Boko Haram: Engaging Non-State Armed Groups to Comply with the Laws of War

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On the 25th of February 2014 at least 29 students were killed during an attack on a college in Buni Yadi, at the northeastern of Nigeria. Prior to this terrible event, on 16 February, approximately 90 people were killed on an attack in the village of Izge, located near the border of Cameroon. The Nigerian authorities suspect that the militant group, Boko Haram, which has caused havoc in the northeast region for several years, are the perpetrators. The attackers managed to escape both scenes but have left these areas devastated as they set off explosions and fires against the residents, and burned down dozen of houses and buildings.

According to Human Rights Watch, the violence started in 2009, and since then it has claimed more than 3,000 lives. The Nigerian government is struggling to control the bloodshed between the prevalently Muslim north versus Christian south. Nigeria’s immense oil wealth is concentrated in the South, while the predominantly Muslim north remains extremely poor.
Boko Haram, which means “Western education is sinful” has claimed to have as its aim that of imposing a strict form of Sharia, or Islamic law, in northern Nigeria and to end government corruption by launching hundreds of attacks against police officers, Christians and Muslims who cooperate with the government or oppose the group. Said militant group is known for its notoriousness, extreme violence and indiscriminate attacks. According to a government report, Boko Haram has taken violence to unprecedented levels in murdering, kidnapping and in bombing schools and churches.

From a humanitarian perspective, I, then ask the question: how do we get Boko Haram to improve their dismal record of compliance with human rights, and with the laws of war?

This urging question needs to be answered, as the ultimate aim is to minimise, if not, put a complete end to the act of deliberate targeting of civilians, looting, and destruction of infrastructure vital to civilians. Not to mention, according to Human Rights Watch, Boko Haram is said to have abducted scored of women and girls, even at tender age, in their campaign of violence. I am on the opinion that something must be done quickly, to put an end of the acts of rape, and other forms of sexual violence. Something must be done, to minimise, if not, to stop the unnecessary suffering of civilians.

The following analysis will not only to apply to Boko Haram and the situation in Nigeria, but rather to every on-going armed conflict. The rise of non-State actors involved in the situation of armed conflicts and the fact that they are non-compliance to any rules make the conflicts impossible to solve. The proliferation and presence of these actors has created complications in the determining the boundaries and the limits in wars. I will solely focus in the application of International Humanitarian Law, which aims to minimise the unnecessary suffering of those who are not engaging in hostilities.

The Laws of War, or jus in bello, or International Humanitarian Law is the set of laws that come into effect once a war has begun. Its purpose is to regulate how wars are fought, without prejudice to the reasons of how or why they had begun. The principal documents of International Humanitarian Law are embodied in The Hague Regulations of 1899 and 1907 and the Geneva Conventions 1949. The Hague Regulations regulate the means and methods of conducting warfare. Moreover, the Geneva Conventions of 1949 set out the rules for protecting people who are not taking part in hostilities, such as civilians and other protected persons, and those who are no longer participating in the hostilities such as the wounded, sick, shipwrecked soldiers, and prisoners of war.
In the two decades following the adoption of the Geneva Conventions, the world witnessed an increase in the number of non-international armed conflicts and wars of national liberation. In response to that, two Protocols of Additional to the four Geneva Conventions were adopted in 1977. Additional Protocol I applies to international armed conflicts and Additional Protocol II to armed conflicts of non-international in character. The aims of their adoption are to strengthen the protection of victims in international and non-international armed conflicts, and to place more limitations on the way wars are fought.
In its 2013 Report on Preliminary Examination Activities, published by the International Criminal Court, the Office of the Prosecutor states that, in its opinion, the on-going confrontations between the Nigerian security forces and Boko Haram has now reached the threshold of a non-international armed conflict, and thus the application of International Humanitarian Law is to be applied.
In theory, the application of the rules and customs of international humanitarian law is equally binding on all parties. In practice, however, most of the legal mechanisms for the implementation of International Humanitarian Law are still mainly focused toward States, instead of equally toward non-State armed groups. The rules and customs of International Humanitarian Law are often interpreted and develop without taking into account of the realities of non-State armed groups. Moreover, another difficulty lies on the fact these groups are not subject to international law. Therefore, they lack the legal capacity to become a party to any convention. As a consequence, these groups lack the political will and the motivation to comply with any international legal obligations.

In reality, these armed groups are very diverse in their degree of organisation and control over their members, territory or people, their aims, and most importantly, in their inclination to respect International Humanitarian Law. It is essential to make distinctions between different categories of groups and to suggest certain methods to improve compliance only for some of these categories.
n the case of Al-Qaeda complying with the rules of International Humanitarian Law, for example, it is very often argued that they cannot possibly be made to respect such rules. I could only assume that the same applies to Boko Haram, considering that their main aim is to eradicate western education by strictly implementing Sharia law and by burning down churches and schools that are not of Sharia.
The emergence to such circumstances indicates that the international community is to apply all the legal mechanisms that work for all armed groups. However, there is one limitation to this. The limitation is that such groups must be genuine armed groups engaging in genuine armed conflicts. The first step in encouraging armed groups to conform to International Humanitarian Law is to educate them on the relevant provisions. The dissemination of International Humanitarian Law should include explaining the very notion of International Humanitarian Law, and the differences between the international law notion of jus ad bellum and jus in bello. The aim of dissemination of International Humanitarian is not only to instruct the groups the very detailed rules, but also to influence the political will and motivation of these groups to comply. Ideally, such dissemination must begin during peacetime, for once an armed conflict breaks out, with its heightened levels of animosity and polarity, it is often too intricate to learn the applicable rules and to alter practices accordingly.

In addition and perhaps most importantly, these armed groups are to be encouraged to increase their sense of self-ownership over International Humanitarian Law. In formal scenario, States as the legislators of international law binds the groups to comply with International Humanitarian Law. Thus, in theory, because States have accepted them, or due to the territorial State legislated for them, or made customary law, these armed groups are bound to international rules. In practice, however, it is always easier to obtain respect of a rule by invoking the acceptance of such rules by the groups themselves. Conclusively, these non-state armed groups are to be encouraged to commit compliance of International Humanitarian Law. One method of securing such commitment is explicitly mentioned in Article 3 common to the Geneva Conventions which encourages parties “to bring into force, by means of special agreements, all or part of the other provisions” of the Conventions and for such agreement to be governed by international law. For example, national liberation movements may also make a unilateral declaration of accession to certain International Humanitarian Law treaties in assigning agreement between them and State parties. Following commitment of compliance, implementation of these rules must be fully acted upon by both parties.
By invoking compliance of International Humanitarian Law, non-state armed groups are involved the development, interpretation and operationalization of the rules and customs of warfare. Conclusively, in encouraging good reciprocal relationship between the belligerents, I am in the hope that International Humanitarian Law can be properly and equally applied, and that unnecessary suffering could be minimised.

Taritha Sari.

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