A CONSIDERATION OF ARMED CONFLICTS IN THE NIGER DELTA UNDER THE PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW

  • : Ms Word Format
  • : 70 Pages
  • : ₦3000
  • : 1-5 Chapters
  •  
  • Click to DOWNLOAD Materials

A CONSIDERATION OF ARMED CONFLICTS IN THE NIGER DELTA UNDER THE PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW

ABSTRACT

The title of this thesis – A Consideration of Armed Conflicts in the Niger Delta under the Principles of International Humanitarian Law – is informed   chiefly by the critical economic importance of the region to Nigeria. Like some other countries of the world, Nigeria is currently experiencing an upsurge in the number of internal armed conflicts it has to contend with. Between the years 2005 and 2009, the Niger Delta Region of Nigeria was embroiled in such violent internal armed confrontation between the Federal Government and several militant groups which sprang up in the region.   This led to hundreds of civilian and other casualties, the destruction of properties, the sacking of entire communities as well as the displacement of hundreds of civilian population.  This thesis undertakes an examination of the nature of the conflict that took place in the region under the principles of International Humanitarian Law regulating non-international armed conflict. This is done to buttress the case for the application of the principles of International Humanitarian Law in cases similar to that which took place in the Niger Delta Region. In carrying out this task, the doctrinal research method which involves research into law as a normative science is adopted.  Relevant materials such as primary and secondary source materials including international legal instruments, relevant domestic legislations, relevant decisions of international and domestic courts and tribunals, proceedings of international commissions, UN documents, textbooks, articles in journals, materials from the internet as well as newspapers are referred to.  Consequent upon the research carried out, it became apparent that neither the Federal Government nor the militant groups were aware of their obligations under International Humanitarian Law during the pendency of the conflict. This resulted in multiple and severe violations of the principles of this branch of law for which no single person has been made to account. Arising from the above observation and as a panacea to such impunity, this thesis recommends a harmonization of the extant rules of International Humanitarian Law governing such internal conflicts and also, the strengthening of the mechanisms of dissemination and enforcement of same. This work shows succinctly, that the conflict that took place in the Niger Delta region falls squarely within the ambit of International Humanitarian Law regulating internal armed conflicts.

N.W.L.R.

 

 

 

 

  Nigerian Weekly Law Report

TABLE OF CONTENTS

Title page         –           –           –           –           –           –           –           –           –                     i Approval –           –           –           –           –           –           –           –           –                    ii

Declaration      –                      –           –           –           –          –           –           –                   iii

Certification –              –          –           –           –           –          –           –           –                   iv

Dedication       –           –          –           –           –           –          –           –           –                   v

Acknowledgement       –           –          –           –           –          –           –           –                    vi

Abstract           –           –           –          –           –           –          –           –           –                   vii

Table of Cases –           –           –          –           –           –          –           –           –              viii-ix

Table of Statutes          –          –           –           –           –          –           –           –                x-xi

List of Abbreviations –            –           –           –           –          –           –           –                    xii

Table of Contents        –          –           –           –           –          –           –           –           xiii-xvii

CHAPTER ONE

INTRODUCTION

1.1   Background to the Study

Armed conflict in human relations is today accepted as an unfortunate but inevitable reality.  Its history is as old as man. Violent conflicts, aided by advancement in science and technology, have assumed dimensions that would never have been thought possible. From pristine times, man has striven to humanize various forms of armed conflict[1] and as has been noted “attempts to regulate war are as old as war itself.” [2]

At the core of international humanitarian law, is the aim of mitigating human suffering caused by armed conflicts. International humanitarian law refers to the body of treaties, conventions, international jurisprudence, internationally recognized principles and customs that govern the conduct of parties to an armed conflict, so as to limit human suffering, particularly of non combatants. It is a branch of international law that seeks to regulate and limit the use of violence during armed conflict by saving those who do not or no longer directly participate in hostilities. This end is achieved by limiting the use of violence during armed conflicts to the amount necessary to achieve the aim of the conflict, which ultimately, is to weaken the military potential of the enemy. International Humanitarian Law has been defined as the branch of international law limiting the use of violence in armed conflicts by: sparing those who do not or no longer directly participate in hostilities and restricting it to the amount necessary to achieve the aim of the conflict, which – independently of the causes fought for – can only be to weaken the military potential of the enemy.[3]

Essentially therefore, the basic principles of international humanitarian law involves the distinction between civilians and combatants, the prohibition to attack those hors de combat, the prohibition to inflict unnecessary suffering, the principle of necessity and the principle of proportionality.4 It involves humanitarian intervention, which simply put, is forceful intervention for the interest of humanity.

 

In its early stage of development, international humanitarian law was concerned mainly with international wars. However, a number of factors now combine to make international humanitarian law accommodate armed conflicts that were before now purely the internal affairs of a state. Foremost among such factors is the fact that in recent times, there has been a decrease in the number of international armed conflict, which has however been offset by an increase in the number of violence inside countries.

 

One of the most poignant challenges of the idea of law is its ability to adapt (or be adapted) to novel situations not in existence or not contemplated at the time of its enactment. It is for this reason that international humanitarian law has been made applicable to internal conflicts and should be expanded further to accommodate newer forms of internal confrontations. The conflict that erupted in Niger Delta region a few years ago (and which still lingers),[4] came short of threatening the continued corporate existence of Nigeria. This is an almost novel form of armed conflict which international humanitarian law should be made to accommodate.

This proposed dynamism and expansion of the rules of international humanitarian law would serve to stem the tide of impunity rampant in such conflicts and protect helpless civilians and other victims caught up in the maelstrom of internal violence, disturbances and public emergency. These ends will no doubt outweigh whatever notions of state sovereignty that might possibly be eroded in the process.

1.2   Statement of Research Problem

In recent times, conflict in the Niger Delta of Nigeria began sometime in the early nineties as a result of tension between the foreign oil corporations and a number of Niger Delta Minority ethnic groups who felt they were being exploited. A good number of militant groups sprang up alongside other smaller militias, attacking oil installations and subsequently, forces of the Federal Government. These conflagrations were concentrated primarily in Rivers, Delta and Bayelsa States. In the middle of the last decade, the groups had several violent and intense confrontations with the forces of the Federal Government. These led to loss of lives of thousands of innocent civilians. In these conflicts, the state forces failed to protect the civilian population from the violence and actually increased the destruction of citizens’ livelihood.

In view of the critical economic importance of the  Niger Delata region to Nigeria, the armed conflict in the region has attracted furore and examination both in academic and popular discourses. From the legal perspective alone, the conflict has implications on constitutionalism, human rights, environmental law, torts, property and criminal law among others. However, in carrying out this research, this writer did not find any legal material in which the nature of the conflict has been examined from the perspective of international humanitarian law.

At the core of this research, is desire to bridge this gap and provide a critical source material, which will offer an in depth analysis of the nature of the conflict based on the principles of international humanitarian law  having both legal as well as historical academic utility. This will further ensure that the body of knowledge available on the conflict becomes more holistic. No aspect of the conflict should be left to speculation and uninformed discourse.

Further, it would appear that both sides to the conflict (the Federal Government and the various militant groups) were not aware of implications of the conflict under international humanitarian law. Both sides must be made to become aware of their liability under this branch of the law. These will include matters such as the nature of the conflict, international legal status of the parties, the legality or otherwise of the means and methods of warfare employed, the protection made available to civilians, the wounded, sick and other persons, the individual and collective responsibility of the state and the militants groups for violation of international humanitarian law. This is because, all the high sounding declarations and sentiments expressed in treaties, conventions, protocols and domestic law will be useless and diversionary, if in time of conflict they are disregarded.[5]  Given the evidence that internal armed conflicts are on the increase,[6]  the regime for the regulation of such conflicts under international humanitarian law appears to be inadequate. There is thus an urgent need to reappraise the current principles to ensure that civilians have adequate protection in the event of such conflict and victims have justice and also to ensure that unnecessary use of force and impunity is punished.

1.3         Aim/General Objective

The general aim/objective of this research is to examine the principles of international humanitarian law relating to non-international armed conflicts using the Niger Delta conflict as a case study to verify if such conflicts can be covered by its provisions.

1.4         Specific Aims and Objectives of the Research

The primary aim of this thesis is to examine the principles of international humanitarian law as it touches on internal armed conflict to see how well adapted it is to cover new situations. This work seeks to expound the frontiers of this area of the law, especially with regards to civilians and other members of the society who are not directly engaged in hostilities to ensure adequate protection for them. The specific objectives of this research are to:

  1. Examine the principles of international humanitarian law regulating non-international armed conflict so as to appraise how well adapted it is to accommodate newer forms of internal conflicts that are continually evolving.
  2. Trace generally, the origin of conflicts in the Niger Delta region, the causes of the conflict under study, the factors that eventually led to its decline into armed conflict as well as highlight the dominant aspects of the conflict.
  • Locate the conflict that took place in the Niger Delta region within the extant provisions of international humanitarian laws relating to non-international armed conflict.
  1. Examine the question of responsibility (accountability) for violence under international humanitarian law, and the ability of the law to make the perpetrators of such violence accountable individually and collectively and thereby reduce impunity.
  2. Analyse the question of responsibility of the state during and the end of an internal armed conflict, to the parties who took part in the conflict as well as to other persons who do not take part in the conflict but have been affected by it.
  3. Appraise the legal status of the various armed groups involved in the conflict under international humanitarian law as well as the legal basis of their being held responsible under international humanitarian law
  • Consider the mechanisms of implementation and enforcement available under the provisions of both international and municipal law for violations of international humanitarian law especially in cases of internal armed conflicts.

1.5         Research Methodology

Method is the manner of  proceeding adopted by researchers in a bid to gain valid and reliable knowledge  about the working of law in society. Methodology is the science of methods and it has been defined as the systematic and logical study of the general principles concerned in the broadest sense with the questions of how knowledge is established, and how others can be convinced that the knowledge is correct.[7] Essentially, four types of legal research have been identified; they include: analytical, historical, comparative and statistical.9

The need to ensure accuracy of the information presented in this work necessitated the nature of work undertaken in this research which is at once analytical, historical as well as comparative.

Analytical research involves exploration of what the existing law is governing any set of factual situation; it entails examining the relevant municipal legislation (whether federal or state) or the relevant international law norm applicable to such situation[8]. Irrespective of the whether the applicable law is municipal or international, recourse is usually had to decisions of relevant judicial panels wherein the law has been applied and tested in order to arrive at acceptable conclusions. Historical research is aimed at describing legal enactments, statutes, institutions or social phenomenon in their unique socio-historical perspectives. Historical research is desirable when it becomes necessary to find out the previous position of either the law or a particular social phenomenon in order to better understand the reason behind the existing law and the course of their evolution. Comparative research on the other hand involves the study of the laws of different states on any given subject-matter; also, more than one regime of legislation may govern a particular scenario – comparative research also involves comparing the various legislations whether domestic or international regulating any given situation.

Chapter two of this work basically involves analytical research wherein the international legal regime of non-international armed conflict is critically appraised.  In chapter three of this work, this researcher went into the annals of the history of conflicts and struggles in the Niger Delta region of Nigeria from the pre-colonial era through the colonial era and then the period of militancy. The immediate and remote causes of the conflict are analyzed and the implications of the militant aspect of the conflict examined side by side the provisions of International Humanitarian Law. Also, the historical evolution of the law regulating non-international armed conflict is traced from the origins under the 1949 Geneva Conventions to the present. Also, in chapter four, the origin and development of the legal principle of individual criminal responsibility in non-international armed conflicts is traced from the time of the Nuremberg and Tokyo International Military Tribunals to the present situation under the Statute of the International Criminal Court.  Chapter four of this work also analyses the jurisprudence espoused by the said tribunals as well comparing same to the present position of the law under the Statute of the International Criminal Court.

Essentially, two broad categories of legal research are identifiable; doctrinal research and the nondoctrinal research. Doctrinal research involves research into law as a normative science; it involves analysis of statutory provisions (including municipal and international statutes) and relevant case law. Non-doctrinal research on the other hand, studies the actual working of the law as well as the relationship between law and other behavioural sciences. In doctrinal research, emphasis is not really on legal doctrines and concepts but on people, social values and social institutions.[9] In carrying out this research however, this researcher employed the doctrinal research technique. This work basically examines the law regulating non-international armed conflict situations. Recourse is made to both primary and secondary sources of materials in this area of the law.

In the case of primary sources of the law, references were made to International Conventions, Resolutions, Declarations and Protocols. This work also utilizes relevant local legislations such as the Constitution of the Federal Republic of Nigeria, the Criminal Code etc. Important judicial decisions, such as those delivered by the International Criminal Tribunal for Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC), are referred to alongside cases decided by Nigerian courts where necessary.

With regards to secondary sources of the law, references are made to indigenous and foreign literature on international humanitarian law and related materials. These include books, journals articles, chapters in books, conference papers, newspaper articles as well as materials from the internet. Finally, past works in the subject matter of this research are referred to, acknowledged and re-appraised.

1.6       Literature Review

It must of necessity, be emphasized that although textbooks on international law and International Humanitarian Law abound, materials dealing specifically with internal armed conflict as a branch of international humanitarian law are few.  So far, this researcher did not encounter any on the humanitarian aspects of the armed conflict of the Niger Delta. Also, with regards to the basic international legal instruments governing this branch of the law, there is the need to have a concise overview. All these constitute the pith of this review. Credit must however be given to the International Committee of the Red Cross (ICRC) which has carried out extensive work on international humanitarian law generally. This is informed by the fact that promoting and strengthening of international humanitarian law is central to the mission of the ICRC and forms part of a cornerstone of its mandate to work for the faithful application of its principles. The major Conventions and other instruments regulating international humanitarian law have been reproduced over the years by the ICRC.  These include the 1949 Geneva Conventions (which contains article 3 common to the four Geneva Conventions and which was the first international instrument that sought to regulate non-international armed conflicts) as well as the 1977 Protocols Additional to the Geneva Conventions. Also a very useful publication of the ICRC is their publication, International Review of the Red Cross, (IRRC), published once in two months and which has been published since 1960. This publication has dealt extensively and incisively on diverse topics covering various aspects of international humanitarian law and even on its principles regulating non-international armed conflicts. This research draws insights from a good number of these publications, and extends the frontiers of these in this work.

Of particular importance to this work is a special edition published to mark the 20th anniversary of the Additional Protocols.[10] In this edition, several scholars and lawyers who were involved in the codification process of the Protocols were invited to review the workings of these Protocols twenty years later. Therefore, the edition examined the history as well as the philosophy behind the Protocols as well as how well states have adapted to and implemented and enforced its provisions. This edition is very useful in this work especially discussions on Protocol II.

A very important edition of the IRRC that is very useful in this research is the June 2011 edition which focused on ‘Understanding Armed Groups and the Applicable Law.’[11] This edition examined through the various contributors, the appropriate international legal regime governing the activities of non-state armed groups, their organizational structure, the economic dimensions of the activities of these groups, the reasons behind their decisions to obey or disobey international instruments. Very critically, the legal justification for the binding nature of international humanitarian law provisions for non state armed groups was also discussed.[12] The various contributions are of benefit to this research work, and although references were made to various internal conflicts that have taken place in other parts of the globe, no allusion was made to the Niger Delta conflict. This research work aims at bridging this gap.

Another groundbreaking work of the ICRC is its 2011 book which comes in three volumes.[13] This work is a vital compendium of relevant materials on IHL including Cases covering national as well as international judgements as well as all the relevant instruments and Documents on international humanitarian law. The first volume is made up of fifteen chapters covering all the major aspects of the law.  Of particular importance to this work however, are chapters eleven and twelve which deals with the law of non-international armed conflicts and the implementation of international humanitarian law respectively. The latter chapter has a full section dealing with implementation of the law in time of non-international armed conflict. Volumes II and III provides extensive materials covering cases and other documents on international humanitarian law. These include the texts of Conventions, Regulations, Declarations UN Resolutions, inter governmental documents, Documents of the ICRC, proceedings of meetings, relevant National Legislations and statements. Other materials provided include cases and documents relating to past and present conflicts, reports of Non-Governmental Organisations as well as sundry other materials relevant to the teaching of and research in international humanitarian law. Once again, in this prodigious work, the only reference to conflict that have taken place in Nigeria is with regards to the Operational Code of Conduct for the Nigerian Army issued in 1966 by the then military Head of State, Major General Yakubu Gowon as well as a decision of the Nigerian Supreme Court, Pius Nwaoga v The State.[14] Both references relates to the Nigerian Civil War which took place over four decades ago.[15] No reference is made to the Niger Delta conflict. Once again, this is an omission that this work seeks to correct by bringing the Niger Delta conflict into international consciousness.

The Proceedings of the 10th Bruges Colloquium[16] (another publication of the ICRC), comprises of a collection of essays that examines the various classes of armed conflicts under international humanitarian law and the instruments regulating same. More importantly, the colloquium vide the various presentations sought to answer the question as to whether the body of law is still adequate for these conflicts in the light of contemporary realities, as well as how to alleviate suffering during armed conflict. The consensus opinion at the end of the session was to the effect that the current streams of international humanitarian law regulations should be adapted to meet the ever changing nature of armed conflict. Aside from the need to harmonise the extant regulations which is canvassed later in this work, the position of the colloquium is much in line with the opinion expressed in this work.

The work of Harris[17] on international law generally is one which provides a ready source book on cases and materials on international law generally. It helps in providing background knowledge on the general principles of international law as well as relevant cases on international law. This book is made up of twelve chapters spanning across the major topics of international law. Chapter ten, which discusses the law of treaties, is particularly useful to this research with regards to the binding nature of international humanitarian law instruments to non-state actors who ordinarily do not take part in the process of their formation nor have a right to ratify same, but whose provisions are considered binding on them nonetheless.

Umozurike’s book20is a handy introductory text on international law. It explains conventional topics of international law such as sources of international law, international personality, recognition, relationship between international law and municipal law etc. It devotes a full chapter21 to the examination of international humanitarian law, considering generally and in a concise manner, issues such as historical background and the position of the law in relation to both international and internal armed conflict. The chapter on international humanitarian law is however shallow and lacking in detail and relevant illustrations. Ladan’s introductory book[18] also examines in a general manner, relevant topics in both Human Rights as well as International Humanitarian Law. Made up of ten chapters, this book explores the close relationship between both branches of law, highlighting the origin and development of both and the points of intersection as well as how human rights can be protected in times of armed conflict. It further considers the penal responsibility and sanctions for breaches of international humanitarian law as well as its implementation. These contributions provide useful background information from which this works draws from and also improves upon.

This research work revolves round what transpired in the Niger Delta Region, hence a part of the work focuses on the region and the history of armed struggle therein. Therefore, Wifa’s paper[19] which focuses on the problems and challenges facing the region is very relevant to this work. It undertook an overview of the region, its geographic as well as ecological components, cultural heritage as well as identifying the core reason for the unrest in the region as being the failure of governance at all levels, unemployment as well as lack of access to basic necessities of life by the vast majority of the populace.  Although it considered the question of access to justice through the court system by the inhabitants of the region, no reference is made to international humanitarian law or redress that can be achieved through the workings of the International Criminal Court. This is another of the gap that this work seeks to bridge.

The Proceedings of a Seminar on the Niger Delta24 has a thematic resemblance to that of Wifa in that it explores the challenges of the Niger Delta Region. However, the proceedings of this seminar were concerned with the environmental as well as socio-economic and political challenges of the region and no legal perspective was brought in. It however serves as a helpful source material to this research work.

The book by Ajala and Sagay,[20] is a collection of essays by scholars of international affairs and international law respectively. It examined areas such as the historical background to international humanitarian law, its implementation, an evaluation of its operation in Nigeria, Armed conflicts in Africa, the work of the ICRC in Nigeria among others.

In spite of the brilliance of most of the essays, there were some salient omissions that are worth noting. The first essay[21] for example, failed to discuss the drafting history of both the Geneva and the Hague Conventions even though it was meant to be a historical and analytical discourse.

The essay by Jegede[22]  is even more  scanty in terms of the actual action of the Federal Government in the Nigerian Civil War which incidentally, was the only case used to examine the implementation of international humanitarian law principles by the Nigerian Government.

Kalshoven and Zegveld’s[23] book is a concise exposé on the principal rules of humanitarian law. It examines the object and purpose of humanitarian law, the role played by customs and treaties and the mechanisms of implementation and enforcement. It considers also the history and development of the Hague and Geneva Laws, and the additional protocols of 1977. The book delved further into post 1977 development such as the ICTY, the ICTR the ICC, collective responsibility and compensation for violations, national jurisdiction and individual responsibility and the working of the ICRC.

The strength of this book lies in its simplicity of presentation, making it appeal to persons encountering this area of the law for the first time. Paradoxically however, due to this simplicity and style of presentation, one is hard put trying to figure out if it can seriously be classed as a legal work. This is so because in the presentation of materials, neither footnotes nor endnotes were used. It is therefore difficult to ascertain the sources which the authors relied on.

‘International Humanitarian Law: An Anthology’,[24] is another work worthy of consideration for the purpose of this research.  This book is a collection of well researched essays cutting across virtually all areas of international humanitarian law. It is made up of twelve chapters from different contributors. It gives a thematic discussion of topics and will be very useful to both students and teachers of this branch of law at all levels of study.

It provides a holistic and detailed analysis of the relevant international humanitarian law instruments with ample illustrations of events and conflicts from very early times when the law was still in its formative years to the present. It also provides a comprehensive overview of national and international perspectives and State practice. In all, this book goes a long way to fill the present vacuum in the availability of literature in this area and will be of immense benefit to this researcher.

Moir’s treatise, ‘The Law of Internal Armed Conflict’[25] is a book made up of three hundred and six pages with six chapters and published in the United State of America. Whereas there are volumes of materials on international humanitarian law generally and of traditional wars fought between Sovereign States, this is not so for newer forms of armed conflicts taking place within Sovereign States. This book examines strictly the legal regime of internal armed conflict under International Humanitarian Law. It considers the customary laws of war and belligerent practice, the development of the law for internal armed conflict and the drafting history of Common Article 3. It goes further to examine in detail the provisions of Article 3 Common to the Geneva Conventions and also the additional protocols of 1977. It further X-rays the customary international law regulating internal armed conflicts, human rights in times of such conflict and finally, the implementation and enforcement of the laws of internal armed conflict. This endeavour is therefore a valuable and timely one, in this era when Internal Armed Conflicts are on the increase and the need for testing of relevant laws is of utmost importance.

Gasiokwu’s[26] festschrift in honour of Justice Tabai comprises of a wide array of topics on International Law. However, of particular interest to this researcher is the chapter on the implementation of the Law of Armed Conflict in the 21st Century.[27] It examines the obligations of States in the implementation of the law of armed conflict, the possible ways of disseminating humanitarian rules, municipal application of these rules, repression and punishment for violation of these rules, the implementation of international humanitarian law in Nigeria alongside the work of the Nigerian Red Cross Society. It further looks into the concept of individual responsibility and other violations of the rules of international humanitarian law. This work is more or less a wake-up call to sovereign States to be alive to their obligations under international humanitarian law.

1.7 Definition of Terms

There are certain terms that are used repeatedly in this work; they include: the Niger Delta region, international humanitarian law, armed conflict, international armed conflict and non-international armed conflict.

1.7.1 The Niger Delta Region

The Niger Delta region in Nigeria is situated in the southern part of the country and bordered to the south by the Atlantic Ocean and to the East by Cameroon. It is that location associated with the lower Niger, especially where the river splits into major tributaries; Rivers Nun and Escravos. It starts from the Benin basin in the western flank of the region, flows up to Aboh in the north and then to the Imo river.[28] In Nigeria today however, the Niger Delta is now synonymous with oil production; it is assumed that all oil producing communities are part of the Niger Delta.[29]

1.7.2 International Humanitarian Law

If armed conflict breaks out, be it legally or illegally, legitimately or illegitimately, some rules must be applicable in order to regulate the relationship between the parties engaged in hostility. International Humanitarian Law refers to the body of treaties, conventions, international jurisprudence, internationally recognised principles and customs that govern the conduct of parties to an armed conflict, so as to limit human suffering, particularly of non-combatants. It that branch of international law that seeks to regulate and limit the use of violence during armed conflict by saving those who do not or no longer take part in hostilities. It is a branch of public international law which regulates the conduct of warfare, the protection of persons and of goods and the conditions of the states not participating in a war, known as neutrals. This branch of the law is set in motion every time the peace breaks down and hostilities take place.[30]

1.7.3 Armed Conflict

The term armed conflict has now generally substituted the word war under International Humanitarian Law. An armed conflict can be said to be in existence whenever there is any conflict between states or between states and organized armed groups within a state that leads to resort to armed force between states or protracted armed violence between a state and such an organized armed group.[31] Generally, armed conflicts are categorized as either being international or non-international.

1.7.4 International and Non-International Armed Conflict

An international armed conflict can be defined as any difference arising between two states leading to the intervention of members of the armed forces; it makes no difference how long the conflict lasts or how much slaughter takes place[32]. A non-international armed conflict on the other hand, is a confrontation between the existing governmental authority and groups of persons subordinate to this authority, which is carried out by force of arms within national territory and reaches the magnitude of and armed confrontation or a civil war.38

1.8 Significance of the Study

This study establishes the criminal liability of parties to the Niger Delta conflict, that is, the federal government as well as the various armed groups. It underscores the need for a liberal and dynamic interpretation of the extant rules of International Humanitarian Law regulating non-international armed conflicts as the panacea to impunity during conflicts such as that of the Niger Delta.

[1]  One of the earliest of such attempts was made in the code of Hammurabi written by Hammurabi king of Babylon who lived between 1728-1686 B. C.; the Laws of Manu of ancient India written sometime before the first century BC also contained numerous humanitarian norms. See also II Kings 6:21-23 which proscribes slaying of the captured.

[2] Jocknick, C. and Normand, R., The Legitimation of Violence: A Critical History of the Laws of War   in H.I.L.J., Vol. 35, Winter 1994 at 55.

[3] See Sassoli, M., Bouvier, A.A., and Quintin, A., How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law  3rd Edn., (ICRC), Geneva, 2011, Vol. 1 at p.93. 4  See Sassoli, M., Bouvier, A.A., and Quintin, A., How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law Vol. I (3rd ed.)(Geneva, ICRC, 2011).

[4] st

On October 1 2010 for example, there were two bomb explosions in Abuja which led to the death of over a dozen persons and for which MEND, a militant group in the Niger Delta has claimed responsibility. Also, in November 2010, there were reported cases of Skirmishes between the Federal Government’s Joint Task Force and a new militant group known as the Niger Delta Liberation Force (NDLF) which claimed several lives and rendered many homeless, see The Guardian of November 13, 2010.

[5]  Sagay, I., “Evaluation/Assessment of the Level of Implementation of International Humanitarian Law in Nigeria”  in Implementation of International Humanitarian Law in Nigeria, Ajala, A., & Sagay,I., (Eds.) ICRC, 1997 where a similar view was expressed.

[6] See Moir, L., The Law of Internal Armed Conflict, ( New York:  Cambridge University Press ,2002) at p. 85.

 

[7] Bulner, M., Sociological Research Methods: An Introduction, London: Macmillian Press Ltd., 1977, p.4. 9 See Gasiokwu, M.O.U., Legal Research and Methodology: The A-Z of Writing Theses and Dissertations in a Nutshell, Jos: FAB Educational Books, 1993, p.6.

[8] Ibid.

[9] Ibid. at p.14.

[10] IRRC, (Special Edition) No. 320, September-October 1997.

[11] See IRRC, Vol. 93, No. 882, June 2011.

[12] See for example, the contributions of Sassoli, M. and Shany, Y., Should the Obligations of States and Armed Groups Under International Humanitarian Law Really be Equal? and Provost R., The Move to Formal Equality in Internatonal Humanitarian Law- A Rejoinder to Marco Sassoli and Yuval Shany  both in (June 2011), IRRC Vol. 93, No.882,  at pp 425 and 437  respectively.

[13] Sassoli, M., Bouvier, A.A., and Quintin, A., (Eds.) How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, Vols. I, II and III (3rd Ed., Geneva: ICRC, 2011).

[14] [1972] 1 All N.L.R. (Part 1), p.149.

[15] See Sassoli, M., et al,  How Does Law Protect in War…, Op. cit., Vol. II at pp. 953-957.

[16] Proceedings of the Bruges Colloquium, Armed  Conflicts and  Parties to Armed Conflicts Under IHL: Confronting Legal Categories to Contemporary Realities, 10th Bruges Colloquium, 22-23 October, (ICRC) 2009.

[17] th

See Harris, D.J., Cases and Materials on International Law (5 Ed., London : Sweet & Waxwell,1998). 20                 rd

See Umozurike, U.O., Introduction to International Law (3  Ed., Ibadan: Spectrum Books Limited 2005).  21   Chapter 18.

[18] Ladan, M.T., Introduction  to International Human Rights and Humanitarian Laws ,(Zaria: Ahmadu Bello University Press, 1999).

[19] Wifa, B.M., Developing a Model Legal and Justice Sector in the Niger Delta: Prospects and Challenges being a paper delivered  at the Niger Delta Development Commission  – Nigerian Bar Association Conference on Law,  Peace and Development  in the Niger Delta Region, 2008 May 4-7, Hotel Presidential,  Port Harcourt, Rivers State. 24 See,Ozo-Eson, P.I., & Ukiwo, U., “Challenges of the Niger Delta”, Proceedings of a Seminar on the Niger Delta,  (Port-Harcourt), Centre for Advanced Social Science (CASS),  March 2001.

[20] See  Ajala, A., & Sagay, I., Implementation  International Humanitarian Law in Nigeria, ICRC   1997.

[21]   Ajala, A., “Background to International Humanitarian Law and its Implementation”, ibid., p. 1.

[22]  Jegede, M.E., Introduction to International Humanitarian Law: Implementation in Nigeria in Ajala, A., & Sagay, I., Op. cit.

[23]  Kalshoven, F., & Zegveld, I., Constraints on the waging of War: An Introduction to International Humanitarian Law, ICRC 2001.

[24]  Bhuiyan, J.H., Beck, D.L. & Chowdhury, R.A., (Eds.) International Humanitarian Law – An Anthology , (Nagpur: Lexis Nexis, 2009).

[25] Moir, L., The Law of Internal Armed Conflict, (New York: Cambridge University Press, 2002).

[26] Gasiokwu, M.O.U., (Ed.) Contemporary Issues in International Law – Essays in Honour  Hon. Justice F.F.E. Tabai J.S.C.,( Enugu: Chenglo Limited, 2006).

[27] Angwe, B., The Implementation of the Law of Armed Conflicts in the 21st Century: Some Thoughts on the Impediments in Gasiokwu , M.O.U., ibid., p.175.

[28] See Isoun, T.T., “Environmental Challenges of the Niger Delta” in Challenges of the Niger Delta (Proceedings of a Seminar on the Niger Delta) Ozo-Eson, P.I., and Ukiwo, U., (2001), Centre for Advanced Social Science, p.78.

[29] Under section 2 of the Niger Delta Development Commission  (Establishment,etc.) Act, Cap. 86, Vol.11, L.F.N. 2004, nine states are listed as forming part of the Niger Delta: Akwa-Ibom, Bayelsa, Cross-River, Delta, Edo, Ondo, Rivers, Abia and Imo states.

[30] See Kolb, R., and Hyde R., An Introduction to the International Law of Armed Conflicts (Oxford: Hart Publishing, 2008) at p.8.

[31] See Prosecutor v. Tadic,  Case No. IT-94-T, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October, 1995, Para.70.

[32] See Prosecutor v. Munic et. al., Case No. IT-96-21-T, (Judgment), 16 November 1998, Paras. 184, 208. 38See Greenwood, C., “Scope of Application of Humanitarian Law” in Fleck, D., (ed.), The Handbook of Humanitarian Law in Armed Conflicts (2nd ed., Oxford: Oxford University Press, 2008), p.54.

 

A CONSIDERATION OF ARMED CONFLICTS IN THE NIGER DELTA UNDER THE PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW

Leave a Reply