Nigeria's Federal Government recently inaugurated a Judicial Commission of Inquiry to review compliance of the Nigerian Armed Forces with human rights obligations and rules of engagement, especially in local conflict and insurgency situations.
It is headed by a serving judge of the Court of Appeal, Justice Georgewill. Many would agree that such a mechanism is both overdue and a potential milestone in civilian oversight of the military. While the mandate of the Justice Georgewill Commission includes hostilities all across the country, this article examines the potential impact this Commission will have in north-east of Nigeria, where the Armed Forces have been engaged in what has now been agreed as a non-international armed conflict (NIAC) and the scope it will have for improving the human rights obligations of the Armed Forces.
Firstly, this could become the most significant inquiry by the Federal Government into human rights compliance by the Nigerian military. The only other such comparable inquiry in Nigeria's history was after the return to civilian rule when President Obasanjo set up 'The Judicial Commission for the Investigation of Human Rights Violations' more popularly known as the 'Oputa Panel'. Its mandate was to investigate various dimensions of cases of gross human rights violations in the country between 15 January 1966 and 28 May 1999. However, the mandate of the Oputa Panel was not limited to investigating only the Armed Forces. It was to review far reaching issues affecting human rights in Nigeria's history. Although senior Military officials appeared before the panel, three former Heads of State summoned to appear refused to do so. At the request of one of them, General Babangida, the Supreme Court exenterated the Panel, ruling that it was not a judicial commission of inquiry as defined by the Commissions of Inquiry Act and lacked powers of subpoena.
Another notable recent effort was the inquiry in 2014 by the National Human Rights Commission headed by the then Chairman of its Governing Council, Chidi Odinkalu, into the killing in Apo, Abuja, in a joint operation by the Army and the State Security Service (SSS) of several civilians for allegedly belonging to the Jama'atu ahlus sunnah lid da'awati wal jihad (JALISWAJ, also known as 'Boko Haram'). This panel found the security operatives culpable and made recommendations including that the Federal Government undertake a review and harmonization of the Rules of Engagement governing the operations of security agencies to bring them into compliance with the applicable rules of international humanitarian law governing NIACs. This was never done.
There have been some panels set up by States Government to investigate specific incidents involving the military and civilians but none can compare to the scale this current Judicial Commission has in terms of its mandate. The opportunity presented this Judicial Commission is therefore both historical and monumental.
Secondly, the Terms of Reference require the Georgewill Judicial Commission to appraise the extent of compliance by the military with the African Charter on Human and Peoples Rights. All African countries subscribe to this Charter. This Charter established the African Commission on Human and Peoples' Rights headquartered in Banjul, the Gambia. It supervises implementation of the Charter and formulates standards, principles, and rules to guide African countries in understanding and complying with their obligations under it.
In 2015, the African Commission adopted the 'Principles and Guidelines on Human and Peoples' Rights while Countering Terrorism in Africa'. These Principles and Guidelines accord priority to victims and underscore that African countries have obligations to prevent terrorism, protect their populations from terrorism and also to ensure accountability and to provide an effective remedy for acts of terrorism.
The Principles and Guidelines have been developed with the clear understanding that terrorism is a violation of human rights and the fight against it should also be underpinned by legality. The rights of victims should be protected through State established mechanisms. The Principles and Guidelines amongst other things, contextualize terrorism; promote respect for human rights while combating terrorism, and seek to encourage the use of human rights to reduce its prevalence. The African Union encourages African governments to apply and draw inspiration from these Principles and Guidelines in deploying their counter terrorism operations.
These Principles and Guidelines are relevant for the Nigeria context because, among other things, they require that all officials who are involved in counterterrorism measures are properly trained. This includes reviewing of codes of conduct to ensure they comply with the Principles and Guidelines. In May 2017, in Niamey, Niger Republic, considering the poor compliance by African Countries with the Principles and Guidelines, the African Commission adopted Resolution 368 (LX) 2017 requiring African countries to take all necessary steps to comply with the Principles and Guidelines. Nigeria was an active participant at the session in which this resolution was adopted. The Georgewill Commission of Inquiry could put Nigeria on the path to compliance with the Principles and Guidelines as an example for other African Countries by using the Principles and Guidelines as part of its reference documents and making recommendations that ensure Nigeria fulfills its Charter obligations.
Lastly, the biggest challenge for the Justice Georgewill Commission of Inquiry will be in envisioning remedies for victims of military violations, including those occurring in counter-terrorism operations. In most cases, the military has denied allegations of violations of human rights abuses levelled against it. However, in many cases too, several General Court Martials set up by the military in the last few years have tried officers and soldiers for violations, including unlawful killing. Punishments have included demotions, imprisonment and capital punishment. The military has made an effort to reinvent itself in line with the new frontiers it has found itself including the recent establishment of a human rights desk. What has been missing though is an independent search for the truth on how security officials have engaged the insurgency and the unintended consequences of their operations.
It is important that this accountability mechanism in the Justice Georgewill Commission of Inquiry should receive the willing co-operation of the military and of non-state actors from across Nigeria. This accountability mechanism should also be extended to other security agencies and non-state actors involved in the hostilities in the North East.
By Catherine Kyenret Angai, Program and Advocacy Coordinator at the Open Society Initiative for West Africa.
