After the Second World War, over 200 conflicts have taken place across the globe which has resulted in about 200 million casualties and which most of whom were civilians. Almost no region of the globe has been spared the human and material devastation resulting from violations of International Humanitarian Law (IHL) committed by state and non - state actors. Parties to a conflict are required to comply with the provisions of IHL and to ensure that the members of its armed forces and other persons or groups acting under its instructions or control also comply. In this respect, IHL makes no distinction between the obligations of states and those of the armed groups concerned. Moreover, Article 3 Common to the Geneva Conventions, which reflects the minimum rules applicable to all armed conflicts, stipulates specifically that the parties to the conflict, without distinction, must comply with certain rules set forth in that Article.
Three factors are identiable with respect to the capacity of non-state armed groups to comply with IHL. Firstly, non-state armed groups in conflicts of a non-international character are almost in an asymmetrical relationship to the strength and resources of the governments that they oppose. This asymmetry puts them at a military disadvantage that precludes them from fighting a significantly more powerful opponent with the same limitations on means and methods of Warfare. This asymmetry compels them to resort to unconventional and unlawful means and methods of warfare as the only way to redress the military and economic imbalance they face. Without sufficient incentives non-state armed groups comply with IHL, the asymmetry of power necessarily leads to non-compliance.
Secondly, unlike conventional armies, non-state armed groups, operate as militias or bands with little or no military training, little or no command and control structure, and little or no internal discipline or other system of social control likely to enhance compliance. The third factor is that non-state armed groups have no expectation of accountability for their non-compliance.
Nevertheless, irrespective of the foregoing factors, sanction can affect the pattern of behaviour of armed groups towards compliance with the principles or rules of IHL. The violations of these principles or rules call for appropriate action which may include administrative, disciplinary or punitive measures, so as to put an end to the violation and prevent repetition. In the case of several of these measures, the initiative and responsibility lie with armed groups themselves. Others fall within the purview of entities that are authorized and competent to take such action such as judicial bodies, although it must be borne in mind that they may be powerless when faced with armed groups which claim control of their own affairs, hence the need to explore to what extent these armed groups are in a position to meet the relevant obligation imposed by IHL, including the measures to be taken in the event of violations. In this discourse, we must identify armed groups that have the features that are necessary to command and effectuate compliance with IHL in which the fear of sanction can be deterrence and thereof prevent violations from being committed or repeated.
States typically consider non-state armed groups as illegitimate combatants or ‘terrorists’ who are deprived of any legitimacy. Their actions are outlawed and harshly punished under the domestic laws of the state. If this position is taken at face value, however, this would mean that non-state armed groups are also not bound by IHL. In law, without personality, one can impossibly have legal obligations. The conventions are rather unequivocal as to their binding nature for ‘any’ party to a conflict. There are indeed good legal policy reasons for binding non-state armed groups to IHL. As domestic criminal law emanates from the very government that they are fighting against, it is not very likely to deter them. IHL civilizes the conduct of non-state armed groups as they are bound by this body of law.
Pursuant to the above narrative, the armed conflict in the Northeast Nigeria between the Nigerian Federal Forces and the Boko Haram Sect, all the trappings of IHL must be observed, as of necessity. Boko Haram, as the non-state armed group is obligated to respect and comply with IHL. Nevertheless, the statement of fact as it relates to compliance by Boko Haram of the rules of IHL is a far cry. This work shall consider generally the notion of non-state armed groups and their IHL compliance character and finally situating the discourse on the activities of the non-state armed group (Boko Haram) in the Northeast Nigeria in relation to observance of the principles of IHL in conduct of its military action.
Meaning of Non-State Armed Group
The terminology surrounding a definition of a term like non-state armed group is controversial and extremely politically-oriented. The sheer number of active non-state armed groups in the contemporary conflicts makes a clear and useful definition as the groups differ widely in motives, goal, size, structure, behaviours and resources. However, non -state armed groups can be described as groups that are armed and use force to achieve their objectives and not under state control. The highly political nature surrounding non-state armed groups makes it very difficult and complicated for the formal state armed groups to engage the former because it might give them formal recognition and legitimization. It has been proven by concrete experiences that the strategies such as carrots and sticks are insufficient and less effective. Again, concretely for both the states and the non-state armed groups, the engagement can be mutually advantageous and disadvantageous. The paramount consideration of the state in engaging non-state armed groups is not to have belligerent status.
The term, non-state armed group is applied to non-governmental groups who directly or indirectly engage in support of non-governmental combatants in non-international and purely internal conflicts. These groups take a variety of forms, including:
Regularly constituted groups of combatants with a military command structure and a political structure;
Non-regularly constituted groups of combatants with or without a command structure and with or without a political hierarchical structure;
Spontaneously gathered groups who engage in combat or who engage in sporadic acts of collective violence with or without a command structure and with or without political leadership;
Mercenaries acting as an autonomous group or as part of other groups of combatants; and
Expatriate volunteers who engage for a period of time in combat or in support of combat operations, either as separate units or as part of duly constituted or ad hoc units.
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