Non-State Armed Groups in Africa: What are their legal status and obligations?

International and non-international armed conflicts have been fought, intermittently, in the Democratic Republic of Congo (DRC), since 1997. A number of African States joined the armed conflicts, fighting on either side. There were also many foreign and indigenous non-State armed groups fighting either against each other, foreign State armies or against successive governments of the DRC. The United Nations first sent its troops to the DRC as ‘peacekeepers’. Gradually, their mandate changed, and the UN peacekeepers graduated to ‘combatant’ status, and a party to the armed conflict. Many civilians have been killed by either party to the armed conflict; and the civilian population is angry with the UN, foreign armies, non-State armed groups and their own government tucked away in the safety of Kinshasa.[1]

For the record, armed conflicts in Africa, whether international or non-international, are not new. Wars have been fought between and among Africans for ages and for a variety of reasons. The wars for liberation of Africa from colonial domination and racist regimes had a defined purpose and objective: they were not rouge non-State armed groups. FRELIMO, MPLA, ANC and other national liberation movements were coordinated by the Organisation of African Unity’s (OAU) Liberation Committee, based in Dar-es- Salaam in Tanzania during the illustrious period of Mwalimu Julius Nyerere.

In the 1980s, there were many rouge non-State armed groups fighting and destroying their countries for no clear political, economic or social reasons other than personal greed and arrogance. Most of these non-State armed groups operated primarily in or from Uganda, Sudan and the DRC, and most of the armed groups used children to fight their wars.[2]

In  current armed conflicts in the DRC, Mali, Niger, Nigeria, Cameroon, Somalia and other States in Africa, the ordinary African does not know who is fighting against whom and for what. Neither does the African Union (AU) the accidental successor of the OAU provide the faintest clues for wars being continuously waged under its remit.

However, a history of non-State armed group fighting, for whatever reason, is a long one and not limited to Africa. During the Second World War, some partisan non-State armed groups in Greece, France, Italy and the former Yugoslavia, fought alongside or in support of their allies, the Western Allied Powers. However, they were not recognised as parties to the Second World War armed conflict, as were many Africans who fought alongside the British, French and German armies. The non-State armed groups were therefore not invited at the ICRC convened and organised Diplomatic Conference held in Geneva leading to the adoption of the four Geneva Conventions of 1949, the laws that govern all post-Second World War armed conflicts.

Unfortunately, these non-State armed groups ravaging the African continent, like their earlier European forerunners, are not recognised as legal entity under international humanitarian law (IHL) or national laws in the countries in which they fight. Their victims, who are primarily civilians, tend to have no recourse to either protection or justice.

With the limited provisions of Common Article 3 of the four 1949 Geneva Conventions which provide some protection to the civilians but does not define the legal status or obligations of non-State armed groups, the matter was revisited in 1977 by the adoption of Additional Protocols II to the four Geneva Conventions of 1949. However, there was not much discussion on the legal status or obligations of non-State armed groups in non-international armed conflict (NIAC) with respect to the protection of civilians in armed conflicts. To that extent, Common Article 3 and Additional Protocol II, the governing laws on the regulation of internal armed conflict, are silent on those two key legal issues regarding their status and obligations as non-State armed groups.

Additional Protocol I of 1977 in Article 1(4), however, covers situations of “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination…” Thus, since 1977, non-State armed groups like FRELIMO, MPLA, and ANC, or new non-State armed groups fighting against colonial domination or racist regimes, continue to be covered by IHL. On the other hand, groups like Allied Democratic Force (ADF), Mai-Mai and several other groups ravaging the DRC remain unregulated under IHL except for the general reference to armed conflicts in Common Article 3.

As the experience in the DRC, Somalia, South Sudan and Mali demonstrate, in contemporary armed conflicts, there is proliferation of non-State armed groups, particularly in Africa. The non-State armed groups vary in size, structure and capabilities. Nearly all non-State armed groups, enlist, recruit or kidnap children and train them to become brave and vicious warriors, even sadist killers.[3]   Purely for practical reasons, the non-State armed groups may be divided in two main categories. First, there is the large group of non-State armed groups with well-defined command-and-control structure. This group, on a few occasions, have acted like sovereign States, governing territories under their control with many civilians, most of who are treated badly in slave-like conditions. This is how the National Resistance Movement/Army (NRM/A) operated in Uganda in the Luwero Triangle in the 1980s. As president of Uganda Mr. Museveni continues to operate like a war-lord, completely oblivious to State structures, institutions and the basic principles of separation of powers in governance of the State.

Second, there is a group with decentralized structure and operate in fluid alliance with other non-State armed groups. This is the typical guerrilla groups, fighting to destabilize a country and not necessarily to take control or to govern it. This is a category of armed groups operating in the DRC.  They include armed groups from Uganda, Rwanda, Burundi and the DRC itself. The motivations of these groups: the non-State armed groups for violence are increasingly blurred between political, religious and criminal interests.

There are non-State armed groups active in most parts of Africa and the African Union (AU) – with a department for Peace and Security – appears not to be concerned, aware or interested in addressing the root causes of these conflicts. Non-State armed groups, such as Boko Haram in Nigeria, or Al-Shabaab in Somalia, operate across several neighbouring States with branches or ‘chapters’ that are decentralised, and are organized horizontally rather than vertically.[4] Occasionally these non-State armed groups, as for example, Allied Democratic Force (ADF) or Lord’s Resistance Army (LRA) in Uganda, form “alliances” or “coalitions” with other non-State armed groups.[5] Other non-State armed groups, that enlist children, as for example, the National Resistance Army (NRA) have taken over the State with dire consequences to the child soldiers and the general civilian population.[6]  Similarly various non-State armed groups in Sierra Leone have recruited and used child soldiers in armed conflicts.[7]

In both Nigeria and Somalia, countries where Boko Haram and Al-Shabaab are situated and very active, these non-State armed groups have taken detainees or hostages, bombed hotels, attacked public markets and other public institutions. In some cases, the non-State armed groups have gained control over a large swath of territory, with many civilians under their control who are treated more or less as slaves, detainees or hostages in violations of their human rights and personal dignity. This pattern has gained a new normalcy as non-State armed groups have captured large territories or overrun military bases or barracks in different States such as Somalia, DRC, CAR in East and Central Africa, and in Mali, Niger, Burkina Faso and Chad in West Africa.

In the various armed conflicts in Africa, some organised non-State armed groups have splintered, leading to the emergence of new, often smaller groups but more vicious and extreme groups. Further, factions within factions split off forming their own new command-and-control structure. In each of the splintered non-State armed group, the faction that has split off no longer falls under the hierarchical structure and chain of command of the original non-State armed group and automatically treated or considered as a party to the on-going armed conflict. Thus, the question arises whether the newly formed armed group qualifies as a party to armed conflict under IHL. This is not a hypothetical situation for it has happened in Uganda, Somalia, DRC and CAR.

The actions of non-State armed groups in international armed conflict (IAC) are regulated by Article 1(4) of Additional Protocol I – which prohibits, inter alia, detention of civilians or hostage taking. On the other hand, Additional Protocol II and Common Article 3 do not directly address the legal status and obligation of non-State armed groups in non-international armed conflicts (NIAC).

To classify a situation of violence as NIAC, two criteria are acknowledged to be most relevant. First, military confrontation must take place between at least two organized parties. Two, the level of violence must have reached a certain level of intensity. When many different armed groups are involved in violence against one or more sovereign States, or against each other in the same or different States, but the reasons for the conflict converse, or overlap internationally recognised territorial State boundaries, evaluating these criteria for the applicable threshold in IHL becomes increasingly complex and problematic. In the DRC alone, there are more than 50 non-State armed groups fighting either the central government based in Kinshasa, the capitol city of this huge country, or the regional governments in mineral-rich regions of the country, or the non-State armed groups are fighting each other in parts of territories where the government has no control or presence, or they are fighting armed forces from the neighbouring countries of Uganda, Rwanda Burundi, or the UN peacekeeping force in the DRC.

While the UN peacekeepers in the DRC tend to keep to themselves, confined within their enclosed safe quarters or barracks, recently there have been allegations that the UN peacekeepers have shot and killed civilians; the civilians they are mandated under Chapter VII of the UN Charter to protect. In the meantime, the Congolese civilians are demonstrating and demanding the withdrawal of UN peacekeepers from the DRC. In the midst of these confusions and armed conflicts, the civilian population have very little or no legal protection either from the DRC government or from the United Nations with its many combat ready troops in the country.

Overall, legal challenges in relation to the operations of non-State armed groups’ covers three main areas: First, applicability of IHL to armed conflicts involving multiple non-State armed groups. Second, determination of legal regime protecting persons living in territory under de facto control of non-State armed groups. Third, legal and practical dilemmas regarding detentions or hostage taking by non-State armed groups.

With the above issues in mind, it is relevant to emphasise that unlike international armed conflict (IAC), there is no IHL rules explicitly designed to regulate the relationship between non-State armed groups and persons living under their control. In a purely legal context, it is debatable whether IHL and Human Rights Law apply to non-State armed groups.  Legal scholars differ on the application of IHL to non-State armed groups, particularly in situations where the violence do not reach the threshold of Common Article 3 and Additional Protocol II.[8]  However, legal scholars agree that IHL provides fundamental and non-derogable protection for those affected by armed conflicts regardless of the categorisation into international or non-international armed conflict. The reasoning is simple: IHL is intended to protect the lives and dignity of civilians in all armed conflicts.

On the other hand, unlike IHL, human rights treaties bind only sovereign States. Human rights expert, for example, the UN Human Rights Council, posit that States have an obligation to take steps, to the extent possible, to protect the rights of persons living in their territory but under de facto control of the non-State armed group. This is a tall order: it translates into expecting a ‘weak’ Government of Federal Republic of Nigeria which has lost parts of its sovereignty to a non-State armed group, for example, to protect the Chibok girls who were kidnapped by, and under the control of, Boko Harm. While countries where the Chibok girls are being held hostage is unknown, it is believed that some of them are in Niger, Chad, Cameroon, while others are within the territory of Federal Republic of Nigeria. This obligation is equivalent to asking a State to prove a negative or do the impossible. There appears to be nothing practical or legal that Nigeria can do to protect the Chibok girls apart from conducting an all-out war to defeat Boko Haram and recapture the lost territories, as long as the Chibok girls are under the control or custody of Boko Haram.

Similarly, it is problematic to figure out how Al-Shabaab may extend respect for human rights to the hostages they hold despite repeated requests from States and Human Rights organisations, such as ICRC, Human Rights Watch or Amnesty International. As the IHL currently provides, Al-Shabaab, Boko Haram or any non-State armed group, has no legal obligation to do anything positive with respect to compliance with respect to human rights of detainees or hostages.

Additionally, it is a matter of controversy whether human rights law also binds non-State armed groups. This point remains unsettled, unless addressed by Common Article 3 or Additional Protocol II. Overall, civilians forced to live in territory under the control of non-State armed groups may not enjoy any protection under both IHL and Human rights law.

In conclusion, it is important to acknowledge that contemporary armed conflicts, as  witnessed in Sierra Leone, DRC, Uganda, South Sudan, and other parts of the African continent and the rest of the world,  such armed conflicts involve a multiplicity of non-State armed groups, including sovereign States and international organisations (for example, UN in the DRC, and NATO in Libya). Some non-State armed groups or sovereign States fight for one another, and others support one another through military partnerships, alliances or ‘coalition of the willing’. This support takes various forms, such as provision of military training and exercises; provision or delivery of equipment; arms transfer; institutional capacity support; financial support for an ally or financial and other sanctions against ‘enemy’ State or non-State armed groups; hosting troops, provision of private contractors or mercenaries and intelligence gatherings.[9]

Under contemporary IHL States or non-State armed groups who support armed conflicts may themselves become party to that armed conflicts and bound by IHL, for example, by contributing to the collective conduct of hostilities by another party against an armed non-State party or by exerting overall control over a non-State armed group. These are acts and conducts similar to those Charles Taylor, former President of Liberia, was convicted for by SCSL Trial Chamber and confirmed by the Appeal Chamber, for supporting non-State armed groups fighting in Sierra Leone.[10]

However, due to the threshold requirements in Common Article 3 and Additional Protocol II, support provided to parties at war may not always reach this threshold, but still affects the conduct of the supported party to the armed conflict and may increase or reduce civilian suffering. This is one of the many loopholes in Common Article 3 and Additional Protocol II that needs plugging. It is recommended that the African Union should revisit the law on protection of civilians who fall under the control of non-State armed groups against their will or choice.

It is further recommended that the African Union should carefully examine Charles Taylor Appeals Chamber Judgement, particularly on foreign leaders providing ‘extraterritorial’ military, economic and political support to non-State armed groups engaged in NIAC. Taylor’s conviction for such acts and conduct should interest the African Union in its efforts to improve the law on protection of civilians in armed conflict as well as to provide resources and means to prosecute those most responsible for violations of IHL whether they are State functionaries or members of non-State armed groups.

Dr Obote Odora

Executive Director, Consultant and Researcher

Alternative Policy Forum

[1]Prunier, G (2009) From Genocide to Continental War – The ‘Congolese’ Conflict and the Crisis of Contemporary Africa (Hurst & Company, London)

[2]Keitetsi, C (2004) Child Soldier (Souvenir Press); Allen, T & Vlassenroot, K (ed)(2010) The Lord’s Resistance Army – Myth and Reality (Zed Books, London, New York)

[3]Singer, P.W. (2006) Children At War (University of California Press, Berkley, Los Angeles); Wessells, M (2006) Child Soldiers- From Violence to Protection (Harvard University Press, Cambridge, Massachusetts)

[4] Hansen, S.J (2013), Al-Shabaab – The History and Ideology of a Military Islamist Group 2005-2012 (HURST & COMPANY, London)

[5] Allen, T & Vlassenrott, K (ed)(2010), The Lord’s Resistance Army – Myth and Reality (Zed Books, London, New York) Green, M (2008), The Wizard of the Nile – The Hunt for Africa’s Most Wanted Man (Portobello Books Ltd.)

[6] Keitetsi, C (2004), Child Soldier (Souvenir Press)

[7] Beah, I (2007), A Long Way Home – Memoirs of a Boy Soldier (Fourth Estate, London)

[8] Roth, K  “ War in Iraq: Not a Humanitarian Intervention” in Wilson  R.A (ed), Human Rights in the ‘War on Terror’ (Cambridge University Press), pp 143-156; Goldstone R, “The Tension between Combating Terrorism and Protecting Civil Liberties” in Wilson  R.A (ed), Human Rights in the ‘War on Terror’ (Cambridge University Press), pp 157-168; Robertson G, “Fair Trials for Terrorists?” in Wilson R.A (ed), Human Rights in the ‘War on Terror’ (Cambridge University Press), pp169-183.

[9] Singer, P.W (2003), Corporate Warriors – The Rise of the Privatized Military Industry (Cornell University Press, Ithaca and London)

[10] Prosecutor v Charles Ghankay Taylor (SCSL-03-01-T), Trial Judgement, 18 May 2012); (SCSL-03-01-A), Appeals Judgement, 26 September 2013.

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