Abstract
At the moment, there are several areas and incidents of armed violence in Nigeria. However, the conflict between the State and the group(s) described as ‘Boko Haram’ appears to be the only ongoing conflict that has reached the threshold of a non-international armed conflict (NIAC). Indeed, the conflict is, at least, as intense and costly as the civil war in Nigeria from 1967 to 1970 (the Civil War). This paper starts by highlighting factual events relating to the Boko Haram conflict. This leads to the position that the Boko Haram conflict has reached the level of a NIAC. This status as a NIAC distinguishes the conflict from other ongoing conflicts in the country. Next, the paper identifies four peculiar factors that distinguish the Boko Haram conflict from the Civil War. The first is the active combat roles of State-recognised civilian groups described as the ‘Civilian JTF’. Second, the conflict involves cross-border elements, including participation of neighbouring States. Third, although the main theatre of armed conflict is northeastern Nigeria, the asymmetrical nature of the conflict as well as the direct attacks on locations outside the northeast expand the conflict beyond the northeast to the whole country. This raises the question as to the application of conduct of hostilities and law enforcement paradigms. Fourth, non-military law enforcement authorities of the State such as the police, Directorate of State Security, Immigration Service, Customs and Civil Defence Corps are directly involved in the conflict. In the light of these peculiar facts, this paper highlights some legal principles and practical actions that are relevant to the parties to the Boko Haram conflict.
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Notes
- 1.
Such guidelines will include the National Defence Policy.
- 2.
An accusation the Government has denied but Boko Haram has embraced.
- 3.
See for example, Chothia, BBC News (4 May 2015), where it is suggested that the group ‘Launched military operations in 2009’.
- 4.
Mbachu, Associated Press (4 Jan 2004).
- 5.
Harbom and Wallensteen (2005), p. 633.
- 6.
For the number of BH participants see, Frontier Star (January 4, 2004). For the number of Nigeria Army participants see, ‘Nigerian ‘Taleban’ launches uprising; Group, which seeks to set up an Islamic state, storms police stations in some towns,burns buildings and steals large weapon caches’ The Straits Times (Singapore) (9 Jan 2004).
- 7.
Yobe State is one of the 36 federating units of the Federal Republic of Nigeria. It is in the North-Eastern part of the country where the Boko Haram (BH) conflict is presently concentrated.
- 8.
It is instructive that BH has been known by various names in the past including Nigerian Taliban as the group was known at the time of the Yobe clashes of late 2003 and early 2004. See for example, ‘NIGERIAN ‘TALIBAN’ STRIKE AGAIN’ January 4, 2004).
- 9.
Borno State is also a federating unit in the Federal Republic of Nigeria and also in the North-Eastern part of the country.
- 10.
Edmonton Journal (Alberta) (10 Oct 2004).
- 11.
Kano city is the capital of Kano State, which is also a federating unit in the Federal Republic of Nigeria. There have been intermittent BH attacks in the State but BH has not held on to the State’s territory as it has done in the North-East.
- 12.
Timberg (The Washington Post 18 Apr 2007).
- 13.
Timberg (The Washington Post 18 Apr 2007).
- 14.
Dowden, The Independent London (19 Apr 2007).
- 15.
Byron (2001), p. 63.
- 16.
For example, under the Rome Statute of the ICC, most war crimes in international armed conflicts are also war crimes in non-international armed conflicts. See also, Zegveld (2002), p. 33.
- 17.
See for example, Crawford (2007), p. 441.
- 18.
Bartels (2009), p. 41.
- 19.
See for example, Adesoji (2010), pp. 96–97 who identifies the following religion-related violence among others: The Maitatsine uprisings of 1980 in Kano, 1982 in Kaduna and Bulumkutu, 1984 in Yola and 1985 in Bauchi; Kano riots of October 1982, Ilorin riot of March 1986, the Kafanchan/Kaduna/Zaria/Funtua religious riots of March 1987, the Bauchi/Katsina riots of March/April 1991, the Kano riot of October 1991, the Zangon-Kataf riot of May 1992, the Kano civil disturbance of December 1991, the ongoing Jos crisis.
- 20.
Moland (2015), p. 8.
- 21.
Aljazeera 27 July 2009.
- 22.
Geneva Convention I for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, 1949; Geneva Convention II for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked members of Armed Forces at Sea, 1949; Geneva Convention III Relative to the Treatment of Prisoners of War, 1949; and Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, 1949.
- 23.
Bartels, ‘Timeliness, Borderlines and Conflicts - The Historical Evolution of the Legal Distinction between International and Non-International Armed Conflicts’ n 13, p. 48. See also, Paulus and Vashakmadze (2009), p. 99, where it is stated that the notion of recognition of belligerency is obsolete.
- 24.
Wilson (1988), p. 23.
- 25.
Falk (1964), p. 199.
- 26.
Falk (1964), pp. 198–199.
- 27.
Prosecutor v. Dusko Tadić, (the Tadić Decision) 2 October 1995 ICTY, Case No. IT-94-1-AR72, para. 96 (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction).
- 28.
Wilson (1988), p. 23.
- 29.
Moir (2002), p. 4.
- 30.
See generally, O’Brien (1978), p. 193.
- 31.
See Higgins (1971), p. 88.
- 32.
See Higgins (1971), p. 88.
- 33.
Cullen (2005), pp. 66, 72.
- 34.
Bartels (2009), p. 50.
- 35.
Lauterpacht (1947), p. 176.
- 36.
Kalshoven (1983), p. 67.
- 37.
Article 3 common to the Geneva Conventions 1949.
- 38.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts.
- 39.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1977 (Additional Protocol II).
- 40.
Article 1, Additional Protocol II.
- 41.
Article 1, Additional Protocol I.
- 42.
See Clapham (2006), pp. 491, 497.
- 43.
The Tadić Decision, para 70.
- 44.
Article 1 (2) Additional Protocol II. For a discussion on available laws during disturbances, see Momtaz (1998).
- 45.
Harroff-Tavel (1993).
- 46.
Harroff-Tavel (1993).
- 47.
Harroff-Tavel (1993).
- 48.
Stewart (2007), pp. 26, 28.
- 49.
Schindler (1979), p. 158; See also Common Article 2 to the Geneva Conventions.
- 50.
Additional Protocol I, Article 1, paragraph 4 refers to ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’.
- 51.
Okebukola (2012), p. 163.
- 52.
Okebukola (2012), p. 163.
- 53.
Geneva Conventions 1949, Common Article 3.
- 54.
Sassoli (2004), p. 105.
- 55.
However, the applicable national legislation must be in line with international human rights law.
- 56.
Hague Regulations 1907, Article 1.
- 57.
Hague Regulations 1907, Article 1 item 1.
- 58.
Hague Regulations 1907, Article 1 item 2.
- 59.
Hague Regulations 1907, Article 1 item 3.
- 60.
Hague Regulations 1907, Article 1 item 4.
- 61.
See for example, Kretzmer (2005), p. 171.
- 62.
Ruud (1985), p. 433.
- 63.
Where international crimes are committed, a domestic amnesty will not deprive other States of jurisdiction. See SCSL Lome Amnesty Decision Para 67.
- 64.
Pieth (2006), p. 1074.
- 65.
See for example, Lauterpacht (1947), p. 176, where it was stated that four criteria must be met before insurgents are recognised as belligerents: [F]irst, there must exist within the state an armed conflict of a general (as distinguished from a purely local) character; secondly the insurgents must occupy and administer a substantial portion of national territory; thirdly, they must conduct hostilities in accordance with the rules of war and through organised armed forces acting under a responsible authority; fourthly, there must exist circumstances which make it necessary for outside States to define their attitude by means of recognition of belligerency.
- 66.
See for example Williams (2005), p. 271 where it is suggested that the validity of an amnesty should be assessed on a case by case basis.
- 67.
See generally, Bassiouni and Wise (1995).
- 68.
Swiss Criminal Code, Article 260 quinquies, paragraph 4.
- 69.
Kalshoven (1991), p. 301.
- 70.
Kalshoven (1991), p. 301.
- 71.
Additional Protocol II, Article 13 paragraph 1.
- 72.
Additional Protocol II, Article 13 paragraph 2.
- 73.
Additional Protocol II, Article 13 paragraph 3.
- 74.
Military Penal Code, § 4. (Note that the text in this link is in Norwegian).
- 75.
Monsen (1971), p. 201.
- 76.
Monsen (1971), p. 201.
- 77.
Military Penal Code (Norway), § 4.
- 78.
Armed Forces Act (Nigeria), sections 146,223 and 272 recognises that civilians may be employed by the armed forces. Such civilians may be subject to military law in certain instances but they are not combatants.
- 79.
ICTY, Hadžihasanović and Others, Case No. IT-01-47-AR72, § 57 (Disposition on the first ground of appeal), 16 July 2003. Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility.
- 80.
See the Akayesu case; Kayishema and Ruzindana case; and the Delalić case.
- 81.
Aleksovski case, Blaškić case, Judgment, Kunarac case, Judgment and Kvočka case, Judgment 714).
- 82.
ICTY, Delalić case, Judgment; see also Article 28 of the Statute of the International Criminal Court.
- 83.
See for example ICTY Statute, Article 7(3); ICTR Statute, Article 6(3).
- 84.
ICC Statute, Article 28.
- 85.
Ambos (2007), pp. 159 at 161.
- 86.
See generally, Okebukola (2014), p. 588.
- 87.
Additional Protocol II, Article 4, paragraph 3 (c).
- 88.
- 89.
Zegveld (2002), p. 136.
- 90.
Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006), pp. 2794–2796.
- 91.
Democratic Republic of the Congo v. Uganda.
- 92.
Gaggioli (2013), p. 1.
- 93.
Gaggioli (2013), p. 1.
- 94.
Gaggioli (2013), p. 1.
- 95.
The parties are to apply the principle of distinction, avoid indiscriminate and disproportionate attacks, observe precautionary rules in attack, aimed at avoiding or minimizing incidental harm to civilians and civilian objects.
- 96.
Gaggioli (2013), p. 7.
- 97.
McCoubrey and White (1992), p. 318.
- 98.
husband of Maria Fanny Suarez de Guerrero v. Colombia, Communication No. R.11/45, U.N. Doc. Supp. No. 40 (A/37/40) at 137 (1982).
- 99.
Gaggioli (2013), p. 14.
- 100.
HCJ 769/02 The Public Committee against Torture in Israel v. The Government of Israel.
- 101.
HCJ 769/02 The Public Committee against Torture in Israel v. The Government of Israel Summary Judgment p. 3.
- 102.
HCJ 5100/94 The Public Committee against Torture in Israel v. The State of Israel 53(4) PD 817, 845.
- 103.
Vierucci (2003), p. 284.
- 104.
Sassoli (2004), p. 100.
- 105.
See for example Aldrich (2002), p. 898 where it is opined that Al Qaeda was not capable of being a party to which Additional Protocol 1 would apply.
- 106.
Schmitt (2012), p. 125.
- 107.
Schmitt (2012), p. 125.
- 108.
Additional Protocol II, Articles 13, 14.
- 109.
Additional Protocol II, Article 13, paragraph 3.
- 110.
Schmitt (2010), p. 700.
- 111.
Sandoz (1987), p. 4462.
- 112.
Melzer (2002/2009), p. 20.
- 113.
Given that the existence of a NIAC does not amount to a suspension of domestic laws.
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Okebukola, E. (2018). Calibrating the Legal Obligations in the Ongoing Non-international Armed Conflict in Nigeria. In: Iyi, JM., Strydom, H. (eds) Boko Haram and International Law. Springer, Cham. https://doi.org/10.1007/978-3-319-74957-0_8
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