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Law 507 Assignment I
Student’s Name: Chijioke Malachy Attamah
Student ID: A00019675
Word Count: 2943
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1. Introduction
The lingering conflicts between the Nigerian security forces and the Boko Haram militias have
attracted international attention, especially in the area of International Humanitarian Law. This
article will be discussing among others; the meaning of IHL, the meaning of internal armed
conflict, historical evolution of IHL, obligation of State parties in protecting non-combatants
during the time of conflicts, application of IHL, as well as the relevance of IHL in managing
internal conflicts and protecting rights of non-combatants in Nigeria; with the conflict between
Nigerian security forces and Boko Haram as a case study. At the end a conclusion will be made
with a few recommendations.
2. Definition and Meaning of International Humanitarian Law
International Humanitarian Law (IHL) is a set of rules established by treaties or customs that
restricts parties to armed conflict from adopting any method of war of their choice in the course of
the war.1 In the event of non-international armed conflict, or internal conflict, international
humanitarian law applies.2 IHL is a body of law that is aimed at limiting the methods and means
of warfare, and protects people who are not, or no longer taking part in the hostilities.3 It is a branch
of international law that regulates the relationship between States, international organizations and
other subjects of international law during war or armed conflict.4 IHL seeks to protect noncombatant (civilians) who may be affected by the war, including those wounded in the course of
1
Sanchi, Kabir. "The Place of Boko-Haram Insurgency Under International Humanitarian Law." Available at SSRN
3013564 (2016).
2
ICRC. "Internal conflicts or other situations of violence–what is the difference for victims?" (2012).
3
Ibid.
4
Inter-Parliamentary Union, International Humanitarian Law, 2016, Handbook for Parliamentarians N°
25, available at: https://www.refworld.org/docid/583553aa4.html [accessed 7 December 2020].
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taking part in the war, religious and medical personnel, and those who for one reason or the other
are no longer actively participating in the war.5 It limits the amount of violence that may be caused
by the combatants to the amount necessary for the purpose of war under international law. 6 The
rationale behind the existence of IHL is to regulate the means and methods of warfare which parties
to may employ, and to ensure the protection and humane treatment of persons who are not, or
taking part in the hostilities.7 It protects victims of armed conflicts and regulates hostilities based
on a balance between military necessity and humanity. 8 IHL comprises a body of rules of
international law that establish minimum standards of humanity that must be respected in any
situation of armed conflict.9
3. Definition and Meaning of Internal Conflict
The term internal conflict also known as non-international armed conflicts is the armed conflict
between a state’s military forces and other armed group(s) within the territory of the state which
are not operating under the authority of the state.10 It is a protracted armed confrontation that occurs
between governmental armed forces and the forces of one or more armed groups, or between any
5
Sanchi, Kabir, Op. Cit.
6
Ibid. See also Bouvier, Antoine A., and Harvey J. Langholtz. "International humanitarian law and the law of armed
conflict." USA: Peace Operations Training Institute (2012).
7
Ibid.
8
Melzer, Nils. International Humanitarian Law: a comprehensive introduction. International Committee of the Red
Cross, 2016.
9
Okoh A. Alubo and Morgan Piwuna. “Observance of Human Rights and International Humanitarian Law by
Nigeria Armed Forces in Internal Security Operations.” International Journal of Humanities and Social Science Vol.
5, No. 9. Available at http://www.ijhssnet.com/journals/Vol_5_No_9_September_2015/15.pdf.
10
Lolaksha Nagaveni, Preethi, and Amit Anand. "International and Non-International Armed Conflicts and
Application of International Humanitarian Law as Lex Specialis." Chotanagpur Law Journal 11, no. 11 (2017): 7891. Available at
https://eprints.lancs.ac.uk/id/eprint/125074/1/International_and_Non_International_Armed_Conflicts_and_Applicati
on_of_International_Humanitarian_Law_as_Lex_Specialis.pdf.
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group arising on the territory of a State which is a party to the Geneva Conventions.11 For an act
to amount to an internal armed conflict, the parties conflicting must be armed, but not in cases like
internal disturbances like riots, civil strife, banditry or other acts where the groups are not armed.12
To better appreciate the meaning of internal conflict within the principles of International
Humanitarian Law, it is material that we consider the definitions provided by two legal sources;
a) Common Article 3 to the Geneva Conventions of 1949 and b) Article 1 of Additional Protocol
II. The Common Article 3 provides that internal armed conflict is an "armed conflicts not of an
international character, which occurs in the territory of one of the High Contracting Parties". 13 This
includes where one or more non-state armed groups engage in conflict capable of causing
hostilities, depending on the situation.14 This could be the governmental armed forces and nongovernmental armed groups like the case of Boko Haram in Nigeria, or between such groups
only.15 In the other hand, Art. 1 of Additional Protocol II provides that internal armed conflict is
that "which takes place in the territory of a High Contracting Party between its armed forces and
dissident armed forces or other organized armed groups which, under responsible command,
exercise such control over a part of its territory as to enable them to carry out sustained and
concerted military operations and implement this Protocol."16
4. Historical Evolution of International Humanitarian Law
11
International Committee of the Red Cross. "How is the Term ‘Armed Conflict’ Defined in International
Humanitarian Law?" ICRC opinion paper (2008). Available at
https://www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf.
12
Lolaksha Nagaveni, Preethi, and Amit Anand, Op. Cit.
13
International Committee of the Red Cross, Op. Cit.
14
Ibid.
15
Ibid.
16
Ibid.
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The origin of IHL dates back to the year 1859 and is attributed to Henry Dunant after the Battle of
Solferino.17 He was seriously disturbed with ugly conditions of the wounded combatant whose
conditions were left unattended to.18 As a result of the deplorable state of events he partnered with
the women of the region to offer assistance.19 Subsequently he published his experiences and made
the recommendations that birthed what we have today as to the International Committee of the
Red Cross (ICRC) and the first Geneva Convention of 1864.20 The two recommendations are; 1)
that a volunteer relief society be established in every country to prepare itself in peacetime to assist
the army's medical service in time of war.21 2) that States should reach a consensus among
themselves on basic international principles that will give a legal basis to the protection of military
hospitals and medical personnel.22 Following the two recommendation made by Henry Dunant,
the Red Cross was founded in 1862 in Geneva by a committee of Swiss citizens and was formally
adopted as the International Committee of the Red Cross in 1880.23 The Geneva Convention of
1864 also provided for equal treatment of the wounded combatants regardless of their allegiances,
the right of civilians to treat all wounded personnel, the neutrality of military medical services, and
for the emblem of the Red Cross to be displayed.24 Similarly, the Hague Law was enacted in 1907
17
International Law of Disasters and Armed Conflict - 1st Edition (Department of Humanitarian Affairs/United
Nations Disaster Relief Office - Disaster Management Training Programme - United Nations Development
Programme , 1996, 78 p.) Available at http://www.nzdl.org/gsdlmod?e=d-00000-00---off-0aedl--00-0----0-10-0---0--0direct-10---4-------0-1l--11-en-50---20-about---00-0-1-00-0--4----0-0-11-10-0utfZz-800&cl=CL1.2&d=HASH855abad83317506b830246&gt=0.
18
Ibid.
19
Ibid.
20
Ibid.
21
Ibid.
22
Ibid.
23
Ibid.
24
Ibid.
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to take care of the rights and duties of belligerents in the hostilities and also limits the choices of
means and methods of conducting war.25
5. Application of International Humanitarian Law
It has become apparent that in most of the recent armed conflicts there have been inconsistency in
the application of international humanitarian law principles by the parties to the conflicts.26 This
is no doubt attributed to the refusal of the parties to the conflicts to adhere to the principles of IHL,
which include but not limited to protecting the rights of the persons who are not participating in
the war, especially civilians, humanitarian service providers and the wounded combatants who are
receiving medical treatment.27 Based on the rule of customary international law, complying with
these rules is mandatory on every state regardless of whether the state has ratified any of the treaties
or not.28
5.1. Provisions of the Common Article 3
The Common Article 3 from the four Geneva Conventions of 1949 provides that in the case of
armed conflict not of an international character occurring in the territory of one of the high
contracting parties, each party to the conflict shall be bound to apply, as a minimum, the following
provisions:
25
Ibid.
26
Taiwo, Ogunnaike O. "Two Is Better than One: Systemic Integration of International Humanitarian Law and
International Human Rights Law to Boko Haram Conflict." Am. U. Int'l L. Rev. 33 (2017): 637. Available at
https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/amuilr33&section=26.
27
Ibid.
28
Ibid.
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(1) Persons taking no active part in the hostilities, including members of armed forces who have
laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other
cause, shall in all circumstances be treated humanely, without any adverse distinction founded on
race, color, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place
whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and
torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples.
5.2 Obligation of State Parties in Protecting Non-Combatants
The responsibility of implementing international humanitarian law principles is shouldered on the
States. Therefore, States are obliged to employ every necessary measure that will ensure they
comply with their responsibilities as required under IHL. To this end, both the Geneva
Conventions and the Additional Protocols have explicitly provided the rules governing the conduct
of hostilities and treatment of combatants involved in the conflict as well as other wounded
civilians who do not in any way take part in the war.
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In Nicaragua v. United States of America29, the International Court of Justice held that the " United
States of America violated its obligations under customary international law, which prohibits the
use of force against another State." However, during the wars in Bosnia-Herzegovina and Rwanda,
civilian non-combatants were intentionally targeted for attack by military forces. 30 These acts
violated the principles of IHL.31 Also, on different occasions the media have reported so many
attacks targeted at civilian non-combatants by both the Nigerian military forces and Boko Haram
militias.32 These attacks have been condemned by international communities, including the United
States Department of State which in 2012 named three of Boko Haram’s leaders as “Specially
Designated Global Terrorists.”33 This also shows that Nigeria as a State party to international
treaties has failed to comply with the rule of engagement in times of war with the Boko Haram
insurgents.
6. Relevance of IHL in Managing Internal Conflicts and Protecting Rights of NonCombatants in Nigeria; the Case of Nigerian Military Forces and Boko Haram Insurgency
Going by the definition of internal conflict in both the Common Article 3 to the Geneva
Conventions of 1949 and Article 1 of Additional Protocol II, it will be correct to say that the
conflict in the Northeastern Nigeria has reached the threshold of a non–international armed conflict
29
1986. I.C.J.
30
International Law of Disasters and Armed Conflict, Op. Cit.
31
Ibid.
32
Ibid.
33
Ibid.
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under IHL.34 Boko Haram atrocities violate the rules of IHL even as the conflict subsists.35 The
sect has indiscriminately killed civilians, abducted women and girls at Chibok in Borno state and
Dabchi in Yobe state, and has forcibly conscripted young men and boys, including destroying
villages, towns and schools.36 The sect has also tortured, raped and forcefully took girls into
marriages.37 Boko Haram used Improvised Explosive Devices (IEDs), including car bombs, and
suicide bombers to kill.38 The sect raided towns and villages in Northeast and terrorized civilians
and disrupted ordinary people’s livelihoods.39 Boko Haram has attacked Gwoza, Borno State
where they overran the 350 soldiers stationed in Gwoza and killed at least 600 civilians. 40
According to the rules of IHL, Boko Haram is bound to adhere to the rule of engagement in armed
conflicts.41 However, records have shown that the sect has committed serious violation of IHL
amounting to war crimes and crimes against humanity.42
Nigerian Security Forces on the other hand was constituted to respond with lethal power to the
Boko Haram insurgency in the Northeast of Nigeria.43 In line with that about four major operations
were set up to combat the sect, among which is Operation Restore Order.44 In the course of carrying
out these operations, reports have also shown that the government security forces have committed
34
Hagler Okorie. " Violation of International Humanitarian Law by Parties to the Armed Conflict in the Northeast
Nigeria." International Journal of Business & Law Research, 6(1):58-66, 2018.
35
Ibid.
36
Ibid.
37
Ibid.
38
Ibid.
39
Ibid.
40
Ibid.
41
Taiwo, Ogunnaike O., Op. Cit.
42
Ibid.
43
Ibid.
44
Ibid.
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so many crimes amounting to crimes against humanity which violate IHL.45 The Nigerian Military
forces in conjunction with its Civilian JIF have routinely abused Boko Haram suspects, tortured
them and held them incommunicado in abusive detention conditions without charges or trial.46
These violate the principles of IHL and the rule of engagement.47 When Boko Haram attacked the
Giwa Military Barracks in Borno state in 2014, over one thousand detainees escaped but the
Nigerian Security Forces recaptured the Barracks and then rounded up and shot more than 640
escaped detainees.48 Amnesty International has reported that not less than 7,000 people had died
in military detention as a result of starvation, thirsty, extreme overcrowding that led to wide spread
disease, torture and denial of medical assistance, as well as the use of fumigation chemicals in
unventilated cells.49 Over 20,000 were arbitrarily arrested while about 1,200 were extra-judicially
executed by the military in collaboration with the Civilian JTF. All these are crimes against
humanity and violate the rule of IHL.50
In a nutshell, the Boko Haram sect has been accused of attack on civilians, detention and
deprivation of liberty, attacks on schools and educational building, recruitment of child soldiers,
abduction and attacks on girls and women and attacks on places of worship, while the Nigerian
military forces on the other hand have been accused of arbitrary arrest and unlawful detention,
torture, extrajudicial killing and causing deaths of detainees in custody.51
45
Ibid.
46
Ibid.
47
Ibid.
48
Hagler Okorie., Op. Cit.
49
Ibid.
50
Ibid.
51
Sanchi, Kabir. Op. Cit.
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These account have shown that despite the relevance of IHL in managing internal conflicts and
protecting rights of non-combatants in Nigeria, both the Nigerian security forces and the Boko
Haram militias have not adhered to the rules of IHL for armed conflicts, hence the civilian noncombatants have become the targeted victims of these forces in most cases. One may argue that
the Boko Haram sect is not a State party to the international law treaties, however, the principles
of international customary law and jus cogen laws have put the sect under obligation to comply
with the rule of engagement and protect the rights of the civilians who do not participate in the
way. The same laws apply on the Nigerian security forces.
7. Conclusion
The article has discussed among other things the meaning of IHL, the meaning of internal armed
conflict, historical evolution of IHL, obligation of State parties in protecting non-combatants,
application of IHL, as well as the relevance of IHL in managing internal conflicts and protecting
rights of non-combatants in Nigeria; with the conflict between Nigerian security forces and Boko
Haram as a case study. From the discussion it is obvious that lack of adherence to the rules of IHL
is the cause of the atrocities being committed by the combatants. These combatants have continued
to carry out attacks on innocent civilians without considering the rule of engagement which
provides protections for these civilians (non-combatants). In order to proffer solution against these
challenges and possibly put an end to it, the author is of the view that international humanitarian
actors and other civil society organizations need to wake up to their task by prosecuting leaders
and sponsors of these forces in the international criminal tribunals for sanctions. The author is also
of the view that IHL is relevant and applicable in the management of internal conflicts and the
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protection of rights of non-combatants in Nigeria, notwithstanding the challenges of noncompliance with rules of IHL by the parties to conflicts.
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Bibliography
Alubo A.Okoh and Piwuna Morgan, “Observance of Human Rights and International
Humanitarian Law by Nigeria Armed Forces in Internal Security Operations.”
Antoine A. Bouvier, and Harvey J. Langholtz. "International humanitarian law and the law of
armed conflict."
ICRC. "Internal conflicts or other situations of violence–what is the difference for victims?"
International Committee of the Red Cross. "How is the Term ‘Armed Conflict’ Defined in
International Humanitarian Law?"
International Law of Disasters and Armed Conflict - 1st Edition (Department of Humanitarian
Affairs/United Nations Disaster Relief Office - Disaster Management Training Programme United Nations Development Programme.
Inter-Parliamentary Union, International Humanitarian Law, 2016,
Kabir Sanchi, "The Place of Boko-Haram Insurgency Under International Humanitarian Law."
Nagaveni, Preethi Lolaksha, and Anand. Amit, "International and Non-International Armed
Conflicts and Application of International Humanitarian Law as Lex Specialis."
Nils Melzer, International Humanitarian Law: a comprehensive introduction.
Ogunnaike O Taiwo, "Two Is Better than One: Systemic Integration of International Humanitarian
Law and International Human Rights Law to Boko Haram Conflict."
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Okorie Hagler, " Violation of International Humanitarian Law by Parties to the Armed Conflict in
the Northeast Nigeria."