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 peoples 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-
- No person shall be subjected to torture or to inhuman or degrading treatment;
- 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], Phone: 08120945787)
Practical Considerations to Negotiate an Enforceable Joint Operating Agreement in Civil Law Jurisdictions (Netherlands: Kluwer Law International, 2020) By Professor Damilola S. Olawuyi, LL. B (1st Class), BL (1st Class), LL.M (Calgary), LL.M (Harvard), DPhil (Oxford), Professor of Law and Deputy Vice-Chancellor, Afe Babalola University, Ado Ekiti, Nigeria, www.damilolaolawuyi.com. & Professor Eduardo G. Pereira, LL. B (Brazil), LL.M (Aberdeen), PhD (Aberdeen),www.eduardogpereira.com
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