I have already, in a previous article, indicated that I believe Nigeria is at war. A report by the International Criminal Court (ICC) recently concurred by concluding that the fight between the Nigerian government forces and Boko Haram appears to qualify as a non-international armed conflict (NIAC). Senior officials of the Nigerian government, however, declared in no uncertain terms that it is nothing of the sort. In light of these developments, I feel that I should touch a bit more on this issue.
First, we may need to clarify a couple of points. One of the issues with international laws, treaties and the like is that their language and terminology need to be as unambiguous as possible. Because for a host of different countries to agree to be held by certain rules, it must be abundantly clear to each what these rules are, how they are to be enforced, and the like. However, as is human nature, certain terms come to be known to us as colloquialisms for other things. For instance, NIAC is generally understood to be a metaphor for civil war.
Another point we need to be clear about is why this even matters at all. I imagine a number of people (especially those in the red zones, so to speak) will hardly be concerned with terminology, as long as the mass murder and destruction can be stopped. Unfortunately government, rightly or otherwise, has got to be concerned with how the conflict is classified, for several reasons. One of these reasons is that certain classifications may grant particular rights to their adversary, in Nigeria’s case Boko Haram. As aptly put by the International Committee of the Red Cross’ Kathleen Lawand in this intervie;
“The existence of a non-international armed conflict triggers the application of international humanitarian law (IHL), also known as the law of armed conflict, which sets limits on how the parties may conduct hostilities and protects all persons affected by the conflict. IHL imposes obligations on both sides of the conflict equally, though without conferring any legal status on the armed opposition groups involved.”
So obviously, classification matters. Very much so.
According to the report from the Office of the Prosecutor (OTP) of the ICC titled “Report on Preliminary Examination Activities 2013”, which focused on conflicts, genocide and crimes against humanity in 10 countries, including Nigeria;
“In view of the above, the required level of intensity and the level of organization of parties to the conflict necessary for the violence to be qualified as an armed conflict of non-international character appear to have been met. The Office has therefore determined that since at least May 2013 allegations of crimes occurring in the context of the armed violence between Boko Haram and Nigerian security forces should be considered within the scope of article 8(2)(c) and (e) of the Statute.”
By “the above”, the report refers to previous observations it made regarding Boko Haram’s structure and organization, as well as whether its activities constitute crimes against humanity and the Nigerian government’s response. The last sentence of the quoted paragraph is also of some importance because it essentially recommends that allegations of crimes by either Boko Haram or the Nigerian security forces should be considered under article 8(2)(c) and (e) of the Statute. The statute it refers to here is the Rome Statute of the International Criminal Court in which it attempts to define war crimes in the context of non-international conflict. This is something that could prove troublesome, particularly to the Nigerian government, because it means that actions taken in this conflict can possibly be considered as war crimes, and thus people can be held accountable by the ICC. I think it is fair to say that Boko Haram would presumably not mind too much, especially as the classification affords some protection to any of its members who happen to be arrested, as any inhumane treatment, torture or summary execution without trial by the Nigerian forces would be in direct violation of the statute.
It may be worth noting as well that, within the same statute, it says that it
“applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.”
Essentially, this helps us to further define what a NIAC is. What we can gather from the above statement is that the conflict cannot be an isolated or sporadic act of violence, but rather an ongoing battle for supremacy within a country. I think, considering that state of emergencies have had to be declared twice (and in growing scope), that the attacks of Boko Haram here in Nigeria cannot be termed as either isolated or sporadic. Another item worth noting is that the statement indicates that the categorization (and therefore the IHL application) can be dated to at least May 2013, which is when the last state of emergency was declared. It appears, then, that the deployment of soldiers is understood to be an escalation of the conflict as it already stood, which does make sense.
Speaking of responses by the Nigerian government, in his rebuttal, the Minister of Information and supervising Minister of Defence, Mr Labaran Maku, made the following statement:
“We are facing an attack on our country by terrorists. It is amazing that a terror attack on our nation is described as a civil war, while when the terrorists attacked the United States on September 9, 2001, it wasn’t a civil war but an attack on a peaceful nation. Terrorism and insurgency is not a civil war, if it is a civil war, which part of the country is fighting the other… But in this war, it is a war of terrorists against all Nigerians. These terrorists have attacked Christians, Muslims, they have attacked foreigners who passed through Nigeria. In my opinion, it is a group of terrorists with an international network that is deploying the network to attack innocent people across different countries.”
So, how would you classify this conflict? Some of their activities are purely terrorist in nature, but yet some others closely resemble a guerrilla insurgency intended to take over control. Their stated intention of turning Nigeria into a purely Islamic country also lies on the border between terrorist objectives and the objectives of a revolutionary war belligerent. There are already Islamic states in the North where Muslims are the majority (12 at last count). Sharia law in other states? It is a goal that probably sounds achievable and laudable to their members, but is sufficiently ludicrous to the rest of the country as to be quite impossible. Thus it gives its members a sense of fighting a revolutionary war of sorts, but is one of those impossible terrorist demands that nobody would have an idea how to implement, even if they wanted to.
However, the assertion by government that the threat is purely a terrorist one appears to ignore some key points of the conflict.
The classic terrorist methodology is to blend in with the local population, carry out a quick attack (typically on a ‘soft’ target) and then vanish. It is rare, to say the least, for a group numbering between 200-500 (depending on which reports you choose) to conduct a coordinated attack on military installations. According to some news reports, the attackers destroyed aircraft (both fixed-wing and helicopters) at the NAF base and had to be repelled by air support from Yola*. Reading that in light of the recent reports by the military of how they have been bombarding Boko Haram hideouts from the air, leads one to conclude that the destruction of the aircraft was likely a key target of the attacks. If that premise holds true, then it can be argued that the air raids which the military has been touting as successful are probably so. Allow me to take you on one more deduction from here. If the military has been conducting air bombardments of Boko Haram locations, presumably outside of villages, towns and other civilian populated areas, then it can only mean that the group have what may essentially be their version of army barracks. Thus they probably have more fighters than most of us earlier believed. And this from a group that was previously hiding among the population? It can only mean there has been an escalation in their ability to pursue this fight.
The simple fact is, terrorists do not have barracks. If you can bomb a base from the air, then you are not fighting a war against terror, but rather a war against a rebel group. The argument that American forces bombed terrorists in Afghanistan does not compare here, either, because al qaeda were terrorists outside of Afghanistan, but within the country, to the Taliban, they were not. Please remember that before invading Afghanistan, the United States asked the Taliban to surrender al qaeda members to them. It was based on the Taliban’s refusal to do so that the invasion was authorized.
Statements by the Minister of Information, Mr Labaran Maku, are not quite as clear as they could have been. His comparing the latest Boko Haram attacks to the September 11 2001 attackon the United States does not hold water. There are many ways to argue against that part of his statement, but the easiest would likely be classification of the target as well as tactics used. Hundreds of armed men in trucks and on motorcycles attacking military bases is an act of war anyway you look at it. Crashing an airliner into a purely civilian building is a cowardly terrorist act. The two are incomparable.
Anyway, I believe this is one of those cases where the definition of NIAC ought to be taken literally, rather than as a colloquialism for ‘civil war’. Because while what we are facing is not a civil war, it is not a simple case of terrorism either. But it is a war. One key issue here is that the Geneva Convention does not, in fact, attempt to define what a civil war is. It merely makes the distinction between wars of an international nature and wars which contain themselves within the boundary of a single nation. This is obviously a very broad categorization and as such can lead to varied interpretations. The Convention apparently does not even mention the term, so let’s please stop putting words in people’s mouths.
*The reports on destroyed aircraft vary from one newspaper to the next. However, I decided to go along with a report which freely admitted that reporters were not allowed access to the NAF base, something no other report I’ve seen did, and they also claimed to have gotten the information from an inside source who declined to be named.