By James E. Archibong
Introduction
Nigeria has experienced insurgency since 2009 when the militant group, Boko Haram, took up arms against the State. It has carried out attacks on churches, mosques, motor parks, and public buildings, killing thousands of people in the process. The group despises Western education and has launched attacks on schools and killed several students in their sleep. It has forced thousands of children out of school through concerted attacks. The insurgent group also frowns on the education of girls and has abducted and enslaved many of them in the course of their operations.
In an attempt to end the insurgency, the Federal Government of Nigeria declared a state of emergency in three States of the northeast, namely Borno, Adamawa, and Yobe in May 2013. Despite this measure, Boko Haram has stepped up attacks in the three States and beyond. It has continued to target women and girls, abducting, raping and killing many of them. On the night of April 14, 2014, the jihadists went to Government Secondary School, Chibok in Borno State, and kidnapped 276 girls who were preparing for examination. Apart from the well-publicized and globally condemned abduction of the Chibok girls, there have been reports of more abduction of women by the group.
In light of the aforementioned, this work examines the position of international law on the treatment of women during armed conflict and outlines relevant international legal and institutional frameworks designed to protect women. It frowns at violence, especially of a sexual nature, inflicted on women by parties to a conflict, and highlights efforts by the international community to end such violence against them. These synergy, solidarity, and collaborative efforts have played out in respect of the efforts to free the kidnapped Chibok girls.
Violence Against Women in Armed Conflict
From time immemorial, women and girls have been subjected to discrimination, deprivation, sexual and other forms of violence during armed conflict. This position was aptly articulated at the 2008 United Nations Parliamentary Hearing as follows:
Every armed conflict is replete with sordid tales of sexual violence. For example, during World War 11, an estimated 100,000 to 400,000 female sex workers were forced to deliver sexual services to Japanese soldiers. These women and girls, some as young as eleven years old, variously called “comfort women,” “military sex slaves” or “military comfort women,” were abducted by Japanese forces, and imprisoned in military rape camps known as “Comfort Stations,” located throughout Asia. Korean and Chinese women were captured and distributed among Japanese soldiers and became their instrument of sexual gratification. This policy was approved by the Japanese Government (Women 2000, 1998; Robertson, 2002:160; Green, 2008:262). Sexual violence was committed on a large scale during the conflict in Bangladesh when mass rape was committed against Bengali women by Pakistani soldiers in 1971 (United Nations, 1994). According to Brownmiller, “girls of eight and grandmothers of seventy-five had been sexually assaulted. Pakistani soldiers had not only violated Bengali women on the spot, they abducted tens of hundreds and held them by force in their military barracks for nightly use” (Brownmiller, 1971). By the time the war was over, an estimated 200,000 to 400,000 women were raped or sexually assaulted ((Brownmiller, 1971). When Iraq invaded Kuwait in 1990, sexual violence was a frequent occurrence during the armed conflict (Women 2000, 1998). The rape of Kuwaiti women by Iraqi soldiers during the invasion was documented in UN reports (UN Report, 1992).
In Africa, sexual violence was committed in the Angolan civil war. Victims have been having difficulties regaining respect and finding someone to marry them. In Sierra Leone, systematic rape and sexual violence were used extensively with impunity, indicating a deliberate strategy to use rape and sexual violence against women and girls as a weapon of war and to instill terror.” (Amnesty International, 2000). In Sudan, rape and sexual abuse against women have been an integral part of the conflict and are too often neglected (Amnesty International, 2004). In the armed conflict in Rwanda, rape and sexual assault occurred on a massive scale. The Special Rapporteur on the situation of human rights in Rwanda estimated that between 250,000 and 500,000 rapes occurred (United Nations, 1996).
In response to the treatment of women during World War 11, the Geneva Conventions of 1949 provide that in times of armed conflict “women must be treated with all consideration due to their sex” (G.C.1 Art. 12(4); G.C.11, Art. 12(4)). The Fourth Geneva Convention specifically provides that “women must be especially protected against any attack on their honour, in particular rape, enforced prostitution, or any other form of indecent assault” (G.C.1V, Art. 27; A.P.11, Art. 76). In addition, Article 3 common to the Geneva Conventions prohibits “outrages upon personal dignity in particular humiliating and degrading treatment in non-international armed conflicts.” Protocol 2 Additional to the Geneva Conventions 1977 prohibits the following acts against persons hors de combat in non-international armed conflicts. These are violence to the life, health, and physical and mental well-being of persons, in particular, murder as well as cruel treatment such as torture and mutilation; outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault (A.P.11, Arts.4 (2)(a); (e); see also A.P.1, Arts. 75(2)(a)).
The United Nations Charter seeks to promote and encourage respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion (Articles 1(3), 13(1), 55(c) and 56 of the UN Charter). In 1946, the Economic and Social Council (ECOSOC), one of the principal organs of the UN established the Commission on the Status of Women as part of its mandate to promote women’s rights (Articles 62(2) and 68 of the UN Charter). The Universal Declaration of Human Rights 1948 (G. A. Res. 217A (111) of December 10, 1948) gave birth to the major human rights instruments and also prohibits discrimination based on sex (Art. 2; see also Art. 16 of December 10, 1948).
Despite the legal and institutional framework for the protection of women, war-time violence against them remains a global problem. The rationale for the use of sexual violence has been given by Askin (1997:296) as follows:
Africa has for many years been a theatre of armed conflicts, which may be categorized into pre-colonial and post-colonial armed conflicts. The countries worst affected were Liberia, Sierra Leone, Sudan, Rwanda, Burundi, Angola, Cote D’Ivoire and Democratic Republic of Congo. Some of the conflicts are over while others are still ongoing. These contemporary armed conflicts are attributable to several factors such as ethnic competition for control of the state; continuation of liberation conflicts; fundamentalist religious opposition to secular authority; warfare arising from state degeneration or state collapse; protracted conflict within politicized militaries; and border disputes. Women suffered the most in the war in African countries. In Rwanda, rape was the rule, and its absence was the exception. It took place on a massive scale. The turning point came in 1992 when the UN Security Council established the International Tribunal for the former Yugoslavia (Statute of the ICTY, 25 May 1993). Rape is categorized as a crime against humanity under the Statute of the ICTY (Article 5(g) Statute of the ICTY).
The Security Council also established the International Criminal Tribunal for Rwanda (ICTR)(S.C. Res. 955 (1994) and the Special Court for Sierra Leone (SCSL)(S.C. Res. 1315 (2000)) to try, among others, crimes of sexual violence committed during those conflicts.
The 1998 Rome Statute setting up the International Criminal Court (ICC) provides that “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence of comparative gravity” are to be considered war crimes. They constitute crimes against humanity if they are knowingly committed as part of a widespread or systematic attack on a population.
The United Nations took a strong initiative to curb violence against women in armed conflict when the Security Council adopted Resolution 1325 on women, peace, and security, which was passed unanimously on October 31, 2000 (S/RES/1325). There have been numerous other UN Security Council resolutions demanding immediate and complete halt to acts of sexual violence against women and girls in conflict zones (Res. 1820 of June 19, 2008; Res. 1888 and Res. 1889 of 2009). The United Nations has also responded to war-time violence against women by establishing the Special Rapporteur on Violence against Women and the Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, as well as the convening of international conferences (These include The Vienna Conference on Human Rights 1993 and the Fourth World Conference on Women, Beijing 1995).
Concerning the abuse of the rights of women including sexual violence during armed conflicts, regional organizations have put in place institutions, mechanisms, and legal frameworks to address such violations. In Europe, the European Court of Human Rights held that the rape of a female detainee, a 17-year-old Turkish citizen of Kurdish parentage by the security forces, amounted to torture (Aydin v. Turkey Eur. Court of Human Rights, Judgment, September 1997, 1891).
The Inter-American Commission of Human Rights stated in respect of the rape of a woman by Peruvian military personnel that “current international law establishes that sexual abuse committed by members of security forces, whether as a result of a deliberate practice promoted by the state or as a result of failure by the state to prevent the occurrence of this crime, constitutes a violation of the victim’s human right, especially the rights to physical and mental integrity (Annual Report, Inter-American Commission on Human Rights, 1995:58-159).” This was a violation of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women 1994.
The African Approach
In Africa, the framework to protect women from violence is provided for in the AU Protocol (also known as the Maputo Protocol) to the African Charter on Human and People’s Rights was adopted on 11 July 2003 (OAU Doc.CA/LEG/66.6 (2000)). It came into force on 26 November 2005 after Togo became the 15th State to ratify the Protocol. African women have suffered discrimination, abuse, and other violations of their rights. The Protocol to the Charter on Human and Peoples’ Rights on the Rights of Women in Africa is a recent attempt to change this situation (Ebeku, 2006:24).
Abuses suffered by women are rooted in age-long customary practices. Violence against women is very common and rampant in Africa, thereby violating their rights to life, integrity, and security ((Ebeku, 2006:25). In this regard, the Protocol seeks to improve the status of African women by bringing about gender equality and eliminating all gender-based discriminations ((Ebeku, 2006:25). Article 2(2) of the Protocol provides that:
This provision echoes Article 5(a) of the Convention on the Elimination of All Forms of Violence against Women (Rehman,2010:517). The Protocol contains provisions dealing particularly with the rights to life, integrity, and security of the person. It encourages States to enact laws to prohibit all forms of violence against women (Ebeku, 2006:74). Article 4 (2) provides among others that States Parties shall take appropriate and effective measures to enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public; and adopt such other legislative, administrative, social and economic measures as may be necessary to ensure the prevention, punishment and eradication of all forms of violence against women. Article 5 provides that harmful traditional practices against women should be done away with. In addition, States undertake in Article 11 (3) to protect women against all forms of violence, rape, and other forms of sexual exploitation, and to ensure that such acts are regarded as war crimes, genocide, and/or crimes against humanity.
The Protocol has some weaknesses or limitations. However, it has been described as “an important instrument for the attainment of non-discrimination and respect for the human rights of women in Africa” (Ebeku, 2006:29). It has influenced positive developments regarding gender equality in Africa. The Protocol is indeed a significant step in the struggle for gender equality and represents a new hope for African women (Ebeku, 2006:26). In the area of implementation of the Protocol, the responsibility falls on the African Court on Human and Peoples’ Rights. Article 27 of the Protocol vests in the African Court on Human and Peoples’ Rights jurisdiction concerning matters of interpretation that may arise from the application or implementation of the Protocol.
i ). The African Court of Human and Peoples Rights
Violence against women in armed conflict is a violation of their rights. For the African Union, the enforcement of human rights has been an important item on its agenda (Lyons, 2006). To achieve this goal, African Heads of State signed a Protocol to establish the African Court of Human and Peoples’ Rights (ACHPR) at the Organization of African Unity summit in Burkina Faso in 1998. This makes the Court the legal institution for the enforcement of human and peoples’ rights in Africa (The Protocol came into force in January 2004 upon its ratification by fifteen member States.).
The ACHPR is one of the three regional human rights courts (The others are the European Court of Human Rights and the Inter-American Court of Human Rights ) and complements the protective mandate of the African Commission on Human and Peoples’ Rights (African Court on Human and Peoples’ Rights at www.african-court.org/en/ (last visited 6/3/2012). As of February 2012, twenty-six African Union Member States have ratified the Protocol establishing the court (The States are Algeria, Burkina Faso, Burundi, Cote d’Ivoire, Comoros, Congo, Gabon, Gambia, Ghana, Kenya, Libya, Lesotho, Mali, Malawi, Mozambique, Mauritania, Nigeria, Niger, Rwanda, South Africa, Senegal, Tanzania, Togo, Tunisia, and Uganda). The functions of the Court include the following: to collect documents and undertake studies and research on human and peoples’ rights matters in Africa; lay down rules aimed at solving the legal problems relating to human and peoples’ rights; Ensure protection of human and peoples’ rights; and interpret all the provisions of the Charter.
The main reason for the setting up of the Court is to put in place an effective and independent African court that will provide justice to victims of human rights violations and strengthen the machinery of human rights protection in Africa. The Court has jurisdiction over human rights violations. Individuals and non-governmental organizations are competent to bring cases before the Court. The importance of the provision allowing individuals and NGOs to bring an action before the Court for redress has been stressed. According to Ebeku (2006:31), “Without it, individuals and NGOs would not have standing before the Court, and this can render the implementation of the Protocol somewhat ineffective, as competent bodies may not be interested in the pursuit of some cases.” However, article 34(6) places a limit on or an obstacle to the ability of individuals and NGOs to initiate such action by providing that States shall accept the competence of the African Human Rights Court to receive cases. This requirement, according to Ebeku, (2006:32) “poses a great challenge to the enforcement and implementation of the Protocol; it may well render this means of implementation impotent, as some states might be reluctant to allow individuals and NGOs to drag the state before the Court with the attendant financial and other implications.”
The creation of the Court has been described as a watershed and the beginning of human rights enforcement in Africa (Lyons,2006). However, the effectiveness of this Court has been called into question. The Court was established in 1998 and had not heard any case more than ten years after (Minority Rights Group, 2008). The first case that came before the court was between Michelot and the Republic of Senegal on 15 September 2009. On 15th December 2009, the Court delivered its first judgment finding the application against Senegal inadmissible.
Another critical area is the enforcement of the judgment of the Court. In this regard, States Parties to the Protocol, assume responsibility to abide by the Court’s judgment in any case to which they are parties. There may be difficulties in enforcement as compliance is still essentially voluntary (Lyons, 2006). The Council of Ministers must observe the implementation of the judgment of the Court. However, it lacks enforcement power. According to Lyons, while the Court shall report to the Assembly of Heads of State and Government each year as to which State has not complied with Court judgments, it is unclear what mechanisms can enforce compliance (Lyons, 2006).
ii). The African Court of Justice
The African Union adopted a Protocol in 2003 to establish the African Court of Justice as its main judicial organ and vested it with power to settle disputes and interpret treaties. There has however been a move to merge the African Court of Justice with the African Court on Human and Peoples’ Rights. At the African Union Summit of July 1, 2008, in Sharm El Sheikh, Egypt, the Heads of State and Government adopted a Protocol establishing the African Court of Justice and Human Rights (The new court will have two chambers – one for general legal matters and the other for human rights matters). The united court will be based in Arusha, Tanzania.
The Nigerian Experience
International law also imposes upon states obligations to ensure the protection of women in situations of armed conflict and the prevention of sexual violence against them. In the implementation of international humanitarian law, States parties have undertaken to respect relevant treaties. States are obliged to implement the treaties and incorporate some measures into national legislation (Article 80, AP1). Nigeria is one of the countries that provide for the prohibition of sexual violence against women in its military manual. Nigeria’s Operational Code of Conduct (1967) provides: “Women will be protected against any attack on their person, honour and in particular against rape or any form of indecent assault” (Article 80, AP1). In addition, sexual violence perpetrated during armed conflicts may be prosecuted by competent domestic tribunals. The federal government of Nigeria has taken steps to ensure the release of the Chibok girls. It set up a committee to investigate the circumstances surrounding their abduction in addition to other strategies it has initiated to rescue the girls. The committee has submitted its report to the government.
Support from the International Community
The plight of the kidnapped Chibok girls and efforts to rescue them attracted the sympathy and support of the international community. Some countries have already pledged different kinds of assistance to Nigeria in the search and rescue mission. The United Kingdom said it would dispatch experts to Nigeria to assist in planning, coordination, and advisory capacities. France promised to send a team of specialists to Nigeria, in addition to holding a summit with Nigeria and its neighbours on ways of tackling the issue. The Chinese government undertook to share with Nigeria “any useful information acquired by its satellites and intelligence services.” Other countries that have offered to join the international efforts to free the Chibok girls are the United States, Australia, Canada, Iran, and Israel. The European Union adopted a resolution on July 17, 2014, “calling for immediate and unconditional release” of the girls.
Conclusion
It is more than four months since the Chibok girls were abducted and taken to an unknown destination. Apart from the few that escaped, more than 200 of them are still in captivity. In addition to the efforts by the federal government to rescue them, there have been appeals and public demonstrations for their release. Prayers have also been offered on their behalf for divine intervention. It must be pointed out that the girls are not prisoners of war and cannot be used as a ploy for bargaining by the insurgents. Their continued detention and incarceration is a violation of the 1949 Geneva Conventions, 1977 Additional Protocols, and customary international law on the laws and customs of war. Perpetrators of such acts of violence against women and girls in armed conflicts are individually criminally responsible for war crimes and crimes against humanity and will account for their actions before a court of justice no matter how long it may take.
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This work was originally published in Judiciary, Leadership and Governance in Nigeria: Essays in Honour of Honourable Justice Okoi Ikpi Itam, University of Calabar Press, 2014 pp 57-68
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