What International Law Says When Boko Haram’s Captive Nigerian Girls Commit Atrocities

In this Monday, May 19, 2014 file photo, Martha Mark, the mother of kidnapped school girl Monica Mark cries as she displays her photo, in the family house, in Chibok, Nigeria.

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In this Monday, May 19, 2014 file photo, Martha Mark, the mother of kidnapped school girl Monica Mark cries as she displays her photo, in the family house, in Chibok, Nigeria.

The world must determine who's at fault after Nigeria's terrorist organization forced many kidnapped Chibok girls to do horrible things.

It has been nearly fifteen months since Boko Haram abducted nearly three hundred girls from a secondary school in Chibok, Nigeria, sparking the #BringBackOurGirls campaign on Twitter. Since then, reports have surfaced that the girls have been sold, forcibly converted to Islam, and married to terrorist group members. Dozens of the girls managed to escape, but despite efforts to secure the release of the remaining 219 captives, no agreement has come through.

Recent reports from other former captives of Boko Haram indicate that the fate of the Chibok girls has taken an even darker turn. Many are allegedly carrying out atrocities on behalf of Boko Haram, including flogging prisoners who are unable to recite the Quran or killing Christian captives.

This is not the first instance of Boko Haram employing women in their attacks. According to the Aljazeera Center for Studies, women were responsible for fifteen of Boko Haram’s successful suicide bombings as of January. An April Amnesty International report includes the story of a girl forced to learn how to shoot, use bombs, and attack villages on pain of death: “Some refused to learn how to kill others. They were buried in a mass grave in the bush. They’ll just pack the dead bodies and dump them in a big hole, but not deep enough.”

This is the first report of the Chibok girls participating in atrocities outside of the context of suicide attacks. The 219 girls were last seen in video in May 2014, reciting the Quran and looking terrified.

This horrifying revelation raises the question of the girls’ culpability or complicity in Boko Haram’s attacks. It is clear from testimony of eyewitnesses that they have undergone trauma. As one former captive said, “Anyone who sees the Chibok girls has to feel sorry for them,” and experts who have examined other freed captives of Boko Haram called for “intensive psychological treatment.” Given their presumed state of duress, can these girls be held responsible for their actions?

One useful framework to answer this question is that of child soldiers under the law. According to the 2007 Paris Principles and Guidelines on Children Associated with Armed Forces and Armed Groups, “children who are accused of crimes under international law allegedly committed while they were associated with armed forced or armed groups should be considered primarily as victims and not as perpetrators.” While this is not an exact legal proscription in the case of the Chibok girls—who were between the ages of sixteen and eighteen, and therefore not considered child soldiers under either the International Criminal Court Statute (ICC) nor the Additional Protocol II of the Geneva Conventions—the fact that the girls likely acted under severe duress should be considered as a mitigating circumstance.

Thus, the law of duress is another possible framework for analyzing the legal responsibility of the schoolgirls. The usage of the duress defense varies across international and national legal systems. For example, in most common law countries—including the United States and United Kingdom—duress is only a mitigating circumstance in sentencing, not a complete defense against criminal liability. In international law, under Article 31 of the ICC statute, a defendant can be freed from criminal responsibility for “conduct which is alleged to constitute a crime [that] has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person,” as long as he or she “acts necessarily and reasonably to avoid this threat” and “does not intend to cause a greater harm than the one sought to be avoided.” Since we have little information on the circumstances facing the schoolgirls—other than the few skeletal accounts offered from those who have escaped—it is not clear that the Chibok girls’ situation fits this duress defense scenario, particularly regarding the immediacy of the threat of force.

A final potential framework is that of Stockholm Syndrome, when a captive becomes bonded to his or her captor or “brainwashed.” Reportedly, the Chibok girls are now acting as Quranic teachers for Boko Haram, making statements like “You women should learn from your husbands because they are giving their blood for the cause. We must also go to war for Allah”—arguably an indication that they may be suffering from one of these types of conditions. In one of the most famous cases characterized as turning on Stockholm Syndrome—that of Patty Hearst, who carried out an armed robbery on behalf of her kidnappers, the Symbionese Liberation Army—the duress defense  was not successful, since she committed the crime after the initial state of duress. In fact, though Hearst was characterized as “brainwashed” in the media, a court-appointed expert in the Hearst case noted that “brainwashing” was actually a misnomer for the coercion alleged in the case.

Given the limited information available about the current state of the Chibok girls, it is difficult to know whether they could be held culpable for their actions under international or Nigerian law. But rehabilitation should be considered as a primary response, in contrast to punishment, for the ordeal they have suffered for too long.

This post appears courtesy of CFR.org.

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