thousand (75,000) people and forced about one-third of the country’s population to leave their homes. (Ogunjobi,
2005:16). The National Patriotic Front of Liberia (NPFL) backed by the Liberian government of Charles Taylor, waged a brutal guerrilla campaign throughout Liberia, a campaign in which the deliberate and systematic mutilation of civilians became common place. Successive multi-national peacekeeping mission, UNAMIL, have failed to put an end to the strife in Liberia. Jenniscotte, (2006:79) opines that in the summer of 1994, the NPFL held hostage several hundred UN Peacekeepers confiscating their weapons and equipment for use against the rest of the UN mission.
Confronted with some of the horrors that this conflict produced, the international community made an effort to isolate the NPFL.
185
5.2. FROM ECOMOG TO ECOMIL
The first regional intervention in 1990 was itself unprecedented in several respects. It was the first time that a Regional Organization was set up for Economic Integration purposes had intervened in a domestic conflict. The invocation of the humanitarian rational for the intervention was also unprecedented, thereby resulting in a re- conceptualization of security policy and discourse in West Africa. The preamble setting up the ECOWAS standing mediation committee to deal with the Liberian
Crisis referred to the following as the reasons for the intervention: The rate on destruction of human life and property and the displacement of persons; the massive damage in various forms being caused by the Armed Conflicts to the stability and survival of the entire Liberian nation; concern, about the plight of foreign Nationals, particularly citizens of the community who were seriously affected by the conflict and considering that law and order in Liberia had broken down; to find a peaceful and lasting solution to the conflict and to put an end to the situation which was seriously disrupting the normal life of innocent citizens in Liberia.( Brasilia,2003:63)
In spite of the humanitarian rationale, the ECOWAS intervention was beset by acrimony and controversy as some ECOWAS member states, notably Cote d’ Voire and Burkina Faso, contested the political and legal basis of the intervention, arguing that the Liberian crisis was an internal problem that did not require regional military intervention. Ball, et al (2007:19) argues that this position was tenuous at best because both countries were known to have provided support to the Liberian insurgents.
Responding to critics of, the intervention, President Duada Jawara of the Gambia, then chairman of ECOWAS noted that: “the wanton killings going on in Liberia have made that country a slaughter house and the situation could no longer be treated as an internal matter".(Footprints, 1990:12) 186
If the appeal to military humanitarianism by the intervening states was meant to build regional consensus, it failed as the region was effectively polarized, over the legality and procedure of the intervention. The regional divide therefore served as a catalyst and an impetus for prolongation of the civil conflict, with dire consequences for the civilian population, Liberian National cohesion as well as National peace and stability. Following Liberia’s relapse into violent conflict in early 2003, ECOWAS undertook to bring peace in the troubled West African State. As ECOWAS chairman,
Ghana’s president John Kufour, hosted the peace talks in close collaboration with the
ECOWAS secretariat in Abuja, Nigeria. The former Nigerian Head of state, Retired
General Abdusalami Abubakar, was appointed by ECOWAS as its chief mediator.
After protracted peace negotiations in the Ghanaian capital, Accra, an Agreement on
Cease Fire and Cessation of Hostilities (ACCH) was signed between the Government of Liberia (GOL), and model the main parties to the conflict – on 17 June 2003.
Under the ACCH, the parties agreed to: declare and observe a ceasefire, refrain from committing any acts that might constitute or facilitate a violation of the ceasefire, establish an ECOWAS – led Joint Verification Team (JVT), comprising two representatives from each of the parties, plus representatives of the UN, AU and the
International Contact Group on Liberia (ICGL), established a joint monitoring committee to supervise and monitor the ceasefire, the need for the creation and deployment of an international stabilization force and committed themselves to co- operate with it. (Barzilai, 2003:20)
The agreement also dealt with a wide range of issues that were subsequently addressed in the negotiations leading to the signing of the Comprehensive Peace
Agreement (CPA) on 18th August 2003. For a moment during the negotiations, the
Accra peace talks were thrown into chaos when the Special Court for Sierra Leone 187
(SCSL) unexpectedly unsealed an indictment and a warrant of arrest for President
Taylor, who was attending the Accra peace talks. The special court accused President
Taylor, of committing crimes against humanity, war crimes and other serious violations of International Humanitarian Law, and indicted him on 17 counts charge ranging from “terrorizing the civilian population and collective punishments, sexual violence, use of child soldiers, abductions and forced labour, to attack on UNAMSIL personnel. Embarrassed and infuriated by the unexpected announcement, the announcement affected the ongoing peace talks in several ways. First, it bolstered the determination of LURD and MODEL to pursue a military option. This was clearly manifested when both groups hardened their positions at the negotiations, insisting that they would not negotiate with an indicted war criminal. Secondly, with the prospect of spending time in a jail house in Sierra Leone, President Taylor was determined to dig in and fight to the last – a scenario that did not go well for the civilian population trapped in Monrovia. Also, the SCSL’S inadequate consultation with ECOWAS and the Ghanaian government before unsealing the indictment had a negative impact on the relationship between the SCSL and the regional leadership.
This strained relationship perhaps partially explains Nigerian President Olusegun
Obasanjo’s refusal to hand over Charles Taylor to the court. (Mitchell, 1999:51)
Moreover, the timing of the announcement showed either lack of understanding of the regional political dynamics or a terrible oversight, with the potential of robbing the victims of the brutal civil wars in Liberia and Sierra Leone of their main culprit-
Charles Taylor, for the court to have expected the government of Ghana to arrest
Taylor, who was its guest, was not only unreasonable but showed a lack of understanding or disregard of the conflict dynamics in the region. (West Africa,
2000:21) 188
It should be recalled that the late president Doe was snatched and subsequently murdered by his arch enemy Prince Johnson, from the hands of the first Economy
Field Commander, General Arnold Quainco. Certainly, the late President Doe’s murder caused the Ghanian authorities a great deal of embarrassment, and history could not be allowed to repeat itself; as indeed it had forgotten circumstances surrounding the death of Patrice Lumumba in the then Congo Leopoldville. In addition, the embarrassment that this would have caused to the leaders of two of
Africa’s power house, President Obasanjo of Nigeria and President Thabo Mbeki of
South Africa should have been enough signals to the court that the timing was wrong.
In as much Taylor, for all intents and purposes, contradicted the principles espoused by the champions of the Africa Union (AU) and the new partnership for
Africa’s development (NEPAD), it was inconceivable to see how the arrest would have been effected in the presence of these leaders. Although, arresting Taylor and handling him over to the court would have been the desirable and right thing for the
Ghanaian government to do, on the other it would be viewed in many quarters as a breach of the norms of diplomacy and as a betrayal of traditional hospitality. The indictment of Taylor- the first time a sitting African Head of State had ever been called on to answer for his actions against Innocent civilians was, however, a major milestone in the quest to protect civilians in conflict zones. The indictment constitutes a serious blow to the culture of impurity which had been condoned in the past.
Taylor’s indictment sent a strong message that no one is above the law and that war
Lords would be held accountable for their actions. Nevertheless, it remains to be seen whether President Obasanjo will bow to domestic and International pressure and do the thing; that is, handover Taylor to the court in Freetown. 189
The ECOWAS Monitoring Group (ECOMOG) was established and deployed in
Liberia on 24th August 1990. It was organized as a peace keeping force with the mandate to:
• Keep the peace, restore law and order in Liberia
• Separate the warring factions and ensure that the ceasefire was observed by
all.
• Restore all essential services in Liberia
• Assist in the establishment of Interim Government and the conduct of
elections.
• To operate without the use of force except in the case of self-defense. (Jakotte
& Marock 2005:72)
5.3. ESTABLISHMENT OF ECOMIL The Central Police Authority (CPA) of 18th August 2003, called for the deployment of an International Stabilization Force (ISF) in Liberia. The Parties requested the UN in collaboration with ECOWAS, the African Union and the International Contact
Group on Liberia (ICGL) to facilitate, constitute and deploy a UN chapter and force to support the transitional government and to assist in the implementation of this agreement.
The CPA addressed itself to a broad spectrum of peace building challenges and outlined specific areas of focus such as the DORR, the restructuring of the AFL, the
LNP and other security services as well as human rights and humanitarian issues, transitional justice programmes, the distribution of power within the National
Transitional Government of Liberia (NTGL) and the crucial question of amnesty.
Following the signing of the Cease Fire Agreement (CFA) the UN Security Council adopted Resolution 1497, authorizing ECOWAS to: 190
Establish a multinational force in Liberia to support the implementation of the 17th
June 2003, cease fire agreement, including establishing conditions for initial stages of disarmament, demobilization and reintegration activities, to help establish and maintain security taking into account the agreements to be reached by the Liberian parties ; to secure the environment for the delivery of humanitarian assistance, and to prepare for the introduction of a longer-term UN stabilization force to relieve the multinational force. (Ellerman, 2005:35) (See Appendix XII.).
In a nutshell, ECOMIL’S mandate was to:
• Establish zones of separator
• Secure the ceasefire line; and
• Create conditions for the deployment of the ISF
The deployment of ECOMIL, however, started with the establishment of the
ECOWAS – led JVT, pursuant to paragraphs 334 of the ACCH, to verify the locations of the parties at the time of the ceasefire. The JVT and its variant teams were mandated to undertake three separate missions, depending on the prevailing situation, these involved the verification of the cease fire and two reconnaissance missions, aiming to facilitate the deployment of an ECOWAS Monitoring Mission in Liberia
(ECOMIL) as well as to assess the situation in Monrovia and gather information leading to the insertion of a Vanguard Force into Monrovia”. It comprised two representatives from each of the parties, plus representatives from the UN, AU and the ICGL. (Franklin, 2004:33)
The ACCH also provided for the establishment of a Joint Monitoring Committee
(JMC) to supervise and monitor the ceasefire. The JMC was to be composed of equal representation from the parties, as well as representative from the UN, AU, and the
ICGL. The ISF was later changed to three thousand five hundred (3,500) -strong 191
Inter-Positional Force (IPF), whose vanguard force was to deploy to Monrovia to provide security. It was then to be followed by the deployment US force and the main
ECOWAS force to jointly prepare conditions for the deployment of a larger UN force estimated at between 10,000 and 15,000.
Following its assembly in Accra, 15 members of the JVT, accompanied by Ghana’s
Ambassador to Liberia, Mr. Amoah, flew to Freetown on 2nd July 2003. One
UNAMSIL staff officer joined the team in Freetown. Eventually, owing to persistent violations of the ACCH and its total collapse following the resumption of hostilities and the escalation of fighting from mid- July 2003, as well as the attenuation of the peace talks. The mission was gradually withdrawn to Accra to be replaced later by the
JMC. (Akpan, 2005:21)
Almost five years after ECOMOG withdrawal from Liberia, ECOWAS troops returned to the streets of Monrovia to the cheering crowds of civilians. The arrival of the ECOMIL troops saw hundreds of desperate civilians who had been trapped by weeks of intense fighting in Monrovia; line the streets to welcome the ECOMIL troops as they made their way from Robert international Airfield. The three thousand five hundred and sixty-six (3,566) ECOMIL Troops were drawn from eight
ECOWAS member states: Nigeria, Ghana, the Gambia, Guinea- Bissau, Mali,
Senegal, Togo and Benin. From its inception, ECOMIL, unlike ECOMOG, received diplomatic, political and logistical support from the UN and the International community. At the diplomatic levels, UN Security Council resolution 1497 (2003) authorizing the establishment of a multinational force gave ECOMIL the political legitimacy that is needed under International Law. In addition, the force received military and logistical support from the US Joint Task force, other forms of logistical support also came from UNAMSIL which provided aerial helicopter and 192 reconnaissance support, while the Pacific Architects and Engineers (PAE) provided logistical support with funding from the US through the framework of the UN trust fund. (Davenport, 2007:43)
The division of labour between ECOWAS, the UN and other International
Players such as the US is a clear acceptance of the pivotal role of regional organizations, such as ECOWAS, in keeping the peace in their backyards. This division of labour, elsewhere referred to as the “blood – treasure” dynamic, involves
African Countries providing military manpower, while the intentional community provides the necessary financial and logistical resources to complement it. On the contrary, it also reflects an addiction of responsibility for the maintenance of global peace and security that leads to the hybridization of peace operations in Africa, whereby external countries selectively choose not to place their forces under UN mandates but to deploy them alongside UN and /or regional peace operations.
A striking feature of ECOMIL’S deployment was the relative ease with which
ECOWAS achieved broad and sufficient consensus, in contrast with the spoiling diplomatic tactics of 1990s. The composition of the force, eight (8) out of the fifteen
(15) ECOWAS member states excluding Guinea, Cote d’ivoire and Sierra Leone, which could not send troops because of their alleged affiliations with one party of another and for being in conflict, points a greater consensus within ECOWAS. In part, this owed to agreement on the protocol relating to the ECOWAS mechanism for conflict prevention, management, resolution, peace keeping and security of 1999. In the absence of the Allied Armed Forces of the Community (AAFC) that was provided for in its revised charter of 1975. ECOWAS was caught unprepared by the conflicts that erupted in the 1990s- were not inclined to oppose the intervention this time around. 193
In terms of mandate, ECOMIL’S mandate was clear, credible and supported by a rational exit strategy. However, it obviously lacked adequate military and organic logistical capacity and would have ran into difficulties but for the adherence of the warring parties to the CFA and CPA. The speed of deployment of the following on the UNMIL was a far cry from the thumb –sucking arguments of the Security Council in the 1990s. Nonetheless, while progress was made in this regard in West Africa, including the mandating and deployment of the UN mission in Cote d’ivoire
(MINUCI) in 2003 and its subsequent replacement by the UN operation in Cote d’ivoire (UNOCI) from April 2004, it is pertinent to point out the lateness of UN intervention in Burundi, more than one year after the deployment of the Africa mission in Burundi (AMIB) (Africa Today, 2007:15)
5.4. THE ROLES OF THE UNITED NATIONS ON THE ENFORCEMENT OF THE LAW OF ARMED CONFLICTS IN LIBERIA
In fulfillment of the provisions of resolution 1497 (2003) which called for the establishment of an International Stabilization Force (ISF) to take over from
ECOMIL, the UN security council adopted resolution 1509, authorizing the establishment of UNMIL for an initial 12- month period commencing 1st October
2003. The resolution directed the Secretary General to transfer authority from
ECOMIL forces to UNMIL by 1st October 2003. It stipulated that UNMIL will consist of fifteen thousand (15,000) UN military personnel, including two hundred and fifty (250) military observers and one hundred and sixty (160) staff officers, and up to one thousand, one hundred and fifteen (1,115) civilian police officers, including formed units, to assist in the maintenance of law and order throughout Liberia, and the appropriate civilian component. (Donnelly, 2003:47). The statistical table below shows the breakdown of the United Nations Mission in Liberia: 194
Table 6:
The Composition and Deployment of UNMIL in the Liberian Civil War in 2009.
UN Military Personnel 15,000
Military Observers 250
Staff Officers 160
Civilian Police 1,115
Total 16,525
Source: Nancy War Crimes Reports (2005) Liberian Civil War
United Nations Mission in Liberia (UNMIL) was established with a chapter
Vii Mandate and, in its broadest sense, was charged with carrying out two major responsibilities: To support and to protect.
Nasil, (2003:41) argues that in its supporting role, UNMIL was given the following responsibilities:
• Support for implementation of the CF
• Support for humanitarian and human rights assistance.
• Support for security sector reform.
In terms of protection, the force was mandated to:
• Protect UN personnel, facilities, installations and equipment;
• Ensure the security and freedom of movement of its personnel and without
prejudice to the efforts of the governments; and
• Protect civilians under imminent threat of physical violence, within their
capabilities.
In order to fully accomplish its mandate, UNMIL has identified eight implementation goals, namely:
• Peace and Security 195
• Disarmament and Demobilization
• Rehabilitation and Reintegration of ex-combatants
• Establishment of the rule of law including judiciary and corrections
• Establishment of Safe Guards for Human Rights
• Restoration of State authority
• Provision of factual information through public media campaigns; and
• Coordination of UN agencies for humanitarian assistance.
UNMIL’S strength on the ground consisted of: 607 international civilian staff; 768 local civilian staff; 14,131 military personnel from 47 countries; and 750 civilian police (CIVPOLS) from 30 countries. In terms of mobility and firepower, the force has 284 combat and 14 helicopters, besides one levels - three hospital, three levels – two hospital, and engineering, transport, road and airfield maintenance assets.
(Forsythe, 2005:26)
That the mission (force) became operationally effective on 1 October 2003 was commendable, as was also the deployment of ECOMIL, as rapid deployment aiming to dominate the mission area in order to achieve a security umbrella that will contribute to the protection of civilians. The deployment of the force was, however, made tenuous by the withdrawal of the Moroccan contingent and the time it took to source for replacements from Ethiopia, Ghana and Senegal, already heavily committed in the mission area. Thus, even though the task brigades were operationally in the four sectors, the mission was thin on the ground in the Maryland,
Grand Kru and Grand Gedeh countries, where the insecurity has implications for the safety and protection of civilians. In spite of its robust mandate, UNMIL is yet to use force to achieve its mandate and may not have the occasion to, except for a couple of incidents to dismantle unauthorized checkpoints by armed elements. 196
5.5. DISARMAMENT AND DEMOBILIZATION
Article VI of the Central Police Authority (CPA) calls for the cantonment, disarmament, demobilization and reintegration (CDDRR) of all former combatants, with “the AFL confined to their barracks, their arms placed in armories and their ammunition in storage bunkers”. To coordinate the activities of the DD component of the CDDRR, the CPA further called for the establishment of an inter-disciplinary and inter-departmental National Commission for Disarmaments, Demobilization,
Rehabilitation and Reintegration (NCDDRR). Membership of the NCDDRR should be drawn from al the national and international stakeholders in Liberia: that is, the relevant agencies of the NTGL, namely GOL, LURD, MODEL, ECOWAS, the UN,
AU and the ICGL.
The primary responsibility of the NCDDRR is to “oversee and coordinate the disarmament, demobilization, rehabilitation and reintegration of combatants, and work closely with the ISF and all relevant international and Liberian institutions and agencies”. Following the deployment of UNMIL, a joint implementation unit (JIU) was established to implement all aspects of the DDRR and to coordinate with traditional leaders, civil society organizations and other stakeholders. Zubairo,
2004:23) So far, the DDRR programme, which was formally launched on December
2003, had been voluntary. This means the combatants were encouraged to voluntarily register and join the DDRR process at cantonment sites established by UNMIL in collaboration with the NCDDRR. The voluntary DD process has been conducted in three phases, each targeting specific geographic regions of the country.
Monrovia and its surrounding areas were covered in the first two phases in order to maintain and restore security in the capital as a secure base for UNMIL 197 operations. The overwhelming response, party owing to lack of coordination with all stakeholders, exceeded the capacity of the cantonment sites and the UNMIL personnel. During this period, a total number of 13,490 GOL combatants were disarmed, while some eight thousand, six hundred and seventy-nine (8,679) weapons, two thousand, six hundred and fifty (2, 650) unexploded ordinance and two million, two hundred and seventeen thousand, six hundred and sixty-eight (2,217, 668) rounds of small arms ammunition were collected. It is significant through that the heavy weapons that were used with devastating effect before the ceasefire and the deployment of ECOMIL have not been accounted for. This gap could with the wide ratio of 4:1 between disarmed combatants and collected weapons, raises serious concerns as any weapons at large in the society pose a potential danger to national and regional peace and stability. (Glendon, 2001:31). The statistical table below shows the disarmament and demobilization process in Liberia.
Table 7:
Disarmament and Demobilization Process in Liberia (Phase I)
Disarmament and Demobilization Figures
Process
GOL Combatants 13,490 disarmed
Weapons 8,679 collected
Unexploded Ordinance 2,650 collected
Small arms ammunition 2,217,668 collected
Facts and Figures, (2004) Disarmament and Demobilization Process in Liberia
The lack of adequate facilities and personnel to process the large number of
GOL combatant that turned up at camp Scheffielin pointed to the unsuitable timing of 198 the start of the DD programme and the lack of preparedness of UNMIL and other stakeholders.
Criticism of the move centered on lack of adequate consultation with all stakeholders, among others. Questions were also asked as to whether the DD was in fact driving the political process, instead of the other way round. For instance, some of the concerns centered on the fact that the DD programme commenced before the installment of the
NTGL. However, this perceived shortfall had at least two advantages. First, it provided a point project that brought out key requirements for a smooth implementation of the DD programme with minimal factional infighting. Second, it expedited the inflow of and access to pledged resources. (Coggeh, 2003:45)
As a result of the experience at camp Scheffelin, the whole DD programme was suspended to allow for proper consultation and Joint Plan with the various stakeholders. It was also realized that UNMIL’S military and civilian personnel on the ground were not sufficient to deal with a huge influx of ex combatants. Consequently, besides the need for more military and Civilian Personnel, the daily rate of disarmament was carefully regulated to about 250 ex-Combatants per cantonment site.
The DD programme restarted on 15th April 2004 almost four months after its suspension. The second phase concentrated on Monrovia and the surrounding areas and devolved on four Demobilization (De) Cantonment sites at Gbarnga (GOL),
Buchanan (RAODEL), Tubmanburg (LURD) and VOA (GOL). This unlike phase 1 which focused mainly on former GOL combatants, the second phase covered combatants from all the three major warring factions and achieved the disarmament of a total of 51,231 former combatants, made up of 6,888 from the AFL 19,742 from 199
LURD, 14,601 from MODEL,. In addition, a total of 27,000 weapons and 153,631 small arms ammunition were collected.
TABLE 8:
Disarmament and Demobilization Process in Liberia (Phase II)
Disarmament and Demobilization Figures
Process
Combatants
AFL 16,888
LURD 19,742
MODEL 14,601
Total No Combatants Disarmed 51,231
We apons 27,000
Small Arms Ammunition 153,631
Total No. of Weapons Collected 180,631
Facts and Figures, (2004) Disarmament and Demobilization Process in Liberia
Phase iii of the DD programme, which commenced in early July 2004, was concentrated largely in the Zwedru area, targeting mostly the MODEL caseload in
Grand Gedeh, Nimba, River Cess and Sinoe Counties. In addition, D1 and D2 camps were opened in Kpein and Ganta in Nimba county targeting the GOL caseload in that area, while similar sites were built in Voinjama in Lofa county to deal with the LURD caseload in that area. The poor state of infrastructure in these counties was cited as the major obstacle to the establishment and commencement of a comprehensive DD programme. This was exacerbated by the arrival of the rainy season, which rendered the road network in these areas impassable. 200
Siekkah, (2004):33, argues that “out of the total number of former combatants that had gone through the three phases of the voluntary DD. Only 597 (0.608%) foreign fighters registered with the programme. They included: three hundred and five (305)
Guineans (Conakry), two hundred and thirty-six (236) Sierra Leoneans, forty-seven
(47) Ivorian, six (6) Nigerians, two (2) Malians and one (1) Ghanaian. After going through the formal DD programme, these foreign fighters had two options, they can either be assisted to return to their home countries and complete the RR from there or apply for refugee status and remain in Liberia to take part in the RR phase. The close affinity of ethnic groups across the Mano river basin, perhaps, explains the relatively low number of foreign fighters registered in the DD programme.
TABLE 9:
Disarmament and Demobilization Process in Liberia (Phase III)
Disarmament and Demobilization Figures
Process
Combatants (Foreign Fighters)
Guineans 305
Sierra Leoneans 236
Ivorian 47
Nigerians 6
Malians 2
Ghanaian 1
Total No of Combatant Disarmed 597
Facts and Figures, (2004) Disarmament and Demobilization Process in Liberia 201
The DD programme has made significant stride in disarming combatants, progress in the DD aspects is not matched by commensurate progress in the RR aspects. In practice, the core RR programmes cover:
• Transitional support programme, including start – up allowance and
repatriation of ex – combatants to their local communities;
• Transitional payments to assist foreign ex combatants to return to their home
countries; and
• Social service programme, which includes macro and micro infrastructure
development, education, vocational training and outreach. Specific aspects of
the social services programmes cover the establishment of specific social
service requirements for male, female and child ex-combatants. (Prisky,
2003:11)
In order to deal with the rural –urban migration syndrome, the RR programme needs to focus its resources on building school, artisan and vocational institutions, as well as health delivery facilities in the rural areas. Even though this is easier said than done, such an action plan would not only encourage people to move back to the countryside, but would ensure a fair distribution of national resources between the rural and urban areas. In the past, the concentration of resources in Monrovia and other urban centers created a great deal of resentment by rural folks who felt marginalized by the urban elites. In addition, it would facilitate the revamping of the neglected agricultural sector, an area of tremendous potential for Liberia, especially as many of the returning refugees would have required new skills, including agricultural techniques. (Yomi,
2004:77)
In the absence of relevant infrastructure to absorb the output of the DD programme, over 500,000 ex- combatants, Internally Displaced Persons (IDPs) and 202 returned refugees have been encamped in and around Monrovia in about 23 huge camps, the largest of which one stage contained over 30,000 ‘residents’. Under these circumstances, the collateral devastation that such camps had cause to the already deprived villages and farms is not immediately clear. It is also clear whether these villages are adequately and appropriately compensated for their loss by the agencies and implementing partners responsible for sitting such camps.
There is bound to be a setback in the DDRR programme, with dire consequences not only for Liberia’s peace process, but for the stability of the entire Mano River basin and for the safety and protection of the Civilian Population in the region. In this respect, it is pertinent to recall the disturbances in October that threatened the peace and exposed how fragile the process was, unless the affected population was properly and effectively reintegration to minimize their propensity towards such disturbances.
Thus, with the conclusion of the formal voluntary DD programme, more attention and resources should be directed at the RR programme which is a vital component of long
–term and sustainable peace building in Liberians.
5.6. POLICE AND JUDICIAL REFORM
The Liberian judicial system and LNP were some of the hardest hit during the country’s 14 years brutal civil conflict. The collapse of state authority engendered by the conflict heralded a period of massive human rights violation and complete disregards for the rule of law. Although, some might argue that human rights violations in Liberia dated back to the 1980s or even earlier. This work focuses on the
Civil Conflict that gripped the country from 1989 to 2003. The conflict period was notorious for the rampant massive human rights violations involving all the warring parties. In spite of the 1997 elections which saw rebel leader, Charles Taylor assume the reigns of power as an elected president, human rights violations continued, 203 including anecdotal suggestions of Jungle Justice for the notorious Sierra Leonean rebel fighter Sam Bockarie alias “Masquita” and the puts Christ Major Johnny Paul
Koromah. (Prisky, 2003:41)
These staked realities informed UNMIL’S mandate, among others to assist in reforming the country’s judicial and police institutions in order to ensure respect for human rights, the rules of law and for the safety and protection of the civilian population.
Reform of the police
Article VII of the CPA called for the restructuring of the LNP and other security services. It state thus: there shall be an immediate restructuring of the
National Police Force, the Immigration Force, Special Security Services (SSS),
Custom Security Guards and such other Statutory Security Units. These restructured
Security Forces shall adopt a professional orientation that emphasizes democratic values and the respect for Human Rights, a non – Partisan approach to duty and the avoidance of corrupt practices.
Consequently, UN Security Council resolution 1509 authorized the deployment of
1,115, CIVPOL, including formed units, to assist in the maintenance of law and order throughout Liberia. The overall CIVPOL mandate in Liberia is to assist the NTGL in restructuring the Liberian National Police (LNP) In this respect, the responsibility of
CIVPOL is divided into three major areas: operations restructuring and training by
July 2004, a total of 750 CIVPOL from 30 countries has been deployed in Liberia,
UNMILS CIVPOL includes 350 formed units from Jordan, Nepal and Nigeria.
Although the CIVPOL in Liberia has a purely advisory role, the formed units have the authority to detain persons, in collaboration with the LNP, unlike the executive mandate of CIVPOL in KOSOVO and East Timor which covered day to day law 204 enforcement activities; the CIVOPL in Liberia are limited to an advisory role. In spite of its limited mandated, UNMILS CIVPOL had registered some successes, especially in the area of training and operations.
According to Sokey, (2003:19) “the first major task of the CIVPOL in Liberia was to attempt to restore public confidence in the LNP following years of neglect and proliferation, especially during Taylor’s reign” As stated already, former President
Taylor’s first move when he came to powers was to infuse the LNP with his loyalists, thereby compromising their neutrality and professionalism”. In addition, the LNP was often accused of corrupt practices and inhuman after the 1997 elections were not eligible for the new training programme. This is meant to cut down the large number of police officers who entered the service under Taylor’s patronage. It is hoped that this would go a long way in restoring public confidence in the newly constituted LNP.
The recruitment process was based on ethnic-geographic balance, aiming to minimize suspicion of domination of the LNP by members of one ethnic group or geographic area of the country. In addition, in order for serving police officers to be retained in the LNP, they would have to go through a screening process to make sure that they do not have a tainted human rights record. To this end, the first batch of six hundred and forty-six (646) police officers who received training as part of the interim police training programme were vetted to ensure they met the basic criteria. A number of police officers were dropped from the programme due to their poor record from the past. The vetting process is also geared towards increasing the public’s confidence in the newly reconstituted LNP.
Working closely with Civil Society Organizations, such as the law Association of
Liberia and other stakeholders, the CIVPOL developed a training package for the
LNP. This includes aspects of human right law, issues of gender and the protection of 205 vulnerable groups such as women and children. With funding from the UN and US, the CIVPOL reopened the Liberian National Police Training College (LNPTC). As of
July, 2004, a total number of six hundred and forty-six (646) LNP’S had been retained by the CIVPOL. By October 2005 – the date for the presidential and parliamentary elections – It estimated that a total of one thousand eight hundred (1,800) police officers would have been trained, even though it is uncertain whether one thousand eight hundred (1,800) – strong LNP would be adequate for the law enforcement needs of the entire country.
In the operational areas, the CIVPOL concluded an agreement with the NTGL allowing for the co-deployment of CIVPOL officers at all levels with their LNP counterparts. This co-location will not only allow CIVPOL to mentor the LNP, but will also allow them to argument the LNP and to monitor their performance. Through this arrangement, CIVPOL and LNP carried out joint patrols and joint investigations.
Using the media and other public information mechanism such as billboards, they are involved in promoting community policing practices. The LNP and CIVPOL have also set up a data bank to record incidents of human rights abuses in the past.
Although, the CPA does not make provision for the establishment of a special court for Liberia, such as the one for Sierra Leone, It is anticipated that the body of evidence gathered could be used to prosecute persons accused of human rights violations during the Country’s Civil War.
Correction Reform
As part of reforming the correctional services, UNMIL’S Integrated Mandate
Implementation Plan focuses on three major areas, namely, to: 206
• review and revision of penal legislation, improve policies and procedures to reflect
international guidelines and the application of human rights standards for prison
administration;
• raise prison personnel standards to International standards, including observance of
human rights; and
• rationalization of organizational structure and size.
Reform of the Correctional Service is handled by the corrections advisory unit, which comprises two subunits: the Correctional Service Advisory and Monitoring Group, and the Correctional Service Training and Development Group – In spite of the identification of these areas as being crucial for reforming the correctional service, the implementation of these programmes is lagging behind police reforms.
The apparent disconnection between the reforming of the Police and the Correctional
Service was manifested in the acute lack of Prisons in all the Counties in Liberia.
Indeed, it was reported during the research that there were no prisons or holding facilities outside of the capital, Monrovia, while they were only two functional prisons in Monrovia which were over-crowed. The limited capacity of prison services compels holding women, men and juveniles in the same prison. This raised serious human rights issues, as women and the under age are liable to abuse by the adult prison mates. The fact that prison reform is the sole responsibility of national governments and the weakness of the NTGL is cited as one of the reasons for the slow progress in the reform process.
In addition to overcrowding and the lumping together of men, women and children, accused persons were often held in detention for an indefinite period, owing to the lacks of prosecutors and defense lawyers. It was reported that as a result of the conflict, most legal professionals had either fled the country or had moved into private 207 practice, which is considered more lucrative. Thus, while LNP was dutifully arresting criminals, there was an acute shortage of Judges, Prosecutors and Lawyers to bring them to trial. Accused Persons were therefore denied the Right of a speedy trial.
In order to deal with these related problems of overcrowding and the delay and denial of Justice, a Panel was established and mandated to review the cases of all detained
Persons. This panel can then recommend to the Minister of Justice, the release of prisoners who had been detained for unduly long periods without trial. Furthermore, a separate panel was established to address all related issues dealing with juveniles.
According to Boteh, (2004:29) “the NTGL, which is supposed to be reforming the
Prison System is dogged by interfactional rivalries and lacks human expertise and financial resources”. In the main, lack of financial resources and trained manpower is seen as the most significant handicap in reforming the Correctional Service.
5.7. HUMAN RIGHTS, RULE OF LAW AND TRANSITIONAL JUSTICE
As part of its mandate, UNMIL is authorized by UN Resolution 1509 to: facilitate the provision of humanitarian assistance, by helping to establish the necessary rights security conditions: to contribute towards international efforts to protect and promote human rights in Liberia, with particular attention to vulnerable groups including refuges, returning refugees, and internally displaced persons, women, children, and demobilized child solder and to ensure an adequate human rights presence, capacity and expertise within UNMIL to carry out human rights promotion, protection and monitoring activities.
Paschal, (2004:9) argues that the article xii of the CPA called on all the parties to the
Liberian conflict to respect the “basic civil and political rights as enunciated in the universal declaration of Human Rights, the African charter on Human and People’s
Rights amongst others shall be fully guaranteed and respected within Liberia”. In 208 furtherance of these principles, the CPA also called for the establishment of an independent National Commission on Human Rights (INCHR).
The Human right and protection unit of UNMIL is charged with the responsibility of ensuring the protection of the civil and political Liberties and
Liberians, as provided for by the CPA and UN Security Council Resolution 1509.
According to Edems, (2003:98) “the unit consists of a child protection advisor, rule of law advisor, transitional justice advisor, gender advisor and trafficking advisor”
Functionally, the unit has a purely advisory role and among others, seeks to provide
“a platform for internationally advocacy on human rights in Liberia, monitoring and reporting on the human rights situation nationwide; supporting the establishment and operations of human rights institutions provided for in the CPA namely, the Truth and
Reconciliation commission (TRC) and the Independent National Commission on
Human Rights”. A major focus of the unit in the area of law is to assess the implementation and application of the law. The rule of law advisory group focuses on:
• the legal framework: examining legal gaps in the laws governing detention,
trials and other human rights issues;
• Justice delivery: looking into procedural aspects, access to justice and
traditional practices that might need to be reformed;
• Law enforcement: working closely with the LNP college to include a strong
component of human rights in its training programmes;
• Helping to build the capacity of civil society organizations from a human
rights perspective. This is done through the involvement of the media, a legal
resources base and the active involvement of the civil society organizations in
the implementation of the law. 209
• Working closely with the NTGL and other national institutions such as the
INCHR to ratify international agreements, especially in the area of human
rights.
The CPA called for the establishment of a TRC to “provide a forum that will address
issues of impunity, as well as an opportunity for both the victims and perpetrators of
human rights violations to share their experiences, in order to get a clear picture of the
past to facilitate genuine healing and reconciliation”. In line with this provision, the
Human Rights Unit of UNMIL, in collaboration with the NTGL and civil society
organizations, was in the process of working out a framework for the
operationalisation of the TRC.
Unlike the TRC in neighboring Sierra Leone and that of South Africa, which were established by national legislation, the Liberian TRC was provided for by the CPA. This has led many observers to question the motive of the signatories to the CPA, especially the warring factors that stand accused of having committed gross violations of human rights. The question that is often asked is: Why did the parties not make provision for the establishment of a court that could try persons who are believed to have committed war crimes and other serious violations of international humanitarian law? In other words, to what extent will the TRC address issues of human rights violations especially in the context of Liberia where the conflict was characterized by gross violations of the law of warfare?
The CPA did not provide for any legal mechanism to deal with violators of human rights has raised serious questions about the danger of promoting or condoning a culture of impunity in Liberia”. Although, there was no clear consensus on what should be given priority –that is, truth versus justice or peace versus justice- it was evident that the
Liberian populace was not in favour of promoting impunity. It is however, not clear 210 how the dilemma of whether to pursue peace before justice, or whether telling the truth would serve as an effective closure for the thousand of Liberians who endured gross human rights violation at the hands of the various factions, would be resolved. As in most post- conflict societies, this dilemma possesses a serious challenge to the country’s fragile peace progress and the future of the rule of law. (Malu, 2003:15)
Although there is no direct mention of a criminal tribunal such as the one for Rwanda and the special court for Sierra Leone, the UN has made it clear that it does not support the idea of a blanket amnesty. In the preamble to resolution 1509, the UN “deplored the violations of human rights, particularly atrocities against civilian populations, including widespread sexual violence against women and children” adding that it is “mindful of the need for accountability for violation of international humanitarian law of justice”. In this vein, one cannot rule out the possibility of bringing those deemed to be responsible for the violation of international humanitarian law. The UN does not subscribe the
Article XVIV of the CPA, which states that “the NTGL shall give consideration to a recommendation for general amnesty to all persons and parties engaged or involved in military activities during the Liberian civil conflict.
The inclusion of the amnesty clause raises fundamental questions regarding impunity
and the sustainability of the peace process. The central question that arises relates to
how to maintain the delicate balance between achieving peace without promoting
impunity. It is debatable whether the issue of peace versus justice or truth versus
justice should be treated as mutually exclusive.
In spite of the complexities of the transitional justice programmes in Sierra Leone,
where the special court is running concurrently with the TRC, it is viewed in some
quarters as a middle ground to deal with the dilemma mentioned above. (Halilu,
2004:31) It should be remembered that the 1999 Lome Peace agreement signed 211 between the Government of Sierra Leone and the RUF, was criticized for granting a blanket amnesty to the warring parties. However, the amnesty was revoked following persistent breaches, which culminated in the abduction of hundreds of UN peacekeepers by the RUF in May 2000” .Subsequently, the government of Sierra
Leone working with the UN established the special court, with a mandate to try those deemed to be the most responsible for war crimes and other violations of international humanitarian law.
As another alternative, there is growing feeling among Liberians that the mandate of the special court for Sierra Leone could be extended to deal with cases in Liberia.
Indeed, the precedent for this alternative has been in the indictment of Taylor.
However, in order to gain more legitimacy and jurisdiction over potential suspects in the indictment of Taylor. Lucy, (2000:72) argues that “in order to gain more legitimacy and jurisdiction over potential suspects in the Liberia civil war, the
SCSL will have to incorporate relevant aspects of Liberian law and, possibly, be relocated to a neutral venue. Due to the close – knit nature of the two conflicts, this arrangement might also allow for the use of evidence gathered in either of the countries”. Practically, such an arrangement will be more cost – effective and might minimize the financial implications involved in running two separate courts as well as to avoid having a cottage industry of special courts in the sub –region. Nigerian’s asylum to former president Taylor had contributed to fuelling a feeling among
Liberians that, unlike the UN, there was a tendency on the part of ECOWAS to condone impunity. In spite of this view, however, there was also a growing appreciation among Liberians of ECOWAS’ role in finding solutions to the crises in that country. In this context, Liberians prefer to see the regional organization play a stronger role in the on-going peace process; however, Nigerians asylum to Taylor 212 threatens to compromise its role in the Liberia peace process and that of ECOWAS.
ECOWAS’ central role in the peace process is underscored in both resolution 1509
(2003) and the CPA. To the contrary, following the handover from ECOMIL to
UNMIL, ECOWAS seems to have relegated to a junior partner’s role. Thus, in order for ECOWAS to play its rightful role in the peace process, other member states need to use their good, other to convince the Nigeria authorities on the implications of its continued asylum facility for Taylor, to the Liberian peace process in particular and the region as a whole.
There are issues of gender that need to be addressed. Resolution 1509 (2003) reaffirms the importance of a gender perspective in peacekeeping operations and post- conflict peace-building in accordance with resolution 1325 (2000) which recalls the need to address violence against women and girls as a tool of welfare, and encourages
UNMIL as well as the Liberian parties to actively address these issues. As part of its broad mandate to protect, UNMIL pays special attention to the protection of vulnerable groups, such as women and children. Consequently, the gender unit is
UNMIL is mandated to ensure that issues of gender are mainstreamed into all programmes and activities of UNMIL. Among others, the unit is responsible to: design and develop a strategy for gender mainstreaming to ensure that gender issues are adequately addressed in the implementation of the mission’s mandate, ensure that the process of DDRR takes into account the different needs of females and male ex- combatants, encourage national institutions to incorporate gender concerns in their programmes and activities and ensure the involvement of women as participants and beneficiaries of these activities.
In this vein, the unit works closely with the NTGL, especially the Ministry of Gender and Development, other UN agencies and members of civil society organizations. 213
Within UNMIL, the unit works with other relevant components of the mission, such as human rights, legal, civil affairs and military. In order to achieve closer interaction within the mission, a gender task force was established with representatives from a different programme in UNMIL.
The unit is involved in effort geared towards the involvement of women in the restructuring of the AFL, LNP and other national institutions. As part of its engagement, the unit sensitizes women on the need for a more proactive role in the on-going peace process. This sensitization is seen as crucial because women are underrepresented in almost all the national institutions in Liberia. For instance, out of a total of 150 recruits for the LNP, only nine were women. Issues on gender have also been mainstreamed into the training programmes of the LNP. To deal with the under- representation of women in national institutions; the unit was proposing the adoption of a policy of affirmative action to redress the imbalance. Thus, efforts towards redressing the under-representation of women in national institutions constitute a major step in the protection of women as a vulnerable group. The unit also carries out an induction programme for all UNIMIL personnel; however, this is deemed to be inadequate because of its length and other factors, such as languages and cultural barriers.
In addition to the UN code of conduct for peacekeeping, the induction programme addresses a wide range of issues such as sexual exploitation of adults and minors.
Furthermore, workshops involving military and civilian personnel were held to address issues of sexual exploitation and other related violations of women and minors. However, there was a strong feeling that issues of gender should be concluded in all national pre-deployment training programmes and preferably be taught in the national languages of the troops-contributing countries. This would 214 expose both military and civilian peacekeepers to issues of gender before they are deployed to a mission area. In terms of capacity building, as of April 2004 a total of
498 interim LNP, including 30 women had been trained in gender and sexual and gender- based violence (SGBV), gender and culture, and gender issues in policing, while 36 prison staff, including six women, received training on issues of gender. In addition, 78 CIVPOL officers, 12 of them women and 20 military observes received induction training on gender .The limited number of female military observers was one of the major challenges to the implementation of the mandate of the gender unit.
At this time of the research, there were no gender officers outside of the unit to monitor against women in the rural areas. The fact that civil authority had not been restored across the entire country contributes to hindering the activities of the gender unit. In addition, financial constraints and lack of manpower were also cited as reasons for the lack of gender officials outside the Monrovia area.
Since children constitute one of the most vulnerable groups in all conflicts situations, their protection in the post-conflict situation is of prime importance. It should be recalled that all the warring factions in Liberia’s fourteen-year civil war used underage boys and girls, often children sometimes as young as eight, as combatants.
The ease with which children were abducted and manipulated made them targets by the various rebels groups.
The availability of small arms, which can be easily handled by children, also increased their vulnerability and accounts for the nearly 10% - about 8% boys and 2 girls- of child combatants during the disarmament. Alarmed, about the use of children as combatants, resolution 1509 expressed grave concern over the use of child soldiers by armed militias, government forces and other militias. The resolution therefore demanded that all parties cease all use of child soldiers. (Ejoh, 2003:33) 215
Consequently, a child protection unit was established within UNMIL serve as guidance on all issue affecting children in the mission area. The child protection unit has a purely advisory role but also does advocacy for the protection of children. Due to the large number of child ex- combatants, the unit has focused its activities on the
DDRR programme to ensure that the interests of the children are protected. A working group headed by the UN Children Emergency Fund (UNICEF), is overseeing the DDRR programme, with a special focus on the children associated with the fighting forces. Among others, the working group provides psycho – social counseling and family reunification of all child ex- combatants. The working group was represented at all the stages of the DD process, starting from the puck-up point to the demobilization centers. Efforts were also made to ensure that the RR programmes were designed in such a way that the interests of children ex- combatants were protected. Although there are no clear indications of the causes, there are reported incidents of an increase in the sexual abuse of minor, same of the cases involving infants as young as 15 months old. Most of the abuse is done by close relatives and takes place largely in the IDP camps. As in most cases of abuse involving close family member, it is extremely difficult to establish the magnitude of the problem because the majorities go unreported. The situation is further compounded by a clear lack of Liberian national institutional capacity to deal with persons who abuse children, even when they are arrested. The collapse of the country’s judicial system undermines all efforts in this direction. The unit, in collaboration with civil society organization, is undertaking awareness campaigns to sensitive the public about the problem of child abuse.
216
5.8. RESTORATION OF CIVIL AUTHORITY
By the time the Central Police Authority (CPA) was signed on 18 August
2003, the Liberian Sate was carved between the various warring factions and the government of former President Taylor. The authority of the Central Government hardly extended beyond the Capital Monrovia, the control of which was contested at various stages during the in fighting in July 2003. Vast territories in the interior part of the country were either under the control of one of the warring factions or waiting to be overrun by one of the Feuding Armed Groups. The provision of basic social services, especially education, health, sanitation and potable water, ground to a halt as the country’s infrastructure was either destroyed, looted or decayed, as most technical personnel had fled to the Capital Monrovia or to neighboring countries.
According to Smith, (2003: 35) “the lack of Central Government control resulted in the complete breakdown of law and order, which engendered a situation of lawlessness” Cognizant of the need to re-establish national authority in order to achieve sustainable peace and security, the Signatories of the CPA called for the establishment of an all Inclusive Transitional Government to be called the National
Transitional Government of Liberia”. They stressed that the authority of the NTGL shall be established and recognized throughout the territory of Liberia….and have control over the entire territory of Liberia.
In addition to carrying out its normal state functions, the NTGL was mandated to undertake the following: a) Implementation of the provisions of the Ceasefire Agreement. b) Overseeing and coordinating the implementation and rehabilitation
programme enunciated in the CPA; 217 c) Promotion of reconciliation to ensure the restoration of peace and stability to the country and its people. d) Contribution to the preparation and conduct of International supervised elections in October 2005.
To support these significant efforts toward the re-establishment of National authority to the peace process, UN Security Council Resolution 1509 mandated UNMIL to :-
Assist the Transitional Government, in conjunction with ECOWAS and other
International Partners, in the re-establishment of national authority throughout the country, including the establishment of a functioning administrative structure at both the national and local levels.
The Civil Affairs within UNMIL were charged with the primary responsibility of assisting the NTGL in its bid to re-establish control across Liberia. Like most other socialized offices within UNMIL, the Civil Affairs Officer has a purely advisory role.
Among others, the officer assists the NTGL in :-
• Extending and consolidating State Authority throughout Liberia.
• Building the capacity of Civil Society and government organizations in the
formulation of programme.
• Reintegrating and Reconciling the victims and perpetrators of war.
• Assisting in resolving war- induced disputes.
• Assisting CIVPOL in reforming and restructuring the local police and auditing
its performance.
• Assisting in the implementation of recovery programmes and subsequent
development programmes.
• Promoting the participation of women in government services. 218
• Advising and assisting the NTGL in the control of the natural resources of the
country.
• Assisting in the preliminary planning for elections.
In addition, it provides political and socio-economic advice to UNMIL Regional
Commanders, Military Observer (MILOB) and CIVPOL Teams, as well as other
Representatives of International Organizations in the area. A Task Force on
Restoration of State Authority, comprising Officials of the NTGL, UNMIL and Civil
Society Organizations was established to assist in the re-establishment of State
Authority throughout Liberia. The task force, which is chaired by the Minister of
Internal Affairs, meets on a weekly basis to assess and advise the NTGL on the re- establishment of State Authority. To this end, it uses the following variables as benchmarks: the Absence of hostilities; Progress in the Disarmament and
Demobilization Programme; presence of the LNP; unhindered access to Humanitarian
Agencies; the return of IDPS; and the presence of UNMIL Forces. On the basis of these benchmarks it provides advice to the NTGL regarding the feasibility of deploying government functionaries and UN civil affairs officers.
219
REFERENCES
Africa watch , (1990) Hostage Taking in the Liberian Civil War.
Akhangaki, P.U. (2007) Armed Conflicts in West Africa. Nairobi: Tachlot.
Ball, Olivia & Greedy, Paul (2007). The No-Nonsense Guide to Human Rights New Internationalists, Geneva.
Brasilia, Gad (2003). Communities and Law: Politics and Culture of Legal Identities, Washington DC: University of Michigan Press.
Boteh, L.O. (2004) The Political Crisis in Liberia, London: Oxford University Press.
Chauhan, O.P. (2004) Human Rights: Promotion and Protection, Annual Publications. Chicago: Chicago University Press.
Davenport, Christain (2007) State Repression and the Domestic Democratic Peace. New York: Cambridge University Press.
Donnelly, Jack (2003) Universal Human rights in Theory and Practice, 2 nd ed. London: Cornell University Press.
Edems, G.H. Multinational Cooperation and Culture in Liberia, London: Chicago University.
Ellerman, David (2005) Helping People Help Themselves: From the World Bank to an Alternative Philosophy of Development Assistance. Washington: Michigan University Press.
Forsythe, David (2005) The Humanitarians: The International Committee of the Red Cross, Cambridge: Cambridge University Press.
FootPrints Today , (1990) “Liberia .”
Glendon, Mary Ann (2001) A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, New York: Vintage Press.
Halilu, G.K. (2004) T he Liberian War Crimes, Chicago: Chicago Press.
Human Rights Watch, (2001) Sexual Slavery in the Liberian Civil War.
Human Rights Watch, (2006) Atrocities in the Liberian Civil War.
Ignatieff, Michael (2001) Human Rights as Politics and Idolatory. Oxford : Princeton University Press.
Jakotte L. & Marcok S. (2005) Liberia: The Civil War , London: Oxford University Press.
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Lucy, S.A. (2000) The Present Day Liberia: The Untold Havoc, Boston: Boston University Press.
Manchaca, K.V. (2007) The Liberian Civil War 1989-1996 . London: Oxford University Press.
Mitchell, J.P. (1999) Challenging Liberia: A Challenge to the Christian , London : Macmillian Education.
Nasil, B. (2003) The Native Problem in Africa, Monrovia: Liberian Press Limited.
Ogunjobi, P.H.A. (2008) International Humanitarian Law. Ibadan: University Press.
Peeknner, G.C. (2008) The Liberian Civil War. Monrovia: Green Press.
Priskly, F. (2003) War and Murder in Liberia, Monrovia: Liberian Press.
Votte Foundations (2009) Application of Illegal Weapons in the Mano Region.
Yomil, K. (2004) The Political and Legislative History of Liberia, London: Oxford University Press.
Zubairo, H.K. (2004) War Crimes and Collective Wrong doing, London: Cambridge University Press.
221
CHAPTER SIX
THE OBSERVANCE OF INTERNATIONAL HUMAN RIGHTS LAW AND THE CONDUCT OF HOSTILITIES IN LIBERIA
This chapter presents the analysis of data obtained from the administration of research instrument. The data are presented on the basis of research question three and hypothesis three that guided the study.
Research Question Three:
Did the observance of International human rights law prevail in the conduct of hostilities in Liberia?
The data for providing answers to the above research question are presented below.
The documentations gathered and discussions held with serving top military officers who participated in the war (1989-1996) are highlighted in the hypothesis three.
Hypothesis Three:
Unconventional observance of the rules of warfare in Civil war tends to relegate the observance of human rights.
The above hypothesis was tested based on what were obtained from documentations and discussions had.
In the contemporary times, there have been glaring violations of the law of Armed
Conflicts. These violations often take the dimension of sexual slavery and harassment, taking of hostages, child soldiers, wanton destruction of properties and displacement of civilians, genocide and the use of dangerous weapons. Just like several countries that engage themselves in Armed Conflicts of all kinds, Liberia has notable failures in the observance of the International humanitarian law. According to Mukkas,
(2005:25)
The Liberian civil war, no doubt was heavily characterized by breach of law of war, 222
manifesting itself in several kinds of war crimes of terrible influence.
Therefore, we shall discuss in this chapter the various factors responsible for the non- observance of the human rights law in the Liberian hostilities.
6.1. NON CONVENTIONAL WARFARE : - The Liberian civil war was described by some scholars as being a non-conventional one in nature. The implication of this is that there were no spelt-out conditions or procedures by which the war could be fought. In other words, there were no regulations of combatant as regarded what should be done and otherwise unlike a conventional warfare. In fact, “it was a war of all against all” as could be found in the Hobbesian State of Nature. For instance, relief personnel and the Ivorian authorities were concerned about Soldiers who fled having been pursued by rebels into the Cote d’ Ivorie. The Ivorian authorities, working through the United Nations High Commission for Refugees
(UNHCR), have initiated a policy of disarming rebel soldiers within the Cote d’ Ivoire and exchanging their uniforms for civilian clothes. To prevent hostilities from spilling into Ivorian soil and to keep them from menacing the Mano and Gio refugees, they were then relocated away from the border to the Toulepleu areas. The Ivorians have also placed military personnel on the Liberian border to guard against rebel incursions in pursuit of fleeing soldiers.
One such incident took place on September 5 2002, in the Ivorian town of Bliheron when rebels from Charles Taylor’s Force crossed over to the Cote d’ Ivorie, shot and killed eight (8) soldiers who were attempting to swim across the Cavalla River, which runs between the two countries. (See Appendix XIII)
6.2. ETHNIC AND RELIGIOUS FACTOR : Ethnicity and Religion played a very prominent role in the Liberian Civil war. These, in no small measure contributed to the gross violations of the law of Armed Conflict in Liberia. Article 3, of the Geneva 223
Convention of 1949, provides that persons taking no active part in hostilities, or combatants who have laid down their arms, or are wounded or sick, shall be treated humanely “irrespective of race, color, religion or faith, sex, birth or wealth, or any other similar criteria.” Summary executions, cruel treatment, the taking of hostages, humiliating and degrading treatment are strictly prohibited, the wounded and the sick are to be collected and cared for. (See Appendix XIX) At this time, U.S. Officials and
Relief Personnel estimated the numbers of Krahn refugees in the Toulepleu area to be approximately seventy-five thousand (75,000) to eighty thousand (80,000). This represents a significant portion of the total Krahn population of Liberia, estimated at four percent (4%) of the national population, or approximately one hundred and twenty five thousand (125,000) people.
Liberian refugees in the Ivorian village of Pahoubli had entered the Cote d’
Ivoire at various times since July 2001. One group crossed the border, shortly after; they fled their village of Gbarzon in Grand Gedeh when rebels attacked them in the middle of the night. Witnesses described how the rebels rocketed houses and shot people in their beds. Sick people or the elderly who couldn’t run were killed and virtually the entire village fled into the forest. When asked how many had lost family members, the group of approximately fifty (50) adults all raised their hands, stating that they didn’t know if their family members were dead, still in Liberia, or somewhere else in the Cote d’ Ivorie.
One refugee, Harries B, a Junior high school teacher and a Former Commissioner
(superintendent) of his district in Liberia, described how rebels entered Grand Gedeh on June 27, 2001. His account follows: “the rebels entered Grand Gedeh on June 27,
2001; they killed everybody in the area-Krahn, Mandingo, Bassa. They didn’t try to choose between the groups, but killed everybody because they thought they were all 224 krahn in Grand Gedeh. I saw them kill a mother and her three-year old twins, and two others. My two brothers are missing and three other members of my family; I don’t know where they are because we fled in all directions when the rebels attacked. So many people died that you don’t have enough paper to write down all their names”.
According to this witness, there were soldiers in the town, “but not enough to protect us, they were all killed.” Under Humanitarian Law, the presence of Soldiers in an area inhabited by Civilians does not permit the rebels to attack the village indiscriminately.
The Armed Soldiers themselves are permissible military targets, but civilians and civilian structures such as homes and schools may not be targeted as such. The combatants have the duty to avoid or minimize harm to civilians even when attacking
Soldiers who may be in the vicinity as; it is not permissible to shoot into a crowd of civilians even when a few enemy soldiers are in their midst.
Refugees interviewed in the Ivorian town of Pekam Houebli, in the Toulepleu area had much the same experiences. Harry P also fled Duegee Town when the NPFL attacked. His account follows. “I fled Duegee Town, when I saw soldiers and rebels fighting. I saw rebels shooting people indiscriminately, including women and children. I can’t tell you their names because I was running, I just saw them drop when hit by soldiers and I couldn’t go back to identify them.” (See Appendix Xiv)
We were extremely concerned about the failure of NPFL leader Charles Taylor to take any measures to prevent such gross abuses against non-Combatants. In particular, we were concerned about the killings of civilians targeted solely on account of the fact that they are krahn or Mandingo.
An interview with a Religious Minister, who lived in Liberia, revealed the seriousness of lack of command and control. Rev. A. aged 60 lived in Buchanan where his wife and children remained. He was captured by the rebels on different occasions in April 225 through July, 2002. According to his testimony, he was singled out in part because he had been appointed by the Doe’s Government (against his wish) in April to be a
Public Safety Commissioner to receive arms from rebels fighting against the government. He fled Buchanan for Monrovia in April when rebels came looking for him, his account follows:
All along the way I saw dead bodies lying on the road. I was stopped at many rebel checkpoints - at least 50. At every stop, the rebels would ask people to speak Mano or Gio. If they could not, they would be killed by the rebels. (See Appendix Xv) We also received reports that there were many army deserters in the area who were also killed by the rebels, along with noncombatant as described by Rev .A. The killing of captured Soldiers or Soldiers who have laid down their arms is a violation of the
Geneva Conventions.
However, in the light of frequent reports from various sources, ECOWAS was called upon to confine ECOMOG’S role strictly to a peacekeeping function to take measures to punish, prevent abuses against civilians and conduct that violates
International Humanitarian Law. Africa Watch had received reliable and credible reports that the remnants of the Liberian Army were fighting alongside ECOMOG against the NPFL. According to a Liberian Civilian who ran to the U.S embassy in
Monrovia, Liberian Soldiers were being used as guides to assist ECOMOG in flushing out NPFL rebels. We were concerned about such reports of collaboration between the ECOMOG forces and the brutal and discredited soldiers from the
Liberian army, whose participation in gross abuses of human rights was well known.
We were also concerned about the participation of INPFL Soldiers in ECOMOG
Operations. The INPFL, like the Liberian army, had consistently violated human rights. There should be no place for such forces in the ECOMOG “Peacekeeping”
Force. 226
6.3. LACK OF CONTROL AND COMMAND: This has been one of the major factors that brought about the gross violation of the law of Armed Conflicts in
Liberia. For example, the insurgent forces had consistently violated these standards from the outset of the insurgency in late December, 2002. Charles Taylor was the
Commander-in-Chief of the National Patriotic Front of Liberia (NPFL), which comprises the bulk of rebel strength. Prince Johnson was an NPFL commander with
Charles Taylor until he broke off in February to form the Independent National
Patriotic Front of Liberia (INPFL). Johnson’s Forces of about five hundred (500) fighters, were based in Monrovia, and controlled several parts of the city, including
Bushrod Island. Troops under both commanders engaged in violations of the laws of
Armed Conflict, including executions of Civilians and Soldiers, torture and mutilation. Gross abuses against Civilians by the rebels have accelerated in the course of the conflict.
Further, as Prince Johnson’s small force of approximately five hundred (500) fighters were responsible for most of the rebel abuses outside the Capital City. Prince
Johnson’s forces engaged in abuses within Monrovia and the rebel leader himself had murdered innocent Civilians to the utter amazement of the International Press. On
August 3, for example, Prince Johnson shot and killed a relief worker accused of profiteering from rice sales, while the victim was handcuffed to a Frenchman working for Catholic relief services.
The most dramatic case of rebel atrocities against prisoners was that of Samuel
K. Doe. He was captured by Prince Johnson’s Forces when he came out of the executive mansion with sixty-five (65) of his bodyguards on September 10, 1989 apparently to negotiate his departure from Liberia with the ECOMOG Forces.
According to eyewitnesses, Doe was mutilated horribly before he finally died. His 227 body was displayed and desecrated by the rebels at the Island Clinic which was contrary to humanitarian law. (See Appendix Xvi).
In continuation, the taking of hostages is strictly forbidden by article 3 of the Geneva
Conventions, and is binding on rebels and government forces. Yet foreign civilians in
Liberia had been attacked by both government forces and by the NPFL. Charles
Taylor admitted taking at least one thousand (1,000) Nigerians, Ghanaians and
Guineans hostage in Buchanan.
However, other reports received by Africa Watch indicated that some of the Foreign
Nationals were held in “Protective Custody” under what was perceived to be adequate conditions, but were not permitted to leave. Hundreds of foreign nationals from governments, which sent troops to participate in the ECOMOG Force, fled to their
Embassy in Monrovia. Though Charles Taylor, who then controlled those parts of
Monrovia prevented the troops from leaving. According to him, “Nobody will leave
Liberia until the conflict is over… remember what the Americans did with the
Japanese who lived in the United States during the World War II. They put them in concentration camps”.
6.4. POLITICAL PROPAGANDA : This has been a very strong weapon of fighting warfare. It has the capability of setting a whole nation ablaze. In fact, it is a very strong military machinery of weakening enemies and launching serious attacks. Once propaganda is involved in any warfare; the output is usually breach of laws of war in all ramifications. That of Liberia was not an exception. Thus, the “Peacekeeping
Force” from the Economic Community of West Africa States (ECOWAS) included in its ranks soldiers from the Liberian Army as well as the INPFL. Liberian soldiers continued to loot, raid and causing harassment in Monrovia. The death of Samuel
Doe, hastened the disintegration of the Liberian soldiers, which were already apparent 228 in the large numbers of defections and desertions earlier in 1990. The remnants of
Doe’s army were running amok in Monrovia and elsewhere. Africa Watch, (1996) had received extensive reports of looting, stealing, and harassment of civilians by soldiers.
Refugees interviewed in the Ivorian town of Tabou described how Doe’s soldiers had taken over towns on Maryland County, including Pleebo and Haper in mid-August.
Comfort J., a young Liberian woman who arrived in Cote d’ Ivorie on August 19,
2002 reported the following; “I am from Pleebo, in Maryland County, I came here two weeks ago. The Krahn Army (Government Forces) took people’s belongings, harassing and beating them”.
6.5. CHILD SOLDIERS : The conscription of children, into combatant in any armed conflicts, often poses danger, especially when it comes to the obedience of the norms, conventions and standards of warfare. They neither know their left nor right. Some may not know the reason behind the armed conflict, rather the only language they understand is to shoot indiscriminately and also commit other atrocities that are forbidden by the law of war. In Liberia, children under the age of 15 who served the
NPFL forces engaged in killings and abuse of Civilians. (See Appendix Xvii on the consequences of child soldiers as regards destruction of properties). The recruitment or enlistment of children violates International humanitarian law.
A number of witnesses described seeing heavily armed children with the rebels.
According to another witness:
When the Krahns entered Nimba (county) they discovered that most of the kids’ parents died. Now the kids want revenge. This is the concept in their minds. They are so little that I could shake them till they drop, but the guns gave them courage. Two nurses from New Zealand working for a French Medical Organization within
Nimba County in Liberia reported that they recently saw a rebel as young as 7 or 8 229 years old, staggering under the weight of a Kalashnikov automatic rifle which was as tall as he was, and menacing people with it.
A Kenyan nun, Sister Josephine, who was in the Cote d’ Ivoire for the Pope’s recent visit, stated that her order had operated four schools in Buchannan for elementary and secondary students with over three thousand (3,000) students. By June, 2002 only one thousand (1,000) students were left in school; the remainder had joined the rebels. She reported that children as young as 10years old - Fifth and sixth graders - enthusiastically joined the rebels. Those too small to carry guns carried grenades.
According to Sister Josephine, Charles Taylor was not recruiting the children; they had joined enthusiastically of their own volition. Whether or not the children joined the rebels voluntarily, their presence with the fighting forces is a serious violation of humanitarian norms concerning children in warfare. International standards prohibit the conscription or recruitment of children under the age of 15. Article 4(3) of
Protocol II to the 1949 Geneva Conventions, states that: “Children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities.
6.6. HUNGER, POVERTY AND FRUSTRATION: These were the major variables that brought about violation of the law of armed conflict. It is obvious that one cannot be poor and at the same time be independent. In Liberia, hunger, poverty and frustration deeply played a fundamental role in the violations of International norms,
Conventions and Standards that govern armed conflict. (See Appendix Xviii) For instance, as a consequence of serious abuses against Liberia’s civilian population by all parties to the conflict, approximately half the population of the country was displaced from their homes. A quarter of these were refugees in West Africa. The people of the Cote d’ Ivorie, Guinea, and Sierra Leone responded generously to the 230 plight of the Liberian refugees. The U.S. State department’s Office of Foreign
Disaster Assistance, (OFDA) (2008) estimated, that there were five hundred and sixty one thousand, six hundred and eighty-one (561,681) Liberian refugees in West Africa, including: two hundred and eighty thousand (280,000) in Guinea, two hundred and six thousand, six hundred and eighty-one (206,681) in the Cote d’ Ivorie, seventy thousand (70,000) in Sierra Leone; and five thousand (5,000) in Ghana. In all cases, the host government did not see the need to set up refugees’ camps because local residents have permitted the refugees to share their dwellings. Host governments and relief organizations have helped the refugees build additional huts. In Guinea, roofing and plastic had been donated by the UNHCR, and hundreds of huts have been built.
Relief personnel maintained that the arrangement was better for the refugees. The villages have shared their food too, which has been particularly important because relief assistance has not been sufficient to meet refugee needs. The United States was the largest donor to the Liberian refugees. Indeed, many of U.S. allies considered
Liberia a “U.S. problem”, and had not responded as generously as was needed. Africa
Watch, regards the Liberian disaster as an International problem, and recognizes the need for the International community to respond appropriately. Nonetheless, it was clear that as a result of the United States’ historic relationship with Liberia and particularly the past U.S. support for the Doe’s Government, which helped lay the ground work for the country’s destruction today, the U.S. bears a particular responsibility to aid the victims. The statistical table below shows the Liberian refugees across the countries in West Africa.
TABLE 10:
LIBERIAN REFUGEES IN WEST AFRICA
Liberian Refugees in West Africa Figures 231
(Countries)
Guinea 280,000
Cote d’ Ivoire 206,681
Sierra Leone 70,000
Ghana 5,000
Total no of Refugees 561,681
Source: The U.S. State department’s Office of Foreign Disaster Assistance (2008).
To date, the United States had provided $141 Million for rice through the
World food Program. (this figure includes funds needed for transport) an additional several million dollars in additional assistance has been donated by the U.S. for the refugees through humanitarian Organizations and $12 Million has been donated by the U.S. to the International Committee of the Red Cross, Catholic Relief Services, and the French medical groups for humanitarian assistance within Liberia. In particular, the need for protein, such as dried fish, was acute, refugees interviewed in
Pekan Houebli and Pahoubli in the Toulepleu area who arrived in late June or July received a relief package that included rice, oil, salt, tomatoes, and Onions. Some also received soap and blankets. No further commodities except rice was provided after the initial package was given and late arrivals only received rice. Relief personnel in the Cote d’ Ivorie and Guinea made a strong appeal that they be given additional food by International donors, and permission to distribute it among the host families.
Further, large numbers of refugees arrived from Maryland County in recent weeks, due to fighting in that area and an acute shortage of food within Liberia. There were currently about ten thousand (10,000) refugees in Tabou, most of whom had come since August. 232
Relief personnel confirmed that the city dwellers were unequipped to forage for food or fish or hunt in order to supplement the rice supplied to them by the Red Cross, making them wholly dependent upon their Ivorian hosts for meat and other food.
Relief personnel feared that tensions would inevitably develop between the refugees and their hosts, as food supplies were becoming scarce for everybody, refugees and
Ivorian alike.
6.7. SADISM : This also, is one of the major factors that have contributed immensely to the gross violations of the law of armed conflict in Liberia. For example, the
Liberian army had long been associated with grave abuses against civilians. The same rules of non-international armed conflict apply to government forces as to rebels, and the indiscriminate executions and abuses committed by the Liberian Army are strictly forbidden.
The death of Samuel K. Doe did not mean the dissolutions of his army. The army was now commanded by General David Nimley, who took over following Doe’s murder.
Nimley has been implicated for years in gross abuses of human rights against Liberian civilians and is widely thought to have organized a death squad within the armed forces this year.
6.8. ANALYSIS Having come to the end of Chapters 1-6 of this work, it becomes necessary for us to articulate a thorough analysis on what should on the whole represent the true nature and the extent to which the law of Armed Conflicts was observed in the
Liberian civil war. This is not however with prejudice to our findings and conclusion coming up in our subsequent chapter. It has to be noted that the data available for this study were gathered within the scope of our study and the guiding hypotheses. Our specific areas of interest therefore ranged from investigating how the execution of the armed conflict in Liberia by actors occasioned specific violations of International law 233 of war to how the mode and nature of conduct of hostilities in Liberia overstretched the capacity of institutional mechanisms of enforcement of international law of war.
Finally, the factors responsible for the violations of the law of Armed
Conflicts in the Liberian Civil War should be discussed equally, coupled with the efforts of the International community towards the maintenance and thorough observation of the law in question.
As stated in chapter one of this work, there was a gross systematic violation of the law governing Armed Conflicts in the Liberian civil war. These major violations committed by NPFL led by Charles Taylor, took the character of amputation by machete of one or both hands, arms, feet, legs, ears, or buttocks and one or more fingers; lacerations to the head, neck, arms, feet, and torso; gouging out of one or both eyes; gunshot wounds to the head, neck, arms, feet and torso and limbs; burns from explosives and other devices; injections with acid; rape and sexual slavery of girls and women including sexual mutilation, where breasts and genitalia were cut off. Often, child soldiers were used to carry out these mutilations. The victims would have to finish the amputation or would be forced to participate in their own mutilation by selecting which body part they wanted amputated. (See Appendix XX) Political messages were slashed into backs and chests, and amputees were told to take their limbs to President Samuel K. Doe. Children had often been the target of brutal acts - murdered, beaten, mutilated, tortured, raped, sexually enslaved or forced to become soldiers for the National patriotic front of Liberia formed by Charles Taylor. Parents were killed in front of their children. Women and girls were targets of systematic brutal gang rapes at gun point or knife point, or of rape by foreign objects such as sticks or flaming logs. Rapes were organized in front of family members, or in some cases, rebels have forced a family member to rape a sister, mother or daughter. 234
Witnesses had reported seeing the mutilated bodies of pregnant women whose fetuses were cut off their wombs or shot to death in the abdomen.
The NPFL forced many civilians into slavery, to serve the rebel forces.
Women and girls have been required to become “wives” or sexual slaves and forced to cook for the soldiers. Young men and boys were forcefully recruited as soldiers and required to commit armed attacks against the Liberian civilians, civilian defense forces and the ECOMOG.
It is instructive to observe that particular regions and ethnic groups were made victims by the NPFL. The Krahn and Mandingo ethnic regions were worst hit by violations.
The soldiers, in addition to carrying out murders and mutilations of all kinds, engaged in obstructions of humanitarian aid and demanded compensation at roadblocks for
“Liberating Liberia from the People’s Redemption Council (PRC)” headed by Doe.
Many witnesses tell horrific stories of the grotesque nature of their killings. In some instances, victims were disemboweled, followed by the consumption of vital organs such as the liver or heart, apparently to transfer the strength of the enemy to those involved in the consumption.
International Conventions, Declarations, Statutes and the Standards, geared towards the regulation of the conducts of combatants as well as the use of some dangerous weapons in any Armed Conflicts are often referred to as the laws of Armed
Conflicts. According to Mancah, and Jenuke (2005:47) such laws include 1868 St.
Petersburg Declaration Renouncing the use, in Time of war, of explosive Projectiles under 400 grammes weight, 1899 Hague Declaration 3 concerning expending Bullets,
1907 Hague Convention IV respecting the laws and customs of war on land annex to the convention: regulations respecting the laws and customs of war on land, 1907
Hague Convention V Respecting the rights and Duties of Neutral Powers and Persons 235 in case of war on land, 1907 Hague Convention VII relating to the conversion of merchant ships into warships, 1907 Hague convention VIII relative to the laying of automatic submarine contract mines, 1907 Hague convention IX concerning
Bombardment by naval forces in time of war, 1907 Hague convention XI relative to certain restrictions with regard to the exercise of the right of capture in naval war,
1907 Hague convention XIII concerning the rights and duties of neutral powers in naval war, 1925 Geneva Protocol for the prohibition of the use in war of
Asphyxiating, poisonous or other gases, and of bacteriological methods of warfare,
1936 London process-verbal relating to the rules of submarine warfare set forth in part IV of the treaty of London of 22 April 1930, 1946 judgment of the international military tribunal at Nuremberg: extracts on crimes against international law, the
Geneva convention of 1949 and two additional protocol of 1977 to mention but a few.
Sanctions, prosecution and sentencing of war criminals are some mechanisms of enforcing the law, especially when violations of such law assume alarming dimension.
The law of Armed Conflicts was not effectively observed in the Liberian civil war as both the rebel forces, government and mediating forces were all guilty of the same acts, i.e. acts of gross breach of the law of Armed Conflicts. Though, the mediating troops like ECOMOG/ECOMIL and UNMIL have always put up an argument that they never committed any violations, rather, their actions were based on self defense against the rebel troops.
Again, the non-conventional nature of the Liberian civil war as well as lack of command and control, ethnic and religious cleavages, hunger, the use of child soldiers, propaganda and abject poverty were factors responsible for the non- observance of the human rights law in the Liberian hostilities. Adeyemi, (2003:69) 236 argues that “the Liberian civil war would not have assumed the dimension of socio - economic and political catastrophe if not for the interplay of ethnicity”. Simply put, some international institutions like the UNO and ECOWAS played mediatory roles to see to the end of the war on one hand but not to the protection and enforcement of some level of implementation of international humanitarian law in the Liberian civil war. Hence, series of atrocities were committed by all parties involved in the war by omission or commission.
6.9 . RESEARCH FINDINGS
Following the foregoing discourse on the topic “Law of Armed Conflicts in
Africa: a Study of the Liberian Civil War”, we have been able to come out with the following findings-
First, we found that Liberians are discovering that western culture and the belief in its superiority was not introduced to the Grain Coast by the “Americo-
Liberians”, but was there long before their arrival in the 1820s. Note the names of the kings and chiefs they met: Peter, Joe Harris, Freeman, Governor, Bob Gray. The old assumption that “natives” were mindless objects manipulated by history rather than intelligent participants in that history is being challenged by indigenous Liberians who are learning that their ancestors contributed as much to the building of the
Liberian state as the American/Caribbean immigrants.
Secondly, it was found that the old ruling clique in Liberia was a marriage of immigrant and indigenous elites. They are wondering if it is fair to depict one ethno- cultural group as oppressive but not others whose elites were equally involved in the system. They look around at other African and Diasporan countries and see the same schism between the westernized and the unassimilated, the same failure to include the 237 rural, more African majority, and wonder if their country truly deserves the stigma of
Black-on-Black colonialism.
Further it was found that there was a gross violation of the law of Armed
Conflicts in the Liberian civil war by all parties involved such as the rebel troops, the government troops, the ECOMIL and UNMIL troops.
Moreso, it was found that the ECOMOG/ ECOMIL and UNMIL troops were involved in the breach of the law of armed conflicts in Liberia, which they did on grounds of self defense, as there was infiltration of armed Combatants who disguised themselves in the full regalia of the UNMIL and ECOMOG/ ECOMIL troops. As a result, identification of whom was whom, and with what became difficult that more often than not the infiltrators shot the mediatory troops and the mediatory troops, in self defense, would retaliate holistically.
Again, the gross violations of the law of Armed Conflicts in the Liberian civil war, took the nature and character of rape, torture, amputation of legs, hands and other sensitive organs of the body such as genitalia, sexual slavery of pregnant women and young girls that often resulted in gang rape of which the concomitant outcome was death or its equivalent traumatic situation, murder resulting from reckless shooting, burning of houses, looting, destruction of property, as well as displacement of civilians.
It was also found that the reason the law of Armed Conflicts was grossly violated was as a result of the non conventional nature of the war i.e. there was no clear cut spelt out rules that would regulate the conduct of combatants in the war.
Hence, it became “a situation of anything goes where the falcon could not hear the falconer”. 238
In addition, lack of command and control equally contributed effectively to this breach. Ethnic and religious factors deeply counted most as the war later degenerated into ethnic inclinations and religious cleavages as could be found in the earlier part of this chapter. These strongly played a major role in the war which obviously blew everything out of proportion and invariably brought about indiscriminate killings and displacement of innocent civilians. (See Appendix XXI)
In continuation, orchestrated hunger and abject poverty equally played serious roles in that war. Hence, so many people were displaced and were forced to serious frustration which later turned them into refugees. Apparently, some flew to neighboring countries like Nigeria, Chad, Sierra Leone, etc. to seek means of livelihood. As such, a situation whereby a hungry Combatant handled the gun, the only language he would understand was nothing but “Close your eyes to pity, act brutally, and shoot indiscriminately”. Indeed, that was the situation in Liberia.
Further, it was found that the use of child soldiers was another devastating factor that led to the gross breach of the law of war in Liberia. One can imagine a situation where children below 15 years of age would be conscripted into Armed Combatants; the outcome would always be very disastrous in nature. Some of them, did not even know the reasons the war was being fought, rather, they were enticed by many and by the fluent expressional sound of the trigger. Some children even shot their mothers, and raped their sisters at gunpoint. “Oh! What a callous situation”.
Equally, it was our finding that the mediatory troops in the war such as the ECOMOG
/ ECOMIL, and the UNMIL played an ineffective role in the prevention of the breach of the law of war in Liberia. This is because they lacked necessary logistics, maximum motivations and incentives as to be able to forge ahead. They only survived that heinous situation simply because of their professional experiences. Otherwise, the 239 rebel troops were more equipped with superior weapons and much more funded by their allies than the mediatory troops.
240
REFERENCES Adeyemi, Olusegun (2003) Ethnicity in Liberia, New York: Colombia University Press
Armed Conflict Report on Liberia, (2002) Monrovia: Liberia Press.
Children and Young Persons Law , (2000). New York: Colombia University Press.
Facts and Figures, (2004) Disarmament and Demobilization Process in Liberia.
Jenniscotte, P.O.(2006) International Law in Third World. Chicago: Chicago Press.
Mancah & Jenuke, H. (2005) The Law of Armed Conflicts: Liberia’s Experience, London: Oxford University Press.
Mukkas, Roberts (2005) Liberia: History of the First African Republic, New York: Fountain Head.
Nancy War Crimes Reports (2005) Liberian Civil War.
Ogunjobi, P.H.A. (2005) International Law of War. London: Oxford University Press.
1972 Convention on Protection of Cultural Property,
The U.S. State department’s Office of Foreign Disaster Assistance (2008)
241
CHAPTER 7 SUMMARY, CONCLUSION AND RECOMMENDATIONS This chapter deals with the presentation of general summary of this work as well as conclusions and recommendations for further actions.
7.1. SUMMARY
This research work examined the Law of Armed Conflicts in Africa: A Study of the Liberian Civil War. The choice of topic was made appropriate by the growing recognition of the indispensable role of the International Humanitarian Law, which emerged to regulate the conduct of Combatants in international and non-international
Armed Conflicts. Hence, war crimes, crimes against humanity and crimes against peace which manifest themselves into genocide, torture, rape, sexual slavery, child soldiers, amputations of sensitive organs, and the use of chemical, biological, bacteriological and asphyxiating weapons are deeply committed in the modern day
Armed Conflicts, and that of Liberia was not an exception.
The work therefore explored the efforts of the United Nations, Economic
Community of West African States and African Union towards the thorough maintenance, regulations and observance of the very nitty gritty of International
Humanitarian law especially with regard to laws of war and its paraphernalia in the
Liberian Armed Conflicts. There is no doubt whatsoever that the law of Armed
Conflicts was widely violated with acute impunity in the Liberian civil war by all parties involved, claiming to wage the war but at the same time committed all sorts of atrocities that contravened some International Conventions, Declarations, Statutes and
Standards on the conduct of wars. Such include the 1907 Geneva Convention, 1949
Geneva Convention, the 1977 Additional Protocols, the 1948 Universal Declaration on Human Rights, the 1950 European Convention on Human Rights, to mention but a few. 242
Based on this, the work took an in-depth profile on what the law of Armed
Conflicts is all about, its mechanism of enforcement and how it was applied holistically in the Liberian civil war. Again, the nature and character of the breach of the law was also examined as well as the factors responsible for the non-observance of the international law of war in the conduct of Liberian hostilities. Hence, Oluyemi,
(2004:78) and Akintola, (2005:33) all concur that-
in every Armed Conflict of the contemporary age, ethnicity and religion coupled with youthful exuberance often bring about the gross violations of the war. Such was the case in the Liberian civil war. This research therefore stimulated three research questions as a guide to enable it examine in all ramifications of the subject matter.
The research questions so formulated were:
i. Did the execution of the armed conflict in Liberia by actors occasion specific
violations of International law of war?
ii. Did the mode and nature of conduct of hostilities in Liberia overstretch the
capacity of institutional mechanisms of enforcement of International law of
war?
iii. Did the observance of International human rights law prevail in the conduct of
hostilities in Liberia?
The objectives of the study therefore centered on: i. To find out whether the execution of the armed conflict in Liberia by actors
occasioned specific violations of the International law of war. ii To find if the mode and nature of conduct of hostilities in Liberia overstretched
the capacity of institutional mechanisms of enforcement of International law
of war. 243 iii To find out whether the observance of International human rights law
prevailed in the conduct of hostilities in Liberia.
This research formulated and investigated three conjectural statements namely:
i. In operational conduct and occupation, irregular warfare tends to disregard
the provisions of International law of war.
ii. Guerrilla warfare tends to grossly violate enforcement action of the
International law of war.
iii. Unconventional observance of the rules of warfare in civil war tends to
relegate the observance of human rights.
The literature review for this work was embarked upon under the sub-heading:
“Liberia from the age of colonization to the moment of its bloody civil war”. From the literature reviewed, we found that all the works were emphatic on the dispensability of the law of Armed Conflicts especially with respect to its applications to the Liberian civil war. The immediate and the remote causes of the war were equally underscored, with the attendant holistic breach of the law by all parties involved, which manifested it in atrocities of all kinds.
Meanwhile, all other previous works, did not as a matter of fact, bridge the gap existing between the factors responsible for the violations of the law of Armed
Conflicts in the Liberian Civil War and the Law of War proper. The manner and nature of prosecution of war crimes were loosely articulated by scholars of discourse.
This, the current context of the law of Armed Conflict vis-à-vis its application to the
Liberian civil war created an intellectual lacuna that obviously justifies this research.
On the issue of method of data collection, we adopted the observation method of data collection as modern social science is rooted in observation. Data for this scholarly research were extracted from primary and secondary sources. The Primary Data 244 sources included institutional and official documents from international organizations such as the United Nations (especially, United Nations Division for Law of Armed
Conflicts and office of Public Information) for information on current developments on International Humanitarian Law as regards its observance in the Liberian Civil war. Relevant Official documents on International Humanitarian Law Reports were also gathered from the libraries of the Nigerian Institute of Advanced legal studies,
Lagos, Nigerian Institute of International Affairs, Lagos, Nigerian Institute of Social and Economic Research, Ibadan, United States Information Centre, Lagos, Command and Staff College, Jaji, (Kaduna State) National Institute for Policy and Strategic
Studies, Kuru, (near Jos) ECOWAS International Secretariat, Abuja, Liberian
Embassy, National War College, Abuja and the University of Nigeria, Nsukka and
Enugu campuses. Important primary as well as secondary materials were also sourced from the internet.
The information collected and collated was analyzed after which the following findings were made:
First, it was found that why the law of Armed Conflicts was grossly violated was as a result of the non conventional nature of the war i.e. there was no clear cut spelt out rules that would regulate the conduct of combatants in the war. In addition, lack of command and control equally contributed effectively to this breach. Ethnic and religious factors deeply counted most as the war later degenerated into ethnic inclinations and religious cleavages as could be found in the earlier part of this chapter. Propaganda did play a major role in the war which obviously blew everything out of proportion and invariably brought about indiscriminate killings and displacements of innocent civilians. 245
The study also found that the mediatory troops in the war such as the
ECOWAS/ECOMIL, and the UNMIL did not play an effective role in the prevention of the breach of the law of war in Liberia, reasons being that they lacked necessary logistics, and maximum motivations and incentives as to be able to forge ahead. They only survived that heinous situation based on their professional experiences.
Otherwise, the rebel troops were more equipped with superior weapons and much more funded by their allies than the mediatory troops.
Another finding, which this research made, was that the ECOMOG/ ECOMIL and
UNMIL troops were involved in the breach of the law of war in Liberia, which they did on self defense, as there was infiltration of Armed Combatants who disguised themselves in the full regalia of the UNASIL and ECOMOG/ECOMIL troops.
In addition, this research revealed that orchestrated hunger and abject poverty equally played serious roles in that war. Hence, so many people were displaced and were forced to serious frustration, which later turned them into refugees. Apparently, some flew to neighboring countries like Nigeria, Chad, Sierra Leone, etc. to seek means of livelihood. As such, a situation whereby a hungry combatant handled the gun, the outcome is nothing but disaster. (See Appendix XXII)
More so, it was found that the use of child soldiers was another devastating factor that led to the gross breach of the law of war in Liberia. One can imagine a situation where children below 15 years of age would be conscripted into armed combatants; the outcome would always be very disastrous in nature. Some of them did not even know the reasons the war was being fought. Rather, they were enticed by money and by the fluent expressional sound of the trigger. Some children even shot their mothers, and raped their sisters at gun point. 246
Finally, it was found that there was a gross violation of the law of armed conflicts in the Liberian civil war by all parties involved such as the rebel troops, the government troops and the ECOMIL and UNMIL troops.
7.2. CONCLUSION Having examined the law of armed conflicts in Africa, with particular reference to the Liberian civil war, with research questions and hypotheses analyzed in chapters two, three, four, five, and six of this work, and our findings documented appropriately in the same chapter six, it has then become highly essential for us to draw the following conclusions:
It has been established that the law of armed conflicts in Africa was grossly violated in the Liberian civil war. The violation was so much pronounced and equally took the nature and character of rape, amputation, sexual slavery and abuse, torture of both civilians and prisoners of war were prevalent. Child soldiers, displacement of civilians and maltreatments of all kinds were rampantly committed. Equally, possession of biological, chemical, bacteriological and other dangerous weapons were conspicuous to the extent that it was the order of the day in Liberia. All parties involved in the war including the ECOMIL and UNMIL troops were all guilty of the gross breach of the law of war. So many lives and properties were lost as a result of the non-conventional nature of the war. Hence, religion, ethnicity, child soldiers, high level propaganda, hunger, abject poverty, played major roles in the gross violations of the war in
Liberia.
However, the efforts of the International community such as ECOWAS,
African Union and United Nations were of little or no impact, especially when it came to the protection and visible enforcement of the law in the said Liberian territory. Ojo,
(2002:21) and Kunle, (2003:43) argue that: 247
The war in Liberia was waged by the external forces like ECOMOG, UNMIL, who also found it difficult to enforce the obedience, protection and observance of the law of war in the same territory.
Meanwhile, the United Nations, Economic Community of West African States and
African Union troops lacked proper co-ordination, control and command resulting from inadequate training which they underwent. Again, the United Nations was reluctant in intervening in the Liberian saga. Perhaps, that would have been one of the reasons it became involved in the peacekeeping mission with absolute lethargy, complacency and vivid indifference. It was only when much pressures were registered on the world body in question that it set up UNMIL to work hand in hand with
ECOMIL in Liberia.
Lack of adequate logistics equally negated the efforts of the UNMIL and ECOMIL in
Liberia, as both the government and rebel troops were equipped with perhaps more sophisticated weapons. Hence, the continued administrative weakness of the United
Nations equally played a major role.
The conclusion here therefore is that the International law of war was breached in the
Liberian civil war with impunity, not minding the existence of the United Nations, shouting on daily basis about the sanctions meted for war criminals. In the modern day armed conflicts, the law of armed conflict has been grossly violated with little or no sanctions on the war criminals, except recently when war crime tribunals have been established. Yet, that same tribunal becomes effective to the dwarf, and highly inactive when it affects the giant, who are major players at the center stage of the world politics.
248
7.3. RECOMMENDATIONS It is relevant that on completion of any research for the improvement of knowledge like this, pertinent recommendations have to be made to enable maximum derivation of benefits from such research efforts. Based on the above, we made the following recommendations:
First, Liberia should move beyond political and social conflict to peace, reconciliation, development, and ultimate prosperity in this 21 st century. Johnson, E.S.
(2009:59) argues that this will ensure effective socio-economic and political governance in that country.
More so, the present day Liberian government, under the leadership of
President Ellen Sirleaf' Johnson should go back to the drawing board on how people with fundamental disagreements and historical animosities can be harmonized and coordinated into a thriving open society that cultivates dissent under the banner of democratic process.
Equally, there should be a strong formation of vision, plan, sound strategy, and dogged determination in action for the actualization of how realpolitik and peacemaking can and, arguably, must be reconciled and integrated for effective 21st century leadership.
Additionally, Liberia should endeavor to harmonize its relationship between the US, which will ultimately set a new model for altering North/South and donor nation/developing nation relations more generally in the contemporary times.
Also, it is necessary to establish a formidable gender development and gender mainstreaming as a feature of the way forward, not just in Liberia but in the continental Africa as a whole.
Further, there should be a serious proposition to disabuse the minds of people over the negative happenings amidst ethno-cultural composition, typical of most “Congo” 249 families, disproving the false assumption of ethnic purity that has led to charges of ethnic minority oppression, thus correcting some of the misconceptions pertaining ethnicity and ethnocentrism in the Liberian state.
In continuation, Liberians should as a matter of necessity, rethink their history, reexamine the old assumptions, and the motives of the so-called “experts” on Liberian history, most of whom were driven by race relations in the United States.
Again, since it is obvious that armed conflicts must occur either as an
International or non-International one, for the preservation of one’s interest and territorial integrity, the nature of the warfare should be spelt out either to be a conventional or non-conventional one. This would go a long way in regulating the conduct of Combatants and all parties involved in the armed conflicts. The reverse was the case in the Liberian civil war where, war of all against all was declared.
Again, International bodies like UNO, ECOWAS, African Union, should ensure adequate existence of command and control of their men in the battlefield.
This would help in bringing maturity, sanity, and expected conduct from the
Combatants when it comes to abiding by the declarations, conventions, international standards and general rules governing armed conflicts. It should be noted that there was an absence of adequate command and control from the officers and men of the external forces, which led to the gross violations of the law of war in the Liberia armed conflict.
Further, the United Nations, ECOWAS, and African Union, should as a matter of priority carry out adequate visible studies of the war, territories, when they are about sending troops, either for peacekeeping operation or otherwise. The essence of this is to find out the necessary logistic problems that might be encountered in the course of the operation. Hence, the ECOMIL and UNMIL troops who were involved 250 in the peacekeeping operation in Liberia lacked necessary logistics required for the maintenance of peace. Thus, most of the top military officers sent to Liberia for
Peacekeeping were corrupt and money conscious, to the point of misusing the fund for self aggrandizement.
In continuation, the International Committee for Red Cross and Red Crescent has enormous task to carry out in terms of war of any type. That is, they should supply sufficient relief packages to the war torn zones, especially to persons that have been displaced by the war. Such persons would have no option other than to openly battle with abject hunger and orchestrated poverty. Thus, the eventual outcome of this abominable situation would always be frustration and melancholy, as that was the exact situation in Liberia.
Also, the refugees should be properly taken care of. By so doing, adequate essential facilities must be provided for in their various camps so as to give them a sense of belonging. Such facilities like electricity, pipe-borne water and recreational activities should be entrusted to the hands of men of proven integrity, patriotic zeal, transparent honesty, and practical accountability.
Equally, the United Nations, through the International criminal courts, should intensify efforts to put to an end the recruitment of children into soldiers. This situation is not only alarming but disastrous to the general manpower development of any nation, especially Liberia, where child soldiers was the other of the day.
Consequently, the policy of reconstruction, rehabilitation and remobilization should be embarked upon for those children who were trigger happy and committed questionable atrocities in the Liberian Armed Conflict.
In addition, effective training should be given to the officers and men meant to embark on peacekeeping operation of any kind in any war zone. To achieve this, 251 seminars, symposia, lectures, talks, on strategic matters and also the need to obey the law of war should be carried out periodically. This would go a long way to improve their general appreciation of the need to hide under the umbrella of the law of war and fight. Indeed, it was a terrible situation in Liberia. Prisoners of war in Liberia were not treated in accordance with the dictates of the four Geneva Convention of 1949.
Accordingly, the United Nations and other International NGOs of like minds should ensure effective enforcement of this convention with respect to the prisoners of war, as the POWs in Liberia were treated with ignominy and social abomination.
Again, war criminals suspected to be involved in act of torture, rape, sexual slavery, illegal possession of weapons of mass destruction, destruction of lives and properties, should be immediately brought to book without any delay, “as justice delayed is justice denied”. The implication of this opinion is that more often than not, unnecessary delay leads to the freedom of some war criminals.
It is only in these regards that the law of Armed Conflicts would be obeyed and
Combatants conduct themselves in accordance with the rules of the game.
252
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253
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DOCUMENTS ON ARMED CONFLICTS “The 1963 Treaty Banning Nuclear Weapons Test in the atmosphere, in outer space and under water”, Geneva: ICRC Unit for Relations with Armed and Security Forces. 265
“The 1963 Treaty Banning Nuclear Weapons Test in the Atmosphere, in Outer Space, and Under Water.” Geneva: ICRC Unit for Relations with Armed and Security Forces. “The 1963 US – Soviet Hotline Agreement ”. Geneva: ICRC Unit for Relations with Armed and Security Forces.
“The 1967 Treaty for the Prohibitions of nuclear weapons in Latin America” Geneva: ICRC Unit for Relations with Armed and Security Forces .
“The 1967 Treaty for the Prohibitions of Nuclear Weapons in Latin America” Geneva: ICRC Unit for Relations with Armed and Security Forces .
“The 1967 Treaty on the Principles Governing the Activities of States in the exploration and use of outer space, including the moon and other celestial bodies Geneva: ICRC Unit for Relations with Armed and Security Forces .
“The 1967 Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies” Geneva: ICRC Unit for Relations with Armed and Security Forces. . “The 1971 Treaty on Prohibition of replacement of nuclear weapons and other weapons of mass destruction on the sea-bed and the ocean floor and in the subsoil thereof , Geneva: ICRC Unit for Relations with Armed and Security Forces.
“The 1971 Treaty on Prohibition of Replacement of Nuclear Weapons of Mass Destruction on the Sea bed and the Ocean floor and in the Subsoil thereof” Geneva: ICRC Unit for Relations with Armed and Security Forces .
“The 1971 US - Soviet Agreement on Measures to reduce the risk of outbreak of nuclear war”, Geneva: ICRC Unit for Relations with Armed and Security Forces. “The 1971 US-Soviet Agreement on Measures to Reduce the Risk of Outbreak of NuclearWar.” Geneva: ICRC Unit for Relations with Armed and Security Forces.
“The 1972 Convention on the Prohibition of Development, Production, and Stockpiling of Bacteriological (Biological) and Toxic Weapons and their Destruction” Geneva: ICRC Unit for Relations with Armed and Security Forces.
“The 1972 Convention on the Prohibition of development, production and stockpiling of bacteriological (biological) and toxic weapons and their destruction, Geneva: ICRC Unit for Relations with Armed and Security Forces . “The 1972 Treaty on the Limitation of Ante-Ballistic Missile Systems” Geneva: ICRC Unit for Relations with Armed and Security Forces .
“The 1972 Treaty on the Limitation of Anti Ballistic Missile Systems , Geneva: ICRC Unit for Relations with Armed and Security Forces .
266
“The 1972 Treaty on the Limitation of Strategic Offensive Arms” Geneva: ICRC Unit for Relations with Armed and Security Forces.
“The 1972 Treaty on the Limitation of Strategic Offensive Arms”. Geneva: ICRC Unit for Relations with Armed and Security Forces .
“The 1974 US-Soviet Treaty on Underground Nuclear Explorations for Peace Purposes ” Geneva: ICRC Unit for Relations with Armed and Security Forces .
“The 1974 US-Soviet Treaty on underground nuclear explosions for peace purposes”, Geneva: ICRC Unit for Relations with Armed and Security Forces .
“The 1976 Soviet Union - France Agreement to Avoid Nuclear Accidents” Geneva: ICRC Unit for Relations with Armed and Security Forces.
“The 1976 Soviet Union - France Agreement to Avoid Nuclear Accidents” Geneva: ICRC Unit for Relations with Armed and Security Forces.
“The 1977 Convention on the Prohibition of military or any other hostile use of environmental modification techniques” Geneva: ICRC Unit for Relations with Armed and Security Forces.
“The 1977 Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques” Geneva: ICRC Unit for Relations with Armed and Security Forces.
“The 1977 Soviet Union - United Kingdom Agreement to Avoid Nuclear Accidents” Geneva: ICRC Unit for Relations with Armed and Security Forces .
“The 1977 Soviet Union – United Kingdom Agreement to avoid Nuclear Accidents”, Geneva: ICRC Unit for Relations with Armed and Security Forces .
“The 1979 Agreement Governing the Activities of states on the moon and other celestial bodies , Geneva: ICRC Unit for Relations with Armed and Security Forces. “The 1979 US-Soviet Treaty on Limitation of Strategic Offensive Arms (SALT II)”, Geneva: ICRC Unit for Relations with Armed and Security Forces .
“The 1981 Convention on Prohibition or Restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects” Geneva: ICRC Unit for Relations with Armed and Security Forces.
“The 1982 US – Soviet Agreement on the Establishment of notifications of launches of Inter-Continental Ballistic Missiles and Submarine Launches Ballistic Missiles”, Geneva: ICRC Unit for Relations with Armed and Security Forces. . “The Protocol for the Prohibition of the Use in War of asphyxiating, poisonous, or other gases, and of bacteriological methods of warfare decision” , (1999) Geneva: ICRC Unit for Relations with Armed and Security Forces . 267
“The 1985 South Pacific Nuclear Free zone Treaty”. Geneva: ICRC Unit for Relations with Armed and Security Forces.
“The 1987 US-Soviet Treaty on the Elimination of their Intermediate Range and Shorter Range Missiles”. Geneva: ICRC Unit for Relations with Armed and Security Forces. “The Charter establishing the European Union,” (1993), Geneva: ICRC Unit for Relations with Armed and Security Forces.
“The Convention on the Rights of the Child”, (1989) Geneva: ICRC Unit for Relations with Armed and Security Forces.
“The Four Geneva Convention of 1949”, Geneva: ICRC Unit for Relations with Armed and Security Forces.
“The International War Crimes Tribunal Judgment on Iraq” , Geneva: ICRC Unit for Relations with Armed and Security Forces.
“The Tehran Declaration of 1968”. Geneva: ICRC Unit for Relations with Armed and Security Forces. “The UNICEF Major Document on Armed Conflicts” Geneva: ICRC Unit for Relations with Armed and Security Forces.
“Vienna Declaration and Programmes of Action of 1995” Geneva: ICRC Unit for Relations with Armed and Security Forces.
UNPUBLISHED WORKS
Akpan, Monday B. (1968) The African Policy of the Liberian Settlers, (1932) PhD Dissertation, University of Ibadan, Nigeria.
Cole, Robert Eugene (1967) The Liberian Elite as a Barrier to Economic Development. PhD. Dissertation, Department of Economics, Northwestern University, Evanston.
Davis, Ronald W.(1968 ) Historical Outline of the Kru Coast, Liberia, 1500 to the Present, PhD. Dissertation; Department of History, Indiana University, Bloomington.
Harris, Katherine (1982) The United States, Liberia and their Foreign Relations to 1847 . PhD. Dissertation; Department of History, New York: Lornell University, Ithaca. Votte Foundations (2009) Application of Illegal Weapons in the Mano Region .
PERIODICALS
Africa Today, (1981) “The Liberian Crisis”. London.
Africa Watch, (1990) “Hostage Taking in the Liberian Civil War”. 268
Africa Watch, (1990) “Breach of International Law of War in Liberia”.
Africa Watch, (1997) “The Aftermaths of the Liberian Civil War”.
Central Intelligence Agency (CIA) World Fact book (2008)
Facts and Figures, (2004) Disarmament and Demobilization Process in Liberia.
Footprints Today, (1990) “Liberia”.
Footprints Today, (1997) “Liberia After Civil War”.
Human Rights Watch, (2006) “Atrocities in the Liberian Civil War”.
Human Rights Watch, (2001) “Sexual Slavery in the Liberian Civil War”.
Liberia Today, (2004) “Political Crisis in the Liberian Nation”.
Nancy War Crimes Report s (2005) “ Liberian Civil War”.
The U.S. State department’s Office of Foreign Disaster Assistance (2008).
The West African Bulletin, (1997) “Conflict Rooted in History”. ECOWAS Executive Secretariat, Lagos.
UN Publications (2000) Peacekeepers, Politicians and Warlords: the Liberian Peace Process (Foundations of Peace.)
DISCUSSIONS The Researcher had discussions with Seven (7) Top Military Officers on the Breach of Law of War in the Liberian Armed Conflict. They are as follows: • Major General Gabriel Oladipo: 2nd Mechanized Division of Nigerian Army, Ibadan (Oyo State): 7th January, 2008. • Brigadier General Kingsley Jang: 1 st Mechanized Division, Kaduna: 10 th January, 2008. • Colonel Linus Udeagbara: Command and Staff College, Jaji: 13 th January, 2008. • Colonel Adamu Zakari: 82 Division of Nigerian Army, Enugu: 14th January, 2008. • Colonel Ibrahim Zubairo: 82 Division of Nigerian Army, Enugu: 16 th January, 2008. 269
• Colonel Joseph Dankarafi: 1 st Mechanized Division, Kaduna: 22 nd January, 2008. • Colonel Jamie Jones: Command and Staff College, Jaji: 27 th January, 2008.
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APPENDIX I
PRISONERS OF WAR CAMPS (POW)
271
APPENDIX II
CHILDREN UNDER EIGHTEEN (18) YEARS BEING RECRUITED AS CHILD SOLDIERS.
272
APPENDIX III INTERNATIONAL ARMED CONFLICT
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APPENDIX IV EXPLOSIVE NUCLEAR WEAPONS USED BY THE MILITARY FORCES DURING ARMED CONFLICTS
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APPENDIX V
THE SICK AND THE WOUNDED DURING ARMED CONFLICT
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APPENDIX VI
CORPSES ASSEMBLED, AMIDST SYMPATHIZERS WAILING IN THE LIBERIAN CIVIL WAR
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APPENDIX VII
A CHILD SOLDIER SHOOTING IGNORANTLY DURING THE LIBERIAN CIVIL WAR
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APPENDIX VIII
MAYHEM: YOUNG FIGHTERS OF TAYLOR PREPARE TO TAKE ON REBELS IN THE STREETS OF THE CAPITAL MONROVIA IN 2003
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APPENDIX IX
A YOUNG GIRL LOOKING HOPELESS HAVING BEING RAPED BY A REBEL SOLDIER DURING THE LIBERIAN ARMED CONFLICT.
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APPENDIX X CHARLES TAYLOR BEING LED IN CHAINS DURING HIS TRIAL FOLLOWING THE WAR CRIMES HE COMMITTED IN THE LIBERIAN CIVIL WAR
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APPENDIX XI
GUERRILLA FIGHTERS SHOOTING RUTHLESSLY IN THE LIBERIAN CIVIL WAR
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APPENDIX XII
HOPE AT LAST: THOUSANDS LINE THE STREETS IN CELEBRATION AS THE UNITED NATIONS MISSION IN LIBERIA (UNMIL) PEACEKEEPERS DEPLOYED TO THE CAPITAL IN AUGUST 2003
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APPENDIX XIII
CHARLES TAYLOR POSES WITH A GUN ALONGSIDE HIS REBEL FORCES
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APPENDIX XIV
REFUGEES RUN FOR SAFETY DURING THE LIBERIAN CIVIL WAR
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APPENDIX XV
PROPERTIES AND LIVES DESTROYED AS A RESULT OF BOMB BLAST IN THE LIBERIAN CIVIL WAR
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APPENDIX XVI
SAMUEL DOE (FORMER LIBERIAN PRESIDENT) BEFORE HIS MUTILATION BY PRINCE JOHNSON LED REBEL GROUP
SAMUEL K. DOE {FORMER PRESIDENT OF LIBERIA}
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APPENDIX XVII
DESTRUCTION OF PROPERTIES BY CHILD SOLDIERS
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APPENDIX XVIII HUNGER: REFUGEE CHILDREN LINE UP FOR A MEAGER HANDOUT OF RICE, THE ONLY FOOD THEY RECEIVED AT THE REFUGEE CAMP WHERE THEY WERE STAYING ON THE OUTSKIRTS OF MONROVIA.
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APPENDIX XIX
AN AMPUTATED BOY GAZING HOPELESSLY AFTER THE LIBERIAN CIVIL WAR
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APPENDIX XX
RELIEF PERSONNEL FROM THE INTERNATIONAL COMMITTEE FOR RED CROSS (ICRC) DURING THE LIBERIAN CIVIL WAR
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APPENDIX XXI
DISPLACEMENT OF CIVILIANS AS A RESULT OF THE LIBERIAN CIVIL WAR
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APPENDIX XXII
BULLETS LITTERED ALL OVER THE PLACES FOLLOWING THE AFTERMATH OF THE LIBERIAN CIVIL WAR.
292
APPENDIX XXIII 1907 HAGUE CONVENTION IN RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND Article 1 The contracting powers shall issue instruments to their armed land forces which shall be in conformity with the regulations respecting the laws and customs of war on land, annexed to the present convention. Article 2 The provisions contained in the regulations referred to in article 1 as well as in the present convention, do not apply except between contracting powers, and then only if all the belligerents are parties to the convention. Article 3 A belligerent party, which violates the provisions of the said regulations, shall, if the case demands, be liable to pay compensations. It shall be responsible for all acts committed by persons forming part of its armed forces. Article 4 The present convention, duly ratified shall as between the contracting powers, be substituted for the convention of the 29th July, 1899 respecting the laws and customs of war on land. The convention of 1899 remains in force as between the powers which signed it, and which do not also ratify the present convention. Article 5 The present convention shall be ratified as soon as possible. The ratifications shall be deposited at The Hague. The first deposit of ratification shall be recorded in a process verbal signed by the representatives of the power which take part therein and by the Netherlands’s minister for foreign affairs. The subsequent deposit of ratifications shall be made by means of a written notification, addressed to the Netherlands’s Government and accompanied by instrument of ratification. Article 6 Non-signatory power may adhere to the present convention. The power which desires to adhere notifies in writing its intention to the Netherlands’s Government forwarding to it the act of adhesion which shall be deposited in the archives of the said Governments. The government shall at once transmit to all the other power a duly certified copy of the notification as well as of the act of adhesion, mentioning the date on which it received the notification. Article 7 The present convention shall come into force, in the case of the power, which were a party to the first deposit of ratifications, sixty days after the date of the process-verbal of the deposit, and in the case of the powers which ratify subsequently or which adhere sixty days after the notifications of their ratifications or of their adhesion has been received by the Netherlands’s government. Article 8 In the event of one of the contracting powers wishing to denounce the present convention, the denunciation shall be notified in writing to the Netherlands’s Government, which shall at once communicate a duly certified copy of the notification to all the other powers informing them of the date on which it was received. The denunciation shall only have effect in regard to the notifying power, and one year after the notification has reached the Netherlands’s Government. Article 9 293
A register kept by the Netherlands’s’ ministry for foreign affairs shall give the date of the deposit of ratifications made in virtues of article 5, paragraphs 3 and 4, as well as the date on which the notifications of adhesion (article 6, paragraph 2) or of denunciation (article 8 paragraph 1) were received. Each contracting power is entitled to have access to this register and to be supplied with duly certified extracts. In fact, whereof the plenipotentiaries have appended their signatures to the present convention done at the Hague, the 18th October 1907, in a single copy which shall remain deposited in the archives of the Netherlands’s government, and duly certified copies of which shall be sent, through the diplomatic channel to the powers which have been invited to the second peace conference.
APPENDIX XXIV CONVENTION (V) RESPECTING THE RIGHTS AND DUTIES OF NEUTRAL POWERS AND PERSONS IN CASE OF WAR ON LAND. (Part B) CHAPTER 1 – The Rights and duties of Neutral Powers. Article 1 The territory of neutral powers is inviolable Article 2 Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral power. Article 3 Belligerents are likewise forbidden to - a. Erect on the territory of a neutral power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea. b. Use of any installation of this kind established by them before the war on the territory of a neutral power for purely military purposes, and which has not been opened for the services of public messages. Article 4 Corps of combatants cannot be formed nor recruiting agencies opened on territory of a neutral power to assist the belligerents. Article 5 A neutral power must not allow any of the acts referred to in articles 2 to 4 to occur on its territory it is not called upon to punish acts in violations of its neutrality unless the said acts have been committed on its own territory. Article 6 The responsibility of a neutral power is not engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerents. Article 7 A neutral power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet. Article 8 A neutral power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals. Article 9 294
Every measure of restriction or prohibition taken by a neutral power in regard to the matters referred to in article 7 and 8 must be impartially applied by it to both belligerents. A neutral power must see to the same obligation being observed by companies or private individuals owning telegraph or telephone cables or wireless telegraphy apparatus. Article 10 The fact of a neutral power resisting, even by force, attempt to violence its neutrality cannot be regarded as a hostile act. Article 11 A neutral power, which receives on its territory, troop’s belongings to the belligerent armies shall intern them, as far as possible, at a distance from the theatre of war. Article 12 In the absence of a special convention to the contrary, the neutral powers shall supply the interned with the food, clothing and relief required by humanity. At the conclusion of peace the expenses caused by the interment shall be made good. Article 13 A neutral power which receives escaped prisoners of war shall leave them at liberty. If it allows them to remain in its territory it may assign them a place of residence. The same rule applies to prisoners of war brought by troops taking refuge in the territory of a neutral power. Article 14 A neutral power may authorize the passage over its territory of the sick and wounded belonging to the belligerent armies, on condition that the trains bringing them shall carry neither personnel nor war material. In such a case, the neutral power is bound to take whatever measures of safety and control are necessary for the purpose. The sick or wounded brought under these conditions into neutral territory by one of the belligerents and belonging to the hostile party, must be guarded by the neutral power so as to ensure their not taking part again in the military operations. The same duty shall devolve on the neutral state with regard to wounded or sick of the other army who may be committed to its care. Article 15 The Geneva Convention applies to the sick and wounded interned in neutral territory. Article 16 The nationals of a state which is not taking part in the war are considered as neutral. Article 17 A neutral person cannot avail himself of his neutrality: a) If he commits hostile acts against a belligerents; b) If he commits acts in favor of a belligerent, particularly if he voluntarily enlists in the ranks of the armed force of one of the parties. In such a case, the neutral shall not be more severely treated by the belligerent as against whom he has abandoned his neutrality than a national of the other belligerent state could be for the same act. Article 18 The following acts shall not be considered as committed in favor of one belligerent in the sense of article 17, letter (b): a) Supplies furnished or loans made to one of the belligerent provided that the person who furnishes the supplies or who makes the loans lives neither in the territory occupied by him, and that the supplies do not come from these territories; 295 b) Service rendered in matters of police or civil administration. Article 19 Railway material coming from the territory of neutral powers, whether it be the property of the said powers or of companies or private persons, and recognizable as such, shall not be requisitioned or utilized by a belligerent except where and to the extent that it is absolutely necessary. It shall be sent back as soon as possible to the country of origin. A neutral power may likewise, in case of necessity, retain and utilize to an equal extent material coming from the territory of the belligerent power. Compensation shall be paid by one party or the other in proportion to the material used and to the period of usage. Article 20 The provision of the present convention do not apply except between contracting powers, and then only if all the belligerents are parties to the convention. Article 21 The present convention shall be ratified as soon as possible. The ratifications shall be deposited at The Hague. The first deposits of ratifications shall be recorded in a process-verbal signed by the representatives of the powers, which take part therein, and by the Netherlands’ minister for foreign affairs. The subsequent deposits of ratifications shall be made by means of a written notification; addressed to the Netherlands’ Government and accompanied by the instrument of ratification. A duly certified copy of the process-verbal relative to the first deposit of ratifications, of the notifications mentioned in the preceding paragraph and of the instruments of ratifications shall be immediately sent by the Netherlands’ Government, through the diplomatic channel, to the powers invited to the second peace conference as well as the other powers which have adhered to the convention. In the cases contemplated in the paragraph, the said government shall at that time inform them of the date on which it received the notification. Article 22 Non-signatory power may adhere to the present convention. The power which desires to adhere notifies its intention in writing to the Netherlands’ government forwarding to it the act of adhesion, which shall be deposited to the archives of the said government. This government shall immediately forward to all the other powers a duly certified copy of the notification as well as of the act of adhesion mentioning the date on which it received the notification. Article 23 The present convention shall come into force in the case of the powers which were a party to the first deposit of ratifications, sixty days after the date of the process-verbal of this deposit and in the case of the powers which ratify subsequently or which adhere, sixty days after the notification of their ratification or of their adhesion has been received by the Netherlands’ Government. Article 24 In the event of one of the contracting powers wishing to denounce the present convention the denunciation shall be notified in writing to the Netherlands’ Governments, which shall immediately communicate a duly certified copy of the notification to all the other powers, informing them at the same time of the date on which it was received. The denunciation shall only have effect with regards to the notifying power and one year after the notification has reached the Netherlands’ Government. 296
Article 25 A register kept by the Netherlands’ ministry of foreign affairs shall give the date of the deposit or ratifications made in virtue of article 21 paragraph 3 and 4 as well as the date on which the notifications of adhesion (article 22, paragraph 2) or of denunciation (article 24, paragraph 1) have been received. Each contracting power is entitled to have access to this register and to be supplied with duly certified extracts from it. In faith whereof the plenipotentiaries have appended their signatures to the present convention done at The Hague, the 18th October, 1907, in a single copy, which shall remain deposited in the archives of the Netherlands’ Government, and duly certified copies of which shall be sent, through the diplomatic channel to the powers which have been invited to the second peace conference.
APPENDIX XXV 1907 HAGUE CONVENTION IX CONCERNING THE BOMBARDMENT BY NAVAL FORCES IN TIME OF WAR Chapter 1 The Bombardment undefended ports, towns, villages, Dwellings, or Buildings. Article 1 The bombardment by naval forces of undefended ports, towns, villages, dwellings, or buildings is forbidden. A place cannot be bombarded so because automatic submarine contact mines are anchored off the harbor. Article 2 Military works, military or naval establishments’ depots of arms of war material, workshops or plant which could be utilized for the needs of the hostile fleet or army, and the ships of war in the harbor are not, however, included in this prohibition. The commander of a naval force may destroy them with artillery, after a summons followed by a reasonable time of waiting, if all other means are impossible, and when the war authorities have not themselves destroyed them within the time fixed. He incurs no responsibility for any unavoidable damage which may be caused by a bombardment under such circumstance. If for military reasons immediate action is necessary and no delay can be allowed the enemy, it is understood that the prohibition to bombard the undefended town holds good, as in the case given in paragraph and that the commander shall take all due measures in order that the town may suffer as little harm as possible. Article 3 After due notice has been given the bombardment of undefended ports, towns, villages, dwellings or buildings may be commended, if the local authorities, after a formal summons has been made to them, decline to comply with registrations for provisions or supplies necessary for the immediate use of the naval force before the place in question. The requisitions shall be in proportion to the resources of the place. They shall only be demanded in the name of the commander of the said naval force, and they shall as far as possible, be paid for in cash, if not, they shall be evidenced by receipts. Article 4 Undefended ports, towns, villages, dwellings, or buildings may not be bombarded on account of failure to pay money contributions. CHAPTER 4 GENERAL PROVISIONS Article 5 297
In bombardments by naval forces all the necessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for artistic, scientific or charitable purposes, historic monuments, hospitals and places where the sick or wounded are collected on the understanding that they are not used at the same time for military purposes. It is the duty of the inhabitants to indicate such monuments, edifies, or places by visible signs, which shall consist of large, stiff rectangular panels divided diagonally into two colored triangular portions, the upper portion black: the lower portion white. Article 6 If the military situation permits, the commander of the attacking naval force, before commencing the bombardment must do his utmost to warn the authorities. Article 7 A town or place, even when taking by storm, may not be pillaged. Chapter III- FINAL PROVISIONS Article 8 The provisions of the present convention do not apply except between contracting powers and then only if all belligerents are parties to the convention. Article 9 The present convention shall be ratified as soon as possible. The ratifications shall be deposited at The Hague. The first deposit of ratifications shall be recorded in a process-verbal signed by the representatives of the foreign affairs. The subsequent deposits of ratifications shall be made by means of a written notification addressed to the Netherlands’ Government and accompanied by the instrument of ratification. A duly certified copy of the process-verbal relative to the first deposit of ratifications, of the notifications mentioned in the preceding paragraph, as well as of the instruments of ratification, shall be at once sent by the Netherlands’ Government, through the diplomatic channel, to the powers invited to the second peace conference, as well as to the second peace conference, as well as to the other powers which have adhered to the convention. In the cases contemplated in the preceding paragraph, the said Government shall inform them at the same time of the date on which it received the notification. Article 10 Non-signatory powers may adhere to the present convention. The power, which desires to adhere, shall notify its intention to the Netherlands’ Government forwarding to it the act of adhesion, which shall be deposited in the archives of the said government. This government shall immediately forward to all the other powers a duly certified copy of the notifications, as well as of the act of adhesion, mentioning the date on which it received the notifications.
Article 11 The present convention shall come into force, in the case the powers which were a party to the first deposit of ratifications, sixty days after the date of the process-verbal of that deposit, and in the case of the powers which ratify subsequently or which adhere, sixty days after the notification of their ratification or of the their adhesion has been received by the Netherlands’ Government. Article 12 In the event of one of the contracting powers wishing to denounce the present convention, the denunciation shall be notified in writing to the Netherlands’ Government, which shall at once communicate a duly certified copy of the notification to all the other powers informing them of the date on which it was 298 received. The denunciation shall only have effect in regard to the notifying power, and one year after the notification has reached the Netherlands’ Government. Article 13 A register kept by the Netherlands’ Minister for Foreign Affairs shall give the date of the deposit of ratifications made in virtue of article 9, paragraph 3 and 4, as well as the date on which the notifications of adhesion (article 10, paragraph 2) or of denunciation (Article 12, paragraph 1) have been received. Each contracting power as entitled to have access to this register and to be supplied with duly certified extracts from it. In faith whereof the plenipotentiaries have appended their signatures to the present convention. Done at The Hague, the 18th October, 1907, and a single copy, which shall remain deposited in the archives of the Netherlands’ Government, and duly certified copies of which shall be sent.
APPENDIX XXVI 1907 CONVENTION XI RELATING TO CERTAIN RESTRICTIONS WITH REGARD TO THE EXERCISE OF THE RIGHTS OF CAPTURE IN NAVAL WAR. Chapter I- Postal Correspondence Article 1 The postal correspondence of neutrals or belligerents whatever its official or private character may be, found on the high seas on board a neutral or enemy ship, is inviolable. If the ship is detained, the correspondence is forward by the captor with the least possible delay. The provisions of the preceding paragraph do not apply, in case of violation of blockade, to correspondence destined for or proceeding from a blockaded port. Article 2 The inviolability of postal correspondence does not exempt a neutral mail ship from the laws and culture of mail time was as to neutral merchant ships in general. The ship, however, may not be searched except when absolutely necessary, and then only with as much consideration and expedition as possible. Chapter II - the exemption from capture of certain vessels used exclusively for fishing along the coast or small boats employed in local trade are exempt from capture, as well as their appliances, rigging, tackle and cargo. They cease to be exempt as soon as they take any part whatever in hostiles. The contracting powers agree not to take advantage of the harmless character of the said vessels in order to use them for military purposes while preserving their peaceful appearance. Article 4 Vessels charged with religious, scientific or philanthropic missions are likewise exempt from capture. CHAPTER III - Regulations regarding the crews of enemy Merchants ships captured by a Belligerent Article 5 When an enemy merchant ship is captured by a belligerent, such of its crew as are nationals of neutral state are not made prisoners of war. 299
The same rule applies in the case of captain and officials likewise nationals of a neutral state, if they promote formally in writing not to serve on an enemy ship while the war lasts. Article 6 The captain, officers and members of the crew when nationals of the enemy state are not made prisoners of war, on condition that they make a formal promise in writing, not to undertake, while hostilities last, any service convicted with the operation of war. Article 7 The names of the persons retaining their liberty under the conditions laid down in article 5, paragraph 2, and in article 6, are notified by the belligerent captor to the other belligerent. The latter is forbidden knowingly to employ the said persons. Article 8 The provisions of the three preceding articles do not apply to ships taking part in the hostilities. Article 9 The provisions of the present convention do not apply except between contracting powers, and then only if all the belligerents are parties to the convention. Article 10 The present convention shall be ratified as soon as possible. The ratifications convention shall be deposited at The Hague the first deposit of ratifications shall be recorded in a process-verbal signed by the representatives of the powers taking part therein and by the Netherlands minister for foreign affairs. Subsequent deposits of ratifications shall be made by means of a written notification, addressed to the Netherlands Government deposit of ratifications, of the notifications mentioned in the preceding paragraph, as well as of the instruments of ratification, shall be at once sent by the Netherlands Government through the diplomatic channel, to the powers invited to the second peace conference, as well as to the other powers which have adhered to the convention. In the cases contemplated in the preceding paragraph, the said government shall inform them at the same time of the date on which it received the notification. Article 11 Non-signatory powers may adhere to the present convention. The power, which desires to adhere, notifies its intention in writing to the Netherlands government forwarding to it the act of adhesion, which shall be deposited in the archives of the said government. This government shall at once transmit to all the other powers a duly certified copy of the notifications as well as of the act of adhesion, mentioning the date on which it received the notification. Article 12 The present convention shall come into force in the case of the powers which were a party to the first deposit of ratifications, sixty days after the process-verbal of that deposit, and, in the case of the powers which ratify subsequently or which adhere, sixty days after the notification of their ratifications has been received by the Netherlands Government.
Article 13 In the event of one of the contracting powers wishing to denounce the present convention, the denunciation shall be notified in writing to the Netherlands Government, which shall at once communicate a duly certified copy of the ratification to the other powers informing them of the date on which it was received. The 300 denunciation shall only have effect in regard to the notifying power, and one year after the notification has reached the Netherlands Government. Article 4 A register kept by the Netherlands ministry for foreign affairs shall give the date of the deposits of ratification made in virtues of article 10, paragraph 3 and 4, as well as the date on which the notifications of adhesion (Article 11, paragraph 2) or of denunciation (Article 13, paragraph 1) have been received). Each contracting power is entitled to have access to this register and to be supplied with duly certified extracts from it. In faith whereof the plenipotentiaries have appended their signatures to the present convention, done at The Hague, the 18th October, 1907, in a single copy, which shall remain deposited in the archives of the Netherlands Government, and duly certified copies of which shall be sent, through the diplomatic channel, to the powers invited to the second peace conference.
APPENDIX XXVII INSTITUTIONAL MECHANISM OF ENFORCEMENT OF THE LAW OF WAR The 1948 United Nations Conventions on the Prevention and Punishment of the Crime of Genocide. The Contracting Parties Having considered the declaration made by the General Assembly of the United Nations in its resolution 96(1) dated II December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world. Recognizing that at all periods of history, genocide has inflicted great losses on humanity; and being convicted that, in order to liberate mankind from such an odious scourge, international co-operation is required, HEREBY AGREE AS HEREINAFTER PROVIDED: Article I The contracting parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. Article II In the present convention, genocide means any of the following acts committed with intent to destroy, in whole or in part; a national, ethnical, racial or religious group; such as; a. Killing members of the group b. Causing serious bodily or mental harm to members of the group c. Deliberately inflicting on the group conditions life calculated to bring about its physical destruction in whole or in part.; d. Imposing measure intended to prevent births within the group; e. Forcibly transferring children of the group. Article III The following acts shall be punishable: 301
a. Genocide b. Conspiring to commit genocide c. Direct and public incitement to genocide d. Attempt to commit genocide; e. Complicity in genocide. Article IV Persons committing genocide or any of the other acts enumerated in article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. Article V The contracting parties undertake to enact, in accordance with their respective constitutions, the necessary legislation to give effect to the provisions of the present convention and, in particular to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article 3. Article VI Persons charged with genocide or any of the other acts enumerated in article 3 shall be tried by a competent tribunal of the state in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those contracting parties which shall accepted its jurisdiction. Article VII Genocide and the other acts enumerated in article 3 shall not be considered as political crimes for the purpose of extraction. The contracting parties pledge themselves in such cases to grant extraction in accordance with their laws and treaties in force. Article VIII Any contracting party may call upon the competent organs of the United Nations to take such action under the UN charter suppression of acts of genocide or any of the other acts enumerated in article 3. Article IX Disputes between the contracting parties relating to the interpretation, application or fulfillment of the present convention including those relating to the responsibility of a state for genocide or for any of the other acts enumerated in article 3 shall be submitted to the international court of justice at the request of any of the parties of the dispute.
Article X The present convention, of which the Chinese, English French, Russian and Spanish texts are equally authentic, shall bear the date of a December 1948 Article XI The present convention shall be open until 31 December 1949 for signature on behalf of any member of the United Nations and of any non-member state to which an invitation to sign has been addressed by the General Assembly. 302
Article XII Any contracting party may at anytime, by notification addressed to the secretary- General of the United Nations extended the application of the present convention to all or any of the territories for the conduct of which foreign relations that contracting party is responsible. Article XIII On the day when the first twenty instruments of ratifications or accession have been deposited, the secretary General shall draw up a process-verbal and transmit a copy of thereof to each member of the United Nations and to each of the non-member state contemplated in article 10. The present convention shall come into force on the ninetieth day following the date of deposit of the twentieth instruments of ratification or accession. Article XIV The present convention shall remain in effect for a period of ten years as from the date of its coming into force. It shall thereafter remain in force for successive period of five years for such contracting parties as have not denounced it at least six months before the expiration of the current period. Article XV If as a result of denunciations, the member of parties to the present convention should become less them sixteen, the convention shall cease to be in force as from the date on which the last of these denunciation shall become effective. Article XVI A request for the revision of the present convention may be made at anytime by any contracting party by means of a notification in writing addressed to the secretary-General. The general Assembly shall decide upon the steps if any, to be taken in respect of such request. Article XVII The secretary-General of the United Nations shall notify all members of the United Nations and the non-members states contemplated in article II of the following: a. Signatures, ratifications and accession received in accordance with article II. b. Notifications received in accordance with article XII c. The date upon which the present convention comes into force in accordance with article XIII d. Denunciations received in accordance with article XIV e. The abrogation of the convention in accordance with article XV f. Notifications received in accordance with article XVI Article XVIII The original of the present convention shall be deposited in the archives of the United Nations.
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APPENDIX XXVIII 1976 UNITED NATIONS CONVENTION ON THE PROHIBITION OF MILITARY OR ANY OTHER HOSTILE USE OF ENVIRONMENTAL MODIFICATION TECHNIQUES. Article I 1. Each state party on this convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other state party. 2. Each state party to this convention undertakes not to assist, encourage or induce any state, group of states or international organization to engage in activities contrary to the provisions of paragraph of this article. Article II As used in article I, the term “environmental modification techniques” refers to any technique for changing through the deliberate manipulations of natural process the dynamics, composition or structure of the earth, including its biota, lithosphere, hydrosphere and atmosphere, or outer space. Article III 1. The provisions of this convention shall not hinder the use of environmental modification techniques for peaceful purposes and shall be without prejudice to the generally recognized principles and applicable rules of international law concerning such use. 2. the state parties to this convention undertake to facilitate, and have the right to participate in, the fullest possible exchange of scientific and technological information on the use of environmental modification techniques for peaceful purposes, state parties in a position to do so shall contribute, alone or together with other states or international organizations, to international economic and scientific co-operation in the preservation, improvement and peaceful utilization of the environment, with due consideration for the needs of the developing areas of the world. Each state party to this convention undertakes to take any measures it considers necessary in accordance with its constitutional processes to prohibit and prevent and activity in violation of the provisions of the convention anywhere under its jurisdiction or control.
Article IV 1. The states parties to this convention undertake to one another and to co- operate in solving any problems which may arise in relation to the objectives of, or in the application of the provisions of, the convention. Consultation and co-operation pursuant to this article may also be undertaken through appropriate international procedures within the framework of the United Nations procedures and in accordance with its charter. These international procedures may include the services of appropriate international organizations, as well as of a consultative committee of experts as provided for in paragraph II of this article. 2. For this purposes set forth in paragraph 1 of this article, the depositing shall, within one month of the receipt of a request from any state party to this 304
convention, convene a consultative committee of experts. Any state party may appoint may an expert to the committee whose functions and rules of procedures are set out in the annex, which constitutes an integral part of this convention. The committee of its findings of fact, incorporating all views and information, presented to the committee during its proceedings. The Depositary shall distribute the summary to all states parties. 3. Any state party to this convention which has reason to believe that any other state party is acting in breach of obligations deriving from the provisions of the convention may lodge a complaint with the security council of the United Nations. Such as complaint should include all relevant information as well as all possible evidence supporting its validity. 4. Each state party to this convention undertakes to co-operate in carrying out any investigation which the security council may initiate, in accordance with the provisions of the charter of the United Nations, to any state which so requests, if the security council decides that such party has been harmed or is likely to be harmed as a result of violation of the convention. Article V 1. Any states party to this convention may propose amendments to the convention. The text of any proposed amendment shall be submitted to the depositary, which shall promptly circulate it to all states parties. 2. An amendment shall enter into force for all states parties to this convention which has accepted it, upon the deposit with the depositary of instruments, of acceptance by a majority of states parties. Thereafter it shall enter into force for any remaining state party on the date of deposit of its instrument of acceptance. Article VI This convention shall be of unlimited duration Article VII 1. Five years after the entry into force of this convention, a conference of the states parties to the convention shall be convened by the depositary at Geneva, Switzerland. The conference shall review the operation of the convention with a view to ensuring that its purposes and provisions are being realized, and shall in particular examine the effectiveness of the provisions of paragraph I of article I in eliminating the dangers of military or any other hostile use of environmental modification techniques. 2. At intervals of not less than five years thereafter, a majority of the states parties to this convention may obtain, by submitting a proposal to this effect to the depositary, the convening of a conference with the same objectives. 3. If no conference has been converted pursuant to paragraph 2 of this article within ten years following the conclusion of a previous conference, the depositary shall solicit the views of all states parties to this convention concerning the convening of such a conference. If one third or ten of the states parties, whichever number is less respond affirmatively, the depositary shall take immediate steps to convene the conference. Article VIII 1. This convention shall be open to all states for signature. Any state which does not sign the convention before its entry into force in accordance with paragraph 3 of this article may accede to it at any time 305
2. This convention shall be subject to ratifications by signatory states. Instruments of ratifications or accession shall be deposited with the secretary-General of the United Nations. 3. This convention shall enter into force upon the deposit of instruments of ratification by twenty Governments in accordance with paragraph 2 of this article. 4. For these states whose instruments of ratification of accession are deposited after the entry into force of this convention, it shall enter into force on the date of the deposit of their instruments of ratification of accession. 5. The depositary shall promptly inform all signatory and acceding state of the day of each signature, the date of deposit of each instrument of ratification or accession and the date of the entry into force of this convention and of any amendment thereto, as well as of the receipt of other notice. 6. This convention shall be registered by the Depositary in accordance with article 102 of the charter of the United Nations. Article IX This convention of which the English, Arabic, Chinese, French, Russian and Spanish texts are equally authentic shall be deposited with the secretary-General of the United Nations, who shall send duly certified copies thereof to the government of the signatory and acceding states. In witness thereof, the undersigned being duly authorized thereto by their respective governments have signed this convention, opened for signature at Geneva on the eighteenth day of May, one thousand nine hundred and seventy Seven. APPENDIX XXIX 1980 UN CONVENTION ON PROHIBITION OR RESTRICTION ON THE USE OF CERTAIN CONVENTIONAL WEAPONS, WHICH MAY BE DEEMED TO BE EXCESSIVELY INJURIOUS OR TO HAVE INDISCRIMINATE EFFECTS The high contracting parties, recalling that every state has the duty in confirming with the Charter of the United Nations to refrain in its international relations, from the threat or use of force against the sovereignty, territorial integrity, or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. Further, recalling the general principle of the protection of the civilian population against the effects of hostilities. This is based on the principle of International law, that the right of the parties to an armed conflict to choose methods of warfare is not unlimited. Also, on the principle that prohibits the employment in armed conflicts of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. More so, it is prohibited, to employ methods or means of warfare, which are intended, or may be expected, to cause widespread, long-term and severe injury. 3) Expression of consent to be bound by any of the protocols annexed to this convention shall be optional for each state, provided that at the time of the deposit of its instrument of ratification, acceptance or a approval of this convention or accesses thereto, that state shall notify the Depositary of its consent to be bound by any two or more of these protocols.
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Article 5 _ Entry into Force 1) This convention shall enter into force six months after the date of deposit of the twentieth instrument. Of ratification, acceptance, approval or accession: 2) for any state which deposits its instrument of ratification, acceptance, approval or accession after the date of the deposit of the twentieth instrument of ratification, acceptance, approval or accession, this convention shall entre into force six months after the date on which that state has deposited its instruments of ratification, acceptance, approval or accession. 3) For any state which notifies its consent to be bound by a protocol annexed to this convention after the date by which twenty states have notified their consent to be bound by it, the protocol shall enter into force six months after the date on which that state has notified its consent so to be bound. Article 6 – Dissemination The High contracting parties undertake, in time of peace as in time of armed conflict, to disseminate this convention and those of its annexed protocols by which they are bounds as wifely as possible in their respective countries and in particular to include the study thereof in their programmes of military instruments, so that those instruments may become known to their armed forces. Article 7 – Treaty relations upon entry into force of this convention. 1. When one of the parties to a conflict is not bound by an annexed protocol, the parties bound by its convention and that annexed protocol shall remain bound by them in their mutual relations. 2. Any High contracting party shall be bound by this convention and any protocol annexed thereto which is in force for it, in any situation contemplated by Article, in relation to any state which is not a party to this convention or bound by the relevant annexed protocol, if the crafter accepts and applies this convention or the relevant protocol, and so notifies the depositary. 3. The Depositary shall immediately inform the High contracting parties concerned of any notification received under paragraph 2 of this Article Article 8 – Review and amendments 1. At any time after the entry into force of this convention, any High Contracting Party may propose amendments to this convention or any annexed protocol by which it is bound. Any proposal for an amendment shall be communicated to the Depositary, who shall notify it to all the High Contracting Parties and shall seek their views on whether conference should be convened to consider the proposal. If a majority, that shall not be less than eighteen of the high contracting parties to agree, he shall promptly convene a conference to which all High contracting parties shall be invited. States not parties to this convention shall be invited to the conference as observers. Article 9 – Denunciation 1. Any High contracting party may denounce this convention or any of its annexed protocols by so notifying the Depositary 2. Any denunciation of this convention shall be considered as also applying to all annexed protocols by which the deforming High contracting party is bound. 3. Any denunciation shall not affect the obligations already incurred, by reason of an armed conflict, under this convention and its annexed protocols by such denouncing high contracting. Article 10 – Depositary The Secretary – General of the United Nations shall be the Depositary of this convention and of its annexed protocols 307
Article 11 – Authentic texts. The original of this convention with the annexed protocols, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Depositary, who shall transmit certified true copies thereof to all states. Protocol on Non-Detectable fragments (1980 protocol 1) It is prohibited to use any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays
APPENDIX XXX Charles Taylor and Others Prosecuted Ten Years After The Liberian Civil War Had Ended Prof. Akinyemi should have been a prophet, but he was not finished, “Africans, “he continued, “were baffled [by Taylors arrest], and quite a lot of people (puzzled at the timing of the arrest warrant wondered at the motive of the chief prosecutor of the special Court for Sierra Leone) who also happened to be an American. At this juncture, one must wonder at how American domestic opinion and an administrator that are basically hostile to their citizens being tried by any international tribunal, and who have gone to a considerable extent, both legally and illegally ,to undermine the credibility of the international judicial system, would now be the arrowhead of the firestorm during Taylor. It simply shows the capacity for hypocrisy. One can thus understand from the fury emanating from Africa about President Bashirs” indictments which like Taylors’, has been orchestrated from beyond Africa’s border with Americans hand deep in the mire. Little wonders, why Africa is angry now. Does the continent feel unduly targeted by the ICC? Or has Africa just realized the danger of allowing itself to be seduced by America in Western propaganda in Taylor’s case, and thus permitting the “purveyors of justice” to come for more? In short have the scale finally fallen from African eyes? At the moment there are more questions than answers; and despite all the fury coming from Africa, no one has as yet put up a coherent case of why the continent should be angry now when it wasn’t, in Taylor’s case. Why nobody has answered these questions are in themselves baffling. First, there are many similarities between the manner in which Taylor’s indictment was handled by the UN-backed special court for Sierra Leone (which later flew him in chains to the ICC), and the manner in which the UN backed ICC has handled Bashir’s indictment. Perhaps, Millius Palayiwa comes close to resolving it when he reveals in his aforementioned article that ‘By October 2007, the ICC prosecutors Luis Moreno Acampo, had received two thousand, eight hundred and eighty-nine (2,889) communication about war crimes and crimes against humanity in at least one hundred and thirty-nine (139) countries and yet by march 2009, the prosecutor had opened an investigation into just four cases; Uganda, Congo DR, the central African Republic, and Sudan/Darfur. All of them in Africa’ Thirteen public warrant of arrest have been issued, all against Africa.
TARGETING AFRICA? In Taylor’s case, there was a homegrown African solution in progress at the time of indictment in 2003.Infact, on the very day his indictment was announced by the special court in Sierra Leone on 4th June 2003; Taylor was in Ghana attending 308 peace talks sponsored by African union and UN, aimed at ending Liberia’s ever expanding war and humanitarian catastrophe. Five African presidents (including the host, John Agyekum Kufuor, the then chairman of ECOWAS) were at talks. The others were South Africa’s Thabo Mbeki; Mozambique, Joaquim Chissano (the then AU chairman), Nigeria’s Olusegun Obasanjo; and Sirrea Leones’ Ahmad Tejan Kabbah . It was a high powered African delegation trying to find an African solution to an African problem. Yet, the chief prosecutor of the special court of Serra Leone an American Lawyer, David Crane, felt no compulsion in disrespecting the African leaders in their initiative for peace and reconciliation, and went ahead and emailed the indictment to the Ghanaian government , asking president Kufor to push peace talks aside and arrest Charles Taylor and hand him over to the special court. Even more disturbing was the fact that the indictment had been approved and sealed by the special court on 3 March 2003, but kept secret until 4 June, the day of the Liberian peace talk in Accra. It was clear that David Crane’s motive was to disrupt the peace talks painstakingly put together by the African leaders. According to Crane himself, in a testimony to the US subcommittee on Africa, Global Human Right and International Operations that he gave on 8 February 2006; “The indictment (was ) sigedn in a moving ceremony on 3 March 2003,in my office in Free Town Sierra Leone.I told the assembled trial council and investigators that the ghost of 100,000 Sierra Leoneans are in this room right now. On sealing of the indictment against Charles Taylor on the day he arrived in Accra, Ghana, for the peace talks in june 2003was a calculated move on my part to publicly strip, in front of the world this war lord of his power by my signature on the indictment. It was never intended to force his transfer that day to the tribunal, though we would have accepted him and was ready to arraign on the charges within the indictment immediately”. Our major aim of attaching this article to this work was not to sympathize with the African leaders on Taylor’s arrest, rather, to prove that the law governing Armed Conflicts were not effectively implemented in the Liberian Civil war. This is because the Liberian war criminals were not immediately punished. Hence, Tailor and others were prosecuted ten years after the war had ended.