Legal Implication Of Armed Conflicts In Nigeria By Nwokeke Chidera

Armed conflict is the intentional use of illegitimate force
(actual or threatened) with arms or explosives, against a person,
group, community or state, which undermines people- centred
security and/or sustainable development.

International Committee of the Red
Cross defines armed conflict as protracted armed
confrontations occurring between governmental armed forces and the
forces of one or more armed groups, or between such groups arising
on the territory of a State (party to the Geneva Conventions). The
armed confrontation must reach a minimum level of intensity and the
parties involved in the conflict must show a minimum of
organisation and have the capacity to sustain military
operations.

There are three types of conflicts that are recognized by
International Humanitarian Law: International Armed Conflict,
Internationalized Armed Conflict, and Non-International Armed
Conflict.

International humanitarian law does make it clear what an
international armed conflict is. According to the
Geneva Conventions of 1949, common article
2 states that “all cases of declared war or of any
armed conflict that may arise between two or more high contracting
parties, even if the state of war is not recognized, the convention
shall also apply to all cases of partial or total occupation of the
territory of a high contracting party even if the said occupation
meets with no armed resistance ” (Geneva Convention, 1949, common
art . 2 ).

The basic requirement for an IAC is that there must be an armed
conflict between two or more states. Common Article Two of the
Geneva Conventions sets out the commonly accepted definition of an
IAC:

“In addition to the provisions which shall be
implemented in peace-time, the present Convention shall apply to
all cases of declared war or of any other armed conflict which may
arise between two or more of the High Contracting Parties, even if
the state of war is not recognised by one of them. The Convention
shall also apply to all cases of partial or total occupation of the
territory of a High Contracting Party, even if the said occupation
meets with no armed resistance.”

The second armed conflict recognized by international
humanitarian law is a new phenomenon known as ‘ an
Internationalized Armed Conflict’. The situation of an
internationalized armed conflict can occur when a war occurs
between two different factions fighting internally but supported by
two different states. The most visible example of an
internationalized armed conflict was the conflict in the Democratic
Republic of Congo in 1998 when the forces from Rwanda, Angola ,
Zimbabwe and Uganda intervened to support various groups in the
DRC

The meaning and nature of non-international armed conflicts
receives its definition in article 3, where it is defined as one
that occurs within the confines of a state or nation and does not
go beyond the boundaries of the state. Non-international armed
conflicts are those restricted to the territory of a single state,
involving either regular armed forces fighting groups of armed
dissidents or armed groups fighting each other.

Hence, there are two keys elements needed for a NIAC: protracted
armed violence, and the involvement of an organised armed group.
The case of Haradinaj set out some
possible factual indicators to help in the assessment of the
existence of a NIAC.

The following are indicative of the level of protraction and
intensity of violence needed for a NIAC:

The number, duration and intensity of individual confrontations;
the type of weapons and other military equipment used; the number
and calibre of munitions fired; the number of persons and type of
forces partaking in the fighting; the number of casualties; the
extent of material destruction; the number of civilians fleeing
combat zones; the involvement of the UN Security Council may also
be a reflection of the intensity of a conflict.

The following factors would be indicative of the level of
organization of an armed group:

The existence of a command structure and disciplinary rules and
mechanisms; the existence of a headquarters; the ability to gain
access to weapons, other military equipment and training; the
ability to plan, coordinate and carry out military operations; the
ability to define a unified military strategy and use military
tactics; the ability to speak with one voice and negotiate and
conclude agreements such as cease-fires or peace accords.

However, whatever definition is accorded to armed conflict, one
thing is certain and that is the flagrant violation of fundamental
rights as provided in most written constitutions of various
sovereign states. The activities of this armed conflict shall be
considered against the background of the 1999 constitution of
federal republic of Nigeria bringing to fore specific fundamental
rights that has been notoriously abused and infringed.

Chapter 4 of the 1999 constitution of Nigeria provides for
fundamental rights. These rights are fundamental in that they are
protected and provided for in the constitution. Section
46(1) provides that “any person who alleges that any of
the provision of this chapter has been is been or likely to be
contravened in any state in relation to him may apply to the high
court in that state for redress”.

Section 33(1) provides for the right to life,
thus “every person has the right to life and no person shall be
deprived intentionally of his life save in execution of the
sentence of a court in respect of criminal offence of which he has
been found guilty in Nigeria”.

This right to life has received judicial blessing in plethora of
cases particularly in the case of Emmanuel
Eze v State (2018) LPELR-SC 487/2015, p.23,
paras.A-E where the court per AUGIE JSC
stated that the only exception of denying one his right to life is
in execution of the sentence of a court.

This right to life is one right that has been flagrantly abused
by armed conflict activities. The activities or effect of this
armed conflict have resulted in the displacement of more than half
a million people and the death of uncountable innocent civilians
including children and suckling. Those engaged in this armed
conflict activities has constantly carried out extra-judicial
killing without the consent of the court and this amount to the
infringement of people’s right.

The importance of right to life is constantly repeated and
reaffirmed in many UN resolutions and the fourth Geneva Convention.
The right is mentioned in the context of indiscriminate attacks
affecting civilians, vulnerable groups (women, children, IDPs), as
well as human rights defenders and humanitarian workers by
emphasizing the fundamental value of the right to life and calling
relevant parties to abide by their obligations in this respect. The
right to life is the most fundamental of all rights. Every human
being has the inherent right to life. This right shall be protected
by law. No one shall be arbitrarily deprived of his life. It is on
records that the Boko Haram fighters do not appreciate this
provision (that is if they know the provision at all).

Section 34(1) provides for right to dignity of
human person thus “every individual is entitled to respect for the
dignity of his person and accordingly”-

1. No person shall be subjected to torture or to inhuman or
   degrading treatment;
2. No person shall be held in slavery or servitude

This is another right that has been abused by the activities of
armed conflict. Innocent individuals have been subjected to all
forms of torture, maiming and eventually death. The abduction of
persons are on the high in areas affected by armed conflict. Most
times this abducted persons are made slaves to this armed groups
with the option of ransom or death. Often times these people post
viral videos of how they maim unlucky fellows, bury them alive or
stone them to death and all these are gruesome and sickening.

Section 35 (1) Every person shall be entitled
to his personal liberty and no person shall be deprived of such
liberty save in the following cases and in accordance with a
procedure permitted by law –

(a) in execution of the sentence or order of a court in respect
of a criminal offence of which he has been found guilty;

(b) by reason of his failure to comply with the order of a court
or in order to secure the fulfillment of any obligation imposed
upon him by law;

(c) for the purpose of bringing him before a court in execution
of the order of a court or upon reasonable suspicion of his having
committed a criminal offence, or to such extent as may be
reasonably necessary to prevent his committing a criminal
offence;

(d) in the case of a person who has not attained the age of
eighteen years for the purpose of his education or welfare;

(e) in the case of persons suffering from infectious or
contagious disease, persons of unsound mind, persons addicted to
drugs or alcohol or vagrants, for the purpose of their care or
treatment or the protection of the community; or

(f) for the purpose of preventing the unlawful entry of any
person into Nigeria or of effecting the expulsion, extradition or
other lawful removal from Nigeria of any person or the taking of
proceedings relating thereto:

Provided that a person who is charged with an offence and who
has been detained in lawful custody awaiting trial shall not
continue to be kept in such detention for a period longer than the
maximum period of imprisonment prescribed for the offence.

In the case of DUKUBO ASARI V FRN (2007) ALL FWLR
(PT.375) 558 @ 586-587 – The Court held that the
above provisions of section 35 (1) of the constitution leave no one
in doubt that the section is not absolute. The only legal ground
the right of liberty can be denied or restricted is only the
exceptions provided for in paragraph (a-f) and the activities of
armed conflicts which denies people their right of liberty has no
legal backbone.

Section 37 of 1999 Constitution provides for
the  privacy of citizens, their homes,
correspondence, telephone conversations and telegraphic
communications is hereby guaranteed and protected. This is a
fundamental right which cannot be waived. However, section 45(1) of
the constitution provides that nothing shall invalidate any law
that is reasonably justifiable in a democratic society in the
interest of defence, public safety, public order, public morality
or public health or for the purpose of protecting the rights and
freedom of other persons.- OKAFOR & ORS V NTOKA
& ORS (2017) LPELR-CA/E/380/2012. This right of
privacy is always violated, the situation of Nigerian during the
Nigerian Civil War is a barefaced instance. However, argument
abounds as to whether the Nigerian Civil War is an example of
NIAC.  People tend to sleep with one eyes open because at
anytime, houses can just be entered without permission.

Furthermore, it is worthy of note that section 38 and 39 of the
constitution constitutes the bedrock of the sects’ agitation and
acts of insurgency. This section 38(1) provides
“every person shall be entitled to freedom of thought, conscience
and religion, including freedom to change his religion or belief,
and freedom (either alone or in community with others, and in
public or in private) to manifest and propagate his religion or
belief in worship, teaching, practice and observance”.

It is evident that members of this sect tend to forcefully
impose the Islamic religion upon individuals and the state
generally. It is vital to note that religious intolerance has
unfortunately been a recurring decimal ushering in various states
of Nigeria crisis, innumerable loss of property.

Section 39(1) “every person shall be entitled
to freedom of expression, including freedom to hold opinions and to
receive and impart ideas and information without interference”. The
Islamic sect alleges that western education is sinful and as such
directs all its effort at its extinction. However, this instance
does not by any chance intend to mean that the Boko Haram Sect is
an example of NIAC. This religious attempt infringes upon the
rights of affected individuals.

Section 41 of 1999 Constitution of Nigeria- (1)
Every citizen of Nigeria is entitled to move freely throughout
Nigeria and to reside in any part thereof, and no citizen of
Nigeria shall be expelled from Nigeria or refused entry thereby or
exit therefrom. However the activities of this armed conflict has
deprived and restricted persons from enjoying this right either in
international or non-international armed conflicts. These
activities of armed conflict have forcefully expelled citizens of
Nigeria to other neigbouring countries because of insecurity and
failure of government to protect these rights.

ENFORCEMENT OF FUNDAMENTAL RIGHTS OF ARMED CONFLICTS
VICTIMS

ORDER II RULE 1 Fundamental Rights Enforcement
Procedure Rules 2009 (FREP) — Any person who alleges
that any of the Fundamental Rights provided for in the Constitution
or African Charter on Human and Peoples’ Rights (Ratification and
Enforcement) Act and to which he is entitled, has been, is being,
or is likely to be infringed, may apply to the Court in the State
where the infringement occurs or is likely to occur, for
redress:

Provided that where the infringement occurs in a State which has
no Division of the Federal High Court, the Division of the Federal
High Court administratively responsible for the State shall have
jurisdiction.

PREAMBLE3 (e) FREP— In human rights
litigation, the applicant may include any of the following:

(i) Anyone acting in his own interest;

(ii) Anyone acting on behalf of another person;

(iii)Anyone acting as a member of, or in the interest of a group
or class of persons;

(iv) Anyone acting in the public interest, and

(v) Association acting in the interest of its members or other
individuals or groups

So, victims of Armed Conflicts whose rights has been infringed
or about to be infringed upon can maintain an action against the
leaders of the Identified Armed group involved in the conflict, the
Federal Government of Nigeria can still maintain an action on
behalf of its citizens and in my opinion I think action can be
maintained against the Federal Government of Nigeria.

Nwokeke Chidera (500 Level Law Student Of
Ebonyi State University) (Email: [email protected]^[1], Phone: 08120945787)

Subscribe ToNairalaw News!