LOOKING BACK AND LOOKING FORWARD FROM THE JOURNEY OF ATROCITIES WATCH AFRICA
By
Chidi Anselm Odinkalu
The tenth anniversary of the establishment of Atrocities Watch Africa (AWA) is an appropriate moment to reflect on the profound changes in the landscape of atrocity prevention on the continent.
We find ourselves in a global context in which sovereign might is now viewed as right; international law is in a state of convenient retrenchment; and atrocity appears renascent.
Across Africa, wars without rules rage in DRC/Rwanda; Ethiopia; and the Sahel. Libya and Somalia remain unfinished business. Regional Economic Communities (RECs), long considered bulwarks against the worst of atrocities on the continent, appear to be unraveling or challenged. In the midst of all this, the African Union (AU) is missing in action and the solutions to Africa’s atrocities – in a manner redolent of the years of colony – are now sought in capitals anywhere but within the continent.
AWA was born into extraordinarily challenging circumstances at a time of short odds on the survival of civic and advocacy startups. The ambitions of its mission encompass the entire spectrum of the atrocity cycle from prevention through response to accountability. But the organization was born in a season of both rising atrocity in Africa and waning appetite for the enterprise of accountability for them. This context created odds that appeared insuperable. Far from wilting, the organisation has done more than beat the odds; it has prospered in spite of them. For that, the founders deserve our congratulations and appreciation.
A Resilient History
The resilient history of atrocity prevention in Africa cannot be understood without acknowledging the continent’s experience of mass atrocities long before the development of modern international criminal law. The trans-Atlantic Slave Trade in Africans was the original mass atrocity, it constituted one of history’s most extensive systems of organised violence, leaving legacies that continue to shape African societies and institutions. Accra, the capital of Ghana and our host city was a major port in this atrocity commerce. Osu Castle, until recently the seat of power in black Africa’s first independent state, began life in 1661 as Fort Christiansborg, named by Danish traders after King Christian V, king of Denmark and Norway 1670-1699. It was a slave-trading hub.
The slave trade was many atrocities in one. It began with the slave raids and continued with the hawking of Africans as both chattel and as cargo. The storage, cargo, and transportation conditions institutionalised the dehumanisation of Africans and created the conditions conducive to the culture of regarding and treating Africans as sub-human which persist to this day. Life in the slave plantation took the form of forced labour. Enslaved women in the plantations were objects for the sexual gratification of their slave masters. Their children did not stand much of a chance of having normal, or indeed any, parenting.
In the entirety of its cycle, the slave trade was a programme of forced population transfer. The best estimates are that 3.7-5% of the continent’s population was dealt away in the slave trade. Building out from these early foundations, the atrocities against Africans and in Africa grew to assume narrative and normative dimensions. After independence, atrocities in Africa were justified as essential costs of post-colonial nation-building.
An Inferior Humanity – From Narrative to Norm
The mandate of AWA is to prevent, respond to, and ensure accountability for atrocities. Inherent in this is an assumption that the atrocities of significance to us are recent or contemporary. It is an assumption that deserves closer scrutiny. Where does or should our reckoning with atrocity and Africa begin?
The European Enlightenment bridged the Middle Ages and the modern era. Despite their many dimensions and disagreements, the leading thinkers of the European Enlightenment were unanimous in denying the humanity of the African.
David Hume, for instance, was inclined “to suspect the Negroes to be naturally inferior to the Whites. There scarcely ever was a civilised nation of that complexion, nor even any individual, eminent either in action or in speculation. No ingenious manufacture among them, no arts, no sciences.”
Immanuel Kant largely agreed, believing that “the Negroes of Africa have by nature no feeling that rises above the trifling,” and deserved to be “driven apart from each other with thrashings.” He asserted that the logic of the thick skin of black people made them amenable to be disciplined not with “sticks, but rather whip[ped] with split canes.”
Wilhelm Hegel built on these influences to conclude about Africans that there was “nothing harmonious with humanity to be found” among them, and of the continent itself, that “it is no historical part of the world.”
The predations visited on Africa by Europe in the aftermath of the Enlightenment found narrative justification in this authoritative literature. This turned narrative into norm. John Westlake’s canonical text on Public International Law published in 1894 contained a full treatment of “the position of uncivilized natives with regard to international law.” He argued:
When people of European race come into contact with American or African tribes, the prime necessity is a government under the protection of which the former may carry on the complex life to which they have been accustomed in their homes, which may prevent that life from being disturbed by contests between different European powers for supremacy on the same soil, and which may protect the natives in the enjoyment of a security and well-being at least not less than they enjoyed before the arrival of the strangers….International law has to treat such natives as uncivilised.
Like Kant, Westlake infantilised the “uncivilised populations of Africa”, describing them as “mostly settled agriculturists or cattle-breeders, in a stage of advancement…. still short of that which would relieve the white races, on their arrival among them, from the duty of furnishing a government.”
Extermination as Effective Occupation
These ideas were influential in settling the normative framework and doctrine of Europe’s occupation of Africa. They enabled the European Powers who met in Berlin from November 1884 to February 1885 to presume that they could “regulate the conditions most favourable to the development of trade and civilization” in Africa. They also presumed to guarantee “the conservation of the indigenous populations and the amelioration of their moral and material conditions of existence.” For them, there was no irony to the fact that claims of a civilising mission were used as cover for the invention of a whole new industry in atrocity.
The sight of the foothills of the first Industrial Revolution forced Europe to call time on the slave trade. Colonialism was to replace it, but the era of atrocity simply changed name.
The General Act of Berlin was adopted in February 1885 at the conclusion of the Berlin West Africa Conference. The Berlin Conference was the canonical event “which determined in important ways the future of the continent and which continues to have a profound influence on the politics of contemporary Africa.” The Berlin Conference coincided with the first Industrial Revolution. It was also the first international conference on Africa. Remarkably, however, the 14 European powers and the USA who were at the conference did not think it worthwhile to invite any African to the conversation. Africa was to become a major theatre for the extraction of resources that would be required for that Industrial Revolution. Far from being a participant, the continent was on the menu. It has been since then.
The interaction of narrative and normativity in the colonial project achieved at least three things. First, it externalised European competition for prestige and markets. Late 19th-century French statesman, Jules Ferry, reportedly described colonies as “one of the most lucrative methods of investing capital.” In his study of Gallic colonialism, Hubert Deschamps described colonialism as “a search for markets for French industry threatened by foreign competition.” Consistent with this goal, Europe’s search for colonies as markets was initially outsourced, for the most part, to companies.
Second, the Berlin conference was a venue for an adverse claim over the land as a natural resource and over other resources on and underneath it. Sundhya Pahuja demonstrates with clarity that “Colonialism was itself partly about controlling access to natural resources.”
Third, to facilitate the first two objectives, the conference fostered the ground for its coup de grâce in the normative and narrative erasures on which colonial occupation would be based: that Africa was, in fact, virgin territory. As Hussein Bulhan points out, this imbued the colonial project in Africa with “the power to name the world and the self, interpret the past, and preserve memory of it.”
This is the origin of the narratives of Europe’s ‘discovery’ of Africa. The idea of discovery did not just mean that nothing existed before it. It also gave those asserting it the right to liquidate anything that stood between them and their claims that nothing existed before them.
By institutionalising these narratives of the “discovery” of Africa, the pre-existing systems of political organisation, institutions, and governance were quietly buried. It was as if they never existed. Humphrey Sipalla rightly asserts that the colonial system in Africa began by erasing “ways of being and knowing” in focused attacks on “sites of knowledge and power” so that “the next generations have but the Empire’s benevolence to look to for answers for everything from ‘how to cure a cold’ to ‘who is God’.” Today, we take it for granted that the crime of genocide is committed by acts take “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” This was what the colony set out to do in much of Africa.
Colony was thus not just an exercise in the invention of narrative, cognition, and memory. In one stroke, this fiction of Africa as virgin territory erased existing African institutions and state systems under pain of violent liquidation, and ultimately sundered the continent into territories under European occupation. Wherever you looked, it was defined by massacre, atrocity, and genocide:
- England invented the concentration camp in the Second Boer War.
- In present day Namibia, Germany’s General Lothar von Trotha led the systematic liquidation of over 80,000 Herero and 10,000 Nama, representing about 80% of the Herero and 50% of the Nama population at the time.
- In the quarter century between the onset of the doctrine of Effective Occupation in 1885 and the onset of the First World War, Africa’s population declined. In the DRC (then known as the Congo Free State), King Leopold, King of the Belgians, presided over the liquidation of nearly 60% of the population of the territory. Incidentally, King Leopold’s atrocities in the Congo gave rise to the first systematic act of atrocity documentation in the Casement Report (February 1904), which (among other things) ultimately led to the reform of the Belgian monarchy.
After the adoption of the Berlin Final Act in February 1885, the sovereigns of Europe mostly hived off the risk of managing and running the territories they had acquired to companies whom it installed with sovereign prerogatives. In West Africa, one of the dominant companies was the Royal Niger Company (RNC) chartered in 1886. With reference to the nature of the authority of the company, Elvar Ingimundarson records that “the RNC was a sovereign power and operated an independent legal system,” and its “legal system operated to protect corporate interests, not administer justice.” That legal system was founded on three things. One was obviously extraction. The second was the defence of the interests of the Empire. And the third was the doctrine that Africans were essentially expendable.
An Atrocity Charter
A significant, but little-reported, incident in 1888 signposts how these three pillars of that legal order operated in mutual reinforcement of one another. At the time, the headquarters of the RNC was in a city called Lokoja, in present day north-central Nigeria, from where it operated plantations. To work these plantations, the company had imported over 160 labourers from Sierra Leone. Their foreman was a man called Baccary Sanacoh. In 1888, a dispute was reported between the labourers from Sierra Leone and the company. The labourers complained that the company was in violation of obligations to them. As a result, they downed tools in order to press home their demand to be returned home to Sierra Leone.
Upon learning of this situation, William Wallace, the senior RNC executive in charge of the operation in Lokoja, asked the protesting workers over to the company premises for a meeting. The workers arrived to find eight other Europeans and several African guards, all of them armed. Wallace began by posting armed guards to man the exits from the premises. Thereafter, he ordered the labourers to surrender company tools, equipment and arms in their possession. While this went on, an employee of the RNC identified Baccary Sanacoh as the headman of the protesting party, whereupon “Wallace then walked up to Sanacoh, put a revolver to his ear and fired, scattering his brains over the assembled men. Wallace´s security personnel then opened fire with their rifles killing six men and wounding around thirty.”
At the time, the RNC’s corporate judicial system was headed by Sir James Marshall, the former Scottish Anglican clergyman and later convert to Catholicism, who had served as Chief Justice of the Gold Coast from 1880 – 1882. In 1888, the year before he died, Sir James, as “Chief Justice of the Niger Territories and the acting Supreme Judicial Officer” of the RNC, oversaw the inquiry into the Lokoja Massacre. In undertaking his work, he relied on the testimony of a sole European to arrive at the conclusion that the striking labourers who were without arms, having been disarmed on the orders of William Wallace, had, nevertheless, attacked the armed RNC employees. On that basis, Sir James concluded that William Wallace had “interfered for the protection of the lives of the officers connected with the expedition,” and that the company employees – having acted in self-defence – had been justified in their actions and, were, therefore, exculpated from responsibility or liability. Furthermore, Sir James “found two survivors of the massacre, Bambolli and Fodey Cecey, guilty of ‘mutinous and insubordinate conduct’ and ordered them to be imprisoned until they could be shipped back to Sierra Leone.”
To arrive at this conclusion, Sir James entirely discounted the testimonies of the African victims as worthless and their lives as expendable. Their testimonies counted for nothing. According to Ingimundarson:
The Colonial Office did not agree with Marshall´s interpretation of events. Henry Thurstan Holland (1825-1914), the Viscount Knutsford, asked that…. Wallace be indicted for murder. His argument was that British subjects from one colony could not be freely murdered in another colony. He suggested that Lord Salisbury, serving as Prime Minister and Foreign Secretary at the time, work out a solution to enforce justice in such cases. Goldie, however, disagreed. He pointed out the RNC was a sovereign power and operated an independent legal system.
Thus, Sir George Taubman Goldie, founder and controller of the RNC, successfully saw off the efforts of the Colonial Office to persuade then Prime Minister, Lord Salisbury, to reopen the investigation, with a view to possibly indicting William Wallace for murder. Hiding under the carapace of the sovereign privileges of the company, Sir George “saw nothing wrong with the actions of his officers and refused to cooperate with the Colonial Office.” In a study completed in 2022, Elvar Ingimundarson cites this case as “an example of the consequences of allowing a private corporation to act as a sovereign power, putting its employees beyond the reach of the law.” It was an atrocity charter.
“So low in the scale of social organization.”
The treatment of Africans as sub-human was not merely a practice or customary narrative. It was to assume the status of legal norm. Senior English Law Lord, Lord Sumner synthesized this body of thought into a coherent legal standard for the Judicial Committee of the Privy Council in Re Southern Rhodesia, which essentially constructs the continent as the product of the inventive genius of the white man. In reasoning that was clinical in its invention, the Privy Council based this doctrine on an othering of Africans that comprehensively rendered them as non-persons, denying their memory, community, and agency.
First, Lord Sumner (who delivered report of the Judicial Committee of the Privy Council, as the highest court for the colonies was then known) asserted with economy that colonial occupation was not preceded by any legitimate leadership. He claimed that “no principle of legitimacy attached” to pre-existing political leadership(s), arguing that the original owners of colonial lands, whom he referred to as “aborigines,” were “destitute of any recognizable form of sovereignty.”
Second, having denuded the peoples of Southern Rhodesia (the focus of the proceedings in this case) of civic capacity or political legitimacy, the Privy Council proceeded to clothe them with perpetual disability and an incapacity for cognition: “By the disinterested liberality of persons in this country, their Lordships had the advantage of hearing the case for the natives, who were themselves incapable of urging, and perhaps unconscious of possessing, any case at all.”
Third, by now in the full stride of his oratorical majesty, Lord Sumner attacked the history and memory of Africa’s peoples and obliterated them in one sentence dripping with scorn:
“Whether the Matabele or the Mashonas of today are, in any sense, consistent with the transmission or descent of rights of property, identical with the Matabele or the Mashonas of more than twenty years ago is far from clear, and the fate of the Makalakas and the Maholies, once the slaves of Lobengula, is as obscure as their original rights.”
Fourth, having wiped out their history, the Privy Council spent two short sentences doing the same to the humanity of Africans:
“Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged.”
These deprivations proved resilient after the colonial period. Instead of redressing them, they prospered thereafter, only pausing long enough to alter the pigments of the beneficiaries from white to black.
Fifth, having set up all these building blocks, the Privy Council mercifully put the people out of their existential misery by pronouncing – with a touch of Biblical flourish – the coup de grâce in the form of the principle of res nullius:
“By the will of the Crown and in exercise of its rights the old state of things, whatever its exact nature, as it was before 1893, has passed away and another and, as their Lordships do not doubt, a better has been established in lieu of it. Whoever now owns the unalienated lands, the natives do not.”
This jurisprudence elevated the invention of Africa to legal doctrine while also profiting those who were involved in making it happen. From this judgment, for instance, Rhodes’ British South Africa Company made £3.75 million, plus a £2 million waiver for its (First World) War debts.
This decision also coincided with the onset of the negotiations that culminated the following year in the Paris Conference at the end of the First World War and in the Treaty of Versailles. While the jurisprudence of Re Southern Rhodesia “invented” Africa, the League of Nations Covenant which was part of the Treaty, consecrated its dependency as a fact of international law and relations as follows:
To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization….”
The League Covenant continued:
The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League.
The force of this norm was evident in the atrocities of the colony. Perpetrated mostly through the regimental formations of the colony and normalised through impunity granted through self-serving systems of courts and colonial inquiries both constituted in such a manner as to compromise their independence, the result was to institutionalise doctrine that made the African expendable. By the formal end of colonial rule, this doctrine had acquired the force of habit and precedent in the methods of the institutions of law, order, and enforcement.
Institutions of Expedition & Atrocity
Sandra Fullerton Joireman acknowledges that “the establishment of effective colonization in Africa demanded a legal system to both maintain control of a country and resolve disputes within it.” The institutions of law and order essential to this project were the police, the law, and the judiciary. In actuality, colonial police was an expeditionary institution of atrocity. The law excused it and the judiciary granted it impunity. By the end of colonialism in the early 1960s, these institutions had been habituated to nearly one century of a tradition of treating the African as expendable and granting that the benediction of lawful impunity.
As inscribed in colonial law in Re Southern Rhodesia, this legal system was established by the diktat of colonial rule and served its ends. Long after the departure of colonists, the legal systems they left continued to flourish with their foundations largely untouched. In this way, colonial rule was a software system which was not de-programmed or indeed re-programmed at independence. Instead, colonial rule ended without de-colonisation. It is impossible to understand how impunity thrives in the aftermath of colonial rule without an understanding of this fact.
Reimagining the Future
For long after the onset of independence in Africa, we appeared to take atrocity for granted as part of the cost of nation-building. In 1981, the African Charter on Human and Peoples’ Rights provided a tentative framework for addressing them in its acknowledgement of “serious and massive violations of human rights” in Article 58 thereof. Regrettably, not much was made of this provision, and it did not do much to prevent or respond to the genocide against the Tutsi in Rwanda or to the atrocities of many post-colonial wars thereafter. The institutional adaptation of the Special Rapporteur on Extra-Judicial Executions in the African regional system proved too weak, too late, and too half-hearted to respond to the crying need.
By the end of the millennium, the African Union had recalibrated to establish what was supposed to be a norm against indifference to war crimes, crimes against humanity and genocide. Atrocity jurisprudence from Africa prospered in case work before the International Court of Justice (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda))), and in multiple forums concerning accountability by former Chadian president, Hissène Habré, ending in his conviction in 2016 by a special instance of the African Union.
The initial optimism generated by these developments has long dissipated in the face of continental indifference to growing atrocity. Today, the initial promise of the International Criminal Court (ICC) appears like a long-forgotten memory. Leadership on the continent is lacking, and non-state perpetrators of mass atrocities in Africa do not live with any fear or likelihood of accountability.
We are now left with at least two important questions. One is what happens to historical colonial atrocities in Africa which remain unacknowledged and unredressed? Is there room to reimagine or inspire contemporary collaborations that forge and foster renewed accountability for them? The second is how do we account for the psycho-social and inter-generational traumas from this long tradition of atrocity and institutional traditions for their perpetration? Advocates for accountability are often stuck in portraying accountability as essentially legal. But the damage and violations from atrocities, especially when unredressed for such a long time, is first of all psychological, social and inter-generational. In one sentence, the task of redressing atrocities – historical as well as contemporary – is too important to be abandoned or consigned to law alone. Can we envisage new partnerships for this purpose?
The third issue is how to generate African leadership in this field. The Malabo Protocol begs for ratification to enable the continent to domicile its own capacity to bring mass atrocities to account. Pending that, national legal systems must provide initial impetus and inspiration. This is why the pending Advisory Opinion at the African Court on Human and Peoples’ Rights concerning Universal Jurisdiction in Africa is critical. Ironically, the path to progress on these could lie in mobilising shared outrage and initiative against historical atrocities in Africa. Around that, political consensus can be built, and strategic precedent could be established to make contemporary accommodation for atrocities in Africa a lot harder to tolerate or explain. For AWA, there’s a lot of work to do and even more landmarks to explore in the next 15 years before its quarter century.
