Nigeria’s Legal Obligations

Nigeria’s 1999 federal constitution provides safeguards for the rights of citizens to dignity of human persons,[158] personal liberty,[159] and freedom of thought, conscience, and religion.[160] Boko Haram insurgents have repeatedly and mercilessly violated these rights. The government at all levels has the obligation to ensure that Boko Haram does not interfere with the enjoyment of these rights.

Nigeria’s Child Rights Act of 2003 also provides extensive protection for children in conflict situations and prohibits child labor, sexual abuse and exploitation of children, and child betrothal and marriage. Due to the federal system of government, the Act is applicable only in the federal capital territory, while the parliament in the other 36 states must pass the law for it to operate in those states. None of the three states under emergency rule have passed the Child Rights Law.

In August 2013, the Nigerian government launched a National Action Plan (NAP) on the implementation of Security Council Resolution 1325. In launching the plan, the government committed to prevent sexual violence during and after conflict, establish special courts to prosecute conflict-related sexual violence and take measures to ensure that women can participate at all levels of peace and security negotiations and discussions.

Regional and International Human Rights Law

Nigeria has ratified many regional and international treaties that mandate the protection of residents from abduction, violence, torture and other ill-treatment, slavery, forced prostitution, and discrimination based on sex.[161] These instruments also obligate Nigeria to adopt effective measures for the prevention, investigation, prosecution, and punishment of serious human rights abuses. Under the agreements, Nigeria must ensure its citizens the right to education and the highest attainable standard of health, and provide redress and reparations to victims of serious human rights abuses.[162]

Right to Freedom from Gender-Based Violence

Among their basic human rights, women and girls have the right to bodily integrity, to security of person, and to freedom from torture and cruel, inhuman, or degrading treatment. These rights are enshrined in the Universal Declaration of Human Rights, Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture, the African Charter on Human and Peoples Rights, African Charter on the Rights and Welfare of Women in Africa, Maputo Protocol, and African Charter on the Rights and Welfare of the Child.

Human rights protections against sexual violence also apply to persons under 18 years old. The Convention on the Rights of the Child (CRC), which states that children must be protected from “all forms of physical or mental violence,” ensures that victims of such acts receive legal and psycho-social redress.[163] The ICCPR grants every child the right to “such measures of protection as are required by his status as a minor.”[164] Under the African Charter on the Rights and Welfare of the Child, states must take preventive and remedial measures against child abuse and torture, particularly sexual abuse.[165]

Right to Education and Health

Boko Haram is systematically undermining several other key rights including the rights to education and health both enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR), CRC and Convention on the Rights of Persons with Disabilities (CRPD).[166]

The right to education without discrimination is enshrined in the ICESCR and the CRC, which provide that primary education should be compulsory, available and free to all, and secondary education should be available and accessible.[167]

Article 12 of the ICESCR obliges governments to ensure non-discriminatory access to health care, especially for vulnerable or marginalized groups.[168] The right to health includes an obligation to protect women and girls from violence. Violations of the right to health include “the failure to regulate the activities of individuals, groups or corporations so as to prevent them from violating the right to health of others” and “the failure to protect women against violence or to prosecute perpetrators.”[169] The United Nations special rapporteur on the right to health has said that rape and other forms of sexual violence represent a “serious [breach] of sexual and reproductive freedoms, and are fundamentally and inherently inconsistent with the right to health.”[170]

The right to health also includes the right to access information concerning health. The Committee on Economic, Social and Cultural Rights has stated that “the realization of women’s right to health requires the removal of all barriers interfering with access to health services, education and information.”[171] The CRPD requires the government to “ensure access … to health services that are gender-sensitive, including health-related rehabilitation.”[172]

Right to a Remedy

By ratifying the ICCPR, the Convention against Torture, and other human rights treaties, Nigeria has assumed a positive obligation to address violence against women. Whether the violence is perpetrated by government authorities or by others, international law requires that Nigerian authorities exercise due diligence to prevent, investigate, prosecute, and punish acts of violence against women.[173]

A victim also has the right to an effective remedy when rights have been violated.[174] The ICCPR provides that any person claiming a remedy “shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State.”[175]

The Human Rights Committee, which monitors implementation of the ICCPR, has emphasized that governments must ensure “accessible and effective remedies” for human rights violations and to take into account “the special vulnerability of certain categories of person,” further noting that “a failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant.”[176]

Nigeria assented to these obligations when it ratified CEDAW, ICCPR, ICESCR, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Nigeria’s government has also domesticated the African Charter on Human and Peoples’ Rights, the African Charter on the Rights and Welfare of Women in Africa (and Maputo Protocol), the African Charter on the Rights and Welfare of the Child, and provisions of the Convention on the Rights of the Child in the Child Rights Act, 2003. It has thus acknowledged its agreement that the abduction of women and girls and the violence against them, by Boko Haram in this instance, constitute human rights violations that require immediate remediation.

Application of International Criminal Law

In 2013 the Office of the Prosecutor of the ICC characterized the situation in northeast Nigeria as a non-international armed conflict.[177] It also concluded that, “With respect to alleged crimes committed by Boko Haram, the information available provides a reasonable basis to conclude that the contextual elements required for such acts to amount to crimes against humanity are met.”[178] The prosecutor noted in February 2014 that the recent upsurge in attacks involved serious crimes, including those targeting women and children.[179]

Similarly, the evidence collected by Human Rights Watch very strongly indicates that some of the unlawful killings committed by Boko Haram rise to the level of crimes against humanity. These are grave criminal acts, including murder, committed by an organized group as part of a widespread or systematic attack against any civilian population.

Since 2009 and with even greater frequency since mid-2013, Boko Haram has perpetrated several hundred attacks against civilian individuals and places, including schools, markets, churches, and towns and villages. Several thousand victims—school children, market women, traders, youths watching soccer matches, worshipers, and drivers and passengers plying northern highways—were very clearly non-combatants.

The evidence strongly indicates that the present situation in the three northeast Nigerian states under a state of emergency (Borno, Yobe, and Adamawa states), especially Borno State, constitutes an armed conflict of non-international character and therefore international humanitarian law (IHL), also known as the laws of war, applies.[180] Human rights law applicable in Nigeria continues to apply during the armed conflict.

The existence of an armed conflict is demonstrated by the degree, intensity and protracted nature of the fighting, and the organizational capacity of the parties to the conflict.[181] The intensity of the conflict steadily intensified in 2014 in Borno, Yobe, and Adamawa states with increasing number of casualties during attacks carried out by Boko Haram fighters against towns and villages in these three states.[182]

Since the beginning of 2014 Boko Haram has seized, and in many cases remained in control of numerous towns and villages in Borno, Yobe, and Adamawa states.[183] The group has effectively repelled security forces efforts to regain most of those territories, inflicted considerable damage to critical infrastructure like bridges and communication installations, and forced thousands of residents to flee.[184] Boko Haram has also demonstrated an ability to synchronize suicide and other bombings in different locations across the three states.[185]

Nigeria is state party to the four Geneva Conventions of 1949 and the two Additional Protocols of 1988, which impose upon all parties to an armed conflict a legal obligation to reduce unnecessary suffering and minimize harm to civilians. International humanitarian law applies to both government armed forces and non-state armed groups.[186]

A fundamental principle of the laws of war is that parties must at all times distinguish between civilians and combatants, and between civilian objects and military objectives. Attacks may only be directed at combatants and military objectives.[187]

Civilians are only subject to attack when and for such time as they are directly participating in hostilities. Where there is doubt as to whether a person is a civilian or a combatant, that person must be considered a civilian.[188]

Military objectives are those targets that “by their nature, location, purpose or use, make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”[189] These include, but are not limited to, military personnel, weapons and ammunition, and places of military deployment and operations.

Civilian objects are buildings and structures that are not considered military objectives.[190] In general, the law prohibits direct attacks against what are normally civilian objects, such as homes and apartments, places of worship, hospitals, schools and universities, and cultural monuments, unless they are being used for military purposes.[191]

Individuals who commit serious violations of international humanitarian law with criminal intent can be prosecuted in domestic or international courts for war crimes. Among the war crimes set out under the Rome Statute of the International Criminal Court is “intentionally directing attacks against buildings dedicated to … education … provided they are not military objectives,”[192] as well as the taking of hostages. States have an obligation to investigate alleged war crimes committed by their nationals, including members of the armed forces, and prosecute those responsible.[193] Non-state armed groups also have a legal obligation to respect the laws of war, and thus a responsibility to ensure that their commanders and combatants abide by their requirements.[194]