10 November, 2020
By Mette Kaalby Vestergaard – Research Assistant
When it comes to Islamic terrorism in the Sahel region, the best intelligence is to be found in the usage of local tribes. However, the relationship between usage of civilians for intelligence gathering and their role as civilians under international law and their appurtenant rights is a complex one. There will consequently arise inevitable considerations of both ethical and strategic character for foreign militaries operating in the region. When considering this classic question of international humanitarian law (IHL) of where to draw the line between a combatant and non-combatant, it is important to have a clear understanding of the critical issues being faced.
Islamic terrorism in the Sahel region
The 2012 coup d’état in Mali, primarily conducted by the Muslim Tuareg ethnic population, initiated years of instability. Mali, Niger and for the past two years to a large extent Burkina Faso, have been plagued by attacks by Islamic terrorists against the civilian population and foreign military forces present in the region. A security vacuum in Libya after the 2011 intervention by NATO forces has created favourable conditions for Islamic terrorist groups to recruit, train and export weapons – all enabling a flow of activities from North Africa into the Sahel region. With changes in the security dynamics and presence of Western forces in the Middle East, a new hypothesis gains its foothold; namely West Africa as the new front for the Western fight against Islamic extremism.
The relevance of this relatively new set up with regards to IHL is as follows. Since the 2001 intervention in Afghanistan, what has proven to be a central characteristic for the war on terror is the complexity of identifying the enemy due to an often blurred line between the civilian population and those classified as terrorists. The 2012 coup d’état in Mali was to a large degree enabled with the support of extremist Islamic groups, which exemplifies that the same tendency is evident in the Sahel. As some of the same dynamics are in play, we today know that a key to combating terrorism in the Sahel, is amongst other things, cracking the code to and infiltration of their connections to the local communities.
The Sahel’s already existing tribal conflicts are additionally often exploited by the Islamists, as they creates better conditions for their activities. There is no common local enemy working against them, but rather different groups that are willing to work together with them if it furthers their own agenda. Some of the most important actors are Islamic state in the Greater Sahara (ISGS) and Jamaat Nusrat al-Islam wal Muslimeen (JNIM), the al-Qaeda’s Sahel affiliate.
In an article from August 2020 discussing British intelligence entities present in the Sahel region, it was noted that a further enhancement of the intelligence gathering was needed and Sahel expert Dr. Danial Eizenga noted the following: “Militant Islamist groups have recently displayed an alarming superiority in intelligence, surveillance, and reconnaissance capabilities. Military bases in Mali and Niger were caught by surprise and suffered heavy losses at the end of 2019 and the beginning of 2020.” By Autumn 2020, the Western countries contributing forces are France, Estonia, Spain, USA, Germany, Great Britain and Denmark. This altogether sets the scene for the following reflections.
Non-combatant immunity under IHL
Under IHL, we find the legal obligation for states conducting war and hence the demands for the protection of civilians in war. As always, the interpretation of the different texts have been discussed since there origin, and different theories on how to apply them in realities with each of their own contexts are discussed continuously.
Non-combatant immunity concerns the immunity that civilians have – ergo their rights, as they are not part of the war and therefore are seen as innocent humans that should not be harmed. In the Geneva Conventions, Common Article III, civilians are described as “persons taking no active part in the hostilities.” Elaborating on this, the contrary criteria constituting a combatant are set out in the Geneva Conventions, and writes that the person shall be a part of a group and follow orders, wear distinctive emblems (for example a uniform) and bear arms openly. To understand the discussion, it is important to note the timely aspect included in the definition of a civilian, by writing “no active part.” The loss of the status as a civilian is as such temporary, and a person can, with a strict legal interpretation, take on both the role as a civilian and a combatant within the same day. It leads us to questions of the existence of a passive partaking and moreover an examination of a blurred line defining this activity.
Let’s consider a 17-year-old girl who has a normal everyday life in a village in Northern Mali – an area where militant groups are naturally integrated in the social and societal network. One day she engages in a talk with a man at a market. She knows him peripherally through some cousins. They talk about her general observation on the movements of the foreign military forces in the area, such as what seem to be their daily activities. Is she to be considered a combatant if she mentions information that turns out to improve their tactical basis for attacks on the foreign forces or civilians? Turning this scenario around, are terrorists killing civilians or combatants, if they attack a household that have been providing information to the Western forces on their activities in the area?
The rights of the innocent
The aim of providing this set up is not to answer the question and draw this line for the reader – but to give notice on the relevance of considering these questions. The first scenario leads us to the rights of the individual. When you are considered a civilian under IHL it gives you certain rights. Self-evidently, you cannot be targeted when you are not a combatant. Moreover, you may not be taken as a prisoner of war (PoW) and things essential to your survival should be protected.
So, is the above described action enough to be targeted as a combatant? From a consequentialist view, one can argue that because her information might provide support to a potential attack, she has crossed the line and is taking an active part – as we focus on the consequences of her actions in the end. On the other hand, she will later go home and live a life with no actions engaging in the conflict. As such, the question lies in the innocence of the girl. First of all, the moral considerations will be obvious to most. Additionally, the relevance of this dilemma for foreign forces lies in the opportunities for actions and the consequences of these, not only from an ethical perspective.
The scope that military forces are working in is affected depending on how this law is interpreted and can often narrow their tool box. Hence, the principle of non-combatant immunity can, in the light of intelligence gathering, be seen as a disadvantage for the forces trying to combat these groups, while an advantage when considering human rights and protection of the locals.
Strategy back on
Another perspective is how this legal principle affects the war with the actions of the terrorists as the starting point. We often talk of terrorists as someone who kill civilians to reach their goals, as this is also part of the wording defining such person. This points to the second question in the scenario to be considered. Are terror groups killing civilians, if they kill a person who directly or indirectly supports the activities of the Western forces?
It has been seen in the war on terror in the Middle East how the concept of lawfare has been exploited to its fullest, when Jihadists consciously leave their weapons out of reach, consequently taking on the role as ‘unarmed’, when they know Western forces are closing in. Lawfare is actively using the law as a means in war. The number of civilian casualties will always depend on how you define a civilian. Therefore, this discussion is of relevance as it will in the end affect the support of the military forces present in the area. A topic that can affect the legitimacy of a military mission is namely to a large extent the effect on and harm it does to the civilian population. As such, it should be no secret that it furthers the support of the mission in the Sahel, when Western media can document and report of Islamic terrorist groups killing civilians with no purpose but barbarity. The necessary headache for Western forces here must be that, if these are civilians, then the girl in the market must accordingly also be considered a civilian.
The usage of civilians as sources for intelligence, in the light of non-combatant immunity, should consequently be a prioritized strategic concern for Western militaries in the Sahel region.
The legal debate around the position of civilians in the combatant landscape can both have consequences for the rights of the individuals in question, and also for the legitimacy of the intervention by Western forces in the Sahel. It points to an awareness of both the normative and strategic costs of the tactics by actors on both sides, and to inevitable human rights problematics. As such, underlying the importance of examining this topic specifically in the context of the Sahel, points to several other aspects than just discussion and condemnation of indiscriminate violence.