Amnesty International released a 133 page report on Wednesday 3rd June 2015 accusing the Nigerian military of war crimes during operations in the North East and naming several officers for investigation. The report appears to build on the Channel 4 documentaries footage and earlier Amnesty International reports on Nigeria. In this piece we will review these allegations, the effect they could have and potential solutions.
Extrajudicial executions: the report alleges there have been 27 recorded incidents of unlawful killings by the military and vigilantes between 2013-2014 and estimates 1,200 killed in these incidents and many more in the course of the conflict. They list several examples with dates, names, and locations and in some cases video and photographic evidence.
Deaths in Custody: the report estimates 7,000 men and boys have died in custody since March 2011. They state that the main causes of death appear to be starvation, dehydration, overcrowding leading too disease, torture, use of fumigation chemicals and lack of medical assistance.
Mass arbitrary arrests and unlawful Detention: The report alleges that up to 20,000 have been detained. Many were allegedly detained in cordon and search operations or were identified by informants
Enforced Disappearances: the report differentiates between disappearances and unlawful detention and states several examples of individuals who have been targeted for detention or swept up in operations and ‘disappeared’ without their families having any contact with them or official confirmation of their status
Torture and ill treatment: the report alleges systematic and routine deliberate acts of torture against suspects and detainees such as beatings, shocks with electric batons, being tied up and suspended from poles as well as threats and acts of sexual violence
Individual and other ill treatment: the poor conditions of detention such as overcrowding, insufficient feeding, water, light and access to medical assistance amount to ill treatment
Individual and Command Responsibility for war crimes: the report states that there is sufficient documentary evidence to show that senior officers were aware of the issues and received regular reports, and at the minimum are culpable even if direct orders were not given to commit abuses
Knowledge that crimes are being committed: the report lists the efforts made to make the Nigerian authorities aware of the allegations including representations to the National Security Adviser (NSA), Ministry of Justice, Attorney General and Ministry of Defence.
Failure to Act: the report also alleges that internal military investigations and reviews highlighted these issues and nothing was done in response
The report is comprehensive, well laid out, clearly stating its methodology and attempts to get responses from the relevant authorities. It is beyond my gift to categorically refute the allegations and to be honest I do not see the point.
However before looking at the effects of this report we must look at it in the context of the extremely complex environment that Nigerian security forces are operating in. The enemy successfully conceals themselves within the population and uses women and children as combatants, spies and helpers. Much as the US discovered in Vietnam, Iraq and Afghanistan the inability to distinguish between friend, foe or neutral can lead to a frustrated soldiers lashing out and murder innocent civilians as US forces did in Haditha, Iraq in 2005 or My Lai, Vietnam in 1968. Likewise the breakdown in the troop rotation system led to units and individuals remaining on operations up to 2 years, leading to weariness, demoralisation and burnout.
Prisoner handling in a counter insurgency operation is and will continue to be one of the most difficult aspects to get right. An insurgency is a war amongst the people, in which the human terrain is as important as the physical terrain, thus is the same way a forest can get burnt down when armies are fighting through it, the same way people suffer when they are target and objective of combatants. As the Americans discovered in Iraq, majority of the people detained in cordon and search operations are usually innocent but establishing their innocence is extremely difficult as even the British discovered in Northern Ireland with internment. Even high profile detention centres such as Guantanamo Bay ended up containing innocent, underage or low threat prisoners.
The huge number of people that end up detained as a result of such operations puts huge pressure on a military forces’ ability to detain them properly. The British used concentration camps during the Boer War to separate civilians from the rebels and ended up killing 28,000 mainly women and children, through poor administration, feeding, sanitation, overcrowding and lack of medical assistance. In Abu Ghraib, Iraq the American service personnel, CIA and contractors deliberately used torture and ill treatment to try and obtain information from prisoners.
As many Afghans in Wardak Province or Iraqis in Anbar Province can attest enforced disappearances by special and conventional forces from first world armies with strong human rights training and policies still take place.
The enemies frequent attacks dressed in military type uniform is a familiar ruse from many different conflicts and as the US discovered in Iraq when militias disguised themselves as policemen, military or interior ministry to carry out atrocities, it is extremely difficult to distinguish between militants in disguise, rogue units or actual security forces.
Much also has been made of the use of informants and vigilantes, despite the efforts of the Borno State government and military to regularise them, excesses by these volunteers continues to taint their overall positive contribution, yet even at present there is documented evidence of US trained Iraqi Golden Brigades and Iraqi Interior Ministry Emergency Response Brigades, torturing, murdering, beheading and maltreating suspected Daesh prisoners.
Thus it is fairly safe to say that whilst these practices are wrong, illegal and must be eradicated, the Nigerian situation is not unique. It is simply a factor of war.
The negative consequences of these allegations include
Inefficient operations: in a conflict in which your main effort is to protect the population, rounding people up, detaining them and having them die in detention does not aid your cause. The only examples where the such perpetrators achieved victory is in the Boer War but left such a legacy of bitterness that most Afrikaners supported the Germans in both World Wars and majority of their elite had to be interned to prevent them sabotaging the war effort.
Killing prisoners is again bad practice. They are not just a valuable source of information but a living incentive to their former comrades to surrender. The Apartheid South Africans and Rhodesians were past masters at turning captured enemy to their side, some of their most successful units consisted of SWAPO, MK, ZIPRA and ZANLA fighters who after capture, successfully changed sides. Whilst this might seem a move predicted on self preservation, the South Africans/ Rhodesians guaranteed their loyalty by making them betray their former comrades, show them supply dumps etc ensuring that the ‘tame terrs’ bridges were well and truly burnt.
War Crimes Prosecutions: a preliminary prima facie case for war crimes has been built. It now merely requires crusading or ambulance chasing lawyers to collect sworn affidavits and lodge a case in a country with universal jurisdiction legislation and begin proceedings. Whether or not the case is proven, Nigeria will suffer the expense and embarrassment of having serving officers on trial for war crimes internationally, unprecedented in a democratic country.
US politics: The US election season is coming around. US President Obama has focussed on foreign policy as he ends his term and made immediate overture’s to President Buhari. This alone has marked President Buhari as a target for the US Republican party, as seen during the Nigerian Presidential campaign, where Republican media and commentators made statements alleging President Obama secretly supported President Buharis’s campaign because Obama is a secret Muslim who wants Buhari to introduce Sharia law and legalise gay marriage (I’m not joking). These themes will continue as the Republican primary season continues and candidates seek to out tough (or out crazy) each other. This means is that Republican candidates throughout the primary season will probably be negative about Nigeria as that does not aid their narrative of Buhari as Obama’s Sharia proponent. Add to that mix the Democrat frontrunner Hilary Clinton’s time as US Secretary of State, for which the Republicans have already attacked her for not declaring Boko Haram a Foreign Terrorist Organisation. Once the Primaries’ are finished and the Republican candidate faces Hilary Clinton, Boko Haram and the emotive Chibok girls will be a convenient theme to attack her with. War crime accusations thrown into the mix would mean a significant amount of Nigeria’s time and resources will have to be dedicated to managing this narrative and if a Republican wins the election, being ‘tough’ on Nigeria will be a relatively easy campaign promise/ theme to sustain. Clinton is already trying to distance herself from Obamas foreign policy; (a fairly complex task as she was involved in much of it) but most of his policy is constrained by world events. Thus getting ‘tough’ on Nigeria could also be an easy win for her and deflate a Republican attack position. Either way Nigeria needs as few issues as possible that US politicians can use against us.
Enduring Grievances: Boko Harams biggest mistake was their indiscriminate murder of fellow Muslims and Kanuri’s. If Boko Haram had focussed on the government and tribes from outside the region they would have retained sufficient popular credibility to be a viable alternative in a system that is seen as corrupt and unjust. This is relevant to underscore that whilst there is virtually no part of Nigeria that does not have a deep historical grievance against other tribes, religions and the Nigerian state, the death and suffering of the people of this region has generated a strong narrative that the insurgency was ether deliberately instigated or else left to fester by the previous administration as a political, regional or tribal tool. Thus the failure to try and draw a line under the issue, will leave this section of the population, with deep grievances and a blood debt that they might one day seek to collect.
Morale: for troops who have served all this time, seen friends killed and wounded, suffered defeat and deprivation this is an unneeded stain on their honour.
Upon review of the report I would suggest the following actions:
1. Code of conduct: the existing code of conduct should be updated to clarify the rules of engagement, treatment of captured or detained persons and the authority under which the security personnel operate. The key points should be summarised in a pamphlet or leaflet should be distributed throughout the operational area. It should be made a chargeable offence for any security personnel to be on duty without their Code of Conduct pamphlet. A public awareness campaign to enlighten the public about the Code of Conduct will help boost compliance, increase the confidence of the local population in their dealings with the security forces and international partners in Nigeria’s seriousness.
2. Training: further training is needed for officers and men to understand the rights, duties and responsibilities of people authorised to bear arms in service of their country. Law of Armed Conflict (LOAC) training should be made mandatory throughout the military, with annual tests and training for the military, police, intelligence and other services as well as relevant civilians in the Ministry of Defence and other ministries. Certain elements of this training should also be extended to members of the relevant National Assembly committees.
Training should be annual and structured in such a way that other ranks and junior NCO’s receive basic LOAC, Human Rights and prisoner handling training every year. A more advanced and comprehensive training should be held for Senior NCOS and junior officers. Sub unit commanders (Majors to Colonels) should undergo a more intensive course, whilst Brigadier Generals and above should undergo a fully comprehensive multi day course covering all aspects in this field as well as the latest international developments in the international military law.
All commanders should be assessed on their LOAC and IHL training and any violations by a unit should be considered career limiting to the units commander and that commanders commander, be it platoon, division or Army level.
By this method, LOAC becomes self-enforcing as each commander will keep a tight rein on his troops and/ or sub units.
3. Record keeping: The paucity of record keeping makes it hard for the military to refute accusations and for the public to get a clear picture of the situation. To alleviate this each unit should have a detainee collection point and named Detainee point of contact. Each detainee should be recorded by the arresting soldier and considered his responsibility until signed over to the detainee collection point, once in the unit detention centre the detainees should be given a unique detainee number and detainee card, with which they can tracked through the system. Local and central databases should be maintained to aid record keeping.
4. Public Awareness: transparency and public awareness should be a key element of reform in order to reduce public fears. Radio, print, TV and other media outlining the code of conduct, detention process and citizens’ rights as well as phone or SMS helplines to help families keep in touch, would give the public greater confidence and give a more general level of reassurance. All Company sized units should have a 24 hour contact line, which would not only aid intelligence gathering but also aid civil military relations.
5. Oversight: one would recommend at least 3 levels of scrutiny, using various diverse groups such as the Security Forces, Civil Society and the Legislature to ensure an overlap of skills and accountability.
Security Forces: A military/ police Task Force should be mandated to oversee the lawful conduct of internal security operations. This Task Force should be headed by a retired Staff or General Officer with legal training/ background, with a credible retired or serving Jurist as deputy. Their mandate should be the investigation of old and new allegations, verification of LOAC and IHL training, inspection of detention facilities, liaison with international, national and local civil society groups. The Task Force should have representatives from the Ministry of Justice, police, intelligence services, military police and prison service with liaison officers to all other paramilitary forces. The task force should report to the President and have the power to censure units, make recommendations for improvements or cases of violations for prosecution.
Civil Society: A committee of various Nigerian civil society groups representing humanitarian groups such as the Red Cross/ Red Crescent, Nigerian Human Rights commissions and legal groups etc should be set up. The committee should also have representatives of religious groups, regional/ socio cultural groups. This committee should again report to the President and be empowered to act as the ‘Detainees friend’ with various responsibilities such as:
- Ensuring all detainees are registered and maintaining a parallel and up to date record of all detainees
- Providing access legal representation to all suspects
- Visiting detainees and all detention facilities on a weekly basis
- Ensuring that LOAC and IHL training is being cascaded through the ranks and different services
A Technical Assistance Group of International groups such as Amnesty International, the UN, ICRC and others should also be formed to provide technical assistance, training, support and best practice to the both this Committee and the Military Task Force.
National Assembly (NASS): the relevant committees and sub committees should undergo the necessary training and demand regular monthly reports from the military as to the status of LOAC and IHL training and the status of detainees. Each month at least one Member of the NASS should join the inspections and report back to parliament. Proper legislative oversight will ensure there is a higher level of compliance and strengthen democratic institutions.
6. Treatment of Detainees: detainees must be treated in a humane and lawful manner. Whether suspects or armed combatants, the processes may differ however the underlying principles remain the same. All detained persons should have access to medical assistance based on need, fed the same amount and quality of food as Nigerian forces, given daily access to sanitation, kept in detention facilities commensurate with standard Nigerian military accommodation and given access to the Nigerian and International Red Cross/ Red Crescent
- Armed Combatants: persons captured in arms or undertaking violent or warlike activity. Whilst not technically prisoners of war in the context of a non international armed conflict, they should still be segregated from other detainees or common criminals. These prisoners can be either transferred to police custody to facilitate prosecution, or interned for the purpose of security.
- Civilian detainees: persons not captured in direct commission of violent acts, should be treated as suspects, given access to legal representation and charged or released within the constitutionally mandated time limits. The unfortunate reality of the conflict is that the enemy uses children as fighters, suicide bombers, spies and support workers. Juveniles and children will inevitably be detained but should be segregated and given access to education and appropriate care.
7. Investigation and Prosecution: a concerted effort must be made to ensure that suspects are brought to trial in a speedy manner. Not only does this serve the interests of justice but frees up prison space. To do this dedicated teams of investigators, prosecutors and defenders should be brought in and special tribunals set up to try cases quickly. These specialist teams can be set up using graduates who have just finished their NYSC with professionally qualified Youth Corpers offered incentivised to extend their service for another 12 months of well paid employment in the operational area. Not only would these young graduates bring a zeal and enthusiasm to the process it removes local lawyers who might be subject to threats and intimidation from the mix.
8. Vigilantes: efforts to regularise vigilantes should be accelerated and harmonised across the operational area. With improved vetting and a proper command structure, excesses can be tempered. As a further measure vigilantes could be regularised as police auxiliaries giving them powers of arrest and subjecting them to lawful oversight.
9. Personal identification: part of the difficulty the military has is verifying identities. One way to overcome this problem is to insist all adults in the operational areas have either a National ID (NID) card or Permanent Voters Card (PVC). Linking PVCs or NIDs to particular addresses, would build up a valuable store of information and allow friendly forces to literally map the human terrain. A database such as this assists the security forces in understanding the population trends, assists in verifying identities and provides increasingly accurate data for development and humanitarian operations. Once this database is operational and accessible it frees the security forces from having to detain suspicious persons they come across in a cordon and search operation, reducing the pressure on detention facilities and distress for citizens.
10. Torture and ill treatment: the use of torture must stop. There are many ways to successfully extract information that do not involve torture. Torture can be an effective tool of interrogation (as the Gestapo and KGB can attest), however its effectiveness is directly linked to it being used against the right people, thus torturing confessions out of everyone detained is not just barbaric but militarily inefficient as innocent people will confess to anything under torture. The only way to effectively prevent torture is through proper training and enforcement, i.e. through leadership and culture change. When the emphasis moves from making someone ‘confess’ to obtaining information as part of an investigation and officers are required to justify the condition of their detainees to their superiors and outside bodies, the situation should improve.
11. Truth Commission: in addition to the reforms a specialist Task Force should be set up to look in to previous allegations of abuse. The officers so named in the report should be given every opportunity to mount a comprehensive defence and clear their names.
In order to prevent serving officers from being distracted from their duties a form of a Truth and Restitution Commission could be set up offering immunity to accused officers, men and vigilante’s who agree to give truthful testimony. This will hopefully give families answers without leading to full legal process.
Going forward the Federal Government could institute alongside the State governments a formal whistleblowing or abuse hotline, where people can express concerns without fear of reprisal. At the same time a compensation scheme can be set up to provide financial assistance to people for death, injury or damage to property.
This campaign has seen serious and persistent human rights allegations that cannot simply be ignored.
With fairness to Amnesty International it is clear from their reports they have tried to engage with the Nigerian military, judicial and governing authorities, however it is also apparent that they appear to be preparing the ground for a potential war crimes case against the Nigerian military. Universal jurisdiction is now a fact in international law, just as Spain can bring charges against Boko Haram or Gen Pinochet, any Nigerian officer can find themselves charged and subject to an international arrest warrant.
The International Criminal Court has tried and prosecuted several combatants from African conflicts. This is not coincidental, African wars are notoriously characterised by a fairly indiscriminate r human rights abuses, African leaders and warlords rarely take the time to make their countries self-sufficient enough to insulate themselves from the outside world as North Korea or Syria have thus they are easy to target. Very few African countries have the developed and impartial judicial systems required to make referral to the ICC unnecessary and they do not have the diplomatic or economic clout of other powers to simply bully their way out of accountability.
If an extremely pro-western state such as Kenya can see leaders charged at the ICC, then Nigeria surely needs to be on guard, at time of writing a South African court has barred Sudan’s Omar El Bashir from leaving South Africa due to an ICC arrest warrant. This is an embarrassment and distraction Nigeria can ill afford thus a robust and comprehensive response is needed.
It can be argued that Boko Haram commits worse atrocities. That is a fairly stupid argument as one can reasonably expect the members of a nations armed forces to behave better than a barbaric insurgent group.
It can be argued that these reports seem to come out whenever Nigeria is ‘winning’. Such an argument betrays a fairly pedestrian view of the operational environment and seems to hint at some sort of a conspiracy between international NGO’s and Boko Haram.
It can be argued (as I have) that all nations in conflict are accused of abuses, however what is more important is how the accused countries respond to these accusations.
Whilst we cannot change the past we can definitely change the future trajectory of this campaign, much like the ‘No Victor. No Vanquished’ of the Civil War we have in Nigeria the opportunity to rewrite the rules for counter insurgency and the treatment of the civilian population in African conflicts and I would suggest we have a duty to at least try.
The final and most important point is that all the people referred to in this report are Nigerian citizens who whether and dead, living, free or detained, innocent or guilty deserve to be treated fairly and decently.
Thus irrespective changes must be made not to please the ICC, US, Amnesty International, foreign governments or NGOs but to safeguard the lives and rights of Nigerians.
If we implement clear robust solutions we can move beyond these distractions to focus on the main effort of defeating the enemy and restoring peace and security to Nigeria.