WHEN TWAIL MET CIVILIAN PROTECTION: ANALYSING THE IMPACT OF THE KIGALI PRINCIPLES IN AFRICAN CIVIL CONFLICT.

• Author: Bun, Laura Ham
• Position: Third world approaches to international law theory

I INTRODUCTION

Civil conflict in Africa was such a fixture on the news that most incidents of violence and tension didn't make headlines - then the Rwandan genocide happened. The world was unable to ignore the horrific civilian consequences and the outcry for international intervention in order to protect the innocent victims of conflict has reverberated since. (1) Since then, protection of civilians ('PoC') and the responsibility to protect doctrine ('R2P') have been front and centre in debates on international law. (2) A key theory that has influenced that discussion has been Third World Approaches to International Law ('TWAIL') which has argued for an overhaul of the current system in order to dismantle colonial-reminiscent power structures. Several of the recommendations of this theory were recently embodied in the drafting and implementation of the Kigali Principles, which were negotiated in Rwanda and specifically target PoC and R2P. This article seeks to assess the efficacy of these Principles in practice and identify what their effect has been, and use this to extrapolate conclusions as to the most valuable elements of TWAIL theory when applied to PoC in Africa. In order to overcome inherent metrics issues in assessing civilian protection measures and outcomes, the analysis will rely on comparative case studies of Cote d'lvoire and Sierra Leone, as well as references to other nations when relevant. This research demonstrates that protecting civilians is an extremely nuanced issue requiring both pragmatism and cultural sensitivity, something that neither the status quo nor purist TWAIL theory provides completely; rather the two approaches should operate complementarity to find that balance. It can be shown that the binary implicit in TWAIL theory is misguided, and rather the contribution of the theory is best placed as a way to evolve the international legal system as opposed to reconstruct it.

II DEFINITIONS

The protection of civilians in conflict and post-conflict zones has been an increasingly developed concept within international law since the Cold War. (3) The overarching international legal principles are found in International Humanitarian Law (IHL) (including in customary international law and treaties such as the Additional Protocol to the Geneva Convention), and were recently expanded on by the Kigali Principles. (4) Rule Six of the ICRC's customary law study of IHL states that 'civilians are protected against attack, unless and for such time as they take a direct part in hostilities'. (5) Numerous international institutions and regional groups have created law to this effect, and the international law codifying this principle will be assessed in detail in part two. There is a large body of academic and institutional commentary on how to define the concept of civilian protection, so this essay will reference the most uncontested, core elements of the definition when assessing the efficacy of regional and global treaties. It should also be noted that the validity of the intersection between R2P and PoC will not be substantially dissected past the TWAIL critique and will be assumed under current international law, since it has been largely put into practice and this discussion deals only with its efficacy. (6)

The ICRC customary law study's commentary defines protection as protection from a direct attack by combatants, and references the underlying concept of the Geneva Convention, 'respect for the human person'. (7) IHL gives comprehensive detail on exactly what groups of persons are protected and what forms on indiscriminate warfare should be avoided. (8) It has also been acknowledged that protection from violent or arbitrary attacks is afforded to those under the control of an adversary as well as those directly affected by military operations. (11) These definitions are relevant to post-conflict zones where civilians might be affected by adversary occupation. Defining 'take a direct part in hostilities' has been a highly debated issue, especially following the Yugoslavia trials. (10) The many ways civilians may have a part in armed conflict can range from directly being a part of combat to assisting with funding and political support, and these non-direct contributions can go part way towards explaining some of the reasons for continuing civilian violence." This article is going to focus on the development of international law and its ability to influence this issue, so it will use the general definition set out by the Inter-American Commission on Human Rights, as referred to by the ICRC, which states 'a direct part' is defined as 'acts which, by their nature or purpose, are intended to cause actual harm to enemy personnel and materiel'.' (2) Finally, an area of difficulty arises in determining when PoC applies: whether it applies only to ongoing armed conflict or also to post-conflict zones. (13) Since in practice it is generally also acted on as if applicable to post-conflict zones and both international law and academic discourse reflects this, it will be presupposed that the principle is applicable to both. (14) Whilst these are the definitions that this article will reference as constituting civilian protection, it is important to note that many international institutions measure violence against civilians differently and defining civilian protection is a highly contested issue in and of itself. (15)

IHL operates alongside international human rights law (IHRL) and each shaped the development of the other historically, and each continues to bear weight in the interpretation, application and enforcement of the other. IHRL necessarily connotes the integrity of personhood through the United Nations Declaration of Human Rights and the many other rights-based treaties ratified since. (16) IHRL treaties continue to apply during times of armed conflict as part of customary human rights law. (17) IHRL does not, however, contemplate conflict directly as opposed to IHL. (18) The United Nations Declaration of Human Rights does not directly engage with how to protect civilians in armed conflict. (19) Whilst IHRL applies in all circumstances and at all times, IHL applies specifically in times of armed conflict and directly addresses situations specific to conflict; IHL is considered the lexspecialis. (20) IHL often mirrors IHRL and leans on the interpretive norms of customary international law, however to undertake a comprehensive analysis of this interaction is outside the scope of this article and is not necessary for the strength of the assertions being made. (21) For these reasons this article will predominantly reference IHL as the core body of customary international law in respect of armed conflict, whilst it acknowledges that a lot of the protections asserted are strengthened by IHRL and are therefore understood in that context.

Slim highlights that in order to have a productive discussion about improving protection of civilians, one of the first steps is to acknowledge the inherent ambiguity of the concept and proceed on a pragmatic basis that accepts those grey areas and focuses on the core constructs of protecting civilians from attack. (22) This is especially difficult when assessing the efficacy of broad-brush international law such as the Kigali Principles; there is an inescapable uncertainty in trying to distinguish sequence from cause. Therefore in determining how effective various bodies of international law are at protecting civilians, this article will amalgamate a variety of different metrics and measures of success as comprehensively as possible, whilst acknowledging the inevitable discrepancies across definitional frameworks.

Ill MEASURING CIVILIAN PROTECTION

Despite numerous attempts to clearly define what exactly the law on protecting civilians entails, research on the efficacy of THL and civilian protection provisions in 'hard' law still faces an upward battle when it comes to measuring the impact of conflict on civilians in a quantifiable way. (23) This creates difficulties in drawing conclusions regarding the efficacy of different legal frameworks and the impact of individual conflicts on civilian populations. The killing of civilians or civilian massacres are broadly accepted metrics of civilian protection. (24) Internal displacement and other forms of violence, especially sexual violence, are also standard inclusions in civilian protection statistics, since they are uncontentious elements of the definition of an attack. (25) Unfortunately, 'killing of civilians' is still not a homogenous measure of violence against civilians; many civilians die in conflicts due not to direct attack but rather the destruction of public health services or housing. (26) In order to be able to utilise data and draw conclusions, this article will use a variety of these metrics but will endeavour to account for any discrepancies in data collection methodology. Other, less quantifiable metrics can also be utilised in forming a judgment on the efficacy of agreements; political involvement, especially willingness to negotiate or attend mediations on civilian protection, is another critical factor that can be affected by regional policy. (27) This is particularly relevant across Africa, where many conflicts involve rebels or other non-government insurgent groups. (28) This too has its pitfalls, however, since it is harder to trace what triggers changes in political and social culture and the answer can be a web of complex influences. This article will need to address this issue and will consider the strength of correlations as the most reliable indicator, once again though attempting to allow for the nuances of distinct cultures and circumstances. To make the conclusions more meaningful, comparative case studies will be used both within nations and between them: this will allow some way to ascertain what progress actually looks like and what the better and worse standards of...