Applicability of International Humanitarian and Human Rights Law to Hybrid Irregular Forces: a Case Study of the Civilian Joint Task Force in Nigeria's Counterinsurgency Against Boko Haram

In contemporary counterinsurgency warfare, non-state entities such as Civilian Defence Forces (CDFs) are increasingly operating as hybrid irregular forces i.e., as both combat forces as well as providers of local governance functions. Frequently, these groups act in manners in which they potentially violate international law norms. It is important to determine whether and under what basis States can be held responsible for such conducts. International law provides that state responsibility for the conduct of non-state entities only arises in some instances, which are primarily contained in Articles 4 – 11 of the Articles on State Responsibility 2001. The conditions created under these articles relate to when such non-state entities act as organs of the state, are empowered to perform governmental functions based on an enabling internal law and generally operate under the direction and control of the State. These rules have been affirmed in a variety of tests developed by the International Court of Justice as well as other international criminal tribunals. These rules and the tests developed by the courts are rather strict/restrictive and do not cover emerging non-state entities such as CDFs operating as hybrid irregular forces. This thesis presents the first comprehensive analysis on the issue of state responsibility for the conduct of hybrid irregular forces. It conducts this analysis adopting as case study, the Civilian Joint Task Force (CJTF), a CDF that has been operating in this manner in Nigeria’s counterinsurgency warfare against Boko Haram. The thesis examines the question of whether and on what basis can the Nigerian State be held responsible for the conduct of this group. It addresses this question from a broader international law perspective, specifically International Humanitarian Law (IHL), International Human Rights Law (IHRL), and the law of state responsibility. It argues that there is a dissonance between the rules of attribution under the law of state responsibility framework and States’ use of CDFs operating as hybrid irregular forces. It therefore recommends an expansive approach to states responsibility in this context, by canvassing a broadening of the standard of empowerment under Article 7 of the Articles on State Responsibility. In particular, it canvasses a broadening of the empowerment framework, so that in addition to the existing framework of ‘empowerment through an internal law’, the rules be expanded to include empowerment through factual circumstances i.e., the existence of an informal link/working relationship between the State and the hybrid irregular force. It is hoped that the outcome of this thesis will inspire a broadening of the current framework, as this holds benefits, chief among which are the possibility of more States been held responsible in an increased number of cases and the potential of compelling States to developed domestic mechanisms to regulate their engagement of these groups.