Shekau’s (Boko-Haram) Legal Responsibilities: An International Humanitarian Law Perspective

Epilogue

The Chibok Girls and then the Dapchi schoolgirls followed and more recently, the Kankara Government School boys. What Shekau doesn’t seem to understand is that you can actually be a terrorist without kidnapping kids or slaughtering innocents in an execution.

He must learn this.

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Definition

There is no universally accepted definition of a Non State Armed Group. For the purpose of this piece, an Non State Armed Group is defined as any organized group with a basic structure of command operating outside state control that uses force to achieve its political or allegedly political objectives.[1] Such actors include ‘rebel groups’ and governments of entities which are not (or not widely) recognized as states.

Types of Non State Armed Groups

Because terrorists are considered NSAs,[2]  and because most of the rebel groups/mercenaries in this age are considered terrorists who commit heinous war crimes.[3]

Armed non-state actors’ (NSAs) are defined as ‘armed groups that operate beyond state control’, purposely casting the net wide. It includes, but is not limited to, the following groups:

1. rebel opposition groups (groups with a stated incompatibility with the government, generally concerning the control of government or the control of territory);
2. local militias (ethnically, clan, or otherwise based);
3. vigilantes;
4. warlords;
5. civil defence forces and paramilitary groups (when such are clearly beyond state control);
6. private companies that provide military and security services

The categories offered here are fluid, and the same group may be differently classified over time. The splintering of rebel groups, inter-faction or inter-militia hostility, and the various roles played by warlords further add to the definitional conundrum, as illustrated by the recurrence of violence in Afghanistan, the Great Lakes, and the West African subregion.

The Bindingness of International Humanitarian Law for NSA: Some Contemporary Explanations

Broadly speaking, there is the general agreement that under IHL, all parties to a Non International Armed Conflict (NIAC) have the obligation to comply with the same set of rules, which is based on the principle of equality of belligerents. However, the legal basis for this direct application of IHL remains uncertain. Different arguments have been proposed to justify why ANSAs are actually bound by IHL.[4]

Two traditional theories suggest that NSAs are bound by IHL without taking their consent into consideration. The argument of effective sovereignty, on the one hand, focuses on ANSAs’ territorial link to a State party to the IHL treaties. Pictet’s Commentary to the 1949 Geneva Convention I (GC I) points out that NSAs are bound by the international obligations of previous administrations in a similar way to successive governments, owing to their claims to represent the country or a part of it.[5]

The domestic legislative jurisdiction argument, on the other hand, is the most commonly suggested and it is based on the State’s capacity to legislate for all its nationals.[6] As explained in the 1960 Commentary of Geneva Convention II (GC II), ‘in most national legislations, by the fact of ratification, an international Convention becomes part of law and is therefore binding upon all the individuals of that country’.[7]

Although these arguments may seem convincing at first sight, they raise some real life scenarios that are difficult to solve. The former derives an NSA’s rights and obligations exclusively from those already agreed upon by the State party to the conflict.

Moreover, it is only applicable to the extent that the NSA itself claims to represent the State.[8] The domestic legislative jurisdiction argument, however, focuses on the link between national legislation and those members of the NSA that are nationals of the State party to a treaty,[9] equating the legal obligations of the group to those of its members.

There are also theories that do recognize the direct relation between IHL and NSAs, highlighting the importance of their expressions of willingness to be bound.

Cassese, for instance, has suggested that the legal basis for AP II’s binding nature could be found by relying on the effects of a treaty on third parties, as foreseen in Article 34 of the Vienna Convention on the Law of Treaties (VCLT), which affirms that ‘a treaty does not create either obligations or rights for a third state without its consent’.[10] Two requirements thus have to be met for the treaty to be applicable to the NSA: 1) the High Contracting Parties must have intended the Protocol to bind NSAs; and 2) the NSAs must accept the rights and obligations thereby conferred upon them.[11] Importantly, this principle was referred to in the drafting process of the Geneva Conventions. While Cassese has demonstrated the intention of States to bind ANSAs through different arguments, NSAs’ acceptance of AP II could be identified elsewhere. Moir, for instance, has suggested that it should be appreciated through their actual compliance with AP II.[12]  As he claims, ‘the best show of willingness to be bound by the Protocol is thus to observe it, so that the conditions in Article 1(1) are met and the instrument can be applied by both sides’.[13] Accordingly, a case-by-case analysis could consider ANSAs’ practices in the field, unilateral declarations, codes of conduct, internal laws and special agreements concluded with other parties to NIACs, to the extent that AP II provisions are included.[14] This would entail that the treaty would apply not only because of States’ consent, but also through ANSAs’ acceptance, as exemplified through their practices, both in the field and in written documents.

The second theory which addresses NSAs’ expressions of willingness considers that they are bound by IHL through customary international law,[15] which is undisputed with respect to CA3 and some of the rules recognized in the ICRC Study as applicable in NIACs. The Appeals Chamber of the Special Court for Sierra Leone affirmed in this sense that ‘a convincing theory is that [ANSAs] are bound as a matter of international customary law to observe the obligations declared by Common Article 3’.[16] When addressing this, Somer has further affirmed that ‘in order for insurgents to be bound by a customary rule, their practice would need to be taken into account’.[17] Sassòli has explained this in the following way:

In my view, customary IHL of non-international armed conflicts must already now be derived from both State and non-State armed actors’ practice and opinio juris in such conflicts. Customary law is based on the behavior of the subjects of a rule, in the form of acts and omissions, or in the form of statements, mutual accusations and justifications for their own behavior.

Non-State actors would logically be subject to customary law they contribute to creating.[18]

The Applicable International Humanitarian Laws (IHL)

The applicability of IHL to NSAs is widely controversial. There are three prominent theories for how IHL is already applicable to NSAs. Certain IHL laws are however applicable to these Non State Armed Actors. They are:

1. Common Article 3 of the Geneva Conventions

For some commentators and legal theorists, common Article 3 is applicable only to parties to a conflict that are under state control.[19] Others believe that NSAs (which are not under state control) are also covered under the same Article only for civilian immunity.[20]

Scholars seeking to apply IHL to NSAs often substantiate their stance by questioning why only the state must follow IHL, whereas NSAs use force free from any legal liabilities and rules.[21] Thereby, it gives NSAs an advantage over governments, whose acts and strengths are limited by the rules of IHL, while NSAs execute their plans without any fear of responsibilities.

Common Article 3 reads I part as:

Article 3

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:

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, colour, 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.

2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.[22]

The first requirement in this Article is that there must be a non-international armed conflict for the Article to apply, and one party to that conflict must be a state.[23] This means that this Article applies only to internal conflicts and not to international conflicts.[24]

Scholars argue that the other party must be non-state, such as an NSA. Over the years, case law, customary law and state practices have established that common Article 3 does indeed apply to NSAs.[25]  

• Additional Protocol II to the GC

Similar to common Article 3,[26] Additional Protocol II (AP II) also discusses the applicability of IHL to NSAs.[27] Article 1, paragraph 1, of AP II reads:

To all armed conflicts … which takes places 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 to implement this Protocol.[28]

In comparison to common Article 3,[29] Article 1 of AP II raises the threshold of applicability of IHL to NSAs. The NSA must reflect all four characteristics outlined under Article 1 of AP II. First, the NSA must have system of “responsible command” for allocating responsibility,[30] such as the Taliban’s “Code of Conduct”.[31] Second, the NSA must control a significant territory. Third, the NSA must have sustained continuous armed attacks on the state. Fourth, the NSA must be able to implement the protocol.[32] Scholars have argued that such state-like characteristics, together with the requisite of implementing the protocol, makes it apparent that the protocol is only applicable to the parties already implementing it.[33]

• IHL Laws on Displacements

Article 17[34] ― Prohibition of forced movement of civilians

1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.
2. Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.
3. Customary international humanitarian law
4. Rule 129: Parties to a non-international armed conflict may not order the displacement of the civilian population, in whole or in part, for reasons related to the conflict, unless the security of the civilians or imperative military reasons so demand.[35]
5. Rule 131: In case of displacement, all possible measures must be taken in order that the civilians concerned are received under satisfactory conditions of shelter, hygiene, health, safety and nutrition and that member of the same family are not separated.[36]
6. Rule 132: Displaced persons have a right to voluntary return in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist.
7. Rule 133: The property rights of displaced persons must be respected.[37]

Instruments ensuring respect for international humanitarian law principles by African Armed Non-State Actors

The main instruments used to ensure compliance with international humanitarian law by African armed non-state actors during armed conflict include unilateral declarations, OAU resolutions and special agreements on methods of warfare, ceasefire agreements, and the integration of IHL principles into the armed groups’ military doctrines.

1. Unilateral declarations

A number of unilateral declarations by armed non-state parties to a conflict have been used as mechanisms for ensuring compliance with IHL in accordance with Article 96.3 of Additional Protocol I[38], which gives national liberation movements the option to make unilateral declarations whereby they undertake to apply the Geneva Conventions. The following unilateral declarations since 1963 by African non-state actors can be cited as examples:

1. Declaration of 23 May 1968 in Kampala by the rebel Biafran authorities, pledging to respect civilian populations, give the ICRC facilities for the delivery of humanitarian assistance and organize the exchange of prisoners of war through the ICRC;[39]
2. Declaration of 16 June 1977 by Joshua Nkomo of the African National Congress and the Zimbabwean African People’s Union (ANC-ZAPU), undertaking to apply the Geneva Conventions and their Additional Protocols;[40]
3. Declaration of 8 September 1977 by Ndabaningi Sithole of the African National Congress (ANC, Zimbabwe), undertaking to apply the Geneva Conventions and their Additional Protocols;[41]
4. Declaration of 23 September 1977 by Bishop Muzorewa of the United African National Council (UANC), undertaking to apply the Geneva Conventions and their Additional Protocols;[42]
5. Declaration of 25 July 1980 by the Unia˜o National para a Independencia Total de Angola (UNITA), pledging to respect the fundamental rules of IHL;[43]
6. Declaration of 28 November 1980 by the African National Congress (ANC, South Africa) president, Oliver Tambo, that his organization would respect the Geneva Conventions and the Additional Protocols;[44]
7. Declaration of the South West Africa People’s Organization (SWAPO) to the ICRC of 15 July 1981 by its president, Sam Nujoma, on respect for the Geneva Convention and its Additional protocols;[45]
8. UNITA (Angola) Declaration of 5 April 1988, authorizing the ICRC to visit detained persons and captured Angolan soldiers;[46]
9. Declaration in June 1988 in Geneva to the ICRC director of operations by John Garang (Sudan), relating to his movement’s respect for IHL principles;[47]

.

• The Organization of African Unity Resolutions And Compliance By Armed Non-State Actors With International Humanitarian Law

Between 1970 and 1990 the OAU passed a number of resolutions on the application of and respect for IHL principles by liberation movements, the earliest of which were Resolution 242 of June 1971 and Resolution 270 of 1972. These early OAU resolutions were part of a worldwide campaign to ‘‘ensure that the freedom fighters enjoy the benefits of provisions of the Geneva Convention on prisoners and ensure participation of liberation movement in the drafting and application of international humanitarian law applicable to conflicts described as internal’’. In 1973 the OAU further adopted Resolution 307 of 1973 requesting its secretary-general to organize a seminar for the liberation movements to enable them to harmonize their views and make concrete proposals for the application of IHL to their movements.[48] After the adoption of the 1977 Additional Protocols most of the OAU resolutions, such as Resolution of 681 and Resolution 695 of 1979,[49] addressed the non-application of IHL to mercenaries in African conflicts. Resolution CM/Res. 695,[50] for instance, reiterated the organization’s policy of selective application of IHL principles to the different categories of armed conflicts and non-state actors such as mercenaries and freedom fighters.

Approaches to Managing Armed Non- State Actors

1. Realist approaches: the use of force and leverage. The realist perspective emphasizes the role of ‘power’ and ‘countervailing power’, and focuses on repressive means in order to put pressure on armed groups. The overall objective is to combat, to eliminate, to deter, to contain, and to marginalize armed actors.

This can be achieved though Coercion, control and containment, marginalization and isolation, enforcing splits and internal rivalry and Bribery and blackmail.

• Institutionalist approaches: the power of bargaining

At the heart of institutionalist approaches are processes of bargaining aimed at the establishment of procedures, rules, and institutional settings that acknowledge the preferences and interests of all conflict parties and allow for some kind of peaceful co-existence (conflict management). Examples are ceasefires, confidence-building measures, and peace agreements, as well as mechanisms for conflict settlement and arbitration.

This can be achieved through mediation and negotiation as well as co-optation and integration.

• Constructivist approaches: the power of persuasion

In general, constructivist approaches emphasize the central role of arguing and persuasion, as well as processes of norm diffusion. Their ultimate aim is to persuade armed actors to accept, respect, and eventually internalize norms, thereby fostering long-term transformation processes that involve not only conformity of behavior for tactical reasons but also a genuine and sustainable change of the actors’ policies and self-conception (identity change).[51]

This can be achieved through enforcing socialization, naming and shaming, reconciliation and transitional justice.

Conclusion

Devising why ANSAs are bound by IHL is not an easy task. First, I have suggested a combination of two arguments, the customary status of IHL and the effects of treaties on third parties, which enable a broad interpretation of the principle of equality of belligerents, provides a plausible explanation of the binding nature of IHL for ANSAs.

This piece has attempted to show that a plausible means of ensuring respect for and implementation of IHL by ANSAs is to take into account some form of consent to be bound by the law. This consent could be found in their practices, codes of conduct or written declarations. The main challenge for this proposal would be the possible lowering of legal standards. However, as for States and their participation in processes for making international law, a contrary practice does not necessarily mean a disagreement with the norm. In fact, only a few ANSAs actually reject entirely the pertinence of international law.

The Geneva Conventions and its protocols out rightly prohibits attacks on kids, civilians and any civilian installments. Terrorism is evil, immoral, unimaginably justifiable but those ones that attacks innocent kids and civilians are hardly redeemable and may just be the devil’s re-incarnate.

Shekau must learn that the he lives in the real world and not outside of it even though he is an outlaw. He must be brought into the know or simply reminded that the rules of engagements of war applies to both civilians, state and non-state armed actors.

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[1] This is based on the definition used by the NGO Geneva Call. See for example Anki Sjöberg, Armed Non-State Actors and Landmines. Volume III: Towards a Holistic Approach to Armed Non-State Actors? (Geneva: Geneva Call and the PSIO, 2007).

[2] ibid

[3] Hyeran J.O. 2015.  Compliant Rebels.

[4] ICRC, Commentary on Common Article 3 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2016, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=59F6CDFA490736C1C

1257F7D004BA0EC#236_B (visited on 18 December 2017), para. 507. In this piece, we have listed some of the most common and traditional theories that explain why ANSAs are bound by IHL, but other views have also been proposed.

[5] Pictet. 1952. Commentary on the Geneva Conventions of 12 August 1949, Vol. I: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 51 (Geneva: ICRC, 1952).

[6] Moir. L. 2002. The Law of Internal Armed Conflicts. Cambridge. Cambridge University Press 2002

[7] Pictet. J. 1960. (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. II: Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 34 (Geneva: ICRC, 1960). See also Section 12 of the Nigerian Constitution.

[8] In this sense, Pictet even claimed that the ANSA could ‘free itself from its obligations under the Geneva Conventions by following the procedure for denunciation laid down in Article 63 of Geneva Convention I. But the denunciation would not be valid, and could not in point be effected, unless the denouncing authority was recognized internationally as a competent Government’.

[9] Cassese. A. 1981. The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts. International and Comparative Law Quarterly. 429–430.

[10] Vienna Convention on the Law of Treaties

[11] Cassese. A. et al. 2009. The Oxford Companion to International Criminal Justice. 381

[12] Moir. L. 2002. The Law of Internal Armed Conflicts. Cambridge. Cambridge University Press.

[13] ibid

[14] Sivakumaran, in this sense, affirms that there has been more acceptance of AP II by ANSAs than is commonly thought. For some practical examples, see Sivakumaran, supra note 6, p. 388.

[15] Somer. J. 2007.  Jungle Justice: Passing Sentence on the Equality of Belligerents in Non-International Armed Conflict. International Review of the Red Cross.  661.

[16] SCSL 13 March 2004, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Appeals Chamber, www.legal-tools.org/doc/c1b45c/pdf/ retrieved on the 18^th of December, 2020

[17] Somer. J. 2007.  Jungle Justice: Passing Sentence on the Equality of Belligerents in Non-International Armed Conflict. International Review of the Red Cross.  661.

[18] Sassòli. M. 2010.  Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law,  Journal of International Humanitarian Legal Studies ,21–22.

[19] Bellal, A.  2017.  Non-State Armed Groups in Transitional Justice Processes Adapting to New Realities of Conflict’, in Roger Duthie and Paul Seils (Eds), Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies. New York. ICTJ.

[20] ibid

[21] Dayana. J. 2007. International Humanitarian Law’s Applicability to Armed Non-State Actors. Australia. Univ. of Stockholm

[22] Common Article 3 to the Geneva Conventions

[23] Moir. L. 2002. The Law of Internal Armed Conflicts. Cambridge. Cambridge University Press.

[24] Common Article 3 to the Geneva Conventions

[25] Bellal, A.  2017.  Non-State Armed Groups in Transitional Justice Processes Adapting to New Realities of Conflict’, in Roger Duthie and Paul Seils (Eds), Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies. New York. ICTJ.

[26] Common Article 3 to the Geneva Convention

[27] Protocol II to the Geneva Convention

[28] ibid

[29] Common Article 3 to the Geneva Convention

[30] Protocol II to the Geneva Convention

[31] Bellal, A.  2017.  Non-State Armed Groups in Transitional Justice Processes Adapting to New Realities of Conflict’, in Roger Duthie and Paul Seils (Eds), Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies. New York. ICTJ.

[32] Protocol II to the Geneva Convention

[33] Bellal, A.  2017.  Non-State Armed Groups in Transitional Justice Processes Adapting to New Realities of Conflict’, in Roger Duthie and Paul Seils (Eds), Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies. New York. ICTJ.

[34] Additional Protocol II to the Geneva Conventions (1977)

[35] https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule129 accessed 18th of December, 2020

[36] https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule129 accessed 18th of December, 2020

[37] https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule129 accessed 18th of December, 2020

[38] to the Geneva Convention

[39] ICRC Annual Report, 1968, pp. 13–14.

[40] ICRC Annual Report, 1977, p. 16.

[41] ICRC Annual Report, 1977, p. 16.

[42] ICRC Annual Report, 1977, p. 16.

[43] ICRC Annual Report, 1982, p. 11.

[44] ICRC Annual Report, 1980, p. 14.

[45] ICRC Annual Report, 1991, p. 16.

[46] ICRC Annual Report, 1988, p. 15.

[47] ICRC Annual Report, 1988, p. 15.

[48] C. Ewumbue-Monono – Respect for international humanitarian law by armed non-state actors in Africa

[49] Available online ,http://www.africa-union.org/root/au/Documents/Decisions/com/14CoM_1979a.pdf. accessed on the 21^st of December, 2020

[50] Ibid. Resolution on the activities of mercenaries in Zimbabwe and Namibia and against the front-linestates, p. 25.

[51] https://www.icrc.org/eng/assets/files/review/2011/irrc-883-hofmann-schneckener.pdf retrieved on the 18th of December, 2020