03 Jun Ensuring Respect for International Humanitarian Law in South Sudan: Possible Actions by Kenya and Uganda
[The author is a Lecturer in International Humanitarian Law at Egerton University.]
Contemporary armed conflicts in Africa and elsewhere continue to pose significant challenges for the legal protection of life, limb, livelihood and property of the individuals and communities caught up in those situations. Most of the unlawful conduct that typifies recent armed conflicts in Africa – including intentionally directing attacks at civilians and civilian objects, use of rape as a weapon of war, recruitment and use of child soldiers, forced marriages and wanton destruction of cultural property – is explicitly prohibited under international humanitarian law (IHL) and is also criminalized by international criminal law. One explanation for the persistence of such violations of IHL is the lack of accountability by the perpetrators coupled with the absence of effective mechanisms for ensuring respect for and compliance with IHL.
International(ized) criminal tribunals and courts have made creditable contributions toward the enforcement of compliance with IHL, as have the international and regional mechanisms established under human rights treaties. But the efforts of these bodies have not been entirely satisfactory. This is evident in the continued search by international organizations such as the International Committee of the Red Cross (ICRC) and the United Nations (UN) for ways to strengthen compliance with IHL. Trends in international security policy in the last two decades indicate growing recognition of the need for a collectivist approach to prevention and repression of violations of IHL. This is an approach whereby all States, irrespective of whether or not they are directly involved in or affected by an armed conflict, have a duty to prevent and punish violations of IHL in that conflict. The tendency toward collectivist action is exemplified by concepts like ‘responsibility to protect’, ‘humanitarian intervention’ and ‘protection of civilians’.
IHL similarly provides a basis for a policy of collectivist action by third States. States parties to the Geneva Conventions of 1949 have a general legal obligation to respect and to ensure respect for IHL. Indeed, the text of Article 1 common to the four Geneva Conventions of 1949 (hereafter ‘Common Article 1’) states that: ‘The High Contracting Parties undertake to respect and ensure respect for the present Convention in all circumstances.’ While the treaty law undertaking to ‘respect’ is readily understandable and uncontroversial, the phrase ‘ensure respect’ has given rise to competing interpretations. One view holds that Common Article 1 only obliges States to adopt all measures necessary to secure respect for IHL by their national armed forces and other forces under their command and control. This is the restrictive and inward-looking view. Another view maintains that besides duties relating to armed forces under their control, Common Article 1 also obliges States to take all measures to ensure compliance with IHL by other States and non-State armed groups. This is the extensive and outward-looking view.
The book , which is the subject of the present commentary, takes the latter view that Common Article 1 does place ‘a duty, and not simply a right, to take action to ensure respect for IHL’ and further that ‘it imposes positive obligations on State parties requiring them to take some actions to stop violations of IHL’. On the basis of that extensive and outward-looking interpretation, the book chapter by Dr Ken Wyne Mutuma, explores the practical ways in which Kenya and Uganda (as influential neighbouring States) can discharge their Common Article 1 obligations by taking certain actions to ensure respect for IHL in the armed conflict in South Sudan.
The Armed Conflict in South Sudan and Its Broader Significance for IHL
The armed conflict in South Sudan provides an instructive case study for the possible ways in which third States can contribute directly to encouraging and ensuring respect for IHL. At least three reasons can be given for this. First, the armed conflict in South Sudan is one of the longest-running conflicts in Africa, having begun as a civil war of secession from Sudan and subsequently transforming upon independence into a non-international armed conflict between governmental armed forces and various non-State armed groups within South Sudan. Secondly, like most conflicts in Africa, the armed conflict in South Sudan revolves around ethnic identity, discrimination and its impact on access to resources. Thirdly, there have been variable degrees of intervention by third States in the armed conflict in South Sudan, be it as belligerents, peacekeepers, advisors or mediators.
Taken cumulatively, the above attributes of the armed conflict in South Sudan reflect tendencies of the intractable armed conflicts in the Democratic Republic of Congo and Somalia. As such, some of the measures proposed for ensuring respect for IHL in South Sudan may apply with appropriate modification to these and other African contexts. Besides the suitability of the armed conflict in South Sudan as a case study for ensuring respect for IHL, it is equally notable that the choice of Kenya and Uganda as third States is sound. This is because Kenya and Uganda are much better placed than other neighbouring States to discharge the Common Article 1 duty to do all that is reasonable in their power to influence, encourage and where necessary to coerce the parties to the armed conflict in South Sudan to comply with IHL. A number of reasons can be given to support this observation.
First, both Kenya and Uganda have enacted national legislation to give effect to the 1949 Geneva Conventions and their Additional Protocols, as well as to the relevant provisions of the Rome Statute of the International Criminal Court. Secondly, both Kenya and Uganda are influential geopolitical actors in the East African region in general and particularly insofar as the armed conflict in South Sudan is concerned. Thirdly, both Kenya and Uganda have substantial political and socioeconomic interactions with South Sudan, including: (i) serving as routes for imports into South Sudan; (ii) provision of financial services and investment opportunities for South Sudanese nationals and corporations; and (iii) hosting large populations of South Sudanese nationals. The wide-reaching scope of these interactions indicates that Kenya and Uganda have the capacity to leverage their collective influence over the parties to the armed conflict in South Sudan so as to secure compliance with IHL.
How Kenya and Uganda Can Ensure Respect for IHL in South Sudan
Having established the salience of Kenya and Uganda as third States that can prevent and stop violations of IHL in South Sudan, the next crucial issue is how that can be achieved. In his book chapter, Dr Mutuma methodically canvasses the possible measures through which Kenya and Uganda can fulfil their duty to ensure respect for IHL by both governmental actors and non-State armed groups in South Sudan. In particular, the proposed actions can be classified into four categories: (i) preventing individuals from profiting from IHL violations in South Sudan; (ii) diplomatic efforts for peacebuilding; (iii) prevention and punishment of war crimes; and (iv) preventing trade in arms. These specific measures, their underlying rationales and likelihood of success will briefly be examined below.
Preventing Individuals from Profiting from IHL Violations in South Sudan
South Sudan relies heavily on both Kenya and Uganda as conduits for imports into its territory. These imports include commercial goods and services as well as military equipment. The two countries are also strategic trade and development partners of South Sudan, and this has seen the banking and real sectors of Kenya and Uganda becoming the destination of funds tainted with the atrocities in the armed conflict in South Sudan. The key point identified in Dr Mutuma’s book chapter is the need for greater vigilance on banking and real estate transactions that are intended to launder illicit funds. This necessarily requires targeted use of legal and policy tools to prevent violators of IHL and their associates from profiteering from serious breaches of IHL.
Some of the examples of targeted sanctions identified in Dr Mutuma’s chapter include punitive bilateral trade and investment measures against the government of South Sudan, banning the acquisition of property in Kenya and Uganda by individuals on the UN sanctions list for war crimes, as well as confiscation of the property of such individuals if it can be objectively shown to be linked to war crimes. Other measures which are supported by IHL treaty provisions such as Article 147 Geneva Convention IV include freezing of illicit funds in the banks of third States and preventing importation by sanctioned individuals of luxury goods.
Preventing and Punishing War Crimes in South Sudan
Closely related to preventing individuals and groups from enjoying the illicit proceeds of IHL violations is the Common Article 1 obligation of third States to prevent and punish war crimes. Both Kenya and Uganda have enacted legislation criminalizing violations of IHL that amount to war crimes and prescribing the penalties on conviction. More significantly, Kenya’s International Crimes Act 2008 and Uganda’s International Crimes Act 2010 incorporate the legal principle of universal jurisdiction, and this enables their respective national courts to prosecute individual perpetrators of war crimes regardless of the location of the crime or the nationality of the victims of the crime. This means that it is possible and, as Dr Mutuma asserts, incumbent on Kenya and Uganda to exercise jurisdiction over individuals from all parties to the armed conflict in South Sudan who have committed war crimes.
However, the practicability of war crimes prosecutions by national courts in Kenya and Uganda of suspected South Sudanese war criminals under the current circumstance is less promising. For one, it is highly likely that the government of South Sudan will be unwilling to assist in war crimes investigations, particularly where such assistance may implicate members of its armed forces. Another difficulty that Dr Mutuma identifies in the case of Kenya is the lack of a ‘special prosecution unit’ with the necessary capacity to effectively prosecute serious breaches of IHL. In Uganda’s case he notes that, though it has had experience adjudicating war crimes committed by the Lord’s Resistance Army (LRA) in Ugandan territory, impartiality concerns are likely to arise regarding its judicial approach to war crimes committed by South Sudanese nationals on South Sudanese territory. This is partly due to its partisan role as a belligerent in the armed conflict in South Sudan and partly because of the unequal approach of Ugandan courts when adjudicating cases of alleged war crimes by Ugandan forces vis-à-vis those of LRA fighters.
Using Diplomatic Pressure for Peacebuilding in South Sudan
Peacebuilding by means of diplomatic tools and tactics is another measure available to Kenya and Uganda to instil and maintain an attitude of respect for IHL by the parties to the armed conflict in South Sudan. Recognizing the dissimilar roles of Kenya as a neutral State and Uganda as an erstwhile belligerent in the armed conflict in South Sudan, Dr Mutuma’s chapter focuses on the benefits that can be derived from the differentiated yet complementary status and roles of these two countries. Kenya could use its mediator status to engage in discreet negotiations with the South Sudanese government and the non-State armed groups involved in the armed conflict. Uganda, for its part, can use its previous status as a co-belligerent fighting alongside the South Sudanese government to urge governmental forces to refrain from conduct that violates IHL.
Where the above measures prove unsuccessful, both Kenya and Uganda can employ stronger diplomatic tactics to goad the parties into respecting IHL. Such tactics may include, but are not limited to, lodging formal protests with the High Commission of South Sudan, recalling or expelling diplomatic representatives, and using public denunciations of the actions of a party to the armed conflict in South Sudan or against particular individuals who are implicated in serious violations of IHL arising from that armed conflict.
Despite the utility of these diplomatic measures in influencing the conduct of the parties to the armed conflict, neither Kenya nor Uganda has made recourse to them. This is a matter of concern since there is credible information available to both Kenya and Uganda implicating individuals known to be resident in these third States in horrific violations of IHL in South Sudan. That such information is readily available is corroborated by the UN sanctions list for war crimes in South Sudan. The reluctance to exercise diplomatic pressure is similarly evident in the failure by Kenya and Uganda to explore fully and utilize efficiently the regional mechanisms of the East African Community (EAC) as tools for peacebuilding. Dr Mutuma notes that even though Kenya and Uganda are the ‘two most powerful players’ in the EAC, no effort has been made by them to impress on South Sudan (which joined the EAC in 2016) the need to respect IHL.
Preventing Trade in Arms Destined for South Sudan
What is arguably the most urgent measure that Kenya and Uganda can take to prevent violations of IHL in South Sudan is to ensure that their respective territories are not used for trafficking in arms destined for use in the armed conflict in South Sudan. This measure flows from the positive duty under Common Article 1 to stop and prevent breaches of IHL by belligerents during armed conflict. In 2018, by its resolution 2428 (2018), the UN Security Council imposed a general arms embargo on South Sudan with the objective of stopping the in-flow of weapons likely to be used to commit violations of IHL in South Sudan. That arms embargo was subsequently renewed on several occasions and remains in force today. What this means for Kenya and Uganda is that if their respective actions or omissions should result in their territories being used as conduits for arms trafficking into South Sudan, it could attract international legal responsibility.
To illustrate the importance of the prevention of trade in arms and the difficulty of implementing it, Dr Mutuma uses the case of two large shipments of arms to South Sudan via Kenya’s port by a Chinese arms manufacturer. He notes that, on the one hand, an arguable case could be made that the alleged role of Kenya in facilitating the conveyance of arms despite the embargo does implicate its international legal responsibility. Yet, on the other hand, that argument may come up against two challenges: (i) the evidentiary challenge of lack of proof of Kenya’s complicity; and (ii) the technical challenge of whether or not the arms were purchased before the imposition of the embargo. Even so, these possible challenges do not diminish the validity of the rule that failure by a State to exercise due diligence resulting in the use of its territory to traffic arms to an active conflict zone where they will likely be used to commit atrocities engages its international legal responsibility.