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Published On: Sun, Apr 6th, 2014

Boko Haram, security agents and violation of humanitarian law (III)

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President Goodluck JonathanDEATH IN MILITARY CUSTODY CONTINUING

On 15 October 2013, Amnesty International revealed that more than 950 detainees had died in detention facilities run by the JTF in the first six months of 2013 alone.

Amnesty International has received credible evidence that detainees continue to die in military custody, especially in Giwa barracks. Even though the number of deaths per day has reduced as compared to the first six months of last year, according to hospital staff in Maiduguri, detainees continue to die on a weekly basis. Between January and March 2014, approximately 150 dead bodies were brought by the military to the State Specialist hospital mortuary. According to the descriptions from the hospital staff and the photos received by Amnesty International, none of the bodies had gunshot wounds:

On 15 January 2014, Amnesty International received information that fifteen (15) dead bodies were deposited by soldiers at the State Specialist Hospital mortuary in Maiduguri. In an interview with Amnesty International, a hospital employee said: “The soldiers came to the hospital with one Armour tank and one Toyota Hilux van. About seven soldiers. They ordered the mortuary attendants to off load the bodies from the van. I counted 15 bodies. They all looked thin and had burn scars. Some did not have clothes and they looked like they had died of starvation. They look similar to the other bodies usually brought from Giwa barracks.”

A senior military officer in the Nigerian army who spoke to Amnesty International on condition of anonymity confirmed: “The situation in the detention may have improved a bit, but has not completely changed. If anybody tells you that people have stopped dying in military detention they are lying. However, the scale at which it was happening last year has reduced.”

Many of the reported cases of deaths in custody have taken place in Giwa military barracks in Maiduguri. Amnesty International has documented the unlawful arrest and detention of hundreds of people by the JTF in response to the violence in some parts of north-eastern Nigeria. Many have been detained incommunicado for lengthy periods without charge or trial, without being brought before any judicial authority, without access to lawyers and without proper notification of family members.

In an interview with Amnesty International in February 2014, Zulaika Umar4 the wife of a detainee in Giwa barracks said that her husband was arrested by soldiers at his home on 1

May 2012, and has not been seen by anyone since. At the time of arrest, she was seven months pregnant. Now her child is over one year old. She said: “My child does not know who her father is. We don’t know whether he is dead or alive. The army has never allowed anyone to visit him.”

In December 2013, a 19 member Joint Investigations Team (JIT) set up by the former Chief of Defence Staff (CDS) to investigate conditions of detention in facilities run by the Nigerian military, submitted its report to the CDS and the National Security Adviser (NSA) recommending the release of more than 160 detainees and the prosecution of 500 detainees in military custody in the states of Adamawa, Borno and Yobe. However, at the time of writing, Amnesty International has received no information about the implementation of these two recommendations. The report has not been made public.

Since 2012, Amnesty International has repeatedly raised its concerns with the Nigeria government about the treatment of detainees in military custody in northern Nigeria, the conditions of detention, the lack of access to military detention facilities by lawyers and human rights monitors, and the flouting of the rule of law.

WAR CRIMES AND CRIMES AGAINST HUMANITY

In the case of a non-international armed conflict, the Rome Statute defines war crimes as serious violations of Article 3 common to the four Geneva Conventions (acts against people taking no active part in the hostilities, including violence to life and person, cruel treatment and torture) and other serious violations of the laws and customs of war (including, inter alia, making the civilian population or individual civilians, not taking a direct part in hostilities, the object of the attack, launching a disproportionate attack or an indiscriminate attack resulting in death or injury to civilians, committing sexual violence, and collective punishments).

Certain acts, if directed against a civilian population as part of a widespread or systematic attack, and as part of a state or organizational policy, amount to crimes against humanity. Such acts include, among others, murder, torture, and enforced disappearances.

All states have an obligation to investigate and, where enough admissible evidence is gathered, prosecute crimes against humanity and war crimes, as well as other crimes under international law such as torture, extrajudicial executions and enforced disappearances.

HUMANITARIAN CRISIS AND IMPACT OF THE CONFLICT ON CIVILIAN POPULATION

The ongoing fighting between Boko Haram and the Nigerian security forces has had damaging impact on the lives of millions of people across north-east Nigeria. The humanitarian situation in the region has reached unprecedented levels.

Hundreds of thousands of people have been forced to seek refuge in neighbouring countries and thousands more have been made internally displaced. According to the United Nations High Commission for Refugees (UNHCR) “…the crisis in north-eastern Nigeria, exacerbated by the declaration of the state of emergency in Borno, Yobe and Adamawa States on 14 May

2013 (extended for six months on 12 November 2013), more than 520,000 people, mainly women, children and elderly people have been forced to flee inside Nigeria or seek refuge in neighbouring countries (Niger, Cameroon and Chad).”

On Tuesday 26 March 2014, the Director-General of the Nigerian National Emergency Management Agency (NEMA) said more than 250, 000 people have been displaced as a result of the fighting in north-eastern Nigeria.

NIGERIAN GOVERNMENT’S FAILURES TO ADDRESS IMPUNITY

Amnesty International has repeatedly urged the authorities to conduct thorough and independent investigations into the alleged human rights violations and abuses with a view to bringing suspected perpetrators to justice in a fair trial.

Over the years, both State and Federal government have established inquiries into acts of violence including communal and sectarian violence in Nigeria’s middlebelt, unlawful killings, poor conditions in detentions and other instances of violations and abuses, but their findings and recommendations have mostly not been made public. Criminal investigations have been inadequate, with serious doubts over the quality of evidence against those arrested.

In 2013, the committee set up by President Goodluck Jonathan to investigate and explore options for bringing an end to the on-going fighting in northern Nigeria submitted its report to the Presidency. The findings of the Committee’s report have not been made public.

Following previous incidents of political, communal and sectarian violence, scores of people were rounded up by the police and security forces but few have been successfully prosecuted.

According to information received by Amnesty International, previous commissions of inquiry into allegations of human rights abuses have named suspected perpetrators, yet very few people are aware of the content of these reports. In many cases, no criminal investigation is initiated on suspected perpetrators. Victims of violence have not received redress or reparation, including compensation, leaving people destitute and further stoking feelings of resentment and desperation. Victims and their families have a right to know the truth about the abuse of their rights including the identities of individuals or groups responsible for carrying out or ordering violations.

As such, Amnesty International is urging the international community, in collaboration with credible national civil society organisations and the National Human Rights Commission of Nigeria, to set up an independent and international commission of enquiry with a mandate to investigate grave human rights abuses and violations that may constitute war crimes and crimes against humanity committed in north-eastern Nigeria.

NIGERIA’S OBLIGATIONS UNDER INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW

Nigeria is a party to major regional and international human rights treaties. Of particular relevance to this briefing are the right to life, the right to liberty and security of person, the right to a fair trial, and the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment, which are recognized and protected under the African Charter on Human and Peoples’ Rights, which Nigeria ratified in June 1983.6

The same rights are recognized and protected under the International Covenant on Civil and Political Rights (ICCPR), to which Nigeria acceded in October 1993. These rights must be respected and ensured even “in time of public emergency which threatens the life of the nation.” The International Court of Justice and the UN Human Rights Committee have affirmed that international human rights law applies in time of armed conflict as well as peacetime; some (but not all) rights may be modified in their application, or “derogated from” or limited in situations of armed conflict, but only to the extent strictly required by the exigencies of the particular situation and without discrimination.7

The ICCPR also requires that all allegations of human rights violations are promptly, independently, impartially and thoroughly investigated.

Nigeria also has specific legal and human rights mechanisms that seek to provide protection for victims against human rights violations by the state, as well as abuses by non-state actors.

The arrest and detention of people by the JTF, police and State Security Services (SSS) in Maiduguri and other parts of the country is often conducted outside the provisions of both Nigerian law and international human rights law and standards.

INTERNATIONAL HUMANITARIAN LAW

International Humanitarian Law (IHL), also known as the laws of war, contains the rules and principles that seek to protect primarily those who are not participating in hostilities, notably civilians, but also certain combatants, including those who are wounded or captured. It sets out standards of humane conduct and limits the means and methods of conducting military operations. Its central purpose is to limit, to the extent feasible, human suffering in times of armed conflict.

Nigeria is a state party to the four Geneva Conventions of 1949 and their two Additional Protocols of 1977, the principal IHL instruments. Many of the specific rules included in these treaties, and all of those set out below, in any event also form part of customary international humanitarian law and are thus binding on all parties to any conflict, including non-state armed groups.

8 Violations of many of these rules may amount to war crimes.

A fundamental rule of international humanitarian law is that Parties to any conflict must at all times “distinguish between civilians and combatants”, especially in that “attacks may only be directed against combatants” and “must not be directed against civilians.”9 A similar rule requires parties to distinguish between “civilian objects” and “military objectives”.

These rules are part of the fundamental principle of “distinction”.

For the purposes of distinction, anyone who is not a member of the armed forces of a party to the conflict is a civilian, and the civilian population comprises all persons who are not combatants.10 Civilians are protected against attack unless and for such time as they take a direct part in hostilities.11

Civilian objects are all objects (that is, buildings, structures, places, and other physical property or environments) which are not “military objectives”, and military objectives are “limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or

neutralisation, in the circumstances ruling at the time, offers a definite military advantage.”12

Civilian objects are protected against attack, unless and for such time as they become military objectives because all of the criteria for a military objective just described become temporarily fulfilled.13 In cases of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling, or a school, is being used for military purposes, it is to be presumed not to be so used.14

Intentionally directing attacks against civilians not taking direct part in hostilities, or against civilian objects (in the case of non-international conflicts, medical, religious or cultural objects in particular), is a war crime.15 The principle of distinction also includes a specific rule that “acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”16

The corollary of the rule of distinction is that “indiscriminate attacks are prohibited”.17

Indiscriminate attacks are those that are of a nature to strike military objectives and civilians or civilian objects without distinction, either because the attack is not directed at a specific military objective, or because it employs a method or means of combat that cannot be directed at a specific military objective or has effects that cannot be limited as required by international humanitarian law.18

International humanitarian law also prohibits disproportionate attacks, which are those “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”19 Intentionally launching an indiscriminate attack resulting in death or injury to civilians, or a disproportionate attack (that is, knowing that the attack will cause excessive incidental civilian loss, injury or damage) constitute war crimes.20

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