Laws of armed conflicts, counterterrorism and counterinsurgency: Emerging conceptual and empirical contours in the battle space
Chukwuma CC Osakwe
Change and continuity have been known to characterise the nature of warfare even before the adoption of the First Geneva Convention in 1864. The changing nature of war has attracted a host of superlative adjectives such as (ir)regular warfare, (un) conventional warfare, (uncivilised warfare, guerrilla warfare, invisible warfare, invincible warfare, among others. Varying subsets of war have been added to these superlatives which are distinguished for its aloofness and contradictions upon the traditional conceptualisation ot war. Insurgency, terrorism, militancy, gangsterism, warlordism, and its armed counter-responses (such as counterinsurgency and counterterrorism) make for some of them that have found exclusive rooms in war’s spacious house. They all make for armed conflicts since they circumscribe collective and group violence with a recognisable degree of organisation, sophistication, and sustenance. Warlords leading “unconventional armies” in warfare have emerged in various parts ot the world; and in the pursuit of their struggles, they sometimes employ methods that amount to violations ot the laws of armed conflict (Edemekong, 2004). This makes for a challenge to existing laws ot armed conflict (LOAC). This chapter tries to examine the challenging interpretation, observation, and implementation ot LOAC in the context of counterterrorism and counterinsurgency using the Boko Hararn armed conflict in the North East of Nigeria as a peculiar case study. Consequently, an analysis of jus ad helium (justification of the decision to engage in battle), jus in hello (justification tor activities carried out in battle), and jus post helium (justification tor actions carried out after battle) appear lumped in relative ambiguity.
International laws designed to govern the moderation of armed hostilities
War is a behaviour that looms so large for all humanity. This has resulted in humanity embarking on ways to provide, amidst the cruelty and barbarity of war, protection for civilians and for those no longer taking part in the fighting; and even place restrictions on violence between combatants (Kalshoven, 2004). Indeed, this human endeavour underpins the basis for LOAC. The rules governing the resort to force form a central element within international law. Together with the principle of territorial sovereignty and the independence of equality of states, they provide the framework for international order (Dinstein, 2005; Gray, 2004; Neff, 2005).
The Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field was adopted in 1864. It was revised and developed in 1906. The laws of war were codified at the Hague Conferences of 1899 and 1907. Another convention, relative to the Treatment of Prisoners of War, was also adopted in 1929. In 1949, after WWII had ended, States adopted the four Geneva Conventions, which remained the cornerstone of LOAC. While the first three Geneva Conventions of 1949 grew out of existing treaties on the same subjects, the fourth Geneva Convention was a novel one, being the first LOAC treaty to deal with the protection of civilians during armed conflict. The death toll among civilians during WWII was one of the reasons for the development and adoption of such a treaty.
In the post-WWII environment, there was a need for rules applicable to wars of national liberation and as well as civil wars. It then became needful to adopt new texts in the form of Protocols additional to the Geneva Conventions, rather than revising the Geneva Conventions. This took place in June 1977 and became known as the Additional Protocols of 1977. To this end, contemporary LOAC concerns and relates to the four 1949 Geneva Conventions, the 1977 Protocols Additional to these Conventions, the 1954 Hague Convention for the Protection of Cultural Property, and the 1980 Weapons Convention. They all make for rules governing wartime relations.
The laws of war imply that there is a legal regulation on the use ot force. The concept ot the “laws of war” is made possible in order to regulate the conduct of individuals, nations and other agents in war and to mitigate the worst effects of war (Osakwe & Umoh, 2014). To this end, laws of war are intended to mitigate the “evils” of war by protecting both combatants and non- combatants from unnecessary suffering; safeguarding certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoner of war, the wounded and sick, and civilians; and facilitating the restoration ot peace (Dinstien, 2004). Besides bringing wars to a quick end, LOAC help to restrict wars to their political objective and to protect people and property from unnecessary destruction and hardship (Osakwe & Umoh, 2014). LOAC applies from the initiation of armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached or a peaceful settlement is achieved. Among other issues, the laws of war address declaration of war, acceptance of surrender and the treatment of prisoners of war; military necessity' along with distinction and proportionality; and the prohibition of certain inhumane weapons which cause unnecessary sufferings (Solis, 2010). The most important principle in the laws of war is the effort to limit warfare to the combatants and to protect civilians when possible.
The most dramatic weakness of traditional international law has been its admission that states may use force to compel compliance with its will. There exists a paradox that traditional international law while leaving untouched the ultimate right to resort to war, achieved some regulation ot the use of force short of war. To an extent, arguable, the war was at best first crime against peace (Jessup, 1958). The necessary condition for war crimes is that, first, there exists a law ot armed conflict (Osakwe & Umoh, 2014). The United Nations War Crimes Commission describes the laws and customs of war as “the rules of international law which belligerents have customarily, or by special convention, agreed to comply in case ot war”. When such “special conventions” under the “rules of international law” are violated, a war crime can be said to have been committed. This implies that every violation of the laws of war is a war crime.
The International Committee ot the Red Cross opines that “serious violations of international humanitarian law constitute war crimes”. What constitutes “serious violations” continues to undergo serious introspection into its core assumptions. It suggests that some crimes can be committed in wars which are not “serious” enough to be classified as war crimes (Kalshoven, 1987).