AN ASSESSMENT OF THE APPLICATION OF INTERNATIONAL HUMANITARIAN LAW IN THE FIGHT AGAINST TERRORISM

CHAPTER ONE

GENERAL INTRODUCTION

1.0.0 Introduction

The rising spate of acts of terrorism has become a global concern. Mainly, Nations of the world, international organizations and bodies are now more concerned with the phenomenon because of its immediate but lasting effect. In other words, both the developed and the developing nations are affected by the devastating effect of this growing menace. International bodies like International Committee of the Red Cross (ICRC) sees terrorism as a scourge to which the international community has been striving to respond for decades.^[1]

The ICRC is of the view that “the obvious challenges it poses are not only long-lasting, but also immediate. Wherever we turn these days, across the world, we are confronted with increased risks of terrorist acts.”^[2] For example, terrorism has actually affected a number of nations of the world including but not limited toDemocratic Republic of the Congo (DRC), Pakistan, Yemen, Somalia, Syria, Iraq, Afghanistan.

Although there is not yet a universal international definition of terrorism, but there has been different attempts to find a comprehensively uniform definition for terrorism. However, regardless of the lack of a comprehensive definition at the international level, terrorist acts are crimes under domestic law and under the existing international and regional conventions on terrorism and they may, provided the requisite criteria are met, qualify as war crimes or as crimes against humanity³.

 

Terrorism can simply be explained as a situation where a set of individual(s), group(s) or organization in a peaceful time, attacks places of worship, organizations, civilians and/or takes people hostage.

National constitutions and International Humanitarian Law have been major applicable

instruments in the fight against the spate of terrorism since the fight cannot be left to the affected countries as the effect easily spreads across borders in the world. Thus, as opposed to some other areas of international law, ‘‘terrorism’’ – although not universally defined as such – is abundantly regulated.

It is important to also note that regardless of the lack of a comprehensive definition at the international level, the common and most notable element of all the definitions offered by Countries, international bodies and authors in several literatures and from the experience of countries of the world, is  “armed conflict” and IHL been the body of rules applicable when armed violence reaches the level of armed conflict becomes most relevant in a fight against terrorism. “armed conflict”  IHL could either be  international or non-international

Nigeria is also not excluded from the hit of terrorism and its effect. According to the Global Terrorism Index 2020, Nigeria ranks 3^rd amongst the countries most hit by terrorism.⁴ It is a truism that Nigeria has not convulsed this much, since the civil war, security-wise. The internal security challenges are gargantuan: Killings and communal clashes and acts of terrorism engendered by Jama’atuSunnahLidaAwaliWali Jihad (Boko Haram)⁵.

 

³ Cassese, A. (2001), Terrorism is Also Disrupting Some Crucial Legal Categories of International Law European Journal of International Law 993-1001

 

⁴https://www.visionofhumanity.org/global-terrorism-index-2020-the-ten-countries-most-impacted-by-terrorism/ ⁵ Ainge, E (2013), “Military in internal Security Operations” Challenges and Prospects Being a paper Presented at NBA 53^RDAnnual General Conference

However the only way the Countries of the world that have been hit by terrorism, including Nigeria, have reacted is by tightening existing counterterrorism measures and introducing new ones.

The situation in Nigeria involving the fight against terrorism particularly the Boko Haram has brought to the fore the issue of non–international armed conflict which is described as conflict of armed confrontation occurring within the territory of a single state and in which the armed forces of no other state are engaged against the central government.

The history of the development of International law on the one hand and International humanitarian law on the other birthed the distinction between international and non-international armed conflicts.

While Additional protocol I of the Geneva convention of 1949dealt with International conflicts, additional protocol II and some treaties dealt with the non-international armed conflicts which contains the rules relating to the conduct of hostilities and rule relating to the protection of those who do not take part.

The recent counterterrorism actions taken by the Nigerian Government, including the use of armed conflict against Boko Haram have no doubt  been of significant value and lauded by many. However, one cannot bu point out the resultant effect of such means of engagement on the violations of human rights and international humanitarian law particularly as it concerns therights of Nigerian unarmed members.

 

 

1.1.0 Background to the Study

Boko Haram whose official name is ‘Jama’atuAhlisSunnaLidda’awatiWal-Jihad which literally means the ‘Association for propagating the Prophets’ teaching and Jihad’^[3] has become one of the most dangerous terrorist groups in the world which evokes insecurity and fear. Allegedly formed by Muhammad Yusuf, the group have carved a niche for itself in Nigeria as the most vicious and violent religious group ever witnessed by the country. Ideologically, Boko Haram is geared at imposing strict sharia law across Nigeria and abolishing western education. This fact is further compounded with the literal meaning of Boko Haram which comprised of the combination of

Hausa word ‘Boko’ meaning book and ‘Haram’ an Arabic word translated to mean forbidden^[4]. Collectively, both words suggest that ‘western education is forbidden^[5]. While this appears to represent the widely held perception of Boko Haram, it seems however that, clarification on the extent to which western education is rejected has been made by the group. An instance is from the deceased leader of the group who stated that, while western education is not totally forbidden, if it contravenes with the provision of the Holy Quran, such western beliefs will be rejected^[6]. On a similar vein, according to Onuoha, a leader of the group has proffered the view that Boko Haram does not necessarily oppose western education but rather affirms their belief in the supremacy of Islamic culture over education^[7]. The rationale being that culture has a wider

 

connotation which includes education and as such not determine by education¹¹. However, these views appear inconsistent with the operational tactics adopted by Boko Haram.

The continued increase in the spread of the nefarious activities of the Boko Haram sect in North Eastern part of Nigeria since 2009 has created adverse humanitarian consequence to the East region and even the nation as whole. Life in the various communities of Borno, Yobe and

Adamawa states, such as Kawuri, Baga, Konduga, Bama, Shuwa, Ajigin, Gamboru, Giwa, Chibok, Gwoza to mention a few, have been characteristically nasty and brutish¹².   The region has ceased to know civil normalcy as a result in the dire situation as evident in human casualties, human right abuses, population displacement, refugee debacle, loss of means of livelihood, food insecurity, limited medical facilities and other social amenities.

In a bid to contain the menace perpetrated by Boko Haram in the North Eastern part of Nigeria, the Nigerian Armed forces have responded sporadically (fire for fire) against the insurgents, killing many of these terrorist fighters to save the states, communities and the innocent lives involved in this ever increasing battle.  The major challenge or question is that “does the fight against terrorism in line with the International Humanitarian Law (IHL)?

Traditionally, the law of international armed conflict was applied to war only between states. Terrorism is not considered as one of the grave breaches of IHL however, it is expressly prohibited in particular articles of the Geneva Conventions and it’s Additional Protocols:-

 

¹¹Okoye, F (2013), “Rules of Engagement, insurgency and the civil populace” THISDAY, Sat 01, February, 2014 accessed

 

¹¹Okoye, F (2013), “Rules of Engagement, insurgency and the civil populace” THISDAY, Sat 01, February, 2014 accessed

1. Article 33 of the 1949 IV GC – No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or terrorism are prohibited.
2. Article 51(2) AP I – The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among civilian population are prohibited.

• Article 4 (2) of Protocol II – Without prejudice to the generality of the foregoing, the following acts against persons referred to in paragraph 1 shall remain prohibited at any time and in any place whatsoever… (d) Acts of terrorism.

1. Article 13 AP II – The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

The scope of article 33 is narrow; it is concerned with the prohibition of terror in regards to upholding public order in an occupied territory.  Its purpose is to guard protected persons from terrorist acts.   Concerned with the protection of civilian population against hostilities, the scope of article 51(2) of Additional Protocol I and Additional is more expansive.  It is rooted in the rules of distinction and military necessity.

Military necessity refers to the type of force used during the attack.  It should be, directed towards military objectives and used towards an end of complete or partial submission of the enemy with as little time, loss of life and resources.

As such, it prohibits acts of terrorism intended to spread fear amongst the civilian population and threatsperpetrated for the same purpose.

A closer examination of each prohibition garners a greater understanding of the treatment of terrorism within IHL and it is against this background that this study seeks to assess the

Application of international humanitarian law in the fight against terrorism (A Case Study of Boko Haram Crisis in north eastern part of Nigeria.

1.2.0    Objectives of the Study

The main objective of the study is to examine the Application of international humanitarian law in the fight against terrorism. Specifically, the objectives are to;

1. Evaluate the international humanitarian law in the fight against terrorism
2. Investigate if the international humanitarian law has been applied in the fight against

Boko Haram in the North Eastern part of Nigeria

3. Know if there are rights for Terrorists under the international humanitarian law

1.3.0    Focus of the Study

In the discussion of the application of international humanitarian law in the fight against terrorism, attention will be focused on the scope of the prohibitions under article 33 of the Geneva Conventions, the terms terrorism and terror within the context of IHL, the two types of international humanitarian law -the Law of the Hague and the Law of the Geneva and the term

“Military necessity”.

1.4.0   Scope of the Study

The study is limited to the assessment of the application of international humanitarian law in the fight against terrorism (A case study of Boko Haram crisis in North Eastern part of Nigeria). This study is concerned with the international humanitarian law -the Law of Hague and the Law of the Geneva and the term “Military necessity” and some cases will be cited.

1.5.0   Methodology

The research method is basically narrative which is mainly library derived because the work is theoretical. This was mainly based on primary sources of information e.g. International Conventions, (IHL) provisions, judicial decisions, provisions of laws  and secondary sources of information e.g. text books, research reports, journals, seminar papers et cetera relevant to the subject.  The methodology will also utilize the analytical approach which involves a study of the concepts and definitions of terms of law context.

1.6.0 Literature review

Analytical studies of terrorists from a historical perspective are a rather unexplored area. These sections will review literatures on the application of International Humanitarian Law (IHL). It is pertinent to note that armed confrontations between peace operations and an armed group are not formally governed by international humanitarian law, if they are only of a low intensity or if the armed group is insufficiently organized. In the same vein, the law of occupation does not apply to a peace operation administering the area of operation in its entirety, if it has obtained the

explicit consent of the host state authorities to this effect¹

 

However, even if humanitarian law does not apply de jure, it may still play a significant role in Regulating the conduct of the peace operation. Some authors have suggested that in such cases, humanitarian law should be applied by analogy^[8].  A similar approach is reflected in the practice of states and international organizations involved in peace operations. The assurance given by the United Nations since the early 1950s to abide by the ‘spirit and principles’ of the Geneva Conventions follows the idea of applying humanitarian law as a matter of policy.

 

Moreover, the NATO Allied Joint Doctrine on Peace Support Operations also stipulates that certain provisions of international humanitarian law may be applied where the peace operation Is not a party to an armed conflict?  For the personnel on the ground, this may have the advantage that they are not confronted with two different sets of applicable rules and would subsequently diminish the role of the threshold of international humanitarian law^[9].

Moreover, there is wide support among scholars and practitioners to apply the law of occupation by analogy to peace operations performing tasks similar to those of occupying powers, for instance the military components of international territorial administrations.  Although in most of these cases, the law of occupation will generally not be applicable as a matter of law, this legal regime offers practical solutions to many problems which such missions may encounter and for which the resolutions of the Security Council do not provide sufficient guidance.

The approach to apply humanitarian law as a matter of policy is partly motivated by the aim to close the protection gap that might otherwise arise and to provide individuals affected by the conduct of peace operations with at least some protection under international law^[10].

Applying humanitarian law by analogy is, however, not without difficulties. Many provisions are specifically designed for situations of armed conflict, terrorism, (or occupation) and are consequently more permissive than those applicable in times of peace, for instance with regard to the use of (lethal) force, the restriction of liberty or the seizure or destruction of property^[11].

 

Golder, B and Williams G^[12], therefore, caution against applying humanitarian law as a matter of policy and stress that states and international organizations are not free to replace the legal framework applicable in peacetime (i.e. international human rights law) with the more lenient rules of humanitarian law, unless the conditions for their application are met.

1.7.0    Chapter outline

The study is divided into five chapters. Chapter one is on the general introduction which includes background of the study, objectives of the study, focus of study, scope of study, research methodology adopted and review of related literatures.  Chapter two discusses the application of

International Humanitarian Law.  Chapter three is the history and evolution of International

Humanitarian Law. Chapter four deals with the obligations under International Humanitarian Law and Human Rights Law, while chapter five dwells on the summary, conclusion and recommendations.

[1] https://www.icrc.org/en/document/terrorism–counter–terrorism–and–international–humanitarian–law accessed on 20/3/2021

[2] ibid

 

[3] Egbegi, F.R., Ajah, B.O. and Ogbonnaya, C. (2018).Combatting Boko Haram insurgency through a superior ideology: the role of the federal government. European Journal of Political Science Studies, 1(2), 13-23

 

[4] Agbiboa, D.E. (2013). Why Boko Haram exists: the relative deprivation perspective. African Conflict and Peace building Review, 3(1),144-257.

[5] Agbiboa E. D. (2015). The Socio-economic dynamics of the Nigerian taliban: fresh insights from the social identity theory. Social Dynamics, 41(3), 415-437

 

[6] Onuoha, F. C. (2012). Boko Haram: Nigeria’s Extremist Islamic Sect. Al jazeera Centre for Studies, 29(2),1-6.

 

[7] Onouha’ Boko Haram ibid

[8] Fletcher, G.P. (2006), The Indefinable Concept of Terrorism Journal of International Criminal Justice – 894-911

[9] NATO Allied Joint Doctrine, Peace Support Operations, July 2001, AJP-3.4.1, para. 4B6 (‘The Law of Armed Conflict (LOAC)

[10] Gearty, C (2005), Counter-terrorism, and the Human Rights Act  Journal of Law and Society32  18-33

[11] Herman, S. (2006), The US Patriot Act and the Submajoritarian Fourth Amendment HarvardCivil Rights-Civil Liberties Law Review 67-132

[12] Golder, B and Williams G. (2006),                    Balancing National Security and Human Rights: Assessing the Legal

Response of Common Law Nations to the Threat of Terrorism. Journal of Comparative Policy Analysis  43-62

 

AN ASSESSMENT OF THE APPLICATION OF INTERNATIONAL HUMANITARIAN LAW IN THE FIGHT AGAINST TERRORISM

Sharing is caring!