Investigating Transparency International’s allegations against Nigerian soldiers

A statement that was made by the Chief of Defence Staff that infractions in the venues of war are normal in answer to questions posed by a group regarding a recent report by the Transparency International on violations recorded in the said war against Boko Haram terrorists, reported in Daily Trust June 17, 2015, 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 especially now that the terror group’s apparent alignment with other more sophisticated terror organizations is getting more pronounced. One would expect answers that outlined legal justifications for the said infractions considering the modes of operation being used and atrocities already committed by the Boko Haram terrorists.

Other Nigerians have also reacted to the report by AI in different ways. It was said that war is no tea party, that Nigerian soldiers are trained mainly in conventional warfare rather than guerrilla warfare- the Boko Haram type where all sort of perfidious tactics are employed by the terrorists. It has equally been said that the stronger countries have committed far more atrocities in the theatres of war and that the AI report is propagandist and aimed at moralizing the terrorists and demoralizing the military. Also that same AI condemned the killing of the founder of the Boko Haram sect without condemning the untold atrocities committed by the group. These reactions are quite expected especially with the horrendous terror of unimaginable magnitude unleashed on innocent Nigerians by this group. But does this justify the violations of some inherent rules of war (if there were such violations) especially considering the protection accorded to innocent civilians by law? Little wonder the president has set up a committee to investigate the embattled AI’s allegations to provide a balanced and justifiable viewpoint.

To do a neat job of international standard, the committee saddled with the responsibility of investigating the AI’s report should check mainly the International Humanitarian Law principles of Distinction and Proportionality. I refuse to comment on issues of torture and extrajudicial execution in order not to module up the context of this treatise.

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. 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, International Humanitarian Law reasonably holds sway.

On Distinction, Article 8(2)(e)(i) of the Statute of the International Criminal Court 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.
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. This is one area that has to be strictly scrutinized. Same with directing an air campaign towards a civilian settlement after a non-thorough intelligence report and tactics that factor in degree of collateral damage expected.

Distinguishing 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, delivers to or receives ammunitions, supplies food, money or fuel, gathers information and carryout other supports for the Boko Haram groups is taking part in hostilities and therefore stripped of the protection accorded civilians under the International Humanitarian Law. However, the degree of duty put on the Nigerian soldiers by the law has been apparently whittled down by different perfidious activities normally 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. There are also reported cases of the Boko Haram making use of civilian shields in combats with the Nigerian soldiers. This has 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. Yet it still behooves the soldiers to factor in the degree of collateral damage in line with the dictates of the international law when engaging the Boko Haram targets.

Both Geneva Convention and the Rome Statute of the ICC bemoan attacks that do not put proportionality into consideration. According to Article 8(2)(b)(iv) of the 1998 ICC Statute, 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.

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.

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. 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.