The Mission Against IS-affiliate Ansar al-Sunna in Mozambique: Does the Law of NIAC Apply?
In October 2017, Ansar al-Sunna, a non-State group, initiated a violent conflict in Cabo Delgado, Mozambique. In April 2018, the group pledged allegiance to the Islamic State (IS) and, from 2019, IS endorsed its activities. In March 2021, the U.S. government designated Ansar al-Sunna a terrorist group. Four months later, on 15 July 2021, an Extraordinary Summit of Heads of State and Government of the South African Development Community (SADC) approved a regional response to support the Republic of Mozambique.
The aim in deploying the SADC Mission in Mozambique (known as SAMIM) is to support the Republic of Mozambique to combat terrorism and acts of violent extremism. Despite this regional military intervention, May to mid-August 2023 saw an increase in violence and fighting between Ansar al-Sunna, the armed forces of Mozambique, and the regional support forces. In response, a communication of the 43rd Ordinary Summit of SADC Heads of State and Government, dated 17 August 2023, confirmed SAMIM’s extension by a further 12 months.
This post considers whether the law of non-international armed conflict (NIAC) applies to SAMIM in its mission in Mozambique.
Is There a NIAC in Mozambique?
The Mozambican government labels Ansar al-Sunna “violent extremists” or “terrorists.” Likewise, the government describes its response to the situation in Cabo Delgado and that of its international supporters as counterinsurgency or counterterrorism. SADC employs the same terms to describe SAMIM’s mandate in Mozambique:
The mandate of SAMIM includes supporting the Republic of Mozambique to combat terrorism and acts of violent extremism in Cabo Delgado, by neutralising terrorist threat and restoring security in order to create a secure environment; strengthening and maintaining peace and security, restoring law and order in affected areas of Cabo Delgado Province; and supporting the Republic of Mozambique, in collaboration with humanitarian agencies, to continue providing humanitarian relief to population affected by terrorist activities, including internally displaced persons (IDPs).
States’ responses to an insurgency and to sporadic acts of violence and terrorism are normally based in national law, whereas international humanitarian law (IHL) applies to NIAC. As Professor Marco Sassòli observes, however, it is possible to equate hostilities by and against a group labelled as terrorist with a NIAC (p. 499):
Armed groups are always labelled as ‘terrorists’ by the State(s) against which they fight. This label, however, does not preclude that they are also armed groups for the purposes of IHL. While terrorist acts may be committed in a NIAC and may even trigger a NIAC, they neither necessarily trigger a NIAC nor preclude the applicability of IHL of NIACS. The normal rules and the related controversies related to the classification of NIACs apply.
Additionally, Bellal and Maslen note, “The moniker applied by a State in its public pronouncements does not affect the applicable law or the applicable rules, which are rooted in the prevailing circumstances of each case” (p. 208). The International Committee of the Red Cross (ICRC) 2020 Commentary to Common Article 3 similarly states, “regardless of whether a State qualifies the members of a non-State armed group as ‘terrorists’ or its actions as ‘terrorism’, humanitarian law applies if and when the conditions for its applicability are met” (para. 906).
To determine whether the violence generated between Ansar al-Sunna and the Mozambican armed forces and its regional support forces constitutes a NIAC, meaning that IHL applies, it is necessary to conduct a factual assessment. The International Criminal Tribunal for the former Yugoslavia (ICTY) provided guidance regarding this assessment in the Tadić case.
The Tadić formulation necessitates that the non-State armed group meets a minimum degree of organisation and that the severity of fighting between the armed group and its opponent (State or non-State) is sufficiently intense to equate to protracted armed violence. This post first examines the organisational structure of Ansar al-Sunna before assessing the violence generated between Ansar al-Sunna and Mozambique’s armed forces from October 1, 2017 to date.
The Degree of Organisation of Ansar al-Sunna
For the purposes of conflict classification, it is necessary to assess the degree of organisation only of the non-State party to the conflict, not that of the State’s armed forces. State armed forces are presumed to be sufficiently organised (see 2020 ICRC Commentary, para. 463).
Before assessing Ansar al-Sunna’s organisational structure, it is appropriate to make a preliminary remark regarding its relationship to IS. The fact that Ansar al-Sunna pledges allegiance to IS and that IS endorses its actions and considers the group part of its “Islamic State Central African Province” does not automatically imply that Ansar al-Sunna is sufficiently organised for the purpose of IHL. There is little evidence to suggest that IS exerts command and control over Ansar al-Sunna. The only evidence of a relationship between IS and Ansar al-Sunna is the former’s regular endorsements of Ansar al-Sunna’s attacks in its al-Naba newsletter or through IS social media channels. To determine if Ansar al-Sunna is a party to a NIAC, it is Ansar al-Sunna’s level of organisation, not that of IS, which should be assessed.
Case law provides non-binding indicators that aid in an objective determination of a non-State armed group’s degree of organisation. These indicative factors include: possessing a command structure, an internal disciplinary system, and the ability to implement the laws of armed conflict; engaging in military tactics and achieving military objectives by carrying out military operations in an organised manner; having logistical capacity; and the ability to speak with one voice.
Little is known about the organisational structure of Ansar al-Sunna. Professor Sandesh Sivakumaran observes that armed groups often operate underground in secrecy when countering military operations by the State (p. 172). This is the case with Ansar al-Sunna. It is known that the leader of the group is Abu Yasir Hassan. Ansar al-Sunna also has an operational commander as well as a spiritual leader. It appears that the group has at least two levels of leadership. Professor Jann Kleffner maintains that a non-State actor’s command structure need not be as sophisticated as that of a State’s armed forces but there must be a structure that allows individual members to command and exert authority over other members (p. 169).
Ansar al-Sunna appears to operate through decentralised and semi-autonomous cells. However, decentralization does not imply that the group cannot meet the organisational requirements under IHL. As Professor Sivakumaran comments (p. 173-174):
Even decentralized groups may be organised, for an armed group will find it difficult to function—carry out hostilities, enforce orders, mete out internal discipline and the like—without some semblance of a structure. The misunderstanding arises from comparing the organization of the armed group to that of a state’s armed forces.
The feature of semi-autonomous cells inherent in the Ansar al-Sunna structure is not akin to a strict hierarchical command structure, but their formation allows flexibility in that the cells easily adapt to change. Ansar al-Sunna has proved agile as it has launched various successful military operations.
In its judgment in the Haradinaj case, the ICTY observed that the ability of a non-State armed group to launch military operations confirmed its fulfilment of the organisational criterion under the law applicable to NIACs (para. 60). Notable operations on the part of Ansar al-Sunna include a March 2021 attack where the group held a town against government forces for four days, and the successful launch of a series of coordinated attacks over a five-day period in Mocimboa da Praia, which gave Ansar al-Sunna territorial control for over a year. Although territorial control is not an organisational requirement to trigger the application of IHL, it can be regarded as useful evidence to establish that an armed group possesses a sufficient degree of organisation.
In relation to logistical capacity, the group has sourced weapons locally, for example, by collecting weapons after successful battles and by attacking police armouries. Fighters operating in Cabo Delgado are hardened combatants who launch strategic attacks and have access to well-established local support networks. Ansar al-Sunna has also managed to recruit and train local fighters. This is evident from the longevity of the group, which has engaged its enemy continuously since at least October 2017. The most recent documented engagement is July 10, 2023. Lastly, Ansar al-Sunna speaks with one voice through IS media structures. The group employs IS newsletters and social media to communicate successful engagements with its adversary in Cabo Delgado.
The above analysis demonstrates Ansar al-Sunna is sufficiently organised to constitute an organised armed group under the law applicable to NIACs.
Does the Fighting Constitute Protracted Armed Violence?
The notion of intensity refers to the severity of the fighting between the parties to the conflict. In the Tadić case, Trial Chamber 1 of the ICTY considered that the “protracted armed violence” threshold should be “used solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities which are not subject to international humanitarian law” (para. 562).
Protracted armed violence is widely accepted as the minimum threshold of intensity. The case law of international courts and tribunals has introduced and developed several indicative factors that may be employed to determine if violence is protracted. These indicators, which are non-constitutive by nature and which should be consulted on a case-by-case basis, are listed in the Haradinaj case as follows (para. 49):
[T]he number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and caliber of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and 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 total number of violent events attributable to Ansar al-Sunna until August 6, 2023 amounts to 1666. The initial attacks launched in 2017 typically involved a few fighters collectively attacking a remote police outpost or villages using primitive weapons. By early 2020 there was a shift in means and methods. For instance, Ansar al-Sunna took control of Mocimboa da Praia. After five days of intense fighting, without interruption, Ansar al-Sunna were in control of this strategic port. Clashes between Ansar al-Sunna and the armed forces of Mozambique, as well as support forces, are also frequent in the coastal town of Macomia. In the first six months of 2023 there have been twelve battles in the region of Macomia.
The types of weapons used by Ansar al-Sunna have become more sophisticated. Initially, Ansar al-Sunna used what is referred to as “common melee weapons” such as spears, machetes, daggers, axes, and other blunt-edged weapons. Ansar al-Sunna’s armoury has advanced to employ modern weapons including automatic guns and rifles, rocket propelled grenades and mortars. On 18 July 2023, Ansar al-Sunna used a remote-controlled improvised explosive device (IED) for the first time. While Ansar al-Sunna had previously used IEDs, this was the first reported usage of a remote-controlled IED. It is therefore an example of an advance in its arsenal.
From October 2017 until August 2023, the death toll as a consequence of Ansar al-Sunna’s activities is 4,737. Ansar al-Sunna has burned down several structures during its attacks. On March 25 2020, in Quisanga, the group burnt at least 387 structures, including a hospital, a school, civilian homes, and official infrastructure. The UNHCR estimates that by February 2023, over a million people were internally displaced in Mozambique as a consequence of the violence generated by the situation in Cabo Delgado.
In the Boskoski case, Trial Chamber II of the ICTY observed that a territorial State responding to an enemy through its armed forces for military purposes is indicative that violence is protracted in nature (para. 178). Mozambique has deployed its armed forces to respond to Ansar al-Sunna by way of military operations, despite labelling its response as counterterrorism, and on its own is incapable of defeating the group. The government of Mozambique, consequently, employed the services of private military contractors, including the Wagner Group as well as the Dyck Group. After the private military companies withdrew, regional forces deployed. On 23 June 2021, the SADC decided to deploy a standby force mission (SAMIM), whose mandate was recently extended by a further 12 months. The Rwandan armed forces also operate in support of Mozambique’s government. The type of engagement between the regional support forces and Ansar al-Sunna is undoubtedly military in nature.
Finally, the involvement of the UN Security Council is an additional indicator of the intensity of the conflict. The UN Security Council expressed its concern, specifically in respect of Ansar al-Sunna and the continued security threat in Mozambique, most recently in a report dated February 13, 2023. From the assessment above, the nature of the violence in Cabo Delgado clearly is protracted.
Concluding Remarks
The situation in Cabo Delgado meets the thresholds of organisation and intensity and therefore constitutes a NIAC. Consequently, IHL applies. The parties to the conflict are the Mozambican armed forces and its support forces who are fighting the IS-affiliate, Ansar al-Sunna.
The use of terminology such as “counterterrorism” and “counterextremism” to describe the situation does not preclude the application of IHL. The law of NIAC applies equally to all parties to the conflict in Mozambique, including SAMIM. At the point of its initial deployment SAMIM operated in a NIAC, and this situation remains unchanged. Therefore, despite the terminology used in its mandate, SAMIM is bound to operate under IHL when engaging Ansar al-Sunna.
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Photo credit: Francisco Júnior (VOA)
