Framing the Boko Haram Insurgency: An Assessment of Applicable Domestic and International Laws and Criminal Responsibility of Insurgents

This thesis analyses the situation of violence perpetrated by the armed group popularly known as Boko Haram in North East Nigeria. This violence has persisted since 2009 resulting in the loss of about 30,000 lives, displacement of over 2.5 million and destruction of property worth millions of dollars. The complex nature of the violence has raised questions as to its classification. It has been framed as terrorism by Nigerian government actors (the Army and the Justice sector); and by the international community, media and NGOs it has been framed as an armed conflict because of the intensity of the violence and level of organisation of the armed group. Such issues around how the violence is framed have an impact on applicable laws, legal responsibilities and determines the applicability of transitional justice mechanisms. This PhD research will consider these conflicting categorisations and their implications. It will address the main research question of: To what extent may the Boko Haram violence be framed as an armed conflict? In order to address this main question, it will also shed some light on the following sub-questions of: a. Who are the key stakeholders in the framing of the violence? b. How has the Boko Haram violence been framed by different stakeholders? c. How does their differing framing of the violence impact on the domestic and international laws applicable to the violence? The research was conducted using two methodological approaches to address the research questions: (1) a doctrinal / positivist; and (2) constructivist approach. The doctrinal / positivist approach was used to analyse the black letter laws in the domestic criminal codes of Nigeria, and also in international treaties on International Humanitarian Law and terrorism; while the constructivist approach was used to analyse the perspectives of different actors and their contributions to framing of this conflict. This thesis found that despite the framing by Nigerian authorities of the insurgency as a domestic issue, the facts illustrate the existence of an armed conflict and violations of international humanitarian law relating to a non-international armed conflict. Furthermore, it showed that the framing by domestic authorities of the violence as a terrorism / law and order issue influenced the charges brought against ‘terrorists’ tried in Nigerian courts as well as the possible remedies for victims. The thesis found that, at present, Nigeria only implements transitional justice remedies in a piecemeal fashion, inhibiting proper reconciliation to take root. This PhD research argues that the crimes committed by Boko Haram should be treated, at least in part, as an armed conflict and violations of International Humanitarian Law that trigger transitional justice processes in Nigeria aimed at promoting remedies for victims and reconciliation in society. It applies a constructivist lens to the framing of the violence in Nigeria. This is an original approach that has previously not been used in analysing the violence. The use of this approach is important because it allows for the consideration of different framings of the violence, different applicable laws and provides insight into the reasoning of national authorities. The ultimate impact of this approach is on the victims as this would increase protections for civilians and widen the scope of remedies available to address harm done. This research contributes to existing literature on the relationship between terrorism and international humanitarian law by categorising state responses to the issue in two categories i.e. restrictivist and expansionist. This is integral to the thesis as the argument made is that the existence of terrorist acts or the designation of certain parties to the conflict as ‘terrorist’ does not necessarily alter the application of IHL. Another important contribution to knowledge that this thesis makes is that it provides an analysis, for the first time, of terrorism related judgments from Nigerian courts that have previously been unavailable in academic discourse or international fora. These judgments are key in illustrating the frame of terrorism adopted by the Nigerian justice sector and how fair labelling concerns of victims are not fully addressed. Connected to the above contribution is the development of a model indictment sheet for cases emanating from the conflict in Nigeria. Such indictment sheet has not been presented before and is intended to facilitate the domestic prosecution, by the Nigerian authorities, of the full spectrum of crimes committed in the conflict including terrorism offences. This will ultimately benefit the victims/survivors, to ensure that perpetrators are held accountable for harm done. Lastly it proposes transitional justice measures that can be used in Nigeria. This is important as it widens the scope of responses available to national authorities to achieve justice and accountability ideals for victims/survivors.