Guest contributor, and UCLU Amnesty International Publicity Officer, Anna Wilken tells the story of the dark and persistent attack from Nigerian Terrorism cell Boko Haram.
*Chilling context: The chilling attack and burning alive of local villagers, including children, and the persistent sieges on refugee camps make it clear that Boko Haram isn’t an organisation that only come out at night. They are relentless, dark and their attacks on human life are unyielding. For the Nigerian people there is no place to hide. The State government are constantly challenged about how much power to exercise without encroaching onto totalitarianism. The morbidity of current events, ensues deep feeling of fear. But understanding where and how this group came into being is an equally dark tale…
Militant group, Boko Haram, has terrorised Nigeria with reckless abandon since 2002, leaving more than 20.000 dead, and with over 8000 killings in the last two years. Amnesty International alleges that the Nigerian military have not respected human rights in its “fight against terror”, with breaches including disproportional force against civilians, detention without trial, torture and extrajudicial killings. In the face of these crimes against humanity soldiers have merely been prosecuted and punished for military offences, but not for human rights abuses.
This tragically entangled situation is blurring the lines between just and unjust and raises the question of which methods can be utilized by a government combating one of the most ruthless concoctions of humankind; terrorism. But it is for this unique position, that the state must guard and respect human rights. Moreso than any civilian institution, but it is also clear that the use of violence here is acceptable; but can only be applied under certain narrowly defined circumstances.
If a civilian takes the law into his or her own hands and causes terror by using emotionally and politically charged violence: it is branded as terrorism. The difficulty arises in cases of the State because the State, (to a certain extent) is the law, and most certainly is the one to enforce it.
Bruce Hoffmann has argued that there is a “fundamental qualitative difference” between a state exercising violence and a non-governmental institution or person exercising violence. Meaning that the state is in a better position to justify its violence, an arguably dangerous concept; the state should represent the people since it is the institution that derives its power from the people and in return promises to act within the ranges of lawful behaviour. When a civilian uses violence, it has no implications beyond the victim, but when a state uses violence it defines its role and sends a strong message which has implications that can determine a countries‘ future. There is a case involving a German child murderer called Magnus Gäfgen who was granted remedies when a police officer tortured him in order to save the life of an abducted child. The police officer, exercising power in his role as part of the executive, may have seen violence as a small sacrifice when the life of an innocent child was at stake, but officially approving of torture bears a danger that can break the foundation of even the strongest state apart.
When a state is faced with terrorist attacks it may justify the breach of fundamental principles claiming the necessity of preserving peace and protecting people’s lives. The situation in Nigeria has escalated since July 2015 when Boko Haram occupied more than 20 towns entailing acts of torture, abductions and numerous killings. A state that cannot enforce its laws anymore will be desperate in reach for control. However, by fighting terrorists with unlawful means, the state become the terrorist itself. One cannot accuse a group of unlawful crimes while using unlawful means oneself. This would mean that the parties would enter into a legal vacuum where right and wrong is not determined by the certainty of law, but by arbitrary subjectivism. The state would lose its integrity, diminish itself from being an overarching representational institution to just one more player on the field of war; neither worse nor better than others. In this context, we must mention Nigeria’s history that consists of being ruled by military governments. This situation cannot be resumed because a people’s trust in their government is a powerful source for democracy. In Nigeria, the government has often failed to protect victims of a terrorist attack w2hich “can only strengthen the insurgents and further alienate beleaguered civilians.
This can be seen in 2015 protests where the Bomb Victims‘ Association of Nigeria (BVAN) brought together hundreds of victims in protest of their neglect. When unity against terrorism is crucial, the state cannot be disregarding of the rights of its people which is tragically a point that the Nigerian government has been missing.
Special consideration must be given to the importance of certainty. The British judge Lord Atkin has famously stated that “amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.“This concept is especially important in fights with religious backgrounds that are vulnerable to deforming the objectivity of the law. Where one makes an exception, one gives power into somebody’s hands and where there is discretionary power, there is subjectiveness in the exercise of that power. In Nigeria, the population is almost equally split into Muslim and Christian backgrounds which makes the striking of a delicate balance between the recognition of these different interests at law very difficult but even more important. Nigerian President Muhammadu Buhari accepted the importance of upholding certain objective universal rights in his inauguration speech on May 29: “We shall overhaul the rules of engagement to avoid human rights violations in operations. We shall improve operational and legal mechanisms so that disciplinary steps are taken against proven human rights violations by the Armed Forces.” A state always has to refrain from violence even if that may weaken the state’s effectiveness in fighting war crime because reducing its status and causing uncertainty in the law will endanger the country’s safety even more than that decreased effectiveness.
However, there are indeed things that a government can do. It must be considered that even when navigating within the realms of possibilities that would be respectful of human rights, the state may resort to violent means of law enforcement. Article 2 (4) of the UN Charter declares the necessity of a state’s confinement to lawful behaviour but Article 51 also mentions the possible exception of self-defence. This exception has been interpreted generously by certain states where so-called “humanitarian military interventions“ have been justified by defending national security by fighting in other countries. However, it must be recognized that the idea of self-defence must always be a narrowly defined power that will only be used in a reasonable and proportionate manner. Otherwise, it will be too vulnerable to be exposed to possible floodgate arguments which could be wrongfully used in justifying a government’s misconduct towards parts of its population.
In circumstances which are scarred with despair facing murderous hatred, it can be tempting to justify certain human rights breaches. However, these breaches destabilize and undermine a state’s power and integrity. The Nigerian government has stated its will to refrain from human rights violations in the future. There is hope that with future scrutiny, courage and activism that these hope will become reality.