Questions of Definition: Conflict in the West African Sahel and IHL
This post is drawn from the author’s article-length work, “The Question of Definition: Armed Banditry in Nigeria’s North-West in the context of International Humanitarian Law” appearing in the International Review of the Red Cross.
Geographically, the West African Sahel region is the semi-arid expanse of grassland lying just to the south of the Sahara desert and stretching approximately 5000 km horizontally across Africa, from east to west. It extends from the arid Sahara to the humid savannah at around 10° North. This expansive region includes a substantial part of Mauritania, Senegal, Mali, and Niger, as well as the northern borders of Burkina Faso and Nigeria.
Across multiple indicators, the region is one of the most blighted in the world. The poverty rate is above 50% across all countries in the region, the area has one of the worst health outcomes obtainable globally and throughout the region, less than half of adult females are literate. The West African Sahel is also the most impacted by climate change, as temperature increases are projected to be 1.5 times higher than in the rest of the world, with only about 6% of the population having access to safe drinking water. Critical infrastructural deficits, food insecurity, wealth inequality, weak State capacity and unwieldy demographic growth have combined to make the region a center of concern for regional and global governance institutions.
While the region has huge natural resource endowments, its primary strategic relevance is in its capability to disrupt global security. A persistent and now expanding security crisis has made the region one of the top global conflict hotspots and home to some of the world’s fastest growing and deadliest terrorist groups. That the West African Sahel is one expansive theatre of many conflicts, with catastrophic humanitarian consequences, is a little contested fact. The crucial question remains the influence and ability of international humanitarian law (IHL) to protect the vulnerable in this complicated setting with multiple and often vaguely defined armed non-State actors. Do the fundamentals of IHL need to evolve to accommodate this new reality in armed conflict, or should the hapless victims of these conflicts seek solace in alternative avenues within customary international law?
Banditry as the New Face of Conflict in the Sahel
The starting point for conflict analysis and classification in the Sahel is the understanding that the situation in the region is complex and dynamic, with multiple conflicts intertwining and evolving over time. The complexity of conflicts in the region is attributable to several factors. Over the past decade, conflicts in this area have primarily taken place at the fringes and have been largely fought by non-State actors in pursuit of pecuniary ends rather than for control of State power. Also, a great number of conflicts in the region involve multiple stakeholders, including formal State actors, ethnic militias, private armed groups, and opportunistic criminal organizations. Many of these groups defy clear definition due to their unknown interests, decentralized operational structures, and vague political and economic agendas.
A third feature of conflicts in the Sahel is the dearth of information and knowledge about the nomenclature of these conflicts. These conflicts occur in remote and often inaccessible locations, so there is always the constant challenge of collating comprehensive information about the violence. There is also a critical gap in the documentation of organized violence in the region and data regarding casualties and victims are often unreliable or contested.
Despite the highlighted complexities in the region, conflicts in the Sahel in the last decade can be aggregated into four main domains: the fundamentalist Islamist insurgency driven by Al-Qaeda in the Islamic Maghreb (AQIM), Jama’at Nasr al-Islam wal Muslimin (JNIM), Islamic State in the Greater Sahara (ISGS), and Boko Haram; inter-communal conflicts driven by access to resources; conflict driven by organized criminal groups as represented by bandits and other outlaw groups; and clashes between State forces and militant armed groups.
From whichever perspective they are examined, conflicts driven by Jihadist movements and organized criminal groups have dominated the headlines. This post focuses on conflict driven by organized criminal groups. Nigeria’s most populous zone at the edge of the Sahel, the north-west geopolitical zone, is the site of a deadly conflict driven by groups of violent non-State actors, widely referred to as bandits. This security crisis is one of the most vicious in the Sahel, with the deaths of more than 13,000 persons in the last seven years, over 500 communities destroyed and more than 250,000 persons displaced.
Bandits are a loose collection of various criminal groups involved in kidnap-for-ransom, armed robbery, cattle rustling, rape and other sexual violence, pillage and attacks on traders, farmers, and travellers – particularly in Nigeria’s north-west region. Essentially, banditry is a composite crime. It underlines the absence of a jurisprudential definition of banditry as a crime in itself, although the component crimes are criminalized in extant legislation.
Organizationally, bandit groups operate independently; they do not have formalized structures and identities and are organized around personalities. There are instances of intergroup collaboration: operationally and resource-wise, bandit groups collaborate. However, there are also records of intergroup conflicts and turf wars between and among bandit groups. Profit and personal enrichment drive banditry rather than political, ideological, or any sectional interest. Bandits are indiscriminate in their attacks, and they have plundered different communities of faith and ethnicity across the region with the same levels of brutality.
While bandits as organized criminal groups are akin to the Russian mafia in operational outlook, with loose, opportunistic, flexible, and adaptive networks, there is insufficient information available on membership composition and group dynamics. According to different stakeholders, the number of active bandits in the region ranges from between 30,000 and 100,000 and the number of groups between 60 and 120. Banditry serves as a vivid emblematic representation of the nature of most ongoing conflicts in the Sahel. It predominantly takes place in rural out-of-sight communities, there is a paucity of information, it creates grave humanitarian impacts, and conflict is driven by shadowy groups of armed non-State actors. Moreover, like everywhere else in the region, there is lack of respite from national governance institutions and international human rights mechanisms.
Adequacy of IHL to Protect in the Sahel
The second dominant conflict in the region, the Islamist fundamentalist insurgency, clearly amounts to a non-international armed conflict, not only for the purposes of Article 3 common to the four Geneva Conventions but also in line with Article 1 of Additional Protocol II to the Geneva Conventions. However, violence unleashed across the region by organized criminal groups and other armed non-State actors, which has even worse humanitarian impacts, fails to meet the set jurisprudential thresholds for IHL to apply.
A non-international armed conflict is deemed to exist whenever there is “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” Essentially, beyond the classifications provided by common Article 3 and Additional Protocol II, the cases of Tadić and Haradinaj et al.have provided jurisprudential direction on the twin thresholds of application: the level of organization shown by the non-State armed group and the degree of intensity characterizing the violence between this group and its adversaries.
It is the view of many IHL scholars that banditry and other non-ideologically driven acts of violence that predominate in the Sahel are excluded from the definitional parameters of armed conflict. According to an International Committee of the Red Cross Opinion Paper “in order to distinguish an armed conflict, in the meaning of common Article 3, from less serious forms of violence, such as internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain threshold of confrontation.” According to Eric David, “the nature of hostilities and the quality of the actors are used as defining criteria to distinguish an armed conflict from banditry, terrorism, and short rebellions.” Also, Yoram Dinstein and Anthony Cullen distinguish between banditry and armed conflict in IHL.
While the catastrophic humanitarian impact of banditry is undeniable, it fails to satisfy the twin thresholds of intensity and organizational coherence established by case law and customary international law. Conflicts driven by bandits and other criminal entrepreneurs as part of organized criminal groups are therefore excluded from the application of IHL rules in non-international armed conflict. This leaves the question of how IHL (that primarily exists to promote humane standards of behaviour in situations of armed conflict) intervenes in Nigeria’s and other Sahelian security crises. If IHL does not apply, which body of law can interdict indiscriminate brutality by non-ideological armed non-State actors, particularly with the seeming impotence of many national governments across the region?
Banditry and Necessity of a Third Category
IHL recognizes only two categories of armed conflict: international armed conflict and non-international armed conflict. The prevailing consensus among jurists and courts as exemplified in the U.S. Supreme Court decision in Hamdan v. Rumsfeld and the Israeli Supreme Court’s decision in the Targeted Killing Case, emphasizes that the constituent elements of the definition and the prevailing criteria for classifying these two forms of conflict cannot be used or interpreted to create new categories of conflict that are not covered by IHL.
Importantly, armed confrontation between and among other groups which do not fall into these strict categories cannot be treated under IHL as an armed conflict, but rather remain under the realm of domestic law or other domains of international law. This is very important in the context of the irregular conflicts that predominate in the West African Sahel, where the outcomes are often deadlier than those from regular conflicts. Organized criminal groups in the region are in conflict with communities, with other groups of outlaws and against State institutions, turning the whole region into an expansive battle ground dominated by hordes of armed men numbering in the tens of thousands and unbound by any laws.
This raises fundamental questions about the relevance of IHL in these 21st century irregular theatres of conflict and the ability of the laws of war to evolve with time. Unfortunately, the established rules of IHL exclude the humanitarian crimes of bandits from the current legal framework, raising questions about the ability of IHL and even international human rights law to confront future and evolving conflicts in the zone. Although IHL may not apply to banditry in north-west Nigeria and other conflicts in the region, the activities of bandits can constitute crimes against humanity, and they can be prosecuted nationally or by the International Criminal Court, whenever international and national politics allows justice for victims.
Tosin Osasona is a Senior Research Associate at the Centre for Public Policy Alternatives, Lagos, Nigeria.
Photo credit: USAID in Africa