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Legal Treatment of Boko Haram Militants Captured by Cameroon

Document Cited authorities 1 Cited in Related
Vincent
Pages44-63
Published date01 February 2018
DOI10.3366/ajicl.2018.0219
Date01 February 2018
Author
INTRODUCTION: WHAT IS THE PROBLEM?

On 14 May 2014 President Paul Biya of Cameroon declared ‘war’ against Boko Haram (BH) militants.1 In such a strong presidential system2 the declaration of war by the head of state shifted the debate on the nature of the challenge that the country currently faces. Cameroon has for long been regarded as an oasis of stability in a turbulent region.3 However, persistent attacks by BH militants have rattled Yaoundé, adversely affecting many business sectors of Cameroon including tourism.4

In a context wherein the Islamic State in Iraq and Syria (ISIS) is wreaking havoc around the world5 it is proper to start off by explaining the nature of BH, which has paid allegiance to the leader of ISIS.6 It was formed during the last decade by Mohammed Yusuf. When Yusuf died at the hands of Nigerian security forces in 2009, he was replaced by Abubakar Shekau.7 Cameroon attracted BH fighters when Yusuf was killed as many of them ran into the country for sanctuary. There are estimates that three to four thousand Cameroonians have joined the ranks of BH.8 Just as in Nigeria, in the case of Cameroon, those joining BH have the least to lose. They are pushed, among others factors, by illiteracy and poverty.9 The group's stronghold is in Maiduguri in Bornu State in Nigeria but the militants have since expanded their base.10 At a given period they were controlling 70 per cent of Bornu state.11

The main goal of the group is full implementation of Sharia law in areas captured and to forge a caliphate or the Islamic State of the West Africa Province (ISWAP).12 The militants' approaches are atrocious including mass killings through direct executions and suicide bombings.13 International attention about BH came to a head in 2014 in Chibok when the group abducted 276 schoolgirls.14 The countries affected include Benin, Chad, Niger, Nigeria and Cameroon. They have constituted a regional force under the aegis of the African Union (AU) to counter BH (the Multi-National Joint Task Force or MNJTF).15 In spite of this regional force, individual nations still have their own national operations to root out the group and its sympathisers.

As an accident of history Cameroon is a collage of two former League of Nations Mandate Territories and the United Nations (UN) Trusteeship Territories that were handed to Britain and France to administer following the two World Wars.16 In 1960 French Cameroun became independent of France. The following year British Cameroons also gained independence by joining French Cameroun. The succeeding country became a federation in 1961. The laws applicable in both the West and East were drawn from the respective metropolises as well as other laws (including Nigerian laws for West or British Cameroons). Provision was also made for the application of national statutes and laws. In 1972 Cameroon adopted a unitary constitution doing away with the federal one.17 The constitution of 1972 was revised in 1996.18 The preamble (itself an operative part of the constitution19) makes clear that there shall be no arbitrary detention, arrest or prosecution.20 Everyone has a right to a fair hearing and to humane treatment.21 Under no circumstances shall someone be subjected to cruel, inhumane and degrading treatment.22

The president has powers to negotiate and sign treaties23 which Parliament is expected to ratify.24 Treaties take precedence over national laws.25 Cameroon is party to many international treaties such as the Geneva Conventions (GCs) of 194926 and both Additional Protocols (AP) API27 and APII28 to the GCs. It is also party to the International Covenant on Civil and Political Rights (ICCPR)29 and the International Covenant on Economic Social and Cultural Rights (ICESCR),30 among others.

Within the domestic bi-jural legal system of Cameroon there are many laws that apply nationally such as the Penal Code (PC) of 1967.31 The drafters of the code used the penal codes of Brazil, Germany, Italy, Switzerland and especially France for guidance.32 Between 1967 and 2005 the country relied on Nigerian and French leaning procedures in terms of adjectival matters in criminal law. This changed in 2005 when the Criminal Procedure Code (CPC) was adopted.33 Provisions in the PC could be applied to actions of BH militants but the application of some of the relevant articles in it is limited to citizens. To address the apparent lacuna in the law, in December 2014 Parliament passed into law an anti-terrorism bill.

Like Amnesty International, the author is of the opinion that a non-international armed conflict (NIAC) is taking place between Cameroon and an organised armed group (OAG) or an international terrorist organisation: BH. BH militants have been launching attacks in Cameroon mainly from Nigeria.34 It is useful to understand the applicable law to be used when non-state fighters like BH militants are captured.35 Specifically Common Article 3 (CA3), which is now regarded as customary international law, is the main applicable law for NIACs. What also remain controversial are the obligations that non-state OAGs themselves like BH have as captors. Hoffman argues that no one can plead exemption from IHL to escape accountability for actions conducted in hostilities.36

When BH militants make incursions into towns across the border into Cameroon's Far North Region (FNR), which law is applicable to these acts and why? Under what circumstances can OAGs such as BH adhere to IHL? Relying on international treaties, domestic legislation of Cameroon, the practice of the government of Cameroon, various precedents and doctrine, this study aims at clarifying the treatment of fighters like BH militants under both domestic and international law, focusing especially on the manner in which IHL can be applied to OAGs such as BH. This is important because the current armed conflict led by Cameroon and its MNJTF Allies seems to be waged amid legal uncertainties.37 Conversations with some of the military lawyers on the Cameroonian side, reveal a paucity or complete absence of awareness of the nature of the conflict with BH, especially under international law, the relevance of the GCs and the importance of checking excesses that may occur. The approach of the government has hitherto been to rely mainly on its own domestic laws38 and a commitment to ‘applicable law’, the latter of which leaves room for ambiguity.

Considering the conflict as a NIAC39 specific legal obligations are incumbent on both the government and BH to respect IHL regarding NIACs. In making this argument it is useful to have a better understanding of the legal architecture on terrorism that exists in Cameroon (part II). The goal of part III is to determine whether one is dealing with an international armed conflict (IAC) or a non-IAC (NIAC) or the total absence of a conflict. Assuming that the situation in Cameroon is a NIAC, the fourth part reflects on various options for handling the challenges posed by groups such as Boko Haram considering the various proposals to advance their adherence to IHL. Part V concludes with further reflection on alternative approaches forward.

 WHAT IS THE APPLICABLE LAW ON TERRORISM IN CAMEROON?

During the 1970s Cameroon grappled with attacks that were perpetrated by key figures of the opposition Union des Populations du Cameroun (UPC). Many laws against subversion were enacted that mainly targeted this group of individuals. Important rules were adopted during this period marked by great violence. The law on the sale of arms of 197340 was introduced to regulate the sale and possession of weapons under a strict registration regime. A series of decrees were signed that dealt with locus standi of some civil authorities before military courts and another sought better organisation of military tribunals.41 A regulation was introduced in 1975 aimed at subversion.42 In clause III of this 1975 regulation it was mentioned that officers had to be guided by a sense of civic responsibility and their professional conscience. A special law in 1977 was adopted to address the issue of illicit explosives.43

During the 1990s and also in the decade following, many parts of Northern Cameroon were subjected to the attacks of road armed gangs known as les coupeurs des routes.44 However, in its history Cameroon has not dealt with Islamic militants. It has been non-aligned in its foreign policy and also supportive of non-intervention in the affairs of other states. During the early 1980s the Maitatsine Riots that erupted in Nigeria spilt over into Cameroon leading to thousands of deaths but this was short lived.45 After the 1990s that were marked by multi-party demonstrations rather than a particular foreign threat, the next decade was opened by the 9/11 attacks that partly led to the adoption of a law against aviation terrorism in Cameroon.46 In 2005 the government sought to restrict the use of laundered funds for terrorist financing through a decree. This again was pushed by international concerns against terrorist financing. The 2005 decree creating the agency for financial investigations (ANIF)47 was novel in many ways including the tracking of terrorism-related financial flows.

The Cameroonian Penal Code (PC)48 does not deal with terrorism as such. The PC has provisions covering treasonable offences that are punishable by death but these provisions apply only to Cameroonian citizens.49 Other sections that cover armed gangs composed of five or more persons could be invoked but they are inadequate to deal with a group made up of thousands of fighters with heavy artillery and who control territory.

In 2005 Cameroon adopted a Criminal Procedure Code (CPC).50 Section 30 of the CPC stipulates that no bodily harm shall be caused a person arrested. In the CPC the time allowed for remand in custody is 48 hours and this can be renewed twice (section 119). Under the CPC suspects have to be tried within six months following their arrest (section 221)...

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