THE THRESHOLD OF ARTICLE II OF ADDITIONAL PROTOCOL II TO THE GENEVA CONVENTIONS AND THE APPLICATION OF INTERNATIONAL HUMANITARIAN LAW TO ASYMMETRIC CONFLICTS: THE SHORTFALL OF INSURGENCY IN NORTH-EAST NIGERIA

Abstract

This essay set out to consider the thresholds of Article II of Additional Protocol II to the Geneva Conventions and the application thereof to asymmetric conflicts, using the shortfall of Boko Haram insurgency in north-east Nigeria as a pivot. It adopted the doctrinal methods of legal research with heavy recourse, as it were, to books, journal articles, international law documents and the like for its execution. It was discovered, in the course of same, that the threshold established by Article 2 of Protocol II in the definition of NIAC is very high when measured against asymmetric conflicts, especially terrorism, because while terrorists, by their modus operandi, may meet nearly all the requirements in Article 2 of Protocol II, they are most unlikely, as the last of the holistic cumulativeness of these conditions to implement Protocol II. Thus, the strict construction and application of Article 2 of Protocol II in ascertaining armed conflicts to which Protocol II would apply is most likely to oust its application in most asymmetric conflicts, leading to the absurd result where Protocol II ousts itself by the conditions it contains that are mandatory for its application. In other words, it cures its own headache by cutting off its own head. Thus, it was recommended that a more liberal approach to its construction is apt and necessary in the circumstances – one which takes into cognizance the degree of violence and the certainty of the intensity thereof. Furthermore, that recourse should be made to practice and practicability as distinguished from theory, in a manner that generally accepts that the threshold of hostility necessary for the application of IHL to internal conflicts should be very low and determined on a case-by-case basis, to ensure in all circumstances, that humanity which is the concern of International Humanitarian Law (IHL) is, at all times protected.