Customary Approaches to the Law of Armed Conflict

Customary Approaches to the Law of Armed Conflict

Author: Akashmika Jena, University Law College, Utkal University, Bhubaneswar

Abstract

Since the inception of mankind the term of conflict was always prevalent, be it fight for food, or any other survival instinct, but one thing that has always been there is the fact that in some or the other way there have been laws governing that conflict. Even in medieval period, when the idea of consuming territories was on high, there were laws of war governing the conflict and it was expected that both the parties willfully accepts them.  In this article we will be trying to understand the concept and ideas of  protection of human rights and how they can be included and be made a part of contemporary Humanitarian Law. There have been ideas which have come straight from the cultural buildups of tribe and their aspiration of a society build on equality and respect for other community . The viewpoint that while trying to understand the role of the state actors we cannot forget to include non-state actors in developing laws for society reflect that all the states that have been peaceful or aspire to be peaceful knows that the only way to achieve this is by inclusion practices and ideologies. Since this article emphasis on the practices followed by various African communities, therefore we will try and compare the idea and their application in today’s world. A study conducted by the Geneva cell recently showed that it is very necessary that inclusion must be made for better development of International Humanitarian Law.

Introduction

When we look at the approach followed by the analyst of modern times we find that most of them have tried to show that what were the approaches followed by the communities around African continent but very few have tried to inculcate them and tried to find traces of them in recent developments that have occurred in Humanitarian Law. However in the mind of storyteller the codes governing the armed conflict are still very much present and can pave the way for the development of recent laws. If we take a look at conditions in Yemen we can understand that a more vibrant approach would have prevented the loss of lakhs of people and crores who have been displaced from their  homes and forced to live a life of  refugee or take shelter in neighboring countries.[1]

The following article will show us as to how by drawing conclusion from ancient laws we can formulate the new standards for the growing society and modern approach. The author is putting forward a view that there are lot of anomalies that are present in the modern law and we can do away with them by including certain practices that still good in these times. In this article I shall be discussing the advantages and drawback that we might face during implementation of human rights approach. Further, the involvement of non-state actors and there approach towards promoting peace and equality and lastly, a need for a definitive framework where domestic courts and various mechanisms and bodies can come together to form a precedent for authorities to follow.

Now let us try and understand important terms that are very basic in order to under IHL from the roots of it. Firstly, Conflict prevention, which could be defined as a strategy and approach adopted by different actors of a state in order to maintain the situation of peace and avoid turmoil. It promotes more stable environment for peace to flourish and healthy environment.

On the other hand Conflict management could be described as trying to limit the conflict by applying measures at a very grassroot level by mitigating factors which increase the extent of conflict.[2] Here in such situations the main role is played by various non-governmental institutions and other bodies. The best approach among all these methods is to start from prevention then come to management of issue and finally try and devise a management plan which can be effectuated from immediate action.

Approach of developing countries or less- developing nations(third world) towards IHL

The idea for choosing African continent was most of its parts were once colonies and had faced years of oppression in the form of slavery and racism. International Humanitarian Law is biased towards the Western countries because of their dominance in the world and this creates a dynamism of difference.[3]

The way the under developed countries look towards the development of International Law needs to be highlighted because they have for long suffered due to aspiration of other countries which have just used them to showcase their power. Here we need to understand the receptor approach. Now the question that comes up is what is receptor approach. This approach means and includes identifying cultural holding institutions and norms making institution that have in some way contributed to the development of Human Rights. Basically this approach advocates the fact that while we talk about society which has suffered we need to make sure that changes occur at the very basic level instead of making agreements which are difficult to implement.

While the positivists usually hold the view that the states are obligated to make peace treaties and treaties are the only possible solution to achieve peace situation, the receptor approach is more inclined towards cultural institutions and the norms set out by them. It is needed that traditional rules that were once prevalent be researched properly again and be included while making laws and also be included in subject matter of treaties. It is very important that legislators from all over the world study each other customs and legal traditions while forming policies, and because of this there will be a systematic cooperation and management instead of confrontation from both the sides. Hence it is very essential that traditional African approaches be understood and meanings may be derived out from them so that peace can be restored in several parts of world without implementing harsh policies. A suggestive measure would be to involve more non state actors and also putting obligations on different state actors and international organizations to plan and restructure the traditional approaches into more inclusive form. Traditional approaches carry with them mechanism which help not only with prevention but also effective resolution and transitional justice methods.  

Problems associated with Modern form of International Humanitarian Law

The nature of the IHL is very volatile and is varies from territory to territory. It reflects what state wants and what idea they want to implement in their countries, this makes the role of non-state actors negligible. Usually in state with armed conflicts there  are cases of gross  human rights violation. The applicability of human rights obligation in a state which is already undergoing conflict is very difficult to achieve, because lot of non-state actors believe that the idea of human rights is very westernized and everywhere the situation is not same. However, a sociologist Daragh Murray argues against this, he believes that if the armed rebellious groups be made of human rights violation they might change their path because sometimes for them liberty means  standing for the cause of their population and if they see that they can help their locals in this way, they will surely help.

In this changing world, the conflicts have also become two-faced and now they are governed by multiple factors which makes it even harder to adopt simple engaging measures. Now what measures can be adopted to curb this is that we can include and go for more traditional measures, measures which according to the rebellious groups are of their own. This could only be made possible if the approach adopted is soft in nature, because certain norms and traditional approaches make them more obligated to follow  it.  The Geneva cell which has done this research came up with a viewpoint that while all this was going on they were particularly helped by these armed groups and the research findings show that if the demands, which are not actually demand but mere norms that they follow are completed then they agree to cooperate while monitoring the changes.

Another notable development has been done by the African Union as it has decided that in next fifty years it aims to bring down violence to zero percent[4]. This also promotes the fact that even if the IHL appears to be westernized idea it still has some application in third world countries also and it is not a product of ideologies of one part of world but a cumulative effort of all countries of world. The research studies in various parts of Africa shows that values carry the structure of African society and this mainly means upholding the principles of Humanity, solidarity and Interdependence among other nations. These laws are orally made and then they became a part of society just like customs, and they have been following this practice from a long time now, any law which is made for their benefit must include the norms set out by them if the organizations want them to prevail.

Conclusion

UDHR was signed in 1948 still even after 70 years of practice the conflicts exists and a middle path is yet to be reached. Humanitarian Law aims at development of ideas which would curb violence in a state. In this article I have discussed the problems of  conflict in African continent and how problem can be resolved by adopting traditional approaches like the one they have been following for centuries and continue to follow them. Learning about the local traditions and cultures will help the legislature to form laws that avoid any form of hostilities. It has been argued that the acceptance of receptor approach is difficult to accept, still it gives you a fair idea that, because it connects the societies and it is for them that the laws are made the approach is the only possible way out of situation like unending conflicts. If once adopted in its truest sense, the approach can also help us understand other problems like large scale displacement or change in migration pattern among various other issues.


[1]  See also Mutoy Mubiala, ‘International Humanitarian Law in  African Context’ in Monica Kathina Juma and Astri Suhrke, Eroding Local Capacity: International Humanitarian Action in Africa( Nordiska Afrikainstitutet 2002) 49

[2] Fred Tanner, ‘Conflict Prevention and Conflict Resolution: Limits of Multilateralism’ (2000) 82(839) International Review of Red Cross 541.

[3] Antony Anghie, ‘Imperialism, Sovereignty and the making of International Law (Cambridge University Press 2004)

[4] See African Union, ‘Agenda 2063: The Africa we want’ Background note(2005) https://au.int/sites/default/files/documents/33126-doc-01_background_note.pdf%3e

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