NAME OF STUDENT: Anthony Cosmas ESSIET

TITLE OF THESIS: Strengthening Legal Protection for Victims of Non- International Armed Conflicts (NIACs): A Case Study of North-East Nigeria

TITLE OF SEMINAR Theoretical Framework and Literature Review on the Regulation of NIACs and the Protection of Victims: North-East Nigeria in Focus

SESSION OF ADMISSION: 2015/2016 Session

MATRICULATION NUMBER: PG/LAW/1118442

FACULTY: Law

DEGREE IN VIEW: Ph.D

TIME BASIS: Full Time

A MANDATORY SEMINAR WRITTEN IN, SUBMITTED TO AND PRESENTED TO THE FACULTY OF LAW, UNIVERSITY OF BENIN, IN PARTIAL FULFILLMENT OF THE

REQUIREMENTS FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY (Ph.D) IN LAW OF THE UNIVERSITY OF BENIN, BENIN CITY, NIGERIA

JUNE 2020

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Table of Contents

Abstract - - - - - - - - - - vi

Section One: General Introduction

1.1 Introduction - - - - - - - - - 1

1.2 Statement of the Research Problem - - - - - - 6

1.3 Aim and Objectives - - - - - - - - 7

1.4 Methodology - - - - - - - - - 8

1.5 Research Findings - - - - - - - - 8

1.6 Research Contribution to Knowledge - - - - - - 9

1.7 Significance of the Study - - - - - - - - 9

1.8 Scope of the Study - - - - - - - - 10

1.9 Conclusion - - - - - - - - - 10

Section Two: Conceptual Framework and Theoretical Framework

2.1 Introduction - - - - - - - - - 12

2.2 Conceptual Framework/Definition of Terms - - - - - 13

2.2.1 The Concept of Armed Conflict - - - - - - 13

2.2.2 The Concept of Non-international Armed Conflict - - - - 16

2.2.3 Combatants - - - - - - - - - 19

2.2.4 Insurgents - - - - - - - - - 20

2.2.5 Terrorism - - - - - - - - - 21

2.2.6 Victims in Non-international Armed Conflict - - - - - 26

2.2.7 Entitlement of Victims of Non-international Armed Conflict - - - 28

2.2.7.1 Common Article 3 - - - - - - - - 30

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2.2.7.2 AP II of 1977 - - - - -- - - - 30

2.3 Theoretical Framework - - - - - - - - 37

2.3.1 Hostilities without Dispute Theory - - - - - - 37

2.3.2 Applicability Avoidance Theory - - - - - - 42

2.3.3 Targeted Killing Theory - - - - - - - 47

2.3.4 Just Torture Theory - - - - - - - - 57

2.3.5 Theory of Exclusivism - - - - - - - - 63

2.3.6 Theory of Grievance - - - - - - - - 67

2.3.7 Theory of Humanitarianism in Armed Conflict (THAC) - - - 72

2.2 Conclusion - - - - - - - - - 73

Section Three: Literature Review

3.1 Introduction - - - - - - - - - 76

3.2 Adequacy or otherwise of the Legal Framework - - - - - 76

3.3 Characterization of Non-international Armed Conflict as a Source of Violation - 83

3.4 Adoption of Sharia Law as one of the Causes of Religious Extremism - - - 89

3.5 Effectiveness of Institutions of Governance in the North-East - - - 97

3.6 Effectiveness of Government Agencies and NGOs in Providing Relief to Victims - 100

3.7 Compliance with IHL by the Parties to the Armed Conflict for the Protection of the Victims in the North-East - - - - - - - 102

3.8 Examination/Review of the Title of the Research - - - - 104

3.9 Conclusion - - - - - - - - - 108

Section Four: General Conclusion - - - - - - - 110

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Abstract

The armed conflict in north-east Nigeria has been on for over a decade with adverse impacts on

legally protected persons as the victims. Armed conflict is regulated by law and guarantees the

protection of the victims. The parties to the armed conflict are under obligation to protect victims

but the reverse is the reality in north-east. The aim of this study is the examination of the

adequacy or otherwise of the legal framework and effectiveness of institutions for the protection

of victims of non-international armed conflicts with special focus on the situation in North-East

Nigeria. The specific objectives of the research are to assess the adequacy or otherwise of the

legal framework to protect victims of the armed conflict in the North-East; examine the

characterization of the armed violence in the slow or wrong legal response for the protection of

victims; and determine the adoption of Sharia Law in some of the States in Northern Nigeria as

the cause of religious extremism in those States in the North-East. It also examines the

effectiveness or otherwise of the institutions of governance at the local government and ward

levels in the North-East to prevent the conflict and/or protect the victims; assesses the

effectiveness of government agencies and Non-Governmental Organizations in providing relief

for the victims of the armed conflict; and examines the compliance by parties to the armed

conflict in the north-east with IHL for the protection of victims.

The findings of this research reveals that: there is inadequate legal framework for the protection

of victims of the armed conflict in the North-East because the Federal Government has only

domesticated common article 3 to the four Geneva Conventions of 1949 but is yet to domesticate

Additional Protocol II of 1977. The bickering over the proper characterization/description of the

nature of the armed violence has impacted negatively on the legal response for the protection of

victims of the armed violence. The failure/refusal of some States in the country to comply with

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the constitutional guarantees of the right to freedom of religion is a fetter on the supremacy of

the constitution and the rule of law which encourages religious extremism in the north-east. The

institutions of governance at the local government and ward levels are too weak to prevent the

armed conflict and/or protect the victims. Government agencies and NGOs are not effective in

providing relief materials for victims in the North-East. There is absolute non-compliance by the

parties to the armed conflict in the north-east with IHL for the protection of the victims.

This research contributes to the existing body of knowledge in this area thus: This work reveals

the need for the enactment of a legal framework and the establishment of efficient institutions to

protect victims of non-international armed conflicts in Nigeria. It also engenders a policy shift on

the part of government towards a more focused approach to the domestication of

treaties/protocols aimed at protecting and rehabilitating victims of armed conflict in Nigeria.

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Section One: General Introduction

1.10 Introduction

Disagreements between sovereign States, sometimes, result in armed confrontations. The same

applies to unresolved disagreements between groups in the States. As a result, armed conflicts

exist in every part of the world including the north-east part of Nigeria. The prevalence of armed

conflicts makes the regulatory scrutiny of International Humanitarian Law (IHL), which

regulates the means and methods of warfare, inevitable. There is, unfortunately, no legal

definition of armed conflict by the treaties regulating armed conflict. The International Criminal

Tribunal for the Former Yugoslavia (ICTY), however, defines armed conflict thus:

An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International Humanitarian Law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place.1

The above definition of armed conflict by the ICTY encompasses both international and non-

international armed conflicts. It is not every situation of the use of arms, within the domestic

system, that is regarded as armed conflict to which IHL applies. The consequence of this is that

“situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of

violence and other acts of a similar nature”2 are not armed conflicts for the purposes of IHL.

Does the situation in the north-east Nigeria fit the above definition? The answer is, yes! After

careful analyses of the armed conflict situation in the north-east, in accordance with the 1 Prosecutor v. Dusco Tadic, Case No. IT-94-1-AR 72 (Decision on the Defence Motion for Interlocutory

Appeal on Jurisdiction, 2 October 1995 [ICTY Appeals Chamber], para. 70).

2 Additional Protocol II of 1977, art. 1 (2). This provision is what is generally referred to as the threshold which must be crossed for there to exist a non-international armed conflict (NIAC) for the trigger of IHL to apply.

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regulatory ambit of IHL and in terms of its protracted nature, territorial control by parties, ability

for sustained combat engagement by the insurgents, and government response with military

combat power, we are of the conclusion that the armed insurgency in the north-east is an armed

conflict to which IHL applies. This is further corroborated by Arishe and Akpeme who are of the

expert opinion, after an expert assessment of the situation, that the Boko Haram insurgency in

Nigeria is a non-international armed conflict to which IHL applies.3 In addition, the Office of the

Prosecutor (OTP) of the International Criminal Court (ICC) carried out a preliminary assessment

of the situation in the north-east and concluded that it was an armed conflict of a non-

international character.4 Unfortunately and most regrettably, the Federal Government (FGN)

classifies the armed conflict in the north-east as terrorism instead of non-international armed

conflict thereby avoiding the application of IHL. This is as a result of the 2013 decision of the

Federal High Court (FHC), Abuja Division, which designated Boko Haram and ‘Jamatu Ansarul

Muslimina Fi Biladis Sudan as terrorist organizations and proscribed them.5 The decision of the

FHC was based on the ex parte application of the Attorney-General of the Federation (AGF)

which prayed the court to declare Boko Haram a a terrorist organization, proscribe it and make

membership and activities of Boko Haram a terrorism offence under the Terrorism (Prevention)

Act 2011 (as amended). The court heard the AGF in chambers the following day and granted all

his prayers as per the Motion Ex Parte on the 24 May 2013.6 The FGN responds instead with

3 G. O. Arishe and E. C. Akpeme, “Is Boko Haram Insurgency in Nigeria a Non-International Armed Conflict?” The Journal Of International Law and Diplomacy, vol. 2, no. 1 (2014): 65-100.

4 “Boko Haram: International Criminal Court Declares Conflict as Civil War.” Available at: www.thewillnigeria.com/news/boko-haram-international-criminal-court-declares-conflict-as-civil-war. Accessed on 10 December, 2019.

5 AG-Fed. v. ‘Jamaatu Ahlis-Sunna Liddaawati Wal Jihad (otherwise Known as “Boko Haram”) & Anor, Suit No: FHC/ABJ/CS/368/2013. This judgement was based on an ex parte application made by the Attorney-General of the Federation to the Judge of the Federal High Court (FHC) on the 23 May 2013 and filed same the following day.

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counter-terrorism via the Terrorism (Prevention) Act 2011 (as amended)7 to the non-international

armed conflict with insurgents in the north-east part of Nigeria.

Terrorism is a crime of unimaginable magnitude and has been condemned by the international

community, as expressed by the United Nations Security Council (UNSC) in its Resolution 1566

of 2004, thus: “… condemns in the strongest terms all acts of terrorism irrespective of their

motivation, whenever and by whomsoever committed, as one of the most serious threats to peace

and security.”8 That same resolution, however, reminded:

… States that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law….9

It must be reiterated, as indicated above, that counter-terrorism is not a “no law” zone. This was

emphasized also by the UNSC in Resolution 1456 of 20 January 2003 in relation to counter-

terrorism thus:

States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law.10

As stated earlier, counter-terrorism is not a “no law zone;” and this is in line with the provisions

of Common Article (CA) 3 which is to the effect that: “The application of the preceding

6 Terrorism (Prevention) (Proscription Order) Notice, Statutory Instrument No. 6 of 2013 in the Official Gazzet of 24 May 2013.

7 Cap. T28, Laws of the Federation of Nigeria 2004 (as Revised).

8 The UNSC adopted Resolution 1566 on the 8 October 2004. Available at https://www.un.org/rulesoflaw/files/n04504282.pdf. Accessed on 20 January 2020.

9 Ibid, the Preamble.

10 United Nations Security Council, Declaration on the Issue of Combating Terrorism, being UNSC Resolution 1456 adopted by the Security Council at its 4688th meeting, on 20 January 2003. Available at http://unscr.com/en/resolution/1456. Accessed on 20 December 2019.

viii

provisions (that is, Common Article 3) shall not affect the legal status of the parties to the

conflict.”11

As a member of the United Nations, Nigeria is legally bound by the Resolutions of the United

Nations General Assembly (UNGA) and those of the UNSC. Furthermore, NIAC is an

international law regulation of domestic activity. This is so because IHL, which regulates the

means and methods of warfare, is a product of treaties to which States are parties including

Nigeria, in this case, High Contracting Parties.12

It must be reiterated that the application of IHL to the combat activities between the Nigerian

military and the insurgents in the north-east is not dependent on the municipal law of Nigeria but

on the legal obligations duly entered into by the FGN via her signature and ratification of the

four Geneva Conventions of 1949, the two additional Protocols of 1977 and the Rome Statute of

the International Criminal Court (ICC) 1998.13 This is irrespective of whether those treaties have

been domesticated or not in Nigeria. The enforcement of IHL as a result of the massive

violations of IHL in the NIAC in the north-east is sure to be undertaken at the level of the ICC as

a complementary permanent international judicial institution based on the failure, refusal,

unwillingness or genuine inability of the FGN to do same at the municipal level.14 The provision

for individual criminal responsibility in the Rome Statute is the game-changer in the enforcement

11 CA 3 (2).

12 The State parties to the four Geneva Conventions of 1949, the two Additional Protocols of 1977 and the Third Additional Protocol of 2005 are referred to, in the Conventions and the Protocols, as High Contracting Parties.

13 Vienna Convention on the Law of Treaties (VCLT) 1969, art. 26.

14 Rome Statute of the ICC 1998, art. 17. The first step towards enforcement by the ICC has been completed by the OTP of the ICC by the Preliminary Investigations and the issuance of the Preliminary Report based on the Preliminary Investigations mentioned above in accordance with article 15 of the Rome Statute 1998.

ix

of IHL.15 Individual criminal responsibility is not a bar to the responsibility of States under

International Law16 with regards to crimes committed in armed conflict. Criminal responsibility

under IHL also covers non-military government officials, whether elected or appointed,

especially those officials who are directly involved in the violation of IHL in the course of armed

conflict.17 Furthermore, the Rome Statute applies to all persons including Heads of State or

Government;18 and orders of government or superior orders are not defences in criminal

responsibility under the Rome Statute.19 Finally, the combined effects of articles 24, 26 and 27 of

the Vienna Convention on the Law of Treaties buttress our submission that the Rome Statute

applies to the armed conflict in the north-east part of Nigeria irrespective of the classification of

the armed conflict by the FGN, sovereignty and domestic legislation.20

The armed conflict between the Nigerian military and the insurgents has gone on for over a

decade in the three most affected States21 in the north-east part of Nigeria. Under International

Humanitarian Law (IHL), this type of armed conflict is known as “armed conflict not of an

international character …”22 which is popularly referred to as non-international armed conflict.23

15 Ibid, art. 25.

16 Ibid, art. 25 (4).

17 Ibid, art. 25 (3).

18 Ibid, art. 27.

19 Ibid, art. 33.

20 Vienna Convention on the Law of Treaties (VCLT) 1969. The provisions are: entry into force of treaties, pacta sunt servanda and the invocation of internal law is not a justification for the failure to perform a treaty.

21 The three States most affected by the insurgency in the north-east are Yobe, Borno and Adamawa States.

22 The four Geneva Conventions of 1949, art. 3. This article 3 is the same in all the four Geneva Conventions of 1949 and that is the rationale for referring to it as “Common Article 3.”

23 Additional Protocol (AP) II of 1977, the Long Title.

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The central theme of the regulation of armed conflict by IHL is that the choice of the parties to

employ means and methods of warfare is not unlimited.24 The regulation of the means and

methods of warfare is for the primary benefit of those who do not take a direct part or are no

longer taking a direct part in hostilities; and are, generally, the victims of the armed conflict. This

work examines the adequacy or otherwise of the legal framework for the protection of the

victims of non-international armed conflict with focus on the north-east part of Nigeria. It also

makes a case for the strengthening of the legal protection for victims of non-international armed

conflict.

1.11 Statement of the Research Problem

Insurgency, and the violence associated with it, has consumed the North-Eastern part of Nigeria

in the last ten years. The fall out of this has been the monumental loss of lives and property by

innocent civilians; the armed forces tackling the insurgents and the insurgents themselves. In

spite of this intractable problem, the response of Government and its relevant institutions to the

plight of these victims of this violence has been very slow and almost at an abysmal level.

Accordingly, this study investigates whether this slow response by Government is traceable to

the absence of an all-encompassing legal framework and an effective institution to deal with the

problems faced by these victims. Admittedly, the problem of an ideal legal framework is not far-

fetched due to the controversy over the characterization of the nature of the violence taking place

in this region. The failure of the Nigerian Government to agree on the proper characterization of

the armed conflict has impacted negatively on the legal response to this problem. A resolution of

this conceptual/legal issue and the emphasis on the enactment of an ideal legal framework

backed by effective institutions underlie the rationale for this study.

24 By “means of warfare”, we are referring to the weapons and the weapons system while “methods of warfare” refer to the manner in which these weapons are used in armed conflict.

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1.12 Aim and Objectives

The aim of this research is the examination of the adequacy or otherwise of the legal framework

and effectiveness of institutions for the protection of victims of non-international armed conflicts

with special focus on the situation in North-East Nigeria. The specific objectives of the research

are the:

i. Assessment of the adequacy or otherwise of the legal framework to protect victims of

the armed conflict in the North-East;

ii. Examination of the characterization of the armed violence in the slow legal response

for the protection of victims of the armed conflict in the North-East;

iii. Determination of the adoption of Sharia Law in some of the States in Northern

Nigeria as the cause of religious extremism in those States in the North-East;

iv. Examination of the effectiveness or otherwise of the institutions of governance at the

local government and ward levels in the North-East for the prevention of the conflict

and/or protection of victims of this conflict;

v. Assessment of the effectiveness of government agencies and Non-Governmental

Organizations in providing relief for the victims of the armed conflict in the North-

East; and

vi. Examination of the compliance by parties to the armed conflict in the north-east with

IHL for the protection of victims of the armed conflict.

1.13 Methodology

The research methodology is doctrinal in nature. This research method, which is also known as

library-based research method, involves the examination of primary and secondary resource

materials on the subject. This method includes the examination of existing legal and institutional

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frameworks for the protection of victims of non-international armed conflicts. A comparative

assessment of non-international armed conflicts in other countries shall be undertaken to sustain

our argument that there is inadequate legal and institutional frameworks for the protection of

victims of non-international armed conflicts as is the situation in the North-East of Nigeria.

1.14 Research Findings

The findings of this research are that:

i. there is inadequate legal framework for the protection of victims of the armed conflict

in the North-East because the Federal Government has only domesticated common

article 3 to the four Geneva Conventions of 1949 but is yet to domesticate Additional

Protocol II of 1977;

ii. the bickering over the proper characterization/description of the nature of the armed

violence has impacted negatively on the legal response for the protection of victims

of the violence in the North-East;

iii. the failure/refusal of some States in the country to comply with the constitutional

guarantees of the right to freedom of religion is a fetter on the supremacy of the

constitution and the rule of law in the North-East of Nigeria;

iv. the institutions of governance at the local government and ward levels are too weak to

prevent the armed conflict and/or protect victims of the armed conflict in the North-

East;

v. government agencies and NGOs are not effective in providing relief materials for

victims in the North-East; and

vi. there is absolute non-compliance with IHL by the parties to the armed conflict in the

north-east for the protection of the victims.

xiii

1.15 Research Contribution to Knowledge

This research contributes to the existing body of knowledge in this area thus:

i. this work reveals the need for the enactment of a legal framework and the

establishment of efficient institutions to protect victims of non-international armed

conflicts in Nigeria; and

ii. engenders a policy shift on the part of government towards a more focused approach

to the domestication of treaties/protocols aimed at protecting and rehabilitating

victims of armed conflict in Nigeria.

1.16 Significance of the Study

This study is significant in the sense that it aims at making a case for strengthening the legal

protection for the victims of armed conflict in the north-east Nigeria. Secondly, the response of

the Federal Government of Nigeria to the insurgency in the north-east is legally wrong and

hampers the protection of the victims of the armed conflict. Thirdly, the wrong characterization

of armed conflict is the direct result of not putting the right structures in place in time of peace

for the eventuality of armed conflict via legal and institutional frameworks. Finally, the

assessment of the legal protection for victims of non-international armed conflict, with a view to

strengthening the legal protection, can only be done within the context of International

Humanitarian Law, which is the international regulation of means and methods of warfare.

1.17 Scope of the Study

The scope of this study are subject-matter and geographic in nature. The subject-matter scope of

this study is non-international armed conflict with focus on the north-east of Nigeria. This

xiv

conflict has been in existence for more than a decade and this provides an ample time-frame to

fully assess the issues of the legal protection for the victims of such armed conflicts. The

geographic scope of the study is the north-east part of Nigeria as the focal point though

comparative analyses are carried out for a proper assessment of the subject matter with a view to

proffering solutions for the strengthening of legal protection for victims of non-international

armed conflicts.

1.18 Conclusion

There is prevalence of non-international armed conflicts in the world today and the North-East

part of Nigeria has experienced this type of armed conflict for over a decade. There are restraints,

by way of treaties, conventions, customs, principles, domestic legislation and rules of

engagement, when engaging in armed conflicts. Therefore, the choice of the parties to employ

means and methods of warfare is not unlimited.

In spite of the restraints on means and methods of warfare, victims of non-international armed

conflicts do not enjoy adequate protection in situations of armed conflict. Many victims,

especially civilians, have been killed. There is widespread rape of women and girls. Hostage

taking is rampant. Attacks on schools and places of worship are many. In fact, there is general

non-observance of the already inadequate rules of conduct in attacks in the armed conflict in the

North-East Nigeria.

A lot can be attributed to the continuous violations of the right of victims of the armed conflict in

the North-East which include: inadequate legal framework; ineffective government institutions;

deliberate violation of the minimum guarantees by both insurgents and government forces; and

lack of dissemination of and public education on the text of the treaties regulating restraints in

armed conflict.

xv

This research therefore seeks to offer improvement on strengthening the legal protection for

victims of non-international armed conflict, especially in the North-East part of Nigeria. It must,

however, be emphasized that there is usually no zero-casualty warfare.

In this part of the research, we set out the general introduction by the examination of the aim and

objectives of the study, the findings of the study and its contribution to the existing body of

knowledge in the area. This part of the work lays the foundation for the other parts which is

based on the aim and objectives of the study. The next part deals with the conceptual framework

and the theoretical framework based on the review of literature on the subject which is also in

line with the objectives and the findings of the research.

xvi

Section Two: Conceptual Framework and Theoretical Framework

2.1 Introduction

This section offers a clarification of some of the conceptual terms associated with non-

international armed conflict in order to place them in their proper perspectives for a better

understanding of their relevance to the subject of regulation of armed conflict and the protection

of victims of armed conflict. It also examines the different theories in the area of International

Humanitarian Law with emphasis on regulation of armed conflict and the protection of the

victims of non-international armed conflict. The third part of this chapter undertakes a specific

review of the literature in this area of the law under consideration in the context of the objectives

and findings of this study.

The section on the definition of conceptual framework provides ready answers to some of the

misunderstood concepts and terms in IHL especially as they relate to NIAC. Furthermore,

theories are useful approaches and signposts in research; and can provide aids to the correct

appreciation and application of the law. Some of the theories under examination have a

relationship, one way or the other, with Public International Law. This is because International

Humanitarian Law is a branch of International Law; and armed conflict has a lot in common with

the use of force especially when discussed from the perspective of the Charter of the United

Nations. It must be kept in mind, however, the independence of jus ad bellum and jus in bello in

both the theoretical and legal discourses of the regulation of armed conflict under International

Humanitarian Law. Additional Protocol I states that:

“… the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the

17

nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict.25

If they should be discussed together, it is jus in bello that should control jus ad bellum and not

the other way. Sandoz, Swinarski and Zimmermann confirm that “the fourth paragraph states

that jus in bello cannot affect jus ad bellum; this point confirms the reverse.”26 The theories

explain the perspectives from which the different theorists address the question of the

characterization of armed conflict, applicable law and the protection of the victims of non-

international armed conflict under International Humanitarian Law. The last part of this chapter

reviews the literature on the subject matter of the research with emphasis and in line with the

objectives of the study.

2.2 Conceptual Framework/Definition of Terms

2.2.1 The Concept of Armed Conflict

Armed conflict is a resort to armed violence between opposing parties, regulated by IHL in terms

of the means and methods of warfare. Armed conflict is legally classified into two broad types,

namely: international and non-international armed conflicts. The addition of a third type of

armed conflict by the ICRC, as being internationalized armed conflict, is not legally supported

by the Geneva Conventions of 1949 and the Additional Protocols.27 According to the ICRC, “An

internal armed conflict is considered to be internationalized when it involves the armed forces of

one or several foreign States. These States intervene either by deploying their own forces in the

conflict or by exercising overall control over local forces.”28 Internationalized armed conflict 25 AP I, para. 4 of the Preamble.

26 Yves Sandoz, Christoph Swinarski and Bruno Zimmermann (eds.), Commentary on the Additional Protocols .of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: ICRC and Martinus Nijhoff Publishers, 1987): 28. The paragraph referred to is the fourth paragraph of the Preamble to the Additional Protocol 1 of 1977.

27 ICRC, Violence and the Use of Force (Geneva: ICRC, 2011), 33.

28 Ibid.

18

does not exist, at least legally, in IHL. The above definition by the ICRC is even in violation of

the law in non-international armed conflict whereby intervention by foreign States is absolutely

prohibited.29 The definition may be relevant in the daily sophistication of the reality of non-

international armed conflict but it does not have any legal basis in IHL.

The four Geneva Conventions of 194930 and the three Additional Protocols, two in 197731 and

one in 2005,32 make up the core treaties that regulate armed conflict. Unfortunately, the core

multilateral treaties in IHL that regulate armed conflict, do not define what an armed conflict is.

The International Criminal Tribunal for the Former Yugoslavia (ICTY), however, defines an

armed conflict thus:

… an armed conflict exists whenever there is a resort to armed force between States or a protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.33

29 AP II, art. 3.

30 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention 1) of August 12, 1949, [75 U.N.T.S. 31], (otherwise known as Land Convention); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (Geneva Convention II) of August 12, 1949, [75 U.N.T.S. 85], (otherwise known as Sea Convention; Geneva Convention Relative to the Treatment of Prisoners of War (Geneva Convention III) of August 12, 1949 [75 U.N.T.S. 135], (otherwise known as Prisoners of War Convention; and Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV) of August 12, 1949 [75 U.N.T.S. 287], (otherwise known as Civilian Convention). The four Geneva Conventions of 1949 are supplemented by three Additional Protocols. Arts. 2 and 3, which are common to all the four Geneva Conventions of 1949 regulate international and non-international armed conflicts respectively.

31 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977[1125 U.N.T.S. 3]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977[1125 U.N.T.S. 690].

32 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem (Protocol III) of 2005 [1125 U.N.T.S. 3]

19

From the definition above, an armed conflict is a factual situation regulated by IHL through

multilateral treaties and customary law. The determination of international armed conflict is very

easy in the sense that it occurs whenever sovereign States resort to arms in conflict against each

other. International armed conflict is primarily regulated by the four Geneva Conventions of

1949 and the Additional Protocol 1 of 1977 as:

… the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.34

From the above, it can be distilled that there are three types of international armed conflict that

are regulated y the four Geneva Conventions of 1949, which are:

1. All cases of declared war; or2. Any other armed conflict which may arise between two or more of the

High Contracting Parties, even if the state of war is not recognized by one of them; and

3. All cases of total or partial occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.35

The Additional Protocol (AP) 1 adds a fourth type of international armed conflict to the three

scenarios in the Geneva Conventions of 1949 and defines it as:

Armed conflicts in which people are fighting against colonial domination and alien occupation or against racist regimes in the exercise of their right to self- determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and

33 Case No. IT – 94 – 1- AR 72 at 488, judgement of 2 October, 1995.

34 GCs I, II, III and IV of 1949 respectively, art. 2. The cited article 2 is the same in all the four Geneva Conventions of 1949 and that is the reason it is referred to as “Common Article 2” or “Article 2 Common to the four Geneva Conventions of 1949.”

35 Ibid.

20

Co-operation among States in accordance with the Charter of the United Nations.36

The application of the Convention and the Protocol does not depend on the legal status of the

parties to the conflict or the legal status of the territory that is in occupation.37 They apply

whenever the defined situations in the Geneva Conventions commence.38

The above shows that international armed conflict is not difficult to determine as it takes place

immediately armed violence occurs between or among sovereign States. Since our focus is on

non-international armed conflict, we shall end our discussion here on international armed

conflict so as to deal more with the other type of armed conflict.

2.2.2 The Concept of Non-international Armed Conflict

Non-international armed conflict is an armed conflict that is regulated by IHL through Article 3

Common to the four Geneva Conventions of 1949 and the Additional Protocol (AP) II of 1977.

Unfortunately, Common Article 3 does not define non-international armed conflict but refers to

it as “… armed conflict not of an international character occurring in the territory of one of the

High Contracting Parties …” The AP II, however, offers a better, though not conclusive,

description of non-international armed conflict thus:

This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under a responsible command, exercise such control over a part of its territory as

36 Ibid, art 1 (4).

37 Ibid, art 4.

38 Common art. 2 of all the four Geneva Conventions of 1949.

21

to enable them to carry out sustained and concerted military operations and to implement this Protocol.39

The Protocol makes a further provision, by way of a caveat, on the application of the above

provision thus: “This Protocol shall not apply to situations of internal disturbances and tensions,

such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not

being armed conflicts.”40

A closer scrutiny of the above provisions reveals a very uncertain and convoluted phenomenon

in the name of definition. Those articles do not define non-international armed conflict but can

be said to offer the field of application of the provisions. A few things about the definition are,

however, certain and should be acknowledged. But before going into that, a clear-cut explanation

should be provided for the question of what is an armed conflict. In Prosecutor v. Dusco Tadic,

the Appeal Chamber of the International Criminal Tribunal for the Former Yugoslavia stated the

existence of armed conflict, thus:

We find that an armed conflict exists whenever there is a resort to armed force between States or a protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.41

From the above, armed conflict is a practical reality of resort to the use of deadly armed weapons

by opposing parties attacking each other. Armed conflict is, therefore, always de facto in nature.

39 AP II, art. 1 (1).

40 Ibid, art. 1 (2).

41 Case No. IT – 94 – 1- AR 72 at 488, judgement of 2 October, 1995.

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ICRC has equally expressed its difficulty in the inadequate definition of the scope of the

threshold by explaining that:

None of the instruments of international law offers an adequate definition of what is to be understood by the term ‘internal disturbances and tensions.’ Article 1, paragraph 2 of Protocol II additional to the Geneva Conventions of 1949 does mention ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.’ … Beyond those few examples, it does not give a definition.

In practice, disturbances are typically acts of public disorder accompanied by acts of violence. In the case of internal tensions, there may be no evidence, but the State may resort to practices such as mass arrests of opponents and the suspension of certain human rights, often with the intention of preventing the situation from degenerating into a disturbance.42

Separating disturbances from internal tensions is not a solution to the problem of attaining the

thresholds for the application of the law of armed conflict to non-international armed conflict. It

rather compounds it. ICRC is, therefore, wrong in the above explanation regarding the non-

international armed conflict triggers.

In that of non-international armed conflict, the ICRC law of armed conflict trigger should be the

guide. According to Corn:

Of the numerous factors offered by the ICRC Commentary, perhaps the most instructive was the focus on the state response to the threat: when a state resorts to the use of regular (and by ‘regular’ it is fair to presume that the ICRC Commentary refers to combat) armed forces, the situation has most likely crossed the threshold into the realm of armed conflict.43

It should also be noted that the response by a despot or a tyrant government to mere civil protests

may likely be different from that coming from a liberal democratic system.

42 International Committee of the Red Cross, Violence and the Use of Force (Geneva: ICRC, 2011): 19.

43 Geoffrey S. Corn, “Hamdan, Lebanon, and the Regulation of Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict,” Vanderbilt Journal of Transnational Law, vol. 40, no. 2 (2007): 303.

23

On the whole, the scope of application of Common Article 3 and Additional Protocol II are not

without some challenges and the definition of armed conflict is even more problematic as

acknowledged by Murphy thus:

The result of these limitations is that Additional Protocol is basically a non-operational treaty. … As to gaps in Common Article 3, it is important to note that neither the Geneva Conventions, including Common Article 3, nor Additional Protocol 1, contains a definition of an “armed conflict.” In contrast, as we have seen, Additional Protocol II, in paragraphs 1 and 2 of Article 1, defines non-international armed conflicts in such a way as to sharply limit the scope of the Protocol.44

Finally, non-international armed conflict is an armed conflict that occurs between government

armed forces and dissident armed forces or organized armed groups in the territory of one of the

High Contracting Parties, which is primarily regulated under IHL and other relevant treaties in

International Law.

2.2.8 Combatants

Combatants are members of government armed forces engaged in international armed conflict.45

Combatants have the right to participate directly in hostilities.46 This means that combatants only

exist in international armed conflict. The privilege that combatants have in armed conflicts is that

they become prisoners of war (POW) when they are captured by, or fall into the power of, the

enemy.47 Combatants are, therefore, protected persons when the fall into the power of the enemy

under IHL.

44 John F. Murphy, “Will-o’-the-Wisp?: The Search fo Law in Non-International Armed Conflicts,” in Non-International Armed Conflicts in the Twenty-first Century, Kenneth Watkin and Andrew J. Norris (eds.) (Newport: Naval War College, 2012): 17-18.

45 AP 1 of 1977, art. 43 (1) and (2).

46 Ibid, art. 43 (2).

47 Ibid, art. 44 (1).

24

It should be noted that it is not every military personnel that is a combatant. The military is,

therefore, made up of combatants and non-combatants. Non-combatant members of the military

do not take part in combatancy or directly in hostilities. Non-combatant members of the armed

forces include medical personnel and chaplains.48 Medical personnel and chaplains, though

members of the armed forces, do not take part in hostilities and are also protected persons in

armed conflicts.

2.2.9 Insurgents

Insurgents are members of non-State armed groups (NSAGs) engaging government armed forces

or other NSAGs in armed conflict. What combatants are in international armed conflicts is what

insurgents are in non-international armed conflict but without same privileges. The Black’s Law

Dictionary defines it as “a person who, for political purposes, engages in armed hostility against

an established government.”49 “Religious purpose” plays a major role in NIAC today. This is

because, when applied to the insurgents in the north-east Nigeria, Boko Haram or Islamic State

in West African Province (ISWAP) cannot be said to be engaging in armed conflict “for political

purposes” only. The armed conflicts engaged in by Boko Harm and ISWAP have roots more in

religious ideologies than for political purposes. The very name “Boko Haram” is literally

translated as “education is an abomination.” Our take is that the definition of insurgents should

be done on a case by case basis. The fact remains, however, that insurgents are members of

NSAGs engaging government armed forces or fighting among themselves in armed combat in

non-international armed conflict.

It must be emphasized that insurgency is not just the engagement of members of NSAGs in

armed combat with government forces but this armed engagement must meet a certain threshold

48 Ibid, art. 43 (2) and GC III of 1949, art. 33.

49 Bryan A. Garner (ed.), Black’s Law Dictionary 10th ed. (Minnesota: Thompson West, 2014), 928.

25

before it can attain the status of insurgency for the regulation of IHL to apply otherwise it can be

regarded, by sovereign States, as mere criminal acts by criminals.50 Insurgency does not,

therefore, “apply to situations of internal disturbances and tensions, such as riots, isolated and

sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”51 The

Protocol does not define what it meant by “internal disturbances and tensions” but what we do

know is that sovereign States have a large discretion as to whether an armed conflict exists in

their territory or not.

On the other hand, the armed response of a sovereign State, via the employment of full-spectrum

military combat power, to acts of insurgency is what is generally referred to as counter-

insurgency. Counter-insurgency is, therefore, regulated by international law via IHL.52

2.2.10 Terrorism

Terrorism is a crime both in International Law and Municipal law.53 Terrorism does not,

however, have any universally acceptably definition; sovereign States and regional

organizations, therefore, fill the gap thus created.54 Terrorism can be committed in peace time

and in situations of armed conflict. The global attention on terrorism was ignited by the events of

11 September, 2001 where al Qaeda hijacked four passenger jets and used them to demolish the

twin towers of the World Trade Centre in New York and the Pentagon in the United States of

America which killed nearly three thousand civilians, citizens of about seventy-countries.55

50 AP II of 1977, art. 1 (2).

51 Ibid.

52 Common Article 3 to the four GCs of 1949 and AP II of 1977.

53 Rehman, International Human Rights Law 2nd ed. (England: Pearson Education Limited, 2010), 879.

54 Malcolm N. Shaw, International Law 5th ed. (Cambridge: Cambridge University Press, 2003), 1049.

55 Rehman, International Human Rights Law, 906.

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Terrorism violates human rights, human dignity and fundamental freedoms.56 The catastrophic

effects of terrorism were captured by Annan thus:

Terrorism is a threat to all the United Nations stands for: respect for human rights, the rule of law, the protection of civilians, tolerance among peoples and nations, and the peaceful resolution of conflicts. It is a threat that has grown more urgent in the last five years. Transnational networks of terrorist groups have global reach and make common cause to pose a universal threat. Such groups profess a desire to acquire nuclear, biological and chemical weapons and to inflict mass casualties. Even one such attack and the chain of events it might set off could change our world forever.57

Our focus in this work is armed conflict with particular emphasis on the protection of victims of

non-international armed conflict. What then is the relationship between terrorism and armed

conflict? The question may be re-phrased to be: what is the place of terrorism in armed conflict?

Terrorism is prohibited in armed conflict, both international and non-international,58 and those

who engage in acts of terrorism in armed conflict commit grave breaches of the Geneva

Conventions on armed conflict and are subject to criminal prosecution before appropriate

domestic courts or the International Criminal Court (ICC).59 Terrorism does not, therefore, have

any place in armed conflict because it is prohibited and the prohibition is absolute.

The State response to terrorism is known as counter-terrorism. Counter-terrorism has generated

much controversy which straddles Public International Law and International Humanitarian Law

especially in the area of applicable law. The discussion on counter-terrorism since 2001 has had

the US response to al Qaeda’s armed attacks on the US as the yardstick. Yoo and Ho approach

56 Ibid, 879 and 898.

57 Kofi A. Annan, In Larger Freedom: Towards Development, Security and Human Rights for All (New York: United Nations Department of Public Information, 2005), 26.

58 GC IV, art. 33; AP 1, arts. 51 (2) and 52; and AP II, arts. 4 (2) and 13 (2).

59 Rome Statute of the International Criminal Court (ICC) 1998, art. 5 (1).

27

the issue from the point of view of intensity of the attack by al Qaeda and the US response with

military force to justify their insistence that IHL applies in counter-terrorism.60

We agree entirely with the reasoning of Yoo and Ho but we disagree with their position that the

captured, wounded or sick members of al Qaeda are not entitled to protection under IHL.61 Their

former position is in line with Common Article 3 while the latter position violates the same

provision which states that “the application of the preceding provisions shall not affect the legal

status of the Parties to the conflict.”62 The legal status of al Qaeda as a terrorist organization does

not detract from the application of IHL to the US response to the terrorist attacks. In addition, the

status of combatants on members of al Qaeda does not apply in the above case since the armed

conflict is that of a non-international character. Finally, the concept of self-defence is also alien

in the above case since that concept does not exist in favour of sovereign States in domestic

jurisdiction since non-international armed conflict ought to take place within the territory of a

State between its armed forces and dissident armed forces or organized armed groups.

The fact remains, however, that the terrorist attacks of 11 September 2001 has caused so much

controversy in International Law. Cassese makes this point clearer when he states that the impact

of the 11 September tragedy on the law of self-defence is more worrisome which may turn out to

be a Pandora’s box, setting an extremely serious precedent for the international community.63

Gasser offers a convincing conclusion on terrorism and its relationship with IHL thus:

60 John C. Yoo and James C. Ho, “International Law and the War on Terrorism,” New York University Journal of International Law (2003): 6-7.

61 Ibid, 20.

62 Common Article 3 to the four GCs of 1949, the last paragraph thereof. Yoo and Ho took their positions before the US Supreme Court settled the classification of the armed conflict as a non-international armed conflict in Hamdan v. Rumsfeld (supra) in 2006 where the court also held that the captured members of al Qaida were entitled to protection in accordance with Common Article 3 to the Geneva Conventions of 1949.

63 Antonio Cassese, “Terrorism is Also Disrupting Some Crucial Legal Categories of International Law,” European Journal of International Law, vol. 12, no. 5 (2001): 995 and 998.

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Every act of terrorism is incompatible with international humanitarian law applicable in armed conflictThe following brief analysis is based on two assumptions — or rather convictions. First, international humanitarian law is not an obstacle to effectively combating terrorism...Second, alleged terrorists remain under the protection of international humanitarian law, whether they are members of an armed force or civilians (‘illegal fighters’).64

It should be clarified that the protection accorded in IHL is only in favour of victims of armed

conflict. The active and fighting members of al Qaeda or members of any NSAG are not victims

unless and until they are captured, wounded, sick or shipwrecked as the case may be. Generally,

members of al Qaeda have continuous combat function (CCF) and are, therefore, military

objectives. They have a right to participate in hostilities and are targets of attack by government

forces. Membership in al Qaeda does not grant immunity from attack.

It is also legally incorrect to attach protection status to the compliance with IHL by NSAGs. To

state that the grave violations of IHL deprived captured al Qaeda members the protection

accorded by law, as proposed by Dinstein, is to stretch the law too far.65

As stated earlier, the violation of IHL does not deprive the victims of the armed conflict of their

protection under the applicable law. In addition, the judgement of the US Supreme Court is final

in the US, irrespective of any person’s perception of the issues involved. Finally, the said

judgement referred to by Dinstein has its own peculiar challenges notwithstanding the position of

the law on the subject especially as it relates to the legal classification of extra-territorial armed

conflict with NSAGs and the applicable law.

In the armed conflict in the north-east, the FGN response is based on the Terrorism (Prevention)

Act 2011 (as amended) and the judgement of the FHC in AG-Fed. v. ‘Jamaatu Ahlis-Sunna

64 Hans-Peter Gasser, “Acts of Terror, ‘Terrorism’ and International Humanitarian Law,” International Review of the Red Cross, vol. 84, no. 847 (2002): 565-566.

65 Dinstein, The Conduct of Hostilities 3rd ed., 66.

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Liddaawati Wal Jihad (otherwise Known as “Boko Haram”) & Anor.66 Placing emphasis on

terrorism in domestic jurisdiction, we turn to Nigeria to assess the insurgency/terrorist activities

of Boko Haram in the north-east and the adequacy, appropriateness or effectiveness of counter-

terrorism measures. It should be emphasized that counter-terrorism is not a “no law zone” where

anything goes but must be in accordance with IHL and HRL as expressed by the UNSC in

Resolutions 1456 of 20 January 2003 and 1566 of 8 October 2004. Responding to the armed

violence in the north-east as counter-terrorism within the confines of IHL is even in favour of the

Federal Government of Nigeria. This will enable government to employ full-spectrum superior

military combat power to the insurgents, with the full backing of the principle of military

necessity, within the ambit of the regulatory scrutiny of IHL. Government response to terrorism,

by way of counter-terrorism, is not based on reciprocity. This is because the combine effects of

the provisions in Common Article 3 of the Geneva Conventions of 1949 and the Vienna

Convention on the Law of Treaties 1969 are clear on this point as they state that:

The application of the preceding provisions shall not affect the legal status of the parties to the conflict.67

Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.68

Government forces and the insurgents do not have any excuse not to abide by the provisions of

IHL in the armed conflict in the north-east Nigeria as this conflict has been in existence for over

a decade with its attendant adverse effects on the protected persons as the victims.

66 Supra.

67 CA 3, last paragraph.

68 Vienna Convention on the Law of Treaties 1969, art. 60 (5). Paragraphs (1) – (3) of the said art. 60 allows the termination or suspension of the operation of a treaty as a result of its material breach by the other party or parties. This does not apply to treaties of a humanitarian character which include the core IHL treaties that regulate armed conflict.

30

2.2.11 Victims in Non-international Armed Conflict

Victims in non-international armed conflicts are the protected persons in the armed conflict. This

is in line with the provisions of the law on the subject. Common Article 3 enumerates the

protected persons in non-international armed conflict in an inclusive manner thus:

… persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, …The wounded and sick ….69

The above provision reveals the following protected persons:

1. Persons taking no active part in hostilities: these persons refer to civilians. This is because it

is only the military or insurgents that take active part in hostilities.70 This is further confirmed

by the principle of distinction.71 In armed conflict, attacks are directed at military or

insurgents and their objectives. Civilians enjoy the protection afforded by the provision,

unless and for such time as they take a direct part in hostilities.72 Civilian status or more

correctly, the protection afforded civilians in armed conflict can be lost whenever civilians

take direct part in hostilities. Civilian protection is, therefore, not a permanent standard in

armed conflict.

2. Members of the armed forces who have laid down their arms: this provision envisages the

permanent laying down of arms and not just a momentary withdrawal from combat. This is

69 Common Article 3 to the four GCs of 1949, (1) and (2).

70 CA 3 (1) but AP I, art. 51 (3) and AP II, art. 13 (3) refer to the notion as “direct participation in hostilities.” “Active participation” and “direct participation” in hostilities refer to the same notion in both international and non-international armed conflicts. In this work, preference is placed on “direct participation in hostilities.”

71 AP II, art. 13 (2).

72 Ibid, art. 13 (3).

31

because members of the armed forces or insurgent groups have a continuous combat function

(CCF) and are military objectives/targets at all times during the pendency of the conflict.

3. Those placed hors de combat by sickness, wounds, detention, or any other cause: the

expression “hors de combat” means “out of combat.” They are out of combat because of the

listed situations affecting them which include sickness, wounds, detention, or any other

cause. In those situations, they are helpless and can no longer take a direct part in hostilities;

and are, therefore, protected persons under the law.

The AP II has, however, extended the concept of victims in non-international armed conflict to

other categories of persons.73 Victims in non-international armed conflict, in accordance with AP

II, include the following:

1. Children;74

2. Women;75

3. Persons whose liberty has been restricted;76

4. Wounded, sick and shipwrecked;77

5. Medical and religious personnel;78

6. Medical units and transports;79

7. Civilian population and individual civilian;80

73 Ibid, art. 4 (1).

74 AP II, art. 4 (3) (a) - (d).

75 Ibid, arts. 4 (2) (e) and 6 (4).

76 Ibid, art. 5.

77 Ibid, art. 7.

78 Ibid, art. 9.

79 Ibid, art. 11.

80 Ibid, art. 13.

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8. Objects indispensable to the survival of the civilian population;81

9. Works and installations containing dangerous forces;82 and

10. Cultural objects and places of worship.83

The above listed persons and objects are victims of non-international armed conflict and are,

therefore, entitled to the protection accorded them in situations of armed conflict. Any direct

attack, especially attacks that are intentional, on any of the above mentioned persons and objects

is a violation of the law in non-international armed conflict.

2.2.12 Entitlement of Victims of Non-international Armed Conflict

Generally, the victims of non-international armed conflict are entitled to protection against attack

and the effects of attack in general. Apart from the general entitlement to protection, each of the

victims is entitled to specific guarantees in non-international armed conflict. In practice, the

notion of protection can be categorized into two aspects, namely: material needs of the protected

persons and the secondary needs. The primary needs of the protected persons are: food, medical

care and housing/accommodation. The secondary needs of the protected persons are: protection

from violence, arbitrary acts and the means of preserving their dignity. The primary needs are

undertaken by humanitarian NGOs/bodies while the secondary needs are usually provided for by

the States. Unfortunately, Common Article 3 and AP II do not define what “protection” is. The

concept of protection has, however, been defined thus:

The concept of protection encompasses all activities aimed at ensuring full respect for the right of the individual in accordance with the letter and the spirit of the relevant bodies of law, i.e. human rights law, international humanitarian law and refugee law. Human rights and humanitarian organizations must conduct these

81 Ibid, art. 14.

82 Ibid, art. 15.

83 Ibid, art. 16.

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activities in an impartial manner (not on the basis of race, national or ethnic origin, language or gender).84

Protection is, therefore, a concept in armed conflicts. The concept of protection in armed conflict

seems to be a contradiction in terms when looked at from the point of view that war is conducive

to criminal behavior.85 Be that as it may, “The High Contracting Parties undertake to respect and

to ensure respect for the present Convention in all circumstances,”86 while, on the other hand,

“The High Contracting Parties … have agreed on the following: ….”87 Protection is, therefore, a

matter of treaty obligation, which is rooted in pacta sunt servanda.88 Unfortunately and most

regrettably:

International conventions have traditionally looked to States to protect civilians, but today this expectation is threatened in several ways. First, states are sometimes the principal perpetrators of violence against the very citizens that humanitarian law requires them to protect. Second, non-state combatants, particularly in collapsed states, are often either ignorant or contemptuous of humanitarian law. Third, international conventions do not adequately address the specific needs of vulnerable groups, such as internally displaced persons, or women and children in complex emergencies.To strengthen protection, we must reassert the centrality of international humanitarian and human rights law. We must strive to end the culture of impunity – which is why the creation of the International Criminal Court is so important. We must also devise new strategies to meet changing needs.89

84 Sylvie Giossi Caverzasio (ed.), Strengthening Protection in War (Geneva: International Committee of the Red Cross, 2001), 19.

85 Jean-Jacques Frezard, The Roots of the Behaviour in War: A Survey of the Literature (Geneva: International Committee of the Red Cross, 2001), 27.

86 GC 1, II, III, IV of 1949, art. 1.

87 AP II of 1977, The Preamble.

88 Vienna Convention on the Law of Treaties 1969, art. 26. Pacta sunt servanda literally mean that agreements must be kept in good faith.

89 Annan, We the Peoples: The Role of the United Nations, 46.

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Our reassertion of the centrality of international humanitarian and human rights law starts from

the assessment of Common Article (CA) 3 and AP II for the entitlement of victims of non-

international armed conflicts.

2.2.12.1 Common Article 3

This article provides for the minimum guarantees, to be applied by each party to the conflict, for

victims of non-international armed conflict. The following acts, against the protected persons,

are prohibited:

(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

judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.90

(2) The wounded and sick shall be collected and cared for.91

Common Article 3, therefore, provides for minimum guarantees in favour of the victims of non-

international armed conflict and parties to that type of armed conflict are under obligation to

protect and ensure protection for the categories of victims thus protected.

2.2.12.2 AP II of 1977

(a) Fundamental Guarantees

This Protocol provides for humane treatment in favour of all the victims of non-international

armed conflict.92 The fundamental guarantees provide the particulars of the humane treatment in

that part of the Protocol by prohibiting violence to the life, health and physical or mental well-

being of protected persons, in particular murder as well as cruel treatment such as torture,

90 GCs I, II, III and IV, art. 3 (1).

91 Ibid, art. 3 (2).

92 AP II, Part II, which covers arts. 4 – 6, is titled “Humane Treatment” while art. 4 itself is titled “Fundamental Guarantees.”

35

mutilation or any form of corporal punishment.93 The following are also prohibited: collective

punishment; taking of hostages; acts of terrorism; outrages upon personal dignity, in particular

humiliating and degrading treatment, rape, enforced prostitution and any form of indecent

assault; slavery and the slave trade; pillage; and threats to commit any of the above acts.94

(b) Children

Children are in the class of the most vulnerable in non-international armed conflicts and are to be

provided with the care and aid they require which include education and re-union with separated

families.95 Children under the age of fifteen are prohibited from being recruited into the armed

forces or armed groups nor allowed to take part in hostilities.96 Children under the age of fifteen,

who take part in hostilities, do not lose their protection as protected persons when they are

captured.97 The removal of children from the area of hostilities to a safer area within the country

must be done with the consent of their parents or guardians and the removed children must be

accompanied by persons responsible for their safety and well-being.98 The death penalty must not

be pronounced on persons who were under the age of eighteen years at the time of the offence.99

(c) Women

93 AP II, art. 4 (2) (a).

94 Ibid, art. 4 (2) (b) – (h).

95 Ibid, art. 4 (3) (a) and (b).

96 Ibid, art. 4 (3) (c).

97 Ibid, art. 4 (3) (d).

98 Ibid, art. 4 (3) (e).

99 Ibid, art. 6 (4).

36

Women are in the class of the most vulnerable in non-international armed conflict. Therefore,

“outrages upon personal dignity, in particular humiliating and degrading treatment, rape,

enforced prostitution and any form of indecent assault” are prohibited.100 The death penalty must

not be pronounced, and must not be carried out, on pregnant women or mothers of young

children.101

(d) Persons whose liberty has been restricted

These persons refer to all those interned or detained as a result of the armed conflict. The

wounded and the sick among the interned or detained persons, whether or not they have taken

part in the hostilities, are to be respected and protected; treated humanely and receive the medical

care and attention required by their condition.102 The sick and the wounded among the interned or

detained persons are to be provided with food and drinking water. They are to be provided also

with safeguards as regards health, hygiene and protection against the rigours of the climate and

the dangers of the armed conflict.103 They are to be allowed to practice their religion.104

Interned or detained men and women are to be quartered separately except they are family

members and women to be under the immediate supervision of women.105 Places of internment

or detention are not to be located close to the combat zone.106

(e) Wounded, sick and shipwrecked

100 Ibid, art. 4 (2) (e).

101 Ibid, art. 6 (4).

102 Ibid, art. 5 (1) (a). The sick and wounded among the interned or detained persons are also entitled to the provisions of articles 4 and 7 of AP II.

103 Ibid, art. 5 (1) (b).

104 Ibid, art. 5 (1) (d).

105 Ibid, art. 5 (2) (a).

106 Ibid, art. 5 (2) (c).

37

The wounded, sick and shipwrecked are to be protected and cared for. They are to be provided

with medical care and attention required by their condition.107 There is an obligation, after every

armed engagement, to search for and collect the wounded, sick and shipwrecked; ensure their

adequate care; search for the dead, prevent their mutilation, and decently dispose of them108

(f) Medical and Religious Personnel

They are to be respected, protected and granted all available assistance for the performance of

their duties. They are not to be compelled to carry out tasks which are not compatible with their

humanitarian mission.109

(g) Medical units and transports

Medical units and transport are not to be the object of attack. The protection of medical units and

transports shall not cease unless they are used to commit hostile acts, outside their humanitarian

function. The protection can only cease after a warning and a reasonable time-limit has

elapsed.110 The distinctive emblem of the Red Cross, red crescent or red lion and sun on a white

ground are to be displayed by medical and religious personnel, medical units and on medical

transports. The distinctive emblem is to be respected in all circumstances and should not be used

improperly.111

(h) Civilian population and individual civilians

In every armed conflict, civilians pay the greatest price with their lives and limbs. The civilian

population and individual civilians are generally protected against the dangers arising from

107 Ibid, art. 7.

108 Ibid, art. 8.

109 Ibid, art. 9.

110 Ibid, art. 11 (1) and (2).

111 Ibid, art. 12.

38

military operations.112 Civilians are not military objectives and are, therefore, not the objects of

attack in armed conflict.113 This is in line with the principle of distinction. Civilians are protected

unless and for such time as they take a direct part in hostilities.114

(i) Internally Displaced Persons (IDPs) and Refugees

There is a dangerous dimension of the adverse effects of non-international armed conflicts on

civilians which is always manifested in displacement and generally known as internal

displacement. The result of internal displacement is internally displaced persons (IDPs) who are

in a class of the most vulnerable victims of armed conflict. Internal displacement of civilians in

non-international armed conflict is natural and a practical reality. The forced movement or

displacement of civilians is prohibited unless the security of those civilians or imperative

military reasons so demand. Such displacements can only be carried out where the displaced

civilians can be received under satisfactory conditions of shelter, hygiene, health, safety and

nutrition.115

(j) Objects indispensable to the survival of the civilian population

Objects indispensable to the survival of the civilian population are protected in non-international

armed conflicts. It provides that:

112 Ibid, art. 13 (1).

113 Ibid, art. 13 (2).

114 Ibid, art. 13 (3).

115 Ibid, art. 17 (1). Internal displacement of civilians is also regulated under the Refugee Convention of 1951 and the OAU/AU Convention Governing the Specific Aspects of Refugee Problems in Africa (otherwise known as the Kampala Convention) of 1969. The Kampala Convention of 1969 has been replaced with the African Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) 2009. It should be noted that AP II relates to internally displaced persons but the reality of non-international armed conflicts also involves refugees. The difference between internal displacement and refugeeism is that the former is displacement within a country while the latter is displacement beyond international boundaries. In the armed conflict in the north-east Nigeria, Nigerians have been displaced into Cameroon, Chad and Niger while a greater number is displaced across different States in Nigeria. The armed conflict in the north-east Nigeria involves both internally displaced persons and refugees.

39

Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works.116

Civilians are the greatest victims in non-international armed conflicts and their protection and

survival in armed conflict are the primary concerns of IHL.

(k) Works and installations containing dangerous forces

Works or installations containing dangerous forces are protected and are not the objects of

attack. These works or installations containing dangerous forces are: dams, dykes and nuclear

electrical generating stations. They “are not to be made the object of attack, even where these

objects are military objectives, where such attack may cause the release of dangerous forces and

consequent severe losses among the civilian population.”117

(l) Cultural objects and places of worship

Cultural objects and places of worship are protected in non-international armed conflicts because

they are civilian objects and constitute the cultural or spiritual heritage of peoples. It is prohibited

to commit any acts of hostility directed against historic monuments, works of art or places of

worship, and to use them in support of the military effort.118

(m) Guarantees on Fair Trial Rights119

The prosecution and punishment of criminal offences related to the non-international armed

conflict are regulated by law which guarantees the right to fair trial120 which include

116 AP II, art. 14.

117 Ibid, art. 15.

118 Ibid, art. 16. This provision operates in conjunction with the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954.

119 Ibid, art. 6.

120 Ibid, art. 6 (1).

40

pronouncement of punishment by a court offering the essential guarantees of independence and

impartiality.”121 The particulars of a court offering essential guarantees of independence and

impartiality are also listed.122

Furthermore, a convicted person must be advised of his judicial and other remedies and the time

limits within which to exercise same.123 The death penalty is not to be pronounced on persons

who were under the age of eighteen at the time of the offence and the death penalty is not to

carried out on pregnant women or mothers of young children.124 At the end of hostilities, the

authorities in power are to grant the broadest possible amnesty for persons who have participated

in the armed conflict, whether they are interned or detained.125

Finally, the means by which the entitlements of the victims of non-international armed conflicts

are realized is also provided for by the law. Apart from the undertaking by the High Contracting

Parties to the four Geneva Conventions of 1949,126 the Additional Protocol II of 1977127 and the

parties to the conflict,128 it is also provided that an impartial humanitarian body, such as the

International Committee of the Red Cross, may offer it services to the Parties to the conflict. 129

The Additional Protocol II makes clearer the role of relief societies and relief actions in non-

international armed conflicts.130

121 Ibid, art. 6 (2).

122 Ibid, art. 6 (2) (a) – (f).

123 Ibid, art. 6 (3).

124 Ibid, art. 6 (4).

125 Ibid, art. 6 (5).

126 GCs I, II, III and IV of 1949, art. 1 and CA 3.

127 AP II, The Preamble.

128 CA 3.

129 Ibid.

130 AP II. Art. 18 (1) and (2).

41

The enforcement of the provisions of IHL in favour of the victims of non-international armed

conflicts is an effort in cooperation and collaboration among all the stakeholders in humanitarian

and human rights issues. Here, the High Contracting Parties to the treaties, parties to the armed

conflict and humanitarian organizations jointly play major and crucial roles in protecting the

victims of armed conflicts.

2.3 Theoretical Framework

2.3.1 Hostilities without Dispute Theory

This theory is not of recent origin in armed conflict but developed out of the practical realities of

the gap created in the legal classification of armed conflict into two distinct types: international

and non-international, by the Geneva Conventions of 1949. It should be appreciated that the

theory pre-dates the Geneva Conventions of 1949131 but those Conventions tried providing

solutions to the events that gave rise to the theory. Tracing the events that brought the theory to

the fore after World War II and the desire to bring the law up to date with the Additional

Protocols of 1977, Corn and Jensen emphasize that:

The trend to enlarge the coverage of the laws of armed conflict continued as a result of the deadly armed conflicts that occurred after WWII. In 1977, the ICRC sponsored the completion of two Additional Protocols that expanded on the prior Geneva Conventions. They not only brought the Geneva Conventions up to modern expectations, but for the first time showed a merging of the Geneva and Hague traditions.132

The challenges that trumped up the theory were initially manifested mostly in non-international

armed conflict but have, however, gradually infiltrated international armed conflict as well. Corn

informs that:

131 Geoffrey S. Corn, “Hamdan, Lebanon, and the Regulation of Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict,” Vanderbilt Journal of Transnational Law, vol. 40, no. 2 (2007): 302.

132 Geoffrey S. Corn and Eric Talbot Jensen, “Untying the Gordian Knot: A Proposal for Determining Applicability of the Laws of War to the War on Terror,” Temple Law Review, vol. 81 (2008): 795.

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Determining the existence of armed conflict in the non-international context has been more problematic. The key concern addressed by the ICRC Commentary in this context was determining the line between internal civil disturbances, which are subject to domestic legal regimes, and military conflict, which trigger application of the basic principle of humanity derived from the laws of war.133

The practical realities of real life situations of armed conflict could not fit into the mould of the

Geneva Conventions classification. As a result, State parties involved in armed conflicts that did

not fit into the Geneva Conventions’ classification of armed conflicts refused to accept the

existence of any dispute thereby excluding the regulation of such armed conflicts. The claim of

hostilities without dispute has occurred many times and examples are always in the area of

protection of nationals and national interests abroad. Examples of such claims of hostilities

without disputes include the Israeli activities at Entebbe Airport in Uganda,134 where Israel

conducted the operations to rescue its nationals who were held hostage by Palestinian terrorists

who hijacked them as passengers in a civilian Air France plane and US Operation Just Cause in

Panama in 1989, where the US had four objectives for the action.135 According to Phillips:

In the two years preceding Operation JUST CAUSE, the strategyremained constant: protect American lives, defend U.S. treaty rights inthe Canal Zone, assist a democratically elected government inPanama, and arrest an indicted drug trafficker. BLUE SPOON, OPLAN90–1, and OPLAN 90–2 were always mindful of those national strategic goals. The force structures, deployment plans, and tactical objectives of these plans conformed closely to these objectives.136

The immediate cause for the invasion was the declaration of war against the US by General

Manuel Noriega in December 1989 and other acts that the US found to be unacceptable. Thus:

133 Corn, “Hamdan, Lebanon, and the Regulation of Hostilities,” 303.

134 Ofer Yehoda, Operation Thunder: The Entebbe Raid (England: Penguin Books Limited, 1976), 3.

135 R. C. Phillips, Operation Just Cause: the Incursion into Panama. Available at www.history.army.mil/html/books/070/70-85-1/cmhPub-70-85-1.pdf. Accessed on 28/9/2018.

136 Ibid, 47.

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In the weeks that followed, additional servicemen were detainedand assaulted. In the late hours of 12 April 1988, at a fuel tank farmnear Howard Air Force Base, gunfire was exchanged between the U.S. Marine Corps guards and several armed intruders in one of the mostviolent episodes in the crisis prior to the invasion. By the end of 1988there were over 300 incidences of U.S. military personnel and familymembers’ having experienced harassment, threats, or assaults at thehands of the PDF.137

Others are Russian invasion of Georgia in 2008,138 where Russia claimed to have taken the action

to protect its nationals and peacekeepers; Russian intervention in Ukraine;139 US War on Terror

in Somalia;140 US Operation Urgent Fury in Grenada,141 etc. In all these armed operations, the

victims of those conflicts, civilian population and civilian objects, were deliberately targeted and

their protections were violated.

The existence and the nature of armed conflicts are the triggers of the legal classification of

armed conflict and the applicable rules of International Humanitarian Law as embodied in the

Geneva Conventions of 1949 and the Additional Protocols of 1977. Therefore, the existence and

nature of armed conflict must co-exist in order to determine the applicable rules.

137 Ibid, 5 and 8.

138 On 8 August 2008, Russia launched a full-scale military operation in Georgia ostensibly to protect its peacekeepers and nationals who were facing attacks and persistent persecution in Georgia’s breakaway republics of Abkhazia andSouth Ossetia. Cessation of hostilities was finally achieved on 16 August 2008 when both parties agreed to comply with the terms of a European Union (EU)-brokered ceasefire under the leadership of the then French President - and then holder of the rotating EU presidency - Nicolas Sarkozy. Phoebe Okowa, “The International Court of Justice and the Georgia/Russia Dispute,” Human Rights Law Review, vol. 11, no. 4 (2011): 741.

139 Serhy Yekelchyk, The Conflict in Ukraine: What Everyone Needs to Know (New York: Oxford University Press, 2015), 5-7.

140 David N. Gibbs, “Realpolitik and Humanitarian Intervention: The Case of Somalia,” International Politics, vol. 37 (2000): 50-51.

141 Operation Urgent Fury has been discredited by Bell as being the invasion of Grenada instead of protection of US interests and medical students abroad. Wendell Bell, “The American Invasion of Grenada: A Note on False Prophecy,” Foresight, vol. 10, no. 3 (2008): 27- 42.

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The emergence of the theory was given greater impetus with the US armed response to the armed

attacks by al Qaeda and its affiliates on the World Trade Centre and the Pentagon on the 11

September, 2001.142 The other events that solidified the theory were the armed response of Israel

to armed attacks by Hezbollah and Hamas in Lebanon in 2006 and Gaza in 2008 respectively.

Corn has, accordingly, stated that:

This ‘hostilities without dispute’ theory was clearly manifest inthe recent conflict in Lebanon, where neither Israel nor Lebanon tookthe position that the hostilities fell into the category of internationalarmed conflict. Nor was this was [sic] not the first example of the use ofsuch a theory to avoid the acknowledgement of an internationalarmed conflict.143

On the war with al Qaeda in Afghanistan, the then US President, Bush, held that the law of

armed conflict did not apply because the US had no dispute with al Qaeda but that the US was

fighting global terrorism.144

The assessment of this theory reveals a major contradiction with the purposes of the law of

armed conflict, one of which is the protection of victims of armed conflicts.145 The law applies

immediately there is armed conflict of an international character and when the thresholds have

been met in armed conflicts of a non-international character.146 Generally, the law of armed

conflict applies in all armed confrontations notwithstanding the existence or otherwise of

dispute, whether with State or non-State entities. The existence of an armed conflict is a factual

situation devoid of the niceties of politics and diplomacy.142 The 9/11 Commission Report. Available at https://www.9-11commission.gov/report/911Report.pdf.

Accessed on 12 December 2018.143 Corn, “Hamdan, Lebanon, and the Regulation of Hostilities,” 305.

144 Hans-Joachim Heintze, “On the Relationship between Human Rights Law Protection and International Humanitarian Law,” International Review of the Red Cross, vol. 86, no. 856 (2004): 686-687.

145 Geneva Convention IV of 1949 and the Additional Protocols of 1977.

146 Common art. 2 to the Geneva Conventions of 1949 and art. 1 of AP I of 1977 on the one hand; and Common art. 3 to the Geneva Conventions of 1949 and art. 1 of AP II of 1977 on the other hand.

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This theory further exposes the defeatist approach by States to effective protection of victims of

armed conflict that is jealously guarded by International Humanitarian Law (IHL) via

multilateral treaties and even customary law. In Nigeria, the Federal Government has insisted

that she does not have any dispute with Boko Haram in the north-east. The then Attorney-

General of the Federation (AGF), acting under the Terrorism (Prevention) Act 2011 (as

amended), applied via a motion ex-parte, dated the 23 May, 2013, to the Federal High Court

(FHC), Abuja Judicial Division and filed same the following day. The ex-parte motion prayed

the FHC to declare Boko Haram as a terrorist organization, proscribe it and make membership

and activities of Boko Haram terrorism offences under the Terrorism (Prevention) Act 2011 (as

amended). The presiding judge heard the AGF in chambers on the 24 May, 2013 and granted all

his prayers as per the motion ex-parte. The order of the court is published as the Terrorism

(Prevention) (Proscription Order) Notice, and published in the Official Gazette on the 24 May

2013.147 From then on, the Federal Government of Nigeria has maintained that she is engaged in

counter-terrorism with Boko Haram, as an international criminal organization, in the north-east.

The FGN does not view the armed conflict in the north-east as armed conflict that is regulated by

IHL and, therefore, dispels the idea of any armed dispute with Boko Haram. In the meantime, the

Office of the Prosecutor (OTP) of the International Criminal Court (ICC), in its Preliminary

Report in 2013, indicates that the situation in the north-east part of Nigeria between Boko Haram

and the Nigerian Government is an armed conflict of a non-international character.148

147 Attorney-General of the Federation v. ‘Jamaatu Ahlis-Sunna Liddaawati Wal Jihad (otherwise known as “Boko Haram” Sect) and ‘Jama’tu Ansarul Muslimina Fi Biladis Sudan, Suit No: FHC/ABJ/CS/368/2013.

148 OTP ICC, “Situation in Nigeria: Article 5 Report,” of 5 August 2013. The most current report from the OTP of ICC is that released on the 14 December 2020 which confirms that Preliminary Examinations of the Situation in Nigeria have been completed and that the OTP is awaiting the appointment of a new prosecutor to apply to the Pre-Trial Chambers for indictment and issue of arrest warrant on those concerned [The OTP of ICC, Report on Preliminary Examination Activities 2020 of 14 December 2020 (The Hague: ICC, 2020), Paras. 248-266 at 64-67].

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2.3.2 Applicability Avoidance Theory

Applicability Avoidance Theory is an offshoot of the hostilities without dispute theory. Thus,

this theory is the natural consequence of hostilities without dispute theory. This theory, which is

also known as Compliance Avoidance Theory, is the effect of denial of the existence of dispute

while engaging in armed hostilities, for any reason whatsoever. This theory has manifested itself

in many instances especially in the US global war on terror.149 Corn and Jensen state, however,

that the theory is not of a recent origin, having been the precursor to the four Geneva

Conventions of 1949 after the experience of World War II. For them, this theory is contrary to

the provisions of the Geneva Conventions. According to them:

That such uncertainty exists seems inconsistent with the intent of thedrafters of the Geneva Conventions of 1949. One of the most important aspectsof these four treaties was the rejection of a legally formalistic approach todetermining application of the laws of war in favor of a pragmatic trigger, aneffort inspired by the perceived ‘law avoidance’ that occurred during WWII bycharacterizing armed conflicts as falling outside the legal definition of ‘war.’150

Corn and Jensen offer their conclusion on the trigger mechanism of the realities of armed

conflict, thus:

The reality that evolved after 1949 did not, however, necessarily implementthis spirit and purpose. Instead, the geographic context of armed conflictsbecame as decisive to law applicability as did the existence of armed conflictitself. Accordingly, unless a conflict could be pigeonholed into … the interstate/intrastate ‘either/or’ law triggering paradigm, applicability of the law was rejected.151

149 Jens David Ohlin, “The Torture Lawyers,” Harvard International Law Journal, vol. 51, no. 1 (2010): 205-207

150 Corn and Jensen, 796.

151 Ibid, 798.

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Arishe and Akpeme state that the Charter of the United Nations of 1945 and the Geneva

Conventions of 1949 have made it impossible for governments to bypass the prohibition of war,

deny their conducts of war and avoid the application of the laws of war.152

Pejic relates the theory to what he calls the gap theory153 while Heintze blames the emergence of

the theory on the prevalence of civil conflicts which always occur in a “no law” zone:

From a practical point of view the growing recourse to internationalhumanitarian law protection is, of course, also a result of the increasedoccurrence of civil conflicts, which often take place in a grey zone in terms ofthat law owing to its relatively few rules governing such situations. Its practical importance for parties to conflict has been convincingly pointed out ….154

A few comments need to be made here for clarification. Civil conflict is not synonymous with

non-international armed conflict. This is in view of the thresholds that must be met for the

application of the law of armed conflict pertaining to a conflict not of an international

character.155 In international humanitarian law, there is no demarcation between hostilities and

dispute. The application of the law of armed conflict does not depend on the existence of dispute.

The word “dispute,” whatever it means, is of foreign importation into international humanitarian

law. The controlling trigger of the application of the Geneva Conventions of 1949 and the

Additional Protocols of 1977 is the existence of an armed conflict,156 which is always de facto in

nature. In Prosecutor v. Dusco Tadic, the Appeal Chamber of the International Tribunal for the

Former Yugoslavia stated the existence of armed conflict, thus:

152 G. O. Arishe and E. C. Akpeme, “Is Boko Haram Insurgency in Nigeria a Non-international Armed Conflict?,” The Journal of International Law and Diplomacy, vol. 2, no. 1 (2014): 66-67.

153 Jelena Pejic, “The Protective Scope of Common Article 3: More than Meets the Eye,” International Review of the Red Cross, vol. 93, no. 881 (2011): 203.

154 Heintze, “On the Relationship,” 796.

155 Common article 3 of Geneva Conventions 1949 and the Additional Protocol II of 1977.

156 The Geneva Conventions and the Additional Protocols have no definition of what is armed conflict.

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An armed conflict exists whenever there is a resort to armed force between States or a protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place.157

The challenge in the determination of the existence of an armed conflict occurs only in non-

international armed conflict. This is as a result of the thresholds to be met to activate its trigger.

The application of the Geneva Convention to a conflict not of an international character is

provided for, thus:

This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflict (Protocol 1) and which take 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 to implement this Protocol.158

The problematic caveat, which is always referred to as the threshold, is couched thus: “This

Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated

and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”159

ICRC has equally expressed its difficulty in the inadequate definition of the scope of the

threshold by explaining that:

None of the instruments of international law offers an adequate definition of what is to be understood by the term ‘internal disturbances and tensions.’ Article 1,

157 Case No. IT – 94 – 1- AR 72 at 488, judgement of 2 October, 1995.

158 AP II, art. 1 (1).

159 Ibid, (2).

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paragraph 2 of Protocol II additional to the Geneva Conventions of 1949 does mention ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.’ … Beyond those few examples, it does not give a definition.

In practice, disturbances are typically acts of public disorder accompanied by acts of violence. In the case of internal tensions, there may be no evidence, but the State may resort to practices such as mass arrests of opponents and the suspension of certain human rights, often with the intention of preventing the situation from degenerating into a disturbance.160

Separating disturbances from internal tensions is not a solution to the problem of attaining the

thresholds for the application of the law of armed conflict to non-international armed conflict. It

rather compounds it. ICRC is, therefore, wrong in the above explanation regarding the non-

international armed conflict triggers. The dictum of the Appeals Chamber of the International

Criminal Tribunal for the former Yugoslavia is instructive that “what is inhumane, and

consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil

strife.”161

It should be emphasized that there are rules of conduct in armed conflict. These rules must be

observed in armed conflict. There is no provision for “applicability or compliance avoidance.”

The central concern in armed conflict or war should be the protection of victims from attack and

the effects of attack. There should be no room for the so called “applicability or compliance

avoidance” once armed hostilities break out in international armed conflict. In that of non-

international armed conflict, the ICRC law of armed conflict trigger should be the guide.

According to Corn:

Of the numerous factors offered by the ICRC Commentary, perhaps the most instructive was the focus on the State response to the threat: when a State resorts to the use of regular (and by ‘regular’ it is fair to presume that the ICRC

160 International Committee of the Red Cross, Violence and the Use of Force (Geneva: ICRC, 2011): 19.

161 Proscutor v. Tadic, Para. 119,

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Commentary refers to combat) armed forces, the situation has most likely crossed the threshold into the realm of armed conflict.162

It should also be noted that the response by a despot or a tyrant government to mere civil protests

may likely be different from that coming from a liberal democratic system.

This theory is useful in the area of eternal vigilance in the observance of rules of conduct in

armed conflict, whether international or non-international, irrespective of the parties involved.

Widespread violation of International Humanitarian Law in recent times against victims of

armed conflicts, however, calls for a total rejection of this theory. The Government of the

Federal Republic of Nigeria has consistently applied this theory to the armed conflict in the

north-east part of Nigeria thereby avoiding the application of Common Article 3 and the

Additional Protocol II which are the core regulatory treaties for non-international armed

conflicts. In effect, this has resulted in the death and maiming of the victims and the continuous

destruction of civilian objects like civilian residences, schools, hospitals and places of worship.

This theory is, therefore, of no assistance to the victims of non-international armed conflict. It

also distorts the understanding and application of the law in situations of armed conflict and

should be rejected.

2.3.3 Targeted Killing Theory

The full title of the theory is “Ad Bellum Self-defence Targeted Killing Theory.”163 Targeted

killing has been in existence for a long time now and is as old as armed conflict. Targeted killing

theory has, however, generated much controversy as targeted killing became an Israeli military

162 Corn, “Hamdan, Lebanon, and the Regulation of Hostilities,” 303

163 Geoffrey S. Corn, “Self-defence Targeting: Blurring the Line between the Jus ad Bellum and the Jus in Bello,” in Non-International Armed Conflict In the Twenty-first Century, Kenneth Watkin and Andrew J. Norris (eds.) (Newport: International Law Studies of the Naval War College, 2012): 59.

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policy in her armed conflict with her enemies. The first ever judicial scrutiny of this theory was

in Public Committee Against Torture in Israel v. Government of Israel164 where the Israeli

Supreme Court held that under the law of armed conflict the targeting of terrorists was lawful

unless they (terrorists) can be arrested without harm to the Israeli Defence Forces (IDF).165 This

theory became popularized with the United States of America’s Global War on Terror (GWOT)

since the 9/11 attack on the World Trade Centre and the Pentagon. The theory came before the

US District Court in al-Aulaqi v. Obama166 over the targeted killing of the petitioner in Yemen

by the US forces. The full title of the theory has, however, thrown up a lot of legal issues and

controversies surrounding the appropriateness or otherwise of the theory in armed conflict

especially non-international armed conflict. “Ad Bellum Self-Defence” is not the business of

IHL. Ad bellum self-defence is domiciled under article 51 of the Charter of the United Nations

and therefore exists under Public International Law (PIL). In addition, the full title of self-

defence under PIL is “ad bellum self-defence authority” and not “ad bellum self-defence

regulation.” Most importantly, “self-defence” does not exist in NIAC as NIAC exists within a

sovereign State with the participation of no other sovereign State. So, self-defence is a matter

between State versus State. Finally, there is the eternal principle of the separation of “jus ad

bellum” from “jus in bello” in the regulation of armed conflict.167 The purported full title of the

theory is, therefore, legally unsustainable under IHL.

164 (2006) HCJ 769/02 at 69.

165 Galit Raguan, “Adjudicating Armed Conflict in Domestic Courts: The Experience of Israel’s Supreme Court,” in Yearbook of International Humanitarian Law, M. N. Schmitt et al. (eds.), vol. 13, (2010): 77.

166 No. 10-cv-1469 (D.D.C. 25 September 2010), Opposition to Plaintiff’s Motion for Preliminary Injunction and Memorandum in Support of Defendants’ Motion to Dismiss, Exhibit 1, Unclassified Declaration in Support of Formal Claim of State Secrets Privilege by James R. Clapper, Director of National Intelligence (‘Clapper Declaration’), at 14. Available at http://www.lawfareblog.com/wp-content/uploads/2010/09/Exhibit-1.pdf. Accessed on 20 January 2018.

167 AP I, last paragraph of the Preamble.

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Most importantly, Melzer did his PhD thesis in this area of the law and later published his book

on it.168 There are a few points to note on Melzer’s treatment of the theory. First, the title of his

book on the subject and the theory is misleading. Targeted killing, as a legal regulation, exists

only in situations of armed conflict. Therefore, Melzer’s treatment of the theory under general

International Law has generated a lot of confusion especially with his mention of article 51 of the

Charter of the United Nations in the course of that discussion.169 Article 51 deals primarily with

individual and collective self-defence “authority” in the event of an armed attack on a member of

the United Nations. It does not, prima facie, deal with the regulation of the means and methods

of warfare, which is the primary focus of IHL. This theory should have been specifically

discussed under, and restricted within, International Humanitarian Law (IHL). This is the only

way to arrive safely at the correct legal position on the subject and theory of targeted killing.

Secondly, discussing the theory under International Law further violates the eternal demarcation

between jus ad bellum from jus in bello which is a cardinal principle in the proper regulation of

armed conflict for the protection of victims.

Thirdly, Melzer also discussed the theory within the IHL and human rights paradigms of armed

conflict and law enforcement respectively.170 It has to be kept in mind that targeted killing is only

permissible in armed conflict and has to be carried out within the ambit of IHL and by

combatants, insurgents or the military as the case may be.

Dinstein, on his part, advocates that targeted killing can only be justified in, and should be

restricted to, armed conflicts within the applicable constraints.171 Dinstein is in line with the law 168 Nils Melzer, Targeted Killing in International Law (Oxford: Oxford University Press, 2008). Melzer is

a legal adviser with the ICRC and has a lot of influence in ICRC’s decisions concerning the regulation of armed conflict in the world.

169 Charter of the United Nations 1945, art. 51.

170 Melzer, Targeted Killing in International Law, 397.

171 Dinstein, The Conduct of Hostilities, 117-118.

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on the subject. There are, however, questions to which answers should determine whether

targeted killing is permissible or not. Is there an armed conflict? Is the target a military

objective? Are the means and methods within the permissible in the circumstances? If the

cumulative answers to the above questions are in the affirmative, then targeted killing can be

carried out.

The prevalence of targeted killings drew the attention of the international community which

prompted the United Nations Human Rights Council (UN HRC) to appoint Alston as a Special

Rapporteur on the Study of Targeted Killings. Alston conducted the Study and submitted his

Report titled “Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary

Executions” of 28 May 2010.172 According to the Report:

Despite the frequency with which it is invoked, ‘targeted killing’ is not a term defined under international law. Nor does it fit neatly into any particular legal framework. It came into common usage in 2000, after Israel made public a policy of ‘targeted killings’ of alleged terrorists in the Occupied Palestinian Territories. The term has also been used in other situations ….173

The Report, however, defines it thus:

A targeted killing is the intentional, premeditated and deliberate use of lethal force, by States or their agents acting under colour of law, or by an organized armed group in armed conflict, against a specific individual who is not in the physical custody of the perpetrator. In recent years, a few States have adopted policies, either openly or implicitly, of using targeted killings, including in the territories of other States.174

The Report made far reaching recommendations and concluded that:

States should publicly identify the rules of international law they consider to provide a basis for any targeted killings they undertake. They should specify the bases for decisions to kill rather than capture. They should specify the procedural safeguards in place to ensure in advance of targeted killings that they comply with

172 Philip Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (Study on Targeted Killings) to the United Nations Human Rights Council (UN HRC) of 28 May 2010 at A/HRC/14/24/Add.6.

173 Ibid, 4 at para. 7.

174 Ibid, 3 at para. 1.

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international law, and the measures taken after any such killing to ensure that its legal and factual analysis was accurate and, if not, the remedial measures they would take. If a State commits a targeted killing in the territory of another State, the second State should publicly indicate whether it gave consent, and on what basis.175

Targeted killing is controversial under general International Law and PIL. Its proper context can

only be situated in IHL.

Anderson’s position on the theory of targeted killing is in the context of US use of drone warfare

via the Central Intelligence Agency (CIA) outside the shores of the United States against non-

State armed groups. He is a strong supporter of the theory.176 Anderson’s support for the theory is

not without some concerns, especially on the legal regime that regulates such targeted killing and

as it involves the CIA instead of the armed forces.177 Anderson is of the very strong opinion that

a redefinition of the boundaries of the laws of war via changes in technology will surely affect

other legal constituents of the regulation; “and the ordinary law of everyday life, including

criminal law, constitutional protections, and more, suddenly might not apply. The laws of war

might apply instead.”178 Anderson refers to the targeted killing theory as “naked self-defence”

because the theory sits very uncomfortably between law enforcement paradigm and law of armed

conflict paradigm. He does not agree fully with the rationale for the US use of the tactics but

concludes that “nonetheless, it would be hard to overstate the importance of preserving for future

presidents, in circumstances we cannot now foresee, naked self-defense as its own paradigm for

the use of force.”179

175 Ibid, 27.

176 Kenneth Anderson, “Targeted Killing and Drone Warfare: How We Came to Debate Whether there is a ‘Legal Geography of War’,” Future Challenges in National Security and Law, (2011): 2.

177 Ibid.

178 Ibid.

179 Ibid, 8 – 9.

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Anderson’s “naked self-defence” is the type of targeted killing that is neither domiciled under

IHL nor law enforcement. Anderson posits that there is no geography of war but that hostilities

are the gravamen of war and the armed conflict follows the non-State armed actors, like al Qaeda

and its associates, wherever they go, no matter the distance.180 He insists that the consequence of

a different tone from the Obama administration situates the US targeted killing policy within the

context of counterterrorism as against Bush’s global war on terror. Anderson compares the CIA’s

targeted killing in Afghanistan and Yemen to that of NATO’s humanitarian intervention in Libya

carried out by the US Air Force; and concludes that the former is counterterrorism while the

latter is armed conflict.181 The take-off point of Anderson is legally not correct as his premise is

to the effect that there is no geography of war or armed conflict. IHL specifically states that

NIAC is an armed conflict that occurs in the territory of one of the High Contracting Parties

(HCPs).182 There is, therefore, a geography of war or armed conflict especially in NIAC.

Corn refers to the theory as “Self-defence-without-Armed–Conflict” Approach. He does not

support the theory because the theory proceeds from a very wrong angle: employment of

absolute combat power without acknowledging the existence of armed conflict or abiding by the

regulation of jus in bello. The jus ad bellum was never conceived as a legal framework to

regulate the execution of military operations.183 Jus ad bellum is a permissible authority as a right

to self-defence in inter-State relations under International Law while jus in bello is the regulation

of armed conflicts, in IAC and NIAC. According to him:

This self-defence-without-armed-conflict approach reflects a visceral discomfort with the suggestion that States may properly invoke jus in bello authority

180 Ibid, 17-18.

181 Ibid, 18-19.

182 CA 3 to the four Geneva Conventions of 1949.

183 Corn, “Self-defence Targeting,” 77.

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whenever they choose to employ combat power abroad. Transnational armed conflict opponents argue that since the inception of the ‘Global War on Terror,’ unless combat operations fit within the traditional Geneva Convention international/internal armed conflict equation, they cannot be characterized as armed conflicts. Others (including the author) have responded to this argument at length in previous articles. However, what is perplexing is that this argument loses all merit when connected with the self-defence targeting theory. That theory presupposes the use of combat power to defend the nation against an imminent and ongoing threat posed by transnational terrorist operatives.If this is the basis for refusing to acknowledge the applicability of jus in bello regulation, it is the ultimate manifestation of willful blindness.184

Corn concludes that jus ad bellum:

… authority cannot justify the wholesale abandonment of jus in bello principles. Instead, the nature of the threat and the authority invoked by the State to respond to that threat must dictate the existence of armed conflict. When States utilize armed forces and grant them the authority to engage opponents pursuant to the LOAC rule of military objective – an invocation revealed by the employment of deadly force as a measure of first resort – it indicates the existence of armed conflict. It is the jus in bello, not the jus ad bellum, that must regulate such operations.185

The legal opinion of Corn on the theory is the position of the law on the subject.

Paust classifies the US armed confrontation with al Qaeda and its associates in Pakistan as self-

defence and as an extension of the international armed conflict in Afghanistan but that the US is

not engaged in armed conflict with Pakistan.186 Paust relies on article 51 of the Charter of the

United Nations for his opinion and asserts that that provision is paradigmatically different from

mere law enforcement and armed conflict; concluding that this type of self-defence targeting sits

comfortably between law enforcement and armed conflict since al Qaeda and the Taliban do not

have belligerent nor insurgent status.187

184 Ibid, 73.

185 Ibid, 78.

186 Jordan J. Paust, “Self-defence Targetings of Non-State Actors and Permissibility of US Use of Drones in Pakistan,” Journal of Transnational Law and Policy, vol. 19, no. 2 (2010): 259.

187 Ibid, 259-261.

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The author has put himself in a very difficult corner in his argument and we disagree with his

submissions for the following reasons:

First, Paust made his submissions in 2010 long after the United States Supreme Court had settled

the issue of classification of the US armed conflict in Afghanistan as a conflict not of an

international character earlier in 2006.188 Stating that the extension of that conflict to Pakistan is

an international armed conflict, without reference to the US Supreme Court decision of 2006, is

misleading.

Secondly, armed conflict is a factual phenomenon, which is regulated by treaty and customary

law; and which regulation is not dependent on the status of the parties to the conflict. 189 Whether

al Qaeda is an insurgent group or not does not affect the regulation of the US armed conflict

under discussion.

Thirdly, it is erroneous to situate an imaginary existence of self-defence in between law

enforcement and armed conflict. The use of force can only take place either as law enforcement

or armed conflict, which are the two extremes of the spectrum, of which there is no space in

between for anything called self-defence to be erected.

Finally, the inherent right to self-defence in the Charter of the United Nations, which is generally

referred to as jus ad bellum, cannot be conflated with the regulation of armed conflict, which is

referred to as jus in bello. For a proper and clearer assessment of conducts involving the State

armed forces, the two streams of jus ad bellum and jus in bello must always be kept separate.

There are a few comments that are necessary for the proper understanding and assessment of the

veracity or otherwise of the theory under consideration. The right to self defence in terms of jus

188 Hamdan v. Rumsfeld (2006) 126 S. Ct 2749.

189 Geneva Conventions of 1949, Common article 3. It is the Geneva Conventions of 1949 and custom that bind the United States (US) in armed conflict since the US is not a party to the two Additional Protocols of 1977.

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ad bellum does not exist in non-international armed conflict. The foundation of jus ad bellum is

the inter-State relationship among States in International Law, which has its roots in sovereignty.

The jus ad bellum right of the State to self defence is captured in the Charter of the United

Nations, of which the Charter states as being “inherent,”190 which means that no one can give it

to the State and no one can take it away from the State. Therefore, jus ad bellum applies in inter-

State relationship and not in intra-State situations.

Enabulele and Bazuaye confirm that self defence within the contemplation of article 51191 does

not exist in non-international armed conflict.192 They cite the Advisory Opinion of the ICJ to

buttress their point, where the court held that “… article 51 of the Charter had no relevance to

Israel’s erection of a wall in the occupied territory because the threat against which Israel said it

erected the wall in self-defence was from within the territory over which Israel exercised

control.”193

Furthermore, the two scenarios that exist for the use of force in domestic jurisdiction are for the

enforcement of law and order undertaken by the regular police as the primary law enforcement

institution; and in situations of armed conflict undertaken by the armed forces. There is nothing

in between the peacetime law enforcement undertaken by law enforcement agents and armed

conflict undertaken by the armed forces. Therefore, in domestic affairs, the use of force can only

be exercised in peaceful operations or in situations of armed conflict in non-international armed

conflicts.

190 Charter of the United Nations, 1945, art. 51.

191 Ibid.

192 Amos Enabulele and Bright Bazuaye, Basic Topics in Public International Law (Lagos: Malthouse Press Limited, 2019), 469-470.

193 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) ICJ Report 136.

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Finally, in situations of armed conflict, there is the eternal separation of jus ad bellum from jus in

bello. In addition, the application of the law regulating a conflict not of an international character

does not affect the legal status of the parties to the conflict,194 whether the parties are labeled

terrorists, unlawful combatants or bandits. The regulation of means and methods of warfare is of

no moment to the status of the parties to the armed conflict.

This theory is very controversial especially when applied to non-international armed conflicts as

it is the case in the United States engagements in Afghanistan, Pakistan, Yemen, Somalia and

Libya. This is so because the United States proceeded from the wrong premise by stating that the

armed conflict with al Qaeda and its associates was a Global War on Terror (GWOT) instead of

armed conflict. It is the same situation in the north-east of Nigeria where the Federal

Government of Nigeria (FGN), through the Federal High Court (FHC), had declared Boko

Haram as a terrorist organization and proscribed it in accordance with the Terrorism (Prevention)

Act 2011 (as amended).195 The FGN, like her US counterpart, proceeded from the wrong premise

by failing to give a proper characterization to the armed conflict in the north-east and therefore

applied the wrong legal regulation in her bid to contain Boko Haram. Eleven years on, the armed

conflict is still raging and the protection of the victims is in jeopardy. Targeted killing is still

being carried out today, the most recent being the United States’ killing of Abu Bakr Al

Baghdadi196 in Syria on the 27 October, 2019 and the Iranian commander of the Revolutionary

Guards, Gen. Qassem Soleimani with the Iraqi militia commander, Abu Mahdi Al Muhandis in

Baghdad, Iraq on the 3 January, 2020.197

194 Geneva Conventions 1, II, III and IV of 1949, art. 3 (The last paragraph).

195 Cap. T28, Laws of the Federation of Nigeria 2004 (as Revised).

196 Baghdadi was the founder and leader of Islamic State (ISIS) in Iraq; and also the Caliph of the Islamic State Caliphate worldwide. Before now, ISIS had been declared as a foremost terrorist organization in the world by the US government.

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In conclusion, targeted killing, generally, is the operational signature of combat power within the

regulatory scrutiny of IHL. The opposite of targeted killing is carpet bombing which is akin to

quarter and indiscriminate attack. Carpet bombing, quarter and/or indiscriminate attacks, whether

in attack or defence, are prohibited methods of warfare in IHL. Targeted killing becomes a

problem when employed in time of peace and outside the theatre of hostilities in armed conflict.

Targeted killing, which is based on credible intelligence, on the target, in armed conflict can be

said to be a game changer in favour of the regulation of armed conflicts and the protection of

victims of such armed conflicts. Targeted killing is in line with the principle of distinction in IHL

and legally justified in armed conflict only against legitimate combatants, fighters and

permissible military objectives.

2.3.4 Just Torture Theory

Torture is probably as old as the history of the human race.198 The protection of victims of armed

conflict is the concern of everybody, especially parties to the conflict, and has been analyzed by

scholars in almost every discipline. The pervasive practices of torture in time of peace and

especially in armed conflict, makes it imperative to conduct an assessment on the phenomenon

of torture in all its ramifications.

Inspired by the just war framework of jus ad bellum, jus in bello and jus post bellum, and the

Memoranda that emanated from the US Department of Justice in the wake of the so-called global

197 Gen. Soleimani was actually the commander of the elite unit of the Revolutionary Guards, the Quds Force, in Iraq. This unit is responsible for covert and foreign military operations on behalf of the government of Iraq. Muhandis, on the other hand, was one of the commanders of the Popular Mobilization Forces, a militia group in Iraq, which has ties with Iran and closely supervised by Gen. Soleimani.

198 Matthew Hassan Kukah, Witness to Justice (Ibadan: Bookcraft, 2011), 317.

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war on terror,199 Majima200 offers a framework for just torture which, he says, is justified in

theory and not in practice. After the examination of his proposed just torture framework in the

context of his just torture principles, Majima concludes that:

If a certain kind of torture satisfied all of the principles listed above, then sucha kind of torture could be called ‘just torture’; however, as I have already outlined, no torture in practice could satisfy every principle at once, and this being the case, then no torture can ever be morally justified.201

Torture is not only morally unjustified, it is also legally unjustified and prohibited both in time of

peace and in armed conflict. Those who embark on it are criminally liable under municipal and

international law. It is important to emphasize that the legal protection of victims of armed

conflict has come to stay though there is cause for concern when philosophers embark on

theories that have no bearing in realities. These philosophical theories trump up a lot of

challenges when the legal provisions are sought to be enforced in practice in favour of victims

and in the defence of perpetrators. Philosophers are not the only ones to be blamed for the

anomaly. Lawyers, legal advisers and legal practitioners, especially those in government employ,

share equally in the blame. They are those that Ohlin refers to as “The Torture Lawyers.”202

199 Jay S. Bybee, Re-Application of Treaties and Laws to Al Qaeda and Taliban Detainees of 22 January 2002. (Memorandum to Alberto R. Gonzales, General Counsel to the President, and William J. Haynes II, General Counsel to the Department of Defence). Available at http://www.justice.gov/sites/default/olc/.../memo-laws-taliban-detainees.pdf. Accessed on 5 December 2018.

200 Shunzo Majima, “Ethics of Civilian Protection” (Doctor of Philosophy Thesis, Centre for the Study of Global Ethics, School of Philosophy, Theology and Religion, the University of Birmingham, 2010): 365-366.

201 Ibid, 378.

202 Jens David Ohlin, “The Torture Lawyers,” Harvard International Law Journal, vol. 51, no. 1 (2010): 199-205.

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Torture itself is a crime in war and as well as in peace, both in international and domestic laws.203

Major international and regional human rights instruments that prohibit torture and related

abuses include: the Universal Declaration on Human Rights (UDHR) 1948,204 International

Covenant on Civil and Political Rights (ICCPR) 1966,205 European Convention on Human Rights

(ECHR) 1950,206 American Convention on Human Rights (ACHR) 1969,207 and the African

Charter on Human and Peoples’ Rights (AFCHPR) 1981.208 Torture is universally abhorred and

its theoretical justness should not even be included in an effort to protect victims of armed

conflict as well as in peace. Therefore, torture carried out by the US military personnel and their

contractors at Guantanamo Bay detention facility in Cuba and the Abu Ghraib prisons in Iraq

should be condemned.209 There should be no rational for the justification of torture, whether in

theory or practice.

Rehman offers explanation on torture and concludes that forms of torture during international

armed conflicts or internal conflicts constitute crimes against humanity.210 Therefore, even if the

203 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 1465 U.N.T.S. 85, art. 1; Constitution of the Federal Republic of Nigeria 1999 (as amended), s. 34 (1); and the Nigerian Anti-Torture Act 2017, s. 3 (1) and (2). The Anti-Torture Act 2017 was assented to by President Buhari on the 20 November, 2017 and it entered into force same day.

204 Universal Declaration on Human Rights (UDHR) 1948, UNGA Res. 217A (111); U.N. Doc.A/810 at 71 (1948), art. 5.

205 International Covenant on Civil and Political Rights (ICCPR) 1966, 999 U.N.T.S. 171, art. 7.

206 European Convention for the Protection o Human Rights and Fundamental Freedoms (ECHR) 1950, 213 U.N.T.S. 221, art. 3.

207 American Convention on Human Rights (ACHR) 1969, 1144 U.N.T.S. 123, art. 5.

208 African Charter on Human and Peoples’ Rights (AFCHPR) 1981, 2 I.L.M. 58, art. 5.

209 Human Rights Watch, “The Road to Abu Ghraib,” (2004): 3. Available at http://www.hrw.org/reports/2004/usa0604/usa0604.pdf.

210 Javaid Rehman, International Human Rights Law 2nd ed. (England: Pearson Education Limited, 2010), 808-809.

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principles of the just torture framework were satisfied, torture would still be a crime and

prohibited. Shaw states very clearly, that:

The prohibition of torture is contained in a wide variety of human rights and humanitarian law treaties, and has become part of customary international law. Indeed, it is now established as a norm of jus cogens. Issues concerning torture have come before a number of human rights organs, such as the Human Rights Committee, the European Court of Human Rights and the International Tribunal on the Former Yugoslavia.211

Geneva Convention IV prohibits torture of civilians, and the High Contracting Parties

specifically agree to that prohibition.212 Torture is also prohibited in non-international armed

conflicts.213 The prohibition thus means that the practice of torture in non-international armed

conflict is not allowed under any circumstance. Torture as a means of obtaining information

from prisoners of war is also prohibited.214 Therefore, employing torture as an “enhanced

interrogation technique”215 is reprehensible, criminal and unacceptable. Information obtained

from torture is inadmissible in judicial proceedings and State Parties are under obligation to

exclude evidence obtained through torture.216 Torture has no probative value in the current

international legal system especially in International Humanitarian Law, and should not be

tolerated, no matter the circumstances.

211 Shaw, 326.

212 Geneva Convention IV of 1949.

213 Common article 3 to the four Geneva Conventions of 1949 and Additional Protocol II of 1977, art. 4 (2) (a).

214 Geneva Convention III of 1949, art. 17.

215 George R. Mastroianni, “Looking Back: Understanding Abu Ghraib,” Parameters, vol. 43, no. 2 (2013): 56-57.

216 Convention Against Torture, art. 15.

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The Additional Protocols of 1977 also prohibit torture at any time and in any place

whatsoever.217 Finally, the Statute of the International Criminal Court has made torture a war

crime if committed in war or armed conflict.218 It defines torture to mean:

… the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.219

Torture is a crime in time of peace and war, no matter the gravity of the offence and/or the

notoriety of the offender being proceeded against. There is no “absence of law zone”220 even in

the war against terrorism. The pressing question that demands a monosyllabic answer is, is

torture ever justified? The answer is no! Even in Nigeria, the Anti-Torture Act 2017 confirms

that there is no justification for torture, stating that:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.Secret detention places, solitary confinement, incommunicado or other similar forms of detention, where torture may be carried on are prohibited.221

The above Act extends liability as principal offenders for torture to persons who actually carry

out the torture and any person present during the commission of the act of torture; and a superior

military, police or law enforcement officer or senior government official who issues an order to a

lower ranking personnel to torture a victim for whatever purpose.222 Torture is, therefore,

absolutely prohibited in Nigeria as in every other part of the world.

217 AP I , art. 75 (2) (a) and AP II, art. 4 (2) (a).

218 Rome Statute of the International Criminal Court 1998, 2187 U.N.T.S. 90, art. 7 (1) (f).

219 Ibid, art. 7 (2) (e).

220 Diane Marie Amann, “Abu Ghraib,” University of Pennsylvania Law Review, vol. 153 (2005): 2087-2088.

221 Anti-Torture Act 2017, s. 3 (1) and (2).

222 Ibid, s. 7 (1) and (2).

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Defining a thing in law is usually problematic especially as language is indeterminate.223 Many

words in English are borrowed from other languages and by the process of trans-literation, those

borrowed words lose their originality in meaning. One such example is the word “torture.” The

full import and ramification of torture can be distilled from its Latin equivalent, which is

“tortura” and it literally means “to be broken.” The victim of torture is a human being broken

either to elicit confession or information that the perpetrator of the brokenness wants; whether

the confession or information is true or not is of no moment. Here, the victim is broken

physically, spiritually and emotionally. Can there be any justification for such brokenness? The

answer is no!224 No human being should, or ought to, be broken for any reason. That is why the

prohibition of torture, in whatever form, both internationally and municipally, is absolute.

Torture is prohibited both in times of peace and in armed conflict. Those who violate the law

against torture in armed conflict commit a grave breach of IHL Conventions and the Protocols;

and there is individual criminal responsibility for such conducts225 even under the Rome Statute

of the ICC.226

This theory offers us an opportunity to examine the appropriateness or otherwise of the theory

and practice of torture in armed conflict. As stated in the previous pages, torture is prohibited

both in time of peace and in armed conflict; and the prohibition is absolute. As the adoption of

torture in armed conflict is prohibited under IHL, acts or omission involving torture is a war

crime under the Rome Statute of the ICC. The prohibition of torture in armed conflict applies to

government forces of every sovereign State involved in armed conflict, fighters and NSAGs. In

223 M. D. A. Freeman, Lloyd’s Introduction to Jurisprudence 7th ed. (London: Sweet and Maxwell, 2001), 39-46 and 1390.

224 Kukah, Witness to Justice, 317-340.

225 Rome Statute of the ICC 1998, art. 27.

226 Ibid, arts. 7 (1) (f) and 8 (2) (c).

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the armed conflict in the north-east, government forces and the insurgents adopt torture as their

operational dogma. Many instances of torture by all the parties to the armed conflict in the north-

east have been documented and condemned by Okorie as violations of the extant laws on armed

conflict.227 In the US GWOT, Ohlin condemns the practice of torture as a violation of IHL and

also condemns the actions of the lawyers who gave a favourable opinion for the practice of

torture by the US military.228 Our conclusion is that the theory is outdated and the practice of

torture is prohibited. The assessment of the theory offers us an opportunity to condemn, punish

and work towards eliminating torture especially in armed conflict so as to enhance the regulation

of armed conflict and the protection of the victims especially victims of non-international armed

conflict in the north-east Nigeria.

2.3.5 Theory of Exclusivism

This theory, which is akin to the philosophical theory of solipsism and to the effect that “I alone

exist,” encourages a religious system whereby a particular religion or a sect within a religion

demands that it be the only entity that exists in that society not minding the existence of other

religions or the multi-cultural society within which it exists. In its denotative meaning, solipsism

is “a theory holding that only the self can be shown to exist and that the external world is merely

an idea or construction devised by the self.”229 Its extensive meaning is domiciled in the theory of

philosophical solipsism which avers that “I alone exist.” Thurston explains the theory in the

context of the prelude to the insurgency in the north-east part of Nigeria thus:

227 Haggler Okorie, “Violation of International Humanitarian Law by Parties to the Armed Conflict in the Northeast Nigeria,” International Journal of Business and Law Research, vol. 6, no. 1 (2018): 58-66.

228 Ohlin, “The Torture Lawyers,” 199-205.

229 Longman Dictionary of the English Language, ed. Heather Gay et al (England: Longman Group Limited, 1984), s.v. “solipsism.”

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Boko Haram’s members consider themselves arbiters of who is a true Muslim. Like other Salafis, Boko Haram rejects other approaches to Islam. Muhammad Yusuf regarded his mission as one of purification …Yusuf’s Islamic education seems to have been informal, but he displayed familiarity with mainstream Salafi thought and its jihadi offshoots. Yusuf revered the Damascene theologian Ahmad Ibn Taymiyya (1263–1328), a central figure in Salafi thought today. Yusuf drew on contemporary Salafi-jihadi theorists such as the Palestinian-Jordanian Abu Muhammad al-Maqdisi (b. 1959). From al-Maqdisi, Yusuf borrowed a hardline conception of the doctrine of al-wala’ wa-l-bara’. For Salafi-jihadis, al-wala’ wa-l-bara’ means exclusive loyalty (al-wala’) to those whom they consider true Muslims, and complete disavowal (al-bara’) of all others. For Yusuf, loyalty to Islam meant rejecting democracy and Western-style education.230

Boko Haram embarked on the implementation of its exclusivism through violence and brutality

on “unbelievers” and the “establishment” of a salafi State in the north-east as adumbrated by

Thurston as follows:

Boko Haram’s combination of an exclusivist Muslim identity and a politics of victimhood has [sic] fueled its brutality against civilians in the Lake Chad region, particularly since 2013 …Shekau claimed to be imitating the Prophet by massacring ‘unbelievers’ in Northeastern communities …Boko Haram began incorporating towns into a would-be state, starting with Damboa, Borno. The sect may have exercised de facto sway over parts of Borno prior to 2014, but its actions that year reflected a more systematic bid for territorial control. In August, Shekau announced the establishment of a ‘state among the states of Islam’ in Gwoza, Borno.231

Exclusivism is a theory that erects the foundation for home-grown violent extremism (HVE)

which, if it remains unchecked at the very early stage, has the capacity to destabilize a hitherto

peaceful community or country as it is the situation today in the three States most affected by

insurgency in the north-east. The present Borno State was part of the former Kanem-Borno

Empire and is the cradle of Islam in Africa. It has been one of the most peaceful States in

northern Nigeria with Muslims and Christians co-existing in harmony until Mohammed Yusuf

230 Alex Thurston, “The Disease is Unbelief”: Boko Haram’s Religious and Political Worldview (Analysis Paper of the Brookings Project on U.S. Relations with the Islamic World, No. 22, January 2016), 12.

231 Ibid, 20.

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introduced religious exclusivism there in the year 2002.232 The federal Government of Nigeria

was well aware but decided to turn a blind eye even when government knew the security

implications of allowing such ideas to flourish.233

The insurgents in the north-east have killed many civilians, committed rape, taken school girls

hostages,234 burnt down places of worship, executed religious leaders, burnt down health

facilities, etc. in the north-east.235 Boko Haram’s exclusivism is not even in tune with the original

salafist doctrine. According to Higazi:

The Boko Haram ideology, condemning secular education and any government or civil service work, deviates from Salafi doctrine. But Boko Haram do use technology, including the internet and mobile phones, and members of the group have acquired technical expertise to make explosives, including car bombs. It seems that as long as the knowledge helps their religious/political struggle they are willing to utilize it.236

The theory of exclusivism is not even in the interest of Muslims as Muslim intellectuals have

drawn attention to this fact and have called on fellow Muslims to put down their weapons as

enunciated by Essien thus:

Some Muslim intellectuals have repeatedly spoken out, calling for this, particularly in recent times. They are making efforts to persuade their fellow believers that unless the ability is developed to live together peacefully even when religious difference is deeply rooted, human life in the world as we have come to know it will be altogether impossible in the long run. For them, it is clear that it is no longer in Muslims’ own interests simply to exclude themselves, in the name of the absolute claim of their creed, from a growing community of peoples who are

232 Ibid, 11.

233 Adam Higazi, “Insurgency and Counter-Insurgency in North-East Nigeria,” SciencesPo 2013, 2. Available at www.sciencspo.fr/ceri. Accessed on 20 November 2019.

234 In 2014, the insurgents abducted two hundred and seventy-six (276) school girls from a secondary school in Chibok town in Borno State [Saskia Brechenmacher, Stabilizing Northeast Nigeria after Boko Haram, (Washington, DC.: Carnegie Endowment for International Peace, 2019), 4]. The insurgents also abducted a hundred and ten (110) school girls from a secondary school in Dapchi community in Yobe State in 2018. Hostage taking and attack on schools are prohibited methods of armed conflict. Women and girls are protected persons in armed conflict.

235 Thurston, 20-21.

236 Higazi, 2.

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making efforts towards cooperation beyond the boundaries of culture and religion, and the limitation or prevention of military conflicts.237

A caveat to the above statement is that the exclusivism of Boko Haram in north-east Nigeria is

not acceptable to all Muslims in the country. Boko Haram is, rather, a sect within Islam and does

not claim to represent all Muslims neither do all Muslims accede to the exclusivism of Boko

Haram. It is very correct that exclusivism is not even in the interest of Boko Haram or any other

group in the north-east in particular and Nigeria in general. It has been stated that:

We should, as a people, beware of any policy founded upon exclusion – exclusion of persons, groups, religion, sect and the exclusion of an area. Policies founded on exclusion look very much like AIDS. They invariably begin with self-indulgent sweetness and inevitably end in pain, distortion and self-destruction. Once the disease has set in, there is no cure. In our social contacts, Nigeria should always remember that ladders are not made of animate objects, but rather, of wood, iron, aluminium and sometimes of plastic – all inanimate objects. Ladders are never made of human beings.Nigeria cannot afford a policy of exclusion; it is most counter-productive.238

The theory is a useful signpost in the assessment of the insurgency in the north-east. The theory

cannot have any place in any civilized society. This theory cannot hold in Nigeria because

Nigeria is a multi-cultural, multi-ethnic and multi-religious society with freedom of association,

conscience and religion expressly guaranteed by the constitution with so much diversity. It is

imperative, therefore, for every group, including religious groups, to emphasize and cultivate

those values that unite, instead of the absurdities that divide, Nigerians. This will prevent armed

conflict. If it did not, at least, victims of non-international armed conflict would enjoy the

protection guaranteed by IHL especially in the north-east part of Nigeria.

2.3.6 Theory of Grievance

237 Francis Essien, “Some Challenges in Christian-Muslem Dialogues,” Koinonia, vol. 4, no. 4 (2014): 162.

238 Emeka Odumegwu-Ojukwu, Because I Am Involved (Ibadan: Spectrum Books Limited, 1989), 24-25 and 38.

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Collier and Hoeffler discuss the theory in terms of greed and grievance in civil war. For them, a

crucial starting point is a clear definition of the phenomenon, in this case, civil war. According to

them:

The first step in an empirical investigation of conflict is a clear and workable definition of the phenomenon. We define civil war as an internal conflict with at least 1,000 combat-related deaths per year. In order to distinguish wars from massacres, both government forces and an identifiable rebel organization must suffer at least 5% of these fatalities.239

The above empirical assessment by definition is encouraging but it is not without faults. The

determination of armed conflict is not dependent on the number of deaths. Non-international

armed conflict, which is also referred to as civil war, exists whenever the treaty thresholds are

met.240 On the other hand, the definition is in line with the Additional Protocol (AP) II thresholds

of distinguishing internal disturbances and tensions from armed conflict.241

Collier and Hoeffler explain further the substance of the theory of grievance in civil war as

follows:

We consider four objective measures of grievance: ethnic or religious hatred, political repression, political exclusion, and economic inequality.Ethnic and religious hatreds are widely perceived as a cause of civil conflict. Although such hatreds cannot be quantified, they can evidently only occur in societies that are multi-ethnic or multi-religious and so our proxies measure various dimensions of diversity. Our previously discussed measures of fractionalization are pertinent: inter-group hatreds must be greater in societies that are fractionalized than in those which are homogenous. However, arguably the source of inter-group tension is not diversity but polarization. Fortunately, the allowable class of measures of polarization is quite limited.242

The four objective measures of grievance are fully in place in the situation in the north-east.

Ethnic and religious hatred are the major causes of the insurgency in the north-east but our multi-

239 Paul Collier and Anke Hoeffler, “Greed and Grievance in Civil War,” Oxford Economic Papers, vol. 56 (2004): 565.

240 AP II, art. 1 (1).

241 AP II, art. 1 (2).

242 Collier and Hoeffler, 570-571.

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diversity, if well managed, should have provided the needed bulwark against the insurgency in

the north-east. The political repression of the poor by the rich politicians is evident in the total

neglect of the border communities like Damasak and Baga in Borno State. Yet those border

communities have councilors in the local government legislatures; State representatives in the

House of Assembly; members representing them at the House of Representatives; and senators

representing them at the Senate. It is even on record that the current speaker of the Borno State

House of Assembly has not visited his community in the last four years.243 The above scenario

engenders political exclusion and economic inequality in the north-east in particular and Nigeria

in general. Even the Sambisa Forest that has now become the haven for insurgents is a Forest

Reserve which should have been a tourist resort but government abandoned it thereby making

that reserve an ungoverned space for insurgents.244 Putting the Sambisa Forest Reserve to optimal

use can generate employment and business opportunities; and also engender political inclusion

and economic equality especially in the north-east.

Addressing the issue of grievance in the north-east in relation to the insurgency, Thurston states

as follows:

Boko Haram presents itself as the victim of state aggression and the voice for a larger, and aggrieved, Muslim constituency. In his June 2009 ‘Open Letter to the Federal Government of Nigeria,’ a lecture delivered shortly before Boko Haram’s uprising, Yusuf linked his complaints against the Borno State government to what he saw as a pattern of anti-Muslim violence in Nigeria. He mentioned famous Muslim-Christian clashes: the 1987 riots in Kafanchan, Kaduna State; the 1992 killings in Zangon-Kataf, Kaduna; and cyclical violence in Plateau State, dating to 1994. Yusuf concluded: ‘The government of Nigeria has not been built to do justice ... It has been built to attack Islam and kill Muslims.’

243 Abdulkareem Haruna, “Special Report on Boko Haram: Remembering Nigeria’s Fallen Heroes,” Premium Times of 8 July 2018. Available at https://www.premiumtimesng.com/news/headlines/275393-special-... Accessed on 20 January 2020.

244 Ifreke Inyang, “Sambisa Forest is 18 Times the Size of Lagos State – BBOG Convener, Oby Ezekwesili,” Daily Post of 17 January 2017. Available at https://dailypost.ng/2017/01/17/Sambisa-forest-18-times-size-lagos. Accessed on 20 December 2019. The Sambisa Forest Reserve is said to be 6.5% of the total land area of Nigeria.

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…Yusuf sought to activate Muslims’ feelings that different groups — Christians, the state, the West — had humiliated Muslims inside Nigeria and around the world. Yusuf warned his followers that the sect’s enemies would not rest until they had crushed the group and stolen its women.245

As the above accusations against perceived enemies were being peddled, Yusuf was arrested by

the military, handed over to the police and detained by the police during a major armed uprising

between the group and the police in Borno State in 2009. Later in July 2009, Yusuf’s body was

found riddled with bullet wounds. The death of Yusuf intensified his successors’ sense that the

State systematically victimized Muslims and Shekau fit the 2009 crackdown into a larger

narrative: “everyone knows the way in which our leader was killed.”246

Shekau declared that Boko Haram’s state was no longer part of Nigeria. Creating a Salafi-jihadi enclave meant expunging Christianity. Boko Haram sought to kill or forcibly convert Christians, and the sect destroyed churches and seminaries. Boko Haram made rudimentary attempts to teach its ideology. One young Christian woman captured by Boko Haram in Adamawa was forcibly converted to Islam, and then made to spend her days praying and learning Quranic verses. In one video, an unseen interviewer queried Muslim civilians about their ‘enjoyment’ in the new state, especially due to the absence of ‘infidels.’ Yet Boko Haram preyed on conquered populations. When Nigerian soldiers recaptured towns before the 2015 elections, they found them devastated.247

The theory of grievance is a very useful device in assessing the insurgency in the north-east for

the purpose of sourcing for solutions especially for the protection of the victims. First, the theory

is complicated by the fact that a hitherto peaceful society has been set on fire for religious

reasons by a sect that does not represent all Muslims within that society. Boko Haram is a salafi

sub-sect within the larger Sunni Islamic Sect which emphasizes the “restoration of Islamic

245 Thurston, 17.

246 Ibid.

247 Ibid, 21.

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doctrine to its pure form.”248 It does not even represent or claim to represent the larger Sunni

Islamic Sect not to talk of the Shiites, which form the other major Islamic Sect in Nigeria.

Secondly, the police mismanaged the security crisis by the extra-judicial killing of Yusuf, the

leader of the Boko Haram sect in July 2009. Thirdly, it must be understood that nobody has the

power to subjugate another person or group through the compulsory imposition of religion.

Fourthly, Nigeria is a democratic society that is ruled by a Constitution which has supremacy

over every other law or authority. Finally, bad governance, corruption and criminality should not

be tolerated in any society because they can trigger deep seated grievance that can lead to

avoidable armed conflict. According to Felbab-Brown, Yusuf:

… professed that an Islamic governance and administrative state, rooted in ‘back to the source’ Salafi doctrine, as practiced by Prophet Mohammed, would provide justice and equality for all and eliminate corruption. Given miserable socio-economic conditions in the north-east, and a lack of government presence beyond Borno’s capital, Maiduguri, Yusuf’s teachings resonated widely. Although Nigeria’s gross domestic product is among Africa’s largest, income distribution is highly skewed, with the vast majority living in poverty. Decades of systematic usurpation of public resources for personal gain, and clientelistic distribution within the bounds of ethnic or patronage cliques, have left institutions weak, hollowed out, and often unable to implement policies and deliver services. The north-east, long ignored by the central government in Abuja, often performs significantly worse on socio-economic, human development, and governance capacity indices as compared to other regions, except at times the north-west.249

The above conditions provided the fertile ground for grievance and the insurgency to thrive in

the north-east Nigeria which has resulted in full-blown NIAC since 2009.

Bensted has critiqued Collier’s theory of grievance by applauding his ingenuity but has found

fault with the theory thus:

248 Adam Higazi, “Insurgency and Counter-Insurgency in North-East Nigeria,” SciencesPo. Available at www.sciencespo.fr/ceri. Accessed on 20 January 2018; Aron Lund, “Syria’s Salafi Insurgents: The Rise of the Syrian Islamist Front,” UI Occasional Papers No. 17 of the Swedish Institute of International Affairs, March 2013, 5-6.

249 Vanda Felbab-Brown, The Limits of Punishment: Transitional Justice and Violent Extremism, Nigeria’s Case Study (Shibuya-Ku, Tokyo: United Nations University, 2018), 75-76.

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… Collier has based these findings upon narrowly defined quantitative measures–three defined indices of greed and four indices of grievance. Collier consciously omitted indices which he found difficult to measure, such as suppliers of armaments and opportunities for bureaucratic corruption. However, he appears to have unwittingly omitted some further factors, including governance, management mechanisms for natural resources and the influence that charismatic leadership can have on rebel groups. These omissions can be viewed as a major flaw in Collier's work.250

The theory of grievance is a work in progress which should be objectively assessed and further

inputs made for the prevention of avoidable armed conflict and the protection of the victims of

armed conflict whenever these armed conflicts break out.

It has to be emphasized that the grievance of Boko Haram over the extra-judicial killing of its

leader, Mohammed Yusuf,251 is well founded and must be condemned; but the attack on innocent

Nigerians by Boko Haram and other insurgents is misplaced and should be condemned as well.

There are many other ways of resolving grievances. According to Odumegwu-Ojukwu, “I have

been to the battlefield. I have seen the carnage. I have reflected on all this and I have come to the

conclusion that all is vain – that warfare solves nothing. We cannot dominate; all we can do is to

accommodate.”252 Resort to armed conflict is, therefore, counter-productive to the resolution of

grievances as it is not one of the ways of resolving grievances.

There are many other theories of IHL and they include: Customary International Humanitarian

(CIHL) Theory, Just War Theory, Cosmopolitan Just War Theory, Sovereign Agency Theory,

Theory of Sovereignty, Theory of Non-separation, Theory of Convergence, Theory of

Conspiracy, Theory of Detention, Commander-Above-the-Law Theory and the Gap Theory of

armed conflict.

250 Roland Bensted, “A Critique of Paul Collier's ‘Greed and Grievance’ Thesis of Civil War,” African Security Review, vol. 20, iss. 3 (2011): 84-90.

251 Okorie, “Violation of International Humanitarian Law by Parties,” 58.

252 Odumegwu-Ojukwu, Because I Am Involved, 17.

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Unfortunately, none of the theories discussed above offers an all-encompassing regulation of

armed conflict for the effective protection of the victims. We, therefore, develop a theory that is

objective based on the concept of the veil of ignorance.

2.3.7 Theory of Humanitarianism in Armed Conflict (THAC)

The theory is based on the researcher’s theoretical and field experiences of the NIAC in the

north-east part of Nigeria. The Theory of Humanitarianism in Armed Conflict THAC is

developed within the context of IHL of Armed Conflict. The crux of the matter in THAC, which

we are developing, is the proper regulation of the means and methods of warfare for the effective

protection of the victims in both International Armed Conflicts (IACs) and Non-International

Armed Conflicts (NIACs) beyond treaty and custom. It is a theory that is domiciled and operated

in between the two extremes of military necessity and humanitarian considerations. It does not

take away sovereignty but enhances it. By this way, Kalshoven and Zegveld’s253 two evil spirits

of military necessity and sovereignty are effectively exorcised from armed conflict. THAC

frowns at the generalization of the principle of military necessity in the regulation of armed

conflict thereby aiming “… to accentuate that military necessity has to be mulled over attentively

and not acted upon flippantly as this is true of all LOIAC strictures.”254 By virtue of THAC,

sovereignty, on the other hand, is now the responsibility to protect255 and to ensure protection for

all protected person in all circumstances.

253 Kalshoven and Zegveld, Constraints on the Waging of War, 203.

254 Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 12.

255 International Commission on Intervention and State Sovereignty, Responsibility to Protect (Ottawa: International Development Centre, 2001) Available at www.idrc.ca

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THAC is developed out of the necessity to contribute to the existing body of theories of armed

conflict by offering a theory that is all-encompassing and which applies in both IACs and NIACs

based on IHL and all its core relevant subject areas. The theory sits comfortably beyond

humanity and human rights theories but encompasses the tenets of both.

The theory applies in situations of armed conflict to all the parties and non-parties to relevant

treaties and to all parties to the armed conflict. The theory also takes care of armed conflict

situations where there are no provisions in IHL treaties and Protocols (the Martens Clause).

The theory takes into consideration the duties and obligations of the ICRC, the National Red

Cross and Red Crescent Societies and humanitarian NGOs in their impartial humanitarian

activities which are categorized into clusters/themes/sectors for effectiveness.

The theory equally considers the primary function of the military in attacks by imbibing the

ground rules in every attack and in its planning and the eternal principle of distinction.

2.3 Conclusion

In this part of the research, we set out to clarify some of the concepts associated with non-

international armed conflict in order to place them in their proper perspectives for a better

understanding of their relevance to the subject of the regulation of armed conflict and the

protection of the victims. It is a fact that some of the concepts in IHL have a lot in common with

Public International Law. For example, armed conflict is sometimes confused with the use of

force and, by extension, jus ad bellum with jus in bello. The issues in insurgency and terrorism

have also contributed their complexities to the determination of non-international armed conflict

and the applicable law. The concepts dealing with the aspects of identification of victims in non-

international armed conflicts and their entitlements in situations of armed conflicts are very

relevant in charting the course of protection for victims of non-international armed conflict and

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also serve as stepping stones in dealing with the subject of protection in subsequent sections of

the research.

Theories are the different approaches of assessment of phenomena under consideration. Theorists

adopt their theories, in their assessment, based on their convictions and inclinations. Theories

explain and illuminate the law and provide insights that are useful in solving legal problems.

Legal problems are practical problems, however, and theory alone cannot solve legal

problems.256 Dias describes theory in the following manner:

A guarantee of independence and originality in thought is breathe of view, a sense of perspective and appreciation of what people have said and are saying. No one theory provides the best or exclusive avenue to the ‘truth,’ and those who choose to thread one path rather than another are not for that reason misguided.257

Theories are aids to understanding chosen phenomena. Most of the time, there are no generalities

in theory. The temptation to generalize theories should be avoided because it has the capacity to

distort the whole phenomena. Generalization of theories can lead to the legend of the ancient

Greek Procrustean Bed, into which everybody fitted, though not without harm.258 The

admonition of McLeod, though specifically in the area of legal theory, is relevant to our

discourse, where he warns against the danger of generalization.

The theories discussed in this research have aided us in the assessment of the different, but

sometimes divergent, views of the protection afforded victims of armed conflicts, especially

victims of non-international armed conflicts. The theories do not, however, provide adequate and

final answers to the rationale behind attacks on victims of armed conflicts and the widespread

violations of International Humanitarian Law, especially in non-international armed conflicts. It

256 Paula J. Dalley, “A Theory of Agency Law,” University of Pittsburgh Law Review, vol. 72 (2011): 546.

257 Dias, Preface to the Book.

258 Ian McLeod, Legal Theory (London: Macmillan Press Limited, 1999), 9.

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is better to understand and appreciate the reality that law is practical and that legal reasoning is

practical reasoning.259

Adopting the US response to al Qaeda’s attack by the government of Nigeria in the north-east is

detrimental to the victims of the armed conflict.

259 Emeka Chianu, Company Law (Abuja: LawLords Publications, 2012), vii.

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Section Three: Literature Review

3.1 Introduction

The literature review is based on the findings of the research which is in conjunction with the

objectives of the research. There is also a review of the title of the work so as to place the whole

work in its proper context based on the necessity for the effective regulation of NIAC for the

protection of the victims with focus on the NIAC in the north-east part of Nigeria. This style of

literature review is adopted so as to maintain consistency, stay focused and remain within the

context of the research.

3.2 Adequacy or otherwise of the Legal Framework:

As stated earlier in this work, non-international armed conflict is a domestic activity that is

regulated by International Law via IHL though it does not necessarily displace municipal

criminal law as a result of State sovereignty0 under International Law. The core regulatory

framework of IHL consists of the four Geneva Conventions (GCs) of 1949, the two Additional

Protocols (APs) of 1977, the third Additional Protocol of 2005, custom and principles, and other

relevant human rights treaties. Out of a total of four hundred and twenty-nine (429) articles of

the GCs of 1949, only one article regulates non-international armed conflict.0 In 1977, AP I and

AP II were added to the four GCs of 1949. Here again, AP I which supplements the four GCs of

1949, has a total of one hundred and two (102) articles for the regulation of international armed

conflicts. AP II, which supplements CA 3 for the regulation of non-international armed conflicts,

has just twenty-eight articles. The regulation of non-international armed conflict, which is the 0 AP II, art. 3 (1).

0 Geneva Conventions of 1949, art. 3, which is generally referred to s Common Article 3, because it is the same in each of the four Geneva Conventions of 1949.

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focus of our work, is grossly inadequate with just twenty-nine articles compared to its

international armed conflict counter-part with five hundred and thirty-one (531) articles.

Our discourse on the inadequacy of the law regulating non-international armed conflict is that

apart from the paucity of the articles, the contents of CA 3 and AP II are couched in too general a

language for certainty. For example, CA 3 does not explain what is meant by “humane

treatment.” There is no status protection provision for the NSAGs when they are captured for the

purpose of protection like the status of Prisoner-of-War for captured combatants in international

armed conflicts.

The threshold of AP II is also a major challenge.0 The weapons employed and the effects of

“internal disturbances and tensions as not being armed conflict” are the same in full-fletched

non-international armed conflict. Even at that, there is no definition of what the Protocol refers to

as “internal disturbances and tensions.”

The traditional geographic scope of non-international armed conflict0 is no longer feasible today

especially with the capacity of NSAGs to cross international borders and carry out their armed

activities as shown by al Qaeda and the insurgents in north-east Nigeria in their armed activities.

On the literature on the inadequacy of the law, more than ninety per cent of the literature comes

from authors in the US; and those authors proceed from the US GWOT by making their

assertions from that perspective, which was not envisaged by CA 3 and AP II. These authors

include Corn;0 Corn and Jensen;0 Watkin;0 and Murphy.0 The US GWOT has distorted the law

0 AP II, art. 1 (2).

0 CA 3 and AP II, art. 1 (1).

0 Corn, “Hamdan, Lebanon, and the Regulation of Hostilities,” 295-355.

0 Corn and Jensen, “Untying the Gordian Knot,” 787-830.

0 Watkin, “Small Wars: The Legal Challenges,” 3-14.

0 Murphy, “Will-o’-the Wisp?: The Search for Law,” 15-42.

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regulating NIACs to the extent that even experts on the field offer expert opinions that are in

contradiction with the law itself. For example, Green states that:

While the rules of armed conflict law do not apply in a non-international armed conflict, the state in whose territory such a conflict is taking place may declare its intention to apply to the forces confronting it the principles of that law. This normally occurs when the conflict has reached the stage of major hostilities, transcending a mere rebellion or revolution. When such a statement has been made, the forces confronting the government frequently make a similar statement.0

The above statement can only be attributed to the difficulties experienced by experts analyzing

the law due to the inadequacy of the law regulating NIACs as compared to its international

armed conflict counterpart. It is legally not correct to state above, as claimed by Green, that the

rules of armed conflict do not apply in non-international armed conflict. Authors on the subject,

especially from the United States, have tried to draw a distinction among the different names of

the subject area like Law of Armed Conflict (LOAC), Laws of Warfare (LOW) and International

Humanitarian Law (IHL). It should be emphasized that LOAC and IHL are synonymous while

LOW is a direct translation of the Latin term “jus in bello.”0 The use of the term LOAC or IHL is

a matter of semantics0 and nothing more. It is therefore semantically misleading and legally

unsupportable for Benvenisti0 and Luban0 to erect the LOAC camp versus the IHL camp as being

different and separate in the regulation of armed conflicts especially as the appellation “IHL” has

been endorsed by the ICJ since 1996.0

0 Green, The Contemporary Law of Armed Conflict, 72.

0 Dinstein, The Conduct of Hostilities, 20.

0 Ibid.

0 Eyal Benvenisti, “The Legal Battle to Define the Law on Transnational Asymmetric Warfare,” Duke Journal of Comparative and International Law, vol. 20 (2010): 348.

0 David Luban, “Military Necessity and the Cultures of Military Law,” Leiden Journal of International Law, vol. 26 (2013): 315-349.

0 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Reports 236 at 257.

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Other authors who have dealt with the issue of inadequacy of the law that regulates NIACs

include Hans-Joachim;0 Stein;0 Yoo and Ho;0 Paust;0 and Benvenisti.0 The confusion generated

by the inadequacy of the law has prompted Benvenisti to assess the law and state as follows:

The persistence and prevalence of asymmetric transnational armed conflicts have given rise to two rival claims. Governments involved in such conflicts emphasize their added risks in fighting irregular combatants who abuse legal protections. These governments seek to interpret the law in ways that dilute their responsibilities. At the same time, however, various third parties, including national and international courts, commissions of inquiry, and global civil society, converge in an entirely different approach. Informed by the expectation that with more power comes more responsibility, these third parties expect the more powerful side to gradually ensure enemy civilians’ lives (not only to respect their lives). This expectation leads to demands for modification of the traditional law in the context of transnational asymmetric warfare in at least three areas: first, the recognition of an obligation to consider alternatives to military action (asking not only whether targets were legitimate military targets, but also whether the decision to use force against them rather than explore the non-forcible, or less-forcible alternatives, was justified under the circumstances); second, if there were no available alternatives, the army would be expected to invest significant resources to minimize harm to civilians; and finally, following an attack, the army would be obliged to conduct a transparent and accountable investigation to reexamine its own actions. Third parties may also insist on limiting the discretion of the ‘reasonable military commander.’0

It is important to emphasize that IHL is not a fetter on military necessity but a deliberate effort to

strike a balance between the two extremes of military necessity and humanitarian considerations

0 Hans-Joachim, “On the Relationship between Human Rights,” 789-814.

0 Torsten Stein, “Coalition Warfare and Differing Legal Obligation of Coalition Members Under International Humanitarian Law,” in US Naval War College International Legal Studies, vol. 86 (2010): 315-336.

0 Yoo and Ho, “International Law and the War on Terrorism,” 1-20.

0 Jordan J. Paust, “Self-defence Targetings of Non-State Actors and Permissibility of US Use of Drones in Pakistan,” Journal of Transnational Law and Policy, vol. 19, no. 2 (2010): 237-280.

0 Eyal Benvenisti, “Rethinking the Divide between Jus ad Bellum and Jus in Bello in Warfare against Nonstate Actors,” Yale Journal of International Law, vol.34, iss. 2 (2009): 541-548; Benvenisti, “The Legal Battle to Define the Law,” 339-359.

0 Benvenisti, “The Legal Battle to Define the Law,” 358-359.

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for the protection of the victims of armed conflict. The US GWOT has even been disputed by

Graham as a “sound bite”0 which never existed.

Melzer’s title and contents of his book0 on targeted killing are misleading when viewed from the

prism of IHL as a regulatory framework. Melzer’s rejection of the mixed model analysis and his

conclusion that attacks on legitimate military objectives are governed solely by IHL without

reference to human rights law is not correct. Since the focus of this research is on NIACs, we

shall limit our discussion to that type of armed conflict. First, military necessity and

humanitarian considerations are the driving forces of IHL. Humanitarian considerations are

based on human rights. Why should a soldier who takes up arms against the State and is

wounded, sick or shipwrecked (and becomes hors de combat, that is, “out of action or combat”)

be treated humanely in all circumstances0 but not for human rights law? Second, AP II recalls

that the Common Articles 3 provisions are humanitarian principles and that those principles

“constitute the foundation of respect for the human person in cases of armed conflict not of an

international character.”0 Third, it is further provided that “… in cases not covered by the law in

force, the human person remains under the protection of the principles of humanity and the

dictates of the public conscience.”0 In addition, it recalls “furthermore that international

instruments relating to human rights offer a basic protection to the human being.”0 In essence,

human rights law plays a cardinal role in the regulation of armed conflict especially non-

international armed conflict.

0 David E. Graham, “Counterinsurgency, the War on Terror, and the Laws of War: A Response,” Virginia Law Review, vol. 95 (2009): 81.

0 Melzer, Targeted Killing in International Law, 289-291.

0 Geneva Conventions (GCs) I, II. III and IV of 1949, art. 3 (1).

0 Additional Protocol (AP) II of 1977, the Preamble.

0 Ibid.

0 Ibid.

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Another misconception in Melzer’s argument is his belief that “while IHL expressly prohibits

attacks on civilians, it does not expressly authorize attacks on combatants and civilians directly

participating in hostilities.”0 Attack means “acts of violence against the adversary, whether in

offence or defence.”0 The means of attack in armed conflict are military weapons and these

weapons are fully employed during armed conflict. Armed conflict is an extremely dangerous

activity which admits of death and destruction. That is the rationale for its regulation. An

examination of IHL reveals that combatants0 are military targets unless they have laid down their

arms or are placed hors de combat. So long as they are military targets, they are prone to be

targets of deadly force, in the form of hell-fire missile, in armed conflict.

Second, IHL does not “permit” attacks. It only regulates the means and methods of warfare. In

addition, the mention of “permission” in armed conflict is misleading and may throw up a

dangerous trend where jus ad bellum is mixed up with jus in bello. Jus ad bellum is an authority

for self defence0 while jus in bello is the regulation of the means and methods of warfare.0 The

separation of the two streams of jus ad bellum and jus in bello is eternal.

Third, IHL protects “persons taking no active part in hostilities, including members of the armed

forces who have laid down their arms and those placed hors de combat ….”0 It does not urge

much in favour of active fighters and government forces except that the means and methods of

attack are regulated.

0 Melzer, Targeted Killing in International Law, 289.

0 AP 1, art. 49 (1).

0 The term “combatants” applies only in international armed conflict while its equivalent in non-international armed conflict is “insurgents,” “fighters” or “Non-State Armed Group (NSAG).”

0 Charter of the United Nations 1945, art. 51.

0 International Humanitarian Law as expressed in the four Geneva Conventions (GCs) of 1949, the two Additional Protocols (APs) of 1977, the Third Additional Protocol (AP III) of 2005 and other specific Human Rights Law treaties applicable in times of armed conflict.

0 Geneva Conventions I, II. III and IV of 1949, art. 3 (1) and art. 4 (1) of AP II

85

Finally, in IHL, the principle of distinction can be described as the grandfather of all

humanitarian law principles. It is said to be one of the cardinal principles of humanitarian law0

and described by the ICJ as “… intransgressible under customary international law.”0 This

principle is to the effect that in all armed conflicts, parties must distinguish between civilians and

combatants, and between civilian objects and military objectives. Attacks must be directed at

combatants and military objectives. What other proof do we need to show Melzer that his

conclusions are erroneous? His conclusions are even more worrisome when we recall that he is a

legal adviser with the ICRC and has participated in many important decisions at the ICRC for the

enforcement of IHL including the ICRC’s Interpretive Guidance on the Notion of Direct

Participation in Hostilities which was edited by Melzer himself and published in 2009.

In this work, we are, however, dealing with the contents of the law regulating NIACs in its

entirety and generality; and have come to the irresistible conclusion that the law is grossly

inadequate for the regulation of NIACs and for the protection of the victims. There are gaps in

the law. Since the law is mostly the creation of treaty, it should be amended by treaty as well, so

as to be in tune with the 21st century realities of non-international armed conflict, thereby

strengthening the legal protection for victims. In the alternative, the Martens Clause should be

given its full potential in the regulation of armed conflict and the protection of the victims. This

can only be effective where the ICC is imbued with the jurisdiction to entertain Advisory

Opinions on issues of armed conflict.

3.3 Characterization of Non-international Armed Conflict as a Source of Violation:

As stated severally in this work, the regulation of NIAC is by virtue of IHL treaties, which is

international in nature. The four Geneva Conventions of 1949 and the APs I and II of 1977 0 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict 3rd edition

(Cambridge: Cambridge University Press, 2016), 12.0 Nuclear Weapons Case (1996) ICJ Rep. 226 at 257.

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classify armed conflicts into two groups: international and non-international armed conflicts.0

Benvenisti is, therefore, not stating the law correctly when he classifies the armed conflict

between the US and al Qaeda as an asymmetric warfare.0 Benvenisti advocates an introduction of

jus ad bellum considerations into jus in bello analysis and cites the examples of the Israeli war in

Lebanon in 2006 and the Israeli attack in the Gaza Strip in December 2008 and January 2009 as

linking jus ad bellum with jus in bello considerations.0 He calls for a conflation of jus ad bellum

with jus in bello or an adoption of a different set of classification of armed conflict with non-

State actors; and state further as follows:

The reasons for maintaining the ‘total separation’ between jus ad bellum and jus in bello, which are generally valid, are both moral and pragmatic. Yet they become strained in the context of warfare against nonstate actors. As a result, it is possible to observe a shift in the attitude of different actors, who inject ad bellum considerations into their assessment of the legality of certain military measures.0

The validity of the “total separation between jus ad bellum and jus in bello” is not valid as a

result of morality and pragmatism as contended by Benvenisti above. The total separation

between jus ad bellum and jus in bello is, rather, legally valid and binding because it is based on

treaty.0 There is no such legal classification of armed conflict by IHL as asymmetric warfare.

In another work, Benvenisti moves the stakes higher when he classifies the armed conflict

between the US and al Qaeda as a transnational asymmetric armed conflict.0 Again, there is no

0 The four GCs of 1949, art. 2 and AP I of 1977, art. 1 (1) for international armed conflicts; CA 3 and AP II of 1977, art. 1 (1) for non-international armed conflicts.

0 Benvenisti, “Rethinking the Divide,” 541-548.

0 Ibid, 544-545.

0 Ibid, 544.

0 AP I of 1977, last paragraph of the Preamble. Jus ad bellum, as contained, for example, in article 51 of the Charter of the United Nations, is an authority to activate the “inherent right to self-defence” but jus in bello, as contained in IHL, is the regulation of the “means and methods of warfare.” The two streams are different, are not conflated and should not be conflated for any reason whatsoever.

0 Benvenisti, “The Legal Battle to Define the Law,” 339-359.

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such legal classification of armed conflict in IHL. Benvenisti builds his argument on the

imaginary divide between IHL camp and the LOAC camp. For him:

… the intensified involvement of third parties creates a new conflict between the conventional armies that fight insurgents or terrorists and seek more discretion and fewer constraints and the third parties who insist on maintaining and even increasing constraints in warfare. We might call it a conflict between the ‘IHL camp,’ that emphasizes the humanitarian aim of the jus in bello, which they refer to as International Humanitarian Law, and the ‘LOAC camp,’ that wishes to point out that the Law of Armed Conflict is primarily designed to regulate the relations between fighting armies and therefore must take military concerns seriously into account. The LOAC camp insists that this ‘lawfare’ is not only hypocritical but also perilous: that the IHL camp is being manipulated by the terrorists, who endanger the population on whose behalf they ostensibly fight by their abuse of civilian immunities. In a sense, and certainly unwillingly, the IHL camp becomes a strategic ally of the terrorists because the terrorists benefit indirectly from whatever constraints the IHL camp would impose.0

The above camps, as erected by Benvenisti, are only imaginary. Those camps do not exist in

reality. They both mean one and the same thing: the regulation of the means and methods of

warfare.

Green states that:

It is difficult to say exactly what type of conflict has been conducted by the United States, the United Kingdom and subsequently NATO in Afghanistan since 2001. What commenced as an intervention arising from the right of self-defence based on the Taliban de facto administration’s cooperation with and support of the al Qaeda terrorists responsible for the 9/11 attacks on New York and Washington subsequently expanded into operations aimed at restoring the power of the administration overthrown by the Taliban. However, this was not a non-international conflict in the traditional sense of that term, nor was it treated as an international conflict. Since both the United States and the United Kingdom are parties to the Geneva Conventions, it would seem that Convention III (Prisoners of War) and IV (Civilians) regarding the treatment of both military – Taliban – and civilian – alleged al-Qaeda supporters – detainees should apply. The United States, however, was not prepared to apply either Convention.0

It is difficult to accept the above position by Green. The traditional classification of armed

conflict into international and non-international is treaty-based. In addition, the determination of 0 Ibid, 348.

0 Green, The Contemporary Law of Armed Conflict, 74.

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the type of armed conflict is a pre-requisite for the trigger of the applicable legal regime. If the

armed conflict in Afghanistan between the US and al Qaeda was neither international nor non-

international, as Green contends above, how come he (Green) endorses the application of

Geneva Conventions III and IV to the treatment of the victims in the armed conflict?

Furthermore, Green’s proposition is also difficult to accept because Green published his book in

2008 after the decision of the US Supreme Court in Hamdan v. Rumsfeld in 2006 as an armed

conflict of a non-international character.0 The said judgement of the US Supreme Court is not

acceptable to Dinstein. After his narration of the events of 9/11, Dinstein states as follows:

No armed group conducting attacks in such an egregious fashion can arrogate POW status to its fighters. Whatever lingering doubt may exist with respect to the entitlement of Taliban forces to POW status, there is – and there can be – none as regards Al-Qaeda terrorists.Strangely enough, the US Supreme Court, in the Hamdan case of 2006, seems to have subscribed to the fiction that a cross-border world-wide ‘war-on-terrorism’ constitutes a NIAC. This judicial decision must be seen as limited to the confines of American domestic law, inasmuch as – from the vantage point of international law … - a NIAC cannot possibly assume global dimensions. To the extent that Al-Qaeda personnel were associated with an IAC in Afghanistan, they must be seen as unlawful combatants participating in that armed conflict.0

Again, Dinstein’s mention of a class of combatants as “unlawful combatants” has no legal basis

and does not have any legal support either in treaty or domestic law. Every armed personnel

involved in IAC is a combatant. The effect of this is that in IAC, it is combatants only that can

take a direct part in hostilities. The result of the above is that those who take a direct part in

hostilities in IAC are either combatants or nothing else. There is no other class as “unlawful

combatants” in IAC. Dinstein is not legally correct in the above assessment of the status of al

Qaeda in Afghanistan especially since al Qaeda is not a State or a State manager and cannot,

0 Hamdan v. Rumsfeld (supra). It should be appreciated that experts, like Green, have every right to agree, disagree or be neutral on issues in their field of expertise but where the law is involved, the decision of experts should be based on the law especially where a treaty or any enacted law is sought to be analysed.

0 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict 3rd ed. (Cambridge: Cambdge University Press, 2016), 66.

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therefore, be involved in an IAC. The reality is that there are gaps in the law as regards the

treaty-based traditional classification of armed conflict into international or non-international.

Graham’s inclusion of internationalized armed conflict as a class of armed conflict is erroneous.

According to him:

Now, having noted that determining the existence of an international armed conflict is not that complex, I would certainly caveat this statement with the observation that this determinative process may become much more problematic in those instances in which a non-international armed conflict might, at some point, become ‘internationalized.’ This occurs when one or more external States intervene in such hostilities.0

The above classification of internationalized armed conflict as a class of armed conflict by

Graham is not treaty-based and is legally not correct. In addition, ICRC fell into the same error

as Graham when it recognized internationalized armed conflict as a third category of armed

conflict. According to the ICRC, “An internal armed conflict is considered to be

internationalized when it involves the armed forces of one or several foreign States. These States

intervene either by deploying their own forces in the conflict or by exercising overall control

over local forces.”0 It must be emphasized that Graham and the ICRC are legally wrong in their

classification. This is because intervention by third States in non-international armed conflict is

prohibited in IHL.0 The ICRC as the guardian, promoter and enforcer of IHL should always

explore the legal position of the treaty provisions in IHL before delving into the practical

realities of the challenges of IHL. The practical realities of the situations that create the scenario

described by Graham and the ICRC should, however, not be ignored.

0 David E. Graham, “Defining Non-International Armed Conflict: A Historically Difficult Task,” in Non-International Armed Conflict in the Twenty-first Century, Kenneth Watkin and Andrew J. Norris (eds.) (New Port, Rhode Island: Naval War College, 2012): 43-55.

0 International Committee of the Red Cross (ICRC), Violence and the Use of Force (Geneva: ICRC, 2011), 33.

0 AP II, art. 3 (2).

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Corn advocates a hybrid category of armed conflict as a result of the inability of the US GWOT

to fit into either of the moulds of international or non-international armed conflicts.0 It should

also be noted that this can only be done via treaty since the current categorization was done by

treaty. Corn, on the other hand, has also identified a category of armed conflict which he

describes as transnational armed conflict. According to him:

Transnational armed conflict as a legal term of art was nonexistent prior to September 11, 2001 … In essence, it was a concept intended to bridge the chasm between the two traditionally acknowledged – and ostensibly only – situations triggering the jus in bello: international or inter-State armed conflicts and non-international or internal armed conflicts. Adopted in the 1949 revisions to the Geneva Conventions, the concept of armed conflict, and these two categories of armed conflicts, manifested an effort to ensure a genuine de facto law-triggering standard. While this did not eliminate all uncertainties as to when the law applies, preventing humanitarian law avoidance through reliance on technical legal concepts such as war was unquestionably the primary motive behind the adoption of the armed conflict law trigger.0

It must be correctly stated that the traditional classification of armed conflict and the law-trigger

standard were not meant for the avoidance of IHL. The inadequacy of the traditional

classification is hereby acknowledged but the solutions to the inadequacy can also be found in

IHL treaties. The US initially categorized the attack by al Qaeda as a terrorist attack. The

subsequent employment of full military combat power by the US against the Taliban and al

Qaeda was an armed conflict to which IHL applied but the US was not prepared to apply IHL not

until the intervention of the US Supreme Court in 2006. The mere labeling of the al Qaeda attack

as a terrorist attack should not have taken the US response outside the legal regulation of IHL.

This is because the application of IHL “… does not affect the legal status of the parties to the

0 Geoffrey S. Corn, “Hamdan, Lebanon, and the Regulation of Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict,” Vanderbilt Journal of Transnational Law, vol. 40, no. 2 (2007): 295-355.

0 Corn, “Self-defence Targeting: Blurring the Line between the Jus ad Bellum and the Jus in Bello,” in Non-International Armed Conflict in the Twenty-first Century, Kenneth Watkin and Andrew J. Norris (eds.) (Newport: International Law Studies of the Naval War College, 2012): 57-92.

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conflict.”0 The mere designation of al Qaeda as a terrorist organization should not have taken the

US military response outside the realm of the legal regulation of armed conflict. In addition, the

famous Martens Clause is a very useful device where there is doubt or lacuna as to the applicable

legal regime in armed conflict. In non-international armed conflict, the Martens Clause states

that: “Recalling that in cases not covered by the law in force, the human person remains under

the protection of the principles of humanity and the dictates of the public conscience.”0

The Nigerian situation in the north-east is not different from the initial stance of the US on al

Qaeda and its associates. The government of Nigeria is still insisting that IHL does not apply to

her military engagement with the insurgents in the north-east since the insurgents are terrorists.

From every indication, based on objective assessment of the situation in the north-east, there is a

non-international armed conflict in that part of Nigeria between the Armed Forces of the Federal

Republic of Nigeria and the NSAGs.0 The traditional classification of armed conflict is a major

setback on the regulation of non-international armed conflict and the protection of victims of

such armed conflicts.

3.4 Adoption of Sharia Law as one of the Causes of Religious Extremism:

This finding is peculiar to the armed conflict in north-east Nigeria. What it means, therefore, is

that every NIAC is peculiar and should be assessed on a case by case basis. There should be no

generalization in the assessment of the cause or causes of non-international armed conflict.

0 GCs of 1949, CA 3 (2).

0 AP II, the Preamble.

0 G. O. Arishe and E. C. Akpeme, “Is Boko Haram Insurgency in Nigeria a Non-international Armed Conflict?,” The Journal of International Law and Diplomacy, vol. 2, no. 1 (2014): 65-100; Hagler Okorie, “Child Soldiering and Protection: North-East Nigeria in Perspective,” University of Benin Law Journal, vol. 17, no. 1 (2016-2017): 110-128; and Hagler Okorie, “Violation of International Humanitarian Law by Parties to the Armed Conflict in the Northeast Nigeria,” International Journal of Business and Law Research, vol. 6, no. 1 (2018): 58-66.

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There is always an underlying cause for every non-international armed conflict. What is, then,

the real grievance of insurgents, or more particularly Boko Haram, in the north-east? What are

they agitating for or against? Higazi answers the questions thus:

Boko Haram emerged after breaking away from the reformist Salafi/Wahhabi groups in northern Nigeria that since the late 1970s have been challenging the established sufi orders, the Tijaniyya and Qadiriyya. The ideology of Boko Haram draws selectively on Salafi ideas – which are diverse but hold that Muslims should live according to the rules and modes of conduct established by the Prophet Muhammad and the first three generations of his followers, the ‘pious predecessors’ (ul-salaf al-S?lih). Salafis emphasize the ‘restoration of Islamic doctrines to a pure form,’ but the founding ideas of the Salafiyya movement in the early twentieth century also had a strong modernist streak encouraging educational reform and the acquisition of scientific and technological knowledge. The Boko Harm ideology, condemning secular education and any government or civil service work, deviates from Salafi doctrine.0

It is difficult to accept that Boko Haram abhors civilian government and the civil service when

Buji Foi, a Boko Haram member and sponsor, served as the Commissioner for Religious Affairs

in Borno State under Ali Modu Sheriff as the governor0 and all the four governors in Borno State

since 1999 have been Muslims. Bertoni et al assert that:

Since 2009, Boko Haram has started a conflict against the Nigeria's Government with the objective of creating an Islamic state in the region. Faithful to its name, Boko Haram has targeted the Nigerian education system assaulting schools, students, and teachers in North-East Nigeria in the states of Adamawa, Bauchi, Borno, Gombe, Taraba, and Yobe.0

Yesufu debunks the claims of Boko Haram on education by insisting that the Holy Quran

acknowledges that those with knowledge are the people who rightly fear God the most 0 and

0 Higazi, 1-2.

0 Ibid, 3. The said Buji Foi was arrested by vigilantes and handed over to the police but he was extra-judicially executed by the police in Maiduguri in 2009.

0 Eleonora Bertoni, Vasco Molini, Michele Di Maio and Roberto Nisticò, “Education is Forbidden: The Effect of the Boko Haram Conflict on Education in North-East Nigeria,” Working Paper No. 495 of the Centre for Studies in Economics and Finance of March 2018, 2.

0 Holy Quran, XXXV: 28.

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concludes that “… God Himself places so much value on knowledge that Pen, the writing

instrument, was the first thing that He created.”0

Loyalty to Islam here does not just apply to the realm of worship: at stake also is an

understanding of politics that, for Boko Haram, is inseparable from what it means to be

authentically Muslim.0 Thurston relates the above statement to comments by Shekau thus:

Anyone who insults our Prophet is an unbeliever. Anyone who doubts that is an unbeliever. Anyone who boasts of this is an unbeliever. Oh people of the world, repent to Allah Most High and if not, you will see what you see ... Our Lord, may He be glorified and exalted, has said, ‘No one rules but God’ (Qur’an 12:40). And He has said, ‘Whoever does not rule by what God has revealed, they are the unbelievers’ (5:44). And He has said, may He be glorified and exalted, ‘O you who believe, do not take the Jews and the Christians as allies (awliya’). They are allies of one another. And whoever is an ally to them among you, then indeed, he is one of them’ (5:51). He is one of them.0

Religious extremism and fanaticism have been expressed by insurgents in the north-east part of

Nigeria as a result of the adoption of Sharia law in some States in the country. Apebende states

that:

It could be recalled that the onset of the contemporary Sharia controversy in Nigeria had its evil seed sown on the 27 th of October 1999 when the Sharia code was promulgated as the legal system of Zamfara, one of the northern Nigerian States. The then State governor, Ahmed Sani Yerima, who came to power on the promise of implementing the Sharia legal system fully in that State as it was in the Sokoto caliphate (led by Usman Dan Fodio, 1744-1817) declared on that day that the full and vigorous implementation of the Sharia as lunched [sic] by him marked the ultimate attainment of Muslim hopes and aspirations in Nigeria …Yerima’s action soon encouraged other States in northern Nigeria to implement the Sharia and today, that legal system, with its ripple effects is what holds sway in most of the States in the northern part of the Nigerian Federation …In recent years, the situation seem to have spiraled out of control by raising its ugly head in the form of terrorism and extremism that vigorously threaten, more

0 Tijani M. Yesufu, World Inter-Religious Crisis: An Islamic Initiative for Peace (Lagos: West African Book Publishers Limited, 2005), 210.

0 Thurston, 14.

0 Ibid.

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than ever, the unity of the country with the government of the day watching helplessly.0

The ISIL and Boko Haram claim what they are doing is approved in the Holy Quran, indeed they

say they are following in the same footpath as their prophet.0 Thurston explains this point in the

context of the prelude to the insurgency in the north-east part of Nigeria thus:

Boko Haram’s members consider themselves arbiters of who is a true Muslim. Like other Salafis, Boko Haram rejects other approaches to Islam. Muhammad Yusuf regarded his mission as one of purification …Yusuf’s Islamic education seems to have been informal, but he displayed familiarity with mainstream Salafi thought and its jihadi offshoots. Yusuf revered the Damascene theologian Ahmad Ibn Taymiyya (1263–1328), a central figure in Salafi thought today. Yusuf drew on contemporary Salafi-jihadi theorists such as the Palestinian-Jordanian Abu Muhammad al-Maqdisi (b. 1959). From al-Maqdisi, Yusuf borrowed a hardline conception of the doctrine of al-wala’ wa-l-bara’. For Salafi-jihadis, al-wala’ wa-l-bara’ means exclusive loyalty (al-wala’) to those whom they consider true Muslims, and complete disavowal (al-bara’) of all others. For Yusuf, loyalty to Islam meant rejecting democracy and Western-style education.0

Boko Haram embarked on the implementation of its exclusive Sharia law through violence and

brutality on “unbelievers” and sought the “establishment” of a salafi State in the north-east as

adumbrated by Thurston as follows:

Boko Haram’s combination of an exclusivist Muslim identity and a politics of victimhood has [sic] fueled its brutality against civilians in the Lake Chad region, particularly since 2013 …Shekau claimed to be imitating the Prophet by massacring ‘unbelievers’ in Northeastern communities …Boko Haram began incorporating towns into a would-be state, starting with Damboa, Borno. The sect may have exercised de facto sway over parts of Borno prior to 2014, but its actions that year reflected a more systematic bid for territorial control. In August, Shekau announced the establishment of a ‘state among the states of Islam’ in Gwoza, Borno.0

0 Stephen Atah Apebende, “The Absurdity of Sharia in a Contemporary Secular State: The Nigerian Experience,” Koinonia, vol. 6, no. 4 (2014): 98-100.

0 Essien, “Some Challenges in Christian-Muslem Dialogues,” 141.

0 Thurston, 12.

0 Ibid, 20.

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The rightful place for religious law in constitutional democracy has been adumbrated by

Mahmood, who asserts that, in the case of India, there is freedom of worship in Islam but that

religious compulsion is not Islamic, thus:

One who claims to profess Islam cannot be compelled also to practice it wholly or partly; and any person who claims to be, or have become, a Muslim can, while remaining a Muslim, choose to denounce any religious practice of the Muslims. In other words what is ridda, kufr or shirk under Islamic religious law has no meaning or implications for the State under the public law of this country. The State cannot use its authority to enforce the dictates or doctrines of any religion; it can only recognize one’s claim to be, or not to be, the follower of a particular religion.Like a born Muslim, a convert to Islam can also freely choose to practice or not to practice his new religion, or to pick and choose for himself from the various Islamic beliefs and practices. The Constitution guarantees both profession and practice of religion, but not as necessary complements for one another.0

Boko Haram’s exclusive Sharia is not even in tune with the original salafist doctrine. According

to Higazi:

The Boko Haram ideology, condemning secular education and any government or civil service work, deviates from Salafi doctrine. But Boko Haram do use technology, including the internet and mobile phones, and members of the group have acquired technical expertise to make explosives, including car bombs. It seems that as long as the knowledge helps their religious/political struggle they are willing to utilize it.0

After the gruesome murder of Mohammed Yusuf by the police in 2009, Shekau became the

leader of Boko Haram and created a State of Islam in some parts of the north-east. Thurston

narrates that:

Shekau declared that Boko Haram’s state was no longer part of Nigeria. Creating a Salafi-jihadi enclave meant expunging Christianity. Boko Haram sought to kill or forcibly convert Christians, and the sect destroyed churches and seminaries. Boko Haram made rudimentary attempts to teach its ideology. One young Christian woman captured by Boko Haram in Adamawa was forcibly converted to Islam, and then made to spend her days praying and learning Quranic verses. In one video, an unseen interviewer queried Muslim civilians about their

0 Tahir Mahmood, “Islamic Law and State Legislation on Religious Conversion in India,” in Islam and Public Law, Chibli Mallat (ed.) (London: Graham and Trotman Limited, 1993): 165-166.

0 Higazi, 2.

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‘enjoyment’ in the new state, especially due to the absence of ‘infidels.’ Yet Boko Haram preyed on conquered populations. When Nigerian soldiers recaptured towns before the 2015 elections, they found them devastated.0

Yusuf emphasizes the oneness of Islam which is derived from the Holy Quran on the one hand

and the traditions, Hadith and Sahih of the Prophet on the other.0 Where then do these divisions

and contradictions in Islam come from? Roberts offers his explanation thus:

The Mohammedan world is divided into two great camps, the Sunnites and the Shi’ites within which are found different schools of law… The Sunnites are so-called from their reception of the ‘Sunna’ or traditions as having authority concurrent with and supplementary to the Qoran. The Shi’ites are the partisans of the house of Ali. They reject the Authority of the Sunna, and believe that the Sovereign Imamat, that is the temporal and spiritual headship over the faithful, was by divine right vested in Ali and his descendants, through Hasan and Hosein, the sons of Fatimah, the daughter of the prophet….0

Authors in Nigeria have not really explored the above theme but our interactions with the victims

of the armed conflict in the three most affected States of Adamawa, Borno and Yobe reveal so

much about the contribution of the adoption of Sharia to the emergence and sustenance of the

armed conflict in the north-east. Boko Haram’s ideology is often described as comprising two

stances: opposition to democracy and rejection of Western-style education.0 It is our conviction

the challenges in those States are intra-religious and not inter-religious as mostly expressed on

the divergent, and sometimes contradictory, interpretation of the Holy Quran even by Muslim

intellectuals.

0 Ibid, 21.

0 Yesufu, World Inter-Religious Crisis, 25-35; Holy Quran, II: 256; IV: 171; VI: 159 and XXX: 12. The Holy Quran II: 256 states thus: “There is no compulsion in religion. Verily, the Right Path has become distinct from the wrong path. Whoever disbelieves in Taghut and believes in Allah, then he has grasped the most trustworthy handhold that will never break. And Allah is All-Hearer, All-Knower.” XVI: 125 states as follows: “Invite … to the Way of your Lord … with wisdom (ie with the Divine Revelation and the Quran) and fair preaching, and argue with them in a way that is better. Truly, your Lord knows best who has gone astray from His Path, and He is the Best Aware of those who are guided.”

0 Robert Roberts, The Social Laws of the Qoran: Considered and Compared with those of the Hebrew and other Ancient Codes 5th ed. (London: Curzon Press Limited, 1980), 177.

0 Thurston, 5.

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We disagree with Apebende on his assertion that Nigeria is a secular State. He describes

secularism thus:

It must be noted that secularism as an ideology has a two-fold meaning. On the one hand, it refers to a system whereby the State forbids the public manifestation of religion in its policies and on the other hand, it has to do with the State’s neutrality in the religious matters of the population, while permitting them a place in the public life of the nation.In the Nigerian political and social situations, the 1999 Constitution appears to adopt the latter interpretation of secularism that the State would be neutral in the religious matters of the population while allowing different religions a role in public life.0

Secularism is a noun which means “disregard for or rejection of religious beliefs and practices.”0

Our disagreement with Apebende is based on the fact that Nigeria does not forbid the public

manifestation of religion in its policies nor is it neutral in the religious matters of the population.

The following points buttress our position:

(a) Sharia courts are expressly created as Courts of Record by the CFRN 1999.0

(b) The Federal Government of Nigeria usually declares public holidays on important

Christian and Muslim festivities.

(c) Christians and Muslims abandon their civil service work to embark on pilgrimages to

Israel and Saudi Arabia; some States even fund the pilgrims from the State treasury. Every State

in the federation has either Christian Pilgrims Welfare Board or Muslim Pilgrims Welfare Board.

The National Hajj Commission of Nigeria (NAHCON) (Establishment) Act is an Act of the

National Assembly.0

0 Apebende, “The Absurdity of Sharia,” 101.

0 Longman Dictionary of the English Language, 1345.

0 CFRN 1999, s. 6 (1)-(6) particularly s. 6 (5) (f) and (g). Ss. 260 and 275 create Sharia Courts of Appeal for the States and the FCT. Appeals from the judgement of the Sharia Courts can go up to the Supreme Court of Nigeria.

0 Cap. N153, LFN 2004 (as Revised).

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(d) It was in this country that a serving police officer was arrested and paraded in public for

being found in a hotel with women by Hisbah police. Those Hisbah policemen have not been

arrested nor their actions even condemned.0 Siro and Sundramoorthy state, however, that Hisbah

is a creation of the Law of the State Houses of Assembly that enacted the Sharia law in the States

of northern Nigeria in the year 2000.0

There are many other absurdities regarding the purported secularism in Nigeria but the above

facts are stated to drive home our conviction that Nigeria is not a secular State but rather a multi-

cultural and multi-religious society with so much diversity. It is instructive to acknowledge that

in confronting our religious problems, let us be aware that any derogation from the concept of a

secular State spells disaster and doom for this great country.0

It is difficult to reconcile the position of Boko Haram, the States that enacted Sharia and the

submissions of Yesufu on the subject when he (Yesufu) confirms that there is no compulsion in

Islam and that Islam condemns excesses, divisionism and sectionalism of all sorts.0 Nigerian

authors, especially Islamic clerics, will have to explore this theme deeper for a better

understanding and assessment.

3.5 Effectiveness of Institutions of Governance in the North-East:

0 Ifeanyi Chukwu Nwannah, “Zamfara: Hisbah Arrests Police Officer, Four Others for Adultery, Fornication,” Independent of 30 December, 2019. Hisba police is the enforcement agency of Sharia Law even when there is a Constitutional provision prohibiting the establishment of any other police force for the federation or any part thereof in s. 214 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)..

0 Ali Ado Siro and P. Sundramoorthy, “Police and Hisbah: The Status of Urban Kano Security Management,” Journal of Social Sciences and Humanities, vol. 12, no. 2 (2017): 1-15.

0 Odumegwu-Ojukwu, Because I Am Involved, 14.

0 Yesufu, World Inter-Religious Crisis, 214; Noble Quran, 2: 256.

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The CFRN 1999 provides for three tiers of government: the Federal, States and local government

areas.0 The Constitution also guarantees a system of local government administration via

democratic elections.0 Adamu and Rasheed confirm that “… insecurity exists in northern Nigeria

as a result of institutional failure in governance.”0 We shall focus on the north-east since that is

our primary reason for this discourse.

The constitution also makes provisions for different categories of elective representations which

include three senators from each State of the federation and Federal Constituencies with

representatives from States at the House of Representatives which is the lower chamber of the

National Assembly;0 each State has an elected governor0 and State Constituencies for the House

of Assembly in the States;0 an elected local government chairman in each local government area

in the State and councilors representing each ward at the local government legislature.0 In spite

of all the above constitutional arrangements, there is failure of governance in the north-east; and

this has contributed to the growing non-international armed conflict in that part of Nigeria. The

insurgency in the north-east has been partly attributed to the failure of governance at all levels.0

Most importantly, the occupation of the Sambisa forest by insurgents is the result of the failure

of institutions of the Federal and State Governments in the management of the forest as a

0 CFRN 1999 (as amended), ss. 2, 3 and 7.

0 Ibid, s. 7 (1).

0 Abdulrahman Adamu and Zuwaira Haruna Rasheed, “Effects of Insecurity on the Internally Displaced Persons (IDPs) in Northern Nigeria: Prognosis and Diagnosis,” Global Journal of Human-Social Science, vol. 16, iss. 1 (2016): 3.

0 CFRN 1999 (as amended), ss. 71 and 72.

0 Ibid, ss. 90, 91 and 176.

0 Ibid, ss. 112 and 113.

0 Ibid, s. 7.

0 United Nations Development Programme (UNDP), National Human Development Report 2018: Achieving Human Development in North East Nigeria (Abuja: UNDP, 2018), 19-32.

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Forest/Wildlife Reserve to which the forest was originally earmarked. The forest was published

in the gazette as a Northern and Southern Sambisa Forest Reserve by the North-eastern Region

in 1974 and was managed by the government of Borno State but Mohammed Buba Marwa, as

the Military Administrator of Borno State, later commissioned the forest as a Game Reserve.0 In

1991, the government of Borno State incorporated the Game Reserve as the national park of the

Lake Chad Basin.0 It has been confirmed that the forest is of a very large landmass and is fifty-

one thousand, eight hundred hectares (51,800 ha).0 Authors have not done any research to

investigate the contribution, if any, of the failure of government institutions to the insurgency

currently bedeviling the north-east part of Nigeria. Aju and Aju did not explore the failure of

State institutions in the ongoing insurgency but dealt with the effects of the insurgency on the

ecological and environmental aspects of the Sambisa forest.0 Institutions of governance in the

north-east in particular and Nigeria in general are very ineffective to prevent or contain non-

international armed conflict in the three most affected States. In addition, on a further

interrogation into the rationale for Yusuf’s engagement with the former governors of Borno

State, especially Kachalla and Sheriff, on the issue of the restoration of Islam to its state of

purity, we discover that Yusuf’s engagement was based on widespread corruption and enduring

0 P. C. Aju and J. A. Aju, “Occupation of Sambisa Forest and Boko Haram Insurgency in Northeastern Nigeria as Security Threat and Challenges to Sustainable Forest Management,” Global Journal of Science Frontier Research D: Agriculture and Veterinary, vol. 18, iss. 5 (2018): 27.

0 Ibid.

0 Food and Agricultural Organization (FAO), “Forest Resource Situation Assessment of Nigeria.” Available at http://www.fao.org/3/ab578e/AB578E06.htm. Accessed on 20 December 2019.

0 Aju and Aju, 22-31.

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poverty which can now be termed as destitution.0 Unfortunately, all the four governors that have

ruled Borno State since 1999 are Muslims.0

The current governor of Borno State, Prof Babagana Zulum, has done much in the area of good

governance, re-building of the communities destroyed by the insurgents, return of some of the

IDPs to their ancestral homes in Baga and Monguno, etc. and should be commended and

encouraged.

The collapse of the system of local government administration in Borno State has, however,

hampered the government effort in curtailing the armed violence by the insurgents. Almost every

elected representative of the people now reside in Maiduguri, the State capital without reaching

out to the people they represent in the villages. The constant armed attacks by the insurgents on

the governor and his convoy0 is a reminder of how unsafe the State has become and the impacts

of the armed conflict on the most vulnerable victims like the sick, elderly, women and children.

For an improvement on the humanitarian reliefs in the north-east, the Minister of Humanitarian

Affairs, Disaster Management and Social Development inaugurated the National Humanitarian

Coordination Technical Working Group (NHCTWG) in Abuja on the 2 September 2020. There

is dearth of critical infrastructure, like roads, to link the rural areas in Borno State. As a result,

the FGN adopted air drop of relief items to inaccessible communities in the north-east on the 7

September 2020. These measures have the potential to improve on the protection of the victims

of the armed conflict in the north-east but they cannot replace the constitutional governance

structure in the States and the local government areas.

0 Vanda Felbab-Brown, The Limits of Punishment: Transitional Justice and Violent Extremism, Nigeria’s Case Study (Shibuya-Ku, Tokyo: United Nations University, 2018), 75-76.

0 The four governors that have ruled Borno State since 1999 are: Mala Kachalla (1999-2003); Ali Modu Sheriff (2003-2011); Shettima (2011-2019) and Zulum 2019-till date. The current governor, Zulum, has shown greater commitment to the growth of Borno State.

0 The convoy of the governor of Borno State was attacked twice within forty-eight hours between 25 and 27 September 2020 whereby many soldiers, policemen and members of the CJTF were reportedly killed.

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3.6 Effectiveness of Government Agencies and NGOs in Providing Relief to Victims:

The provision of relief to victims of non-international armed conflict is one of the daunting tasks

engaged in and carried out by a number of humanitarian organizations during armed conflict.

The obligation to protect and ensure protection for victims of non-international armed conflicts is

that of the parties to the conflict.0 The State, however, bears greater responsibility without

compromising the responsibility of the NSAGs. The failure of the government of Nigeria in this

regard is as a result of its wrong response to the armed activities of the insurgents by treating it

as terrorism0 instead of non-international armed conflict.

There is gross ineffectiveness of government agencies and NGOs in providing relief for the

victims. As stated by Brechenmacher:

… donors have struggled to work through and with the Nigerian government, whose conflict response has been plagued by weak coordination and corruption. Difficulties in locating effective counterparts create a classic dilemma for external actors: work through the government and risk bureaucratic delays and political obstruction, or bypass it to the extent possible and risk creating parallel structures that fail to strengthen host government capacity.0

According to ACAPS Report:

The federal structure plays a major role in the management of the humanitarian crisis. The federal government of Nigeria operates from a capital city environment that is radically different from the day-to-day reality of the northeastern states, and while decisions are taken in the federal capital, these do not translate easily for local officials on the ground who are attempting [sic] address the severe needs of displaced and host populations. …The federal government is not hostile to humanitarian intervention, however it does not ease or facilitate the process for international actors to carry out a coordinated humanitarian response. This position has delayed humanitarian response, and contributed to a response that is not to scale. …

0 CA 3 and AP II, art. 1 (1).

0 Felbab-Brown, The Limits of Punishment, 87.

0 Brechenmacher, Stabilizing Northeast Nigeria after Boko Haram, 13.

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The federal government is the central figure of humanitarian action in the country, with UN agencies, institutional funders, and NGOs (both international and local) as partners. Governmental bodies fulfill the roles of sector Working Group leads (at both federal and state levels), with UN agencies as co-leads, and some NGOs acting as secretaries for Working Groups. The government has yet to confirm whether the National Emergency Management Agency (NEMA) is to be the official liaison body with the humanitarian community in the northeastern response.0

The two works cited above are foreign materials as Nigerian authors have not done much in this

area of our research. As we stated earlier in this work, the Ministry of Humanitarian Affairs,

Disaster Management and Social Development was only created in 2019. Its humanitarian

impact in the north-east is still being awaited.

Brechenmacher describes the situation very bluntly thus:

Yet while Buhari has publicly declared the northeast to be in a ‘post-conflict stabilization phase,’ coordination between the various civilian institutions charged with leading the civilian response is still weak. This list of institutions includes the Presidential Committee on the Northeast Initiative (PCNI), the National Emergency Management Agency (NEMA), the Office of the National Security Adviser (ONSA), an Inter-Ministerial Task Force charged with coordinating humanitarian relief operations, the Victim’s Support Fund, the Ministry of Reconstruction, Rehabilitation, and Resettlement in Borno, as well as state-level emergency management agencies. Many of these institutions have been marred by corruption, while institutional rivalries and overlapping mandates impede collaboration, obscure lines of accountability, and result in ad-hoc interventions.0

The agencies of government and NGOs lack the required capacity to provide effective relief to

the victims of the armed conflict in the north-east most especially as there is no access to most of

the border communities in the Lake Chad axis. Access to the victims is crucial in humanitarian

activities in non-international armed conflicts.0 Access to the victims is not about sovereignty but

0 ACAPS Crisis Profile: Northeast Nigeria Conflict, July 2016. Available at https://www.humanitarianresponse. info/en/operations/nigeria/assess ... Accessed on 20 December 2019.

0 Brechenmacher, Stabilizing Northeast Nigeria after Boko Haram, 15.

0 Franciose Bouchet-Saulnier, “Consent to Humanitarian Access: An Obligation Triggered by Territorial Control, not States’ Rights,” International Review of the Red Cross, vol. 96, no. 893 (2014): 207-218.

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more about territorial control by the parties to the armed conflict.0 The earlier the government of

Nigeria understands the last point the better for the victims of the armed conflict.

3.7 Compliance with IHL by the Parties to the Armed Conflict for the Protection of the Victims in the North-East:

The parties to the armed conflict in the north-east have consistently violated the rules of IHL.

Very few authors, especially experts in IHL, have done assessment of the situation in the north-

east from the point of view of IHL. Arishe and Akpeme,0 and Okorie0 have assessed the situation

from the point of view of IHL and have come to the conclusion that the parties have not

complied with their legal obligations under IHL and that the violations erode the guarantees of

protection for the victims. The dearth of literature on the widespread violations of IHL in the

north-east can be attributed to Nigerian Government’s aversion to the armed conflict as terrorism

based on the declaration of Boko Haram and Ansaru as terrorist organizations and their

consequent prohibition by the Federal High Court.0

In spite of the above, there is so much evidence that the armed conflict in the north-east between

government troops and the insurgents is a NIAC. For example, the situation in the north-east is

on the agenda of the OTP and the ICC and the 2019 Report from the Office of the Prosecutor is

the fifth in the series.0 The UN OCHA, in conjunction with the National Human Rights 0 Ibid.

0 Arishe and Akpeme, “Is Boko Haram Insurgency in Nigeria a Non-international Armed Conflict?,” 65-100.

0 Okorie, “Child Soldiering and Protection,” 110-128; and Okorie, “Violation of International Humanitarian Law,” 58-66.

0 AG Fed. v. ‘Jamaatu Ahlis-Sunna Liddaawati Wal Jihad (otherwise known as “Boko Haram”) & Anor , Suit No. FHC/ABJ/CS/368/2013.

0 The Office of the Prosecutor (OTP) of the International Criminal Court (ICC), Report on Preliminary Examination Activities 2019, paras. 176-199, of 5 December 2019. The two other previous Reports from the Office of the Prosecutor were issued in 2011, 2013, 2015 and 2017 respectively which are: ICC-OTP, Situation in Nigeria: Article 5 Report 2013 of 5 August 2013. Available at https://www.icc.cpi.int/.../NGA-05-08-2013. Accessed on 20 December 2019; and ICC-OTP, Report on Preliminary Examination Activities 2015, paras. 195-216. Available at https://www.icc.cpi.int/.../otp-rep-pe-activities-2015. Accessed on 20 December 2019. The 2020 Report of the OTP of ICC, which was released in December 2020, is the latest in the series.

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Commission (NHRC), is now training the Nigerian military on the rules of IHL.0 The Vice

President, then as Acting President, set up a Committee to investigate alleged violations of

human rights in counterinsurgency by the Nigerian military. Felbab-Brown states that:

In August 2017, then - acting President Yemi Osinbajo (in office while President Buhari was ill) established a Judicial Commission to Review Compliance of Armed Forces with Human Rights Obligations and Rules of Engagement. While meeting with Nigerian military officials, the committee was shown rosters of at least a hundred soldiers whom the military had supposedly court marshaled [sic] for alleged human rights crimes in the context of the Boko Haram counterinsurgency. Some had been sentenced to death and supposedly executed, while others had been retired or demoted. However, the Nigerian military has not been willing to make the indictments and court marshals [sic] public, or even acknowledge their existence, so as not to undermine morale. That rationale, however, not only contradicts the imperative of delivering justice to victims, but also fails to create adequate deterrence against future gross human rights violations by soldiers. Nor is it clear that any of the soldiers prosecuted thus far were of sufficiently high rank to be the officers most responsible for ordering or permitting violations.0

The UN Sec-Gen has also issued and presented his Report on Children in Armed Conflict to the

UN General Assembly and the Security Council wherein he indicted Boko Haram and the

Nigerian Security Forces (NSF) of eight (8) grave violations of IHL.0 The UN Special

Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Agnes Callamard, visited

Nigeria and made End of Visit Statement wherein she indicted Boko Haram and the government

of Nigeria on the violations of IHL in the north-east.0 The exclusive full-scale employment of

military combat power against the insurgents in the north-east is also a pointer to the fact of the

0 UN OCHA, Nigeria North-East: Humanitarian Situation Update, November 2018 ed. Available at https://www.humanitarianresponse.info/en/operations/nigeria/docu... Accessed on 20 December 2019.

0 Felbab-Brown, 95.

0 UN Sec-Gen, Children and Armed Conflict: Promotion and Protection of the Right of Children , Report of the Secretary-General, dated 16 May 2018, A/72/865-S/2018/465. The Report also indicted the Civilian Joint Task Force (CJTF) for the recruitment of children but that it (CJTF) has put in place measures aimed at improving the protection of children.

0 End of Visit Statement of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on her visit to Nigeria, Agnes Callamard, United Nations Special Rapporteur for Extrajudicial, Summary or Arbitrary Executions, 2 September 2019, paras. 23-30.

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existence of NIAC in the north-east. All the above point to the fact of NIAC in the north-east and

experts in IHL should take up their responsibility of the contextual situation of the armed conflict

within the ambit of IHL so as to generate solutions towards strengthening the legal protection for

the victims of the armed conflict.

3.8 Examination/Review of the Title of the Research:

How do we realize, then, the protection, and legally strengthen such protection, for the victims of

NIAC? Our experience in the north-east leaves much to be desired even with the FGN as a High

Contracting Party to the four Geneva Conventions of 1949, the two Additional Protocols of

1977, and the 1998 Rome Statute of the ICC which all regulate NIAC and demand accountability

for grave breaches of the Conventions and the Protocols. Annan answers the above question

thus:

To strengthen protection, we must reassert the centrality of international humanitarian and human rights law. We must strive to end the culture of impunity – which is why the creation of the International Criminal Court is very important. We must also device new strategies to meet changing needs.0

The above answer seems to be a very simple, short and quick fix. The reality is, however,

different. A few points drive home our point:

First, Annan’s recommendations were made in the context of armed conflict generally but our

focus is on NIAC in particular with specific reference to the NIAC in the north-east part of

Nigeria. Since every armed conflict is peculiar, it should be assessed on a case by case basis;

Annan’s recommendations should not, therefore, be generalized. Kleffner lists some of the

challenges in NIAC thus:

What remains is that none of the explanations for the binding force of IHL on organized armed groups is without its weaknesses. That imperfection epitomizes the fact that IHL remains deeply engrained in a state-centric paradigm of norm generation and acceptance. While significant developments have taken place in

0 Annan, We the Peoples, 46.

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the regulation of NIACs, organized armed groups remain largely excluded from these developments. Admittedly, their inclusion into the process of articulating norms bears a number of risks and will not be a quick fix to all the challenges that we face in the realm of compliance with IHL. However, the reality – in military as much as in humanitarian terms – of organized armed groups suggests that they need to be understood as executors of a law that is also their own.0

Carrying out the above in a State-centric system, such as Nigeria, is a herculean task.

Second, NIAC is a very complex phenomenon and two variants of NIAC can be identified from

AP II0 but there are still two other variants: transnational NIAC and armed conflict between or

among NSAGs, which are not captured in the treaty. Gaps are, therefore, created. Here, the

Martens Clause should have filled the gaps thus created but in NIAC, the Martens Clause is in

the Preamble to AP II. Can a provision in the Preamble to a treaty be cited for enforcement?

Third, IHL, IHRL and the Rome Statute of the ICC are not perfect pieces of international

legislations. Furthermore, the depth of ignorance of IHL even among security personnel in

Nigeria is a cause for concern.0 The ICC is not a court of first instance but a complementary

international judicial institution to the domestic system. Where there is absence of domestic IHL

judicial institution, like the case in Nigeria, the burden on the ICC is enormous and its

effectiveness is adversely affected.

Fourth, it is not every sovereign State that is a High Contracting Party to IHL treaties. Generally,

treaties are binding on parties to them.0 Which law applies, then, to non-State parties to the

Geneva Conventions of 1949, the Additional Protocols (APs) of 1977 and the Rome Statute of

the ICC 1998, in armed conflict?

0 Jann K. Kleffner, “The Applicability of International Humanitarian Law to Organized Armed Groups,” International Review of the Red Cross, vol. 93, no. 882 (2011): 460-461.

0 AP II of 1977, art. 1 (1). The two types of NIACs recognized in APII are armed conflict in the territory of the High Contracting Party between: government forces and dissident armed forces; and government armed forces and other organized armed groups.

0 This information is based on the interaction of the researcher with police and military personnel in the course of this research.

0 Vienna Convention on the Law of Treaties (VCLT) 1969, art. 26.

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Fifth, States that are High Contracting Parties to the Geneva Conventions (GCs) of 1949, the

Additional Protocols (APs) of 1977 and the Rome Statute of the ICC 1998 violate their treaty

obligations under IHL and HRL in many ways with impunity.

Sixth, NIAC should not be treated as if it were regulated as IAC. Adopting the same rules in the

regulation of NIAC and IAC leaves much to be desired. This is because each type of armed

conflict is regulated by different treaties and rules of IHL.

Finally, regional organizations, ordinarily and practically not parties to IHL treaties, are also

working against the functional effectiveness of IHL treaties. The African Union (AU), for

example, is working against the effectiveness of the ICC in a bid to protect African rulers who

have been indicted by the ICC from justice.0 The request by the AU to the UNSC to defer the

investigation or prosecution of Al Bashir of Sudan under article 16 of the Rome Statute of the

ICC was ill-conceived. The UNSC has discretion on the matter and cannot be arm-twisted by any

sovereign State or regional organization. In fact, the AU, by requesting the UNSC to act under

article 16 in favour of indicted African Heads of State, is even in violation of the African Charter

on the Rights and Welfare of the Child 1990.0

With all the circumstances enumerated above, would the mere centrality of IHL and HRL,

without more, solve the problem of strengthening legal protection for victims of NIAC?

There are conditions to be fulfilled and challenges to be settled for the centrality of IHL to take

its rightful place in strengthening legal protection for victims of NIACs. Our take is that the

answer and solution to the question of strengthening legal protection for victims of NIAC lie in

the search for and attainment of justice through the promise of law. We mean justice through law

in all its ramification. The treatment of the NIAC and every person involved in the armed

0 Nsongurua Udombana, Africa and the International Criminal Court: 13th Justice Idigbe Memorial Lecture 2012 (Benin: Ambik Press, 2012), 51-54.

0 African Charter on the Rights and Welfare of the Child 1990, art., 22.

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conflict in the north-east part of Nigeria should be based on the notion of justice within the

promise of law, in this case IHL, International Law and every other relevant law in armed

conflict. The emphasis here is on the attainment of justice within the promise of law: justice for

the offender, justice for the offended and justice for the society.0

This research, therefore, makes a case for the FGN to accept and treat the armed conflict with

insurgents in the north-east as a NIAC, apply the law regulating NIAC, and protect the victims of

the armed conflict. Furthermore, it is our conviction that even if the FGN treated her response to

the armed conflict as counter-terrorism, it is still imperative and incumbent on the FGN to apply

the rules and regulations that govern NIAC. Here, it is either law enforcement, which is carried

out by the regular police services or armed conflict which is dominated by the military. It is the

military that dominates the FGN combat operations in the north-east and these military combat

operations should be properly and legally situated within the ambit of NIAC under the regulatory

scrutiny of IHL. This will strengthen the protection guarantees to the victims of the armed

conflict in the north-east part of Nigeria. Apart from the challenges discussed above, there are

many other challenges bedeviling the legal protection of victims of NIAC in the north-east part

of Nigeria.

3.10 Conclusion

The major challenge in the review of literature in this work is the paucity of relevant literature on

the subject as a result of the unwillingness or lack of interest of Nigerian authors to write and

express their expert opinions on the armed activities, between government forces and the

NSAGs, in the north-east part of Nigeria particularly in the BAY (Borno, Adamawa and Yobe)

States. Most of the review is based on the perspectives of foreign authors especially from the

0 Josiah v. State (1985) 1 NWLR (Pt. 1) 125; Yusuf v. State (2011) 18 NWLR (Pt. 1279) 853 at 875 and 882.

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United States of America (US) and Canada. Unfortunate, the US does not accept the title of this

area of the law as IHL. She prefers the appellation “Law of Armed Conflict” or “Law of War.”

In addition, the US is not a party to AP II, which is the “best” 0 that IHL has offered, for the

regulation of NIAC and the protection of the victims. Furthermore, the US is not a party to the

Statute of the ICC 1998 but sits majestically as a permanent member of the United Nations

Security Council (UNSC) to refer cases to the ICC for investigation and prosecution. It is also

important to note that the US further destabilizes the smooth working of the ICC by capitalizing

on article 98 of the Statute of the ICC0 via entering into the so-called Bilateral Non-surrender

Treaty/Agreement with many countries, including Nigeria, for the non-arrest and non-surrender

of US citizens indicted by the ICC for prosecution by the ICC. It is, therefore, very difficult to

accept the perspectives of some of the authors from the US otherwise objectivity is most likely to

be dragged down the cliff. The US is not the best example to depend on for literature in the

regulation of NIAC for the protection of the victims though much can be learnt from her

experience, especially in military tactics, in the so-called US GWOT in Afghanistan and other

parts of the world. On the other hand, the US can be commended for her robust domestic

enforcement of the breaches of IHL by her service members both at home and abroad. The

review of the literature on the title became necessary in view of the quick fix recommended by

the former UN Secretary-General, the late Kofi A. Annan, on the subject of protection of the

victims of armed conflict.

Furthermore, there is so much literature on the insurgency and counter-insurgency in the north-

east part of Nigeria but not relevant from the perspective of IHL. The literature from the point of

0 The AP II has just twenty-eight articles for the regulation of NIAC and the protection of the victims thereof.0 This is what gave birth to the US American Service Members Protection (ASMP) Act 2002. The Act is

generally referred to as “The Hague Invasion Act.”

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view of the regulation of IHL in the north-east is, however, very inconsistent, legally incorrect

and a distortion of the law in armed conflict. This anomaly in literature is as a result of the

declaration of the armed conflict in the north-east as terrorism thereby making the government of

Nigeria to apply the concept of total war in the armed conflict in the north-east. There is urgent

need for experts in IHL in Nigeria to place the facts and the armed activities in the north-east in

their proper perspective within the regulatory scrutiny of IHL. Copying the US response to al

Qaeda’s attack by the government of Nigeria in the north-east is detrimental to the victims. Paust

states that the US response to al Qaeda by President Bush was unlawful.0 Nigeria should not

follow the US trajectory in her response to the insurgency in the north-east, at least, for the sake

of the victims of that armed conflict.

0 Jordan J. Paust, Beyond the Law: The Bush Administration’s Unlawful Response in the “War” on Terror (Oxford: Oxford University Press, 2007), 41.

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Section Four: General Conclusion

The major challenge in the regulation of the means and methods of warfare via IHL is the

problem of ignorance of this area of the law even among experts like legal practitioners, military

personnel and security personnel especially in Nigeria.

Many of the concepts in IHL are often confused with those in PIL and they generate a lot of

misconception thereby distorting the very aim of IHL. IHL and PIL share a lot in common but

each area should be assessed on its merits based on its registers and aims. In fact, for a better

understanding of IHL, experts must have a good working knowledge of the following areas of

General International Law: PIL; International Human Rights Law (IHRL); International Criminal

Law (ICL); International Environmental Law (IEL); Refugee and Internally Displaced Persons

Law; Law of Treaties; Customary International Law; and International Humanitarian Law itself.

These are the core areas of the law that lubricate the wheels of the regulation of the means and

methods of warfare for the protection of the victims of armed conflict.

In the aspect of theoretical framework, none of the theories is all-encompassing for the effective

regulation of the means and methods of warfare for the protection of the victims. That is the

rationale for our developing the Theory of Humanitarianism in Armed Conflict as our

contribution for the effective regulation of armed conflict for the protection of the victims.

Generalization of theories in armed conflict should be avoided.

Furthermore, there is anomaly in literature as a result of the declaration of the armed conflict in

the north-east as terrorism thereby making the government of Nigeria to apply the concept of

total war in the armed conflict in the north-east.

There is urgent need for experts in IHL in Nigeria to place the facts and the armed activities in

the north-east in their proper perspective within the regulatory scrutiny of IHL. Adopting the US

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response to al Qaeda’s attack by the government of Nigeria in the north-east is detrimental to the

victims of the armed conflict.

Furthermore, the Nigerian military should also step up its activities by involving the relevant

public and experts via conferences and seminars on its defence activities especially in the north-

east. Since the beginning of the armed conflict over a decade ago, it is only one relevant

conference that has been organized by the military on its activities in the north-east though the

proceedings are yet to be made available to the public.0

With the kind approval of my supervisors and the Post-Graduate Committee, in our next outing,

we shall be dealing with the legal framework for, and the challenges to, the regulation of the

means and methods of warfare for the protection of the victims with focus in the north-east part

of Nigeria.

0 National Defence and Security Summit, Abuja with the theme “Promoting Kinetic Operations as a Major Planck for Counter-Terrorism and Counter-Insurgency in Nigeria: Issues, Challenges and Prospects” held on Monday, the 22 March 2021. The conference was organized by the Defence Headquarters, under the leadership of Gen. Lucky Irabor, the Chief of Defence Staff (CDS).

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