Is the military guilty of war crimes? by PRECIOUS IGBONWELUNDU

About a month ago, the global rights watchdog, Amnesty International (AI), indicted the military for war crimes in a report titled: “Stars on their shoulders, blood on their hands”. Since then, there has been a clamour for a probe of the report. The Federal Government has since launched such a probe. But some groups, such as Access to Justice (AJ) and Borno/Yobe Forum, are calling for a judicial panel of enquiry into the allegations. Is that necessary? Under what legal parameters will the panel operate and what will be its terms of reference?  PRECIOUS IGBONWELUNDU sought lawyers’ views.

On June 3, global watchdog Amnesty International (AI) published horrid details of alleged war crimes by the military which is battling terrorism in the Northeast.

The report sparked mixed reactions. Some hailed the report; others condemned it. Civil society groups tongue lashed AI for always publishing damning reports whenever Nigerian troops were having upper hand over the insurgents.

The Coalition of Nigerian Election Observers slammed AI for what it called blatant act of irresponsibility. The group, comprising about a hundred civil society organisations, urged the Federal Government to motivate the military to sustain the gains recorded in prosecuting the war against terrorism, calling the report a smear campaign.

But the Borno/Yobe Forum, while demanding a judicial inquiry, said AI’s report was an understatement of the alleged atrocities committed by the military in the Northeast. It claimed that it has consistently drawn government’s attention to the need to make the armed forces respect their rules of engagement in such operations, adding that documented incidences of arbitrary arrests, rape, detention and wanton destruction of lives and property have been secured and presented as proof of the alleged excesses of the military.

 

AI’s Allegations

In the report titled “Stars on their shoulders. Blood on their hands: War crimes committed by the Nigerian military”, the organisation accused some military commanders of extra-judicial killings, torture, enforced disappearance, high-handedness and sundry crimes in the prosecution of the battle against Boko Haram insurgents.

It claimed that its report was based on years of research, analysis-including leaked military reports and correspondence, as well as interviews with more than 400 victims, eyewitnesses and senior members of the Nigerian security forces – and called for an independent, impartial investigation into the allegations as well as trial of retired and serving high ranking military personnel found wanting.

The report revealed that more than 7,000 young men and boys died in military detention facilities from March 2011 and over 1,200 people unlawfully killed from February 2012; 47 detainees died on June 19, 2013, at Sector Alpha detention centre (Guantanamo) as a result of suffocation; and more than 500 bodies (those who died from diseases) buried in and around ‘Rest House’, a detention facility in Potiskum, Yobe State.

It alleged that 683 detainees died in custody between October 2012 and February 2013; more than 4,700 bodies brought to a mortuary from a detention facility in Giwa Barracks; and more than 1,400 corpses deposited in the mortuary in June 2013 alone.

More than 20,000 young men and boys arrested, mostly arbitrarily, since 2009 with some of them as young as nine years old; almost none of the detainees have been prosecuted, while all have been without the necessary safeguards against murder, torture and ill-treatment; detainees are held incommunicado in extremely overcrowded, unventilated cells without sanitary facilities and with little food or water; around 300 people died in a cell in Giwa Barracks of two-days water starvation; emaciated corpses in mortuaries.

It outlined the roles and possible criminal responsibilities of those along the chain of command – up to the Chief of Defence Staff and Chief of Army Staff – and named nine senior Nigerian military figures who should be investigated for command and individual responsibility for the crimes committed.

Salil Shetty, Amnesty International’s Secretary-General, said: “This sickening evidence exposes how thousands of young men and boys have been arbitrarily arrested and deliberately killed or left to die in detention in the most horrific conditions. It provides strong grounds for investigations into the possible criminal responsibility of members of the military, including those at the highest levels…

“Whilst an urgent and impartial investigation of these war crimes is vital, this report is not just about the criminal responsibility of individuals. It is also about the responsibility of Nigeria’s leadership to act decisively to end the pervasive culture of impunity within the armed forces,” he said.

Although the military debunked the allegations in strong terms and maintained they have followed the rules of engagement and ensured professionalism, President Muhammadu Buhari in upholding human rights of the citizens promised to investigate AI’s claims.

However, analysts believe the President should ignore the demand for a judicial commission of inquiry being made in some quarters, because it is unnecessary and diversionary. They have argued that fighting terrorism is not conventional warfare, else, the United States would not have killed Osama Bin Laden the way it did.

The observers have accused the international body as well as all those clamouring for judicial inquiry of a plot to demoralise the troops as well as distract them from the gains recorded so far, thereby empowering the terrorists for more vicious attacks and wanton killings.

Instead of constituting a judicial commission of inquiry at this moment when the priority should be fighting, observers are of the view that government should probe the allegations administratively, without interfering with or obstructing the troops in their national assignment.

 

Lawyers’ speak

Legal practitioners also believe that the call for judicial inquiry is misplaced and a distraction from the major issue. They believe that the focus at the moment should be containing the monstrous activities of the sect, which have killed thousands of innocents.

The lawyers, who all opposed any independent findings into the allegations for the time being, urged the government to apply caution, in order not to be deceived by international bodies who benefit from the crisis.

‘‘Honestly, I have never taken warmly to the allegations. AI took so much trouble trying to detail the harm done by our troops to Boko Haram and their sympathisers without caring for the thousands of lives lost to Boko Haram’s brutality.Professor of Law Itse Sagay (SAN) said there was no need for any probe whatsoever, advising the government to discard the report.

‘‘My attitude is that they are sponsors of Boko Haram. I do not take them seriously and if I was President, I would have shut their offices in Nigeria and deported them. I do not see the need for any probe whatsoever. There is no need and I think the President should not allow them distract him.”

Senior lawyer Chief Felix Fagbohungbe (SAN) said the government should defer any intentions to probe the allegations and allow the military complete its operations.
He noted that though it is proper to investigate in order to indict or exonerate the institution and persons mentioned in the report, the issue is a sensitive one, which cannot just be exposed to the world because of national security.

‘‘This is a sensitive issue that cannot just be exposed to the world. I do not think judicial inquiry is appropriate here because issues that could jeopardise national security would arise and the war has not been completed.

‘‘The government’s machinery is wide and I believe these allegations can be probed administratively, discouraging the military in its assignment. To me, the government should defer any probe intentions because winning the war is our priority at the moment.

‘‘Setting up judicial commission of inquiry would discourage soldiers and endanger more innocent lives,’’ he said.

Similarly, constitutional lawyer Dele Adesina (SAN) advised the government to set up an administrative committee through the office of the National Security Adviser (NSA) to investigative the authenticity and veracity of the claims.

He dismissed the idea of a judicial inquiry on grounds that security matters are treated with caution.

‘‘The allegations are weighty and should not be easily disregarded by the government as mere noise making or irrelevant. I am of the view that the government should investigate, whether it is true or not and to also know the extent to which they are true.

‘‘But I would not support a judicial commission of inquiry. I may prefer an administrative inquiry because security issues are involved. Apart from that, a section of Nigeria is at war and the war has not been concluded.

‘‘The President is the Commander-in-Chief of the Armed Forces and so, he can, in that capacity, set up an inquiry that will answer to him. They will make their findings known to him because the aim is to discover the truth or otherwise of the allegations.

‘‘It is important to note that the armed forces have joined issues with AI and dealso a statement of fact that the territorial integrity of this nation is being challenged by Boko Haram and the country cannot fold its arms while part of its territory goes down.

‘‘This is why we have to be careful. I would rather advocate for an administrative inquiry headed by the NSA, not a judicial inquiry,’’ said Adesina.

Former Attorney General and Commissioner of Justice in Edo State Dr. Osagie Obayuwana also approved any other method of investigation except for judicial inquiry.

He noted that as serious as the allegations were, they should not be the priority of government, but should rather be probed after the war must have ended as part of the lessons learnt.

Obayuwana however advised the President to make a declaration on the need for the troops to uphold international best practices and stick to the rules of engagement during operations, so as to avoid allegations of human right abuses.

‘‘The government cannot turn a blind eye as long as those issues have been raised. But I think they are distractions and should not be treated like priority. In as much as I am not justifying the allegations of human rights abuses, we have to appreciate that the troops are not fighting conventional war.

‘‘That notwithstanding, there are laws and standards of wars, even when guns are booming. The rules of engagement say there should be no raping of women and children; no killing of unarmed persons or those who have surrendered and no looting.

‘‘I think the substance of the allegations is that people who were arrested on allegations that they are Boko Haram members or supporters, which could not be substantiated, were killed on the basis of the allegations that may have been untrue.

‘‘It is true that people can use the terror siege to settle personal scores and communal clashes by falsely indicting their rivals as terrorists. There were also allegations of vengeance killings against our soldiers, if true, this is also wrong because it offends the principle of separation of powers.  There is no basis for a soldier to kill an unarmed suspect or supporter of Boko Haram.

‘‘I think our soldiers should be trained to appreciate the legal standards. However, the barbarism of Boko Haram has conditioned the attitude of the average Nigerian, soldier or not. It makes people believe that subjecting them to trial is a waste of time, but we must discourage wanton killings, including by the state.

‘‘A commission of inquiry right now can only look at the evidence AI has put up, giving that the reign of terror is still ongoing. The war is still raging and more atrocities are being committed. So, i do not support that now.

‘‘Rather, I think the President can make a statement reminding soldiers of the law of conflicts. Maybe, when the war is over, we can constitute the panel as part of our learning process,’’ said Obayuwana.

For Lagos based lawyer Monday Ubani, caution must be exercised in dealing with the allegations raised by AI, calling on the NHRC to do their job.

As serious as the allegations are, Ubani said he does not support any Judicial Commission of Inquiry into the matter.

‘‘In Nigeria we have a credible body like Human Rights Commission that is set up for situations like this. It is headed by erudite Professor Anselem Odinkalu, and has shown credibility in their investigations so far on human rights violations in Nigeria.

‘‘I am not in support of any judicial panel or any other panel for that matter to investigate this allegation. Let the Human Rights Commission carry out its statutory role in investigating this allegation and report appropriately.

‘‘Their findings and recommendations should be taken seriously and implemented. If there are parties who are found culpable, my advice is that they should not be spared by the law of the land.

‘‘Having said this, we must also caution that as a nation we must not fall into the trap of the international bodies whose ultimate purpose is to mislead and distract the present government in vigorously pursuing the goal of ending the present insurgency in Nigeria.

‘‘There may be nations and international bodies who may be beneficiaries of the present insurgency in Nigeria and there is a possibility for them to use Amnesty International to send Nigeria on a wild goose chase.

‘‘Therefore, we must be very careful not  to be swayed by these latest statistics of deaths of insurgents whereas the same body has not been very diligent in providing statistics of those that the insurgents have mass murdered over these years.

‘‘Caution should be the watchword. If the evidence of Amnesty International appears credible and incontrovertible, then the appropriate body which to me seems to be the Nigerian Human Rights Commission should be reminded to step in to perform its function as mandated by law.’’

NATION