CHAPTER ONE

GENERAL INTRODUCTION

International Humanitarian Law (IHL) can be defined as the branch of Public international law limiting the use of violence in armed conflicts by sparing those who do not or no longer directly participate in hostilities such as the wounded, the sick, the captured and the shipwreck; restricting it to the amount necessary to achieve the aim of the conflict, which independently of the causes fought for can only be to weaken the military potential of the enemy. It is from this definition that the basic principles of IHL may already be drawn, namely:  the distinction between civilians and combatants, the prohibition to attack those hors de combat, the prohibition to inflict unnecessary suffering, the principle of necessity, and the principle of proportionality. IHL is centered around the four Geneva conventions and it two additional protocols.

1.1 Background to the study.

According to the University of Bamenda (Uba hereinafter) dissertation guides, background to the study should comprise of historical, theoretical and contextual issues related to the study.[1]

1.2 Historical background.

This desertion will answer question on the protection of combatant during armed conflict: The case of  Anglophone separatist     armed conflict of 2017.Answering this question is very important since it will go a long way in reducing humanitarian casualties in the armed Anglophone conflict that has claimed the lives of thousands peoples[2].Reducing human casualties is of great importance since the war itself is temporal and not a relationship between man and man but between soldiers in which individuals only becomes enemy by accident not as men but as combatant[3]. The inception of modern IHL (international Humanitarian law) dates back to the battle of Solferino, a terrible battle in northern Italy between French, Italian and Austrian forces in 1859. A witness to the carnage, Geneva businessman Henry Dunant was struck, not so much by the violence of the fighting as by the miserable fate of the wounded abandoned on the battlefield. Together with the women of the surrounding villages, he tried to alleviate their suffering. Back in Geneva, Dunant published a short book in 1862, A Memory of Solferino, in which he vividly evoked the horrors of the battle, but also tried to find remedies to the suffering he had witnessed. Among other proposals, he invited the States “to formulate some international principle, sanctioned by a Convention inviolate in character” and giving legal protection to wounded soldiers in the field[4]. Dunant’s proposals met with enormous success all over Europe. A few months after the publication of his book, a small committee, the precursor of the International Committee of the Red Cross was founded in Geneva. Its main objective was to examine the feasibility of Dunant’s proposals and to identify ways to formalize them. After having consulted military and medical experts in 1863, the Geneva Committee persuaded the Swiss Government to convene a diplomatic conference. This conference was held in Geneva in August 1864 and adopted the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. For the first time, States agreed to limit – in an international treaty open to universal ratification – their own power in favor of the individual and, also for the first time, war was subject to written, general law. Modern IHL was born. Cameroon is among states that has ratified this convention and she equally sign a decree of humanitarian character in November 6^th 1975(Decree n75/700 of November 6^th 1975) on the treatment of sick and wounded combatant in case of military operation and also article 3 of the decree recognizing the Cameroon red Cross as the public utility charge of rendering humanitarian aid to war victims[5]. In 2017, what was commonly called the Anglophone conflict in the late 2016 that stated the Teachers and Lawyers strike metamorphosed into an armed conflict involving two belligerents in Cameroonian Government side being the state defense and security forces and armed separatist group spread all over the thirteen divisions of the north west and south west regions of Cameroon on the behalf of the Ambazonian Government advocating for the secession of the two English speaking regions of Cameroon. The emergence of this armed conflict automatically entails the application of IHL since Cameroon is a signatory to the four Geneva conventions and it two additional protocols of 1977 since it is law of armed conflict (jus in bellus).

1.3 The theoritical background.

Combatants are members of armed forces. The main feature of their status in international armed conflicts is that they have the right to directly participate in hostilities. If they fall into enemy hands, they become prisoners of war who may not be punished for having directly participated in hostilities. It is often considered that customary law allows a detaining power to deny its own nationals prisoner-of-war status, even if they fall into its hands as members of enemy armed forces. In any event, such persons may be punished under domestic law for their mere participation in hostilities against their own country. Combatants have an obligation to respect International Humanitarian Law (IHL), which includes distinguishing themselves from the civilian population. If they violate IHL they must be punished, but they do not lose their combatant status and, if captured by the enemy, remain entitled to prisoner-of-war status, except if they have violated their obligation to distinguish themselves. Persons who have lost combatant status or never had it, but nevertheless directly participate in hostilities, may be referred to as “unprivileged combatants” – because they do not have the combatant’s privilege to commit acts of hostility – or as “unlawful combatants” – because their acts of hostility are not permitted by IHL. The status of such persons has given rise to controversy. Some argue that they must perforce be civilians. This argument is based on the letter of IHL treaties. In the conduct of hostilities, Art. 50(1) of Protocol I define civilians as all those who are not “referred to in Article 4(A)(1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol”. Once they have fallen into enemy hands, Art. 4 of Convention IV define as protected civilians all those who fulfil the nationality requirements and are not protected by Convention III. This would mean that any enemy who is not protected byConvention HI falls under Convention IV. Those who oppose that view argue that a person who does not fulfil the requirements for combatant status is an “unlawful combatant “locally known as “black legs or enablers” and belongs to a third category. Like “lawful combatants”, it is claimed, such “unlawful combatants” may be attacked until they surrender or are otherwise hors de combat and may be detained without judicial decision. The logic of this argument is that those who do not comply with the conditions set for a status should not be privileged compared to those who do. Those who insist on the complementarity and exclusivity of combatant and civilian status reply that lawful combatants can be easily identified, based on objective criteria, which they will normally not deny (i.e. membership in the armed forces of a party to an international armed conflict), while the membership and past behavior of unprivileged combatants and the future threat they represent can only be determined individually. As “civilians”, unprivileged combatants may be attacked while they unlawfully directly participate in hostilities. If they fall into the power of the enemy, Convention IV does not bar their punishment for unlawful participation in hostilities. In addition, it permits administrative detention for imperative security reasons. From a teleological perspective, it is feared that the concept of “unlawful combatants”, denied the protection of Convention IV, could constitute an easy escape category for detaining powers, as the Geneva Conventions contain no rule about the treatment of someone who is neither a combatant nor a civilian (see, however, P I, Art. 75)[6].

Combatants are members of armed forces. The main feature of their status in international armed conflicts is that they have the right to directly participate in hostilities. If they fall into enemy hands, they become prisoners of war who may not be punished for having directly participated in hostilities. It is often considered that customary law allows a detaining power to deny its own nationals prisoner-of-war status, even if they fall into its hands as members of enemy armed forces. In any event, such persons may be punished under domestic law for their mere participation in hostilities against their own country. Combatants have an obligation to respect International Humanitarian Law (IHL), which includes distinguishing themselves from the civilian population. If they violate IHL they must be punished, but they do not lose their combatant status and, if captured by the enemy, remain entitled to prisoner-of-war status, except if they have violated their obligation to distinguish themselves. Persons who have lost combatant status or never had it, but nevertheless directly participate in hostilities, may be referred to as “unprivileged combatants” – because they do not have the combatant’s privilege to commit acts of hostility – or as “unlawful combatants” – because their acts of hostility are not permitted by IHL. The status of such persons has given rise to controversy. Some argue that they must perforce be civilians. This argument is based on the letter of IHL treaties. In the conduct of hostilities, Art. 50(1) of Protocol I define civilians as all those who are not “referred to in Article 4(A)(1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol”. Once they have fallen into enemy hands, Art. 4 of Convention IV define as protected civilians all those who fulfil the nationality requirements and are not protected by Convention III. This would mean that any enemy who is not protected byConvention HI falls under Convention IV. Those who oppose that view argue that a person who does not fulfill the requirements for combatant status is an “unlawful combatant “locally known as “black legs or enablers” and belongs to a third category. Like “lawful combatants”, it is claimed; such “unlawful combatants” may be attacked until they surrender or are otherwise hors de combat and may be detained without judicial decision. The logic of this argument is that those who do not comply with the conditions set for a status should not be privileged compared to those who do. Those who insist on the complementarity and exclusivity of combatant and civilian status reply that lawful combatants can be easily identified, based on objective criteria, which they will normally not deny (i.e. membership in the armed forces of a party to an international armed conflict), while the membership and past behaviour of unprivileged combatants and the future threat they represent can only be determined individually. As “civilians”, unprivileged combatants may be attacked while they unlawfully directly participate in hostilities. If they fall into the power of the enemy, Convention IV does not bar their punishment for unlawful participation in hostilities. In addition, it permits administrative detention for imperative security reasons. From a teleological perspective, it is feared that the concept of “unlawful combatants”, denied the protection of Convention IV, could constitute an easy escape category for detaining powers, as the Geneva Conventions contain no rule about the treatment of someone who is neither a combatant nor a civilian (see, however, P I, Art. 75).

1.4 Contextual issues to the study.

Anglophone Cameroon that is a home to about 5millions inhabitants spread all over it divisions has been in bloody armed conflict since 2017. Anglophone regions that comprise approximately twenty percent of the population in the majority Francophone country, over a million people have been displaced and thousands have been killed (Bone, 2020)[7]. The most recent iteration of the conflict in the two Anglophone regions of Cameroon began with demonstrations and strikes by teachers and lawyers that emerged in the fall of 2016. The demands of the demonstrations rapidly evolved, first to the establishment of a federal state and later to secession.  However, the emergence of demands for federation and later secession is not unprecedented. The belligerents are the state defense and security forces backing the Cameroonian government and the separatist fighters representing the Ambazonian government. Since Cameroon is a signatory to the Geneva conventions and its additional protocols, “jus in bellus” is bound to be applied.

1.5    Statement of the Problem.

Problem statement is an essential element that determines the relevance of a research topic. The problem statement is defined by BEAUD Michel as “the whole constructed around a main research question, hypotheses, and signs of analysis that will deal the chosen subject. It is like an essential component in the thesis preparation work (….) as important as the brain or the nervous system for the human being (….)’’. it should be noted that the problematic actually appears to be the theoretical approach or perspective that we decide to bring to deal with the problem posed by the general idea. It is the common thread that helps the researcher to better structure his work. A research problem is obviously the gap that exist between what we know    and what we would like to know a given problem[8]. As LEVI STRAUSS said, “the scientist is not the one who gives correct or right answer but one who ask good questions” the problem statement is the “matrix of thought” they say . In different terms, explains professor Magloire ONDOA  I quote the problematic is “  is the object of a research ,but an object build around a question which sheds light on it demonstration and guides it”

1.6 Statement of the Research Problem.

The Anglophone armed conflict is an armed conflict between the Cameroon government and The Ambazonian who are secessionist in the Anglophone regions of Cameroon (Northwest and South West) This crisis has lasted for about five years and though these numbers of years, the crisis remain recent and is surely for this reason that few works has been written about the conflict. The Combatant of this said conflict on the side of Cameroonian government is the State Army or state Defense Forces and to a lesser extent the police and on the Ambazonian side is the “Amba boys” or better still separatist fighters spread all over the thirteen divisions of the North West and South West. The protection of this combatant is of great importance according to international humanitarian law. The issue of this armed conflict and the protection of these combatants is of a complex view and this complexity lies on the fact that others maintain that the international humanitarian law applies while others maintain that it is not respected (that is the combatant are not protected). These contradictory views will! Take us to a research question; to what extent is the humanitarian law on the protection of combatant respected in the Anglophone armed separatist conflict?

1.7 Objectives of the Study.

The objective of this dissertation will be to investigate the extent to which the international humanitarian law in the Anglophone conflict in protecting combatant in other to reduce humanitarian atrocities committed by the warring parties is being respected.

From the main objective above, we can deduce the following specific research objectives.

1.7.1 Specific objectives

• Investigate the extent to which the combatant are protected in the Anglophone armed conflict.
• Investigate the extent to which combatants are humanely treated.

1.8 Research questions.

• The main research question of this dissertation shall be centered on knowing truly to what extent are combatant are protected? Or “combatant hors combat” protected In the Anglophone armed conflict?

From the main research question above, we can deduce the following

1.8.1 Specific questions;

• What is the extent to which the combatants of the Anglophone armed conflict secured?

What is the extent to which the combatants in the Anglophone armed conflict humanely treated

[1] University of Bamenda thesis and dissertation guide 2018 p.24

[2] Bone, R. Maxwell. 23 August 2019. “Cameroon’s civil war will continue.” Mail & Guardian

[3]Rousseau ,1768 social contract theory

[4]Dunant,1862, A Memory of Solferino

[5]Cameroon military penal code  Decree n75/700 of November 6^th 1975

[6]M. Sassòli, Antoine A. Bouvier , Quintin

HOW DOES  LAW PROTECT  IN WAR?

Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law

Volume I Outline of International Humanitarian Law

Third Edition

[7] Bone, R. Maxwell. 23 August 2019. “Cameroon’s civil war will continue.” Mail & Guardian 

[8] 4M. BEAUD, L’Art de la thèse, comment préparer et rédiger, un Mémoire de master, une thèse de Doctorat ou tout autre travail universitaire à l’ère du Net, Edition révisée, mise à jour et élargie, Paris, La Découverte, 2006, p. 55.