The protection of human dignity under international law is the principal theme of Jennifer Moore's book Humanitarian Law in Action within Africa. There are four ‘sister branches’ of international law concerned with preventing, alleviating and remedying armed conflict. These are international humanitarian law (IHL), human rights law (HRL), international criminal law (ICL) and international refugee law (IRL). In order for the purposes of humanitarian law to be fulfilled, its three sister branches of law must operate to support it, although IHL is rightly characterized as the key branch underpinning transitional justice and social transformation in countries emerging from prolonged civil wars
Part I of the book concerns the international legal rules for conflict resolution and encompasses five chapters. Under the mantel of ‘human fundamentals of international law’, Chapter 1 establishes the overarching framework and language of public international law, recalling its essential purposes, primary sources as well as the key implementation and enforcement mechanisms, thereby establishing the foundation for the detailed treatment of the four sister branches of law which respond most directly to the need for protection in armed conflict.
The law of armed conflict governs the ‘whether’ and ‘how’ of war, and is the subject of Chapter 2. When a State decides to go to war unlawfully, resorting to military force without legal justification, it commits an act of aggression, while the conduct of a State waging war in an unlawful manner amounts to a violation of IHL and is characterized as a war crime. With its origins in the Geneva Conventions and in Common Article 3, IHL therefore aims at alleviating the suffering caused by war.
International human rights law is known as the law of human dignity. It is arguably ‘the most comprehensive of the four fields of international law concerned with conflict resolution’ and operates in all times and places. It derives not only from custom and general principles, but also from a range of international treaties that follow the Universal Declaration. Chapter 3 provides an excellent introduction to these treaties, which includes the two Covenants (ICCPR and ICESCR), and a number of specialized UN-sponsored treaties and their protocols (such as the ICERD, CEDAW, CAT), as well as regional instruments such as the African Charter of Human and Peoples Rights (Banjul Charter), the European Convention on Human Rights, American Convention on Human Rights (protocol of San Salvador) and the Arab Charter on Human Rights. Also covered are the human rights provisions in national constitutions of the countries surveyed in the latter part of the book, illustrating the degree to which national constitutions have incorporated both civil and political rights and economic, social and cultural rights.
International criminal law provides accountability for crimes of war and crimes against humanity. It focuses on prosecuting fugitives from justice and holding individuals accountable for offences committed against the international community. International crimes include any wrongful acts defined as such by customary international law or international treaties, from piracy to human trafficking to terrorism and torture. In Chapter 4 Moore considers the genesis of ICL starting with the Nuremberg Tribunal which, despite well-known criticisms, promulgated jurisprudential principles that have endured. Also discussed are the ad hoc tribunals for former Yugoslavia and the tribunal for Rwanda, both of which were established by the UN Security Council, subject to temporal and geographic limitations, in contrast to the more open-ended treaty-based Nuremberg Tribunal and International Criminal Court (ICC). A key contention of Moore's theoretical analysis is that international criminal justice should include restorative justice, aimed at the transformation and healing of the society itself. She argues quite persuasively that alternative justice mechanisms can and should be used to complement retributive dimensions. She also recalls the oft-noted critique that ICC prosecutions are one-sided, based on the near exclusive prosecutorial focus on rebel actors in civil conflict even where there are accusations of human rights abuses on the part government troops.
International refugee law protects individuals fleeing war, persecution and armed conflict. Since 1951 the definition of a refugee has been a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, seeks asylum in another nation. Nevertheless, IHL continues to grapple with the needs and rights of internally displaced persons (IDPs) and given the similarities in their circumstances, some agencies refer to refugees and IDPs together within the broader category of ‘forced migrants’. Chapter 6 summarizes the core provisions of the 1951 Refugee Convention, and relevant regional instruments such as the Cartagena Declaration and the Kampala Convention, nothing the expansion of legal protection for refugees in these later instruments and the broadened reach of international agencies' mandate to cover IDPs. Also discussed is the endorsement by UN members of the ‘responsibility to protect’, raising the prospect of humanitarian intervention if States neglect their own displaced citizens in violation of international human rights obligations. Moore offers a compelling analysis of the symbiotic relationship between protection of both refugees and IDPs and the ways in which sharing humanitarian aid with governments and host populations enhances the de facto protection afforded refugees.
Part II builds on the theoretical foundation of Part I with an analysis of the tools needed for the practical implementation of IHL and post-conflict reconstruction in Africa. Chapter 6 begins with an analysis of courts as the classic means of IHL implementation; it goes on to assess the role of four other ‘tools’ of implementation: the media, development and communities and a review of their roles and contribution to IHL. Moore notes the role of international courts as the enforcers of international law which is particularly important in the case of war crimes, crimes against humanity and genocide. Along with the ICC, international tribunals work to implement IHL norms through individual criminal accountability. This is exemplified in the work of the Special Court for Sierra Leone (a hybrid which does not involve either the establishment of an ad hoc tribunal by the UN Security Council or an ICC prosecution), the ad hoc tribunals for Yugoslavia or Rwanda, and the Uganda High Court War Crimes division.
In its version of the ‘accountability continuum’ Uganda has reconceived restorative and retributive justice. In Chapter 7 Moore analyses the Ugandan experience with a specific focus on criminal trials in the high court and mat oput at the village level following ICC indictments of Lord's Resistance Army (LRA) members. There were no concomitant indictments of government soldiers under international law or in the domestic Ugandan courts, leading some to critique the indictments as delivering state-centric justice. In light of this, many continue to call for a truth and reconciliation process in addition to, or even instead of, criminal prosecutions, noting the collective need for reconciliation.
By establishing both a Special Court and Truth and Reconciliation Commission (TRC), Sierra Leone represents a hybrid model which effectively reconciles retributive, restorative and historical justice. Chapter 8 provides a detailed account of the cultural complexity of the TRC, despite its more traditional legal genesis in the Lomé Accord. The Sierra Leone experience is defined by pervasive civil war violence but reflects the importance of social networks and a belief that reconciliation furthers accountability rather than destroys it. It also demonstrates how both top-down and bottom-up approaches can work together through the country's establishment of two national institutions with distinct but complementary visions of transitional justice of transitional justice.
Chapter 9 considers Burundi and the meaning of ethnicity in that conflict: Moore characterizes its model as ‘transitional justice in a local cadence’. This version of post-conflict justice relies on means other than courts or truth commissions, and emphasizes the importance of pluralizing Burundian politics, memorializing the dead, alongside moral and physical disarmament, and employment.
Humanitarian Law in Action within Africa makes three particular contributions: first, it provides an excellent summary of four complex, evolving and interdependent areas of public international law. ‘Refugee law needs humanitarian law to realize the norm of humanitarian action. … Refugee law and humanitarian law look to international criminal law to provide powerful incentives for the demobilization and rehabilitation of ex-combatants so long as prosecutions do not have the unintended effect of spurring renewed conflict. And refugee law needs human rights law as a reminder that combating forced displacement will require political participation and socioeconomic transformation as much as emergency relief or legal process.’ (166) On both a theoretical and practical level therefore, the four fields complement one another driven by the humanitarian imperative to alleviate suffering inflicted by armed conflict.
Second, it builds on the foregoing theoretical precepts by contributing an operational account of the ‘accountability continuum’, which includes different forms of justice operating at different levels and in different ways. It requires the retributive, restorative and reconciliative strands of transitional justice be woven together cohesively. It also requires that the five ‘tools’ be used together effectively to reckon with the crimes of the past, prevent the resurgence of violence in the future and cultivate a culture of peace. Accountability requires criminal justice, conflict prevention requires social justice and peace education requires historical justice. Courts, troops and communities can seek individual accountability for the crimes of war through a combination of trials for high-level combatants and amnesty and community reintegration for less culpable participants. Development agencies and communities can further social justice through the improvement of education, health care and employment opportunities for all members of society, media organizations and communities further historical justice by insisting on humane governance in the future.
Third, it offers an original application of the broader legal and theoretical analysis to the country examples of the African context. These illustrate the potential for effective collaboration between the courts and other arenas for conflict resolution, and the productive interaction between different tools of conflict resolution: courts, troops, the media, and development. The case studies also reveal the links between retributive and restorative justice such as in the Sierra Leone example where civil society has embraced elements of both by establishing a high-level court alongside a truth and reconciliation commission. From the country case studies, Moore derives with what she terms ‘insights and aspirations, rather than a blueprint for post-conflict reconstruction’ (330). These insights include the following: (i) restorative justice must be extensive and well-endowed; (ii) reconciliative justice must be grass roots and long-term; (iii) retributive and reconciliative justice are essential and interdependent; (iv) retributive justice must be even-handed and multilayered; (v) reconciliative justice has the capacity to transform criminal justice.
An area that might have received more comprehensive treatment given the book's thorough treatment of the four sister branches of international law, is the challenge of gaps in protection resulting from the imperfect complementarity of these branches of law. A particularly acute example arises between IHL and HRL, which has resulted in the call for HRL to apply in areas traditionally governed by IHL alone and for HRL to apply during armed conflict (1996 Advisory Opinion on Legality of Threat or Use of Nuclear Weapons) or to a State exercising jurisdiction outside of its own territory (2004 Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory). A more fulsome analysis of the interplay between IHL and HRL would also have adhered to Moore's emphasis on both restorative and reconciliative justice, in an approach which goes beyond retributive justice to seek the transformation and healing of the society itself.
Another line of inquiry which might have benefitted from more in-depth analysis was the connection between the four sister branches of law on the one hand and development on the other. Development activities may, in fact, support the realization of certain overarching goals shared by these four branches of law, most notably through their aim to improve the living conditions, enhance the wellbeing and build the capabilities of poor people. Many of the target groups of these four bodies of law are poor and marginalized and may also be the target agents of development, and there are important ways in which development programmes may support the implementation of human right law by creating the conditions for the realization of those rights. Development also helps realize the fundamental principles of IHL and IRL by facilitating access to humanitarian assistance or even by offering shorter-term development support that may resemble humanitarian assistance, or by providing support to long-term refugees or IDPs. Finally, by supporting and promoting socio-economic justice, development programmes can serve as a bulwark against resurgent-armed conflict. Nevertheless, some of these connections are contested and challenges persist around best to ensure the respect of a principle of ‘do no harm’. Some of these more contentious underpinnings might have been acknowledged and explored in greater detail, to go beyond Moore's assertion that ‘long-term development programs strengthen an essential dimension of international human rights law, by enhancing socioeconomic welfare’.
Overall, Moore's book contributes in significant ways to a better understanding of the complex and dynamic relationship between law, state practice and justice. Whether as an introduction to the four sister branches of law for non-experts or as an insightful application of these areas of law in Africa for IHL or HRL specialists, this book should serve as a valuable resource for academics and practitioners alike.
