Author: Helina Stiphanos
About a year ago, 18 Amhara students of Dembi Dolo University were fleeing from the unrest in their University. While they were on their way to Gambela, the students were kidnapped in Wollega, Oromia region. One of them managed to escape and gave a testimony of the incident to the news outlet Addis Standard. The rest, most of whom are female, have disappeared without a trace. They have not been heard of since. On the anniversary of their disappearance, Helina discusses if kidnapping of civilian girls and women can be a violation of International Humanitarian Law.
Key Words: Kidnapping, Non-International Armed Conflicts, Non-State Armed Groups, Girls, Women.
Kidnapping of Civilian Girls and Women by Non-State Armed Groups
#BringBackOurGirls, a social media campaign started in Nigeria, was a result of an outrageous kidnapping of 276 girls from their school in Chibok. The girls were kidnapped by Boko Haram, a non-state armed group (NSAG), as a retaliation to the ‘nabbing’ of the wives and children of the group’s members by Nigerian authorities. This was, however, just the first step to the evolution of the group’s tactics towards instrumental use of girls and women in non-international armed conflicts (NIACs).[1] Shortly after the kidnapping in April 2014, a middle-aged woman became the first female bomber for the group. Since then, even girls as young as 7 years old have been used as suicide bombers. A 2018 UNICEF press release states that more than 1,000 children have been kidnapped by Boko Haram in north-eastern Nigeria between 2013 and 2017. Between January and August 2017, the use of children as ‘human bombs’ intensified with 83 children, 55 of whom were girls, having been used as such. Unfortunately, the kidnapping of the Chibok girls was neither the first nor the last of such acts, by Boko Haram and/or other NSAGs.
Kidnapping, IHLs Violation?
The regulation of NIACs relies on extremely limited legal instruments – Common Article 3 to the Geneva Conventions and Additional Protocol II[2] (APII) – and a strong Customary International Humanitarian Law contribution. Yet, none have defined kidnapping. Even the jurisprudence of multiple international courts and tribunals have disregarded this. In this blog post, kidnapping is defined as the forcible removal of civilian girls and women from their environment by NSAGs.
IHLs apply once a situation reaches an armed conflict which arises when elements of opposing armed forces are engaged in an attack.[3] Attacks are acts of violence against the adversary whether in offence or defence.[4] It is the use of armed forces to carry out a military operation at the beginning or during the course of armed conflict, a definition applicable in NIACs too.[5] Thus, kidnappings can constitute attacks as long as they are carried out by a party to an armed conflict in furtherance of a military operation or as one by itself, at the beginning or during the course of armed conflicts.
The applicability of IHLs to NSAGs is widely accepted.[6] Hence, they are required to respect the rights of civilians to be protected from being objects of attack.[7] The distinction of civilians and combatants/members of NSAGs is a pillar of IHLs.[8] This protection lasts for as long as civilians refrain from taking direct part in hostilities (DPH).[9] Accordingly, girls are protected by law, from being objects of kidnapping by virtue of their civilian status. School girls from Dapchi in Nigeria, most of whom were later released, were kidnapped by Boko Haram from their secondary school. However, there has not been any indication from any of the parties as to the involvement of any of the girls in the armed conflict nor of the fact that they were taking DPH.[10] Thus, the act is an outright breach of IHLs as it demonstrates the ignorance of such NSAGs towards their responsibility of sparing civilians from targeting.
In addition, act or threat of violence whose primary purpose is spreading terror amongst civilians is prohibited in NIACs.[11] Acts that constitute such violence include assault, rape, abuse and torture of women and children among others.[12] These acts are particularly reprehensible for they are frequent and inflict particularly cruel suffering upon the civilian population.[13] The phrase ‘acts or threats of violence…’ under article 13(2) of AP II was intentionally left to be illustrative.[14] There is no exhaustive list of acts amounting to acts or threats of violence providing a space for kidnapping to be included. Besides, the acts provided as an example under Henckaerts and Doswald-Beck’s Customary International Humanitarian Law share a peculiar feature with kidnapping, i.e. negative long-lasting effect on the lives of victims.
The suffering from kidnappings is particularly cruel as the young girls, even beyond the kidnapping, are subject to further harm while captives and face multiple difficulties when/if they return. In addition to forming part as one of the six grave violations committed against children, kidnapping is usually only the starting point to further violations of International Humanitarian Laws (IHLs). In 2014, Yezidi young women and girls as young as 12 were kidnapped by Islamic State (IS) fighters who sold, gave them as a gift or forced them to marry to IS fighter/supporters. Many of them were further subject to rape and other forms of sexual violence. These acts are very traumatizing to the extent that some have attempted to end their own lives. Moreover, survivors of rape and conflict time violence are subject to stigmatization, rejection, and abandonment, upon their return.[15] Hence, kidnapping can form part of an act or threat of violence.
Moreover, women and children are specially protected in armed conflicts. Women benefit from special protection which entitles them protection in the various situations they may find themselves in.[16] Children are also entitled to care and aid they require provision of education, reunification with their families, protection from participating in hostilities and being recruited to armed groups and be taken out of areas of hostility.[17] Furthermore, both girls and women can benefit from the protection against rape and other forms of sexual violence.[18] Kidnapping is contrary to these special protections. Often, it results in outrages upon personal dignity of girls and women manifested through physical and sexual violence, among others. It mostly results in the denial of education to girls who will be kept away from their families and are forced to ´grow´ much faster than they would in their normal environment. There are even times where they are forced to take part in hostilities in different capacities.
Conclusion
Kidnapping is a violation of IHLs. It takes away the multiple opportunities that girls and women can make use of in the real world, making them more susceptible to harm than they already are in an unequal world. Moreover, the subsequent dangers they face while being kidnapped threatens their fundamental and basic rights. In addition, the harmful effect of kidnapping is not only to the girls and their immediate families but also to the broader community and global peace and security in general. It is a threat to the advancement that has been witnessed on the rights of girls and women over the years and undermines the role that IHLs play in the protection of these civilians.
[1] Jacob Zenn and Elizabeth Pearson, ‘Women, Gender and the evolving tactics of Boko Haram’, (2014) 5(1), Journal of Terrorism Research, 46-57, p.47
[2] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977
[3] A.P.V. Rogers, ‘Law on the Battlefield’, (3rd edn, Manchester University Press, 2012), p.3
[4] Art. 49(1), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977
[5] Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, para.1882 and para.4783
[6] Daragh Murray, ‘How International Humanitarian Law Treaties Bind Non-State Armed Groups’, (2015) 20(1), Journal of Conflict and Security Law, 101-131, p.101
[7] id [n.2] art.13(2)
[8] Jean-Marie Henckaerts and Louise Doswald-Beck, ‘Customary International Humanitarian Law’, (Cambridge University Press, 2009), 1 Rule 1
[9] id [n.2] art.13(2); id Rule 6
[10] The author believes that neither combatants nor members of NSAGs should be subject to kidnapping, as well. But protection for them can be better argued on the ground of limited means and methods of warfare than distinction.
[11] id [n.2] art.13(2); id [n.8] Rule 2
[12] id [n.8] Rule 2
[13] id [n.5] para.4785
[14] id
[15] Hawkar Ibrahim, Verena Ertl, Claudia Catani, Azad Ali Ismail and Frank Neuner, ‘Trauma and perceived social rejection among Yazidi women and girls who survived enslavement and genocide’, (2018) 16(154), BMC Medicine, p.2
[16] id [n.8] Rule 134; Common Article 3(1)(c) provides for prohibition of outrage upon personal dignity, in particular humiliating and degrading treatment from which the protection of women can be inferred.
[17] id [n.2] art.4(3); id [n.8] Rule 135
[18] id [n.8] Rule 93
Helina Stiphanos Teka is a research associate at the University of Münster. She has a Master of Laws in International Humanitarian Law from the University of Essex and Bachelor of Laws from Addis Ababa University. She can be reached at helinastiphanosteka@gmail.com
Addis Ababa University IHL Clinic 