About the author(s):
Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.
As the increasingly horrifying tit-for-tat of violence between Boko Haram and Nigerian security forces continues to escalate, one cannot help but wonder whether the situation in northern Nigeria has now reached the threshold of a non-international armed conflict. A recent report from the Office of the Prosecutor of the ICC finds that it does but the Nigerian Minister of Information seems to be insisting that it does not.
While in November 2012, I argued on this blog that the violence between Boko Haram and the Nigerian government did not reach the threshold of a non-international armed conflict, the recent pattern of violence in Nigeria indicates that the ICC’s OTP might now be right.
ICC OTP states there is a non-international armed conflict
In its 2013 Report on Preliminary Examination Activities published last week, the ICC’s OTP states that, in its opinion, the ongoing confrontations between Nigerian security forces and Boko Haram has now reached the threshold of a non-international armed conflict.
The OTP’s conclusion in this regard can be inferred by its conclusion 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”
Article 8(2)(c) and (e) of the Rome Statute both refer to ‘war crimes’ committed within the context of a non-international armed conflict.
The OTP’s conclusion that a non-international armed conflict exists between Boko Haram and the Nigerian security forces is based on its examination of whether the two contextual requirements for a non-international armed conflict have been met: (i) the intensity of the hostilities and (ii) the organisation of Boko Haram. In considering these requirements, the OTP has apparently analysed a set of criteria that broadly reflects those set out by the Appeal Chamber in the Tadic Jurisdiction Decision as elaborated by subsequent jurisprudence, in particular the Trial Chamber in the Boskoski Trial Judgment (para 177-206 of the Judgement) (see para 214-218 of the OTP Report).
The OTP’s designation of alleged crimes as ‘war crimes’ is a departure from its earlier reports in which it said that the violence in Nigeria probably did not reach the threshold of a non-international armed conflict (see here and here).
Nigeria’s states that there is no armed conflict
On 4 December 2013, Nigerian officials dismissed the OTP’s conclusion and stated that what is taking place in Nigeria should be seen as ‘terrorism’, rather than a ‘civil war’. Mr Labaran Maku, the Minister of Information and supervising Minister of Defence stated in this regard:-
“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”.
It is interesting that the terms in which Mr Maku talks about the situation in the north of the country seem to mark a departure from the way in which the Nigerian government has previously described the violence between Boko Haram militants and the Nigerian security forces. In April 2012, the Chief of Army Staff said that the military was fighting a ‘war’ against Boko Haram. In May 2012, President Goodluck Jonathan said:-
“What we are facing is not just militancy or criminality, but a rebellion and insurgency by terrorist groups which pose a very serious threat to national unity and territorial integrity.”
The fact that the Nigerian government considered itself to be in an armed conflict with Boko Haram seemed also to be confirmed by its increasingly aggressive military response to the crisis. In May 2012, the government ordered a massive military deployment to Borno, Yobo and Adamawa States. It subjected Boko Haram camps to aerial bombardment and arrested so-called Islamic militants in their hundreds. According to Amnesty International, over 950 people have died in military custody in the first six months of 2013 alone. The fact that Nigerian military saw the violence between the security forces and Boko Haram to be an ‘armed conflict’ is also confirmed by journalists on the ground reporting that Joint Task Force Members frequently described the situation in Borno state as a ‘war’, ‘guerrilla war’, ‘warzone’. See here for a blog post on Lawfare concluding that that the Nigerian government considered itself to be in an armed conflict with Boko Haram and here for my extended blog post analysing its possible motivations in this regard.
The reasons for the Nigerian government’s apparent change of stance – if there has been one – can only be guessed. It may feel that if the situation in the north of the country is widely acknowledged by the international community to be an armed conflict, the situation will face increasing international scrutiny and the military will be less free to choose how it takes action against the militant group. It may also be concerned that if it acknowledges that the violence has escalated into a non-international armed conflict, it will lose face at home and abroad. The recent attack on the Maiduguri airport last week was an embarrassing setback for the government which has repeatedly claimed that it is winning the fight against Boko Haram (see here). In addition, there is no doubt that President Goodluck Jonathan will likely be wanting to downplay the strength of Boko Haram in the run up to elections in 2015.
But a government’s own determination of the situation is of minimal relevance in a legal determination of whether a situation has reached the threshold of an armed conflict (see para 185 and 191 of the Boskoski TJ). Instead, a careful and objective analysis of the violence and armed group must take place, taking into account multiple factors relating to the situation’s intensity, protractedness and the organisation of the armed group in question.
Is Nigeria now in a non-international armed conflict?
While the OTP provides details of the indicators it has employed in its analysis of the confrontations between the Nigerian security services and Boko Haram – broadly those listed in the Boskoski Trial Judgement – it has not provided many details of the substance of its analysis itself. Although task of conducting such analysis is much too great for a blog post, it is right to point out that the situation in the north of the Nigeria is clearly increasingly dire. Recent estimates suggest that over 4,000 people have now been killed in the violence between the security forces and Boko Haram since 2009. In June 2013, UNHCR estimated that over 6,000 people had fled to neighbouring Cameroon and Niger since the government ramped up its military operations in the second half of this year.
In April 2013, up to 180 people were reported killed in the town of Baga during a military operation and satellite imagery shows that a large percentage of the town was destroyed. In September 2013, 150 Boko Haram militants were allegedly killed after the Nigerian military attacked what a militant camp. A week later, Boko Haram was reported to have killed over 150 people in two roadside attacks near the village of Benisheik. And a week later again, Boko Haram allegedly killed over 50 people in a brutal attack on an agricultural college. Now, in the wake of the Maiduguri airport attack on 2nd December 2013 more fighter jets have apparently been deployed to Borno State. And as the tit for tat violence between the security services and Boko Haram becomes more deadly, it increasingly seems as if the ICC’s OTP might be right.