LEAHY LAW AND AI REPORT ON NIGERIA: DISTICTION AND PROPORTIONALITY IN THE ANTI TERROR OPERATION

Author: Elias Offor

A horrendous crime against humanity being committed daily by the Boko Haram terror group where casualty figures are quoted to near accuracy- a replication of what used to happen in distant lands that looked peculiar to a particular people and sounded like mere myths to the rest of us in a way that the mind is less troubled- is now a practical reality in our midst. Yet the horror and mind-bugling impact continues to recede to the extent, a mere tale of woe which in Shakespeare terms, are all sound and fury signifying nothing.  

The quest for assistance in terms of arms and military personnel from neighboring countries has been a recurrent practice among the leaders and decision makers in Nigeria. On the centre point of the agenda in the recent trip to the USA by President Muhammad Buhari was the issue of the Boko Haram group and the possibility of assistance by the powerful nation which assistance was apparently marred by the so called Leahy Law. The noose was tightened by the Transparency International’s report on human right violations by the Nigeria Military in their fight against Boko Haram.[i] Leahy Law is an US human rights law that prohibits military assistance to foreign military units that violate human rights in their military operations.[ii] Corrective measures by the implicated states in terms of prosecuting the responsible persons is said to exonerate the affected state.[iii]

The Nigerian former Chief of Defence Staff, Alex Badeh, in an answer to a question posed by a group regarding the report by Transparency International stated that infractions in the venues of war are normal.[iv] This shows lack of understanding of the laws of war and as such did not take into consideration the good image the military and the country ought to present to the international community in order to attract more supports in the war against terrorism, more so, now that the terror group’s apparent alignment with other more sophisticated organisations is getting more pronounced.[v] Perhaps the former CDS did not realize that the era of Cicero’s clash of arms putting law to silence has been relegated to the dustbin of history. One would expect answers that outlined legal justifications for the said infractions considering the implications of such allegations.

Of note is the fact that anti terrorism war is the worst of the wars to fight and worse still when the motives of the terrorists are sullen in the case of Nigeria, to say the least. It is also clear that men in uniform have just a strategic role in the fight against those that are “invisible” and things will surely go wrong in a breathless haste to achieve a result, whatever the rule of engagement says. Mounting roadblocks and brandishing rifles is clearly out of it. Giving a three month ultimatum to the service chiefs to end the terror activities is a war strategy when critically examined, and announcing same to the public complicates such strategy. In anti terror operation of this sort, revealing a strategy to the enemy could be a tactical lapse and if such be a mere propaganda, it is obviously at the expense of the lives set to protect and badly channeled, considering the psyche of the terrorists.  Intelligence and forensics has been a tactic used by countries hit by this evil and a lot of investment must go into this to achieve a meaningful result.

Jus In Bello, a Latin phrase meaning the laws of war shows that there are normative guidelines on the conduct of hostilities, be it civil war, world war, or the anti terror war which Nigeria is presently grappling with, whether the dissident groups are keeping to same rules or in absolute violation of them.[vi] And now that it has been widely accepted in different quarters that Nigeria is at war with Boko Haram, a non international armed conflict at that,[vii] International Humanitarian Law reasonably holds sway. And International Humanitarian Law principles of Distinction and Proportionality among other issues are very critical in a war of this sort. These twin principles should however, be scrutinized by any group saddled with the responsibility of investing allegations of human right abuse.

On Distinction, the Rome Statute states that “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” constitutes a war crime in non-international armed conflicts.[viii] Provocative attacks or reprisals, which become widely indiscriminate in an attempt to douse a tension created after a particular terrorist attack, are highly suspect in anti terror operations. In such circumstances, soldiers are always overzealous and most often direct attacks on civilian population after a non thorough intelligence report and tactics that factor in degree of collateral damage expected.

Differentiating the civilians from the terrorists and those taking part in hostilities is key under the international law of armed conflict. Any civilian that attacks the soldiers is directly taking part in hostilities and stripped of the protection accorded him by the law of armed conflict.[ix] If such civilian delivers to or receives ammunitions, supplies food, money or fuel, gathers information and carryout other supports to the Boko Haram groups, he is taking indirect part in hostilities and may not necessarily be stripped of the protection accorded civilians under the International Humanitarian Law.[x] However, complicating this duty of distinction, different perfidious activities have been employed by the Boko Haram terrorists. There are, most of the time, no insignia identifying a person as a member of Boko Haram and neither do the members often carry their arms in the open to show that they are combatants. These have greatly aided their maneuvers against the soldiers who are often taken unawares in suicide bombing and heavy artillery operations resulting in casualties of great magnitude. These ruthless tactics have never justified an indiscriminate attack by the soldiers that does not make use of adequate intelligence information about the target, including analysis of anticipated civilian casualty, ability to measure the degree of force to be applied to ensure that necessary force is only used.

Both Geneva Convention and the Rome Statute bemoan attacks that do not put proportionality into consideration. According to the Rome Status, the following constitutes a war crime in international armed conflicts: Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.[xi] From this provision, it is clear that if such attack on a target does not cause excessive loss of life or injury or both to the civilian objects in relation to the concrete and direct military advantage sought, it will be reasonably justified.[xii] Apart from some conscious acts that could be avoided in the course of warfare, collateral damage in engaging a combatant target may not be avoided. In this case, it is the duty of the soldiers to rationalize when a particular attack is reasonably justifiable in accordance with law of armed conflict.

The issue of the use of civilian shield otherwise known as counter targeting has received wide attention in this regard. The question as to whether the use of civilian shield by the Boko Haram group relieves the Nigerian soldiers from considering the shield in the proportionality tests depends on whether the shields are voluntary or involuntary.[xiii] While it is a herculean task and unrealistically so in making such calculation in ideal war situation, it is critically germane that most of the civilian shields to Boko Haram fighters are involuntary in which case the civilians retain their protected status warranting that this be factored in the proportionality test and should cause a change of tactics.

It is of utmost importance that International Humanitarian Law be obeyed however the war is being prosecuted whether the war is labeled Guerilla warfare, asymmetrical, total war, conventional war or war of national liberation. It is the duty of the commanding officer to ensure compliance with the International Humanitarian law by the forces under his command. In the case of Yamashita,[xiv] the US Supreme Court found General Yamashita guilty of war crime for failing to control the troops under his command to prevent the atrocities committed by them in the Japanese occupied territory during the World War II. A rendition of this principle has been given effect in International Criminal Law especially the Statute of International Criminal Court and International Criminal Tribunal for the Former Yugoslavia. Giving unlawful command by a commanding officer equally exposes the soldiers who obey the order to prosecution for various offences under the international Humanitarian Law as a plea of superior orders shall not be a defence if the subordinate realized or should have realized that the action ordered was a crime. This point was established in Nuremberg and Tokyo Trials and applied in numerous other war crimes trials after the World War II.[xv]

It will not be out of place to ensure that soldiers are made to be more aware of legal framework guiding the conduct of hostilities. The mastery of such laws in the most practical ways will aid compliance. To do this, the International Humanitarian Law experts will not be directly employed but ex-military personnel and veterans are trained by the experts to inculcate the knowledge in a more practical way as the soldiers often regard such teaching as mere boring theory when though directly by the legal experts and regard same as not applicable in real war situation. This has been the mistake often repeated by the military academies and war colleges.

In conclusion, the AI report on human right abuse by the soldiers in their war against Boko Haram and the US Foreign Assistance Act otherwise known as the Leahy Law brought out sensitive issues of International Humanitarian Law which adherence by the combatant is sacrosanct despite the resentment shown to the reports by Nigerians. As the President of Nigeria Muhammadu Buhari has set up a committee to investigate the said allegations, such committee should do a thorough job making sure that International Humanitarian Law Issues of Distinction and Proportionality among others, are scrutinized. This will clear the image of the military and engender better cooperation with the outside world in the anti terror campaign. Marrying tactical military strategies with salient issues of International Humanitarian Law in the six year war against Boko Haram is crucial. And a better inculcation of such legal issues in the soldiers must be ensured in the military academies and other relevant institutions as this has always been down plaid in a breathless haste to raise a “strong army”.

[i] Transparency International has accused the Nigerian Military of gross violation against human right in a 17 paragraph report published in http://www.amnestyusa.org/news/news-item/nigeria-war-crimes-and-crimes-against-humanity-as-violence-escalates-in-north-east.

[ii] Section 620 M of the US Foreign Assistance Act of 1961, as amended (FAA).

[iii] Ibid Section 620M “Limitation on Assistance to Security Forces”.

[iv] Reported in Daily Trust 17th June, 2015.

[v] See The Punch July 8, 2015.

[vi] Jasmine Moussa: Can jus ad bellum override jus in bello? Reaffirming the separation of the two bodies of law, International Review of the Red Cross, Volume 90 No 872, December 2008.

[vii] Nigeria: War crimes and crimes against humanity as violence escalates in north-east, Amnesty International March 28, 2014

[viii] Article 8(2)(e)(i) of the Statute of the International Criminal Court.

[ix] A precise definition of the term “direct participation in hostilities” does not exist. The Inter-American Commission on Human Rights has stated that the term “direct participation in hostilities” is generally understood to mean “acts which, by their nature or purpose, are intended to cause actual harm to enemy personnel and matériel” The military manuals of Ecuador and the United States give several examples of acts constituting direct participation in hostilities, such as serving as guards, intelligence agents or lookouts on behalf of military forces. The Report on the Practice of the Philippines similarly considers that civilians acting as spies, couriers or lookouts lose their protection against attack. See ICRC on Customary IHL Rule 6, Civilian Loss of Protection from Attack.

[x] According to a report on human rights in Colombia, the Inter-American Commission on Human Rights civilians whose activities merely support the adverse party’s war or military effort or otherwise only indirectly participate in hostilities cannot on these grounds alone be considered combatants. This is because indirect participation, such as selling goods to one or more of the armed parties, expressing sympathy for the cause of one of the parties or, even more clearly, failing to act to prevent an incursion by one of the armed parties, does not involve acts of violence which pose an immediate threat of actual harm to the adverse party. See also Reports on the practice of Rwanda.

[xi] Article 8(2)(b)(iv) of the Statute of the International Criminal Court 1988.

[xii] International Humanitarian Law and Advisory Opinion of International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons. International Review of the Red Cross No 316 by Lousie Doswald- Beck

[xiii]ICRC Rule 97 on Human Shield, Customary IHL Database  https://www.icrc.org/customary-ihl/eng/docs/citation

[xiv] In Re Yamashita, 327 US 1 (1946)

[xv] Military Self-Interest in Accountability for Core International Crimes Morten Bergsmo and SONG Tianying (editors)

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