The study also leads to the conclusion that most of the rules on the conduct of hostilities – initially designed to apply solely to international armed conflicts – are also applicable to customary rules in non-international conflicts, thus considerably expanding the law applicable in those situations. Given the time consuming nature and other difficulties of treaty-making in an international society with more than 190 members and the rapidly evolving needs of war victims for protection against new technological and other inhuman phenomena.
As elements of customary international law, the four principles of distinction, military necessity, proportionality and humanity which will be further examined in the subsequent paragraphs complement and underpin the various international humanitarian instruments and apply to all States, except to those that persistently object to them. These principles, however, are not based on a separate source of international law, but on treaties, customs or general principles of law. On one hand, they can and must often be derived from the existing rules, expressing those rules’ substance and meaning. On the other hand, they inspire existing rules, make those rules understandable and have to be taken into account when interpreting those rules.
Chapter four
4.0. THE ROLE OF IHL IN CHECKING TERRORISM
4.1. THE PREVENTION OF SEXUAL VIOLENCE
Atrocities committed during terrorism in the recent years stress the need to take traditional State-centric conceptualization of security to a higher level. In history, so many acts have been known to colour warfare in which one of the most known acts is rape and other forms of sexual violence. Even though beheadings and blasting of bombs are not exempted from terrorist’s acts, but to be precise, the regular rape, kidnapping and women trafficking are considered as a terrorist acts to be connected humanitarian issue. IHL specifically prohibits rape and other forms of sexual violence both in international and internal armed conflict. In the U.N. Resolution 1325 (written in 2000), it was said that women bear the brunt of war. Factually, the use of sexualized violence has been exclusively ill-used as a way to target families and whole communities which forces them to submit to the waves of the terrorists. For example, the United Nations last month estimated that IS has forced some 1,500 women, teenage girls, and boys into sexual slavery. Amnesty International released a blistering document noting that IS abducts whole families in northern Iraq for sexual assault and worse. Although, it is not common to hear all cases of sexual violence reason being that the victims may feel humiliated, ashamed or embarrassed and the societal culture and religious leaders are also not helping.
As being witnessed on every street, victims of sexually violence in Iraq of the Islamic State have resulted to suicide as a form of covering up the agony of this act. A quick look at the abducted women of Yazidi who are victims of the modalities of ISIS in relations to sex slavery, it can be said that they are being traded by ISIS fighters. Even though this group claims to be a religious organization, they have justified there sexually violence act to be religious by expressing that the victims are defaulters of the Law of Islam. In the words of President Barack Obama, he said that the IS enslaves, rapes, and force women into marriage. Terrorists in general use sexual violence as a means to uproot and eradicate entire communities, thereby making power more readily available to opposition groups. In the real sense, the ISIS has employed sexual violence to carry out ethnic cleansing against the Yazidi minority in Iraq. Over a thousand women and children have been abducted and exposed to sexual violence, rape, forced marriage, sexual slavery or enforced prostitution. From the words of escapees, they have turned women to gifts or promise for their terroristic acts. And the women in the camp of the terrorist, they are forced to get pregnant and reproduce. Also in Afghanistan, the Taliban and other extremists have used sexual violence to weakened communities, the rule of law and long-established traditional values. In the West Africa, precisely Nigeria, a terrorist group named Boko Harram have been exploring brutal means to violate women even though there name means no to Western Education. This group which has made a pledge of allegiance to IS vowing to push forward its expansion. They abducted some 270 school girls from Chibok on 14 April 2014 and shortly after, 50 girls managed to escape but the rest are still missing amid reports they are being used as suicide bombers, raped and forced to marry their abductors.
The International Committee of Red Cross defined sexual violence as an act used to describe acts of a sexual nature imposed by force, or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power directed against any victim – man, woman, boy or girl. Sexual violence as a weapon of terrorism does not concern itself with race, ethnic group or tribe, but aims at gender. Sexual violence in terrorism is in due course a grander problem that legal actions need to be applied rigorously to proffer solution to this problem. Financial support and international collaboration greatly affect the ranging facets of dealing with aftercare services for survivors, dialogue with terrorists,’’ establishing rule of law and the trust in legal systems, among other aspects of peace-building. It is known that wartime sexual violence has of recent years benefited from a law enforcement focus: international standard-setting developments and civil rights activists have succeeded in shifting priorities and in 2008 UNSC resolution 1820 identified sexual abuse in conflict as a threat to international peace and security requiring forceful response.
It is important to state that this act can constitute a war crime, crime against humanity and torture which can be a stride to securing the victims. As said earlier, it is highly prohibited as an instrument of war under IHL. Article 27 of the Fourth Geneva Convention of 1949 protects women against “attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault”, it was added as it is stated in Additional Protocol I (1977) that “women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault.” However, Additional Protocol II (1977), which applies to non-international armed conflict, prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form or indecent assault.”
In the G8 Foreign Ministers’ meeting that was held in April 2013, Prevention of Sexual Violence was a main topic of discuss. UK Foreign Secretary William Hague, who launched an initiative on preventing sexual violence in conflict in May 2012, said:
Our good must be a world in which it is inconceivable, that thousands of women, children and men can be raped in the course of a conflict because international framework of deterrence and accountability makes it impossible.
Notwithstanding, in the view of the foreign secretary, IHL remains clear about the prohibition on rape and other forms of sexual violence in international and internal armed conflicts which does not exempt Terrorism. It violates not only the human rights but other national and religious law and hence must be prosecuted.
4.2. PROTECTIONS OF CHILDREN IN ARMED CONFLICT
Since the history of terrorism, children have been part of victims of this terrorism as an act. It could be through direct participation as a child soldier or terrorist, or being wounded by stray bullet or suffering from the death of his or her parents who are victims of terrorism or through a breakdown in law and order leading to widespread sexual violence. It is clear that terrorists aims at innocent civilians which includes men, women, young or old. But from a salient angle, it is not too common that attacks towards children by the terrorist are higher over older civilians. However, there are no such terrorism acts that will not involve children. Some are kidnapped, transported and confined in secret holding grounds. In fact, incidences have shown those terrorists are now majorly targeting children to pass their message to the world. In Afghanistan, between 2009 – 2010, this country has witnessed about 20 gas poisoning attacks. During the Taliban rule from 1996 to 2001, girls and women were banned from education and the workplace. US government led a military move to take power from this Islamic group and due to this, there have been rising insurgency against the government in power. In one of their suspected attacks, there was a release of pesticide-type chemicals in schools; no fatalities have resulted, but a total of at least 636 children were injured, some seriously.
In the words of Ms. Zerrougui, ISIS forces have infiltrated into Northern Iraq and up to 700 children have been killed or maimed in Iraq since the beginning of the year, including in summary executions. School is one of the best places to find huge number of children and terrorist have been maximizing this opportunity because it is a powerful symbolic target. In 2014, a self-proclaimed Al-Qaeda operative shot and killed seven outside a Jewish school in Toulouse, France, in Mar. 2012. Malala Yousafzai was attacked and a bullet was shot at her in the face in bus while leaving school.
Schools have been used by terrorist to store harms. According to Ban Ki-Moon, the UN Secretary-General, he lamented in dismay why the Palestinian militant group would put United Nations schools at risk by using them to hide their arms. This may turn schools to lawful military targets and exposing the children to massive attacks from opposing forces. The principle of proportionality and military necessities still applies here to reduce causalities but it will still expose the kids to attacks.
In one of the well-known magazine called Foreign Affairs, it has described ‘the rise of the child terrorist’, identifying the use of children as a tactic of ISIS and the Pakistani Taliban. Even though these children may not have a deep political undertone of what they are doing, but the with the help of the adult terrorists, they are shaped, trained, orientated and brainwashed about the ideological basis of what they want them to do. They are the ones found on the front lines, participate in suicide missions, and act as spies, messengers or lookouts. Some are at times given drugs while about to carry out missions to boost their confidence towards any obstacle, to which they quickly come to be drug addict. In Sierra Leone, terrorist fed children a mixture of gunpowder and cocaine. Sometimes, children are given drugs before engaging in suicide or other attacks to erase their fear.
Two events happened just in days; where a boy, 10-year-old from Kazakh executed two Russian members of ISIS accused of being spies and three Nigerian girls around age 10, putting on explosives to be detonated at good locations. In a statement accrued to a 14-year-old boy defector, he said “ISIL prefers young children more than adults because they can convince children and wash their brains and once recruited, children make obedient soldiers.” Some high ranking terrorists or leaders majorly hunt for children to be abducted, reason being that, they are seen to be submissive, highly enthused and loyal. They can be influenced easily since they lack the ability to decipher what is right and wrong and can be taught to be ruthless fighters. Destabilized by fear and ruthlessness, children can execute the most ghastly violence. Cases of children being uses as tools can be seen in Palestinian territory where they are heavily kitted with explosives and instructed to permeate through a specific targeted location in the Israel. The use of children is now becoming alarming as hatred is planted into them and making the children to believe that terrorism is a lifetime course and the best opportunity to survive.
In the event of armed conflict, children benefit from the general protection provided for civilians not taking part in the hostilities. Non-combatant civilians are guaranteed humane treatment and covered by the legal provisions on the conduct of hostilities. Given the particular susceptibility of children, the Geneva Conventions of 1949 (hereafter GCIII AND GCIV) and their Additional Protocols of 1977 (Additional Protocol I and Additional Protocol II) lay down a series of rules according them special protection. Children who take direct part in hostilities do not lose that special protection. The Additional Protocols, the 1989 Convention on the rights of the child and its recent Optional Protocol, in particular, also set limits on children’s participation in hostilities. The Optional Protocol of 2000 of the Convention on the Rights of the Child (CRC) magnifies upon the protections for children in armed conflict. Other treaties governing the use of weapons in armed conflicts also provide for such protections to an extent. Furthermore, customary international law contains a wide range of protections for the civilian population and children in particular.
Waging war against terrorism mostly constitute negative implications for children. As it is known, terrorists twist things and precisely laws of war for their benefit. While combating terrorism, children are held hostage and in detention. They are used as human shields. The use of space to fight terrorists most often leads to serious injury and death of these children. This brings up the higher level of concern of protection when planning a military move to fight terrorism. Some are captured and apprehended for their engagement with terrorist under barbaric conditions that goes against conditions that violate international standards of juvenile justice in places like Afghanistan, Iraq and Guantanamo Bay .
The IHL has properly addressed terrorism by condensing the serious violation against children into six categories which are killing and maiming, sexual violence, recruitment and use, denial of humanitarian access, abduction and attacks on schools and hospitals.
As it is stated under Article 7 of the Rome Statute which created the ICC, any individual or group that carries out a “widespread or systematic attack directed against any civilian population” commits “crimes against humanity” and may be prosecuted before the Court. Argument have been made that there is no existing international judicial organ that would prosecute which automatically exempts ICC from having jurisdiction to conduct trial of an alleged suspect in the case of terrorism. This in another sense means that in a situation where a national court did not prosecute or extradite an alleged person, no court will take responsibility of jurisdiction. Going by the meaning of Article 7, only war crimes which constitute of crime against humanity lies in the function of the court to prosecute when the national courts have been exhausted (meaning court of last resort for war crime). However, it crystal clear that terrorism employs diverse means with no single unified definition and with no one way pattern and must be treated or considered a one type of crime. This can be a good reason why, for example, in the case of Nigerian Boko haram, the alleged sponsors have not been prosecuted in ICC and ever since the inception of this court in 2002, no case of terrorism has been tried. This calls for the amendment of the Rome Statute of ICC or the creation of a new court that terrorism will be its core jurisdiction. This research will not talk delve into why ICC lack jurisdiction but according to the letters of the Rome Statue that founded ICC coupled with its governing documents, terrorism is out of its jurisdiction.
It is in this regards that States have strengthen their function in respect to protecting their children via the development of legislations, strong policies and legal activities against proliferation of terrorist.